Surratts Associates v. Prince George's County

⁵⁵⁷ Digges, J., delivered the opinion of the Court. In this appeal that stems from an action ex contractu for past due general taxes, instituted by tax collecting authorities against a defaulting property owner, we are requested to determine: 1) Whether real property taxes may be collected, either through invoking the tax sale provision and its related redemption foreclosure procedure set out in Md. Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Article 81, §§ 70-123C 1 or alternatively, by way of an action of assumpsit under section 206 of that article? 2 And, if so, 2) Whether the sale and purchase of the property by the county at a tax sale bars a subsequent suit of assumpsit because either the tax liability has been satisfied or the “election of remedies doctrine” is applicable?

According to the undisputed facts, which we glean from the record before us, the appellant, Surratts Associates, is a joint venture owning several parcels of unimproved land in Prince George’s County. These properties are free of encumbrances except for a section 70 lien for unpaid state and county real estate taxes due for fiscal years 1977,1978 and 1979. It was because of failure to pay the taxes due for the initial two of these years that one of the appellees, Director of Finance for Prince George’s County, as he was authorized to do by sections 72 through 91, offered appellant’s properties for sale at a public auction on the first Monday of May, 1978. When no private bid was received at the sale for the Surratts parcels, they were knocked down to the other appellee, Prince George’s County, and a certificate of purchase was issued to that county by the director.

Id. § 88. Instead of instituting a right of redemption foreclosure proceeding, as the county may have, eventually, been permitted to do by sections 88 and 89, the two appellees joined in filing the present action of assumpsit under section 206 to collect the tax arrearage. After initially claiming taxes, penalties, interest and costs for ⁵⁵⁸ fiscal years 1977 and 1978, the appellees filed an amended declaration, seeking additionally, the taxes which had become due for 1979, with a motion for summary judgment attached, demanding $36,564.71, the amount concededly then owed for taxes and costs. 3 I As it did in the trial court, the taxpayer objected in this Court to the present contract suit as being improperly conceived. Appellant’s opposition is founded principally on its belief, mistakenly in our view, that section 206, authorizing collection of taxes through an action of assumpsit, initially enacted in 1929, was later repealed as it pertains to real property taxes by the inclusion of section 122A in the new tax sale and redemption foreclosure procedures that were substituted for the former “Tax Sale” subtitle of Article 81 with the enactment of chapter 761 of the 1943 Laws.

These two legislative provisions, which are of prime interest here, in relevant part read: 4 SUITS FOR COLLECTION OF TAXES § 206. Assumpsit.... (a) Any tax may be collected from the person liable under this article to pay the same by action of assumpsit instituted at any time after said tax shall become due and payable, within the period of limitations prescribed by this article, and such suit may be maintained notwithstanding the existence of other remedies by way of sale of real estate, or otherwise. ⁵⁵⁹ TAX SALES § 122A. Repeal of inconsistent acts ....

All acts and parts of acts, whether public general or public local, inconsistent with the provisions of this subtitle, be and the same are hereby repealed to the extent of such inconsistency; but all laws repealed by this subtitle shall nevertheless remain in force in respect to any and all tax sales made or instituted prior to December 31, 1943. Any and all tax sales made or instituted after December 31, 1943, shall be made only in accordance with the provisions hereof.... [Md. Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Art. 81, §§ 206, 122A.] The issue posed by the appellant — Does section 122A either expressly or by implication nullify the previously enacted section 206 as far as it pertains to collection of past due real estate taxes? — is one we can only resolve by inquiring whether the legislature intended the earlier act should survive with respect to those taxes the birth of the latter.

In undertaking this probe, we mention that there exists no dearth of decisions by this Court explaining the relevant considerations to be taken into account in construing legislative enactments. Not too long ago, Judge Smith chronicled most, if not all, of the more recent of these holdings in his opinion for the Court in Police Comm’r v. Dowling, 281 Md. 412, 418-20 , 379 A.2d 1007, 1010-12 (1977). We extract from that case, with citations of authorities omitted, the more pertinent of these tenets: Where two statutes deal with the same subject matter as [is true with sections 122A and 206] here, they must be construed together if they are not inconsistent with one another. Thus, to the extent possible, full effect should be given to each.

This is true notwithstanding the fact that the statutes may have been enacted at different times with no reference to each other, because in that case the rule ⁵⁶⁰ is that statutes must be harmonized to the extent possible. This principle of statutory construction operates because the law does not favor repeal by implication. Put in slightly different words, “Yet another cardinal rule of statutory construction is that repeals not express will not be found unless demanded by irreconcilability or repugnancy.” [Id. at 418-19, 379 A.2d at 1010-11 .] Other principles mentioned in Dowling include: The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.

