court to the jury to render a verdict for the | as to size and street improvement specified in defendant, and it is well settled that this the act. cannot be done in Maryland, where the jury in criminal cases are the judges of the law,

Finding no error in the rulings of the court Dec. Dig. § 958.*] below we must affirm its judgment. Judgment affirmed.

MAYOR, ETC., OF BALTIMORE et al. v. classifying and assessing the property, the

KNELL et al. v. MAYOR, ETC., OF BALTI- others appeal, and petitioners Frank L. Knell MORE et al.

(Court of Appeals of Maryland. Nov. 17, 1909.)
1. MUNICIPAL CORPORATIONS (§ 958*)-RATE | ers:
OF TAXATION-STATUTES.

Acts 1908, p. 581, c. 286, in force April 13, 1908, providing for the classification for taxation of property located in the annex to Baltimore city as urban, suburban, and rural, and that all real property in the territory subject to full city taxation, or located in a block not exceeding 200,000 superficial square feet, bounded on all sides by improved streets, shall be classified as urban, and subject to full city taxation, does not authorize the full rate for 1909 unless the property on the date the act went into effect was liable to full city taxation under pre-existing law, or unless at the time of the imposition of the tax it was in the condition

and that therefore the real and leasehold property located within the said block of ground is not subject to the same rate of city taxation as real and leasehold property situated within the old limits of the city of Baltimore.

"(2) That the real and leasehold property fronting on Clifton street in the said block should be classified as suburban property, under Acts 1908, c. 286, and is subject, for the purposes of city taxation, to a rate not exceeding $1.30 on the $100 of the assessed value of such suburban property.

“(3) That the real and leasehold property fronting on Fulton avenue in the said block should be classified as suburban property under Acts 1908, c. 286, and is subject, for the purposes of city taxation, to a rate not exceeding $1.30 on the $100 of the assessed value of such suburban property.

"(4) That the real and leasehold property fronting on North avenue in said block should be classified as suburban property under Acts 1908, c. 286, and is subject for the purposes of city taxation, to a rate not exceeding $1.30 on the $100 of the assessed value of such suburban property.

with rows of dwellings; that it is surrounded by other blocks or areas of similar character; that it has the benefit of the city water supply, fire and police protection, and the city street cleaning department; that the streets surrounding the said block or area are lighted at the expense of the city, and that said property enjoys every municipal or public service incidental to similar property within the old city limits; that the said block or area within which said property is located is similar to property within the old city limits, and that all of said conditions and advantages existed and were enjoyed prior to the year 1902-therefore said property was not landed property at the time of the passage of the Foutz act (Acts 1902, c. 130), and was not landed property within the proviso contained in the annex act (Acts 1888, c. 98), as amended by the Foutz act, but was urban or city property, and was rightfully and legally classified as such, and subjected to full city rate of taxation for the year 1909 by the appeal tax court, pursuant to the provisions of Acts 1908, c. 286.

"(2) That whereas it appears from the agreed statement of facts filed in this cause that the property which is the subject of this appeal is located in a block or area of ground which is bounded by streets, and laid off into building lots compactly built upon with rows of dwellings, which is surround

“(5) That the real and leasehold property fronting on Pennsylvania avenue in said block, to a depth not exceeding 200 feet, should be classified as suburban property under Acts 1908, c. 286, and is subject, for the purposes of city taxation, to a rate noted by other blocks or areas of a similar charexceeding $1.30 on the $100 of the assessed value of such suburban property; and all of said property so fronting on Pennsylvania avenue in excess of said depth of 200 feet should be classified as rural property, and is subject, for the purposes of city taxation, to a rate equal to one-third of the rate to which urban or city property may be liable, provided, however, that the said rate shall not be less than 65 cents on the $100 of the assessed value of such property.

"(6) That the real and leasehold property fronting on Pennsylvania avenue in said block should be classified as rural property under Acts 1908, c. 286; the said Pennsylvania avenue being a turnpike upon which tolls are charged within the limits of Baltimore city, and said property is subject, for the purposes of city taxation, to a rate equal to one-third of the rate to which urban or city property may be liable, provided, however, that such rate shall not be less than 65 cents on the $100 of the assessed value of such property."

acter; that said block has the benefit of the city water supply, fire and police protection, and the city street cleaning department; that the streets surrounding said block are lighted at the expense of the city, and that said property enjoys every municipal or public service incidental to similar property within the old city limits; that the said block or area within which said property is located is similar to property within the old city limits; and that all of said conditions and advantages existed and were enjoyed on or be fore April 13, 1908-therefore said property was not, on said date, landed property. within the proviso contained in the annex act (Acts 1888, c. 98), as amended by the Foutz act (Acts 1902, c. 130), but was urban or city property, and as such was liable to be taxed at the full city rate, on April 12, 1908, the date of the passage of Acts 1908, c. 286, and said property was therefore rightfully classified as urban property and subjected to the full city rate of taxation for the year 1909 by the appeal tax court, pursuant to the

Prayers 2, 3, 4, and 5, were granted, prayers provisions of said Acts 1908, c. 286.

