State ex rel. Levy Court v. Merryman

Buchanan, Ch. J.

delivered the opinion of the court. By the first section of the act of 1794, ch. 53, and the third section of the act of 1798, ch. 34, the justices of the levy courts of the several counties of the state, are “authorised and required, on some day between the first of March, and the .first of October annually, to meet at the court-house of their respective counties, to adjust -the ordinary and necessary expenses of their several counties, &c. and to impose an assessment, &c. sufficient to defray such charges;” “and to appoint a person or persons to collect the same.” And by the first section of the act of 1810, ch. 168, the levy court of Baltimore county, was authorised and required to assess and levy, in successive annual instalments, not exceeding twenty thousand dollars annually, such sum as should be necessary, among other things, for completing the new court-house in the city of Baltimore-, “the first instalment to be assessed at their first session (after the passage of that act,) for the purpose of laying the county levy, and to-be collected by the collector of the county.”

William Mcrryman, the defendant, was appointed by the levy court collector of the taxes for Baltimore count}', and on the twentieth of December, in the year 1811, gave his bond to the state as such, on which bond this suit was instituted. After craving and obtaining oyer of the bond, he pleaded, 1st. That the levy court of Baltimore county did not, at any time between the first of March and the first of October, in the year 1811, impose any county levy tor Baltimore county, agreeably to the provisions of the act of 1794, ch. 53. And 2d. General performance. The replication to the first plea alleges, that the justices of the levy court of Baltimore county did meet at the court-house in the city of Baltimore, between the 1st of March and the 1st of October, in the year 1811, to wit, on the 12th of March, to adjust the ordinary and necessary expenses of Baltimore county, &c. according to the acts of assembly, &e. and for that purpose adjourned from time to time, until the 20th of December 1811, when they adjusted the ordinary and necessary expenses of the county, &c. and imposed a tax sufficient to defray the county charges, of ¿620,095 6 3, of which the defendant had notice, &c. To which there was a demurrer by the defendant, and joinder in demurrer.

*89 The replication to the' second plea, (the plea of performance,) alleges — First. That at the time of executing the bond, the defendant was appointed collector- of the county charges of Baltimore county; and that before the making of the bond, to wit, on the 20th of December 1811, at a levy court held in the city of Baltimore, there was assessed and levied, &c. the sum of ¿620,095 6 3, to be collected and paid to the justices of the levy court, or their order, of which the defendant had notice, and which, as collector of the taxes, he was duly entrusted and empowered to collect; and assigns for breach, that he has' not well and truly accounted for or paid to the justices of the levy court, or their order, the said sum of money, or any part thereof, &c. And secondly — After reciting so much of the act of 1810, ch. 16S, as authorises and requires the levy court of Baltimore county to impose a tax for'completing the new court-house, alleges, that before the making of the bond, at a levy court held for the purpose of laying the county tax, &c. next after the passing of that act, to wit, on the 20th of December 1811, there was assessed and levied, for the purposes mentioned in that act, the sum of ¿65,625, of which the defendant had notice; that he was, at the time of making the bond, duly authorised to collect the county taxes; and that as collector of the county taxes he was authorised and entrusted to collect the tax imposed in virtue of the act of 1810, ch. 168; and assigns for further breach, that he has not well and truly accounted for and paid to the justices of the levy court, or their order, the last mentioned tax, or- any part thereof, &c. Issue was joined on the first breach assigned in the replication to the plea of performance; and as to the second breach, the defendant rejoined payment of a part of the sum of £5,625, alleged to have been assessed and levied, &c. and as to the residue of that sum, that the justices of the levy court did not, at a levy court held for the purpose of laying the county levy, next after the passage of the act of 1810, ch. 168, assess and levy the said sum of ¿65, 625, &c. to which there was a demurrer, and joinder in demurrer.

