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1 of 37 DOCUMENTS 

SAVE OUR STREETS, et al. v. DOUGLAS D. MITCHELL, et al.; GRACE HITER v. THE HARFORD COUNTY CHAMBER OF COMMERCE, INC., et al.  

No. 102, September Term, 1998, No. 104, September Term, 1998 

COURT OF APPEALS OF MARYLAND 

357 Md. 237; 743 A.2d 748; 2000 Md. LEXIS 2 

January 10, 2000, Filed 

PRIOR HISTORY:
 [***1]  
102. Appeal from the Circuit Court for Montgomery County pursuant to certiorari to the Court of Special Appeals. James C. Chapin, JUDGE.

104. Appeal from the Circuit Court for Harford County pursuant to certiorari to the Court of Special Appeals. William O. Carr, JUDGE.  

CASE SUMMARY
 
PROCEDURAL POSTURE: Appellants challenged orders of the Montgomery County Circuit Court and the Hartford County Circuit Court (Maryland) that precluded the placement of proposed charter amendments on the ballots for a general election.
 
OVERVIEW: After trial on the controversy, the trial court issued a declaratory judgment precluding the placement of the proposed charter amendment on the general election ballot. The appellate court affirmed the lower court's ruling by finding that the proposed amendment was essentially legislative in character and in all respects similar to the enactment of a local law. As such, it was an improper attempt to divest the county government of its power to legislate. While charters commonly authorized or precluded specified types of enactments by legislative bodies, they did not properly contain all provisions concerning the subject. The proposed speed bump amendment would narrowly have mandated that the county council could not authorize new speed bumps, and that it must remove all in existence. Thus, the proposed amendment left virtually no room for the exercise of discretion by the county council.
 
OUTCOME: The trial court order precluding the inclusion of a proposed charter amendment was affirmed where the proposal was an improper attempt to divest the county's governing officials of their power to legislate.
 
CORE CONCEPTS 

Governments : Local Governments : Elections
See Md. Const. art. XI-A, §  5.

Governments : Local Governments : Charters
A county charter is equivalent to a constitution. Therefore, the basic function of a charter is to distribute power among the various agencies of government and between the government and the people who have delegated that power to their government. A charter is thus a permanent document intended to provide a broad organizational framework establishing the form and structure of government in pursuance of which the political subdivision is to be governed and local laws enacted. It is organic, fundamental law.

Governments : Local Governments : Powers & Duties
Although Md. Const. art. XI-A, §  6, reserves to the people of a charter county the power to amend the charter, this power is limited by § §  2 and 3 thereof. Md. Const. art. XI-A, §  2 specifies that the General Assembly shall, by public general law, grant express powers to the governments of charter counties and that such powers shall not be enlarged or extended by any charter formed under the provisions Md. Const. art. XI-A. Md. Const. art. XI-A, §  3 provides that each charter county shall have a county council, which is an elective legislative body in which shall be vested the law-making power of the county. The county council has full power to enact local laws upon all matters covered by the express powers granted by Md. Const. art. XI-A, §  2.

Governments : Local Governments : Powers & Duties
The county council alone, and not the voters of the county, has the power to initiate local legislation. Furthermore, such legislative power cannot be exercised by means of an amendment to the charter.

Governments : Local Governments : Charters
A charter amendment within the context of Md. Const. art. XI-A is necessarily limited in substance to amending the form or structure of government initially established by adoption of the charter. A charter amendment, therefore, differs in its fundamental character from a simple legislative enactment. Its content cannot transcend its limited office and be made to serve or function as a vehicle though which to adopt local legislation.

Governments : Local Governments : Charters
The Court of Appeals of Maryland has invalidated attempts by the voters to initiate detailed legislation through the guise of charter amendments. However, the court has upheld those portions of proposed charter amendments that were sufficiently fundamental in nature to be included in a charter.

Governments : Local Governments : Charters
A chart amendment that is essentially legislative in character in that it constitutes an exercise of governmental power in all respects similar to the enactment of a local law is not proper charter material; rather it is an improper attempt to divest the governing body of its power to legislate.

Governments : Local Governments : Charters
Limitations imposed by the people on their government are fundamental elements of a constitution. Proposed charter amendments are fundamental in nature where they directly involve the relationship between the people and the government by limiting the power of the government in a given area. Thus, a provision in a county charter placing restrictions upon the county council's revenue raising authority is a fundamental aspect of the form and structure of government and thus is proper charter material.

Governments : Local Governments : Charters
It is common for constitutions or charters to authorize or preclude specified types of enactments by legislative bodies. This is quite different from a charter itself containing all of the provisions concerning the subject. 

COUNSEL:
ARGUED BY Alan Fischler.

ARGUED BY: David L. Scull (Both of Bethesda, MD (102), FOR APPELLANTS.

ARGUED BY Gerald I. Holtz of Chevy Chase, MD (102), FOR APPELLEES.

ARGUED BY J. Carroll Holzer of Towson, MD (104), FOR APPELLANT.

ARGUED BY Stephen Winter (Miles & Stockbridge) of Towson, MD.

ARGUED BY: Stephen Elmendorf/(John Delaney, Linowes & Blocher) of Silver Spring, MD (104), FOR APPELLEES.  

JUDGES:
ARGUED BEFORE Bell, C.J.; Eldridge, Raker, Wilner, Cathell, Karwacki, Robert L.  (retired, specially assigned) and Thieme, Raymond G., Jr., (specially assigned), JJ. Opinion by Eldridge, J.  

OPINIONBY:
ELDRIDGE 

OPINION:

 [*239]   [**749]  

Opinion by Eldridge, J.
These cases involve the validity of charter amendments proposed, pursuant to Article XI-A, §  5, of the Maryland Constitution, by petitions of the voters of Montgomery and Harford Counties respectively. n1 This opinion sets forth the  [**750]   [*240]  reasons underlying this Court's orders of September 29, 1998, affirming injunctions issued by the Circuit Courts for Montgomery and Harford Counties which enjoined the Counties' Boards of Election Supervisors from placing the proposed charter amendments on the ballots for the 1998 general election.

n1 Article XI-A, §  5, provides in relevant part as follows:
"Section 5. Amendments to charters.
Amendments to any charter adopted ... by any County of this State under the provisions of this Article may be proposed by a resolution of ... the Council of the County, or by a petition signed by not less than 20% of the registered voters of the ... County, provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition. *** "

 [***2]  
I.
As this opinion encompasses two distinct appeals, the facts and procedural history of each case are set forth separately.
A.
In the summer of 1998, an organization called Save Our Streets submitted to the Board of Supervisors of Elections for Montgomery County a petition to place a proposed amendment to the Montgomery County Charter on the ballot for the general election to be held on November 3, 1998. n2 The Board of Election Supervisors reviewed the petition and found that it contained the requisite number of signatures. n3 The proposed amendment would have amended §  311 of the Montgomery  [*241]  County Charter by prohibiting the expenditure of county funds to install or maintain speed bumps on county roads and streets. In addition, the proposed amendment would have required the removal of any previously installed speed bump within one year of the amendment's effective date, unless seven of the nine county council members approved the retention of the bump subsequent to a public hearing on the issue.

n2 The proposed amendment, which was to be added as subsection "C" to §  311 of the Montgomery County Charter, provided as follows:
"Section 311 C. Limitations on Expenditures for Speed Bumps

County funds shall not be spent to install or maintain on any road or street any permanent physical obstacle to vehicular movement, which for purposes of this section means any speed bump or hump. Any such device previously installed shall be removed within twelve months after this section takes effect, unless the Council by an affirmative vote of seven members approves its continued use at that location, after a public hearing for which notice was posted at or near the location of the device." [***3]  
n3 The requisite number of signatures is the lesser of 10,000 or 20% of the registered voters of the County. See note 1, supra.

On September 9, 1998, Douglas Mitchell and several other individuals filed in the Circuit Court for Montgomery County a complaint seeking a declaratory judgment and injunctive relief. The plaintiffs alleged that the charter amendment proposed by Save Our Streets was unconstitutional and that, therefore, the Board of Election Supervisors should be enjoined from placing the amendment on the general election ballot. The case was tried before the Circuit Court on September 22, 1998. At the conclusion of the trial, the Circuit Court declared that the "proposed Speed Bump Amendment" was "contrary to Article XI-A of the Maryland Constitution" and enjoined the Board of Election Supervisors from placing the proposed amendment on the general election ballot. Save Our Streets and the Board of Election Supervisors immediately noted appeals to the Court of Special Appeals. On September 23, 1998, prior to any proceedings in the Court of Special Appeals, this Court issued a [***4]  writ of certiorari.  Save Our Streets v. Mitchell, 351 Md. 284, 718 A.2d 233 (1998).
B.
On August 10, 1998, an organization named Friends of Harford County, Inc., submitted to the Board of Supervisors of Elections of Harford County a petition to  [**751]  place a proposed amendment to the Harford County Charter on the 1998 general election ballot. n4 The Board of Election  [**752]  Supervisors  [*243]  reviewed the petition and found that it contained the requisite number of signatures. The proposed amendment would have added new sections pertaining to land-use planning and zoning, to be numbered § §  710 and 711 of Article VII of the county charter.

n4 The proposed amendment, which was to be added as § §  710 and 711 of Article VII of the Harford County Charter, provided as follows:
"Section 710 Adequate Public Facilities

"In order to implement the adequacy standards established herein, the County Executive, any County agency, and/or the County Council may not approve any increased or more intensive use or development of public and/or private property, through zoning, the approval of subdivision plans, the approval of site plans, the issuance of grading permits, the issuance of building permits for new residential or commercial units, or any activity in furtherance of any of the above for a period of one year after the enactment of this section.
"The County Executive, any County agency, and/or the County Council may not approve any increased or more intensive use or development of public and/or private property through zoning, the approval of subdivision plans, the approval of site plans, the issuance of grading permits, the issuance of building permits for new residential or commercial units, or any activity in furtherance of any of the above, in the County where adequacy standards as defined in this section are not met.
"Adequacy standards for the use or development of public and/or private property for residential purposes are not met where the enrollment of any school which serves the site or property sought to have a more intensive use is greater than ninety-five (95) percent of the rated capacity of the school. Rated capacity of the school shall be determined by the Harford County Board of Education, exclusive of relocatable, portable or non-permanent classrooms.
"Adequacy standards for the use or the development of public and/or private property for residential or commercial purposes are not met where:
"(1) the existing County, State and Federal roads, including road segments and intersections, in all directions from each point of entrance of the property through the intersection with the first arterial roadway to the next intersecting collector or higher functional classification road as defined by the Harford County Transportation Plan are accommodating vehicular traffic at a level of service of 'D' or below as defined by the Highway Capacity Manual or other equivalent standard in use by the County, or

"(2) the existing County, State and Federal roads, or any road segment within three miles of the property, are accommodating vehicular traffic at a level of service of 'D' or below as defined by the Highway Capacity Manual or other equivalent standard in use by the County, or

"(3) the existing State and Federal roads, or any road segment, outside of the County are accommodating vehicular traffic at a level of service of 'D' or below as defined by the Highway Capacity manual or other equivalent standard, and the low level of service is directly or proximately caused by vehicular traffic originating from within the County, or

"(4) the police, fire, or emergency medical response services providing service to the property, are not sufficient to meet the needs of the existing residential and business population according to applicable standards established for each type of service, or

"(5) the recreational facilities and public open space are not sufficient to meet the needs of the existing residential population according to applicable standards established for recreational facilities and public open space.
"Public and/or private property, proposed for increased or more intensive use or development may be exempted from the provisions of this Section if the proponent for the more intensive use can prove, by clear and convincing evidence, that the proposed use for the site will not impact or affect the adequacy standards defined in this section.
"If any of the paragraphs of this section are ruled unenforceable by a competent Court, such ruling does not affect the enforceability of the remaining paragraphs of this section.

Section 711 Standing in Land Use Proceedings and Attorney's Fees
"(a) With respect to any administrative, judicial or other proceeding in the County concerning zoning, land use, development or construction (a "Proceeding") the following entities shall have the right to intervene as a party and shall have standing and all the rights of a party in interest or an aggrieved party, including the rights of judicial review and appeal:
"(I) Any community association representing property owners who own property located within two (2) miles of the property which is the subject of such a Proceeding; or

"(II) Any not for profit corporation operating in the County which was formed to represent the interests of citizens on matters relating to zoning, land use or development.
"(b) Any entity which exercises its right to become a party to a Proceeding as defined in Section (a) above and prevails shall be entitled to reimbursement from the County for all reasonable attorneys and expert fees incurred in connection with the Proceeding, notwithstanding any provision under Article V.
"(c) The County Executive and the Council shall levy a fee on the issuance of concept plans, preliminary subdivision plans, grading permits, and/or building permits in such amount as to provide income to the County in balance with the expenditures for any attorneys fees that may be paid pursuant to this Section.
"If any of the paragraphs of this section are ruled unenforceable by a competent Court, such ruling does not affect the enforceability of the remaining paragraphs of this section."

 [***5]  
The proposed new §  710, entitled "Adequate Public Facilities," would have established various adequacy standards for "increased or more intensive use or development of public and/or private property" in the County. To implement these standards, §  710 would have imposed a one-year moratorium on approval by the County of any development proposal. The moratorium would have been comprehensive, including, inter  [*244]  alia, prohibitions on the issuance of building permits and grading permits as well as approval of subdivision plats and site plans. After the one-year moratorium would have expired, §  710 would have prohibited any development that did not meet the adequacy standards. These standards concerned school capacity for residential development and capacity regarding roads, police, fire, and emergency medical response services, and recreational facilities and public open space for both residential and commercial development. Section 710 would have permitted exemptions to its limitations if a proponent of development could prove, by clear and convincing evidence, that the proposed development would "not impact or affect the adequacy standards." 
The proposed new §  711 would have [***6]  granted standing, in any proceeding involving zoning, land use, development or construction, to any community association representing property owners who own property within two miles of any property involved in a proceeding and to any non-profit corporation in the County formed to represent the interests of citizens relating to zoning, land use, or development. In addition, proposed §  711 would have entitled any such community association or non-profit corporation which prevailed in a proceeding to be reimbursed by the County for attorneys' and experts' fees. To provide funds for such reimbursement, §  711 would have required the County Executive and Council to levy fees on the issuance of concept plans, preliminary subdivision plans, and grading and building permits.
The proposed charter amendment was forwarded to the Harford County Council for the Council to decide on the language of the ballot question which would describe both sections of the amendment. On August 17, 1998, the Council voted for the specific wording to be used on the ballot. The approved language for the ballot question differed in several  [*245]  respects from the original draft prepared for the Council by an assistant [***7]  county attorney.
Two actions were filed in the Circuit Court for Harford County on September 18, 1998, challenging the propriety of placing the proposed charter amendment on the general election ballot. The first was a petition for a writ of mandamus filed by the Friends of Harford County, which alleged that the ballot description of the proposed amendment was misleading to the public and that the Council should be compelled to reinstate the original language prepared by an assistant county attorney. The second was an action for a declaratory judgment and injunctive relief  [**753]  filed by the Harford County Chamber of Commerce and several other plaintiffs against the Board of Election Supervisors, the County Council, and the County. The Chamber of Commerce alleged that the proposed charter amendment was invalid under Article XI-A of the Maryland Constitution and should not be placed on the general election ballot. 
The trial of both cases was held in the Circuit Court on September 22, 1998, at which time the court granted appellant Grace Hiter's motion to intervene as a party defendant in the action filed by the Chamber of Commerce. Ms. Hiter was coordinator of the petition drive for the [***8]  Friends of Harford County and chairman of the Ballot Issue Committee organized to support the placement of the proposed amendment on the general election ballot.
The Circuit Court on September 23, 1998, issued an extensive declaratory judgment, declaring that proposed § §  710 and 711 were "legislative in nature" and therefore could not validly be included in the Harford County Charter. This declaration rendered moot the action filed by the Friends of Harford County to reinstate the ballot language as originally drafted. The Circuit Court's declaratory judgment, however, went on to discuss and rule upon the question of whether the Friends of Harford County would have had standing to maintain its action if the action were not moot. In addition to the declaratory judgment, the Circuit Court issued two orders. First, it  [*246]  enjoined the Board of Election Supervisors from placing the proposed charter amendment on the ballot. Second, it dismissed as moot the action filed by the Friends of Harford County. On September 24, 1998, Ms. Hiter timely noted an appeal to the Court of Special Appeals, and, on the same day, this Court issued a writ of certiorari.  Hiter v. Harford County Chamber of Commerce, 351 Md. 284, 718 A.2d 233 (1998). [***9]  
C.
The oral arguments in both the Montgomery County and the Harford County appeals were heard by this Court on September 29, 1998. At the conclusion of oral arguments, we issued an order affirming the judgment of the Circuit Court for Montgomery County. We also issued an order affirming that portion of the judgment of the Circuit Court for Harford County which enjoined the Board of Election Supervisors of Harford County from placing on the ballot the proposed § §  710 and 711 charter amendment. We now shall set forth the reasons for these orders, and we shall dispose of the remainder of the appeal in the Harford County cases.
II.
The plaintiffs attacked the proposed charter amendments in Montgomery and Harford Counties on essentially the same grounds. The plaintiffs argued that the proposed amendments contained legislative schemes and thus were not proper charter material under Article XI-A of the Maryland Constitution. n5 Relying on  [**754]  Board v. Smallwood, 327 Md. 220,  [*247]  608 A.2d 1222 (1990), Griffith v. Wakefield, 298 Md. 381, 470 A.2d 345 (1984), and Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980), the plaintiffs asserted [***10]  that a charter amendment must address the "form and structure" of county government. They argued that a proposed charter amendment which is essentially local legislation in disguise exceeds the power of the voters to amend their county charter because the Maryland Constitution does not permit voters to initiate local legislation. n6

n5 Article XI-A, commonly known as the Home Rule Amendment, was ratified by the voters in 1915. The "underlying purpose of the Article is to share with the counties and Baltimore City, within well-defined limits, powers formerly reserved to the General Assembly so as to afford the subdivisions certain powers of self-government." Cheeks v. Cedlair Corp., 287 Md. 595, 597, 415 A.2d 255, 256 (1980). The Article provides, inter alia, that the voters of counties can adopt home rule charters for county governments, that the General Assembly shall delegate express powers to the county governments created by the charters, and that the voters of the counties can amend the charters. See Cheeks, 287 Md. at 598-599, 415 A.2d at 256-257. Section 3 of Article XI-A provides in relevant part as follows:
"Section 3. Legislative bodies; chief executive officers; enactment, publication and interpretation of local laws.
"Every charter so formed shall provide for an elective legislative body in which shall be vested the law-making power of said ... County. Such legislative body ... in any county shall be known as the County Council of the County. *** From and after the adoption of a charter by ... any County of this State, ... the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said ... County including the power to repeal or amend local laws of said ... County enacted by the General Assembly, upon all matters covered by the express powers granted as above provided *** ."  [***11]  
n6 In Bd. of Election Laws v. Talbot County, 316 Md. 332, 347-349, 558 A.2d 724, 731-732 (1989), and in Board v. Smallwood, 327 Md. 220, 234-236, 608 A.2d 1222, 1229-1230 (1992), we held that the voters of a county, whether by original charter provision or amendment, cannot expressly reserve to themselves the power to initiate legislation, even though they can submit to referendum legislation which has been duly enacted by a county council. Although the processes of initiative and referendum may both require a petition to submit legislation to the electorate, they are distinct with respect to the role they assign to elected government: "Initiative refers to the process by which the electorate petitions for and votes on a proposed law. Referendum is the process by which legislation passed by the governing body is submitted to the electorate for approval or disapproval." Smallwood, 327 Md. at 232, n. 6, 608 A.2d at 1228, n.6, and authorities there cited. 
The power to initiate local legislation is repugnant to Art. XI-A, §  3, of the Maryland Constitution, which vests a charter county's "full" law-making power in the county council. Under the Maryland Constitution, however, county voters do have a right to reserve to themselves the power to petition for a referendum on legislation previously enacted by a county council. See Ritchmount Partnership v. Board, 283 Md. 48, 388 A.2d 523 (1978) (holding that Art. XI-A conferred on the citizens of Anne Arundel County the right to reserve to themselves by express charter provision the power to refer legislation enacted by their County Council). In Smallwood, we reiterated the distinction between the powers of referendum and initiative (327 Md. at 235, 608 A.2d at 1229, quoting Cheeks, 287 Md. at 613, 415 A.2d at 264):
"'The powers of referendum and initiative, though each may affect the form or structure of local government, are otherwise distinctly different. Under the referendum power, the elective legislative body, consistent with §  3, continues to be the primary legislative organ, for it has formulated and approved the legislative enactment referred to the people. The exercise of the legislative initiative power, however, completely circumvents the legislative body, thereby totally undermining its status as the primary legislative organ.'"

 [***12]  
 [*248]  
The defendants, relying upon Smallwood, argue that charter amendments placing limits on governmental powers address the form and structure of county government and are valid under Article XI-A of the Constitution. They contend that the proposed amendments here involved place limitations upon governmental powers and, therefore, constitute proper charter material under our opinion in the Smallwood case.
This Court has "repeatedly explained that a county charter is equivalent to a constitution." Smallwood, 327 Md. at 237, 608 A.2d at 1230. See Haub v. Montgomery County, 353 Md. 448, 450, 727 A.2d 369, 370 (1999); Bd. of Election Laws v. Talbot County, 316 Md. 332, 341, 558 A.2d 724, 728 (1989); Griffith v. Wakefield, supra, 298 Md. at 385, 470 A.2d at 347-348; County Exec., Prince Geo's Co. v. Doe, 291 Md. 676, 680, 436 A.2d 459, 461 (1981); Cheeks v. Cedlair Corp., supra, 287 Md. at 606, 415 A.2d at 261; Ritchmount Partnership v. Board, 283 Md. 48, 58, 388 A.2d 523, 530 (1978), and cases there cited. Therefore, the "basic function" of a charter is "to distribute [***13]  power among the various agencies of government, and between the government and the people who have delegated that power to their government." Smallwood, 327 Md. at 237, 608 A.2d at 1230. As Chief Judge Murphy stated for the Court in Cheeks, 287 Md. at 607, 415 A.2d at 261:
 [**755]  "A charter is thus a permanent document intended to provide a broad organizational framework establishing the form and structure of government in pursuance of which the  [*249]  political subdivision is to be governed and local laws enacted. It is the organic, the fundamental law ...."
Although §  6 of Art. XI-A of the Maryland Constitution reserves to the people of a charter county the power to amend the charter, this power is limited by § §  2 and 3. See Cheeks, 287 Md. at 608-610, 415 A.2d at 262. Section 2 specifies that the General Assembly shall, "by public general law," grant "express powers" to the governments of charter counties and that such powers "shall not be enlarged or extended by any charter formed under the provisions" of Article XI-A. n7 Section 3 provides that each charter county shall have a county council, which is "an elective legislative body in [***14]  which shall be vested the law-making power" of the county. Section 3 of Article XI-A goes on to state that the county council shall have "full power to enact local laws ... upon all matters covered by the express powers granted" pursuant to §  2. Therefore, in Cheeks, and again in Griffith, we "contrasted" the ability to adopt or amend a charter, which is the "power to organize a local government, reserved to the people of a charter county ... under Article XI-A," with the power to enact legislation.  Griffith, 298 Md. at 385, 470 A.2d at 348. In Cheeks, we explained in detail that the county council alone, and not the voters of the county, has the power to initiate local legislation. 287 Md. at 612-614, 415 A.2d at 264-265. Furthermore, we held that such legislative power cannot be exercised by means of an amendment to the charter (287 Md. at 607, 415 A.2d at 261):

n7 Most of these express powers are enumerated in Maryland Code (1957, 1998 Repl. Vol., 1999 Supp.), Art. 25A, §  5, commonly known as the Express Powers Act. Of particular relevance to the case at bar are the powers to regulate the condition and use of roads (See  § §  5 (K) & (T)) and to enact local laws pertaining to land-use planning and zoning ( § §  5 (U),(X), (BB), and (EE)).

