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and parishes within this province, which causeth much uneasiness and many complaints. For preventing whereof, and for the more equal and just distribution of the burden of taxes on the polls and estates. * Be it enacted," etc. The difficulty of uniform appraisal by local boards seems to be not of recent origin. The object of the legislation was apparently to secure a more equitable appraisal.

After the change in the theory and practice of taxation in 1789, more attention was given to the valuation of property included in the inventory and to the taxation of new forms of personal and real property. Less attention was paid to the poll tax, and new property was from time to time added to the list. "Changes in the valuation of land was advanced, especially when compared with live stock, one of the chief items of the inventory. Again in 1830, a general reduction of nearly 25 per cent. was made in the valuation of all classes of property that were arbitrarily rated by legislative act. In a few cases, however, the valuation was increased. Such a general readjustment indicates clearly that values were undergoing radical changes, and that the old method of rating large classes of property by the Legislature for a term of years had become, under the influence of a new industrial era, unsuited to the conditions. A fixed list was extremely convenient while values remained stable, and proved equitable and hence satisfactory in its workings. When values began to change rapidly, and new forms of property were appearing, the market price was nearer the just price than any that could be fixed months in advance by the Legislature. It is strictly in accordance with the working of natural laws that the rating system was abandoned in 1833, and a less arbitrary method substituted providing that all taxable property should be appraised at its true value in money by the local assessors." Robinson, Hist. N. H. Taxation, 87, 88. In short, the attempt to determine value, a question of fact, by a rule, like a question of law, failed as it logically must.

Article 5 of part 2 of the Constitution gave the Legislature power to "impose and levy proportional and reasonable assessments." Article 6, while prescribing that the public charges "shall be assessed on polls and estates in the manner that has heretofore been practiced," provided that "in order that such assessments may be made with equality, there shall be a valuation of the estates within the state taken anew once in every five years, at least, and as much oftener as the general court shall order." It was known how estates had been valued since 1770, and in ordering a new valuation every five years like legislative action was expected. Accordingly, the Legislature acted in 1784 and 1789 in

acts much property is specified and rated at a fixed sum, but they indicate very clearly a purpose to make the rating of property approximately proportional to its value. While improved lands are rated at a fixed sum by the acre, the acreage is to be estimated by the produce of the land or its capacity to support stock; while property whose rating is left to the estimation of the assessors is rated either at a percentage of its yearly income or of its value.

The change from taxation in proportion to income to taxation in proportion to property had been gradual; and while the Constitution went into effect June 2, 1784, the full effect of the constitutional provisions was probably not at first appreciated, for the assessment act of June 12, 1784, provided for the rating of a person's "faculty," as had the prior acts. The different acts show an increasing amount of property rated according to its value-determined by estimation; and the next act (February 7, 1789) omits "faculty" as a basis of taxation, and it does not again appear. The acts themselves indicate that they were understood and intended to be appraisals or valuations of taxable property made in a manner which the experience of the time found most equitable and just. In the act of 1770, stock in trade and money at interest were rated at 1 per cent.; two years later (1772) at one-half of 1 per cent, precisely as the statute rates it to-day. All property the valuation of which was left to the assessors, with an occasional exception, was rated the same. The presumption is, and there is no evidence to the contrary, that in specifically rating other property the same percentage of its true value was intended to be reached. Instead of showing that the Constitution was then understood to authorize an arbitrary. rating regardless of value, the acts taken together show an adherence to and an increased understanding of the meaning of the Constitution as it has been since understood, until in 1833, possibly as a result of judicial expression, the true rule was reached, which has ever since been followed. See Doe, C. J., in State v. Express Co., 60 Ν. Η. 219, 247. It seems clear that these assessment acts were not intended to be an arbitrary imposition of specific taxes upon the objects named, but were, in the language of the Constitution, valuations of the estates -appraisals of the property to be taxed at its fair value, so that proportional taxes might be laid. They furnish no foundation for constitutional construction in opposition to the practice and rule since 1833.

From 1770 to 1794, money at interest was rated at the same per cent. as other property valued; from 1772 to 1789 at one-half of 1 per cent.; from 1789 to 1833 at three-fourths of 1 per cent.; while some of the other property was rated at one-half of 1 per cent.

cause it was a public cemetery in actual use by the public for the burial of the dead, at the time of the institution of these proceed ings.

