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(108 A.)

it quite clear that it applies to the granting | 1918 as to registration not having been manof franchises or a right to occupy or use datory until after fall election of 1918. the streets, highways, bridges, or public plac- 6. MUNICIPAL CORPORATIONS 46-PROPOSes in any city. It does not apply to the awarding of contracts.

The municipal action brought up by this writ is therefore affirmed, with costs.

(135 Md. 226)

ED AMENDMENT TO CITY CHARTER AS TO TAX-
ATION OF TERRITORY ANNEXED UNCONSTITU-
TIONAL.

Proposed amendment to Baltimore City Charter, art. 1, § 4, making property on territory annexed by Acts 1888, c. 98, subject to levy, taxation, and assessment in the same manner and form and at same rate of taxation as similar property within limits of city as they

WILLIAMS et al. v. BROENING, Mayor, existed prior to passage of such act may be

et al. (No. 90.)

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8. MUNICIPAL CORPORATIONS 48 (1)—NEWSPAPERS PRESUMED TO HAVE COMMENTED FUL

LY ON PROVISIONS OF PROPOSED CHARTER.

In action involving an attack on the validity of the Baltimore city charter on the ground that the papers in which proposed charter was published were not newspapers of general circulation as required by Const. art. 11a, it will be assumed that the daily newspapers of Baltimore city commented frequently and exhaustively on the charter provisions, and that the provisions were called to the attention of the voters generally.

subject, held in excess of the power to amend under Const. art. 11a, §§ 1, 2, 5, Code Pub. Loc. Laws 1888, art. 4, 88 4, 6, Laws 1898, c. 123, § 6, subsecs. 28a and 28b, and Annexation Act, § 10.

Appeal from Circuit Court of Baltimore City; James P. Gorter, Judge.

"To be officially reported."

Action by Lucy J. Williams and others against William F. Broening, Mayor, and others. From order refusing to grant an injunction, plaintiffs appeal. Reversed and remanded.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

Arthur W. Machen, Jr., Julian S. Jones, and Joseph C. France, all of Baltimore, for appellants.

Roland R. Marchant, City Sol., William H. Maltbie, and Alfred S. Niles, all of Baltimore, for appellees.

Wm. Edgar Byrd, of Baltimore, for Real Estate Board of Baltimore City, and Osborne I. Yellott, of Baltimore, for Home Builders' Ass'n, amici curiæ.

ADKINS, J. This is an appeal from the refusal of the circuit court of Baltimore city to enjoin the mayor and city council of Baltimore from continuing the publication of an advertisement of a proposed amendment to the charter of said city relating to the taxation of real and personal property in the ter4. MUNICIPAL CORPORATIONS 48(1)-PUB-ritory annexed to Baltimore city by chapter LICATION OF PROPOSED CHARTER SUFFICIENT. 98 of the Acts of 1888, and the supervisors of Publication of the proposed charter of Balti-election of said city from placing upon the more city in the Daily Record and the Munici- official ballot to be used at the general elecpal Journal held a substantial compliance with Const. art. 11a, requiring publication in newspapers "of general circulation," in view of Acts 1914, c. 477.

5 MUNICIPAL CORPORATIONS 48(1)-VorERS OF WARD ANNEXED TO BALTIMORE CITY IN 1918 NOT REQUIRED TO VOTE ON CHARTER. Baltimore city charter, adopted under Const. art. 11a, held valid notwithstanding that the four wards added to city by Laws 1918, c. 82, were not included with the rest of the city in voting on the proposition, there having been no registration of voters of such wards until after submission of charter; the provision of act of

tion to be held in said city on November 4, 1919, and from using any public money or funds for defraying the costs of such advertisement or of printing said proposition on the official ballots. The proposed amendment provides that:

The charter of Baltimore city shall be amended by repealing all of section 4 of article 1 of said charter and substituting in lieu thereof the following:

4. All property, real and personal, situated or held in the territory annexed to Baltimore city by the Acts of 1888, chapter 98, shall be subject to levy, taxation and assessment in the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

saine manner and form and at the same rate of taxation as property of similar character or description within the limits of said city as they existed prior to the passage of said act may be subject.

