Can a Maryland county or Baltimore City create a special tax or a benefit assessment district just to pay for public library services?

Plain-English summary

James H. Fish, Director of the Baltimore County Public Library, asked on behalf of the Maryland Public Library Administrators whether state law allowed the State or its political subdivisions to levy a special tax dedicated to public libraries, or to create a benefit assessment district to fund library services.

The opinion concluded that the General Assembly could exercise the State's inherent taxing power to levy a special library tax at any time. It found that Baltimore City, Baltimore County, and Montgomery County already had general local taxing powers under their own charters or codes that they could use to fund libraries, though no general state law extended that broad taxing power to all counties. On benefit assessment districts, the opinion concluded that home rule counties already had authority under the Express Powers Act to create such districts for library support, that counties with code home rule had a parallel power, that Baltimore City could support libraries through its existing community benefits district authority, and that the State would need to enact a public local law to create such a district in a county without home rule.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, taxing power, or procedure mentioned here, particularly since the Express Powers Act and county charter provisions cited here have since been recodified into Maryland's Local Government Article.

Common questions

Could every Maryland county impose a special library tax in 1999? Not automatically. The opinion found that only Baltimore City, Baltimore County, and Montgomery County had been given general local taxing powers by the General Assembly at that time; other counties would have needed the General Assembly to enact a local law specifically authorizing a library tax, since no general state law delegated broad taxing power to all counties.

What is the difference between a special tax and a benefit assessment district for library funding? The opinion explained that a special tax is levied under a jurisdiction's general taxing power, while a benefit assessment district levy is a tax that need not be based on property value and can instead be based on the benefit the property receives from library services within the district; such districts could fund ongoing library services, not just capital improvements.

Did Baltimore City have a way to fund libraries even without the county-style Express Powers Act? Yes. The opinion noted that although Baltimore City has home rule status, it does not derive its powers from the counties' Express Powers Act; instead, the City's own charter authorized it to establish up to six community benefits districts that could fund "other services and functions," which the opinion concluded could include library support.

Background and statutory framework

The opinion addressed the State's inherent power to tax, subject to the requirement in Article 14 of the Maryland Declaration of Rights that taxes have the consent of the Legislature, and the General Assembly's ability to delegate taxing power to local governments. It noted the State had delegated general property taxing power to all counties and Baltimore City under Tax Property Article §6-202, but that broader general taxing power had only been extended by local law to Baltimore City, Baltimore County, and Montgomery County.

For benefit assessment districts, the opinion applied the Express Powers Act (Article 25A, §5(0)), which gives charter home rule counties authority to establish special tax districts for public purposes including library support, and the parallel authority for code home rule counties under Article 25B, §13. It distinguished Baltimore City's charter-based community benefits district authority, created by Chapter 655 of the Laws of Maryland 1997, from the counties' Express Powers Act authority, since Baltimore City does not derive power from that Act.

Citations and references

Statutes:

• Maryland Constitution, Declaration of Rights, Article 14, requiring legislative consent for any tax
• Maryland Constitution, Article III, §32 and §52, governing the appropriations process
• Maryland Constitution, Article XI-A, §4, limiting local laws for charter counties on subjects covered by the Express Powers Act
• Maryland Constitution, Article XI-F, §9, governing local laws for code home rule counties
• Tax Property Article, §6-202, delegating general property taxing power to all counties and Baltimore City
• Article 25A, §5 and §5(0), the Express Powers Act provision authorizing charter home rule counties to create special tax districts for library support
• Article 25B, §2 and §13, extending parallel powers to code home rule counties
• Baltimore City Charter, Article II, §40; Baltimore County Code, §33-1; and Montgomery County Code, §52-17, the local laws conferring general taxing power on those three jurisdictions
• Chapter 655, §63, Laws of Maryland 1997, authorizing Baltimore City to establish up to six community benefits districts

Cases:

• Ousler v. Tawes, 178 Md. 471, 13 A.2d 763 (1940), and Weaver v. Prince George's County, 281 Md. 349, 379 A.2d 399 (1977), on the State's inherent power to tax subject to constitutional limits
• Mayor and City Council of Baltimore v. State, 15 Md. 376 (1860); Eastern Diversified Properties, Inc. v. Montgomery County, 319 Md. 45, 570 A.2d 850 (1990); and Griffin v. Anne Arundel County, 25 Md. App. 115, 333 A.2d 612 (1975), on the General Assembly's ability to delegate taxing power to local authorities
• Montgomery County Board of Realtors v. Montgomery County, 287 Md. 101, 411 A.2d 97 (1980), holding no general law delegates the State's general taxing power to all charter home rule counties
• Williams v. Anne Arundel County, 334 Md. 109, 628 A.2d 74 (1994), on benefit assessment levies based on benefit received rather than property value, and their use to fund ongoing services as well as capital improvements
• Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980), holding Baltimore City does not derive power from the counties' Express Powers Act

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1999/84oag177.pdf

Original opinion text

Gen. 177]
177

TAXATION

P UBLIC L IBRARIES ) C OUNTIES ) S TATE AND C ERTAIN L OCAL J URISDICTIONS H AVE P OWER TO L EVY S PECIAL T AX OR C REATE B ENEFIT A SSESSMENT D ISTRICTS FOR THE B ENEFIT OF P UBLIC L IBRARIES

January 22, 1999

Mr. James H. Fish
Director, Baltimore County
Public Library

You have requested our opinion on certain legal issues relating to the funding of public libraries. On behalf of the Maryland Public Library Administrators, you asked whether State law allows the State or political subdivisions to:

1. Levy a special tax, with the resulting revenues dedicated to public libraries; or

2. Create a benefit assessment district to fund public library services.

It is our opinion that the State, as well as two counties and Baltimore City, have the authority to levy a special tax that could generate revenues dedicated to public libraries. The State could create special assessment districts to fund public library services by public general law. Counties with home rule and Baltimore City have the power to create such districts. In counties without home rule, the State could create such districts by public local law.

