# Fowble v. Kemp

> Court of Appeals of Maryland · February 20, 1901 · 92 Md. 630

URL: https://www.frixlaw.com/law-library/cases/3483688

## Case

- **Full name:** ALFRED FOWBLE, Treasurer and Collector, Et Al, vs. SIMON J. KEMP, Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** February 20, 1901
- **Citations:** 92 Md. 630; 48 A. 379; 1901 Md. LEXIS 126
- **Precedential status:** Published
- **Opinion:** Dissent by Page
- **Judges:** McSherry, Fowler, Briscoe, Boyd, Pearce, Schmucker
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3483688

## Opinion text

Page, J.,
dissented and delivered the following opinion :
I concur in the judgment rendered by this Court, but I cannot agree with it, as to the effect of the Act of 1898, ch. 275, sec. 192A. I do not think that section amends or in any manner modifies sections 204 to 213 of Article 81 of the Code, relating to the taxation of distilled spirits. Those sections were adopted in 1892, (ch. 704.) At that date and ever since there was and has been a general system for the assessment of property in the State; and by that a valuation of property was first made by assessors specially appointed for this purpose ; and thereafter, every collector of taxes in the State was charged with the duty of valuing property omitted, and also all property thereafter created and acquired. There were also special methods of assessment of certain kinds of property; such as the property of banks and other incorporated institutions; and where real estate became subject to the collateral inheritance tax, the Orphans’ Court appointed persons (called appraisers) to make the valuation.
The State Tax Commissioner was invested with the power
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of assessment of shares of capital stock in all incorporated institutions. In all these cases and perhaps others, the County Commissioners at one time had no authority to make assessments, but they did have the general power to correct assessments and supply omissions in former assessments. The Act of x 896, ch. 120, amended the laws relating to revenue and taxes (being Article 81 of the Code) in many respects, but left unchanged the general plan of assessments, as well as the special methods of procedure in certain specified cases. By this Act there was provided a general plan of assessment for property not peculiarly situated, and special methods for assessing such kinds as could not otherwise be efficiently reached. The duty of the collector of taxes to inform himself of all property omitted from former assessments and of property created and acquired since the last assessment was unchanged : and the special plans for reaching other property were also retained, though amended in certain details. The Act of 1896, however, materially enlarged the power of the County Commissioners. By sec. 192 of that Act they were empowered to biennially value and assess “all .personal property.” Prior thereto their power was annually to make increases in the valuation of property which • had enhanced in. value or had been improperly assessed, and, also, they could add such as had been omitted in former assessments. In 1898, by chapter 275, their powers were still further enlarged. By that Act it was provided that in addition to the powers already vested in them by law, they should have power to value and assess and correct the assessment of all property real and personal and “take steps for the discovery of all unassessed property of every kind.” A particular mode of procedure was laid down for them to pursue, and they were authorized to appoint such “agents” as they deemed necessary to enable them to discharge the powers granted to them under Article 81 of the Code. In view of this brief statement it seems clear to me that by the appeal authorized by the section 192A (that being a section of the Act of 1898, ch. 275), it was not intended to interfere,
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modify or change any of the sections of Article 81, which provided special methods of reaching the valuation of special kinds of property, as, for instance, stock of corporations or distilled spirits. The provision in 192A is that “there shall always be an appeal to the Board of County Commissioners from the acts of all assessors or agents appointed by them thereunder or others authorized to act as assessors under the laws of this State.” There are a number of persons authorized in special cases to act as assessors, as an inspection of Article 81 will show, viz. : collectors of taxes, appraisers of the Orphans’ Court, such assessors as may be appointed under the 155th section, the Tax Commissioner and such other assessors and agents as maybe appointed under section 192A.
The Act of 1892, ch. 704 (being sections 204 to 213 inclusive), provides a special method for ascertaining the valuation of distilled spirits by the Tax Commissioner. The valuation he may make he is to return to the Board of County Commissioners ; and it is upon that valuation, so made and returned, that the tax is to be levied by the County Commissioners. It would seem to be an anomaly to hold, that despite this clear duty of the County Commissioners, to make their levy upon the valuation made by the Tax Commissioner, that the commissioners should still have power on appeal, to alter and change that valuation at pleasure. And this, too, when the section 192A makes no allusion, directly nor indirectly, to distilled liquors, nor to the method of valuing them for purposes of taxation ; and also in the face of the provision of the third section of the Article, that nothing contained in the section (or Article as appears in the Code) “shall repeal, modify or affect sections 204 to 213 inclusive, relating to the taxation of distilled spirits.” If the words of section 192A, viz., “others authorized to act as assessors under the laws of this State” be not taken with some qualification, why does it not give an appeal to the County Commissioners from the acts of all persons who may act as assessors ? Why not from the Tax Commissioner? The fact that he acts only in special cases and that another appeal is then granted would not meet the question,
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because the section 192A being later in time, would repeal every provision of law inconsistent therewith. The theory of the law applicable to distilled spirits to my mind negatives the intent that section 192A was intended to afford an appeal from the valuation made by the Tax Commissioner. The argument that it does apply to distilled liquors has no more force than to the valuation of bank stock. To give section 192A such a construction would be to repeal those provisions which require the County Commissioners to levy the tax on distilled spirits upon the valuation made hy the Tax Commissioner. Can that be done ? Repeals by implication are not favored, and if the two Acts can stand together by construction, that ought to be adopted which will sustain both,
Garitee
v.
Baltimore
City, 53 Md. 435 .
(Filed February 20th, 1901.)
It is the intention of the Legislature that must be sought for and carried out. By the most latitudinarian construction of 192A can it be taken to mean that the purpose of the Legislature was, that those general words should work a radical alteration in the scheme of taxing spirits ? If that could be so held, what was the necessity for the Act of 1900, ch. 320, which allows an appeal from the action of the Tax Commissioner in such cases. This Court in a former case held, that as to Baltimore City there was no appeal provided; but there was no such decision as to counties. That the Legislature, therefore, provided for an appeal not as to cases in Baltimore City only, but also to cases arising in the counties, was, it seems to me, under all the circumstances a legislative declaration, that no such appeal theretofore existed. To interpret the Act of 1898, ch. 275, as not applying to the valuation of distilled spirits, nor to other cases under Article 81 where special methods of procedure were provided; but, as applicable to those assessments only, which were to be made by agents appointed by the County Commissioners, or authorized by the law to assess property not included in the kinds specially provided for, seems to me to be more reasonable and to conform more nearly to the legislative intent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3483688. Public record. Not legal advice.