Baltimore City v. Hurlock , 113 Md. 674 ( 1910 )

This appeal is from rulings made by the Baltimore City Court in an appeal to that Court from an assessment made by the Appeal Tax Court of Baltimore City, the only ground of complaint urged at the hearing being that the property assessed was overvalued and the assessment unequal as compared with property of the same kind in the same neighborhood. The property assessed was a house and lot No. 2131 North Calvert street, assessed for the purpose of taxation for the year 1910 as follows:

Lot ................................. $1,947
Improvements ........................  3,500
______ $5,447.

Section 170 of the Charter of Baltimore City, under which this appeal was taken, was amended by Chapter 167 of the Acts of 1908, the amended part of said section being transcribed as follows:

"The person or the city appealing to the said Baltimore City Court shall have a trial before the Court without the intervention of a jury, and the Court sitting without a jury,shall hear the case de novo, and shall ascertain and decide on the proper assessment, or classification of the property for theyear involved in the appeal; and neither the action, nor the record of the proceedings of the Judges of the Appeal Tax Courtin the premises shall be held to be, or declared void for anyreason whatever; provided due notice of the proceedings shallhave been given to the parties entitled, by said Judges of theAppeal Tax Court; and the said Baltimore City Court shall assessanew, or classify anew, as the case may be, the property formingthe subject of appeal; provided, however, that in the absence ofany affirmative evidence to the contrary, the assessment orclassification appealed from shall be affirmed."

The underscored lines in this transcript embrace every material amendment of this section, and the purpose of these amendments becomes obvious when reference is had to certain decisions of this Court affecting that section as it stood before these amendments. It was held in Baltimore City v. Poole,97 Md. 72, that relief against erroneous classification could only be had in a Court of Equity, and in Consolidated Gas Co. v.Baltimore City, 101 Md. 559, an assessment by the Appeal Tax Court had been declared void, as no assessment at all; but under that section as now amended, erroneous classification may be corrected on appeal, and no assessment can be declared void but the City Court must assess the property in question anew.

When this appeal came on to be heard, the defendants, before any testimony was taken, moved the Court to rule that the duty of opening the cause rested upon the petitioner, but the Court overruled this motion, and held that the duty of opening the cause rested upon the defendants who took the first exception to this ruling.

In 27 Amer. Eng. Enc. of Law, 2nd Ed., page 728, it is said: "In accordance with the universal presumption in favor of the regularity and validity of official acts, tax assessments, made in the line of official duty, are presumably correct, and the burden of showing the contrary is upon the person claiming to be aggrieved. Accordingly, it will be presumed that proper notice was given; that a correct method of valuation was used, and that a fair valuation was placed onthe property."

In Cooley on Taxation, Vol. 1, page 447, note 1, 3rd Ed., the author says: "Tax assessments made in the line of official duty are entitled to the usual presumption of correctness which attends the acts of public officers," and there are abundant decisions holding that the valuation placed upon property by official assessors is presumed to be fair. Among these are,State v. W.U. Tel. Co., 165 Mo. 502; Williams v. Bettle,50 N.J.L. 132; and Chicago Union Traction Co. v. Board ofEqualization, 112 Fed. Rep. 607, in which JUDGE GROSCUP said: "We are bound to believe that the board will exercise its function as contemplated by law, and will avoid overvaluation."

Appeals from assessments for taxation find their closest analogy in condemnation proceedings, and in 15 Enc. Pl. Pr., 193, it is said: "The Courts in the majority of States, following the rule that in cases where the damages are not fixed in amount or ascertainable by simple calculation, the party seeking to recover them is entitled to open and close the evidence and argument, in condemnation proceedings have awarded the right to open and close to the land owner." The same doctrine is held in 1Elliott on Evidence, secs. 133, 180 and 181. There is not complete uniformity in the cases in this respect, but we think the weight of authority is as stated in the Enc of Pl. and Pr. above, and the rule stated was upheld in Conn. River R.R. Co. v. Clapp, 1 Cush. 559, and in Minnisemet v. Grueby,111 Mass. 543.

In 16 Cyc. 931, it is said: "The rule regulating the burden of proof in special judicial proceedings is the same that governs where an issue has been formulated by the pleadings. He who asks affirmative relief, one for example who appeals from an order * * * has the burden of convincing the Court that action should be taken in his favor."