I

Authority to Levy Special Tax

A. Authority of State

The power to tax is an inherent power of the State, subject to the limitations of the State and federal Constitutions. Ousler v. Tawes, 178 Md. 471, 482, 13 A.2d 763 (1940); Weaver v. Prince George's County, 281 Md. 349, 356, 379 A.2d 399 (1977). One of these limitations is that "no aid, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Legislature." Maryland Constitution, Declaration of Rights, Article 14.

If it chose to do so, the General Assembly could exercise the State's inherent power to tax and could levy a special tax, with the resulting revenues dedicated to public libraries.[1]

B. Authority of Counties and Baltimore City

In addition to directly levying taxes, the General Assembly may delegate the power to levy taxes to local authorities. Mayor and City Council of Baltimore v. State, 15 Md. 376, 467-68 (1860); Eastern Diversified Properties, Inc. v. Montgomery County, 319 Md. 45, 49, 570 A.2d 850 (1990); Griffin v. Anne Arundel County, 25 Md. App. 115, 126, 333 A.2d 612 (1975). In this regard, the State has delegated to all counties and Baltimore City the power to levy a property tax. Annotated Code of Maryland, Tax Property Article, §6-202. However, there is no general law that delegates to all counties, or even all the charter home rule counties, the State's general taxing power. Montgomery County Board of Realtors v. Montgomery County, 287 Md. 101, 106-07, 411 A.2d 97 (1980); Eastern Diversified Properties, 319 Md. at 49-50. Instead, the General Assembly has generally enacted local laws authorizing particular counties to levy particular taxes.[2]

The General Assembly has enacted local laws conferring general taxing powers on Baltimore City, Baltimore County and Montgomery County. See Baltimore City Charter, Article II, §40; Baltimore County Code, §33-1, and Montgomery County Code, §52-

17. Exercising these powers, any of these three jurisdictions could
    levy a special tax, the revenue from which would be dedicated to public libraries. If the General Assembly chose to do so, it could enact similar authorizing statutes for other counties. In the case of counties having code home rule such a law would have to be a general law for all code counties of the same class. See Maryland Constitution, Article XI-F, §9; Annotated Code of Maryland, Article 25B, §2.

                              II
    

    Authority to Create Benefit Assessment Districts

A. Authority of State and Counties

In the exercise of its power of delegation, the General Assembly has enacted local laws for counties without home rule establishing special community benefit tax districts for various purposes. Williams v. Anne Arundel County, 334 Md. 109, 113-14, 628 A.2d 74 (1994). Moreover, the General Assembly has enacted a general law, the Express Powers Act, which confers on the charter home rule counties the authority to establish special tax districts for various public purposes, including the support of libraries. Maryland Code, Article 25A, §5(0). The counties that have code home rule also have this power. Article 25B, §13. The levy which is made within such a district is a tax which need not be based on the value of property but can be based on the benefit received. Williams, 334 Md. at 115 n.4, 117, 126. Although such special benefit assessments have been used to finance capital improvements, they may also be used to finance public services that are beneficial to property in an area. Williams, 334 Md. at 118.

Accordingly, it is our opinion that in counties without home rule, the State could create benefit assessment districts for libraries. In the counties with home rule, the counties already have this power.

B. Authority of Baltimore City

Although Baltimore City has charter home rule status under Article XI-A of the State Constitution, it does not derive any of its powers from the Express Powers Act for the charter counties. Cheeks v. Cedlair Corp., 287 Md. 595, 601, 607, 415 A.2d 255 (1980). Therefore, Article 25A, §5(0) does not apply to Baltimore City. However, the express powers that have been enacted for Baltimore City and are codified in Article II of the City Charter authorize the City to establish six community benefits districts. Chapter 655, §63, Laws of Maryland 1997. Although the authorization does not specifically refer to the support of libraries, it states that "other services and functions" may be provided if requested by a district management authority and approved by an ordinance of the Mayor and City Council. In our opinion, "other services and functions" could include support of libraries.

III

Conclusion

In summary, it is our opinion that the State could levy a special tax for the support of public libraries, and that two counties and Baltimore City already have the authority to do so. By a public general law, the State could create special assessment districts to fund public libraries. Counties with home rule already have such authority. Baltimore City may establish up to six benefit districts and authorize them to support public libraries. The State could enact public local laws creating such districts in counties without home rule.

J. Joseph Curran, Jr.
Attorney General

Richard E. Israel
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

[1] The expenditure of such funds would be subject to the appropriations process set forth in the Maryland Constitution. See Maryland Constitution, Article III, §§32, 52.

[2] If a subject is covered by the Express Powers Act for charter counties, Annotated Code of Maryland, Article 25A, §5, the General Assembly may not enact a local law for a charter county on this subject. Maryland Constitution, Article XI-A, §4. Conversely, if a subject is not covered by the Express Powers Act, the General Assembly may enact a local law on that subject for a charter county just as it can enact a local law for a county without home rule.