Appeal from the Circuit Court for Montgomery County; Shure, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Henderson, J., delivered the opinion of the Court.
This appeal is from an order of the Circuit Court for Montgomery County affirming an order of the State Tax Commission*fn1 dated June 5, 1959, which modified an assessment, made
by the Appeal Tax Court, of three apartment properties of the appellants for the tax year 1957. A previous appeal to this Court, involving assessments for the year 1956, was dismissed for want of a transcript of the record of proceedings before the Commission. Bornstein v. State Tax Comm., 220 Md. 101.
The appellee incorporated in its brief on the merits a motion to dismiss the appeal on the ground that the appellants failed to print, in their record extract, portions of the record before the State Tax Commission which are necessary for the proper review and determination of the issues raised on appeal. The appellee printed in its record extract the portions omitted by the appellants and concedes that, with the material supplied, it is not prejudiced in the presentation of its case. It urges, however, that it should not lose the benefit of its motion, merely because it supplies material which the rules require the appellants to include.
Maryland Rule 828 b 1 provides in part that "the printed extract shall contain such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal * * *." Subsection e provides: "If by reason of inadvertence * * * or for any other reason, the printed extract does not contain some part of the record which the appellee deems material and which he desires this Court to read, the appellee may print such parts of the record as an appendix to his brief together with a statement of the reasons therefor. Parties and counsel are cautioned that the cost of printing such appendix may be withheld or divided under section c of Rule 882 (Awarding of Costs)." Rule 835 b (5) provides that an appeal may be dismissed on motion if "(5) the contents of the printed record extract do not comply with section b of Rule 828 * * *." Rule 828 i also provides that "for violation of section b of this Rule, this Court may require that additional portions of the record be printed or otherwise furnished, or it may dismiss the appeal, or make any other appropriate order with respect to the case. * * *".
Rule 836 c provides that if a motion to dismiss is based upon subsection (5) of Rule 835 b "* * * the motion [to dismiss] shall be filed within ten days from the date the appellant's
brief is filed or should have been filed pursuant to Rule 830 * * *. This section shall not apply if the motion to dismiss is included in the appellee's brief pursuant to section d of this Rule." Rule 837 authorizes, but does not require, this Court to hear argument on a motion to dismiss in advance of argument on the merits.
The rules make it clear that if an appellant fails to comply with Rule 828 b the appellee has the option of filing a motion to dismiss within ten days and requesting that the time for the filing of his brief be extended until after hearing or determination of the motion. In such a situation this Court may order the appellant to comply or submit to a dismissal. If, however, the appellee incorporates the motion to dismiss in his brief, he is not bound by the ten-day limitation. If he elects to supply in his record extract the material omitted, we would not ordinarily dismiss the appeal, but would impose the cost of printing the omitted material on the appellant, regardless of the outcome of the case. Standard Homes v. Pasadena Co., 218 Md. 619, 623; Thanos v. Mitchell, 220 Md. 389, 393. See also Maryland Lumber Co. v. White, 205 Md. 180, 191. But in several recent cases we have intimated that a more drastic action might be taken, if the omissions on the part of the appellant were deliberate and intended to violate or evade the rule, even where the material is supplied. Brown v. Fraley, 222 Md. 480, 483; Gray v. State, 224 Md. 308, 310.
In the instant case the appellants' basic contention is that the State Tax Commission made an error of law in resting its assessment upon "capitalization of the annual gross income" derived from the apartment properties. Of course the appeal to the circuit court was limited to questions of law only. The appellants argue that the assessing authorities "based their determinations solely upon the gross income", and that this was arbitrary and capricious and in violation of the Fourteenth Amendment to the United States Constitution. They admit that "a capitalization of income method of assessment is [not] entirely without validity", but say that no matter what method is ...