Mayor of Baltimore v. Proprietors of Green Mount Cemetery

7 Md. 517 | Md. | 1855

Le Grand, G. J.,

delivered the opinion of this .court.

This case comes before us on an appeal from a pro forma judgment, rendered by the Superior Court of Baltimore city on a case stated. The statement of the facts may be thus abbreviated; By the act of 1837, ch. 164, the appellees were incorporated. As a corporation they are seized and possessed, for the purposes mentioned in the charter, of a quantity of land whose western boundary is the York avenue, within the limits of the city of Baltimore. In the year 1851, an application was made .by the proprietors of a majority of the feet of ground binding and fronting on the York avenue, in the city of Baltimore, between the north side of Oliver street and the north side of North avenue, in the said city, to have the aforesaid part of the York avenue paved, in conformity with the ordinances of the Mayor and City Council of Baltimore. After notice by advertisement, the proper authorities determined that the avenue, as asked, should be paved, which was accordingly done in the year 1852; and, in pursuance of the ordinances of the city, a tax was imposed upon the owners of property fronting on the said part of York avenue, equal in amount to the whole expense thereof, excluding the cross-streets, the amount assessed on the appellees being $3790.12. There is no question in the case in regard to the regularity of the proceedings of the corporate authorities of the city; the appellees resting their defence to the claim set up against them exclusively upon the language of their charter, the third section of which provides, that at least fifty contiguous acres of the land of the appellees “shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever.”

The appellees insist, under this clause of their charter, they are exempt from all liability to pay for the paving in front of their property, alleging that the demand is a “tax” and a “public imposition ,” and being such, they are expressly relieved from all responsibility for the same by the words of the grant to them from the State. The decision, therefore, of the case, depends entirely on the true interpretation of the words which we have quoted from the act of incorporation.

The ordinances of the Mayor and City Council expressly designate, and the Court of Appeals, in the case of Eschbach vs. Pitts, 6 Md. Rep., 71, recognize, the levy for paving as a “tax.” There is, therefore, no question in regard to the fact of its being such: the only question being, is it such a tax as is within the meaning of the act of 1837, ch. 164?

The words, “ any tax or public imposition whatever,” most certainly are very comprehensive, and would, if strictly construed, apply to every possible form of taxation or imposition, and, as a consequence, necessarily include a paving tax. But, on the fullest consideration, we are unable to satisfy our minds that the statute in question should receive such an exposition. We think the legislature intended nothing mote than to exempt the property of the proprietors from all taxes or impositions levied or imposed for the purpose of revenue, and not to relieve it from such charges as are inseparably incident to its location in regard to other property. At the time of the passage of the act of 1837, (he York avenue was designated as a public street, and as such, was liable to be paved within the discretion of the city authorities, on the application of the proprietors of a majority of the feet of the land fronting on it. The effect of words of exemption from taxation has never been decisively settled by the Court of Appeals, although the question was presented in the case of Dolan & Foy, vs. The Mayor & City Council, 4 Gill, 394. In that, as in this case, the claim was for paving in front of a grave-yard. The appellants there claimed exemption under the 2nd sec. of the act of 1841, ch. 23, which provided, that nothing contained in it should be “.construed to authorize the assessment of, or levy of any tax upon, the property belonging to the United States, to this State, or to any county or city within this State, or to any incorporated literary or charitable institution, county schools, houses of public worship, burying-grounds,” &c. Baltimore county court, sitting in equity, held that the exemption only extended to public taxes, and not to a release of all liability for benefits conferred; such as might result from the opening or paving of streets. And this view was not only taken in connection with the category in which “ burying-grounds” was found in the act, but independently of it and in view of the nature of the thing itself. When the .case on appeal came before this court, the decree was., by a majority of the court, affirmed on grounds having no bearing on this question; one of the judges, however, did pronounce on the question, concurring in opinion with the court below. The county court recognized the authority of the case of The Mayor, &c., of New York, 11 Johnson, 80, as also did this court in the subsequent case of Alexander & Wilson, vs. The Mayor & City Council, 5 Gill, 396. In the case reported in 11 Johnson, the commissioners appointed by the court for the enlarging of Nassau street made a report of the estimate and assessment of the damage and benefit to the parlies interested in enlarging the street, by which it appeared that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The churches objected to the assessment, on the ground that they were not liable because of a general law, which provided, “that no real estate belonging to any church or place of public worship, &c,, shall be taxed by any law of the State.” But the court unanimously decided otherwise, and held that the word “taxes” meant burdens, charges or impositions, put or set upon persons or property for public uses; and that to pay for the opening of a street, in a ratio to the benefit or advantage derived from it, is no burden—is “ no talliage or tax within the meaning of the exemption.” The doctrine of that case has been fully sustained by a number of decisions. See Bleecker vs. Ballou, 3 Wendell, 263. The Northern Liberties vs. St. John's Church, 13 Penn. State Rep., 104.