 - [***15]  
"[A] charter amendment within the context of Art. XI-A is necessarily limited in substance to amending the form or structure of government initially established by adoption of the charter. A charter amendment, therefore, differs in its fundamental character from a simple legislative enactment.  [*250]  Its content cannot transcend its limited office and be made to serve or function as a vehicle though which to adopt local legislation."
Accordingly, in both Cheeks and Griffith, we invalidated "attempts by the voters to initiate detailed legislation through the guise of charter amendments." Smallwood, 327 Md. at 239, 608 A.2d at 1231. In Smallwood, however, we upheld those portions of proposed charter amendments that were sufficiently fundamental in nature to be included in a charter. A brief review of the facts of each case illustrates the distinction between proposed charter amendments which delineate the basic form and structure of the local government and are, therefore, proper charter material, and those proposed charter amendments which are legislative in nature.
 Cheeks involved a proposed amendment to the Baltimore City Charter that would have established [***16]  a tenant-landlord commission to implement a comprehensive system of rent control. n8 The proposed charter amendment prescribed "in lengthy detail, the powers and duties of the Commission in administering the system of rent control." Cheeks, 287 Md. at 602, 415 A.2d at 258. The Court held that the amendment was "essentially legislative in character" as it constituted an exercise of governmental power "in all respects similar to the enactment  [**756]  of a local law." Cheeks, 287 Md. at 608, 415 A.2d at 262. Thus, we held that the proposed amendment was not proper charter material; rather, it was an attempt to "divest" the City Council of "its acknowledged ... power to legislate on the subject of rent control." Cheeks, 287 Md. at 609, 415 A.2d at 262.

n8 Baltimore City, like the charter counties, is an Article XI-A jurisdiction rather than a municipal corporation governed by Article XI-E of the Maryland Constitution. See Griffith, 298 Md. at 385, 470 A.2d at 348; Cheeks, 287 Md. at 597-601, 415 A.2d at 256-258.

 [***17]  
In Griffith, we invalidated a proposed charter amendment to create a comprehensive system of collective bargaining and binding arbitration for Baltimore County and a single group of county employees, firefighters. The proposed amendment set  [*251]  forth a "complete and specifically detailed legislative scheme" that left "nothing for the determination of the ... County Council." 298 Md. at 386, 388, 470 A.2d at 348, 349. The "binding arbitration feature of the amendment" would have "divested the elected officials of Baltimore County of any discretion in reaching an agreement on the wages, benefits, hours and working conditions' of the fire fighters." 298 Md. at 388, 470 A.2d at 349 (quoting the proposed amendment). The Court held that the amendment was invalid because, like the proposed amendment in Cheeks, it was "essentially legislative in character.'" 298 Md. at 388, 470 A.2d at 349, quoting Cheeks, 287 Md. at 608, 415 A.2d at 262. 
In Smallwood, however, this Court upheld the facial validity of proposed charter amendments that would have placed a percentage cap on the amount by which the Anne Arundel and Baltimore [***18]  County Councils could raise the local property taxes in their respective counties. In explaining that such amendments were not essentially legislative in nature, we relied on a distinction that we had made previously in Griffith between proposed charter amendments that "'authorize, or preclude, specified types of enactments by legislative bodies,'" and thus are ordinarily valid, and those that constitute specific legislative schemes, and thus are ordinarily invalid.  327 Md. at 239, 608 A.2d 1231, quoting 298 Md. at 389, 470 A.2d at 350. Unlike the proposed amendments in Cheeks and Griffith, the proposed amendments in Smallwood were "not back-door attempts by the voters" to "enact detailed legislation." 327 Md. at 240, 608 A.2d at 1232. The Court noted that they did not "divest the county councils of the ability to set the property tax rates." Ibid. Instead, the proposed amendments "would have merely precluded a particular type of enactment by the legislative body." Ibid. The Smallwood opinion also pointed out that "limitations imposed by the people on their government are fundamental elements of a constitution." 327 Md. at 237-238, 608 A.2d at 1230-1231, [***19]  and authorities there cited. The proposed amendments in Smallwood were fundamental in nature because they "directly involved the relationship between the people and the government  [*252]  by limiting the power of the government to tax." 327 Md. at 237, 608 A.2d at 1230. Accordingly, we held "that a provision in a county charter placing restrictions upon the county council's revenue raising authority is a fundamental aspect of the form and structure of government and thus is proper charter material." 327 Md. at 241, 608 A.2d at 1232.
It is important to stress that our holding in Smallwood was precisely phrased. We did not state that any proposed charter amendment which is articulated as a limitation on governmental power is valid under Article XI-A. Nor did we state that the proposed amendments addressed in Smallwood were constitutional merely because they were expressed as limitations on governmental power. n9 Rather, they  [**757]  were constitutional limitations because they pertained to "a fundamental aspect of the form and structure of government." 327 Md. at 241, 608 A.2d at 1232. The distinction between the fundamental, general nature of a charter [***20]  and the specificity characteristic of county council legislative enactments authorized by a charter framework, is essential to the system of representative democracy provided for in Article XI-A of the Maryland Constitution. County charters are, in effect, constitutions for county governments, and Article XI-A contemplates that they should reflect the broad outlines of governmental powers and limitations. Under Article XI-A, the enactment of specific legislation is left to the elected legislative bodies. n10

n9 Virtually any legislative scheme could be phrased as a limitation on governmental power. For example, the proposed charter amendment which this Court invalidated in Griffith could have stated that Baltimore County would be prohibited from resolving contract disputes between the county government and the firefighters union by any means other than by the binding arbitration scheme set forth in the amendment. Merely expressing the binding arbitration scheme as a limitation on the County Council's power would not save it from being essentially legislative in nature. 
n10 As Chief Justice John Marshall emphasized early in our nation's history, a constitution necessarily provides a broad framework which both empowers and limits a legislature in its enactment of specific laws ( McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 407, 4 L. Ed. 579, 601 (1819)): 
"A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves." 

 [***21]  
 [*253]  
The proposed charter amendments in the case at bar are not analogous to the percentage tax caps upheld in Smallwood because they do not impose general and fundamental limitations on a governmental power such as the power to tax. Instead, they are analogous to the proposed charter amendments invalidated in Cheeks and Griffith because they amount to specific legislative schemes. The appellants Save Our Streets and Hiter seem to suggest that the Smallwood decision created an exception to the principles set forth in Cheeks and Griffith. To the contrary, the percentage tax cap provisions upheld in Smallwood exemplify the distinction emphasized in Griffith between a legislative scheme, which may only be enacted by the county council, and an authorization or preclusion of a county council's power to enact a type of legislation, which is proper charter material. 
Although both Cheeks and Griffith involved legislative schemes that were lengthy and detailed, thereby furnishing some indication of ordinary legislation under the guise of charter amendments, nevertheless the length and detail of a proposed charter amendment are not dispositive as to whether [***22]  the proposed amendment constitutes legislation or proper charter material. An important consideration is the degree to which the county council retains discretion and control regarding an area under its authority pursuant to Article XI-A of the Maryland Constitution. The charter amendments proposed by Save Our Streets and Hiter would as completely remove any meaningful exercise of discretion from the County Councils as would have the amendments in Cheeks and Griffith. 
 [*254]  
What this Court said about the proposed charter amendment in Griffith is fully applicable to the proposed amendments in the cases at bar. We there explained (298 Md. at 389-390, 470 A.2d at 350):
"The flaw in [the defendant's] argument is the failure to distinguish between 'authorization' on the one hand and a detailed local enactment on the other hand. It is common for constitutions or charters to authorize, or preclude, specified types of enactments by legislative bodies. This is quite different from a charter itself containing all of the ... provisions concerning the subject.
"If the proposed Baltimore County charter amendment had merely authorized the Baltimore County Council to [***23]   [**758]  enact a system of binding arbitration with regard to the compensation of Baltimore County employees, and if, pursuant to that authorization, the Baltimore County Council had exercised its discretion to enact an ordinance containing provisions similar to those in the proposed charter amendment now before us, the present case would be distinguishable from Cheeks.... In the present case, however, the proposed charter amendment did not authorize the County Council to enact binding arbitration legislation for county employees. It did not authorize any decisions by the constitutional legislative body. Instead, under the proposal, the charter itself would contain all of the law on the subject, and the Baltimore County Council would be deprived of all decision-making authority concerning the subject."
As pointed out in the above-quoted language, an authorization or preclusion of a type of legislative enactment allows for the council's exercise of discretion and, thus, is ordinarily proper charter material. In Smallwood, the percentage cap provisions imposed a broad limit on the County Councils' power to levy property taxes. As explained previously, the provisions did not set [***24]  specific tax rates but merely imposed a ceiling under which the county councils could exercise their discretion. Moreover, the provisions did not direct to what particular purposes property tax revenues would be expended. Similarly, if the proposed charter amendment in Griffith had  [*255]  simply authorized the Baltimore County Council to enact specific legislation regarding collective bargaining and binding arbitration between the County and the firefighters' union, the proposed amendment would not have been invalid under Article XI-A of the Maryland Constitution.
The proposed charter amendments in the present cases are neither broad authorizations nor similar to general limits on a county's taxing power. The proposed Speed Bump amendment would narrowly mandate that the County Council could not authorize new speed bumps and must remove existing speed bumps. Although Hiter argues that §  710 of the proposed amendment to the Harford County Charter "implicitly" authorizes the County Council to enact legislation to establish adequate facilities standards, we fail to understand where or how such authorization is made. Section 710 repeatedly refers to the "adequacy standards" explicitly "established"  [***25]  and "defined" by its own paragraphs 3 and 4. For example, the purpose of the moratorium on development described in paragraph 1 is to "implement the adequacy standards established" by paragraphs 3 and 4. Thus, the amendment proposed by Hiter, like that proposed by Save Our Streets, leaves virtually no room for an exercise of discretion by the County Council. As the Circuit Court for Harford County correctly concluded, "in reality, the provisions of Section 710 are an attenuated form of an adequate public facilities ordinance that, by its terms, is intended to impose various limitations on prospective developments. As such, it is legislative in nature."
III.
As stated previously, our order of September 29, 1998, affirmed the declaratory judgment issued and the injunctive relief granted by the Circuit Court for Montgomery County in the case involving the proposed "Speed Bump" amendment. On the same day, however, we affirmed only that part of the judgment of the Circuit Court for Harford County which enjoined the Board of Election Supervisors of Harford County  [*256]  from placing on the ballot the proposed amendments regarding adequate facilities standards and standing in zoning cases. Consequently,  [***26]  we dispose of the remaining portion of that judgment as follows: 
IN NO. 104, THE ORDER OF THE CIRCUIT COURT FOR HARFORD COUNTY DISMISSING AS MOOT THE  [**759]  ACTION FILED BY THE FRIENDS OF HARFORD COUNTY IS AFFIRMED; SO MUCH OF THE DECLARATORY JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY THAT RELATES TO THE ISSUE OF WHAT IS PROPER CHARTER MATERIAL IS AFFIRMED; THAT PORTION OF THE DECLARATORY JUDGMENT THAT ADDRESSES THE STANDING OF THE FRIENDS OF HARFORD COUNTY IS VACATED. 

2 of 37 DOCUMENTS 

CHARLES F. O'DONNELL, M.D. et al. v. CARL J. SARDEGNA et al. 

No. 138, September Term, 1993 

COURT OF APPEALS OF MARYLAND 

336 Md. 18; 646 A.2d 398; 1994 Md. LEXIS 111 

August 25, 1994, Filed 

PRIOR HISTORY:
 [***1]  Appeal from the Circuit Court for Baltimore County pursuant to certiorari to the Court of Special Appeals. John F. Fader, II, JUDGE 

DISPOSITION:
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANTS.  

COUNSEL:
ARGUED BY Abraham A. Dash of Bowie, MD (Jon W. Brassel, Brassel & Baldwin, all on brief, all of Annapolis, MD; Stephen J. Nolan, Nolan, Plumhoff & Williams, Chtd., all on brief) all of Towson, MD, FOR APPELLANT.

ARGUED BY George Beall (Stephen J. Immelt, James J. Benjamin, Jr., Hogan & Hartson, * Attorneys for appellees William A. Beasman, Jr.; Barry Bosworth; J. Owen Cole; Dan A. Colussy; M. Thomas Goedeke, Ed.D., Frank A. Gunther, Jr.; John D. Jeffries; and Albin O. Kuhn. * all of Baltimore, MD) all on brief FOR APPELLEE.

ARGUED BY Jeffrey B. Maletta * (Kirkpatrick & Lockhart, all of Washington, D.C.; Richard C. Burch, Mudd, Harrison & Burch, all of Towson, MD; John E. Sandbower, III, Phillips P. O'Shaughnessy, Sandbower, Gabler & O'Shaughnessy, P.A., all of Baltimore, MD; Robert E. Scott, Jr., P.C., Semmes, Bowen & Semmes, all of Baltimore, MD; Chadbourne & Parke of New York, New York) all on briefs. 

* Specially admitted. 

JUDGES:
ARGUED BEFORE Murphy, C.J.;  [***2]  Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Bell Raker, JJ.  

OPINIONBY:
RODOWSKY 

OPINION:

 [*21]   [**399]  Opinion by Rodowsky, J.

The plaintiffs in this case (Plaintiffs) are subscribers to health services insurance plans offered by a nonstock, nonprofit corporation. They sued, on behalf of the corporation, former officers and certain of the corporation's then present directors. Because no Plaintiff is a director or member of the corporation, no Plaintiff has standing to bring this derivative action.
The corporation is Blue Cross and Blue Shield of Maryland, Inc. (BCBSM). It is a Maryland nonstock corporation that resulted from the 1984 consolidation of Blue Cross of Maryland, Inc. and Blue Shield of Maryland, Inc. The articles of consolidation are the original form of the charter of BCBSM. The first of the purposes for which BCBSM was formed, as recited in the charter, is:
"(1) To establish, operate and maintain a non-profit health service plan as authorized by Subtitle 20 of Article 48A of the Annotated Code of Maryland and any and all amendments thereto, whereby hospital, medical, dental and other health care is provided by hospitals, physicians, dentists and other providers to persons who become [***3]  subscribers to such plan, so that such health care and service may be obtained at a minimum cost and expense." 
The charter further provides that "there shall be no capital stock of the Corporation and it shall be operated as a non-profit organization." That basic document identifies by name the initial directors of BCBSM and provides that "the Directors of the Corporation shall also constitute the members of the Corporation and, when meeting as Directors, may exercise the rights and powers of members." Upon the dissolution of BCBSM its remaining assets, per the charter, "shall be used exclusively for the benefit of or distributed to organizations entitled to exemption from federal income taxes under Section 501(c) of the Internal Revenue Code ...."

 [*22]  The reference to Subtitle 20 in the purposes section of the BCBSM charter is to the Maryland Insurance Code subtitle on "Nonprofit Health Service Plans," which governs BCBSM. References in this opinion to the Insurance Code will be to Maryland Code (1957, 1991 Repl. Vol.), Art. 48A, unless otherwise indicated. Article 48A, §  355(b)(6), part  [**400]  of Subtitle 20, deals with the reserves of nonprofit health service plans. Under that section [***4]  the Insurance Commissioner of Maryland (the Commissioner), after determining that reserves are excessive, may order the insurer to submit a plan for distribution of the excess reserves to subscribers covered at the time distribution is made. n1 Nonstock corporations are governed by Md. Code (1975, 1993 Repl. Vol.), § §  5-201 through 5-208 of the Corporations and Associations Article (CA). But, CA §  5-201 states that

n1 Article 48A, §  355(b)(6) in relevant part reads:

"If the Commissioner determines after a hearing that the reserves are excessive in amount, he may order the corporation to submit a plan for distribution of the excess in a fair and equitable method, or in the event the corporation fails to submit such a plan within 60 days, he may compile a plan and order the corporation to implement it. The distribution shall be made only to subscribers who are covered by the corporation at the time distribution is made. Reserves equal to 2 months of the nonprofit health service plan's prior calendar year's claims and operating expenses shall be considered reasonable."

 [***5]  

"the provisions of the Maryland General Corporation Law apply to nonstock corporations unless:
(1) The context of the provisions clearly requires otherwise; or

(2) Specific provisions of [the nonstock corporations] subtitle or other subtitles governing specific classes of corporations provide otherwise."
In the instant matter Plaintiffs do not contend that the Insurance Code, the CA Article, or a combination of both, prohibit BCBSM from limiting its membership to its directors, or from utilizing a self-perpetuating method for electing directors. 
 [*23]  The present litigation is the direct result of an investigation of BCBSM by the staff of the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs of the United States Senate. The Senate staff report was made public on September 24, 1992, the first day of hearings conducted by the Subcommittee regarding BCBSM. That report concluded that BCBSM suffered from poor management. 
From 1985 to 1992 the president and CEO of BCBSM was Carl J. Sardegna (Sardegna) who, in 1986, also became chairman of the board of directors of BCBSM (the Board). At a Board meeting on October 8, 1992, an outside director replaced Sardegna [***6]  as chairman of the Board. The Board also appointed a special review committee of five directors to review operations and policies. At the Board meeting of December 4, 1992, the chairman produced Sardegna's resignation which the Board unanimously and immediately accepted. Prior to his resignation, Sardegna had terminated as BCBSM officers four persons later named as defendants in the instant action. Fred M. Gloth, Jr. (Gloth), also sued in this action, was a senior vice president and general counsel. He retired in February 1993.

Counsel for the Plaintiffs, by letter of March 4, 1993, made demand on BCBSM to bring action to recover losses caused by alleged mismanagement in certain areas of the corporation's activities. The Attorney General of Maryland on March 23, 1993 wrote to the Chairman of the Board expressing the view that the Board was compelled to make "a thorough and thoughtful examination" of the "misconduct" referred to by Plaintiffs' counsel and in the Senate staff report. At its meeting on March 25, 1993, the Board appointed a special committee to investigate possible claims of gross mismanagement and breach of fiduciary duties, and the Board authorized the employment  [***7]  of special counsel. 
The instant action was commenced on March 31, 1993. Among those named as defendants were two of the three members of the special committee of the Board. Consequently, at the Board meeting of April 12, those two directors were [*24]  replaced, as committee members, by two directors who were neither BCBSM employees nor members of the Board during the period 1985 through 1992 that was involved in the allegations of the Plaintiffs' complaint. That committee, known as the Special Litigation and Indemnification Committee (SLIC), was authorized to investigate and to decide on behalf of  [**401]  BCBSM whether to pursue claims raised by, or related to, the Plaintiffs' allegations. n2 

n2 For a case involving appointment by a corporate board of directors of a special litigation review committee, see Rosengarten v. Buckley, 613 F. Supp. 1493 (D. Md. 1985). 

The Plaintiffs ultimately stated their claims in a second amended complaint. They describe themselves as subscribers to various health service [***8]  plans offered by BCBSM. n3 The defendants are Sardegna, Gloth, eight members of the Board as constituted when the second amended complaint was filed, the four former officers whose employment had been terminated, Booz-Allen & Hamilton, Inc., a consulting firm (Booz-Allen), and one of Booz-Allen's officers. 

n3 The one exception to this statement is the lead Plaintiff, Dr. Charles F. O'Donnell, who is covered by Medicare which is administered by BCBSM. Because Dr. O'Donnell's interest in BCBSM is even more remote than that of the subscriber Plaintiffs, our discussion of standing on the part of the Plaintiffs refers only to the subscriber Plaintiffs.

The Plaintiffs allege waste of corporate assets in perquisites, salaries, and bonuses. They allege millions of dollars of losses resulting from the formation and operation of a finance company as a subsidiary of BCBSM. They allege further losses in the millions of dollars from the formation and operation of another subsidiary engaged in a medical credit card business and  [***9]  in making and servicing loans to medical providers. They allege further losses of millions of dollars in connection with the attempted development of a claims processing computer system known as CARE. The Plaintiffs aver that the Booz-Allen defendants, together with BCBSM's former officers, concealed from the Board and from the public a Booz-Allen report concluding that expenditures for CARE were nearly triple the original $ 9 million estimate, that the [*25]  costs of operating the system would exceed the cost of the existing system by a factor of two or three, and that the benefits of CARE were impossible to measure. The Plaintiffs recycle their factual allegations relating to the above-described subjects under the labels of various torts and breaches of fiduciary duties. The damages sought in each of the fifteen counts of the second amended complaint are to be paid to BCBSM. 
In a section of the second amended complaint that presents general background facts under the heading, "Maintainability of the Action on Behalf of BCBSM," paragraphs 26 and 27 allege the following:
"26. The Plaintiffs are seeking an accounting and damages from members of the Board of Directors and Officers of BCBSM [***10]  for corporate waste, breach of fiduciary duty, breach of implied contract, unfair trade practices, and gross negligence and gross mismanagement. Plaintiffs contend that because a majority of BCBSM's present Board members themselves have participated in many acts of waste and gross negligence and mismanagement, a demand upon the Board, itself, to commence this action would be futile." 
"27. It is further alleged that contrary to the corporate mission set forth in the BCBSM Charter to provide health care and service at a minimum cost and expense, the Defendant Directors and Officers grossly misdirected corporate assets and resources causing substantial damages to this public trust company and its subscribers."

Pursuing the same theme, paragraph 28 alleges that the purpose of the charter in a nonstock, nonprofit corporation such as BCBSM is to protect the interests of the subscribers from the persons who control the corporation, so that there is an implied contract under which the directors and officers are "to conform to and fulfill the charter mission ...." 
The defendants moved to dismiss asserting, inter alia, a lack of standing. The circuit court stayed the action until [***11]  the [*26]  SLIC reported. That report was completed on October 28, 1993. 
The SLIC concluded:

1. Booz-Allen made misrepresentations to the Board relating to CARE, and BCBSM would institute suit against  [**402]  Booz-Allen. n4 

n4 That suit was filed in a Maryland circuit court and removed to federal court. Booz-Allen has counterclaimed, alleging that BCBSM withheld information from Booz-Allen. The suit was pending at the time of oral argument.

2. BCBSM would sue Gloth to recover an allegedly unauthorized bonus.
3. Although Sardegna and Gloth "made serious errors of judgment and demonstrated a profound lack of diligence and candor in their relations with the Board," that conduct did "not warrant a direct action for monetary recovery." The conduct, however, furnished "independent grounds for the Board's previous decision to deny [their] claims for payment of more than $ 5 million under their supplemental executive retirement plans."
4. The Plaintiffs' other claims "have no merit under applicable legal standards."

The fourth conclusion [***12]  resulted from applying two levels of evaluation. The SLIC first considered whether the conduct of BCBSM's officers and directors in the challenged activities was actionable. In any instance in which the conduct arguably might be considered actionable, the SLIC concluded that the conduct did not amount to "active and deliberate dishonesty ... material to the cause of action," as required under a limited liability provision added to BCBSM's charter in April 1988. n5 

n5 The validity of the limited liability provision is challenged by the Plaintiffs, but we do not reach that issue.

