Ex parte the Tax Sale of Lot No. 172

42 Md. 196 | Md. | 1875

Grason, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court of Baltimore City, dated May 1st, 1874, and setting aside a tax sale made and reported by the Oityr Collector.

The main question, presented upon this appeal, is, whether sections 874, 875, 876 and 878 of Article 4, of the Public Local Laws are still in force, or whether they have been repealed by the Act of 1872, chap. 384. Those sections have not been repealed in express terms, and, if repealed at all, it is by implication merely, because of irreconcilable conflict between them and the provisions of the Act of 1872. We have very carefully examined Article 81 of the Public General Law to which the Act of 1872 is an amendment. It is amended in several respects by the latter Act, but we are of opinion that it is not more in conflict with the Local Law since its amendment, than it was as it originally stood before the passage of the amending Act. Section 41 is amended so as to make all other taxes, liens on real estate, as well as State taxes, which alone had, before the passage of the Act, been liens. This section of the Act of 1812, clearly .applies to the City of Baltimore as it is apparent, from its very terms, that the Legislature intended to change the law in this respect and to apply that change to the whole State. Section 49, before being amended, required the statement and notice therein described to be left with the party by whom the taxes were to be paid, or at his usual place of abode. As amended the statement and notice were to be left with the party by whom the taxes were to be paid, or one of them, if there was more than one, or at his or their usual place of abode, or at the usual place of abode of one of them, or set up on the land or premises, where land or other real estate is to be sold, or delivered to any person in possession thereof. It will be seen that the amendment merely made some change in the mode of serving the statement and notice, and provided what should be done in place of notice, when it could not be personally served. Under the 50 th section as it originally stood the collector was bound to levy upon the party’s personal property, and by the amendment he was authorized to levy upon either realty or personal. Sections 54, 55, 56, 51 and 59, which directed the mode of proceedings to sell real estate for taxes, were repealed by the Act of 1812, and section 63 enacted in their place. This section provides that tax sales shall be reported to the Circuit Court of the judicial circuit where said lands are situate, or when situate in the City of Baltimore, to the Circuit Court of said City, and directs the mode of proceeding after such report shall have been made. This was a new feature in tax sales applied to the Counties by the Act of 1861, ch. 186, and was expressly extended to Baltimore City by the Act of 1870, chap. 312, and by section 63 of the Act of 1872, is reenacted and applied to the whole State, including Baltimore City. It is supposed that the Act of 1872 applies to Baltimore, because section 50 requires the notice of sale to be published in a newspaper published in the County or City, and stuck up at the Court House door of the County or City, and if no newspaper be printed in the County, said notice was required to be set up at two other public places in the neighborhood, in addition to that at the Court House door of the County or City. It will be observed that the “City of Baltimore” is not named in any of the sections except the 63rd, which clearly applies to the wdiole State, and which requires the reports of sales for taxes in Baltimore City to be made to the Circuit Court of that City. In the 50th section,.as we have already stated “ County or City ” is mentioned, and there are other cities in the State besides Baltimore City, and the Legislature may have well had them in contemplation when the word City was used. But the 63rd section would seem to indicate that the Legislature, at the very time of the passage of the Act of 1872, had in view the fact that there was then in force and effect a law or laws which presented a mode of proceeding in tax sales different from that contained in the bill upon which it was acting, for instead of providing that the Judge should give notice if he found the proceedings regular and in accordance with the provisions of that Act, that is the Act of 1872, he was required to give notice if he should find the proceedings regular and in accordance with the' provisions not of this Act, but “ of law.” Upon an examination of the Code it will be found that in many of the sections of Article 81 as it was originally adopted, including the sections expressly repealed by the Act of 1872, the “Mayor and City Council of Baltimore,” “the City of Baltimore” and the Appeal Tax Court” are named and referred to. But it never w supposed that Article 81, before the passage of the Act of 1872, repealed by implication the Local Law, Article 4, sections 874, 875, 876, 877 and 878. On the contrary, the Public Local Law was adopted by the same Act, by which the Public General Law was put in force, and the very sections, which are now supposed to be repealed, were recognized as being in force by the Act of 1862, chap. 148. It is therefore evident that it was clearly intended by the Legislature of 1860, which adopted the Code, as well as by the Legislature of 1862, that Article 81 of the General Law, and sections 874, 875/876, 877 and 878 of Article 4 of the Local Law should stand together, and, this being the case, we cannot say that the latter are repealed by implication by an amendment to Article 81, especially since it cannot reasonably be inferred from anything to be found in the amending Act, which is more inconsistent, or more in conflict with them than are the provisions of Article 81 as originally adopted. Not being repealed they must prevail over the General Public Law. See Rule 11th of interpretation. 1 Code, page 10.