The right to open and close accompanies the burden of proof, unless otherwise clearly provided by law. Hence it follows, as stated in 15 Enc. Pl. Pr., 183-4: "The test is that the right belongs to the party against whom judgment would be rendered if no evidence were introduced on either side."

In Consol. Gas Co. v. Balt., 101 Md. 559, this Court expressly declared that "presumptions are in favor of the correctness of assessments," citing 27 Amer. Eng. Enc. L., 2nd Ed., 728, supra, though it held there was error in thatcase in granting a prayer that the burden of proof was on the Gas Company to show by a preponderance of testimony that the assessment was erroneous; but this was only because the Court had held there was in that case no valid assessment, and that there must be a valid assessment before there can be a presumption in favor of its accuracy.

It will be seen that the amended section under which this case arises, embodies and emphasises in its closing proviso, the presumption of accuracy, of assessments thus brought under review, which is declared in 101 Md., supra, to exist.

We must assume that the ruling we are now considering was based upon the requirement to hear the case de novo, and in analogy to the practice in appeals from Justices of the Peace, which are required to be heard de novo, and in which the plaintiff below has the burden of proof, and must open the cause, whether he be appellant or appellee; and the argument of the appellee in the case before us proceeds upon the theory that the same rule and reason necessarily applies here. But that view ignores the proviso which requires the affirmance of the assessment in the absence of any affirmative evidence to the contrary, and it thereby gives to the words de novo an effect and scope clearly denied to them by that proviso. Construing that section as a whole, the full intended effect is given to those words, by holding that the assessment is to be de novo, or anew, in order to avoid a total failure of any assessment, such as occurred in 101 Md., supra, and would occur under the original section 170, whenever it became necessary to set aside an assessment appealed from.

Whatever conclusion might be drawn from the words de novo, if the burden of proof was not fixed by the proviso embodied in this section, effect must be given to that proviso, which thus becomes decisive of this question.

In 15 Enc. Pl and Pr., 198, it is said that where on appeal the trial is de novo, the same rule applies as if the cause had been instituted in the appellate Court, and it was so held inInd. R.R. Co. v. Cook, 102 Ind. 133.

If, in the case before us, even under the ruling appealed from, the city had offered no evidence, and the petitioner had offered none, the Court would have been compelled, under the operation of the proviso, to affirm the assessment, thus demonstrating the correctness of the test given above in the Enc. Pl. and Pr. as to the right to open and close in this case. We have been referred in a supplemental brief filed by the appellee since the argument of this case, to the case of Mayor and City Council ofBaltimore v. Smith and Schwartz Brick Company, 80 Md. 458, as establishing a different rule. That was an appeal to the Baltimore City Court from an assessment of benefits in an award of the Commissioners for Opening Streets, and it was held that the burden of proof in such case "was on the city to establish the benefits this property was to be charged with." But the distinction in principle between the two cases, is obvious and fundamental. All property has some value for assessment for taxation, and all property is required to be assessed for that purpose by official assessors, whose valuation is presumed to be fair, until shown to be unfair. There is no question in those cases as to the fact of value. The only question is as to theamount of value. But in the case of assessing benefits from opening a street, the initial question is as to the existence or creation of benefits as a fact. The opening of the street may result in damage instead of benefit to the property. Before the alleged benefits can be assessed, it must be shown that there are benefits to be assessed, and the burden of proof is, and must be, upon every principle of law, upon the one alleging the existence of benefits, not only to show the existence, but the extent of such benefits, and therefore it was the Court said in that case: "There is no presumption of lawin these cases that the assessment of the Commissioners is correct." That case is one of the exceptions which proves the general rule laid down in the authorities we have cited.

There was error in the ruling on this exception.

The second, third and fourth exceptions may be considered together, as they present substantially the same question.

Alfred D. Bernard who for six years previous to that time had been one of the special assessors to the Appeal Tax Court, testified that he passed in the performance of his duties, as such assessor, upon the assessment from which this appeal was taken. After stating that the lot was assessed at $95 per front foot and the improvements at $3,500, making $5,447, he testified upon his direct examination that the assessors personally examined the property, and "were guided by their personal knowledge of sales and rentals in the neighborhood; also by sales and rentals of which they had information from owners and tenants; also by sales recorded in the special assessors' card index." This card index gave history of sales and rentals all over the city derived from the work of certain special assessors of the Appeal Tax Court, and from auctioneers who had themselves made the sales reported by them.