Pursuant to the SLIC determination, BCBSM intervened in the instant action as a defendant. It moved for summary judgment, filing as exhibits the SLIC report and all of its [*27]  underlying documentation. BCBSM joined with the other defendants in advancing lack of standing as a ground for dismissal.
The circuit court concluded that the Plaintiffs had no standing and entered judgment in favor of the defendants. The Plaintiffs appealed, and this Court [***13]  on its own motion issued the writ of certiorari before consideration of the matter by the Court of Special Appeals.
I
From Plaintiffs' brief-in-chief we distill two theories for their standing. First, they argue that they should be allowed to bring a derivative action. They assert that there are similarities between their "equitable interest" in BCBSM's corporate assets and the interest of stockholders in a stock company's assets, Appellants Brief at 17, and that there is a trend in case law "to expand the concept of standing to achieve equitable results." Id. at 20. Second, they argue that they have standing as private attorneys general, because BCBSM is a "quasi-public agency which serves a public function, ... its financial stability impacts every citizen of Maryland," and because they are plaintiffs of last resort. Id. at 26. 
In their reply brief, however, Plaintiffs state that the "derivative form itself is not asserted as a basis for standing." Rather, they have "sought the use of the derivative action to achieve equitable results." Reply Brief at 9-10. Their asserted standing is

"premised upon three legal and equitable concepts: (1) the right of individuals to  [***14]  seek redress for a public wrong when those individuals have demonstrated some kind of special damage ...; (2) the right of individuals to seek redress for damages based upon statutory and fiduciary duties ...; and (3) the right of individuals to act as Private Attorneys General when such individuals become the only remaining party of interest who can or are willing to assert their rights and protect the public interest."

 [*28]  Id. at 1 (citations omitted). We interpret the Plaintiffs' arguments to include a request for expansion of the law of standing if their claims are not embraced by the existing law.
The defendants argue that members of a nonstock corporation are the legal equivalent of stockholders in a stock corporation, and that no one whose interest is more remote than that of a member should be granted standing to sue derivatively on behalf of a nonstock corporation. The defendants view the Plaintiffs essentially as customers, because  [**403]  (1) they have no equity interest in BCBSM's long term success, and (2) lacking any voting power, they have no say in corporate governance. Rather, Plaintiffs have disparate, personal goals that may conflict with those of BCBSM.

II
Under [***15]  conventional legal analysis the claims alleged in the second amended complaint may be maintained by the Plaintiffs only if they have standing to maintain a derivative action. The alleged wrongs described in the complaint clearly are suffered directly by BCBSM and only indirectly by its subscribers. 
Attempting to demonstrate that they have a special interest in BCBSM's assets, Plaintiffs point to Art. 48A, §  355(b)(6) under which there might be a distribution to BCBSM's subscribers if certain conditions are met, including a determination by the Commissioner that the insurer's reserves are excessive. That is not the state of facts for the years involved in the complaint. In any event, shareholders in a stock corporation may not sue in their own right to recover damages for an injury to the corporation. "Although [the injury] may diminish the value of the capital stock, [it] is not primarily or necessarily a damage to the stockholder, and hence the stockholder's derivative right can be asserted only through the corporation." Waller v. Waller, 187 Md. 185, 189, 49 A.2d 449, 452 (1946). See also Tafflin v. Levitt, 92 Md. App. 375, 381, 608 A.2d 817, 820, [***16]  cert. denied, 328 Md. 447, 614 A.2d 974 (1992) (depositors of defunct savings and loan did not have [*29]  standing to sue directly and individually to recover from former officers and directors, where they alleged no special damage not common to other depositors). The relationship of BCBSM to Plaintiffs is even more remote than that of a stock corporation to its shareholders or of a defunct savings and loan association to its depositors. Consequently, Plaintiffs may not sue on their own behalf. The issue here is whether Plaintiffs may sue derivatively.
III
In approaching resolution of the issue we have considered whether Plaintiffs might be classified as members of a consumer cooperative, or as insureds in a mutual insurance company. We conclude that they are neither.
A
At oral argument, Plaintiffs placed some emphasis on an analogy between BCBSM and a cooperative. In Parish v. Maryland & Virginia Milk Producers Ass'n, 250 Md. 24, 242 A.2d 512 (1968) (Parish I), we held that members of the Maryland and Virginia Milk Producers Association could bring a derivative action against the association's [***17]  former directors, its auditor, and two former employees. The association was organized as a "farm cooperative" under former Md. Code (1957), Art. 23, § §  349 through 377, the predecessor provisions to current CA § §  5-501 through 5-532. The members of the association each had one vote on all issues voted upon at membership meetings. 250 Md. at 91, 242 A.2d at 549. The opinion in Parish I did not expressly address why a member of a cooperative has standing to sue derivatively. 
Parish v. Maryland & Virginia Milk Producers Ass'n, 261 Md. 618, 277 A.2d 19, cert. denied, 404 U.S. 940, 92 S. Ct. 280, 30 L. Ed. 2d 253 (1971) (Parish II), discussed whether the chancellor had applied the correct standard of care after the remand in Parish I. In that connection this Court stated, "In dealing with the question whether the appellants lacked standing to maintain this action the chancellor thought there was a [*30]  'fiduciary relationship subsisting between the members and the Association as a result of the consignment to the Association of their [***18]  produce.'" 261 Md. at 680, 277 A.2d at 48.
Currently, there are four subtitles in the "Special Types of Corporations" title of the CA Article that provide for cooperatives: Subtitle 5, entitled "Agricultural Cooperatives," § §  5-501 through 5-532; Subtitle 5A, "Maryland Consumer Cooperative Act," § §  5-5A-01 through 5-5A-30; Subtitle 6, "Electric and Transportation Cooperatives,"  [**404]  § §  5-601 through 5-602, and Subtitle 6B, "Maryland Cooperative Housing Corporation Act," § §  5-6B-01 through 5-6B-20. This Court has previously noted, in tracing the history of Art. 48A, Subtitle 20, that "health service plans were originally like a consumer cooperative which arranged prepaid health care for its members with hospitals or physicians ...." Insurance Comm'r v. Blue Shield of Maryland, Inc., 295 Md. 496, 505, 456 A.2d 914, 919 (1983). 
Under the Maryland Consumer Cooperative Act a consumer cooperative is a corporation, converted or organized under CA Title 5, Subtitle 5A, "which operates or intends to operate on a cooperative basis for the mutual benefit of its members, subscribers, and patrons and conforms [***19]  to this subtitle." CA §  5-5A-02(b)(1). In that statute "subscriber" means one who is "eligible for membership and legally obligated to purchase a share or shares of, or membership in, the cooperative in accordance with its bylaws." §  5-5A-02(k). In a §  5-5A-02(b) consumer cooperative, each member must have one vote. See §  5-5A-02(c)(1) and §  5-5A-20(a) and (b). n6 The Plaintiffs in the case before us are not members of BCBSM, have no right to vote, and have no control over the corporation, even if it is operated for the benefit of the subscribers. 

n6 An exception in the cited sections for a federated cooperative is not relevant to the instant matter.

A leading writer on cooperatives considers substantially equal control by the members as an element in a general definition of a cooperative. See I. Packel, The Organization [*31]   and Operation of Cooperatives 2 (1970). In First Fed. Sav. & Loan v. East End Mut. Elec. Co., Ltd., 112 Idaho 762, 735 P.2d 1073 (Idaho Ct. App. 1987), [***20]  the court adopted Packel's definition (a cooperative "is 'an association which furnishes an economic service without entrepreneur profit and which is owned and controlled on a substantially equal basis by those for whom the association is rendering service.'"). Id. at 1075.
The court in Ozark Border Elec. Coop. v. Stacy, 348 S.W.2d 586, 587 (Mo. Ct. App. 1961), emphasized the following features of a cooperative:

"As enumerated in Greene County Rural Electric Cooperative v. Nelson, 234 Iowa 362, 12 N.W.2d 886, 888(2), '"(t)he basic legal and economic principles of the cooperative scheme are limitation upon the voting power and restrictions upon alienation of voting stock or membership interests, thus preserving the dispersion of control and keeping the control within the class affected; limiting the use of proxies, thus fixing the responsibility upon the co-operators; the limitation of earnings upon invested capital, thus insuring the non-profit character of the scheme; and the distribution of earnings or savings upon a patronage basis, that is, according to the quantity or value of products [***21]  marketed through the association by the respective members."'"

(Emphasis added).
Another court has said that "broadly speaking, a cooperative is a corporation organized for the purpose of rendering economic services, without gain to itself, to shareholders or members who own and control it." United Grocers, Ltd. v. United States, 186 F. Supp. 724, 733 (N.D. Cal. 1960), aff'd, 308 F.2d 634 (9th Cir. 1962). This is also the first definition that appears in Black's Law Dictionary (5th ed. 1979).
Thus in the matter at hand, the attempted analogy between BCBSM subscribers and the members of a cooperative fails.
 [*32]  B
We have also considered, sua sponte, whether BCBSM could be classified as a mutual insurer. There is authority recognizing the standing of a policyholder in a mutual insurance company to sue derivatively the company's officers and directors. See Rowen v. LeMars Mutual Ins. Co. of Iowa, 230 N.W.2d 905 (Iowa 1975); Pathfinder Life Ins. Co. v. Livingston, 140 Neb. 354, 299 N.W. 537 (1941); Amabile v. Lerner, 64 N.J. Super. 507, 166 A.2d 603 (N.J. Super. Ct. Ch. Div. 1960), [***22]  aff'd, 74 N.J. Super. 443,  [**405]  181 A.2d 520 (1962). Cf. Clifford v. Metropolitan Life Ins. Co., 264 A.D. 168, 34 N.Y.S.2d 693 (1942) (standing assumed). 
Mutual insurers in Maryland are governed mainly by Art. 48A, Subtitle 17, "Stock and Mutual Insurers," and by CA Subtitle 5, "Insurance Companies," of Title 6, "Regulated Finance and Insurance Corporations," § §  6-501 through 6-513.
Article 48A, §  248 defines a "mutual insurer" as "an incorporated insurer without capital stock ... the governing body of which is elected as provided in this article." Section 250 provides that every domestic insurer is "subject to the provisions of" CA Title 6, Subtitle 5.
CA §  6-501 defines "mutual insurer" as "an incorporated insurer without capital stock, the governing body of which is elected as provided in this subtitle." Each policyholder of a domestic mutual is a "member." §  6-506(a). Each member is entitled to one vote, unless the bylaws provide for a different number of votes based on the insurance in force, the number of policies held, or the amount of premium paid. §  6-507(a). "Under any group policy,  [***23]  only the policyholder shall be a member of the mutual insurer entitled to vote at the meetings of the mutual insurer." §  6-507(b). 
For at least the reason that the subscribers to BCBSM do not vote to elect the governing body of the nonstock corporation, it is not a mutual insurer under Maryland law. 
 [*33]  IV
Inasmuch as Plaintiffs are neither members of a cooperative nor insureds in a mutual insurance company, their asserted standing seemingly must rest on the status of subscribers to health service plans issued by a nonstock, nonprofit corporation that is regulated under Subtitle 20 of Art. 48A. In this Part IV we consider how decisions applying corporation law bear on that issue.
The issue is brought into excellent focus by Professor Deborah DeMott in Shareholder Derivative Actions §  2:04, at 22 (Supp. 1993). That commentator states:
"Not-for-profit corporations have been characterized as corporate 'Cinderellas,' as the 'neglected stepchildren of modern organization law,' relegated to the hand-me-downs of their half-siblings, for-profit business organizations. Statutory neglect or inattention is probably the best explanation for the predicament of a member of a not-for-profit corporation [***24]  who believes its affairs to be mismanaged by its directors. Most states do not permit a member of a not-for-profit to sue derivatively on its behalf. Thus, the member either must persuade the corporation's directors to take action on its behalf--which they are unlikely to do if they are the cause of the mismanagement--or must persuade the state's attorney general, typically the state official charged with protecting the interests of not-for-profit corporations and charitable trusts, to pursue his complaint. If neither of these courses is successful, the member's grievance goes unanswered."

(Footnotes omitted).
According to the same author:
"Cases in a few jurisdictions, in the absence of express statutory authorization, have also permitted members to sue on behalf of not-for-profit corporations. The general rule, however, is that only the attorney general has standing to sue in the event of a breach of fiduciary duty by a not-for-profit or its officers or directors or claims of corporate [*34]  mismanagement, just as nonmember beneficiaries lack standing to litigate such claims."

Id. at 24 (footnotes omitted).

This Court has recognized a derivative action by a member of a nonstock [***25]  corporation. See Parish I and Parish II. n7 Further, CA  [**406]  §  1-403, dealing with the defense of ultra vires, recognizes in subsection (c) that "lack of corporate power or capacity may be asserted ... in a representative suit brought by a stockholder against its present or former officers or directors." Throughout the CA Article "'stockholder' ... includes a member of a corporation organized without capital stock." CA §  1-101(t). Of course, the hurdle that the Plaintiffs must clear is that they are not members of BCBSM.

n7 Cases from other jurisdictions in which courts have entertained derivative suits by a member of a nonstock, nonprofit corporation include Beard v. Achenbach Memorial Hosp. Ass'n, 170 F.2d 859 (10th Cir. 1948); Goodman v. Perpetual Bldg. Ass'n, 320 F. Supp. 20 (D.D.C. 1970) (unincorporated association); Wickes v. Belgian Am. Educ. Found., Inc., 266 F. Supp. 38 (S.D.N.Y. 1967); Denckla v. Independence Found., 41 Del. Ch. 247, 193 A.2d 538 (Del. 1963); Kirtley v. McClelland, 562 N.E.2d 27 (Ind. Ct. App. 1990) (condominium unit owners association); Valle v. North Jersey Auto. Club, 141 N.J. Super. 568, 359 A.2d 504 (1976), aff'd as modified, 74 N.J. 109, 376 A.2d 1192 (1977); Hannewald v. Fairfield Communities, Inc., 651 S.W.2d 222 (Tenn. Ct. App. 1983) (residential community property owners association); and Bourne v. Williams, 633 S.W.2d 469 (Tenn. Ct. App. 1981) (same).

 [***26]  
Derivative suit standing of nonmembers was involved, but not decided, in United Wire, Metal & Mach. Health & Welfare Fund v. Board of Sav. & Loan Ass'n Comm'rs, 316 Md. 236, 558 A.2d 379 (1989). The issue in that case was whether the court that was conducting the receivership of a savings and loan association abused its discretion in authorizing the corporate receiver's release of claims against the officers and directors of the private corporation that had insured accounts in the savings and loan. The release was part of the settlement of an action brought by the receiver, in its capacity as successor by merger to the insurer, against former officers and directors of the insurer. The plaintiff, a depositor in the savings and loan, argued that the receiver should have sued in its capacity as receiver, that is, that the receiver, as a customer [*35]  of the insurer, should have sued the insurer's officers and directors on behalf of the insurer corporation. Id. at 242-44, 558 A.2d at 381-83. We held that the receivership court did not abuse its discretion for a variety of reasons. Among them was that [***27]  the receiver "would have failed in its responsibilities as a State agency to the taxpaying public" if it had "turned its back on the well recognized legal theory actually asserted and undertaken to sue on the more uncertain theory of the case advocated by" the depositor. Id. at 247, 558 A.2d at 384.
A relative handful of cases have arisen in which a nonmember has attempted to bring a derivative action on behalf of a nonprofit corporation. With but one possible exception that our research has disclosed, the cases hold that nonmembers have no standing. Chambrella v. Rutledge, 69 Haw. 271, 740 P.2d 1008 (1987), is illustrative. Unity House, a nonprofit corporation, was chartered as a benevolent and fraternal organization of members and friends of the American Federation of Labor (AFL) in Hawaii, and also to provide suitable quarters for meetings, recreation, and education of members of Unity House and their families. The plaintiffs were members of AFL locals in Hawaii. Id. at 1010. Those locals had contributed substantially to the Unity House project, but the plaintiffs were not formally members [***28]  of the nonprofit corporation. Id. at 1011-12. Their claim on behalf of Unity House against its president for waste and conversion of corporate assets was dismissed by the trial court for lack of standing. Id. at 1012. That holding was affirmed. The appellate court, however, gave the plaintiffs an opportunity to attempt to proceed in their own right. Id. at 1016-17.
Leeds v. Harrison, 7 N.J. Super. 558, 72 A.2d 371 (1950), was a derivative action against the officers and directors of the incorporated branch of the Young Women's Christian Association in Atlantic City. The action was brought both by member and nonmember plaintiffs, alleging that the defendants were operating the corporation in violation of its purposes in a number of respects. 72 A.2d at 373-74. The court held that "the member plaintiffs have a legal right to question in this [*36]  court the conduct of the business of the corporation by defendants in the particulars alleged, to ascertain whether there resulted a violation of their contractual rights or the fiduciary relationship." Id. at 380. The plaintiffs who were merely [***29]  contributors to the charitable corporation or who were nonmembers had no standing. Citing New Jersey cases, the court held that "a member of the public has no standing to question the administration of a charitable trust." Id. The nonmember plaintiffs, however, were allowed an opportunity to obtain the participation of the Attorney General of New Jersey. Id.
 [**407]  In Massachusetts, the assertion of claims of mismanagement against the board of a charitable corporation is considered to be exclusively the province of the attorney general so that even members of the corporation may not sue derivatively. See Lopez v. Medford Community Center, Inc., 384 Mass. 163, 424 N.E.2d 229 (1981). In Pennsylvania, the parent of a player on a team in a youth baseball league, organized as a nonprofit corporation, had no standing to sue that entity. Keranko v. Washington Youth Baseball, Inc., 136 Pa. Commw. 709, 584 A.2d 1082 (1990). n8 A Georgia case involved students enrolled in a private college, incorporated as a charitable corporation. They had no standing to sue the board of trustees for alleged [***30]  waste in contracting to sell land owned by the college, inasmuch as the students' relation to the college was "essentially contractual in character." Miller v. Alderhold, 228 Ga. 65, 184 S.E.2d 172, 174 (1971). n9 

n8 The court in Keranko did not reach the merits of whether the league's failure to include the plaintiff's son on the league all- star team gave rise to a cause of action. 
n9 A contrary result, on different reasoning, was reached in Jones v. Grant, 344 So. 2d 1210 (Ala. 1977). There members of the faculty, staff and student body of a college brought a class action against the president and members of the board of directors alleging misuse of funds supplied by the federal government, a church, and students. The court classified the institution as a charitable trust of which the students, staff and faculty were beneficiaries, and the court ruled that the Attorney General of Alabama was not the exclusive potential plaintiff. Id. at 1212. There is no contention in the instant matter that BCBSM is a charitable trust of which the Plaintiffs are charitable beneficiaries.

 [***31]  
 [*37]  Basich v. Board of Pensions of the Evangelical Lutheran Church in America, 493 N.W.2d 293 (Minn. Ct. App. 1992), arose out of a dispute over investment in companies doing business in South Africa during apartheid. The Evangelical Lutheran Church of America (ELCA), a nonprofit corporation, had established a separate nonprofit corporation, the Board of Pensions of ELCA. Members of ELCA were the persons selected to serve on the Churchwide Assembly, and the Pension Board's articles of incorporation stated that it had no members with voting rights. n10 Id. at 294. The investment limitation was challenged, as a breach of duty on the part of the Pension Board, by three ministers who participated in the pension plan. Dismissal of the suit was affirmed. "Because appellants were not members of the corporations, they lack standing to bring a derivative suit." Id. at 296. 

n10 Although the opinion is silent on this aspect of the facts, we assume that directors of the Pension Board were either self-perpetuating or were persons elected or selected to fill designated positions in ELCA or in the Churchwide Assembly.

 [***32]  
A trial court decision in New York permitted nonvoting members of a membership corporation to sue derivatively. Atwell v. Bide-A-Wee Home Ass'n, 59 Misc. 2d 321, 299 N.Y.S.2d 40 (N.Y. Sup. Ct. 1969). The corporation apparently operated an animal shelter, and the individual defendants allegedly were destroying animals not incurably ill. According to the bylaws only "executive" and "life" members could vote in the corporation, but other classes of contributors, although not entitled to vote, were denominated as members. 299 N.Y.S.2d at 42. Some of the plaintiffs qualified for the latter categories, and the court held that that sufficed for standing. Id. at 43. In BCBSM, by contrast, the Plaintiffs not only have no vote, they have no membership.
The sole case to which we have been cited that tends to support the Plaintiffs' position is the litigation before Judge Gesell in the United States District Court for the District of [*38]  Columbia reported in Stern v. Lucy Webb Hayes Nat'l Training School for Deaconesses & Missionaries, 367 F. Supp. 536 (D.D.C. 1973) (Stern   [***33]  I), and in 381 F. Supp. 1003 (D.D.C. 1974) (Stern II). Former patients sued the officers and directors of a nonprofit hospital, alleging, inter alia, that they had allocated the hospital's financial services business among themselves. In Stern I the court permitted the action to proceed on the theory that the plaintiffs "'have a sufficient special interest to challenge the conduct of the trustees operating this charitable institution on a theory of breach of trust.'" 367 F. Supp. at 540 (quoting earlier ruling by the same court). The court said that the "plaintiffs unquestionably may proceed on  [**408]  behalf of all patients to press for appropriate injunctive relief and possibly an award of damages to be paid into the Hospital's funds ...." Id. 
After trial on the merits, the court recognized in Stern II that

"the modern trend is to apply corporate rather than trust principles in determining the liability of the directors of charitable corporations, because their functions are virtually indistinguishable from those of their 'pure' corporate counterparts."

381 F. Supp. at 1013. One difference [***34]  is that

"[a] trustee is uniformly held to a higher standard of care and will be held liable for simple negligence, while a director must often have committed 'gross negligence' or otherwise be guilty of more than mere mistakes of judgment."

Id. The defendants in Stern had violated the less onerous standard of care by totally abdicating their responsibilities as directors and by permitting two hospital administrators to operate the facility unchecked. No monetary relief was granted, however, although certain disclosure procedures were ordered to be followed. Id. at 1018-21.
The principal significance of Stern for present purposes is that, after the court shifted its duty analysis from the trust model to the corporation model, it never reconsidered whether the patients had standing to sue. 
 [*39]  The meaning of Stern became involved in aspects of Christiansen v. National Sav. & Trust Co., 221 U.S. App. D.C. 179, 683 F.2d 520 (D.C. Cir. 1982). The plaintiffs, federal employees, subscribed to health insurance plans available to them, pursuant to a contract with the federal government, through,  [***35]  inter alia, Group Hospitalization, Inc., a nonprofit corporation which was the Washington, D.C. representative of the Blue Cross Association. The plaintiffs complained that their premiums were not properly invested. Id. at 521. Directors of Group Hospitalization were joined with it and others as defendants, but the theory of the claim was that a trust relationship existed directly between plaintiffs and defendants and not that the plaintiffs sued in the right of Group Hospitalization. Id. at 528. The trial judge in Christiansen "had considerable difficulty" with Stern on issues of duty and standing, and that judge treated "the Stern decision as constituting 'novel precedent' and as representing the 'outer limits of the imposition of liability on directors of non-profit corporations on trust theory grounds.'" Id. at 527. The district court in Christiansen concluded that Stern "considered that someone ought to be able to enforce the [directors'] duties in litigation, and if the patients could not, there was no one else." Id. at 528. The appellate court in Christiansen was not required to express its view on that analysis because the Christiansen [***36]  plaintiffs were not seeking to enforce fiduciary duties owed by the directors of Group Hospitalization to that corporation. Id. at 529. On the merits the court held that the various contractual relationships under the federal government's health insurance program did not create an express trust or fiduciary duties running directly from the defendants to the plaintiffs.
The Stern argument resurfaced in an action that is the fraternal, if not identical, twin of the action before us, and that recently has been decided by the Superior Court of the District of Columbia. In Lazarte-Rodriguez v. Gamble, No. 93-CA3973 (D.C. Sup. Ct. June 8, 1994), the plaintiffs were subscribers under plans of the merged Blue Cross and Blue Shield companies in the District of Columbia, and they sued officers and directors of that insurer on behalf of the corporation.  [*40]  The action was dismissed for lack of standing. Three points stand out in the trial judge's written opinion:

."Courts have not recognized an ... 'equitable member' doctrine." Id. slip op. at 5.
."There is no statutory authority to support plaintiffs' proposition that customers of a nonprofit corporation are members and thus [***37]  may maintain a derivative action." Id.
.In Christiansen the court "examined both Stern opinions and concluded that they provided no reasoned basis for concluding that the [directors] owed a fiduciary duty to the patients." Id. slip op. at 7.
In sum, there is no statutory authorization or judicial precedent directly supporting the  [**409]  standing of the Plaintiffs to bring a derivative action on behalf of BCBSM. 
IV
The position advocated by the Plaintiffs is not without support in legal literature on nonprofit corporations. But the issue of whether any, and if so which, nonmembers of which nonstock, nonprofit corporations should be able to sue officers and directors on behalf of the corporation is only part of a much larger and more complex picture. To describe the larger problem we draw on Professor Henry B. Hansmann's extensive article, Reforming Nonprofit Corporation Law, 129 U. Pa. L. Rev. 497 (1981) (Hansmann). 
"The basic corporate law applicable to nonprofit organizations is at a remarkably immature state of development, and remains startlingly uninformed by either principle or policy." Hansmann at 500. Hansmann considers the "defining characteristic [***38]  of a nonprofit organization" to be the prohibition on the distribution of profits "to individuals who exercise control over it, such as its directors, officers, or members." Id. at 501. This he calls the "'nondistribution constraint.'" Id. The author attempts generally to classify corporations subject to the nondistribution constraint according to their sources of income and according to the way in which they are controlled.  [*41]  Id. at 502. There are "organizations that receive the bulk of their income from relatively unrestricted donations and contributions," and there are those that "obtain most of their income from prices charged for goods or services they produce." Id. Hansmann calls "the individuals who are the ultimate source of" the income of either class "patrons" of the organization. Id. There are organizations subject to the nondistribution constraint that are controlled by their patrons, and there are those that are not. Id. at 503. These general groupings encompass organizations as varied as art museums, political clubs, country clubs and community hospitals. Id. 
After [***39]  reviewing many aspects of nonprofit corporations, Hansmann turns his attention to standing to sue and summarizes as follows:
"Because the nondistribution constraint ... is for the protection of the organization's patrons, it seems natural to provide for patrons to participate in the enforcement of that constraint by giving them a cause of action against anyone who violates it. As it is, however, the nearly universal rule is that patrons generally have no standing to bring such a suit."