It is well settled and conceded by the appellant in this case that the action of the circuit court in condemnation cases is exclusive and final, and, unless the circuit court exceeded its jurisdiction, an appeal will not lie to this court, because the proceeding is a special and limited statutory one, from which the law provides no appeal. Hopkins v. P. W. & B. R. R. Co., 94 Md. 265, 51 Atl. 404. As was said in the Hopkins Case, supra, the only ground upon which the present appeal can be maintained is that the appellee had no right at all to make the condemnation complained of, and for that reason the circuit court exceeded its jurisdiction in confirming the inquisition. If such be the case, the decisions support the right of appeal. George's Creek Coal & Iron Co. v. New Central Coal Co., 40 Md. 425; Β. & O. R. R. Co. v. Waltemyer, 47 Md. 331; Herzberg v. Adams, 39 Md. 312. In the present case, the facts upon which the objections are based, and upon which the questions of ultra vires arise, briefly stated, are these: The appellant is a religious corporation formed for the purpose of religious worship, according to the rules, regulations, and discipline of the African Methodist Episcopal Church, and incorporated under the general incorporation laws of the state. On the 4th of February, 1895, the appellant acquired title to what is called "Square No. 28 of Reed's addition to Havre De Grace," containing on or about two acres of land. This square was used as a church cemetery, that is, one-half of the square was laid off into lots about 20x24 feet with walks about 4 feet wide between the lots. Twenty-eight of these lots were sold by the trustees of the church, and there are about 150 or 160 persons buried in these lots. According to the testimony, any person can be buried there who complies with the regulations prescribed by the trustees, and the lots are sold to any person who desires to buy, provided they comply with the rules and regulations of the trustees. The entire part of the square proposed to be taken by the appellee and condemned by the proceedings was unoccupied, except one lot, which contained two graves, and the appellee and the owner of this lot agreed up on a price to be paid for it. And it appears there were no other graves in any part of the two-thirds of square No. 28, proposed to be taken by the appellee; but it was an un

as stated by the appellee, in its brief, in order to standardize its tracks for safe approach to its new bridge over the Susquehanna river at Havre De Grace, Harford county, on its Philadelphia Branch, to relocate its center line in Harford county, between its station at Havre De Grace and the west end of its bridge, which is 90 feet above the river. There were four cemeteries between those points, either contiguous to its present right of way or closely adjacent thereto, and according to the evidence, and the surveys, it was found almost impossible to relocate the line effectively, without running an impossible line, or interfering with one or the other of two of the cemeteries. The appellee, after a thorough examination into the possible locations, adopted what is called the "compromise line," and decided upon the relocation of the line, to be laid through the unoccupied portion of the church cemetery here in question; that is, taking about twothirds of square No. 28 of Reed's addition to Havre De Grace. The trustees and the appellee having failed to agree upon the purchase price, the unoccupied part of square No. 28 containing 1.29 acres was condemned and the damages assessed at $3,000.

The question, then, we have to decide, is whether or not, upon these facts, the appellee possessed the power to condemn the property here in question.

The objection that the appellee has no power to condemn a public cemetery is not presented on this record, because, it is clear, that the appellant is not within the terms of section 133, art. 23, since it is not "a cemetery company incorporated under the provisions of the Code." Nor is it a cemetery company incorporated under article 23, § 20, class 5 of the Code of Public General Laws "for forming, laying out and maintaining cemeteries in this state." The proof shows that it was a private cemetery, belonging and attached to the church of the appellant, and not a public cemetery within the terms of article 23 of the Code. Now. whether the language of the appellee's charter (Act 1826, c. 123, §§ 14, 15 and 17), wherein the power to condemn is given, is broad enough to include a public cemetery, incorporated under article 23 of the Code, and, if so, whether this power is repealed or qualified by the terms of article 23, § 133, which provides that no lanes, roads, or public thoroughfares of any sort shall be opened through the property of any cemetery company incorporated, etc., it is not necessary to inquire, because we all agree that, un

103 Mass. 115.

In the recent case of Baltimore & Ohio R. R. Co. v. Waters, 105 Md. 397, 66 Atl. 685, 12 L. R. A. (N. S.) 326, this court said that Acts 1826, с. 123 (the charter of the appellee) was an irrepealable contract, and beyond the power of withdrawal by repeal.