He was then asked to give the data relied on by him in making this assessment, which related exclusively to sales, leases, or mortgages upon property in that neighborhood of which he was informed by others, and to give in each case the source of his information. This was objected to, and the Court sustained the objection unless the information sought related to the property which was the subject of this appeal and had been given by the petitioner. This is the second exception.

He was then asked to give the data and information relied on in making this assessment, and which was derived exclusively from an inspection of the Land Records. This was objected to and the objection was sustained, and this presents the third exception.

He was also asked to give the data and information relied on in making this assessment, as to sales, leases and mortgages on property in the neighborhood, and derived personally from the vendors, vendees, lessors, lessees, mortgagors or mortgagees themselves, other than the petitioner in this case.

This was objected to, and the objection was sustained, and this presents the fourth exception.

The ground of these objections to the evidence sought to be introduced, as stated by the appellees, is that it was all hearsay and therefore inadmissible in direct examination, though permissible upon cross-examination in order to ascertain the weight and value of the witness' opinion.

There appears to be considerable diversity in the cases upon this question, and respectable decisions are to be found both ways, but we think upon principle the testimony thus excluded should have been admitted and this view is sustained by the weight of authority.

In 17 Cyc. 109 it is said: "A skilled witness testifying as an expert may give the reasons for his judgment. The basis may include the result of inquiries made of others, or the fact of relevant sales known to the witness. An estimate not so fortified may be rejected, as the reliability of the estimate cannot be determined." In Dickinson v. Fitchburg, 13 Gray, 555-6, it was held that "a witness who has testified to his opinion of the value of land taken for a highway may be asked on his examination in chief, the facts and reasons on which his opinion is founded." In that case CHIEF JUSTICE SHAW said: "It is objected that the admission of the evidence would open the door to evidence entirely incompetent, by allowing the witness to state the facts on which the opinion is founded, facts not proved by competent evidence. This objection seems to us to be founded on a misconception of the manner in which the investigation is conducted, and the testimony of experts received and applied. It assumes that the facts will be taken to be true, because the witness has stated that he founds his opinion upon them. But this is quite a mistake. This inquiry has been more frequently made in cross-examination, yet we are of opinion that it is competent evidence in chief."

It is true that in Pierson v. Boston El. Ry.,191 Mass. 293, and in Hunt v. Boston, 152 Mass. 168, it was held otherwise, the Court saying in the latter case, "that it was now settled in Massachusetts upon direct examination, even though properly admitted on cross-examination to test and diminish weight of opinion." We think however the older decision to be sounder than the later, and to be a higher authority for us, however its authority may be impaired in Massachusetts by later decisions of the Courts of that State. Surely, if the weight of such an opinion may be diminished by the admission of such testimony upon cross-examination, it should be competent to fortify and increase it, by the admission of similar testimony upon direct examination.

In Hanover Water Co. v. Ashland Iron Co., 84 Pa. St. 279, the action was one for damages for diversion of water whereby a farm with an ore bank was injured. The witness owned land in the neighborhood and knew its market value; knew the tract in question, and that it had an ore bank on it, and knew the general value of ore land in the neighborhood, but his knowledge of sales was derived from hearsay, and he had no practical knowledge of ore land never mined. It was held that his opinion was competent evidence to aid in determining the value of the land. C.J. SHARSWOOD said: "Why should he not be allowed to give its value, though he said his knowledge was derived from hearsay and was not practical knowledge? The knowledge that the best expert possesses upon this subject is derived from hearsay."

In Chicago N.W.R.W. v. Chicago, 154 Ill. 657, it was said: "The facts upon which opinions of expert witnesses as to the value of property proposed to be taken in condemnation proceedings, may be stated by them, either in chief, or upon cross-examination." The opinions are admissible along with the facts on which they are based, as their weight and value depends largely upon the foundation of fact and reason upon which they stand."

In Hawes v. Warren, 119 Fed. Rep. 978, JUDGE PUTNAM said: "In stating opinions as to the value of a building destroyed by fire, witnesses should be required to state the grounds on which their estimates are based, otherwise the reliability of the estimate cannot be determined. This should be tested thoroughly by examination and cross-examination."

