Maxwell v. State ex rel. Baldwin

Bartol, C. J., delivered the opinion of the Court. This is an appeal from a pro forma order of the Superior Court passed by consent, awarding a peremptory writ of mandamus. The ostensible purpose of the proceeding is to compel the appellants, who are assessors for the third assessment district of Baltimore City, to go on and value and assess all the property within their district, which the petition alleges to he liable to assessment under the Act of 1814, chapter 514. The real object of the proceeding is to obtain a judicial exposition of the Act of Assembly in question, and a definition of the powers and duties of the assessors under the Act, which the parties called upon to execute it have failed to find in its-provisions. The case is somewhat anomalous but as the proceedings are regular on their face, and the matter is one clearly within the jurisdiction of the Court; we cannpt escape — 287 — the duty and responsibility of expressing our judgment upon the questions involved in the appeal. These are succinctly stated in the petition and answer. The former alleges that all property, real, personal and mixed, is liable to assessment, except certain property particularly mentioned in the petition, and which is the same that is enumerated as “excepted,” in the first section of the Act. The answer alleges that the Act of 1874, ch. 514, is void for uncertainty; and secondly, that the said Act exempts from assessment and valuation all property, real, personal and mixed, in this State, except that which the petition sets out as being exempted from assessment and valuation, under and by virtue of the first section and the proviso thereto; and that by the first section of the said Act the property alleged in the petition to be exempt from assessment and valuation, is liable to assessment and valuation. The questions for us to determine are, what is the meaning and effect of the Act of Assembly : and whether the duties of the assessors therein prescribed, are so defined, as that they can be understood, and their performance by the appellants enforced, according to the prayer of the petition. The Act is a long one consisting of thirty-six sections, containing many complex provisions, and requiring in its preparation considerable care and skill. Either from haste or inadvertence in its preparation, or carelessness in its engrossment, it is full of imperfections, some of the sections are incomplete, some of them are unintelligible, and many of its provisions are contradictory with one another. Some of these will be noticed hereafter. The principal question we have to deal with, is the duty of the assessors, and the first thing to be determined is what property are they authorized and required to value and assess. To ascertain this, recourse must be had to the provisions of the Act under which they have been appointed. — 288 — Where these are imperfect, or unintelligible or impractable, it is contended that we may resort to the Act of 1874, ch. 483, to supply its defects and control its meaning. The two Acts, it is said, are in pari materia, and are to be construed together, as parts of the same system. This constitutes the main ground of the argument on the part of the appellee. The petition refers to chapter 483 as containing the law for the government of the assessors and in the “Rules and Regulations” prepared by the Comptroller under the 6th section of the assessment law, (his instructions to the assessors;) departing altogether from the terms of the assessment law, he treats the Act, chapter 483, as applicable to the case, and refers to its provisions as his guide. Are these Acts in pari materia9 and can we resort to one to supply the defects, and aid in the construction of the other ? This is a very important and vital question in the present case. To answer it, we must consider the nature and objects of the two statutes, and compare them together. The Act of 1874, ch. 483, is an Act repealing Art. 81 of the Code entitled “Revenue and Taxes,” and re-enacting the same with amendments. It wept into effect from the date of its passage. By its second and third sections it designates what property is liable to assessment and taxation, and what property is exempt. The Act provides within itself, a complete system for the levying and collection of taxes under the existing laws, on the basis of former assessments, provides the officers and machinery by which its provisions may be executed, former assessments may be altered and corrected, and the public revenue levied and collected. The assessment Act now under consideration forms no part of that system, it has no real or necessary connection with the existing revenue laws of the State; but is an Act providing for a new assessment for the purpose of fixing a future basis of taxation, which is to be completed by the first day of March, 1875. In such an — 289 — Act it was certainly not essential that the property liable to assessment, and that intended to be exempt, should be specified. It was quite competent for the Legislature, if such had been their intention, to have referred to the existing law on the subject of revenue and taxes, contained in the Code, Art. 81, as amended by the Act of 1814, ch. 483, and declared that the property therein mentioned as exempt, should not be liable to assessment; and in such case the 81st Article of the Code, as amended, would become and be construed as a part of the assessment law. Or the same result might have been accomplished by any apt words of reference, or appropriate terms expressing such to be the legislative will. But the Legislature did not see proper to adopt that course. By the Act of 1814, ch. 514, now under consideration, they have proceeded