In 15 Cyc. 610, note 61, it is said, where a railroad company has no other feasible route, it may condemn a right of way through part of a cemetery which consists of a steep, rocky slope, fronting on a river, and which was never used for cemetery purposes, and was unfit for such; it appearing that the graves in the rest of the cemetery would never be disturbed by such appropriation.

In Davis v. Coventry, 65 Kan. 563, 70 Pac. 583, it is said: "No reason can be suggested why a private cemetery corporation operated for profit should receive any more grace at the hands of the Legislature than a private corporation organized for any other purpose."

In Turnpike Road v. Railroad Co., 81 Md. 256, 31 Atl. 854, this court said: "It is now settled by authority, which this court is bound to obey, that the grant of a franchise is of no higher order, and confers no more sacred title, than a grant of land to an individual, and, when public necessities require it, the one, as well as the other, may be taken for public purposes, on making suitable compensation; nor does such an exercise of the right of eminent domain interfere with the inviolability of contracts." Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535; Railroad Co. v. Railroad Co., 13 How. 83, 14 L. Ed. 55. It has also been said on this subject that a grant made for one public purpose must yield to another more urgent and important, and that the power to take private property for public use "reaches back of all constitutional provision." Pumpelly v. Green Bay Co., 13 Wall. 178, 20 L. Ed. 557. In addition to the cases cited, we refer to the following, in support of our views, upon the proposition that the unoccupied part of a private cemetery may be condemned for railroad or other public purposes: In re Twenty-Second Street, 102 Pa. 108; In re St. John's Cemetery, 133 N. Y. 329, 31 N. E. 102, 16 L. R. A. 180, 28 Am. St. Rep. 640; Woodmere Cemetery v. Roulo, 104 Mich. 595, 62 N. W. 1010; Sacks v. Minneapolis, 75 Minn. 30, 77 N. W. 563; Wood v. Macon, 68 Ga. 539; N. Y. C. & H. R. v. M. G. L. Co., 63 N. Y. 334; Sp. C. G. Co. v. P. S. R. R., 167 Pa. 6, 31 Atl. 368; Cem. Co. v. Cem. Ass'n, 93 Tex. 569, 57 S. W. 27, 55 L. R. A. 503; Cem.

In Matter of Board of Street Opening, 133 N. Y. 333, 31 N. E. 102, 16 L. R. A. 180, 28 Am. St. Rep. 640, it is said: "But this was not a public cemetery (St. John's Cemetery, Trinity Church, N. Y.), and so far as appears had never been devoted to a public use. The public generally never had any right of burial therein. No burials therein could be made except by permits given by Trinity Church, and all the interments therein had been made by its authority. The cemetery land was therefore devoted to a private, and not a public, use."

In Matter of Deansville C. Association, 66 N. Y. 573 (23 Am. Rep. 86), the court said: "The point upon which the present case turns is the nature of the use for which the land in question is sought to be taken. It is to be vested in trustees with power to divide into lots and sell those lots to individual owners. It is difficult to see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured. The prices at which the lots are to be sold are to be fixed by private agreement; the corporation is to be managed by trustees elected by the lot owners. The lots or the rights of the owners therein are to descend as private property to the heirs of their owners, and by the act of 1874 (compare Code, art. 23, § 134) the owners may, by leave of the courts, sell their lots and put the proceeds in their pockets. The substantial right of enjoyment of the property is vested in the individual lot owners; and the whole effect of the incorporation of their cemetery associations is to enable a number of private individuals to unite in purchasing property for their own use and that of their descendants as a place of burial and to secure a permanent management of it through the instrumentality of trustees appointed by themselves and subject to no other control, with the privilege when they cease to use their lots as a place of burial to sell them and receive the proceeds for their own benefit. It is argued that the property is to be used as a place of burial, and that the burial of the dead is a public benefit, and therefore the use is public. But the answer to this argument is that the right of burial in these grounds is not vested in the public or in the public authorities, or subject to their control, but only in the individual lot owners. If the fact that it is a benefit to the public that the dead should be buried is sufficient to make a cemetery a public use, the Legislature might authorize A. to take the land of B. for a private burial place of A. and his family. The fact that this land is taken for the benefit of a number of individuals for division