Id. at 606.

Specifically addressing the member versus nonmember dichotomy, Hansmann submits that

"all patrons of a given nonprofit, just like all shareholders in a business corporation, have a similar interest in seeing that the organization, and hence they, are not defrauded by the organization's management. If anything, members are less in need of standing to sue a nonprofit's management than are nonmember patrons, because members generally have the opportunity of exercising some control over the organization's management through the exercise of voting power."

Id. at 613.
By approving Stern and Jones v. Grant, 344 So. 2d 1210 (Ala. 1977), it is apparent [***40]  that Hansmann would achieve "the objective of extending a clear grant of standing to patrons of [*42]  nonprofit organizations" by judicial, as well as by legislative, action. Hansmann at 615.
The kind of relationship that the Plaintiffs allege existed between the Board and the management of BCBSM is described in Dimieri & Weiner, The Public Interest and Governing Boards of Nonprofit Health Care Institutions, 34 Vand. L. Rev. 1029 (1981). The authors speak of the

"unfortunate situation [that] arises when either the corporation has no members or the articles of incorporation provide that the board of directors is coterminous with the corporation's membership. The absence of an effective membership means that the 'watchdog' function of shareholders, minimal though it may be, is nonexistent and that no independent group is empowered to elect the board of directors. Self-perpetuation of the existing board and the appointment of friendly successors inevitably results from this type of an arrangement.  [**410]  A self-perpetuating board of directors in turn naturally exacerbates the possibility of role reversal between management and the board, since control of the board [***41]  is more easily 'captured' when the directors need not account for their actions to a membership that elects them."

Id. at 1037 (footnotes omitted). 
Those authors, however, recommend a statutorily authorized response by members: "The right of members to bring derivative actions should be established in nonprofit corporation statutes, and the statutes should be amended to define the appropriate procedures required to maintain derivative suits on behalf of nonprofit corporations." Id. at 1065. Somewhat similarly, a commentator on North Carolina law would like to see standing for derivative suits clearly recognized in members, whether by legislation or judicial decision. See Note, The Nonprofit Corporation in North Carolina: Recognizing a Right to Member Derivative Suits, 63 N.C.L. Rev. 999, 1010 (1985). 
One of the preeminent writers on nonprofit organizations, Howard L. Oleck, addresses the problem in Nonprofit Corporations, [*43]  Organizations & Associations §  389 (4th ed. 1980), where he discusses members' derivative actions to enforce property rights. Oleck concludes:
"Admittedly,  [***42]  it is difficult to balance control and enforcement with initiative and philanthropy and still come up with a viable policing mechanism that will not stifle nonprofit growth. To this end, the only hope seems to be to either adopt a uniform nonprofit statute with enforcement sections that will work, or set up a separate policing agency not unlike what the SEC does for profit-oriented corporations."

Id. at 1150 (footnotes omitted).
We are not persuaded that standing to sue derivatively officers and directors of a nonprofit corporation should be extended to nonmembers, based on their status as contributors to the corporation or as users or buyers of its goods or services. Within the orbit of current case law the apogee is Stern, but the case before us is not as extreme factually as Stern. In addition to a self-perpetuating board, the court in Stern II considered relevant that the hospital was "not closely regulated by any public authority [and] it had no responsibility to file financial reports." 381 F. Supp. at 1019.
There was at the time of the alleged wrongs in this case, and there continues to be, considerable statutory and administrative [***43]  regulation of BCBSM. See Art. 48A, §  354(a) (incorporating into Subtitle 20 Commissioner's general enforcement powers under § §  24 and 25), §  354A-1(c) (incorporating Subtitle 15, "Unfair Trade Practices," into Subtitle 20), §  355 (Commissioner's initial approval of, inter alia, corporate structure, contracts with providers and with subscribers, of working capital and of reserves), §  356 (Commissioner's approval of changes to the foregoing and of rates), §  357 (annual statements of financial condition required), §  358 (examination of financial condition), and §  359 (limitation on investments). The Commissioner is authorized by §  360 to revoke the certificate of authority of any nonprofit health plan that "is being operated for profit or fraudulently conducted." Further, under §  358, the Commissioner has "the power of visitation"  [*44]  over such nonprofit, health service corporations. We have strongly inferred that the visitatorial power at least embraces preventing conduct that is "violative of public law or of the charter and by-laws of the corporation." Insurance Comm'r v. Blue Shield of Maryland, Inc., 295 Md. at 523, 456 A.2d at 928. [***44]  
In addition, under the general corporation law, the Department of Assessments and Taxation "may authorize the Attorney General to institute proceedings against a corporation to determine whether the corporation has abused, misused, or failed to use its powers and franchises in a manner which, in the public interest, would make proper the forfeiture of its charter." CA §  3-513(a). This Court has affirmed the forfeiture of a charter under a predecessor statute when a fraternal beneficiary society had been conducting a general insurance business. See The International Fraternal Alliance v. State, 86 Md. 550, 39 A. 512 (1898). If a nonprofit corporation is the vehicle for the execution of a trust for charitable purposes,  [**411]  then standing is conferred by statute on the State, acting by the Attorney General, or on "any person having an interest in enforcement of the trust." Md. Code (1974, 1991 Repl. Vol.), §  14-301(a) of the Estates and Trusts Article. 
Further, during the pendency of this action, the level of regulation of nonprofit health service plans was elevated by Chapter 507 of the Acts of 1993. The floor report of the House Economic Matters [***45]  Committee summarizes that "this bill increases the regulatory authority over nonprofit health service plans ...." Floor Report on H.B. 238 at 1. The legislation expands the Commissioner's regulatory control, imposes stricter solvency requirements, and regulates the selection, conduct, and retention of officers and directors. Id. at 1-5. Among the latter features of the 1993 legislation is the requirement that at least two voting members of the board of directors of such a plan be members of the general public who have no financial interest in a plan, its affiliates or subsidiaries. See Md. Code (1957, 1994 Repl. Vol.), Art. 48A, §  360A(c). Subsection (d) of new §  360A impacts on self-perpetuating boards by requiring membership terms of three [*45]  years, staggered over a three year cycle, with a maximum period of service of nine years. There is no indication in the legislative history of the 1993 legislation that the General Assembly ever considered conferring standing on subscribers of a nonprofit health service plan to sue derivatively its officers and directors.
Thus, unlike the hospital in Stern, BCBSM is not an unregulated, nonprofit corporation. Further, a judicial  [***46]  expansion of the general law of standing to permit the Plaintiffs to sue derivatively meets an obstacle in the structure of Maryland corporation law. We have seen, supra, that the subtitle of the CA Article on nonstock corporations incorporates the general corporation law, subject to certain rules of construction. See CA §  5-201. We have further seen that the general definition of stockholder in CA §  1-101(t) includes a member of a nonstock corporation. Thus, when CA §  1-403(c) recognizes a derivative action based on ultra vires conduct, it recognizes such an action brought by a stockholder plaintiff in a stock corporation or by a member plaintiff in a nonstock corporation. To acknowledge standing on the part of the Plaintiffs, who are nonmembers of BCBSM, would require a very expansive construction of the corporation statutes, or would require declaring BCBSM to be a charitable trust by judicial fiat. Either approach exponentially enlarges the class of potential plaintiffs who could assert derivative claims against officers and directors of nonstock, nonprofit corporations. 
The recommendation contained in the Revised Model Nonprofit Corporation Act (1987), approved by [***47]  the Business Law Section of the American Bar Association, is directly contrary to expanding derivative suit standing. Section 6.30(a) of the Model Act reads:
"A proceeding may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by: (i) any member or members having five percent or more of the voting power or by fifty members, whichever is less; or, (ii) any director."

 [*46]  Official comment 1 to §  6.30 of the Model Act explains that "the five percent or fifty-member test and the discretion a court has to award expenses (including counsel fees) if it finds that the suit was commenced without reasonable cause, should prevent strike suits and suits by a single or insignificant number of members." 
A number of state legislatures directly have addressed derivative suits against officers and directors of nonprofit corporations (that are not executing a charitable trust). No state has legislatively conferred standing on persons who are not public officials or members of the corporation. On the other hand, at least sixteen states have statutes acknowledging that derivative suits may be brought by a member of a nonstock, nonprofit corporation. See Cal.  [***48]  Corp. Code §  5710(b) (West 1991); Ga. Code Ann. §  14-3-741 (Michie 1994); Idaho Code §  30-3-44(1) (1993); Ill. Ann. Stat. ch. 105, para. 107.80 (Smith-Hurd 1993); Mich. Comp. Laws Ann. §  450.2491 (West 1990); Minn. Stat. Ann. §  317A.165(2) (Supp. 1994); Miss. Code Ann. §  79-11-193(1) (1989); Mont. Code Ann. §  35-2-1301(2)  [**412]  (1993); N.J. Stat. Ann. §  15A:3-5(a) (West 1984); N.Y. Not-for-Profit Corp. Law §  623(a) (McKinney 1970 & Supp. 1994); N.C. Gen. Stat. §  55A-7-40(a) (1993); Or. Rev. Stat. §  65.174(1) (1993); 15 Pa. Cons. Stat. Ann. §  5717 (1994); Tenn. Code Ann. §  48-56-401(a) (1988); Wis. Stat. Ann. §  181.295(a) (West 1992); Wyo. Stat. §  17-19-630(a) (1993). Of these states that acknowledge derivative suits by members, nine states (Georgia, Idaho, Minnesota, Mississippi, Montana, New York, Oregon, Tennessee and Wyoming) require a minimum number or percentage of the members to have joined as plaintiffs before the action will be entertained.
We therefore decline Plaintiffs' invitation to adopt a principle for standing in derivative suits against nonstock, nonprofit corporations that would be broad enough to include Plaintiffs' assertion of the claims in this action.
V
Plaintiffs  [***49]  have attempted to present an alternative argument under which they label themselves as "private attorneys [*47]  general." The Plaintiffs also describe themselves as plaintiffs of last resort, by which they mean that no member of BCBSM has sued, BCBSM itself, acting through the SLIC, has not sued on as many claims as Plaintiffs undertake to assert, and the Attorney General has not filed any action. The particular thrust of Plaintiffs' private attorney general argument is that BCBSM occupies a unique position in insuring against the cost of health services in Maryland and that it is in the public interest for private citizen plaintiffs "of last resort" to assert the alleged rights of BCBSM against the defendants. To reinforce the public interest aspect of this argument, the Plaintiffs point to the quite liberal standing rules that this Court applies in taxpayer actions.
The instant action is not a taxpayer action. We have described one of the predecessors of BCBSM as "a private corporation offering a non-profit health service plan to the people of Maryland." Baltimore County Hosp., Inc. v. Maryland Hosp. Serv., Inc., 234 Md. 427, 429, 200 A.2d 39, 41 (1964). [***50]  We have said that that entity was "essentially engaged in the business of selling insurance." Blue Cross of Maryland, Inc. v. Franklin Square Hosp., 277 Md. 93, 105, 352 A.2d 798, 806 (1976). The officers and directors of BCBSM are not public officials. The Plaintiffs do not "challenge a statute or the action of public officials acting under a statute." Kerpelman v. Board of Public Works of Maryland, 261 Md. 436, 443, 276 A.2d 56, 60, cert. denied, 404 U.S. 858, 92 S. Ct. 109, 30 L. Ed. 2d 100 (1971). 
In other respects, the arguments presented by the Plaintiffs under their private attorney general heading are essentially policy considerations that we have reviewed and rejected for the reasons set forth in Part IV, supra.
For all of these reasons we hold that the Plaintiffs do not have standing to maintain the instant action.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANTS. 

3 of 37 DOCUMENTS 

Marjorie H. ECKARD v. William E. ECKARD 

No. 49, September Term, 1993 

COURT OF APPEALS OF MARYLAND 

333 Md. 531; 636 A.2d 455; 1994 Md. LEXIS 6 

January 18, 1994, Filed 

SUBSEQUENT HISTORY:
 [***1]  As Corrected February 3, 1994. Reconsideration Denied March 4, 1994.  

DISPOSITION:
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT.  

COUNSEL:
Darrel L. Longest, Germantown, for appellant.
Joseph J. D'Erasmo, Rockville, for appellee.  

JUDGES:
Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, * Chasanow, Karwacki and Robert M. Bell, JJ.  Eldridge, J., concurs in the result only.
* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 

OPINIONBY:
RODOWSKY 

OPINION:

 [*532]   [**456]  This appeal is from a civil contempt order issued in a divorce action that began in December 1983.  The Circuit  [*533]  Court for Montgomery County ordered the appellant, Marjorie H. Eckard (Marjorie), to sign a power of attorney authorizing her former husband, William E. Eckard (William), to execute in Marjorie's name and on her behalf the documents necessary for the sale and conveyance of two adjacent, unimproved lots in the City of Cape Coral, Florida.  When Marjorie refused to do so she was  [***2]  imprisoned for contempt until released, pending the outcome of this appeal, on a writ of habeas corpus.  Marjorie's principal contention is that the Maryland court had no jurisdiction to enter an order affecting the title to realty lying outside of Maryland.  As we shall see below, for more than 200 years, courts of equity have issued, enforceable by contempt, the type of order presented here.
Marjorie initiated the action, asserting claims, inter alia, for divorce a mensa et thoro, for temporary and permanent alimony, for a monetary award based on the identification and valuation of marital property, and for counsel fees.  William counterclaimed for divorce a vinculo.  A decree of absolute divorce was entered in June 1985 under which the other claims in the action were reserved for future determination, and those claims were referred to a master. n1

n1 By Md.Code (1984, 1991 Repl.Vol.), §  8-213(b) of the Family Law Article, "any decree of ... limited or absolute divorce in which the court reserves any power under [subtitle two] is final and subject to appeal in all other respects."

 [***3]  
The matter was heard before a master on December 23, 1985.  The parties, and their attorneys, were present.  Counsel for Marjorie announced that the parties had reached an agreement, resolving all of the open legal issues between them, the terms of which he then orally explained for the record.  The Florida land "will be sold by the husband, and the net proceeds divided equally, unless the wife chooses to buy the husband's one-half, which she may do prior to his selling it." Counsel explained that William "has agreed  [**457]  that if [Marjorie] wishes to buy the [Florida] lots she may do so by paying half of ninety-five percent of the appraisal value and [William] will undertake to determine what that is." The  [*534]  parties acknowledged their understanding that they had entered into a present agreement that was not dependent on subsequent written memorialization of its terms.  The agreement was not to be modifiable by any court in the future.
The December 1985 agreement was not reduced to writing, and there was no report by the master recommending any order by the court.  Nor was the action voluntarily dismissed.  It simply remained an open action, without the docket reflecting [***4]  any activity.
It appears from the facts recited by the Court of Special Appeals in its unreported opinion on an appeal in this action, referred to infra, that in early 1986 William obtained an appraisal of $ 60,000 for the Florida property.  It also seems that by letter in January 1987 Marjorie offered $ 17,500 for William's half interest, but that that offer was not acceptable.  In August 1987, William listed the property with a realtor at $ 74,900.  Counsel for William in September 1987 advised Marjorie of the listing. n2

n2 In various papers counsel for William has taken the position that, because Marjorie had not, within a reasonable time, exercised her right to buy his half interest at ninety-five percent of its appraised value, William was free, on behalf of both owners, to offer the property for sale to a third party. That theory's validity has never been adjudicated directly.

In February 1988, Marjorie moved in this divorce action for an order enforcing William's promise under the December 1985 agreement [***5]  to pay to her $ 1,710 per month out of his retirement.  William had not made the payments for November 1987 and succeeding months.  Marjorie also alleged that the December 1985 agreement had been obtained by William's fraudulent understatement of assets.  In addition, she requested a qualified domestic relations order (quadro) increasing the payment to her from William's retirement to $ 1,804 per month and a monetary award compensating her for the value of marital property fraudulently undisclosed.
Before any ruling was made on Marjorie's motion, in April 1988, buyers offered $ 74,900 for the Florida property by  [*535]  submitting a signed contract.  William signed it in May.  He then sought an order in this action compelling Marjorie to execute documents reasonably required to sell the Florida property or appointing a trustee to sell it.
The motions were heard December 9, 1988, on a record consisting of the court file, a transcript of the December 1985 master's hearing, certain correspondence, the unchallenged factual statements of counsel, and a near hour-long, unsworn statement of facts and of position by Marjorie.
By order docketed December 13, 1988, the court made the following [***6]  rulings:
1. Marjorie's Motion to Enforce the Agreement was granted "to the extent that the Agreement reached between the parties on December 23, 1985 is hereby incorporated, but not merged, in the original Decree of Absolute Divorce filed in this cause on June 21, 1985";
2. Marjorie's remaining claims for relief were denied;
3. William's summary judgment motion was granted, requiring Marjorie "to perform all acts and to execute all documents necessary for the sale and settlement" of the Florida property; and
4. In the event Marjorie failed to comply with the order described in para. 3, the circuit court "shall, upon motion of [William], appoint a Trustee, resident in the State of Florida, to act in the place and stead of [Marjorie] with respect to the sale and settlement of said lots ...."
Entry of this order on the docket fully adjudicated all of the claims and constituted final judgment in the action.  See Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980). No order for appeal was noted.  Rather, on January 12, 1989, Marjorie moved for reconsideration, asserting multiple errors. n3 The  [**458]  motion for reconsideration was denied,  [***7]  and that  [*536]  denial was appealed by Marjorie.  The Court of Special Appeals dismissed that appeal by order of August 10, 1989, for failure to file a brief.

n3 Contained in the record extract are copies of letters from Marjorie's attorney to William's attorney, written after judgment and prior to the motion, by which Marjorie offered to buy William's half interest at ninety-five percent of its appraised value and enclosing two separate appraisals, one of December 23, 1988, and the other as of January 6, 1989, each valuing the Florida property at $ 78,000.  These negotiations never came to fruition.

Meanwhile, in the circuit court, William by motion filed April 19, 1989, sought the appointment of a trustee to sell the Florida property.  Marjorie opposed.  By order filed July 31, 1989, the Circuit Court for Montgomery County appointed a Florida attorney as its trustee "to perform all acts and to execute all documents, in the place and stead of [Marjorie], necessary to carry out the sale and settlement" of the Florida [***8]  lots.
Marjorie appealed this order.  The Court of Special Appeals affirmed by an unreported opinion, filed June 13, 1990.  That court held that Marjorie "did not perform as ordered" by the December 1988 order.
Paragraph four of that order had anticipated the appointment of a trustee, but the Court of Special Appeals did not reach the merits of paragraph four in Marjorie's earlier, dismissed appeal.  The intermediate appellate court, in its June 1990 opinion, concluded that, "regardless of the validity of the [December 1988] order ... the circuit court certainly did not abuse its discretion in thereafter appointing a trustee pursuant to its December order." (Footnote omitted).
Our chronological review now shifts to Florida, where William sued Marjorie in Lee County, the situs of the property.  That suit, invoking both comity and the Uniform Enforcement of Foreign Judgments Act, alleged, inter alia, that "by virtue of the settlement agreement being placed before the [Maryland] Court, the parties have placed their property into the jurisdiction of the Maryland Court ...." The Lee County court construed the appointment by the Maryland court of a trustee to act for Marjorie as [***9]  an attempt to partition Florida realty and held that the Maryland judgment was not entitled  [*537]  to full faith and credit.  In February 1991, the Florida court dismissed William's action.  Two months later the prospective purchasers of the Florida lots, who some three years earlier had tendered a signed contract, withdrew their offer, requested a refund of the deposit, and apparently received that refund.
There were some further negotiations between the parties in August 1992.  Marjorie offered $ 28,500 for William's half interest, on the theory that the valuation date, under their agreement, should be as of 1986 when the property was worth $ 60,000.  William rejected, opining that the present value was approximately $ 100,000.
In September 1992, William petitioned the Circuit Court for Montgomery County to find Marjorie in contempt of the December 1988 and July 1989 orders.  That petition proposed that, until Marjorie executed a power of attorney to William under which he could sell the Florida lots, Marjorie be directed to pay into the registry of the court the monthly payments which Marjorie was receiving directly, under a quadro, from William's retirement.
At a hearing on [***10]  October 26, 1992, the circuit court rejected William's proposal that Marjorie pay over her quadro income, because the court envisioned that hearings would be required every month.  Instead, the circuit court directed Marjorie, under threat of contempt, to execute a power of attorney that counsel for William had prepared.  The court gave Marjorie until October 30 to reflect and decide.
When she appeared before the court on October 30, Marjorie advised: "I will refuse to sign a power of attorney to my ex-husband hatchetman." The court found Marjorie in contempt, ordered her confined "for a period of at least 120 days as of this juncture," and advised her that she could be released "at any time by simply signing that document."
This appeal followed.  Marjorie was released on bail under a writ of habeas corpus.  This Court issued the writ of  [*538]  certiorari on its  [**459]  own motion prior to consideration of the matter by the Court of Special Appeals. n4

n4 Without any order to supplement the record, but without any objection by William, the record extract contains a petition filed by William in the Lee County, Florida court for the sale in lieu of partition of the parties' lots.  The petition recites the contempt finding and sanction by the Maryland court.

 [***11]  
I
The court order which Marjorie refused to obey directed that she sign a limited power of attorney. That order, in turn, was but a particularization of the final and unappealed December 1988 judgment directing Marjorie "to perform all acts and to execute all documents necessary for the sale and settlement of" the Florida property.  Thus, the scope of review on this appeal from the finding of contempt is narrow.  Whether the December 1988 order represented a correct application of the law to the facts is not before us.
In Harford County Educ. Ass'n v. Board of Educ. of Harford County, 281 Md. 574, 380 A.2d 1041 (1977), school teachers had violated an anti-strike injunction and were fined for criminal contempt. In discussing the scope of review on the teachers' appeal from the contempt order, we said:
"A party enjoined may not violate the terms of an injunction and then attack the injunction collaterally in a contempt proceeding, civil or criminal.  Only a complete lack of jurisdiction in the court to grant the injunction and not merely error in granting it could avail a party."

