Barney v. State

| Md. | Jun 4, 1875

Bowie, J.,

-delivered the opinion of the Court.

The appellee, on the 12th of June, 1873, filed its petition in the Superior Court of Baltimore City, alleging that certain taxes, imposed under the Acts of 1868, ch. 371, and 1870, ch. 422, on the capital stocks of corporations chartered by this State, had been levied and assessed by the proper authorities, upon the capital stock of the appellant’s company, and that the appellant, as President of said Company, is bound to pay to the Treasurer of the State the said sums, imposed as aforesaid, and has neglected and refused to pay the same, and prayed a mandamus, commanding and enjoining the appellant to pay the same.

To this petition the appellant filed his answer, assigning twelve several grounds of defence.

The first three substantially declare that the provisions of the Code of Public General Laws, requiring the payment of taxes to the Treasurer, were repealed by the Act of 1866, ch.157.

The 1th is, that the legal effect of the Act of 1868, ch. 371, was to require that the taxes thereby imposed and based on the assessment therein referred to, “ should be collected in the manner prescribed by so much of the Code of Public General Latos as was then in force. ’ ’

5th. and 6th. That the Act of 1870, ch. 422, sec. 18, imposed the taxes for the years 1870 and ’71, on the stock of the Baltimore Warehouse Company, in the hands of the stockholders, and not otherwise.

7th and 8th. That the appellant’s Company did not in the years 1870 and 1871 assess the value of its stock, but only gave such information ás would suffice for its valid assessment, by those duly authorized to make such assessment.

9tli. That the appellant’s Company did not arrange with the Appeal Tax Court to fix the value of the stock or to commute the taxation upon it, or to pay the same, for the years 1870, 1871, or either of them, but the tax, if any was assessed, on said stock, in said years, was payable by the holders thereof.

10th and 11th. Are general denials of the liability of appellant’s Company to pay the Treasurer of the State for the taxes claimed.

12th. Concludes, that for the causes aforesaid, the writ of mandamus should not issue.

The State demurred to the 1st, 2nd, 3rd, 4th, 5th, 6th, 9th, 10th and 11th defences; and as to the 7th and 8th replied: “That upon the return of the said information, so as aforesaid furnished, the Appeal Tax Court did assess the said shares of capital stock, at the sum in said information fixed, and as charged in said petition, and that the municipal taxes were charged by the proper authorities and collected from the stockholders upon said assessment.”

To which replication the appellants demurred. Upon this state of pleadings, the case being argued and submitted, the Court below, without passing any special order sustaining or overruling the demurrer, ordered the rule to show cause why the mandamus should not issue, to be made absolute. From which order this appeal is taken.

The points made in the appellant’s brief maybe reduced to two. First. That a demurrer does not lie to an answer to a petition for mandamus under the laws and practice of this State.

Secondly. That there is no legal authority in the Treasurer to collect and receive the taxes claimed by the State, and therefore the mandamus should not issue.

The first point is sought to be sustained by reference to a series of English decisions, arising under the statute of 9th Anne, ch. 20, entitled “An Act for rendering the proceedings upon writs of mandamus and informations, etc., more speedy and effectual, etc.” Mr. Alexander, in commenting on this statute, and comparing the provisions of the 59th Art. of the Code, title “ Mandamus,” with it says : “ The answer of the defendant may rely upon matter of fact, and matter of law together, and it is held that the petitioner must take issue or demur to such defences,” referring to Eichelberger vs. Sifford, 27 Md., 321; “hut it will be observed that the language of the Code, like that of the statute of Anne, does not authorize the petitioner to demur to the answer; and in the construction of the statute of Anne it was determined that the prosecutor could not demur to the return.” Alexander’s British Statutes, 696.

Since the decision in Eichelberger vs. Sifford, in which the question was not raised, this point has been directly disposed of by this Court, in the case of Hardcastle vs. The Md. & Del. R. R. Comp’y, 32 Md., 32, 34, and must therefore be regarded as res adjudicata.

In that case this Court recognized the coincidence in the provisions of Art 59, Tit. Mandamus, Code of Public General Laws with those of the statute of 9 Anne, ch. 20 ; and conceding that demurrers to the return of the defendant were not allowed in England until the 6th and 7th Yict. expressly authorized them, the Court declared, “this technical rule has not been adopted in our practice.” 32 Md., 32, 34.

The second point in the appellant’s brief has, in our opinion, been as explicitly decided by the ruling of this Court in the case of Emory, etc. vs. The State, 41 Md., 38.

In that case, as in this, it was contended that the payment of the taxes for 1870 and 1871 could not be coerced by mandamus, because, 1st. under the Acts of 1868, ch. 371 and 366, and 1870, ch. 422, s. 18, they were required to be levied by the Mayor and City Council, and to be collected by the local collector, and were not payable directly to the Treasurer — the Act of 1868 having repealed secs. 93 and 105 of the Code ; and 2ndly, because by the Act of 1812, ch. 419, sec. 93, of Art. 81 of the Code was expressly repealed, and the power of the Treasurer to require payment of the taxes, thereby taken away. The Court denied both these propositions, and referring to the language of the Act of 1868, ch. 311, held that it re-enacted the provisions of the Code of Public General Laws, Art. 81, secs. 93 and 105, as they originally stood, not, as insisted by the appellant, in the 4th proposition of his answer, ££as was then in force.”

(Decided 4th June, 1875.)

It is true, in the case just referred to, the Act of 1866, ch. 151, was not referred to as repealing the Code, as originally enacted; but if the Act of 1868, ch. 311, re-enacts the provisions of the Code, secs. 93 and 105, it follows, of course, all Acts antecedent to it are repealed, including that of 1866.

The principal points of the appellant having been thus covered by preceding decisions of this Court, we think it unnecessary to enter into a more minute consideration of the appellant’s elaborate argument, concurring entirely with the clear and forcible views expressed by the learned Judge who decided this case below.

Order affirmed, and, cause remanded.