Mr. Wigmore says, Vol. 1. sec. 562: "An expert witness, like any other witness, may be asked on direct examination, or may berequired to state the grounds of his opinion, i.e., the general data which form the basis of his judgment upon the specific data observed by him. This is merely an application of the general principle of the knowledge qualification. * * * The party offering a witness may desire to make plain the strength of the witness' ground of knowledge, and the reasons for trusting his belief. This is a legitimate purpose. * * * The general rule is that the witness may, on the direct examination, state the particular circumstances which legitimately affected his knowledge or recollection, even though the fact would beotherwise inadmissible. The judges' instruction to the jury must be relied on for preventing their improper use of the fact."

We have referred to decisions elsewhere at some length because these were so fully presented in the briefs, but the case ofMayor and City Council v. Smith, supra, is in complete accord with the principles determined in the cases cited. In that case, the 4th and 5th bills of exception related to the mode of proving the market value of the property assessed for benefits, and evidence similar to that sought in this case was admitted there. Upon the appeal, Mr. Carter cited many authorities showing that witnesses on value in such cases may be required to give the reasons on which the opinions they express are based, either on direct or cross-examination, and this Court affirmed the rulings, holding "that the prices realized at sales of the land in question, and of similar land in its vicinity, made within a reasonable time theretofore, and not forced sales, are admissible in evidence either on direct examination or cross-examination of witnesses conversant with the facts." InConsolidated Gas Co. v. Baltimore City, 105 Md. 43, this question was presented, the principle involved being embraced in eleven distinct exceptions, raising in various forms the question whether it was competent to inquire from the members of the Appeal Tax Court what were their methods and mental processes in reaching the assessment they had made of the easement of the Gas Company in the city streets for the purpose of showing that it was excessive or illegal. These eleven exceptions were considered and disposed of as one group, and one of them (the 13th) was taken to the following question propounded to the late JUDGE SAMS, then a member of the Appeal Tax Court. "I would like you, JUDGE SAMS, to tell the Court in arriving at this conclusion of six millions of dollars, what the Court actually did; by that I mean, what information did you get, and from whom, whether you took any evidence or not; whether you made any inspection of the locality where these mains are; in other words in that line what did you do in arriving at this conclusion", and we held that the objection to that question was erroneously sustained. We there relied upon the practice established in condemnation cases by the decision in Tide Water Canal Co. v. Archer, 9 G. J. 317, and held that the reasons which governed that decision applied in full force to the case then before the Court, as we hold they do to the case now before us. Those reasons are stated at length in Canal Co. v.Archer and it is unnecessary to repeat them here. The conclusion reached in the Gas Co's. Case, supra, is strengthened by the reconsideration we have given it in the present case, and by the authorities we have here reviewed, and for the reasons we have stated we are of opinion that the Baltimore City Court erred in excluding the evidence offered in the 2d 3rd and 4th exceptions.

The witness, Bernard being still on his direct examination and having in his hand a diagram belonging to the Appeal Tax Court relating to the property in question, explained that it was a plat showing the block in which this property was located, together with the analysis of the assessors of the lots in the diagram liable to taxation, and the assessment description of these lots, the rate per foot and the amount the improvements were assessed for; and stated that this diagram was produced in Court in obedience to the order of Court made at the institution of this suit, in accordance with section 170 of the Baltimore City Charter, which requires the issuance of a subpoena ducestecum to the Judges of the Appeal Tax Court to deliver to the City Court, "the record of the proceedings of the Appeal Tax Court, and all maps, plats, documents and other papers connected with said record." He also said that all the data referred to in the second, third and fourth exceptions were entered up in that diagram, together with a single item of information from the petitioner, showing the gross rentals of that lot. The appellant then offered this diagram in evidence, and the Court admitted so much as showed the assessments in the block, but sustained the objection of the petitioner to the offer as to so much of the diagram as related to the sales, leases and mortgages, and this constitutes the fifth and last exception. The appellee in his brief treats this exception as identical in principle with the second, third and fourth, and in this we agree with him, so that it follows there was error in this ruling also.

The appellant however treats this exception separately, and asserts that section 170 of the charter makes the diagram, with all it contains, evidence in the case, since the only possible object of requiring it to be produced at the trial and delivered to the Court, was that it should be used as evidence in the trial, and that the Court cannot exclude what the Legislature has declared to be evidence in the case. It is not necessary however, in this case, to pass upon this construction of that provision of the charter, as to which we express no opinion.

Rulings and judgment reversed and new trial awarded with coststo the appellant above and below.