The right to submit the proposed amendment is contested by the appellants on the following grounds, as alleged by them:

(1) The charter of Baltimore city supposed to have been adopted under article 11a of the Constitution, known as the home rule amendment, was never validly adopted be

cause:

(a) It was not published by the mayor, as required by article 11a, in two newspapers of general circulation published in the city of general circulation published in the city of Baltimore within 30 days after it was reported to him by the charter commission. It was published in the Daily Record and in the Municipal Journal, and the contention of appellants is that neither of these papers

was a newspaper of general circulation.

(b) It was not submitted to the voters of said city at the next general or congressional election after the report of said charter to the mayor of Baltimore as required by said article 11a, in that the four new wards added by the act of 1918 were not included with the rest of the city in voting on the proposition.

(2) The proposed measure is in excess of the power to amend the charter conferred by article 11a, § 5, even if the new charter was validly adopted.

It is manifest, if either of these objections was well taken, the injunction should have been granted. We shall first dispose of the first objection.

[1] Every intendment should be made in favor of the validity of the charter after the lapse of so long a time since it went into operation. Until October of the present year no question seems ever to have been raised as to the sufficiency of the publication of the charter. In the meantime a mayor and city council have been elected, and we cannot say what complications might arise if the charter should be stricken down.

Bill."

[tion ballots should be prepared having print-
ed on them "For the Act to Improve the
Streets" and "Against the Act to Improve
the Streets." But the ballots voted at the
election had printed on them the words "For
the Road Bill" and "Against the Road
the election were marked "For the Road
The majority of the ballots cast at
Bill," and, after canvassing the vote, the
mayor and common council declared the
act to be in full force and effect. Acting
under the power conferred by the act, the
mayor and common council passed an ordi-
nance for the improvement of the roadbed
of Spencer street, one of the streets of said
municipal corporation, and also providing
municipal corporation, and also providing
for notice to the owners of abutting property
and for the assessment for the cost of im-
and for the assessment for the cost of im-
A tax-
provements against such property.
payer filed a bill to enjoin the mayor and
against his property for the improvement
common council from making any assessment
of said roadbed, and from enforcing any
assessment against his property for that im-
provement, on the ground that the act had
never become effective and operative, be
cause the ballots cast at the election were
not prepared in strict conformity to the re-
The defend-
quirements of its provisions.
ant demurred to the bill, and the lower court
This court ap-
sustained the demurrer.
proved the ruling of the lower court, and
in passing on the question at issue said:

"The simple and sole question in the case is this: Did the preparation and voting of the ballots in the manner in which they were prepared and voted prevent the act from becoming a valid and effective law? If so, it can only be because the provisions of the act relating to the form of the ballot are mandatory and to be form of the ballot as prepared was an essential strictly observed. We do not think that the departure from the requirements of the act, and it would seem to be reasonably certain that the voters understood that they were voting for or against the approval of this particular act, and did approve it by a majority vote.

"The court ought not to set aside their clearly expressed will, unless required to do so by some [2] We do not regard the provision in the imperative rule of law. Mr. McCrary, in his Constitution as to the character of news- expressly declares any particular act to be eswork on Elections, § 190, says: 'If the statute papers in which the charter was to be pub-sential to the validity of the election, or that its lished before submission so far mandatory in its nature as to render the charter after its adoption subject to attack by reason of a question as to the extent of the circulation of the papers selected by the mayor as mediums of publication unless it be shown that the failure to comply strictly with the constitutional provision affected the result of the stitutional provision affected the result of the vote on the proposition.