A court may not insert or omit words to make a statute express an intention not evidenced in its original form. [Id. at 419, 379 A.2d at 1011 .] Although the content of what is now section 206 in the present Code was first introduced into our statutory law with the enactment of chapter 226 of the 1929 Laws of Maryland, prior to that time it was a part of the common law of this State, Henderson v. Taylor, 59 Md. 338, 342 (1883); Appeal Tax Court v. W.M. R.R. Co., 50 Md. 274, 295 (1879); Dashiell v. Baltimore, 45 Md. 615, 621 (1877); Mayor, &c. of Balt. v. Howard, 6 H. & J. 383, 394 (1824). In that Act, after expressing in its preamble “a desire to approve the recodification recommended by the [Maryland Tax Revision] Commission,” 5 the General Assembly by section 1 repealed the then existing “Article 81 of the Code of Public General Laws of Maryland (1924), entitled Revenue and Taxes [and enacted in lieu thereof] a new article [81], with the same title ⁵⁶¹ and appropriate subtitles.” 1929 Md. Laws, ch. 226. Under a separate subtitle which was designated “Suits for Collection of Taxes”, what is now section 206 was in chapter 226 set out as section 145. In its report to Governor Ritchie which accompanied the Tax Revision Commission’s draft of a suggested new revenue and tax statute for submission to the General Assembly, the Commission stated that its “primary object... has been to recodify in some intelligible form the present confused jumble of antiquated, obsolete, ambiguous, inconsistent, redundant and unintelligible statutes, with as few changes in substance as possible.” Maryland Tax Eewision Commission Report at iv (1928).

Among the further comments contained in the report appears the following: Collection by Suit or Attachment. The present law contains numerous, partially redundant and partially inconsistent, special provisions for collection of taxes by suit against the person or corporation liable therefor; and even where no such special provision is found, a suit at common law may be maintained. We have provided expressly that all taxes may be collected by action of assumpsit, and have outlined any special proceedings in such action, but have omitted as unnecessary any provisions for suits to collect particular kinds of taxes. As we are abolishing distraint for taxes, we have inserted a provision that any suit for collection of taxes may be begun by attachment against the lands, chattels or credits of the delinquent, as if the defendant were a non-resident.

This provision may be used advantageously wherever it is apprehended that the defendant may make way with his property. [Id. at xiv.] With respect to tax sales the Commission’s report explains: Tax Sales. The provisions as to tax sales are now largely different in each county and in the City of Baltimore. ⁵⁶² There is no reason why one uniform procedure should not be used throughout the State, and every possible reason in favor of such a procedure. We have, therefore, entirely rewritten the provisions relating to tax sales, and have endeavored to provide a uniform and equitable procedure for the entire State. Our first and fundamental object is to make sure, so far as humanly possible and as consistent with the interest of the public, that no landowner should have his property sold for taxes over his head without actual and not merely constructive notice.

Our second and subsidiary object is to provide a procedure that will give a good title to the purchaser, and thus enable a fair price to be obtained, and also prevent the land sold from being rendered unmarketable. [Id.] While the General Assembly adopted without change the recommendations of the Tax Commission pertaining to suits of assumpsit, it was not as true to the Commission’s suggestions when it came to the provisions for collecting taxes by way of tax sales. Compare id. at 97-99 [and] id. at 55-66 with 1929 Md. Laws, ch. 226 (codified as Md. Code (1924, 1929 Supp.), §§ 145-150) [and] id. (codified as Md. Code (1924, 1929 Supp.), §§ 69-89). Instead of adopting one uniform procedure as urged by the Commission, the legislature enacted, on its own initiative, as part of chapter 226, section 69% of the Code, in which it authorized the continued use of any local tax sale procedures adopted by any political subdivision prior to the Act, unless the city or county affirmatively elected to be governed by the new procedures which chapter 226 had just established.

See 1929 Md. Laws, ch. 226, codified in Md. Code (1924, 1929 Supp.), Art. 81, § 69½, recodified in Md. Code (1939), Art. 81, § 73, repealed by 1943 Md. Laws, ch. 761. With this historical data being available, it becomes readily apparent that by enacting chapter 226 of the 1929 Laws, the General Assembly, with forethought, recognized and statutorily authorized, under separate subtitles within the then new Article 81, alternative procedures as being ⁵⁶³ appropriate for collecting taxes from defaulting taxpayers. The appellant does not take issue with what we have just said, but it urges, nonetheless, that when the General Assembly fourteen years later enacted chapter 761 of the 1943 Laws, it by section 3 of that chapter (presently codified as section 122A) expressly repealed, and if not expressly by implication, the provisions of section 206 as it pertains to collecting taxes due on real property. We reject this contention as being unsound.

Chapter 761 of the 1943 Laws was, as was chapter 226 of the 1929 Laws, drafted and enacted following a study and report — this time by the Research Division of the Legislative Council at the request of that council, then an agency of the General Assembly. The breadth of the study, resulting in the legislative recommendations made, encompassed according to the report’s preface authored by Dr. Horace E. Flack, Director of Research, an examination “of the laws relating to tax sales, not only in Baltimore City, the several counties and municipalities of the State, but also the laws of other states.” C. Everstine, Tax Sales in Maryland, Research Division-Legislative Council of Maryland at iii (Rept. No. 14, 1942) (preface) (emphasis supplied). The