to declare in positive terms, what property shall be exempt from taxation, for the purposes of the new assessment provided for by the Act. It is evident that Article 81 of the Code, as amended, is altogether distinct from and independent of the Act of 1814, ch. 514. They are not in pari materia, but relate to different subjects, and there are no words in the latter which refer to or incorporate any of the provisions of the former; on the contrary, their provisions are dissimilar, and in some respects in conflict. The words in the 19th section of the latter Act, declaring that “all existing laws of the State, that may come in aid of the provisions of this Act, shall apply, and be construed as part thereof," cannot have the effect of making the provisions of the Act of 1814, ch. 483, or any of them, a part of the assessment law. They perform no other office than to express in words what the rules of law already accomplish, which authorize the Court to construe Acts together, that are in pari materia; but we have said that this rule cannot apply to chapters 483 and 514 of the Acts of 1814; because they do not form parts of one sys — 290 — tem; but relate to different subjects, were passed' for different objects, and are quite independent of each other. The last named Act must therefore be construed by itself, without the aid of chapter 483 ; and we are next to consider what are the meaning and effect of its provisions. The first section declares “ that all property, real, personal and mixed, of all kinds and descriptions whatever in the State,” except certain projierty therein particularly named, “shall he exempt from taxation for State or local purposes.” Theáe are the words of the Act; they are plain and unambiguous. The petition alleges that it is the duty of the assessors appointed under the Act, notwithstanding its terms, to go on and value and assess all the property in the State, except what is enumerated in the first section, alleging that this last was intended to be exempt, and that what by the words of the Act is declared to be exempt, was intended to be made liable to assessment and taxation; and the Court is called on so to declare, in plain opposition to the words of the Act of Assembly. The main argument in support of this construction has been based on the provisions of another, independent Act, 1874, ch. 483, which we have already shown is not in pari materia, and cannot aid us in the construction of this assessment law. It is true that in arriving at its meaning, we are not confined to the first section alone, but must consider the whole Act, and construe all its parts together. This is a rule always to be observed in construing written instruments, and applies with great force to the construction of Acts of Assembly. Frazier vs. Warfield, 13 Md., 302. Applying this rule to the present case, the difficulty is not removed. We have looked in vain at the other sections of this Act, to find any justification for departing from the provisions of the first section, in order to determine from the language.employed, what property is made liable to assessment, or declared to be exempt from taxation. — 291 — The oath of the assessors, prescribed by the seventh section is that they will faithfully execute the duties of their office according to the directions of this Act of Assembly. So in the 9th, 10th, 11th, 14th, 21st, 26th and 29th sections, it is provided that the assessment is to be made “ as provided by this Act,” and by the terms of the 10 th section the assessment is to he made of “property directed to be assessed and valued by this Act. ’ ’ Now there is no part of the Act, except the first section, which attempts to declare what shall he liable to taxation and what shall be exempt. To determine this, recourse must, of necessity, he had to the first section, to which all the subsequent sections point, and by which they must be construed, and, although, in some of them, as in the 12th section, are to be found provisions not entirely consistent with those in the first section ; they cannot have the effect of annulling or destroying the operation of the express words contained in the first section. When we look at the proviso there is much ambiguity, and if this could control the rest, we should he compelled to declare the whole inoperative for uncertainty; for it would be impossible to say with certainty, from the language employed, what property the Legislature meant to exempt from taxation. But in the enacting clause, the words are plain and unambiguous, and must be taken as the expression of the legislative will. It is not in our power to expunge them from the statute, nor is it possible for us, by any legitimate rule of construction, to alter their meaning, or destroy their operation and effect. The rules governing Courts in the construction of statutes, have been often expressed, and are too well established to he now called in question. In the recent case of Clark vs. The Mayor & C. C. of Balto., 29 Md., 283, this Court decided that while a statute should be construed according to the intent of the Legislature which passed it; to ascertain this intent “we are first to consider the words employed, and interpret them accord — 292 — ing to their plain, ordinary and natural import, having some regard to their order and grammatical arrangement. If they are clear, precise and unambiguous, the Legislature must be understood to mean what it has plainly expressed.” The same rule is laid down by the Supreme Court in Fisher vs. Blight, 2 Cranch, 358, 399, where it is said: “When a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.” Here the words of the Act are, as we have said, plain and unambiguous; the Legislature has declared that in the execution