Id. at 585-86, 380 A.2d at 1048 [***12]  (citation omitted).  See also Save-Mor Drugs, Bethesda, Inc. v. Upjohn Co., 225 Md. 187, 190-91, 170 A.2d 223, 225 (1961) (same).
Shapiro v. Ryan, 233 Md. 82, 195 A.2d 596 (1963), in contrast, reversed an orphans' court adjudication of contempt because a circuit court had assumed jurisdiction over the case and had thereby deprived the orphans' court of its authority.  Id. at 86-87, 195 A.2d at 599. Nevertheless, were the orphans' court order that was disobeyed "merely erroneous due  [*539]  to a mistaken view of the facts or to a mistaken view of the law," an adjudication of contempt "will ordinarily be upheld." Id. at 86, 195 A.2d at 598.
In the instant matter Marjorie questions whether the December 1988 order correctly applied the law.  She submits that the agreement reached before the master in December 1985 was silent as to incorporation of its terms into any decree and that, absent mutual authorization, incorporation may not be accomplished, leaving the court without any basis for enforcing the [***13]  agreement.  These collateral attacks on the December 1988 order are not available, under the authorities cited above.  Thus, we intimate no opinion on the merits of these arguments raised by Marjorie.  It is within the subject matter jurisdiction of a circuit court to incorporate a separation agreement into a decree. The court does not lose subject matter jurisdiction even if, arguendo, that incorporation was accomplished through an error of law.
Marjorie also suggests that the incorporation feature of the December 1988 judgment was erroneous because, as phrased, it incorporated the agreement into the decree of absolute divorce entered June 21, 1985.  As we indicated above, the decree of divorce did not resolve all of the claims in the action.  The other claims were resolved later by the December 1988 judgment incorporating the separation agreement.  The circuit court had jurisdiction, and indeed expressly reserved jurisdiction, to decide the other claims.  Assuming, arguendo, that there was an error in phrasing this 1988 decree, the error could have been raised on direct appeal from the judgment, but the assumed error is not a defect of jurisdictional magnitude.  It is not [***14]  available collaterally to attack the December 1988 judgment in this appeal from an adjudication of contempt for refusing to obey that order, as particularized.
The foregoing analysis also answers a theme that runs through Marjorie's arguments, namely, that William breached the agreement to sell her his interest in the Florida property  [*540]  which she was and is willing and able to acquire.  That contention was also resolved by the December 1988 judgment.
 [**460]  II
Marjorie's principal argument is that the order directing her to execute the power of attorney authorizing William to act on her behalf in the sale and conveyance of realty in another state is beyond the subject matter jurisdiction of the circuit court.  She views the order as attempting directly to affect the title to land in Florida.  Relying almost exclusively on Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909), Marjorie asserts that Florida is not constitutionally obliged to give full faith and credit either to the order directing her to sign the power of attorney or to the December 1988 judgment, because a Maryland court has no power to affect [***15]  the title to real estate in Florida.  William replies that the court has in personam jurisdiction to order Marjorie to sign a power of attorney in Maryland.  This done, it would not be the decree of the Maryland court that transfers the title to realty in Florida.  That is to be accomplished by the deed to some presently unknown purchaser, signed by William for himself and on behalf of Marjorie, as her agent, appointed by her under coercion.
From the standpoint of the historic power of equity, William is correct.  Basically, this case involves the maxim that equity acts on the person.  The maxim was applied to a problem analogous to that in the present matter in Penn v. Lord Baltimore, 1 Ves. Sen. 444, 27 Eng. Rep. 1132 (1750), a case of great significance to Marylanders.  There had been a long-running boundary dispute between the Maryland and Pennsylvania colonies, part of which involved the claim by the sons of William Penn to three counties, presently comprising the State of Delaware.  The claim was based upon deeds in 1682 from the then Duke of York, later James II of England, although the land conveyed lay south of the fortieth parallel [***16]  and within the charter of the Maryland province.  In 1732, Charles, Fifth Lord Baltimore, and the sons of William Penn had entered into an agreement establishing a procedure for  [*541]  resolution of the dispute.  The Penns sued in the English Court of Chancery to enforce that agreement.  Lord Chancellor Hardwick recognized that the court could not enforce its decree in rem. Id. at 454, 27 Eng.Rep. at 1139. That was no objection, however, because the strict primary decree in the court, as a court of equity, was in personam. Id. Specific performance of the 1732 agreement by the defendant was ordered.  Id. at 455, 27 Eng.Rep. at 1139. For historical discussions of these events, see E. Green, The Making of Maryland 184-99 (1934); J. Gambrill, Leading Events of Maryland History 53-56 (1904); M. Andrews, The Founding of Maryland 285-300 (1933). n5

n5 A very comprehensive and scholarly treatment of these events is E.B. Matthews, History of the Boundary Dispute Between the Baltimores and Penns Resulting in the Original Mason and Dixon Line, in 7 Md. Geological Survey 103-202 (1908).

 [***17]  
Chief Justice Marshall, writing for the Supreme Court of the United States, addressed this problem and reviewed the old authorities, including Penn v. Lord Baltimore, in Massie v. Watts, 10 U.S. (6 Cranch) 148, 3 L.Ed. 181 (1810). An action was brought in the federal court in Kentucky to require the defendant to convey land in Ohio to the plaintiff.  The plaintiff's theory for equitable relief was that the defendant had obtained legal title to the Ohio land through a fraudulent survey.  The trial court held "that the complainant recover of the defendant one thousand acres of land, to be laid off agreeably to the mode pointed out as the proper manner for surveying ...." Id. at 154, 3 L.Ed. at 184. On appeal the Court affirmed upon the general principle that "in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." Id. at 160, 3 L.Ed. at 186.
In Binney's Case, 2 Bland 99, 144-45 (1829), [***18]  Chancellor Bland discussed the territorial limitations on the powers of the former High Court of Chancery of Maryland, saying:

 [*542]  "But the jurisdiction of the High Court of Chancery over the matters of which it takes cognizance is co-extensive with the confines of the State itself.  ... Wherever a person is to be found within reach of the Court of Chancery, and he may, in any respect, be considered as a trustee, or the  [**461]  matter in dispute arises out of a transitory personal contract[,] not necessarily involving the title to, and following land; and which the party may, by personal coercion, [b]e made to execute specifically, this Court may have jurisdiction and decree accordingly.  Therefore, if a defendant be found here he may be decreed to pay money, or to account for the rents and profits of lands lying in another, or a foreign country, which he had held and enjoyed; or if a deed of lands in a foreign country be found to be fraudulent, it may be ordered to be delivered up and cancelled; or in specific performance of a contract for land in another State, such a conveyance may be ordered as shall be sufficient according to the law of the State were it lies [***19]  .  But the Court will not decree a partition of such land, or in any manner directly decide upon the title to it, or upon the validity of a deed or will as a material part of the title; nor found the relief granted upon the strict title to such property itself."

(Emphasis added).
White v. White, 7 G. & J. 208 (1835), is a holding of this Court, on appeal from the Court of Chancery, that presents an instructive contrast.  Sale in lieu of partition was sought of real estate, in both Maryland and Pennsylvania, that had devolved upon the heirs of a decedent.  The Pennsylvania law of descent was the same as that in Maryland.  The Chancellor entered the decree as to Maryland real estate but dismissed the bill for want of jurisdiction over the Pennsylvania land.  Id. at 210. This Court affirmed.  As to the Pennsylvania land the bill sought a "decree in rem where the thing against which the decree goes, and is alone the subject of, and to be operated upon by it, is beyond the territorial jurisdiction of the Chancery Court, and not subject to its authority ...." Id. This was to be contrasted with a case

 [*543]   [***20]  "where the decree sought is in personam, and may be carried into effect by process of contempt [in which] the Court of Chancery here may have jurisdiction, although it may affect land lying in another State, the defendant being in the State of Maryland, as in a case of trust, or fraud, or of contract.  ... In such a case, the decree does not act directly upon the land, but upon the defendant here, and within the jurisdiction of the Court."

Id. at 211.
This Court affirmed a decree compelling the execution of a deed to land situated outside of Maryland in Stansbury v. Fringer, 11 G. & J. 149 (1840). The land lay in Ohio, but the equity side of the Frederick County Court had jurisdiction over the person of the defendant.  Specific performance was granted, and it was ordered that the defendant "shall execute and acknowledge in due form of law, a deed in fee simple, conveying the said land," which was then described.  Id. at 151. The jurisdiction of the trial court was not questioned on appeal, and the opinion deals only with a mutuality of contract issue.
Fall v. Eastin, on which [***21]  Marjorie relies, was decided in 1909.  In a divorce action in the State of Washington, the court ordered that certain realty in Nebraska be set aside as the separate property of the wife, and the Washington court ordered the husband to convey that property to her.  Instead, the husband conveyed the property to a third party. The Washington court appointed a commissioner who executed a deed to the wife that was recorded in Nebraska.  The wife then brought an action in Nebraska to invalidate the conveyance by the husband to the third party. The Supreme Court of Nebraska, on rehearing, reversed a grant of that relief, Fall v. Fall, 75 Neb. 120, 113 N.W. 175 (1907). The Supreme Court of the United States affirmed.  The following passage from the majority opinion is relevant to Marjorie's argument.

"[W]e think that the doctrine that the court, not having jurisdiction of the res, cannot affect it by its decree, nor by a deed made by a master in accordance with the decree, is  [*544]  firmly established.  ... [W]hen the subject-matter of a suit in a court of equity is within another state or country, but the parties within the jurisdiction [***22]  of the court, the suit may be maintained and remedies granted which may directly affect and operate upon the person of the defendant, and not upon the subject-matter,  [**462]  although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted.  In such case, the decree is not of itself legal title, nor does it transfer the legal title. It must be executed by the party, and obedience is compelled by proceedings in the nature of contempt, attachment, or sequestration.  On the other hand, where the suit is strictly local, the subject-matter is specific property, and the relief, when granted, is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject-matter is situated."

215 U.S. at 11-12, 30 S.Ct. at 7-8, 54 L.Ed. at 70-71.
The reasoning in Fall v. Eastin does not support Marjorie's position that the Circuit Court for Montgomery County had no subject matter jurisdiction [***23]  to direct her to sign the power of attorney in Maryland, even if it would indirectly affect property in Florida.  Fall v. Eastin was not concerned with whether the Washington court could sanction the husband for contempt in failing to obey its decree ordering a conveyance to the wife.  Indeed, Fall v. Eastin recognizes that obedience may be "compelled by proceedings in the nature of contempt, attachment or sequestration" to a decree directing transfer of legal title to foreign land through an instrument executed by a party who is personally before the court.  Id. at 11, 30 S.Ct. at 8, 54 L.Ed. at 70.
These principles were restated by this Court in Donigan v. Donigan, 208 Md. 511, 119 A.2d 430 (1956). Fall v. Eastin, among numerous other authorities, was cited for the general proposition that

 [*545]  "by virtue of its power over a person properly before it, a court of equity may compel him to act in relation to property not within the jurisdiction, as it could in relation to property within the jurisdiction, but that its decrees do not operate directly on the [***24]  property nor affect the title, but are only made effectual by directing some action on his part, such as the execution of conveyances or the execution or cancellation of other instruments or writings."

208 Md. at 522, 119 A.2d at 434.
Nor does the judicial coercion invalidate the conveyance. Gilliland v. Inabnit, 92 Iowa 46, 60 N.W. 211 (1894), is on point.  Before his death, a Kentucky resident was ordered by a Kentucky court, as a remedy for a breach of trust, to convey Iowa real property.  When the defendant refused, he served several days in prison for contempt, and then executed and delivered the deed. 60 N.W. at 211. Rejecting a contention that the deed was "'null and void, for the reason that the grantor ... was forced and compelled by duress and against his will ... to execute and deliver said conveyance,'" id., the Iowa court stated:

"It is true that the title to land is to be affected by the decree, in so far as it compels the party to convey, but, as said, by reason of his trust or contract duty he is personally obliged to [***25]  convey, and that duty may be discharged in one state as well as another, although the land may not be situated in such state."

Id. at 212-13.
See also Restatement (Second) of Conflict of Laws §  102 comment d (1971) ("Under ordinary circumstances the Y courts would give effect to a deed executed by the defendant pursuant to the order of the X court and in order to avoid punishment by that court."); E. Messner, The Jurisdiction of a Court of Equity over Persons to Compel the Doing of Acts Outside the Territorial Limits of the State, 14 Minn.L.Rev. 494, 508 (1930); W. Barbour, The Extra-Territorial Effect of the Equitable Decree, 17 Mich.L.Rev. 527, 549 (1919) ("In fact it is believed that no decision will be found in which a deed,  [*546]  made under the compulsion of a foreign decree, was for that reason held invalid by a court of the situs of the land."); 4 American Law of Property §  18.65(h) & (i), at 788-90 (1952).
From the standpoint of the power of the equity court, there is no difference between compelling, by contempt, the signing of a deed, and compelling, by contempt, the signing of a power of attorney [***26]  to sign a deed.  [**463]  The Circuit Court for Montgomery County had jurisdiction over the subject matter.
III
Marjorie urges this Court to hold that the circuit court abused its discretion by sanctioning her for contempt because, in her view, the Florida court will not honor a conveyance signed in her name pursuant to a coerced power of attorney. In support of that contention she refers to the decision by the Lee County, Florida trial court.  But Marjorie's contention, as we noted above, is contrary to Fall v. Eastin, which gives full faith and credit recognition to in personam decrees. n6

n6 Fall v. Eastin has not escaped adverse criticism by legal scholars.  See, e.g., B. Currie, Full Faith and Credit to Foreign Land Decrees, 21 U.Chi.L.Rev. 620 (1959), espousing the thesis that full faith and credit should be given by the state of the situs of the land to a foreign decree, insofar as it determines the rights, inter se, of the parties, even if the foreign decree appoints a trustee to convey and thus classically would be considered to be a decree in rem.

 [***27]  
Marjorie also contends that William's proper remedy was to bring an action for sale in lieu of partition in Florida, where the Florida court could then adjudicate whether Marjorie has a right to acquire William's interest.  William, however, based upon the final judgment of December 1988, based upon the order of July 31, 1989, affirmed by the Court of Special Appeals, and based upon the order of October 26, 1992, directing the signing of the power of attorney, had a right to pursue an in personam remedy in Maryland.  When Marjorie, after opportunity for reflection, chose deliberately to defy the order of October 26, 1992, the circuit court did not abuse its discretion by confining Marjorie while giving her the key to her release.
 [*547]  JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT.  

4 of 37 DOCUMENTS 

CITY OF COLLEGE PARK, et al. v. Joseph W. COTTER III 

No. 148, September Term, 1986 

Court of Appeals of Maryland 

309 Md. 573; 525 A.2d 1059; 1987 Md. LEXIS 236 

June 3, 1987 

PRIOR HISTORY:
 [***1]  

Certiorari to the Court of Special Appeals, Circuit Court for Prince George's County, Judge Joseph S. Casula. 

DISPOSITION:
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY AFFIRMED.  COSTS TO BE PAID BY APPELLANTS.  

COUNSEL:
Morris Topf (Topf, Goldstein, Handler & White, P.C., on the brief), Bethesda, for appellants.
Ronald Willoner (Willoner, Calabrese & Rosen, College Park, and V. Charles Donnelly, Hyattsville, on the brief), for appellee.  

JUDGES:
Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, Jr., * McAuliffe and Adkins, JJ.  Eldridge, Judge, dissenting.  Judges Cole and Rodowsky, concur with the views expressed herein.
* Couch, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 

OPINIONBY:
COUCH 

OPINION:

 [*575]   [**1060]  We granted certiorari in this case to determine whether the City Council of College Park is prohibited from conducting any closed meetings under the Municipal Charter of  [*576]  College Park and the Maryland Sunshine Law, Maryland Code (1984, 1986 Cum.Supp.),  [***2]  State Government § §  10-501 -- 510. n1

n1 The litigants in this case do not ask us to apply the provisions of the "older" sunshine laws.  See Md.Code (1957, 1987 Repl.Vol.), Art. 23A, §  8 (municipalities); Art. 25, §  5 (counties).  See also Art. 24, § §  4-201 -- 216 (St. Mary's County Open Meetings Act); §  5-101 (Charles County Freedom of Information Act); Art. 41, §  1-205 (Executive Branch).

I
Joseph W. Cotter III (appellee), an elected member of the City Council of College Park ("City Council" or "Council"), filed suit in the Circuit Court for Prince George's County against the Mayor and seven members of the City Council (appellants).  In his complaint, he alleged that the Council held closed meetings in violation of Article 10, section 24 of the Municipal Charter of College Park ("Municipal Charter" or "Charter"), which states: "All meetings of the Mayor and Council herein provided for, shall be open to the citizens of the city." n2@ Appellee requested a writ of mandamus "requiring said officials [***3]  of the City of College Park and their agents to hold open, public meetings and enjoining them from locking the doors of the Municipal Center during meetings of the Mayor and Council." n3

n2 In support of this contention, the appellee offers the affidavit of Walter L. Green, one of two original drafters of the Municipal Charter of College Park.  In his statement, Mr. Green states:
"4. That in drafting the language stating 'All meetings of the Mayor and Council herein provided for, shall be open to the citizens of the city' we discussed the meaning of this language and drafted it on the basis that we wanted for College Park the open meeting concept of the 'New England Town Meeting.'"
"5. That it was our intent that every meeting of the Mayor and Council shall be open to the citizens, without exception."
n3 The complaint also requested an "order directing the Mayor and Council to give timely notice of all meetings by placing said notice in the City Municipal Scene, the local newspapers, on the city cable station channel, and on the public bulletin board in the Municipal Center."@ The record does not show any action by the trial court on the notice issue, nor any objection concerning this inaction.  We therefore deem the appellee's request for notice to be waived.

 [***4]  
 [*577]  According to appellee, the Mayor and City Council have held at least twenty closed meetings in the two years preceding the instant suit.  On many occasions, appellee contends, these meetings were held without prior notice to the public; when citizens did attend, they were removed from the meeting hall.  Appellee notes that since he took office in December of 1985, four such closed meetings have been held.  Appellee asserts that he has registered a protest with the Mayor and City Council and has excluded himself from three of these meetings on the ground that to attend them would violate his oath to uphold the Municipal Charter.
Answering the complaint, n4 the appellants do not dispute that closed meetings have been held on certain occasions during a  [**1061]  three year period beginning in 1983. n5@ They argue, however, that these closed sessions, which have been "held to consult with City staff, especially the City Attorney, on very limited issues," n6 are permitted by the Maryland Sunshine Law ("Sunshine Law" or "the Act"). n7@ They also contend that the Municipal Charter does not present a bar to such meetings.  In their view, the Charter does not "in any way preclude [***5]  executive sessions for the purpose of  [*578]  consultation with counsel or to discuss other issues which must properly be considered out of the public view."

n4 In response to appellee's complaint, the appellants filed a Motion to Dismiss or for Summary Judgment.  Subsequently, appellee filed his own Motion for Summary Judgment.
n5 According to appellants, closed meetings have been held since the inception of the City of College Park.
n6 Elaborating, appellants state that the City Council has adjourned to closed session when it was in the public's interest to privately confer with City personnel, including legal counsel, regarding actual or potential litigation and extremely sensitive personnel matters.
n7 Appellants emphasize that the City Council has entered into closed session only for the purposes permitted by the Maryland Sunshine Law and its predecessor.  See Md.Code (1984, 1986 Cum.Supp.), State Government §  10-508.  Furthermore, the Council has never adopted any ordinance or resolution or engaged in any legislative or quasi-legislative function during these closed meetings.

 [***6]  
After a hearing, the trial court enjoined the Mayor and City council from conducting any closed sessions or meetings as long as Article 10, section 24 of the Municipal Charter remained in force.  The court reasoned:

"[U]nder the plain language of the [Maryland Sunshine Law] Section 10-504 (1984) conflict of laws provision, since Article X, Section 24, of the City Charter of College Park is more stringent [(i.e., allows no exception to the open meeting requirement)], it controls and all meetings of the Mayor and Council of College Park are required to be open meetings.
...
"Where the intent of a statute is expressed in clear and unambiguous language, as it is in Article X, Section 24, of the Charter of the City of College Park, the court must carry it into effect even if the court is of the opinion that the policy of the legislation is unwise, harsh or unjust."

The court added:
"If the City of College Park no longer wishes to require all meetings of the Mayor and Council to be open, it has available the Md.Ann.Code Art. 23A (1957) provisions for amending the Charter."
The appellants appealed the lower court's decision to the Court of Special Appeals [***7]  and concurrently filed a petition for writ of certiorari with this Court.  Before review by the intermediate appellate court, we granted appellants' petition.  We shall affirm the judgment of the circuit court.
II
At the outset, we address appellee's contention that the instant appeal is moot.  Shortly after the appellee filed his suit, the Mayor and City Council of College Park proposed an amendment to the open meeting provision in the Municipal  [*579]  Charter. n8@ As amended, Article 10, section 24 would read as follows (emphasis added):
"All meetings of the Mayor and Council herein provided for shall be open to the citizens of the city.  Nothing contained herein shall be construed to prevent the Mayor and City Council from holding executive (closed) session from which the public is excluded, in accordance with the safeguards provided by State law, but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive meeting."

More than 1100 signatures of registered College Park voters were collected to bring the proposed amendment to a referendum vote. n9@ The ballot asked voters whether they were "in favor of closed meetings of the [***8]  Mayor and Council as permitted by and held in accordance with the safeguards of  [**1062]  the State of Maryland Sunshine Act." n10@ On December 9, 1986, the voters defeated the proposed charter amendment. n11

n8 See Md.Code (1957, 1987 Repl.Vol.), Art. 23A, §  13(a).  Apparently, the appellee did not vote for the proposal.
n9 See Md.Code (1957, 1987 Repl.Vol.), Art. 23A, §  13(g)-(h).
n10 The ballot also contained a second question: "Are you in favor of increasing the compensation of the Mayor to forty-eight hundred dollars ($ 4800) per year and the compensation of each council member to thirty-six hundred dollars ($ 3600) per year commencing the first regular meeting of the Mayor and Council in the next calendar month following the 1987 general city election?"@ The voters defeated this proposal.
n11 Twenty-four per cent of the registered voters of College Park cast a ballot in the referendum. The Charter amendment was defeated by a vote of 661 (No) to 486 (Yes).

The appellee contends [***9]  the referendum vote moots the present controversy.  He reasons as follows: The vote represents the public's desire for open meetings.  When the Charter provision in force is read as reflecting this desire, the appellants' contention that Article 10, section 24 permits closed sessions is no longer tenable.  "Since there is no longer any controversy with regard to how the voters of  [*580]  College Park want the meetings of their Mayor and Council conducted, and the Mayor and Council are the peoples' duly elected representatives, there is no longer an existing controversy."@ We reject appellee's contention.
As a general rule, appellate courts do not give opinions on abstract propositions or moot questions.  See, e.g., County Commissioners of Charles County v. Secretary of Health & Mental Hygiene, 302 Md. 566, 568, 489 A.2d 1127, 1128 (1985) (and cases cited therein).  "A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide."@ Attorney General v. Anne Arundel County School Bus Contractors Association, 286 Md. 324, 327, 407 A.2d 749,  [***10]  752 (1979) (citations omitted).  When a party is seeking an injunction or similar relief, it will not "issue if the acts sought to be enjoined have been discontinued or abandoned."@ Id., 407 A.2d at 752 (citations omitted).
In the instant case, a controversy still exists between the opposing litigants.  The referendum vote, although expressing the will of a majority of the interested voters of College Park, did not amend the Municipal Charter, thereby eliminating the controversy concerning the interpretation of the Charter provision in question.  The vote did not prevent the appellants from still maintaining, which they do on appeal, n12 that Article 10, section 24 permits closed meetings.  This is simply not a case where the "acts sought to be enjoined have been discontinued or abandoned."@ Anne Arundel County School Bus, 286 Md. at 327, 407 A.2d at 752. Compare State v. Ficker, 266 Md. 500, 507, 295 A.2d 231, 235 (1972) (offending act sought to be enjoined has been abandoned).  Had the referendum vote amended the Charter to explicitly prohibit closed meetings, or to prevent the appellants from pursuing their present position, we would have a very different situation.  [***11]  Since an effective  [*581]  remedy does exist (i.e., an injunction), we conclude the present appeal is not moot.

n12 See Appellants' Reply Brief at 3.