1 and 6, were refused.

"(3) That it was the duty of the appeal

The defendants offered the following tax court, in classifying all the real and

prayers:

"(1) That whereas it appears from the agreed statement of facts filed in this cause that the property which is the subject of this appeal is located in a block or an area of ground which is bounded by streets, and laid off into building lots compactly built upon

leasehold property in the annex for 1909 taxation, pursuant to Acts 1908, c. 286, to classify as urban property all property which was, on April 13, 1908, the date of the pas sage of said act, liable to full city taxation, according to the law as it existed at the time of the passage of said act; and, if the prop

erty involved in this appeal was subject to be taxed at the full city rate on April 13, 1908, without regard to the provisions of said Acts 1908, c. 286, then it was properly classified as urban property pursuant to the provisions of said act.

confers upon the court the power to assess anew, or to classify anew, the property forming the subject of the appeal, and provides that, in the absence of any affirmative evidence to the contrary, the assessment or classification appealed from shall be affirmed. "(4) That irrespective of the liability of all The court is authorized to consolidate any the real estate contained in the block bound- such appeals, or to hear and decide them seped by Clifton street, Pennsylvania avenue, arately. An appeal is allowed to this court Butcher's lane, North avenue, and Fulton within 10 days after the rendition of the avenue to full city taxation for the year judgment of the Baltimore city court. On 1909, it appears from the agreed statement the 31st of October, 1908, Frank L. Knell of facts that the lots and improvements num- filed a petition and appeal under the act bered from 2001 to 2045 (inclusive) Fulton mentioned, alleging that the tax imposed avenue, are in a block bounded by Fulton upon his property for the year 1909, in the avenue and Clifton street and two alleys; annexed portion of Baltimore city, was illethat Fulton avenue and Clifton street have gal for the following reasons: First, because been opened, graded, curbed, and paved from the block of ground in which said property curb to curb, and that the said two alleys is located is not surrounded by avenues, have been paved throughout their entire streets and alleys, opened, graded, curbed, width, and therefore the said lots and im- and otherwise improved from curb to curb provements are legally classified as urban by pavement, macadam, gravel, or other subproperty by the appeal tax court for 1909 stantial materials; second, because the block taxation. of ground in which said property is located "(5) That irrespective of the liability of all contains more than 200,000 superficial square the real estate contained in the block bound-feet of ground; and, third, because the ased by Clifton street, Pennsylvania avenue, Butcher's lane, North avenue, and Fulton avenue, to full city taxation for 1909, it appears from the agreed statement of facts that the lots and improvements numbered from 1611 to 1617 (inclusive) Clifton street, are in a block bounded by Clifton street and three alleys, that Clifton street has been opened, graded, curbed and paved from curb to curb, and that the said three alleys have been paved throughout their entire width, and therefore the said lots and improvements are legally classified as urban property by the appeal tax court for 1909 taxation." Prayer 3 granted; prayers 1, 2, 4, and 5 ties involved in the appeal as urban proprefused.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.

sessment and classification of the property is contrary to law. Similar appeals, which had been taken by all of the other property owners whose names appear in the record, were consolidated with the appeal of Frank L Knell, and all the appeals were submitted for determination without the intervention of a jury. Judge Harlan, to whom the cases were submitted by agreement of the parties, visited and inspected the area or block of ground in which the properties are located, and, having considered the questions of law and fact arising in the consolidated cases, decided that the classification of the proper

erties, and as such liable to the full rate of city taxation made by the appeal tax court, was erroneous, and such classifications were set aside. Then proceeding under the authority conferred by Acts 1908, pp. 604, 581,

W. H. DeC. Wright, for appellants. Ja- cc. 167, 286, the court classified and assessed cob M: Moses, for appellees.

BURKE, J. The record before us contains 49 appeals and 13 cross-appeals, taken from an order of the circuit court of Baltimore city by which certain property specified in the order was classified and assessed for taxation for city purposes for the year 1909. The 49 appeals were taken by the city, and the cross-appeals by certain of the property owners. Acts 1908, p. 604, c. 167, gives a right of appeal to the Baltimore city court to any person who may claim to be aggrieved because of any assessment or classification made by the appeal tax court. All such appeals must be taken within 30 days after the assessment or classification complained of has been made, and the act prescribes the method by which the appeal shall be taken.

the properties as follows: "Nos. 1901, 1903, 1909, 1911, 1917, 1919, 1925, 1927, 1931, 1935, 1937, 2001, 2003, 2005, 2009, 2033, 2035, 2037, 2039, 2041, and 2043 North Fulton avenue, 1642, 1644, 1646, 1648, 1650, 1654, 1658, 1660, 1662, 1708, 1710, 1712, 1716, 1718, 1722, 1732, 1734, 1736, 1738, and 1744 West North avenue, 1611 Clifton avenue, and 2674, 2676, and 2678 Pennsylvania avenue are hereby classified as suburban real estate, and subject to taxation for city purposes at $1.30 on the $100 of the assessed value thereof. And, further, that Nos. 2608, 2614, 2620, 2626, 2638, 2644, 2648, 2652, 2656, 2662, and 2668 Pennsylvania avenue to a depth not exceeding 200 feet are hereby classified as suburban real estate, and subject to taxation for city pur poses at $1.30 on the $100 of the assessed value thereof, and so far as the same, or any