of this assessment law, all the property in the State shall be exempt from taxation, except what is particularly mentioned. It is very probable; nay, we feel quite sure, the Legislature intended to say something very different. There has evidently been some mistake or omission, and we are asked to correct the mistake or supply what has been omitted, in order to make the Act express what we suppose to have been the intention of the Legislature. We certainly have no power or authority to do so. As said by Buller, Justice, in Jones vs. Smart, 1 Term R., 52, we are bound “to take the Act of Parliament as they have made it, a casus omissus can in no case be supplied by a Court of law, for that would be to make laws.” In King vs. Inhabitants of Stoke Damerel, 7 B. & C., 568, Baylby, J., said, “I do not know howto get rid of the words of this section of the Act of Parliament, and' when the Legislature, in a very modern Act of Parliament, have used words of a plain and definite import, it is very dangerous to put upon them a construction, the effect of which will be, to hold that the Legislature did not mean that which they have expressed.” — 293 — In King vs. Inhabitants of Barham, 8 B. & C., 103, Tenterden, C. J., said: “Our decision may, perhaps, in this particular case, operate to defeat the object of the 59 Geo. Ill; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the Act, in order to give effect to what we may suppose to have been the intention of the Legislature.” In Smith’s Commentaries on Statutory and Constitutional Construction, 830, sec. 714, the rule, as deduced from the authorities, is stated to be, “that Courts must not, even to give effect to what they may suppose to be the intention of the Legislature, put upon the provision of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the Act.” We refer also to Green vs. Wood, 7 A. & E., N. S., (53 E. C. L., 183 ;) King vs. Burrell, 12 A. & E., 460 ; Lamond vs. Eiffe, 3 A. & E., N. S., (43 E. C. L., 1034;) Bloxam vs. Elsea, 6 B. & C., 176; Brandling vs. Barrington, 6 Barn. & Cress., 475 ; Dwarrison Statutes, 702. The rule governing the Courts in cases of this kind, is nowhere more clearly stated than by our predecessors, in the well considered case of Alexander vs. Worthington, 5 Md., 485, as follows: “We are notatliberty to imagine an intent, and bind the letter of the Act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent, which the statute in its native form does not evidence.” In a recent case decided by the Supreme Court of Ohio, upon a statute, the Court say: “ We are satisfied by considerations outside of the language, that the Legislature intended to enact something very different from what it did enact. But it did not carry out its intention ; and we cannot take the will for the deed. It is our legitimate function to interpret legislation, but not to supply its omissions.” Woodbury & Co. vs. Berry, 18 Ohio, 462. — 294 — Constrained, hy these rules, and keeping in view the limits imposed upon our authority hy the Constitution, which forbid us from making laws, we are compelled to say that the first section of the Act of Assembly now under consideration must be understood according to the plain import of its language; and so understood, it is impossible for the Court to enforce its execution ; because it would be in plain violation of the 15th Article of the Declaration of Rights ; which declares that “ every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the government, according to his actual worth in real or personal property, &c.” In the case of The State vs. The Cumberland & Pennsylvania R. R. Co. ante p. 22, it was held that this Article imposes limits upon the legislative, power. It requires no argument to prove that a law which exempts from taxation all the property of the State, except a small portion specified in the Act, which only is thus by implication, made subject to taxation, is unconstitutional and void. Apart from the consideration, that among the property thus enumerated is some which the State has not the power to tax. On this ground, and because the assessment Act must receive this construction, according to its plain and positive provisions, it is our duty to declare that it is inoperative. Of course we do not impute such a purpose to the Legislature. It is evident that a mistake has occurred in drawing the law—something has been omitted. But we cannot correct the mistake or supply the omissions—we are compelled to take the law as the Legislature has enacted it. We have no power to change the words or to add provisions in order to make it express what we may suppose to have been the intention of the Legislature. If they have failed to express their real intentions, it is for them and not for the Courts to amend the law, and make it express the legislative will. — 295 — In former times, the Courts have exercised large discretion in dealing with statutes, and among the earlier cases in England, instances may be found in which the Courts, construing Acts of Parliament, have sometimes changed or disregarded their language, and imputed to them a meaning not warranted by their terms. The modern English decisions do not sanction such latitude of construction; and it has never been adopted in this country. On this subject, the observations of Mr. Sedgwick meet our approval. He says, “Indeed the idea that the Judges in administering the written law, can mold it and warp it according to their notions, not of what the legislator said, nor even of what he meant; but of what in their judgment he ought to have meant;'—in other words according to their ideas of policy, wisdom or expediency, is so obviously untenable, that it never could have taken its rise, except at a time when