III
We begin our analysis with the Maryland Sunshine Law, Md.Code (1984, 1986 Cum.Supp.), State Government § §  10-501 -- 510, which will bring the present controversy into focus.  The Maryland Sunshine Law requires that meetings of public bodies, with limited exceptions, be open to the public.  See Carroll County Education Association v. Board of Education of Carroll County, 294 Md. 144, 147, 448 A.2d 345, 347 (1982); Avara v. Baltimore News American Division, 292 Md. 543, 440 A.2d 368 (1982). n13@ Section 10-502 expresses the legislative policy of the statute:

"It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances:
1) public business be performed in an open and public manner; and
2) citizens be advised and aware of:
 [**1063]  (i) the performance of public officials; and [***12]  
(ii) the deliberations and decisions that the making of public policy involves."

n13 For a discussion of open meeting statutes in other jurisdictions, see Annot., 38 A.L.R.3d 1070 (1971, 1986 Supp.); 56 Am.Jur.2d Municipal Corporations §  161 (1971, 1986 Supp.).

At the heart of the Act is section 10-505, which states that a public body n14 shall meet n15 in open session n16 whenever  [*582]  that body is carrying out an advisory, legislative, or quasi-legislative function. n17@ The Act does, however, allow  [*583]  closed meetings to take place in limited circumstances.  See Md.Code (1984, 1986 Cum.Supp.), State Government §  10-508(a). n18@ For example, a public body may meet in closed session or  [**1064]  adjourn an open session to a closed session to consult with counsel, id. at §  10-508(a)(7), or to protect the privacy and reputation of individuals with respect to a matter that is not related to public business. Id. at §  10-508(a)(2).  A public body that meets in closed session [***13]   [*584]  may not discuss or act on a matter not explicitly permitted under section 10-508(a).  Id. at 10-508(b).

n14 "Public body" means an entity that:

(1) consists of at least 2 individuals; and

(2) is created by:

(i) the Maryland Constitution;

(ii) a State statute;

(iii) a county charter;

(iv) an ordinance;

(v) a rule, resolution, or bylaw;

(vi) an executive order of the Governor; or

(vii) an executive order of the chief executive authority of a political subdivision of the State.

Md.Code (1984, 1986 Cum.Supp.), State Government §  10-501(g).  Neither party disputes that the City Council of College Park is a "public body" within the meaning of this section.
n15 "Meet" means to convene a quorum of a public body for the consideration or transaction of public business. Md.Code (1984, 1986 Cum.Supp.), State Government §  10-501(f).  A quorum is simply a majority of the members of a public body or any different number that law requires.  Id. at 10-501(j).
n16 "Whenever a public body meets in open session, the general public is entitled to attend."@ Md.Code (1984, 1986 Cum.Supp.), State Government §  10-507(a). [***14]  
n17 "Advisory function" means the study of a matter of public concern or the making of recommendations on the matter, under a delegation of responsibility by:
(1) law;
(2) the Governor;
(3) the chief executive officer of a political subdivision of the State; or
(4) formal action by or for a public body that exercises an executive, judicial, legislative, quasi-judicial, or quasi-legislative function.

Md.Code (1984, 1986 Cum.Supp.), State Government §  10-501(b).
"Legislative function" means the process or act of:
(1) approving, disapproving, enacting, amending, or repealing a law or other measure to set public policy;
(2) approving or disapproving an appointment;
(3) proposing or ratifying a constitution or constitutional amendment; or
(4) proposing or ratifying a charter or charter amendment.

Id. at 10-501(e).
"Quasi-legislative function" means the process or act of:
(1) adopting, disapproving, amending, or repealing a rule, regulation, or bylaw that has the force of law, including a rule of a court;
(2) approving, disapproving, or amending a budget; or
(3) approving, disapproving, or amending a contract.
Id. at 10-501(i).
The Act does not apply to:
"(1) the Governor's Executive Council or any of its committees;
(2) a local government's counterpart to the Governor's Executive Council or any committee of the counterpart;
(3) a public body when it is carrying out:
(i) an executive function;
(ii) a judicial function; or
(iii) a quasi-judicial function; or
(4) a chance encounter, social gathering, or other occasion that is not intended to circumvent this subtitle."

Id. at 10-503. [***15]  
n18 "A public body may meet in closed session or adjourn an open session to a closed session only to:

(1) discuss:
(i) the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, or resignation of appointees, employees, or officials over whom it has jurisdiction; or
(ii) any other personnel matter that affects 1 or more specific individuals;
(2) protect the privacy or reputation of individuals with respect to a matter that is not related to public business;
(3) consider the acquisition of real property for a public purpose and matters directly related thereto;
(4) consider a preliminary matter that concerns the proposal for a business or industrial organization to locate in the State;
(5) consider the investment of public funds;
(6) consider the marketing of public securities;
(7) consult with counsel;
(8) consult with staff, consultants, or other individuals about pending or potential litigation;
(9) conduct collective bargaining negotiations or consider matters that relate to the negotiations;
(10) discuss public security, including:
(i) the deployment of fire and police services and staff; and
(ii) the development and implementation of emergency plans;
(11) prepare, administer, or grade a scholastic, licensing, or qualifying examination;
(12) conduct an investigative proceeding on actual or possible criminal conduct;
(13) comply with a specific constitutional, statutory, or judicially imposed requirement that prevents public disclosures about a particular proceeding or matter; or
(14) satisfy an exceptional reason that, by two-thirds vote of the members of the public body who are present at the session, the public body finds to be so compelling that the reason overrides the general public policy in favor of open sessions."

 [***16]  
Before meeting in an open session, a public body must give reasonable advance notice to the public of the upcoming session. Id. at 10-506(a).  See City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980). Whenever reasonable, the requisite notice must be in writing, and include the date, time and place of the session. Md.Code (1984, 1986 Cum.Supp.), State Government §  10-506(b). n19@ The Act also requires the public body to maintain minutes of its session, reflecting each item that the public body considered, the action taken on each item, together with any recorded votes.  Id. at 10-509(b)-(c).  These minutes, which are to be prepared as soon as practicable after the body meets, are public records and shall be open for public inspection.  Id. at 10-509(d). n20

n19 "A public body may give notice in one of the following ways:
(1) if the public body is a unit of the State government, by publication in the Maryland Register;
(2) by delivery to representatives of the news media who regularly report on sessions of the public body or the activities of the government of which the public body is a part;
(3) if the public body previously has given public notice that this method will be used, by posting or depositing the notice at a convenient public location at or near the place of the session; or
(4) by any other reasonable method."
Md.Code (1984, 1986 Cum.Supp.), State Government §  10-506(c). [***17]  
n20 Section 10-509(c)(2) states:
"If a public body meets in closed session, the minutes for its next open session shall include:
(i) a statement of the time, place, and purpose of the closed session;
(ii) a record of the vote of each member as to closing the session; and
(iii) a citation of the authority under this subtitle for closing the session."

However, if a public body meets in an authorized closed session and inspection of the minutes would frustrate the purposes served by the closed session, the minutes are not open for public inspection.  Id. at 10-509(c)(2).

 [*585]  In City of New Carrollton v. Rogers, Chief Judge Murphy for this Court summarized the impact of the Sunshine Law then in force.  His observations are applicable to the current Act:

"While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings.  In this regard, it is clear that the Act applies, not only to final decisions made by [***18]  the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by [§  10-508] to be closed to the public.  The Act makes no distinction between formal and informal meetings of the public body; it simply covers all meetings at which a quorum of the constituent membership of the public body is convened 'for the purpose of considering or transacting public business.'@ [§  10-501(f)].  It is, therefore, the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including  [**1065]  the final decision itself, constitutes the consideration or transaction of public business."

Id. at 72, 410 A.2d at 1078-79. n21

n21 The Act also contains an enforcement provision, Md.Code (1984, 1986 Cum.Supp.), State Government §  10-510, which empowers a trial court in appropriate circumstances to require the public body to comply with the statute, and to void the action of the public body. Id. at 10-510(c).  In an action under section 10-510, it is presumed that the public body has not violated any provision of the Act, and the complainant has the burden of proving the violation.  Id. at 10-510(d).

 [***19]  
IV
In the instant case, both parties focus on section 10-504 of the Act, entitled Conflict of Laws, which reads as follows (emphasis added):

 [*586]  "Whenever this subtitle and another law that relates to meetings of public bodies conflict, this subtitle applies unless the other law is more stringent."

This provision establishes that, although the Maryland Sunshine Law is the touchstone by which public bodies are to conduct their meetings, the statute is not exclusive in its application.  The statute only outlines the minimum requirements for conducting open meetings.  Cf.  Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 393, 396 A.2d 1080, 1086 (1979) (Md.Code (1957, 1987 Repl.Vol.), Art. 23A, implementing Article XI-E, §  3 of the Maryland Constitution, only establishes minimum requirements regarding municipal affairs; municipalities are free to provide additional standards and safeguards in harmony with concurrent state legislation).  It does not supersede legislative enactments designed to bring more openness to public meetings.  Cf. Tahoe Regional Planning Agency v. McKay, 590 F.Supp. 1071, 1072 (D.Nev.1984), aff'd, 769 F.2d 534 (9th [***20]  Cir.1985) (The Tahoe Regional Planning Compact, a congressionally ratified interstate compact, intended that the sunshine law of the State granting greater public access to meetings of local governments is the law which should control the Compact's governing agency, Tahoe Regional Planning Agency).  Stated differently, section 10-504 permits expansion upon the guarantees of the statute, thereby limiting or eliminating the circumstances enumerated in section 10-508 in which closed meetings may be held. n22@ As so construed,  [*587]  section 10-504 is consistent with, and best effectuates, the legislature's commitment to promoting public access to the affairs of state.

n22 Several states have enacted a provision similar to section 10-504.  In California:
"Allowance of greater access to meetings than minimal standards in this chapter
"Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter.  In addition thereto, an elected legislative body of a local agency may impose such requirements on those appointed legislative bodies of the local agency of which all or a majority of the members are appointed by or under the authority of the elected legislative body."
Cal.Gov't Code §  54953.7 (West 1983).
In Illinois:
"Minimum requirements for home rule units
"§  6. The provisions of this Act constitute minimum requirements for home rule units; any home rule unit may enact an ordinance prescribing more stringent requirements binding upon itself which would serve to give further notice to the public and facilitate public access to meetings."
Ill.Ann.Stat. ch. 102, §  46 (Smith-Hurd 1986).
In New York:
"Construction with other laws
"1. Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.
"2. Any provision of general, special or local law or charter, administrative code, ordinance, or rule or regulation less restrictive with respect to public access than this article shall not be deemed superseded hereby.
"3. Notwithstanding any provision of this article to the contrary, a public body may adopt provisions less restrictive with respect to public access than this article."
N.Y.Pub.Off. Law §  110 (Consol.1986).  See 1977 Op. Att'y Gen. 299 (October 18) (informal).

 [***21]  
Appellee argues, and the trial court held, that the Municipal Charter provision in question (Article 10, sec. 24) is a "more stringent" law within the contemplation of section 10-504.  According to the trial court, while section 10-508 "allows public  [**1066]  bodies to hold closed meetings under certain conditions, the City Charter of College Park is more restrictive and allows no exceptions to the open meeting requirement."@ As a more stringent law, "it controls and all meetings of the Mayor and Council of College Park are required to be open meetings."
The issue presented, then, is one of statutory construction.  The fundamental task, in such a case, is to discern the objective, goal or purpose of the legislation.  Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 512, 525 A.2d 628 (1987). In our "efforts to discover purpose, aim, or policy we look at the words of the statute ... because  [*588]  what the legislature has written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal."@ Id., at 513, 525 A.2d 628. We also may consider "other material that fairly bears on the fundamental issue of legislative purpose [***22]  or goal" so that we may read the language of the legislation in the context within which it was written.  Id. at 515, 525 A.2d 628.
In the instant case, the language of Article 10, section 24 of the Municipal Charter is clear. n23@ It is a flat prohibition against closed meetings n24 in the City of College Park.  That language is totally consistent with the apparent intent of the provision, which is to mandate open meetings of the Mayor and Council.  See note 2, supra.  And see notes 8-11, supra, and accompanying text.  It is also consistent with the section 10-504 conflict of laws provision, because the Charter provision is a permissible expansion upon the guarantees embodied in the Maryland Sunshine Act. n25

n23 The term "shall" in Article 10, section 24 is presumed to be mandatory, Moss v. Director, Patuxent Inst., 279 Md. 561, 564-65, 369 A.2d 1011, 1013 (1977), and "denotes an imperative obligation inconsistent with the exercise of discretion."@ Bright v. Unsatisfied Claim & Judgment Fund Board, 275 Md. 165, 169, 338 A.2d 248, 251 (1975) (citations omitted).  See In re James S., 286 Md. 702, 410 A.2d 586 (1980). [***23]  
n24 Neither party contends that the term "meetings" in Article 10, section 24 is more or less stringent than the definition of "meet" in the Sunshine Law. Therefore, the former term means "to convene a quorum of a public body for the consideration or transaction of public business."@ Md.Code (1984, 1986 Cum.Supp.), State Government §  10-501(f).  See Wilson v. Board of Supervisors of Elections, 273 Md. 296, 328 A.2d 305 (1974).
n25 In the instant case, although Article 10, section 24 of the Charter prevails over the open meeting exceptions in section 10-508, the Sunshine Law is not inoperative in toto.  For instance, the City Council must give reasonable notice of upcoming sessions, Md. Code (1984, 1986 Cum.Supp.), State Government §  10-506, and prepare written minutes of its meetings, id. at §  10-509.  The Council is also subject to the enforcement provisions in section 10-510.  When a "more stringent" law is in force, it supersedes the application of the Maryland Sunshine Law under section 10-504 only to the extent the more stringent law exceeds the safeguards of the Act.

 [***24]  
 [*589]  In an effort to undermine the trial court's reliance on the conflict of laws provision (section 10-504), appellants argue that the Charter is not more stringent than the Sunshine Law. Appellants reason as follows:

"While the new Sunshine Act provides that all meetings, except where specifically provided, are to be open to the public ..., the City Charter states that meetings need be open only to 'the citizens of the city,' which is a more limited group than the 'general public' referred to in the new Sunshine Act."

Since the Charter provides for less public participation than the Sunshine Law, appellants contend, section 10-504 is inapplicable and the Sunshine Law and its enumerated exceptions should take precedence over the Charter.
We think the appellants read the phrase "citizens of the city" too narrowly. n26@ The "'meaning of the plainest language' is controlled by the context in which it appears."@ Kaczorowski, 309 Md. at 514, 525 A.2d 628 (quoting Guardian Life Ins. Co. of America v. Ins. Comm'r, 293 Md. 629, 642, 446 A.2d 1140, 1147 (1982)). As we have already noted, the context of the  [**1067]  words "citizens of the city" is [***25]  a charter provision designed to assure completely open meetings.  In any event, if one of the proposed interpretations would render an enactment valid, while another would render it invalid or ineffective, the court will construe the enactment to be valid whenever feasible.  In re Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976, 982 (1986); Pickett v. Prince George's County, 291 Md. 648, 661, 436 A.2d 449, 456 (1981). Relying on this rule, we conclude that the phrase noted above is consistent with, and not any narrower than, the term "general public" as used in section 10-507(a) of the Sunshine Law. See supra note 16.

n26 The appellants do not cite any legislative history or case law to support their reading of this phrase.

 [*590]  V
Appellants advance two additional arguments in support of their position.  First, appellants suggest that we read the Municipal Charter to incorporate the circumstances enumerated in section 10-508 in which closed meetings may be held.  See supra [***26]  note 18.  We decline to accept the appellants' invitation to do so.  Their argument ignores the impact of the Act's conflict of laws provision (section 10-504).  Furthermore, appellants would have us read into the Municipal Charter something which is plainly not permitted by its language, and which is completely inconsistent with the purpose of the Charter. n27

n27 In support of their incorporation argument, the appellants also rely on Article XVII of the Municipal Charter, which states:

"Where no provision is made by this Charter or the Code of Public Laws of Prince George's County for a situation which is provided for by the Annotated Code of Maryland for the State, the provisions pertaining thereto in the latter code are incorporated by reference herein for application in the City of College Park."

Appellants' reliance on this Article is misplaced.  This provision requires the incorporation of State law standards in the Municipal Charter only when the charter and county law are silent on a given area of the law.  In the instant case, however, the Charter is not silent on the subject of closed meetings.  Quite to the contrary, Article 10, section 24 is directly on point.

 [***27]  
As a fallback position, appellants argue that we should at least recognize an exception in the Municipal Charter for closed meetings between the City Council and its attorney.  According to appellants, the trial court's broad construction of the Charter provision will cripple the City Council's ability to consult with its attorney, thereby emasculating the attorney-client privilege.  They reason as follows:

"Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be greatly confounded, often made impossible, by undiscriminating insistence on open lawyer-client conferences.  In settlement advice, the attorney's professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears.  If the public's 'right to know'  [*591]  compelled admission of an audience, the ringside seats would be occupied by the government's adversary, delighted to capitalize on every revelation of weakness."

For the reasons set forth below, we reject this contention.
The attorney-client privilege, deeply rooted in common law, is now codified in Md.Code (1984 Repl.Vol., 1986 Cum.Supp.), Courts and Judicial [***28]  Proceedings §  9-108 ("A person may not be compelled to testify in violation of the attorney-client privilege.").  The privilege is:

"a rule of evidence that forever bars disclosure, without the consent of the client, of all communications that pass in confidence between the client and his attorney during the course of professional employment or as an incident of professional intercourse between them."

State v. Pratt, 284 Md. 516, 519, 398 A.2d 421, 423 (1979); Harrison v. State, 276 Md. 122, 135, 345 A.2d 830, 838 (1975). The privilege is based on the public policy of encouraging individuals needing legal assistance to disclose information freely to their attorneys without concern that such information will be revealed.  Pratt, 284 Md. at 520, 398 A.2d at 423; Harrison, 276 Md. at 135, 345 A.2d at 838. A client may  [**1068]  waive his right to confidentiality, either expressly or implicitly, but the authority to waive the privilege belongs to the client alone.  Pratt, 284 Md. at 521, 398 A.2d at 424.
The Maryland Sunshine Law recognizes the attorney-client privilege.  Section 10-508 states in part that a public body may meet in closed session [***29]  or adjourn an open session to a closed session to "consult with counsel," Md.Code (1984, 1986 Cum.Supp.), State Government §  10-508(a)(7), or to "consult with staff, consultants, or other individuals about pending or potential litigation."@ Id. at §  10-508(a)(8).  But as we have construed section 10-504, the conflict of laws provision, a jurisdiction such as College Park is authorized to eliminate this exception to the open meeting requirement.  Section 10-504 provides legislative authorization for the City of College Park to waive the attorney-client privilege between the governing public body (the City Council)  [*592]  and its attorney.  Cf.  Smith County Education Association v. Anderson, 676 S.W.2d 328, 333 (Tenn.1984). That the General Assembly has the authority to take such action, at least outside the criminal context, is not disputed.  Cf. Bremer v. State, 18 Md.App. 291, 334, 307 A.2d 503, 529, cert. denied, 269 Md. 755 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1440, 39 L.Ed.2d 488 (1974) (The privilege of communication between patient and psychiatrist "exists by legislative grant, and ordinarily the legislature may provide the conditions under [***30]  which it is applicable.") (citations omitted).
In support of their argument, appellants rely on a number of judicial decisions that have fashioned an exception in their open meeting statutes for private attorney-client discussions, even though the statutes do not explicitly contain such an exception.  See, e.g., Tahoe Regional Planning Agency v. McKay, 590 F.Supp. 1071 (D.Nev.1984), aff'd, 769 F.2d 534 (9th Cir.1985); Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (1968); Minneapolis Star & Tribune Co. v. Housing & Redevelopment Authority, 310 Minn. 313, 251 N.W.2d 620 (1976). n28@ In general, these cases have held that the State legislature did not intend to repeal the privilege when enacting the open meeting law.

n28 But see Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (refusing to imply exception); Neu v. Miami Herald Pub. Co., 462 So.2d 821 (Fla.1985) (superseded by statute as stated in City of Melbourne v. A.T.S. Melbourne Inc., 475 So.2d 270 (Fla.Dist.Ct.App.1985)) (same).

 [***31]  
These cases, however, do not control the present circumstances.  First, we are not concerned here with establishing an attorney-client exception in the Maryland Sunshine Law; the General Assembly has already recognized this exception in section 10-508(a)(7)-(8).  Second, and more significantly, when these cases were decided, none of the open meeting statutes contained a conflict of laws provision similar to section 10-504 reflecting the State legislature's intention to  [*593]  provide a given jurisdiction with the authority to afford the public greater access to meetings. n29

n29 In 1981, the California legislature enacted its own version of section 10-504.  See supra note 22.  Three years later, the State also amended its open meeting law to explicitly allow closed meetings between a legislative body and its attorney:
"Pending litigation; closed session; notice; memorandum
"Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.
"For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:
(a) An adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator to which the local agency is a party, has been initiated formally.
(b)(1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency; or
(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.
(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.
"Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state publicly to which subdivision it is pursuant.  If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.
"The legal counsel of the legislative body of the local agency shall prepare and submit to the body a memorandum stating the specific reasons and legal authority for the closed session. If the closed session is pursuant to subdivision (a), the memorandum shall include the title of the litigation.  If the closed session is pursuant to subdivision (b) or (c), the memorandum shall include the existing facts and circumstances on which it is based.  The legal counsel shall submit the memorandum to the body prior to the closed session if feasible, and in any case no later than one week after the closed session. The memorandum shall be exempt from disclosure pursuant to Section 6254.1.
"For purposes of this section, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator."
Cal. Gov't Code §  54956.9 (West 1986).

 [***32]  
 [*594]   [**1069]  In reaching our conclusion, we do not belittle the arguments advanced by the appellants that public discussions between the City Council and its attorney may be detrimental to the public's interest. n30@ On the other hand, we also acknowledge concerns that weigh in favor of holding such discussions in public.  For example, "to allow the Council to go into executive session at any time upon the pretext of consulting the City Attorney about legal matters, might readily open the door to repeated and undetectable evasions" of the Sunshine Law. Laman v. McCord, 245 Ark. 401, 406, 432 S.W.2d 753, 756 (1968). See Sacramento Newspaper Guild, 263 Cal.App.2d at 58; 69 Cal.Rptr. at 492; Minneapolis Star, 310 Minn. at 321, 246 S.W.2d at 454. In any event, the General Assembly has determined that these considerations are to be debated and resolved in the first instance by the voters of College Park.  The voters have indicated their preference in Article 10, section 24 of the Municipal Charter, and we must effectuate that clear choice.

n30 For a discussion of these policy concerns, see Sacramento Newspaper Guild, 263 Cal.App.2d at 55-7, 69 Cal.Rptr. at 490-91.