But it is said there is a difference between the case reported’ in 11 Johnson and the one now before us; that there it was an assessment, whilst here it is a tax. That was the case of the' opening of a street; this is for paving of a street. The language of exemption in the New York statute would include just as well the paving as the opening of the street;- and if it did not, as was decided, include the latter, it surely did not the other. The language of the New York statute was quite as comprehensive as the act of incorporation of the appellees. It exempted churches, &c., from-ail taxes imposed by any law.’ The distinction, if any, between a tax and an assessment is not very palpable. The meaning, of the words is the same in our laws. When a man is assessed to pay a certain sum, it is equivalent to, and nothing more than, the imposition of a tax-on him to that amount. This is the popular understanding of the signification of the terms, as well- as that of philologists. Thus, Webster: Tax—“a rate or sum-of money assessed on the person or property of a citizen by government for the use' of the nation- or State.” So, also, “an assessment is a valuation made by authorized persons, according to their discretion,as opposed to a sum certain or determined by law. It may be a direct charg.e of the tax to be paid.” In principle, we are unable to discover any difference between the meaning of the words, whether applied to the opening or to the paving of a street. In either case they ought to receive the same exposition; and they are regarded as synonymous by the court in The People vs. Mayor, &c., of Brooklyn, 4 Comstock, 429, a case which, it was argued by one of the learned counsel for the appellees, overrules the cases we have cited from 11 Johnson and 3 Wendell. We do not, however, so understand that decision. For (he most part, it deals with matters in no'way involved in this case. Its consideration of the provisions of the constitution of New York, of the right to apportion taxes,' or of the distinction between the sovereign powers of eminent domain and of taxation, do not concern the question before us. That the imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain, we entertain no doubt, nor did we understand the counsel for the appellants to suggest any. There was no question of exemption in the case last referred to. The question there was, whether it was competent to assess on the lands benefited by the grading and paving of a particular avenue the cost of the same? It was contended that the statute authorizing such assessment was unconstitutional, because it confined the assessment to those supposed to be benefited by the improvement. The Supreme Court sustained this objection, but it was reversed by the Court of Appeals, which held the act of the legislature authorizing such assessment to be perfectly constitutional.

Looking to the principles of the cases we have cited, and which have been recognized heretofore by this court,-and to the nature of the thing itself, we do not consider this paving tax such a tax as is embraced in the exemption contained in the charter of the appellees. The property of the United States, of the city and county of Baltimore, are all exempted from taxes, and yet it has never, so far as we are informed, been contended that it was not liable for the paving done in front of it, and we can see no reason why that of the appellees should be. If the latter be not responsible, then, it is evident, the street must forever remain unpaved, or the expense of it be borne wholly and entirely by the proprietors of the lots opposite. Surely this never could have been the intention of the Legislature, nor can it be imagined it was its purpose to compel the city generally to do it. It must be viewéd practically as a benefit conferred on the property of the appellees, and the mere fact that they were indifferent to it, ought not to avail inf their favor any more than the like indifference of an individual proprietor would shield him from liability to pay his quota when paving is done in front of his ground.

To the objection, that to subject the property of the appellees to liability for paving, would endanger its perpetuity as a cemetery—-an object certainly very desirable, and of evident solicitude on the part of the Legislature—it may be replied, that however we may deal in' words, there is nothing in this terrestrial sphere which is not liable to shocks and decay, and at some day, sooner or later, to final dissolution. However, its force, whatever it may be, equally applies to all the engagements and liabilities of the corporation. The building of a wall, of a church, or the improvement of the grounds, may superinduce debt, and, with it, disastrous consequences. Although fully sympathizing with the laudable spirit which, with pious zíeal and watchfulness, seeks to preserve the undisturbed repose of the dead, we, névertheless, feel ourselves bound to declare, that we see nothing in the legislation of the State, nor in the nature of the demand itself, to exempt the appellees'from liability.

Judgment reversed, and judgment for appellants

for amount mentioned in the case stated.

Tuck¿ J.y dissented.-