the division lines between, the great powers of government were but feebly drawn, and their importance very imperfectly understood. In the present condition of our political systems, this practice cannot be acted on with either propriety or safety. It must inevitably be attended by two great evils. “It gives the judiciary a power almost arbitrary, and which cannot fail to be abused; and it leads to-unbounded carelessness in the matter of legislation. There can be little inducement to caution or precision in drawing legislative enactments, if it is understood that all errors can be supplied, and indeed all provisions overridden by the mere exercise of the powers of judicial construction.” Sedgwick on Stat. & Const. Law, 311. We refer also to the opinion of Judge Chase in Prestman vs. U. States, 4 Dallas, 30. We have felt less hesitation in announcing our conclusion in this case because, although the Act of Assembly under consideration fails to take effect, no serious consequences are likely to ensue to the public. The system of — 296 — revenue and taxes provided by the Act of 1874, ch. 483, is in full force and operation ; and if a new general assessment shall be deemed expedient, the Legislature may hereafter provide for it by a law more carefully framed. Even if this law were not obnoxious to the fatal objection we have stated, arising out of the provision in the first section, there are many defects, imperfections and inconsistencies in its other sections, which although they would not render the Act altogether void, yet if it were attempted to put it in operation, would inevitably be attended with-difficulty, and perhaps give rise to much litigation. It is needless to point out particularly all these defects; some of them will be briefly noticed. The 14th section is incomplete and fails to declare ,what is to be done by the “County Commissioners and Appeal Tax Court of Baltimore City,” in the case there mentioned. It was suggested in the argument, that what was probably intended to form a part of the 14th section, has strayed from its appropriate place, and is incorporated at the end of the 19th section. But this is mere conjecture ; the Courts would have no power to act upon it, and remodel the statute. It is obvious that the latter part of the 19th section is in some respects unintelligible ; and the 14th section, by reason of its being incomplete, leaves a very important case that may arise under the law, without any provision whatever. The 23rd section, which relates to shares of stock held by non-residents, contains the extraordinary requirement, “that the president or other proper officer of the corporation, shall make out and deliver to the assessors annually an account of stock, &c.” Now how is that possible to be done, when the duties of the assessors are required by the Act, to be completed by the first Monday of December next—when their functions and duties will cease. A similar provision is found in the assessment law of 1866, ch. 157, section 15, from which this 23rd section — 297 — was no doubt copied : but it must have been inserted in the Act of 1866 through some inadvertence. It can certainly have no sensible construction or effect in the Act before us. The Act seems to us also to be defective in its provisions relating to Baltimore County. For while by the hth section, it is provided that a “ Board of Control and Review,” consisting of seven persons, shall be appointed for that County; in the subsequent sections, that board is altogether lost sight of, or ignored. They are not afterwards referred to except in the 32nd and 33rd sections. The duties of receiving the returns of the assessors, hearing appeals, &c., are imposed in all the counties, upon the County Commissioners; this difficulty might perhaps be obviated, by construing the words of the Act, where they speak of County Commissioners, to mean, when applied to Baltimore County, “the Board of Control and Review.” But such a construction would not be free from doubt or difficulty. It would certainly not be easy to apply to the members of that Board, the provisions of the 17th section, which impose upon the County Commissioners penalties for failing to perform the duties required of them by the Act, but make no mention whatever of the members of the Board appointed for Baltimore County. The 34th section is liable to a most serious objection on constitutional grounds. It declares that the “Rules and Regulations, forms and blanks, prescribed and adopted by the Comptroller,” as provided by the 6th section—“ shall have the same force and effect in law as if they were herein enacted.” Such a provision is clearly void, the Legislature has no constitutional authority to delegate to the Comptroller the power of making laws. Such is the import and effect of this section. , Unquestionably the Comptroller may be required to prepare ‘ * Bules and Begulations, &c.” as provided by the sixth section, and they will be valid, so far as they are conformable to the pro — 298 — visions of the law; but it is altogether without precedent, and beyond the power of the Legislature to declare that such “Rules and Regulations,1-’ whatever they may be, shall have the same effect and force as if they were enacted as a part of the law. (Decided 5th June, 1874.) The effect of this provision would not be to avoid the whole Act; but it would be inoperative to give to the “Rules and Regulations” prescribed by the Comptroller the force of law, except in so far as they might be made in conformity with the provisions of the Act. Being of opinion, for the reasons stated, that the Act of 1874, chapter 514, is inoperative; the pro forma order of the Superior Court will be reversed, and the petition dismissed. Order reversed.