22 10 38 36 34 31 30 28 26 24 22 20 18 16 14 12 10 0s 06 04 0217000630 68 26 64 62 60 58 56 54 52 50 48 76 6F 2592 189

city rate. The property owners in the cross- I square feet, has been classified and taxed at appeals maintain that the property abutting the full city rate. on Pennsylvania should be classified as rural property, because they argue that it fronts on a private way upon which tolls are charged within the city limits. It is thus apparent that the decision of the case involves the construction of Acts 1908, c. 286, relating to the classification, assessment, and taxation of property in the territory annexed to Baltimore city by Acts 1888, c. 98. The act of 1908 was approved on April 13th of that year, and took effect from the date of its passage, and in order to determine whether the property involved in these appeals is subject to the full city rate for the year 1909 it is necessary to know the exact condition of the block at the time the act became operative.

Is this property, or any of it, in the condition we have described it to be, liable to the full city tax rate for the year 1909 under Acts 1908, c. 286? This is the principal question in the case. The act makes it the duty of the appeal tax court, as soon as possible after the act takes effect, to divide all real and leasehold property in the annex into three separate classes, to be known as ur. ban, suburban and rural property, for the purposes of city taxation for the year 1909, and to revise said classification annually thereafter for city taxation on or before October 1st in each and every year for succeeding years in accordance with the following classification, said three classes to be defined and subject to city taxation as folThe area or block of ground within which lows: "(1) All real and leasehold property in the lots and houses which have been asses- said territory which is now legally liable to sed is located in that part.of the city known full city taxation, and all real and leasehold as the annex, and as appears by the above property situated in said annexed territory, diagram, is bounded on the northeast by located in a block of ground not exceeding Pennsylvania avenue, on the east by Butch- 200,000 superficial square feet formed and er's lane, on the south by North avenue, on bounded on all sides by intersecting streets, the west by Fulton avenue, and on the north- avenues or alleys, opened, graded, curbed, west by Clifton street. This area contains and otherwise improved from curb to curb 412,282 superficial square feet. Since the by pavement, macadam, gravel or other subpassage of Acts 1902, c. 130, known as the stantial material, shall be classified as urban "Foutz Act," the property located in this property, and shall be subject to the same block has been taxed at the rate of 60 cents rate of city taxation as real and leasehold on the $100 for city taxes; but all the prop- property within the old limits of said city erty within the area was classified for 1909 may be subject. (2) Every lot, or piece of by the appeal tax court at the full city rate real and leasehold property to a depth not of taxation. North avenue, Clifton street, exceeding 200 feet, situate in said territory, and Pennsylvania avenue are improved from which fronts, binds or abuts on any public curb to curb by stone pavement, and Fulton street, avenue or highway, lighted at public avenue by asphalt blocks, and all of said expense and completely paved from curb line streets were so paved prior to 1902. Butch- to curb line, including gutters, with bitulithic, er's lane was improved throughout its length asphalt blocks, Belgian blocks, vitrified brick, and width by Belgian blocks in August, macadam in good condition as heretofore 1908, prior to which date it had never been laid before this section of this article took paved at all. Pennsylvania avenue is a turn- effect, or if laid subsequent thereto, laid pike road owned by the Reisterstown Turn- without direct assessment for the cost therepike Company, upon which tolls are charged of, in whole or in part, upon the abutting within the limits of Baltimore city; but the property owners, unless the owners of a only tollgate on this turnpike within the city majority of front feet of property binding limits is located one-half mile northwest of upon said street, avenue or highway, or part Pennsylvania avenue and Clifton street. The thereof to be paved, expressly assent to said dirt lane or passageway designated as Bruce direct assessment, and laid in accordance alley on the above diagram has never been with existing standards of proper macadam legally opened, graded, curbed, or paved; nor construction as laid under the supervision of has it ever been graded, curbed, or paved, the city engineer or other improved paveexcept that it was paved with cobblestones, ments (or with cobblestones laid before this and has wooden curbing from Clifton street section of this article took effect, or laid subto the 10-foot alley in the rear of houses Nos. sequent thereto upon the assent of the own1611 to 1617 Clifton street, a distance of 106 ers of the majority of front feet of property feet, which pavement and curbing was done binding upon said street, avenue or highway, at the expense of the adjoining property or part thereof to be paved), as distinguished owners. Bruce alley is used principally as from earth or gravel, which streets, avenues a driveway and approach from Butcher's or highways are continuously connected by lane to the rear ends of the properties front- public or private streets, roads, avenues or ing on Pennsylvania avenue. It also appears highways (other than turnpikes upon which that some blocks in the old city limits ex- tolls are charged within the limits of said ceed 200,000 superficial square feet, and that city), paved from curb line to curb line.