 [***33]  
It may have been unwise for the General Assembly to allow a jurisdiction to open consultations between the City Council and its attorney; and indeed it may have been unwise for the City of College Park to have taken such a step.  We do not express an opinion on either of these propositions. n31@ It is simply not our role to sit in judgment  [*595]  on the wisdom of the legislature or the voters of College Park.  This Court deals with the construction and constitutionality of legislative determinations, not their wisdom.  State v. Wyand, 304 Md. 721, 726, 501 A.2d 43, 45 (1985), cert. denied,   U.S.   , 106 S.Ct. 1492, 89 L.Ed.2d 893 (1986). See Taylor v. Department of Employment & Training, 308 Md. 468, 474, 520 A.2d 379, 382 (1987).

n31 If in hindsight the City of College Park wishes to permit closed meetings between the City Council and its attorney, it may amend the Municipal Charter. Md. Const. art. XI-E, §  4; Md.Code (1957, 1987 Repl.Vol.)@ Art. 23A, § §  11-18.  For example, the voters may wish to allow closed meetings solely when litigation is being discussed between the City Council and the attorney, and an open meeting may have an adverse impact on the City's litigation position.  See Doherty v. School Comm. of Boston, 386 Mass. 643, 436 N.E.2d 1223 (1982).

 [***34]  
We therefore conclude that the City Council of College Park is prohibited from conducting any closed meetings under Article 10, section 24 of the Municipal Charter. n32

n32 Of course, the Charter provision only speaks in terms of "meetings," which is defined as the convening of a "quorum of a public body for the consideration or transaction of public business."@ See supra note 24.  It follows from this definition that nothing prohibits the City Attorney from meeting in closed session with less than a quorum of the Council members.  Nor is a quorum of the Council foreclosed from convening in private when not considering or transacting public business. See New Carrollton, 287 Md. at 72, 410 A.2d at 1078-79.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY AFFIRMED.   [**1070]  COSTS TO BE PAID BY APPELLANTS.  

DISSENTBY:
ELDRIDGE 

DISSENT:

ELDRIDGE, Judge, dissenting:
The majority holds that the open meetings provision of the Municipal Charter of College Park is a more stringent law than the Maryland [***35]  Open Meetings Act, Maryland Code (1984, 1986 Cum.Supp.)@ § §  10-501 through 10-510 of the State Government Article, and that, therefore, the Charter provision governs meetings of the College Park City Council.  Under the Court's holding, the City Council of College Park cannot privately meet with its attorney to discuss pending or potential litigation.  Nor can the Council meet privately to discuss sensitive personnel issues.  Instead, the majority requires the City Council of College Park to discuss these matters only in open public sessions. Because I disagree with the majority's view of the College Park  [*596]  Charter and its relationship to the Maryland Open Meetings Act, I dissent.
The resolution of the dispute in this case depends upon the application of §  10-504 of the Maryland Open Meetings Act which provides:
"Whenever this subtitle and another law that relates to meetings of public bodies conflict, this subtitle applies unless the other law is more stringent."

Therefore, it must first be determined that a conflict exists between the College Park Charter and the Maryland Open Meetings Act. If there is a conflict, §  10-504 directs us to apply the "more [***36]  stringent" law.
It is undisputed that a conflict, within the meaning of §  10-504, exists between the Charter and the State Act. Article 10, §  24, of the Charter provides: "All meetings of the Mayor and Council herein provided for, shall be open to the citizens of the city."@ Conversely the State Act permits sessions to be closed to the public in very limited circumstances, §  10-508.  Section 10-507 of the State Act, however, requires that most meetings be open to the public generally, without any limitation based on citizenship or any other connection with a particular jurisdiction or geographical area.  Consequently, under the plain language of the enactments, there is a conflict in two respects.  The issue, then, is which law is more stringent and therefore controlling.
Section 10-504 of the statewide law does not define "more stringent."@ Nevertheless, the policy of the State Act is "that, except in special and appropriate circumstances [,] ... public business be performed in an open and public manner. ..."@ §  10-502.  See Carroll Co. Educ. Ass'n v. Bd. of Educ., 294 Md. 144, 147, 448 A.2d 345 (1982); Avara v. Baltimore News American, 292 Md. 543, 545, 440 A.2d [***37]  368 (1982). Consequently, when the State Act and a local open-meeting provision conflict, the policy behind the State  [*597]  Act is furthered only when the more stringent provision, i.e., the one allowing greater public access, applies. n1

n1 Three other states also have express conflict of laws provisions in their open meetings statutes.  The statutory language in each of these states indicates that municipalities may enact provisions providing greater public access, and that such local provisions will prevail over state law.  Cal. Gov't Code §  54953.7 (West 1983) ("legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter"); Ill.Ann.Stat.Ch. 102 §  46 (Smith-Hurd Supp.1986) ("any home rule unit may enact an ordinance prescribing more stringent requirements binding upon itself which would serve to ... facilitate public access to meetings"); N.Y.Pub.Off. Law §  110 (Consol.Supp.1986) ("Any provision of a charter ... which is more restrictive with respect to public access than this article shall be deemed superseded here. ...  Any provision of ... [a] charter ... less restrictive with respect to public access than this article shall not be deemed superseded hereby").

 [***38]  
Moreover, in determining whether the Charter or the Maryland Open Meetings Act allows greater public access, we must compare the entire State Act with the entire comparable provision in the Charter. This is made clear by §  10-504 of the state statute which provides that when "this subtitle" and "another law" conflict, "this subtitle applies unless the other law is more stringent."@ (Emphasis added).  See Tahoe Regional Planning Agency v. McKay, 590 F.Supp. 1071 (D.Nev.1984),  [**1071]  aff'd 769 F.2d 534 (9th Cir.1985) (in order to determine which of two state open meetings acts imposed "greater requirements," the court examined all parts of the acts, including closed meeting and record keeping provisions).
The majority initially compares the provisions in the Charter and the State Act relating to the permissibility of closed meetings.  The College Park Charter, as the majority correctly points out, flatly prohibits closed meetings, while the State statute allows closed meetings in narrowly drawn circumstances.  As a result of this comparison, the majority concludes that the Charter is less restrictive of public access and is therefore more stringent under [***39]  §  10-504.  I would agree with this conclusion if there were no limitation  [*598]  in the Charter concerning who may attend a council meeting.
As previously pointed out, the State Open Meetings Act requires meetings to be open to the "general public" (§  10-507(a)) whereas the Charter merely requires meetings to be open to the "citizens of the city."@ The majority, however, concludes that neither the Charter nor the State Act is more stringent than the other in this respect because, in the majority's view, "citizens of the city" "is consistent with, and not any narrower than, the term 'general public' as used in section 10-507(a)...."@ This construction is incompatible with the plain language used and with prior opinions of this Court.
The provision in §  10-507(a) of the State Act, that "the general public is entitled to attend" meetings of a public body, and the provision in the Charter that meetings are "open to citizens of the city," lack ambiguity in the present context.  The meaning of "public" is "relating to or affecting the people" or "relating to the international community or to mankind in general."@ Webster's Third New International Dictionary 1836 (1981). n2@  [***40]  Thus the State Act requires that meetings be open to persons generally, without any geographical or jurisdictional limitation.  The phrase "citizens of the city," however, given its broadest meaning, refers to the inhabitants or residents or domiciliaries of College Park.  See Crosse v. Board of Elections, 243 Md. 555, 559-560, 221 A.2d 431 (1966); Risewick v. Davis, 19 Md. 82, 93 (1862). If the framers of the College Park Charter had intended meetings to be open to the "general public," they would have said so, as did the framers of  [*599]  numerous other charters. n3@ Instead, the framers of the College Park Charter deliberately chose to limit meetings to "citizens of the city," and we are not free to ignore the limitation.

n2 See, e.g., Pub. Ser. Commn. v. P., B. & W. R.R. Co., 155 Md. 104, 120-121, 141 A. 509 (1928); State v. Christine, 239 La. 259, 118 So.2d 403, 405 (1959); People v. Powell, 280 Mich. 699, 274 N.W. 372, 373 (1937); Hiner v. Wenger, 197 Va. 869, 91 S.E.2d 637, 641 (1956); Peacock v. Retail Credit Company, 302 F.Supp. 418, 423 (N.D.Ga.1969), aff'd 429 F.2d 31 (5th Cir.1970). [***41]  
n3 All of the charters I have examined provide that meetings shall be "open to the public," although many provide in addition that residents of the town be given a reasonable opportunity to be heard.  See, e.g., the Charters of Berwyn Heights §  304 (1978); Bladensburg §  3-10 (1965); Brentwood §  303.0 (1977); Cheverly Art. IV §  C-13 (1978); Cottage City §  9 (1982); District Heights §  7 (1962); Glenarden §  6 (1976); Greenbelt §  5 (1984); Landover Hills §  304 (1980); Riverdale §  63-14.14 (1975); University Park §  304 (1980).  See also Charter for Prince George's County, Maryland, §  316 (1983).  I am not aware of any charter other than the College Park charter that opens its meetings only to "citizens of the city."

To bolster its conclusion that "citizens of the city" means "general public," the majority invokes the principle of statutory construction that, if there are two constructions of a provision which can reasonably be made, a court will avoid the construction that renders the provision invalid or which would involve a decision as to its validity.  See, e.g., Heileman  [***42]   Brewing v. Stroh Brewery, 308 Md. 746, 763-764, 521 A.2d 1225 (1987); Davis v. State, 294 Md. 370, 377, 451 A.2d 107, 111 (1982); Pickett v. Prince George's County, 291 Md. 648, 661, 436 A.2d 449 (1981); Moberly v. Herboldsheimer, 276 Md. 211, 217, 345 A.2d 855 (1975); Prince Geo's Co. v. Chillum-Adelphi, 275 Md. 374, 383, 340 A.2d 265 (1975); District Land v. Wash. S.S.C., 266 Md. 301, 311-312, 292 A.2d 695 (1972). The  [**1072]  majority's reliance upon this principle is entirely misplaced.  Under the principle invoked by the majority, the construction which avoids a holding that the provision is invalid "must be reasonable; it must be permitted by the statutory language."@ Heileman Brewing v. Stroh Brewery, supra, 308 Md. at 764, 521 A.2d 1225. As previously discussed, the language "citizens of the city" is not reasonably susceptible to the construction embraced by the majority.  Moreover, I see no reason to adopt a strained construction of a local provision in order to save it from an express preemption clause in or a conflict with a state statute.  Cf. Montgomery County v. Atlantic  [*600]  Guns, Inc., 302 Md. 540, 489 A.2d 1114 (1985); Rockville  [***43]   Grosvenor Inc. v. Mont. Co., 289 Md. 74, 422 A.2d 353 (1980). To do so would circumvent the intent of the General Assembly.
As earlier mentioned, under the majority's construction of the College Park Charter, the Mayor and City Council of College Park may not meet privately with the municipal attorney to discuss pending litigation.  Similarly, they may not meet privately to discuss sensitive personnel issues.  This is unworkable and impractical.  No attorney and client team could effectively plan litigation strategy when its discussions are open to its adversaries, yet this is the result required by the majority.  The majority opinion cannot be reconciled with the longstanding principle that courts should avoid constructions which are absurd, unreasonable, illogical, or inconsistent with common sense.  Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 512, 525 A.2d 628 (1987); In re Special Investigation No. 281, 299 Md. 181, 200, 473 A.2d 1 (1984); Cider Barrel Mobile Home v. Eader, 287 Md. 571, 583-584, 414 A.2d 1246 (1980); Hoffman v. Key Fed. Sav. & Loan, 286 Md. 28, 43, 416 A.2d 1265 (1979); Francois v. Alberti Van & Stg. Co., 285 Md. 663,  [***44]  670, 404 A.2d 1058 (1979); Curtis v. State, 284 Md. 132, 149, 395 A.2d 464 (1978).
In summary, the College Park Charter prescribes that City Council meetings shall be "open to the citizens of the city."@ Under the broadest reasonable construction of the language, access to City Council meetings is limited to those who reside or are domiciled within the corporate limits of College Park.  In light of this limitation, it is obvious that the Maryland Open Meetings Act is less restrictive of public access and is, therefore, more stringent under §  10-504.  Consequently, the state statute should apply to meetings of the City Council.  I would reverse.  

5 of 37 DOCUMENTS 

JOHN J. DENNIS II, et al. v. THE MAYOR AND CITY COUNCIL OF ROCKVILLE 

No. 4, September Term, 1979 

Court of Appeals of Maryland 

286 Md. 184; 406 A.2d 284; 1979 Md. LEXIS 284 

October 8, 1979, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Montgomery County; Frosh, J., pursuant to certiorari to the Court of Special Appeals.  

DISPOSITION:
Judgment affirmed.  Appellants to pay costs.  

HEADNOTES:

Municipal Corporations -- Contracts -- Forfeitures -- Ordinance, Operating Prospectively, Providing For The Rescission Of A Contract Entered Into After The Enactment Of The Ordinance, Is Not A Forfeiture -- Laws Subsisting At The Time Of The Making Of A Contract Enter Into And Form Part Thereof As If Expressly Referred To Or Incorporated In Its Terms And The Principle Embraces Alike Those Provisions Which Affect The Validity, Construction, Discharge And Enforcement Of The Contract.  Court held that the City of Rockville was empowered to enact an ordinance imposing a duty on property owners, or their agents, to give prospective purchasers an opportunity to examine the Master Plan which contained information concerning zoning, planned land uses, roads, proposed parks and other public facilities affecting the property and provide that, in the event its provisions were violated, the purchaser would have the right to terminate the realty contract.  Such a provision is not a forfeiture since the laws [***2]  subsisting at the time of making the contract enter into and become part of the contract.
Contracts -- Municipal Corporations -- The Provision Of The Ordinance Providing For Rescission Is Incorporated Into The Contract Just As Effectively As If It Had Been Written Into The Contract -- Provision Providing That Purchaser Be Given Opportunity To Examine The Master Plan Designed To Provide Prospective Purchasers With Certain Information About The Future Planned Course Of Development Of The Area Surrounding The Real Estate To Be Purchased And The City, In Exercising Its Powers, May Determine That The Most Reasonable And Effective Sanction Would Be The Termination Of The Contract -- Termination Of The Contract Is An Appropriate Remedy Reasonably Designed To Effect The Valid Obligation And Duties That The Ordinance Imposes.  

SYLLABUS:

Action by John J. Dennis II, Robert S. Montgomery and Waddell S. Taylor seeking a declaratory judgment that §  12-1.18A of the Laws of Rockville was invalid and an injunction against the enforcement of the ordinance.  From a decree declaring that the ordinance was valid and constitutional they appeal.  A writ of certiorari was issued prior to a decision in the [***3]  Court of Special Appeals.  

COUNSEL:
Patrick Casey Duncan, with whom were B. George Ballman, James M. Griffin and Staley, Prescott & Ballman, P.A. on the brief, for appellants.
Sondra Harans Block, Assistant City Attorney, and Roger W. Titus, City Attorney, for appellee.  

JUDGES:
Murphy, C. J., and Smith, Digges, Eldridge, Orth, Cole and Davidson, JJ.  Eldridge, J., delivered the opinion of the Court.  

OPINIONBY:
ELDRIDGE 

OPINION:

 [*185]   [**284]  In 1976, the City Council of Rockville enacted an ordinance, presently codified as §  12-1.18A of the Laws of Rockville, designed to provide prospective purchasers of  [**285]  real property with information concerning zoning, planned land uses, roads, proposed parks, and other public facilities affecting the property.  Section 12-1.18A imposed a duty upon the property owner's agent, or upon the property owner should an agent not be employed, to provide a prospective purchaser of realty with the opportunity to examine the Master Plan prior to entering into a contract of sale. This could be done by either (1) producing and making available for examination a copy of the Plan or (2) escorting the purchaser to a place where the [***4]  Plan was available for inspection and obtaining the Plan for the purchaser's inspection.  Section 12-1.18A further provided that, in the event its provisions were violated, the purchaser would have the right to terminate the contract of sale at any time prior to the conveyance of the property.  The issue presented on this appeal is whether the City of Rockville had the authority to enact that part of §  12-1.18A providing that the purchaser shall have the right to terminate the contract upon a failure of the agent or the owner to comply with the duty imposed upon them.  For the reasons set forth below, we hold that the City of Rockville had such authority.
 [*186]  The plaintiffs, John J. Dennis II and Robert S. Montgomery, real estate agents engaged in selling real estate in Rockville, and Waddell S. Taylor, a resident of Rockville, filed a bill in equity in the Circuit Court for Montgomery County.  The plaintiffs, raising several arguments challenging the authority of the City of Rockville to enact any part of the ordinance, sought a declaratory judgment that §  12-1.18A was invalid as a whole and an injunction against the enforcement of the ordinance. In a decree filed October [***5]  4, 1978, the trial court (Frosh, J.) declared that §  12-1.18A was valid and constitutional in all respects.  After the plaintiffs filed an appeal to the Court of Special Appeals, we issued a writ of certiorari prior to a decision by that court.
In this Court, the plaintiffs concede that the City has the authority to regulate the sale of real property by enacting that part of §  12-1.18A imposing a duty upon the seller or his agent to provide the purchaser with the opportunity to examine the Master Plan.  The only issue raised by the plaintiffs on this appeal, and thus the only issue decided by us, is whether the City, in order to enforce the ordinance, has the authority to authorize the purchaser to terminate the contract of sale in the event of a violation.
The plaintiffs contend that the provision permitting the purchaser to terminate the contract creates a "forfeiture" of their contractual rights which may not be done by a municipality without express authority.  In support of this contention, the plaintiffs cite the rule set forth in I J.Dillon, Municipal Corporations §  237 (5th ed. 1911), that

"a municipal corporation possesses and can exercise the following  [***6]   powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, -- not simply convenient, but indispensable." n1

 [*187]  Moreover, the plaintiffs assert that this principle is especially applicable to forfeitures, relying primarily upon Rossberg v. State, 111 Md. 394, 74 A. 581 (1909). The plaintiffs point out that neither the Rockville City Charter nor Maryland Code (1957, 1973 Repl. Vol., 1978 Cum. Supp.), Art. 23A, contains express authorization to enact a forfeiture. They further point out that the charter and code provisions directly relating to the enforcement of municipal ordinances provide only for the imposition of fines and imprisonment. n2 Therefore, they argue that  [**286]  because the power to create a forfeiture was not expressly or by necessary implication granted to the City, under Rossberg v. State, supra, the City lacked the authority to declare contracts terminable at the purchaser's option.

n1 This Court has frequently recognized the so-called "Dillon Rule" in connection with the authority of municipal corporations.  See, e.g., Bowie Inn v. City of Bowie, 274 Md. 230, 247, 335 A.2d 679 (1975); McRobie v. Town of Westernport, 260 Md. 464, 466, 272 A.2d 655 (1971); Rushe v. Hyattsville, 116 Md. 122, 81 A. 278 (1911). [***7]  
n2 Code (1957, 1973 Repl. Vol., 1978 Cum. Supp.), Art. 23A, §  3(a), provides in pertinent part that the

"legislative body of any municipality shall have power to provide that violations of ordinances and resolutions authorized by this article shall be punishable as misdemeanors, but no penalty shall exceed a fine of $ 500 and imprisonment for 90 days."

Article IV, §  3, of the Rockville charter, presently codified in 1972 Montgomery County Code (1977 Repl. Vol.), §  72-16, provides for fines of up to one hundred dollars and imprisonment not exceeding thirty days, or both.

In Rossberg, a Baltimore City ordinance prohibited the sale, furnishing or possession of cocaine.  The ordinance provided a penalty of a fine and imprisonment, and in the event the offender was a licensed pharmacist or physician, the forfeiture of his license. At the time of the enactment of the Baltimore City ordinance, there was also in effect a state law prohibiting the sale and furnishing (but not the simple possession) of cocaine and prescribing a penalty of a fine and imprisonment (but not a forfeiture [***8]  of the license of a convicted pharmacist or physician).  Dr. Rossberg, a licensed pharmacist, was convicted for the sale of cocaine in violation of the Baltimore City ordinance. This Court first upheld the validity of those parts of the local ordinance that provided for a fine and imprisonment of a different amount than the state statute. The Court then addressed the license-forfeiture  [*188]  issue.  The trial court had held that the forfeiture provision was so oppressive that it was an unreasonable exercise of the police power, 111 Md. at 419, 74 A. at 585. This Court, however, after noting that forfeiture of the license might be the only fully adequate penalty, nevertheless held (ibid.):
"Our examination of the matter leads us to the conclusion that under its charter the City of Baltimore has no power to declare any forfeiture.
"In a note to Cooley's Constitutional Limitations, page 249, 5th Ed., the author says: 'Municipal by-laws may impose penalties on parties guilty of a violation thereof, but they cannot impose forfeiture of property or rights without express legislative authority,' citing State v. Ferguson, 33 N.H. 424, and Phillips v. Allen, [***9]  41 Pa. St. 481. JUDGE DILLON states the law in the same way, in his work on Municipal Corporations, Vol. 1, sec. 336.  And McQuillan on Ordinances, sec. 170, says the general rule is that an ordinance cannot create a forfeiture in the absence of express power so to do, citing Kirk v. Nowell, 1 Term. Rep. 118; and he adds in the same section: 'The American Courts have generally followed the early English rule, and have held that in the absence of express power given an ordinance cannot be enforced by forfeiture.'"

See also Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137, 144 (1841); White v. Tallman, 26 N.J.L. 67 (2 Dutcher) (1856); Coonley v. City of Albany, 132 N.Y. 145, 153, 30 N.E. 382 (1892); Hart v. Mayor, &c. of Albany, 9 Wend. 571, 588 (Ct. for Correction of Errors, N.Y., opinion of Sutherland, J.) (1832); Phillips v. Allen, 41 Pa. 481 (1862); Heise v. Town Council, 6 Rich. 404 (S.C. 1853); II J.Dillon, supra, § §  611, 618; 5 E.McQuillin, Municipal Corporations §  17.08 (3d ed. 1969).
The above-quoted language from Rossberg, on which the plaintiffs here place much reliance, was set forth in a totally different context.  [***10]  Rossberg dealt with a license to generally engage in one's profession.  It was treated by the Court as a property right, unlike many other types of licenses which are  [*189]  not deemed to create property or contract rights. n3 The license involved in Rossberg was not granted by the City under a municipal ordinance but was issued by a state agency pursuant to a state statute, Code (1904), Art. 43, § §  141-154.  It was under these circumstances that the Court in Rossberg applied the principle that a municipal corporation may not enact a forfeiture absent express authority.

n3 E.g., Robert T. Foley Co. v. W.S.S.C., 283 Md. 140, 153, 389 A.2d 350 (1978); Fell v. State, 42 Md. 71, 89 (1875).

 [**287]  We need not in the instant case explore the extent to which this principle set forth in Rossberg might be equally applicable to "forfeitures" under dissimilar circumstances. n4 In our view, the challenged City of Rockville ordinance does not at all involve a "forfeiture" as that term was used [***11]  in the Rossberg case.  In the case at bar, the City is not attempting to infringe upon, alter or destroy any pre-existing property or contractual right.  Section 12-1.18A did not authorize the City of Rockville to acquire the contract right of either party or the seller's profits from the sale or the parcel of real property involved.  The ordinance did not revoke the real estate agent's license. If that were the case, the plaintiffs might have a stronger argument that a forfeiture had been created.  Instead, §  12-1.18A simply attempted to require prospectively a mode of conduct and provide a sanction for the breach thereof by returning the parties to the status quo.

n4 This Court has previously recognized, both before and after Rossberg, the implied authority of a municipality to revoke a license or cause the destruction of harmful property as part of a valid regulatory scheme.  See Schultz v. State, 112 Md. 211, 76 A. 592 (1910); Deems v. M. & C. C. of Balto., 80 Md. 164, 30 A. 648 (1894); Boehm & Loeber v. Mayor, &c., of Baltimore, 61 Md. 259 (1884).