The judgment of the court below was against the plaintiff, the appellant here; and the material question presented for consideration is, whether the justices of the levy court of Bal'ti *90 more county could legally, and within the scope of their authority-, impose a tax either for defraying the ordinary expenses of the county, or for completing the court-house, at any time except between the first day of March, and the first day of October annually? It has been urged in argument, that indepen-, dent of the necessity of the thing, the fifth section of the act of 1798, ch, 34, which entitles each of the justices of the levy court to a compensation for his services, “for every day he shall attend to the duties of his office,” clearly recognizes their power to adjourn from day to day; and that express authority is given by the third section of the act of 1794, ch. 10, to the justices of the levy courts throughout the state, to adjourn their respective courts from time to time, at their discretion, for the purpose of laying the levy; and therefore, that they are not bound by the act of 1794, ch. 53, to make the levy between the 1st of March and the 1st of October, but may adjourn to any time beyond the 1st of October for that purpose. It cannot be doubted that the respective levy courts may be adjourned from day to day; and it may also be admitted, that the enacting clause of the third section of the act of 1794, ch. 10, authorising, in the language of that clause, “the justices of the levy courts of the several counties of this state, to adjourn their respective courts from time to time, for the purpose of laying the levy, as they may think necessary,” does extend to the levy courts of all the counties in the state, though the preamble relates only to particular counties; yet that does not obviate the objection to the proceedings of the levy court of Baltimore county, as exhibited in the pleadings in this cause. Before the act of 1794, ch. 53, particular times were fixed by law for the meeting of the justices of the levy courts of the several counties, but there was no time prescribed within which the levies were to be made; and supposing the enacting clause of the third section of the act of 1794, ch. 10, to extend to all the counties in the state, they might, in their discretion, have adjourned from time to time, to any time within the year, there being no other limit. But it was thought necessary by the legislature to make an alteration in this respect; and accordingly by the act of 1794, ch. 53, the levy courts of the respective counties of the state are required to meet, in the words of the law, "on some day between *91 t lie first day of March and the first day of October annually, to adjust the ordinary and necessary expenses of their respective counties, and to impose an assessment,” &c. If it was not the intention of the legislature that the assessment should be imposed before the 1st of October, it was unnecessary to restrict the meeting for that purpose within those limits, and would have been sufficient to direct the meeting to be on some day after the first of March, leaving the levy courts at large to adjourn, in their discretion, to any time within the year, as before,. if such discretionary power was meant to be vested; but the confining the meeting to impose the assessment to a time between the first of March and the first of October, shews it to have been the intention of the legislature, that it should not be imposed after the first of October, and restrains the power of adjournment beyond that time, which before had no limit within the year. No other construction can well be given to that act. The space between the first of March and the first of October annually, is the time allotted to the justices of the several levy courts for imposing the respective levies, and they are not authorised to meet for that purpose at any time after the first of October; but the meeting, whether by adjournment or otherwise, at which the assessment is imposed, is required to be within the limits, so prescribed, with no other restriction, or any power of adjournment, that may have before existed, than the merely confining the exercise of it within those limits. The latitude allowed between the first of March and the first of October, assists in showing the intention of the legislature, and the restricting the authority to impose the assessment, to the first of October, was necessary for the purpose of giving time to the collectors to make their collections.

The power vested in the levy courts to impose taxes, is a specially delegated power, and like other specially delegated powers, must be strictly pursued; which does not appear to have been done in this case. The replication to the first plea alleges, that the justicés of the levy court of Baltimore county met on the 12th of March 1811, adjourned from time to time until the 20th of December 1811, when they imposed the tax to defray the ordinary county charges; which adjournment to the 20th of December,and meelingof the levy court- on that day, *92 being both without authority, the imposing the tax was illegal, and the replication shows no cause of action in the appellant; the demurrer therefore was properly sustained.

As to the replication to the plea of performance, the allegation, both as respects the imposing the tax, which is stated to have been laid for defraying the ordinary county charges, and the tax for completing the court-house is, that it was done at a levy court held on the 20th of December 1811, without stating it to be by adjournment, or that there had been any meeting for that purpose, by the justices of the levy court, between the 1st of March and the 1st of October. And as it is perfectly clear, that the justices of the levy court had no authority to meet for the first time, for the purpose of imposing the county levy on the 20th of December, or at any time after the 1st of October, their proceedings, as set out in that replication, were wholly illegal. The replication, therefore, shows no sufficient cause of action; and as the demurrer to the rejoinder carried the' court up to the first defect, the demurrer was properly determined in favour of the defendant, no matter how defective the rejoinder may be.

There is nothing in the objection, that the issues in fact were taken from the jury, and decided by the court; the demurrers being determined in favour of the defendant, and it appearing upon the whole that the plaintiff had no cause of action, the court did right in giving judgment for the defendant.

There were several questions raised in argument on points of special pleading, which, under the view that has been taken of the case, it is not thought necessary to examine.

JUDGMENT AFFIRMED.