In Carr v. Hyattsville, 115 Md. 545, 81 Atl. 8, the statute under consideration was one submitting to the voters of Hyattsville the question whether certain streets should be improved. The statute provided that for the special election to determine said ques

omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all consideration touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.' The rule is thus stated in Pain on Elections, § 498: 'In

(108 A.)

general, those statutory provisions which fix the 'erally. It was stated in argument, and not day and the place of the election and the quali- disputed, that the charter was adopted by a fication of the voters are substantial and man- majority of more than 24,000. In view datory, while those which relate to the mode of the authorities above cited, and taking of procedure in the election, and to the record all the facts of this case into consideration, and return of the results, are formal and directory. *** The rules prescribed by the law we are unable to say that the substantial for conducting an election are designed chiefly purposes of the constitutional requirement to afford an opportunity for the free and fair as to publication were not accomplished. exercise of the elective franchise, to prevent il- It is significant that, while the constitulegal votes, and to ascertain with certainty the tional amendment provides for the publicaresult. Generally such rules are directory, and tion of the charter only once in each of two not mandatory, and a departure from the mode papers, that publication must be far in adprescribed will not vitiate an election, if the vance of the submission of the charter, and irregularities do not deprive any legal voter of a further period of 30 days after the submishis vote, or admit an illegal vote, or cast an sion is allowed before the charter becomes uncertainty on the result, and have not been occasioned by the agency of a party seeking to operative. From this it is reasonable to inderive a benefit from them.' The rule stated by fer that the Legislature in submitting the these authors appears to be adopted by the great amendment and the people in adopting it inmajority of the courts in this country. * **tended that before any charter should go into "The plain purpose of the Legislature was that this act should become effective if approved by a majority of the voters at the special election, and the object of providing the form of ballot was to ascertain the will of the majority of the voters on the question of its approval, and since that majority did approve the act under the form of ballot used, which was substantially, but not strictly, in the words provided in the act, the will of the majority should not be set aside for any of the reasons stated in the bill."

See, also, the case of Prince George's County v. B. & O. R. R. Co., 113 Md. 179, 77 Atl. 433, where this court decided that the provision in article 3, § 29, of the Constitution that "the style of all laws of this state shall be, 'Be it enacted by the General Assembly of Maryland,'" is directory, and not manda

tory.

[3, 4] In the case at bar the charter was published in the Daily Record, which this published in the Daily Record, which this court said in Knapp v. Anderson, 89 Md. 189, 42 Atl. 933, was a daily newspaper, and in the Municipal Journal in which the Legislature provided by chapter 477 of the Acts of 1914, municipal advertisements and notices and other legal advertisements and notices might be published in lieu of publication in a daily newspaper, when any law or ordinance required publication in a daily newspaper. Without deciding whether both the Daily Record and the Municipal Journal are newspapers of general circulation within the meaning of the constitutional provision, we think the recognition above re ferred to is important as showing the good faith of the mayor in selecting said papers as mediums of publication of the charter. In addition to the notices given by publication in said papers it can fairly be assumed that in a matter of such importance the daily newspapers of Baltimore city editorially and otherwise commented frequently and exhaustively on the provisions of the proposed charter, and it is fair to assume that the provisions of the charter were brought to the attention of the voters of said city gen

effect every one interested
one interested should have
abundance of time to object to failure to
comply with any modal regulation as to the
submission of the charter, and that it was
not contemplated that failure to comply
strictly with modal regulations should be
made the ground of attack after the charter
had become operative.

[5] As to the contention that the charter was not submitted to the voters of the city as required by the Constitution, in that the four newly annexed wards were omitted, it is sufficient to say that in our opinion it was submitted to the qualified voters of the city. It is manifest from an examination of the Annexation Act of 1918 that the division of the new wards into election preidents of said wards who were entitled to cincts, and provision for registering the resregistration, were not mandatory until after the fall election of 1918. As a matter of fact there was no registration of voters in said wards until after the submission; consequently at that time the residents of those wards were not voters of Baltimore city. We therefore hold that the charter is not open to attack on this ground.

This brings us to a consideration of the second objection, viz.: That the proposed amendment is in excess of the power to amend the charter conferred by article 11a of the Constitution.

[6] Section 2 of that article provides that the powers heretofore granted to the city of Baltimore as set forth in article 4, § 6, Public Local Laws of Maryland shall not be enlarged or extended by any charter formed under the provisions of said article; and section 6 of said article provides that this article shall not be construed to authorize the exercise of any powers in excess of those conferred by the Legislature upon said city.

