Gen. 177] 177

TAXATION

PUBLIC LIBRARIES ) COUNTIES ) STATE AND CERTAIN LOCAL

JURISDICTIONS HAVE POWER TO LEVY SPECIAL TAX OR

CREATE BENEFIT ASSESSMENTDISTRICTS FOR THE BENEFIT

OF PUBLIC LIBRARIES

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
178 [84 Op. Att’y

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.

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;
Gen. 177] 179

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
180 [84 Op. Att’y

(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