Sindall v. Mayor of Baltimore

McSherry, C. J., delivered the opinion of the Court. There are two questions presented by this record and the solution of both of them depends on the construction which may be placed on sec. ip of the Act of Assembly of 1888, ch. p8, known as the Annexation Act, or the Act under which ⁵²⁸ portions of the territory of Baltimore Comity were withdrawn from the outlines of the county and added to the municipal limits of Baltimore City. As the whole section of the statute will have to be examined and considered, in disposing of the questions involved, it will now be quoted in full. It reads as follows: “ That until the year nineteen hundred the rate of taxation , for city purposes upon all landed property situated within the territory which, under the provisions of this Act, shall be annexed to the city of Baltimore, and upon all personal property liable to taxation in said territory, whether owned by persons, corporations or otherwise, and upon which taxes would be paid to Baltimore County if said territory should not be annexed to the said city, shall at no time exceed the present tax rate of Baltimore County; and until the year nineteen hundred there shall not be, for the purposes of city taxation, any increase in the present assessment of such property as is now assessed ; and all property in the said territory which is not now assessed, but which may be within the same period liable to assessment, shall be assessed at the same rate as similar property is now assessed in said territory ; and during the said period up to the year nineteen hundred, the city of Baltimore shall expend within said territory an amount at least equal to the amount of revenue derived from taxation on the basis herein set forth from the said territory in affording to the residents within said territory the rights and privileges accorded to and enjoyed by the residents within what are the present limits of said city, but nothing in this Act shall be so construed as to require the expenditure by said city of any greater sum.

From and after the year nineteen hundred, the property, real and personal, in the said territory so annexed shall be liable to taxation and assessment therefor in the same manner and form as similar property within the present limits of said city may be liable ; provided, however, that after the year nineteen hundred the present county rate of taxation shall hot be increased for city purposes on any landed property within the said territory until avenues, streets or alleys shall have been opened and constructed through the same, nor until. ⁵²⁹ there shall be upon every block of ground so to be formed at least six dwellings or store houses ready for occupation.” The appellant is the owner of a parcel of land brought within the city limits by the Act just referred to. The area within which this parcel of land is located is bounded on the north by New Boundary avenue, a dedicated but unaccepted, ungraded, unpaved and uncurbed street, laid out by one Clemens, in eighteen hundred and eighty-nine ; on the south by a six foot private alley; on the east by the old York road, which was a county highway long before the adoption of the Annexation Act; and on the west by the York turnpike road, which is owned and controlled by a corporation that charges and collects toll for the use of the road. Through the middle of this land owned by the appellant he opened in eighteen hundred and ninety-seven a street forty feet wide, extending from the York road to the York turnpike, and called it Franklin Terrace. This street has not been accepted by the city; nor was it constructed in conformity to sec. 84.0 of the city charter.

On the north side of this forty-foot street he laid out eleven building lots, and on the south side seven lots, upon all of which he erected houses. Four of the eighteen houses and lots have been sold, but the. remaining fourteen are still owned by the appellant. Now, the two questions at issue in the cause are, first: Is the appellant as owner of these fourteen houses and lots liable to pay the current city tax rate on the assessed value of them,, or is he still responsible only for the county rate of the year eighteen hundred and eighty-seven, under the provisions of sec. ip of the Annexation Act ? Secondly: If he is liable for the full current city rate does that liability apply to the taxes, for the year nineteen hundred, or does it first begin in nineteen hundred and one ?

The proviso at the end of the section gives rise to the first question. This proviso is a restriction on the power of the municipality to levy more than a designated rate of taxes on property annexed to the city limits, until a prescribed condition shall be complied with. Like every other exemption ⁵³⁰ from taxation it must be strictly construed. The taxing power is never presumed to be surrendered, and therefore every assertion that it has been relinquished must, to be efficacious, be distinctly supported by clear and unambiguous legislative enactment.