Now, what are the powers conferred upon the city by section 6 of article 4 (the old charter) in regard to taxes? The only parts of said section which have any bearing upon

this controversy are those codified in Balti- But before concluding this opinion it may more City Charter of 1898 as section 6, sub-not be amiss to refer to the proviso in section secs. 28a and 28b, which confer upon the city

powers:

1 of article 11a of the Constitution that any charter adopted by this city shall be subject to the Constitution and Public General Laws of the state, and to the proviso in subsection 28b of section 6 of article 4 of the Code of Public Local Laws that no authority is given by this section to impose taxes on any property which is now or may hereafter be exempted from taxation by any general or special act of the General As

"To levy annually upon the assessable property of the city by direct tax with full power to provide by ordinance for collection of the same, such sum of money as may be necessary, in its judgment, for the purpose of defraying the expenses, charges and sums of money which it is, or shall be, required by law to collect for other purposes subject to the provisions and limitations herein contained," and "to levy and col-sembly of Maryland, and in connection with lect taxes upon every description of property those provisos to refer to the Annexation found within the corporate limits of said city, which it is now authorized by law to levy taxes Act of 1888, as amended by Acts 1908, c. 286, upon, for the purpose of defraying the expenses now codified as section 4 of article 4 of of the municipal government: * Provid- Public Local Laws, which establishes three ed further that no authority is given by this classes of property in the Old Annex, rural, section to impose taxes on any property which suburban, and urban, and provides for a difis now or may hereafter be exempted from taxa- ferent rate of tax as to each, and to Antion by any general or special act of the Gen-nexation Act 1918, c. 82, § 10, which, after eral Assembly of Maryland."

providing for taxing property in the New Annex, goes on to say:

erty."

Now, if the words "herein contained" are to be construed as meaning "contained in any part of this article," that settles the "Provided that nothing in this act shall be controversy, for section 4 of the article intended to repeal or affect any law or ordicontains an express inhibition against doing be passed fixing different rates of taxation upon nances now existing or which may hereafter the very thing which the proposed amend- different classes of property, the intent of this ment seeks to do, viz. to tax property in provision being that, beginning with the year the old Annex-that is, the property an- 1939 and thereafter, there shall be the same nexed under the act of 1888-at the same rate of taxation throughout the entire limits of rate as that at which the property which Baltimore city upon the same classes of propwas within the city limits prior to that date is taxed. This is practically conceded by the appellees. But they contend that the words "herein contained" should have a narrower interpretation and should be construed as referring only to the provisions and limitations contained in section 6. This would indeed be a narrow construction in view of the fact that these words occur in a section which is a part of an entire act passed at one and the same time (chapter 123 of the Acts of 1898), and not in a section passed as an addition to a pre-existing act, in which case it might be plausibly argued that the narrow construction was the proper and natural one.

All doubt, however, as to the meaning of these words, according to the legislative intent, is removed when exactly the same words are found in another part of the same section in reference to sewers, where they must include provisions in other sec tions of the act because the subject-matter to which they expressly refer is contained only in other sections. A further discussion of the matter is therefore unnecessary.

It may also be well to refer to the language of Judge Robinson, speaking for this court in the case of Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757, in regard to the good faith of this state being pledged to uphold the arrangement made with the residents of that part of Baltimore county brought into the city under the Old Annex Act of 1888, and to suggest that nothing short of the clearest expression of such intent by the Legislature should be taken as meaning that the Legislature intended to surrender the good faith of the state to the keeping of a subordinate governmental agency whose interest it might be to forget the obligation. For the reasons above expressed, a per curiam order was passed on the 23d day of October, 1919, reversing the decree of the lower court and remanding the case in order that a decree might be passed directing the writ of injunction to issue as prayed by the bill filed in this case.

Order reversed, and case remanded, with costs to appellants.

(135 Md. 237)

(108 A.)

The said amendment was proposed as a JONES V. BROENING, Mayor, et al. (No. new subsection to section 6 of said charter 91.) to follow immediately after subsection 28b,

(Court of Appeals of Maryland. Nov. 21, 1919.) to be known as subsection 28bb, and is as

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The power to tax enjoyed by municipality only by virtue of express grant from state does not include the power to exempt and classify.