The sale reported in this case and the proceedings under which it took place must therefore be regulated and governed by the Local Law, bnt the report of the sale and the proceedings of the Judge of the Circuit Court, after the report is made, must be governed by the provisions of the 68rd section of the Code as amended by the Act of 1872.

Upon an examination of the proceedings of the Collector, as set out in the record, we find that they are, in several particulars, not in accordance with the requirements of the Local Law. But twenty-four days notice was given, when it is required that tMrty days notice shall be given by advertisement inserted twice a week in two daily newspapers published in the City.

Section 875 provides that the purchaser, on the day of sale, or the next day, shall pay the amount assessed, or taxed on tlie lot sold together with all costs and charges and no more, and the residue of the purchase money shall remain on a credit for one year and a day, and the terms should be so advertised. In this case the sale was for cash.

Section 876 allows the debtor but one year and a day to redeem the property sold, and not two years, as was advertised in this case. Though it may be well always in the notice of sale to state the time within which the debtor may redeem, yet ave find nothing in the law which requires it, and the omission to insert it, or, if inserted, a misstatement of the time Avould not affect the validitjr of the sale.

The Local Laxv does not direct where tlie sale shall take place, but the purpose and object of giving notice of the sale are to inform the owner of the land and the public, of the place, as well as the time, where and Avhen the sale is to take place so that they may attend and bid if they think proper, and both time and place should be certain and fixed. The notice in this case that the sale would take place at the Court House door, or “ at such other place as may hereafter be designated is therefore fatally defective.”

It Avas also suggested that the action of the Judge of the Circuit Court Avas premature. Section 63 of the Act of 1872 provides, that the Judge shall examine the proceedings and if they appear to be regular, he shall give notice, &c., and if good cause be shown he shall set aside the sale, and the Collector shall thereupon proceed to a new sale. It would be a strange anomaly if the Judge can set aside sales upon cause shown, when the proceedings appear to be regular, and yet not have the power to set them aside, Avithout notice, when he finds, upon examination, that the proceedings are not regular nor in conformity with law. He clearly has such power, and upon his exercising it, the Collector must proceed to a new sale.

Section 60 of Article 81, provided that no Collector should sell more of any lot of ground in any toAvn or city than might be sufficient to discharge the taxes and charges thereon due, unless the County Commissioners or Appeal Tax Court should be of opinion that such lot would not admit of division without material injury to the owner, and should previously direct the Collector to make sale thereof to the extent of the ground sold. Even if this section applied to the City of Baltimore, which it might well do consitsently with the Local Law, it cannot apply to any future sale, as it has been repealed by the Act of 1814, ch. 483, which is now in force.

(Decided 12th March, 1875.)

As Article 81 of the Code, as amended by the Act of 1812, has been repealed by the Act of 1814, chap. 483, it may be proper to state that we have carefully examined its provisions, and are of opinion that it does not operate a repeal of the sections of the Local Law before réferred to, it being with some few exceptions, a re-enactment of Articl 81 as amended by the Act'of 1812.

As the proceedings of the Collector in this case were not in accordance with the requirements of the Local Law in the particulars before mentioned, the order appealed from will be affirmed.

Order affirmed.