To doubt is to deny an exemption. It is contended that the condition prescribed in the proviso to sec. ip requires the Baltimore county rate of taxation which had been fixed just before the Annexation Act took effect to be adhered to for city purposes up to nineteen hundred and one so far as the annexed property is concerned, and to be adhered to “until avenues, streets or alleys shall have been opened and constructed” through this then suburban locality, and, further, “until there shall be upon every block of ground so to be formed” (that is to say, to be formed by avenues, streets or alleys to be opened and constructed) “at least six dwellings or store houses ready for occupation.” Is this the true meaning, not of the proviso taken by itself, but of the entire section which has been quoted ? If we were dealing simply with the proviso, not as a mere proviso, but as an independent enactment standing alone, instead of considering it in its relation to the antecedent portion of. the section to which it is attached, there would be great, and possibly conclusive, force in the position taken by the appellant, to the effect that the case of Valentine v. City of Hagerstown, 86 Md. 486 , is decisive of the controversy. By sec. 194., Art. 22, of the Local Code, concerning the City of Hagerstown it was enacted that land within the city limits and within the then newly extended limits of Hagerstown should not be assessed for purposes of municipal taxation “until a street shall be laid out and opened through the same; but when a street shall be laid out and opened through said real estate, the land abutting on said street, and improvements thereon, to a distance two hundred and forty feet back from the line of said street, shall be assessed and taxed for municipal purposes as other property in said town is now taxed.” Valentine laid out into town lots a parcel of land and caused a plat thereof to be recorded among the land ⁵³¹ records of the county.

On this plat proposed streets called Carrollton avenue and Carroll street were marked and defined. These streets, though thus dedicated to the public, were never accepted by the municipality, but were used as streets by the owners of the property abutting on them and were generally considered streets of the town. Valentine was charged with municipal taxes on some of the lots abutting on these streets, but his lots were not within two hundred and forty feet of any street which had been laid out by municipal authority. He resisted payment of the tax exacted of him and filed a bill in equity praying that an injunction might issue to restrain jts collection.

The bill was dismissed, but upon appeal the decree was reversed and this Court held in the course of its judgment, that: “The evident purpose of the Legislature was to limit the power of taxation for municipal purposes to a distance of two hundred and forty feet ‘back from the line’ of such streets as the corporate authorities saw fit to' lay out and open, and was a recognition of the principle that property owners, in consideration of being taxed, should, enjoy the benefits of the improvements made with the municipal tax. Whilst it may be true,” we went on to say, “that Carrollton avenue and Carroll street have been, since the alleged dedication, used as streets by the owners of property on the map, and may have been generally considered streets of the town, yet there never has been any formal acceptance of either of them by the authorities of the town, and until that has been done, according to law, they have not been ‘laid out and opened’ within the meaning of the charter; and as the property of the appellant, sought to be taxed, is not within two hundred and forty feet of any street, ‘laid out and opened’ by the municipal authorities, the contingency which renders it liable to be assessed and taxed for municipal purposes, has not arisen.” It would be quite difficult, perhaps impossible, to distinguish the case at bar from Valentine's case, had we nothing before us but the proviso to sec. ip. The difference in the phraseology of the two statutes is unimportant, because the meaning of each is the same. The phrase “laid out and ⁵³² opened” used in the Hagerstown charter is no more comprehensive than the terms “opened and constructed” contained in the proviso to sec. 19 of the Annexation Act.

Both apply to precisely similar situations. If, under one statute, lots within two hundred and forty feet of a dedicated and actually opened street were not liable to assessment, because that dedicated and actually opened street had not been accepted by the municipal authorities and had not, therefore, become a street of the town; it could not well be held under the proviso to the other statute, that land which was contained within a block bounded by a dedicated, but unaccepted street, a private alley, a county road and a turnpike road, is land within a block formed by “opened and constructed avenues, streets or alleys.” If, in the one instance, acceptance by the municipality was necessary to make the dedicated streets such streets as were meant by the Legislature, it could not, with consistency, be said, in the other instance, that acceptance by the municipality of Baltimore was not necessary to make the dedicated but unaccepted avenue or street such an “opened and constructed” avenue or street as the proviso contemplated. However ingenious this attempt to quadrate the case at bar with that of Valentine may be, it is untenable. The two cases must be viewed from entirely different standpoints.

In Valentine's case the real question for decision was whether the property had ever been brought within the reach of the