2. MUNICIPAL CORPORATIONS 967(2)-PROPOSED AMENDMENT TO CHARTER EXEMPTING CERTAIN PROPERTY FROM CITY TAXES VOID.

Proposed amendment to Baltimore City Charter, § 6, to follow immediately after subsection 28b, undertaking to exempt wholly from taxation for all ordinary municipal purposes all merchandise held for sale and to partially exempt all buildings in such city, held void; no authority to make such exemptions having been granted such city in view of Const. art. 11a, §§ 2. 6, and Pub. Loc. Laws, art. 4, § 2, and section 6, subsec. 28, as enacted by Laws 1898, c. 123, and notwithstanding Laws 1874, c. 39, and Declaration of Rights, art. 15, as amended in 1915.

follows:

"BB. Exemption of Merchandise and Lower Taxation of Buildings.-In order to encourage the growth and development of commercial enterprises in Baltimore city and to lessen the cost of goods therein, beginning with the assessment and levy of city taxes for the year 1921 and thereafter, all merchandise held for sale shall be exempted from taxation for all ordinary municipal purposes.

"To stimulate the erection of buildings and general city development and to encourage home owning it is hereby provided that for the year 1922 no building shall be taxed by the city for ordinary municipal purposes at more than ninety per cent. of the regular city rate prevailing in the same taxing district; for the year 1923 no building shall be taxed at more than eighty per cent. of the regular city rate in such district; for the year 1924 no building shall be taxed at more than seventy per cent.; for the year 1925 at more than sixty per cent., and for the year 1926 and thereafter no building shall be taxed at more than fifty per cent. of the regular city rate prevailing in said district. Any and all

Appeals from Circuit Court of Baltimore portions of this charter in conflict or inconsisCity; James P. Gorter, Judge. tent with this subsection are hereby repealed." "To be officially reported."

Action by Z. Ethel Pope Jones against William F. Broening, Mayor, and others. From order refusing to grant injunction, plaintiff appeals. Reversed and remanded. Reversed and remanded.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

Arthur W. Machen, Jr., Julian S. Jones, and Joseph C. France, all of Baltimore, for appellants.

Roland R. Marchant, City Sol., William H. Maltbie, and Alfred S. Niles, all of Baltimore, for appellees.

Wm. Edgar Byrd, of Baltimore, for Real Estate Board of Baltimore City, and Osborne I. Yellott, of Baltimore, for Home Builders' Ass'n, amici curiæ.

ADKINS, J. This is an appeal from the refusal of the circuit court of Baltimore city to enjoin the mayor and city council of Baltimore from continuing the publication of an advertisement of a proposed amendment to the charter of said city relating to the exemption of merchandise and the lower taxation of buildings, and the supervisors of election of said city from placing upon the official ballot to be used at the general election to be held in said city on November 4, 1919, and from using any public money or funds for defraying the costs of such advertisement or of printing said proposition on the official ballots.

The right to submit the proposed amendment is contested by the appellants on the following grounds, as alleged by them:

(1) The charter of Baltimore city sup posed to have been adopted under article 11a of the Constitution, known as the home rule amendment, was never validly adopted be

cause:

(a) It was not advertised by the mayor, as requested by said constitutional amendment, in two newspapers of general circulation published in the city of Baltimore within 30 days after it was reported to him by the charter commission. It was advertised in the Daily Record and in the Municipal Journal, and the contention of appellants is that neither of these papers was a newspaper of general circulation.

(b) It was not submitted to the voters of said city at the next general or congressional election after the repeal of said article 11a, in that the four new wards added by the act of 1918 were not included with the rest of the city in the vote on the proposition.

(2) Even if the charter were validly adopted, the proposed amendment is beyond the powers of the voters of Baltimore city, contrary to the Constitution and Declaration of Rights, and therefore void.

The first objection was considered and disposed of in the opinion filed at this term in the case of Lucy J. Williams et al. v. W. F. Broening, Mayor, et al., 108 Atl. 781, and it is not necessary to repeat here what was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
108 A.-50

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