 [***12]  
An ordinance, operating prospectively, providing for the rescission of a contract entered into after the enactment of the ordinance, is not a forfeiture. It has been frequently recognized by this Court that the laws subsisting at the time of the making of a contract enter into and form a part thereof as if expressly referred to or incorporated in its terms, and the principle embraces alike those provisions which affect the validity, construction, discharge and enforcement of the contract.  Beca v. City of Baltimore, 279 Md. 177, 182, 367  [*190]  A.2d 478 (1977); Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 473-474, 341 A.2d 399 (1975); Downing Dev. Corp. v. Brazelton, 253 Md. 390, 252 A.2d 849 (1969); Holmes v. Sharretts, 228 Md. 358, 180 A.2d 302, 98 A.L.R.2d 363 (1962); Whitworth, Adm'r v. Department, 222 Md. 98, 158 A.2d 765 (1960).
For example, in Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 237 A.2d 4 (1968), this Court held that a provision of the county building code became a substantive term of the sale contract, and that a breach of the code provision, if substantial, would permit the buyer to terminate the contract.  Accord, Griffith  [***13]   v. Scheungrab, 219 Md. 27, 146 A.2d 864 (1959).
Similarly, in Prince George's Club v. Carr, 235 Md. 591, 202 A.2d 354 (1964), a corporation entered into a contract to sell its real property.  Its real estate broker also signed the contract and agreed that his commission would come out of the settlement proceeds.  At the time the contract was made, Code (1957), Art. 23, § §  65, 66, required that the sale be approved by two-thirds of the shareholders. Because shareholder approval was not obtained, the sale was not consummated.  After holding that consummation of the sale was a condition to the broker's entitlement to his commission, the Court stated (235 Md. at 607-608):
"This Court, in various decisions over a long span of years, has cited and applied 'the general rule that subsisting laws enter into and form part of a contract as if expressly referred to or incorporated in its terms, and the rule embraces alike those provisions which affect its validity, construction, discharge, and enforcement.' ...
"The surrounding circumstances, including the limitation by reason of Code (1957), Art. 23, Secs. 65 and 66, that the Club could not make the sale that Mr. Coates, the vice-president [***14]  of the broker, had arranged without the approval of two-thirds of its stockholders, make it appear to us that the condition of no commission without a settlement and payment  [*191]  of the purchase price was applicable if the stockholders did not approve the sale.
"Mr. Coates was a realtor of twenty-six years experience.  ... We think he cannot have failed to know that the Club  [**288]  intended to sell substantially all of its assets, and that the stockholders were the persons who, as a group, had the final say when a chance to do so was presented, (he himself had told the second stockholders meeting he attended that one of the terms of the contract he proposed was the deposit was subject to 'ratification of agreement') and that he was chargeable with knowledge that two-thirds of the stockholders must approve if such a sale were to go through.  Under these circumstances, when Edw. R. Carr, Inc., by Mr. Coates, signed the contract which embodied the condition that its commission was to be paid at settlement and from the purchase price then payable, it agreed that it would get no commission unless the stockholders of the Club approved the sale as effectively as if that proviso  [***15]   had been written in the contract in so many words.  ..." (Emphasis supplied.)

Accordingly, this Court concluded that the broker was not entitled to his commission.
Applying these principles to the case at bar, it is apparent that at the time a contract subject to §  12-1.18A would be made, the parties would have "agreed ... as effectively as if that proviso had been written in the contract" (235 Md. at 608) that the failure to provide the purchaser with the opportunity to examine the Master Plan authorized the purchaser to terminate the contract.  By this incorporation, the purchaser's power to terminate the contract becomes an implied condition to the other side's contractual rights, just as effectively as if it had been expressly written into the contract.  Prince George's Club v. Carr, supra, 235 Md. at 608; Griffith v. Scheungrab, supra. Consequently, the termination of the contract permitted by §  12-1.18A results from the contract  [*192]  itself, by virtue of its incorporation of the ordinance. Unlike the situation in Rossberg, it is not the forfeiture of a pre-existing property or contract right.
As previously mentioned, the plaintiffs do not [***16]  in this Court challenge the City's authority to impose a duty upon the seller or his agent to provide a purchaser with the opportunity to examine the Master Plan, and thus we assume arguendo that the City is authorized by its charter or by state law to impose such duty. In light of our conclusion that the contract termination provision of §  12-1.18A does not effect a forfeiture, we believe that this particular remedy is, in the language of Dillon, "fairly implied in or incident to" n5 the power to impose the duty.

n5 I J. Dillon, Municipal Corporations §  237 (5th ed. 1911).

The purpose of §  12-1.18A is to provide certain information about the future planned course of development in the area surrounding the real estate to be purchased.  The City Council of Rockville could reasonably conclude that the imposition of only fines and imprisonment, leaving the purchaser subject to the sales contract, would neither deter violations nor achieve the purpose intended by the ordinance, and that the most reasonable [***17]  and effective sanction would be to permit the termination of the contract.  Moreover, a grant to the purchaser of the right to cancel a contract is a frequently utilized remedy in consumer protection legislation.  See, e.g., Code (1975) § §  14-302 to 14-303 of the Commercial Law Article; id. at §  12-605; Code (1974), §  10-102 of the Real Property Article.  Under the circumstances of this case, we believe that the sanction in §  12-1.18A is an appropriate remedy that is reasonably designed to effect the concededly valid obligation and duties that the ordinance imposes.
Judgment affirmed.
Appellants to pay costs.  

6 of 37 DOCUMENTS 

DEPARTMENT OF NATURAL RESOURCES v. FRANCE 

No. 90, September Term, 1975 

Court of Appeals of Maryland 

277 Md. 432; 357 A.2d 78; 1976 Md. LEXIS 979 

April 13, 1976, Decided 

PRIOR HISTORY:
 [***1]  

Certiorari to the Court of Special Appeals of Maryland.  Circuit Court for Wicomico County, Duer and Pollitt, JJ.  

DISPOSITION:
Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that the case be remanded to the Circuit Court for Wicomico County for the passage of an order, in accordance with the order set forth above; costs to be paid by appellant.  

HEADNOTES:

Navigable Waters -- "Channel" Defined As Portion Of River Bed Which Furnishes Uninterruptedly, Through Its Course, The Deepest Water.
Counties -- Jurisdiction Of County Lying On Navigable River -- Except Where Otherwise Fixed By Law, Boundary Between Counties Bordering On Navigable River Is Thalweg, i.e., Center Of River Channel -- Code (1969 Repl. Vol.) Art. 75, §  81.
Counties -- Boundary Of Somerset And Wicomico Counties -- Fixed At Thread Of Channel In Wicomico River And Extends To Its Intersection In Tangier Sound With Thread Of Main Channel Of Nanticoke River -- Maryland Constitution, Art. XIII, §  2 -- Jurisdiction Of Each County Extends To Thread Of Channel.
Statutes -- Construction -- Later Statute Will Not Repeal By Implication An Earlier One Unless Demanded  [***2]   By Irreconcilability Or Repugnancy -- If Possible, Two Statutes Dealing With Same Subject Shall Be Construed In Harmony With Their Respective Objects -- Specific Enactment Controls Matters Within Its Purview Over General Enactment.  Where earlier legislative enactment was directed specifically at fixing the boundary and jurisdiction of counties separated by navigable rivers, subsequent enactment fixing jurisdiction of counties bounded by navigable waters was held to apply to only such cases as are not within the earlier legislation, i.e., to the jurisdictional limits of counties binding on waters other than navigable rivers. Compare Code (1969), Art. 75, §  81 with Art. 75, §  82.
Counties -- Boundaries -- Hydrographic Charts Are Proper Evidence To Determine Channel Of Navigable River -- Error To Ascertain Boundaries By Use Of Topographic Maps In Case Where Boundary Is Channel Of Navigable River.  

SYLLABUS:

Action by the Department of Natural Resources against Eldridge R. France in the Circuit Court for Wicomico County, seeking a declaration of the proper and constitutional boundary between the waters of Wicomico County and Somerset County, and ancillary injunctive relief.  [***3]  France filed a cross bill for injunctive relief.  From a decree of the Circuit Court for Wicomico County (Duer and Pollitt, JJ.), the Department of Natural Resources appealed to the Court of Special Appeals, which modified the decree and affirmed as modified.  Department of Natural Resources v. France, 28 Md. App. 110, 344 A. 2d 193 (1975). The Court issued a writ of certiorari.  

COUNSEL:
Warren K. Rich, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General, on the brief, for appellant.
No brief filed on behalf of appellee.  

JUDGES:
Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and * O'Donnell, JJ.  * O'Donnell, J., delivered the opinion of the Court.  Smith, J., dissents and filed a dissenting opinion at page 465 infra.
* O'Donnell, J., participated in the hearing of the case and in the conference in regard to its decision, but died prior to the adoption of the opinion by the Court. 

OPINIONBY:
O'DONNELL 

OPINION:

 [*433]   [**79]  In this case, we are called upon, for the purpose of venue, to locate the boundary line between two counties separated by a navigable river; at issue is whether [***4]  the boundary line between Wicomico and Somerset Counties, at the confluence of the Wicomico and Nanticoke Rivers, runs along the mid-point of the geographic center of the water area of the  [*434]  Wicomico River, or whether it is fixed by the thalweg of the channel of the Wicomico River, located southward of its geographic center line.
The factual posture in which this boundary dispute arose involved the dredging of oysters, by the use of patent tongs, upon two natural oyster bars, the Great Shoals Bar, located at the mouth of the Wicomico River, and the Middleground Bar, located at the mouth of the Nanticoke River, where those rivers converge to form Tangier Sound.
Maryland Code (1974), Natural Resources Article, §  4-1011 (a), prohibits the use of patent tongs to catch oysters in the waters of Wicomico County. n1 "County waters" are defined in §  4-1001 (d), of the same article, as "the waters lying within  [**80]  the territorial limits of any county in the state as defined by the charts of the Oyster Survey of 1906 to 1912, and its amendments."

n1 The waters of Somerset County are not included within the prohibition.

 [***5]  
In late November and early December, 1974, enforcement officers of the appellant, Department of Natural Resources, (the "Department"), apprehended a number of oystermen, including the appellee, Eldridge R. France -- who was cited several times -- using patent tongs on the Great Shoals and Middleground oyster bars and charged them with violating §  4-1011 (a) of the Natural Resources Article.  When the appellee, as the first of the alleged offenders, was brought to trial in the District Court for Wicomico County, the charge against him was dismissed, upon a finding that those portions of the two bars on which the patent tonging had occurred, were located within Somerset County, as shown on the topographic maps, prepared by the Maryland Geological Survey, and were not geographically within Wicomico County.
On December 13, 1974, the Department, acting on behalf of the State, instituted an action in the Circuit Court for Wicomico County, which sought a declaration that "the proper and constitutional boundary between the waters of Wicomico County and Somerset County, for purposes of Title 4 of the Natural Resources Article, is that established  [*435]  by the Oyster Survey of 1906 [***6]  to 1912, and its amendments;" as ancillary relief, the complaint sought that the appellee, and "other holders of licenses to take oysters for commercial purposes by use of patent tongs during the 1974-1975 oyster season" be enjoined from "the taking of oysters by the use of patent tongs ... from the waters of Wicomico County as defined by the Charts of the Oyster Survey of 1906 to 1912, and its amendments." The appellee countered with a cross-Bill of Complaint, praying that the Department be enjoined from "issuing summons[es] or other charging documents requiring the presence of the Cross-Complainant in the District Court for Wicomico County ... for offenses allegedly occurring within the territorial limits of Somerset County ... or the prosecution thereof in the District Court for Wicomico County." n2

n2 On December 10, 1974, the appellee, France, and a number of other licensed oystermen, filed a Bill of Complaint in the Circuit Court for Somerset County, alleging that despite the ruling by the District Court for Wicomico County, (as to venue) the Department's "officers ... have continued to wrongfully harass, hinder and interfere with [them] in their daily occupation, by ordering them to cease their lawful tonging of oysters and have continued to arrest [them] and issue summons[es] for them to appear in the District Court for Wicomico County ... knowing [that] the alleged offenses and act[s] ... took place in Somerset County ... and that the District Court for Wicomico County will not hear the cases involving the alleged offenses because of lack of proper venue." The appellee and the other complainants sought to enjoin the Department from such further conduct.  A copy of the Bill of Complaint filed in the Circuit Court for Somerset County was filed and incorporated with France's cross-complaint in the Wicomico Circuit Court proceedings.  It appears that the complaint filed in Somerset County has not been brought to trial.

 [***7]  
When the matter was heard in the Circuit Court for Wicomico County (before Duer, C. J. and Pollitt, J.), n3 the trial court ruled that "the proper boundary between the waters of Wicomico County and Somerset County, for the purposes of the Natural Resources Article is the channel of the Wicomico River as designated in Article XIII, Section 2, of the Constitution of Maryland, and as shown on the Oyster Survey [Charts] of 1906 to 1912, and its amendments," and that an injunction would issue "prohibiting the taking of oysters by the use of patent tongs, in Wicomico County waters, as shown on [those] maps." The trial court further  [*436]  held that "the jurisdiction of counties on navigable waters  [**81]  was, for the purposes of service of process, as shown on the topographic maps prepared and distributed according to the provisions of those Sections [82-84] of Article 75" and that it would enjoin the appellant, or any "other law enforcement agency, from bringing prosecution in these cases in Wicomico County because the District Court of Wicomico County has no jurisdiction, the proper place for any prosecution for any violation of the law south of this line [as] shown on [***8]  the topographic maps being in Somerset County."

n3 Judges of the First Judicial Circuit residing, respectively, in Somerset and Wicomico Counties.

The circuit court, by its decree (a) enjoined the appellee and all other holders of patent tong licenses, from "taking ... oysters by the use of patent tongs in the waters of Wicomico County as shown on the Oyster Survey of 1906 to 1912, and its amendments;" and (b), declared that "the proper boundary between Wicomico County and Somerset County for the purposes of service of process is as shown on the county maps of Wicomico and Somerset Counties, issued under [the] authority of the Laws of Maryland, 1896, Chapter 51, and the Laws of Maryland, 1898, Chapter 129 [as set forth in Art. 75, §  83]" (emphasis added), and enjoined the appellant and its agents, "from instituting [the] prosecution of any person in the District Court for Wicomico County ... for any offenses ... alleged to have occurred within the territorial limits of Somerset County ... as [***9]  shown on said [topographic] maps."
The Department appealed to the Court of Special Appeals from the second portion of the decree.  It asserted that the trial court was in error in holding that the jurisdictional boundary line between the two counties was as shown on the topographic maps (to be the geographic center of the river), within the provisions of Code (1957, 1969 Repl. Vol.), Art. 75, § §  82-84, and, urged a construction of the word "channel" to mean the "natural channel," i.e., the deepest part of the river, contending that the true boundary line, in accordance with Article XIII, Section 2, of the Maryland Constitution, and the provisions of Art. 75, §  81, was the mid-channel line of the Wicomico River.
 [*437]  The Court of Special Appeals, in Department of Natural Resources v. France, 28 Md. App. 110, 344 A. 2d 193 (1975), pointing out that the appellee had been enjoined from using patent tongs in the waters of Wicomico County, and that the State's Attorney of Wicomico County had agreed to hold in abeyance the cases involving other oystermen, pending final decision in these proceedings, found that the injunction against the Department, contained in the second [***10]  portion of the decree, was "unnecessary" and "too broad," and vacated it.  That court was further of the view that the declaration made by the circuit court as to the boundary between the two counties was correct, but, limited as it was "for the purposes of service of process," was "too restrictive." The court, noting that pursuant to Maryland Rule 104 a, process issued from any court may be served on the party named therein wherever he may be found, "whether in or out of the said county," and that the principal issue involved the proper venue for the trial of the appellee for violations of §  4-1011 (a) of the Natural Resources Article, modified the second portion of the trial court's decree to read as follows: "The proper boundary between Wicomico and Somerset County for purposes of venue is as shown on the county map of Somerset County issued under authority of the Laws of Maryland, 1896, Chapter 51, and the Laws of Maryland, 1898, Chapter 129 ..." (emphasis added) As modified, the decree was affirmed.  Finding that a review of the case was "desirable and in the public interest," pursuant to Code (1974), Courts and Judicial Proceedings Article §  12-203, we granted certiorari.  [***11]  
In 1704, the Provincial General Assembly, by the enactment of Chapter XCII, confirmed as "firm and stable forever" the "several Divisions and Partitions" made  [**82]  by the Act of May 8, 1695, which created Prince George's County, and the "several other Divisions and Partitions, Lines and Land-Marks, [which] were made, relating to the Bounds of both" Anne Arundel and Baltimore Counties, which were created by the Act of April 16, 1698.  The Act of 1704 then went on to provide:

"III. And whereas there are several Counties that  [*438]  are divided by navigable Rivers, and no Rule yet made how far the Jurisdiction of each County shall extend on the River; BE IT THEREFORE ENACTED by the Authority aforesaid, That every County lying on any navigable River, in this Province, shall extend its Jurisdiction From the Shore to the Channel of such River that divides the County; and be divided From the other County by the Channel of the said River.  And that where any Ship or Vessel shall ride at Anchor in the Channel of such River, Process may be served on board said Ship, by the Officer of either County that can first serve it.  But when moored by any Hold on [***12]  the Land, shall be supposed to lie in That County to whose shore she is Fastened, if moored." (emphasis added).
Section III of Chapter XCII of the Acts of 1704 has remained virtually unchanged, except for those changes made by the General Assembly in 1860, when it adopted a Code of Public General Laws.  Today it is codified as Art. 75, §  81, and reads as follows:

"§  81. Jurisdiction of county lying on navigable river.
"Every county lying on any navigable river in this State shall extend its jurisdiction from the shore to the channel of the river that divides the counties except where a dividing line has been fixed in such river by law, and where any ship or other vessel shall be in said river, process may be served on board the said ship or vessel by the officers of either county that can first serve it; but if she is moored or fastened to the land on either side of said river, then she shall be considered as in the county to whose shore she is fastened." n4 (emphasis added).

n4 The italicized portions in Art. 75, §  81 represent the changes made by the Commissioners appointed to review and codify the Acts of Assembly, embracing "all the legislation from the first settlement of the State," and which were adopted by the General Assembly when, in 1860, it enacted a Code of Public General Laws, codifying the Section as Art. 75, §  90, in the Code of 1860.  The phrase "except where a dividing line has been fixed in such river by law" was engrafted on the statute.

 [***13]  
 [*439]  The statute so provided when, by Article XIII, Sections 2-5, of the Constitution of 1867, provision was made for the creation of Wicomico County, the second youngest county in the State. n5 Wicomico County is the only county in the State whose boundaries are fixed by the Constitution; carved from what was a part of Worcester and Somerset Counties, the boundaries of Wicomico County are fixed by Article XIII, Section 2 of the Constitution, as follows:

"Beginning at the point, where Mason and Dixon's line crosses the channel of Pocomoke River, thence following said line to the channel of the Nanticoke River, thence with the channel of said river to Tangier Sound, or the intersection of Nanticoke and Wicomico Rivers, thence up the channel of the Wicomico River to the mouth of Wicomico Creek, thence with the channel of said creek and Passerdyke Creek to Dashield's, or Disharoon's Mills, thence with the millpond of said mills and Branch following the middle prong of said Branch, to Meadow Bridge, on the road, dividing the Counties of Somerset and Worcester, near the southwest corner of the farm  [**83]  of William P. Morris, thence due east [***14]  to the Pocomoke River, then with the channel of said river to the beginning, ..." (emphasis added).

n5 Garrett County, created by Chapter 212 of the Acts of 1872, is the newest county in the State.

The first case which discusses the Act of 1704, Ch. 92, is Raab v. State, 7 Md. 483 (1855). In that case, the appellant, indicted in the Criminal Court of Baltimore City for receiving stolen goods, upon affidavit had his case removed to the Circuit Court for Anne Arundel County.  After a verdict of guilty, he filed a motion in arrest of judgment contending that the latter court had no jurisdiction to try his case, since it was not a court of a county "adjoining the city of Baltimore, to which alone the judge of the Criminal Court [of Baltimore] was required by the constitution to remove  [*440]  the cause." At issue was: "Whether Anne Arundel county adjoins the city of Baltimore?"
In overruling the motion, Judge Brewer, of the Circuit Court for Anne Arundel County, prefaced his opinion by stating:  [***15]  "[w]here the counties are divided by streams not navigable, in analogy to grants, each of the adjoining counties runs to the middle of the stream.  *** The same rule may possibly obtain as to navigable rivers; of that, however, I doubt." 7 Md. at 484. n6 (emphasis added).  After reviewing the enactments by which the various counties of the State, then in existence, had been created, he pointed out that the Act of 1704, Ch. 92, confirmed the division between Baltimore and Anne Arundel Counties, as made by the Act of 1698, and that the Act of 1704, "establishing a rule as to the jurisdiction of counties binding on navigable rivers" was not confined in its application to counties then mentioned in the Acts of 1695 and 1698, but "[i]t must have been then contemplated to lay off other counties," and that "the object of the Act of 1704" "seems to be to establish a rule applicable to all similar cases." 7 Md. at 486-87. (emphasis in original).

n6 The full opinion of Judge Brewer, in the Circuit Court for Anne Arundel County, was set forth with the report of the decision of this Court in Raab v. State, 7 Md. 483, 483-93 (1855).

 [***16]  
That court, then finding that the Act of 1726, Ch. 1, had repealed so much of the Act of 1698 as added the south side of the Patapsco River to Baltimore County, and had fixed the boundary of Anne Arundel County as lying on the south side of the Patapsco and running with that river, reasoned that "if the Act of 1704 applies to counties subsequently laid off, [that Act] carries it [the boundary of Anne Arundel County] to the middle of the stream, and at any rate would leave to Baltimore County only half of the river, precisely the same as if a law bounded it on the north side." 7 Md. at 488 (emphasis added).
Pointing out that the Act of 1816, which engrafted portions of Baltimore County onto the limits of Baltimore City had fixed the boundary of the City, "on the main branch of the Patapsco River 'and running with and bounding on  [*441]  the main branch'" of that river, and had included "all the land on the south side of the old city limits, which was in Baltimore county," Judge Brewer concluded that the city boundary "[r]unning with the river, if the county ran with the river, ... would certainly give to the city all the rights of the county connected with the [***17]  land, which would carry the city to the middle of the river so far as it extended on it, which right [as to navigation] is indispensable to the city." 7 Md. at 492. (emphasis added).  In holding that Anne Arundel County thus adjoined Baltimore City, the Anne Arundel County Circuit Court was of the view that the "idea of Anne Arundel county holding the land on one side of the river and the city of Baltimore on the other, while Baltimore county held the middle of the stream, is neither a useful, practical, nor liberal construction of the  [**84]  Acts of the Legislature." 7 Md. at 492. (emphasis added).
Although the Patapsco was a navigable river, the Circuit Court for Anne Arundel County, though undertaking to give effect to the Act of 1704, contrary to that court's original premise, characterized the boundary between Baltimore City and Anne Arundel County to be "the middle of the stream" -- as if the Patapsco were a non-navigable river -- rather than to the "channel" of that river, in accordance with the express terminology in the Act of 1704.
Our predecessors in Raab, in reversing, disagreed with the view that Baltimore City, by the Act of 1816, had acquired jurisdiction [***18]  "as far as the channel" over that portion of the Patapsco River lying between it and Anne Arundel County.  Pointing out that that statute, fixing the annexed portion of Baltimore City, limited its boundaries as "on the main branch of the Patapsco river, and running with and bounding on the said main branch," the jurisdiction of the City was confined to the limits prescribed, "[and] part of the river at least was left within [the jurisdiction] of Baltimore county;" there was thus an intervening jurisdiction between the City and Anne Arundel County.
Although our predecessors were of the view that a resolution of the issue there involved did not depend upon the Act of 1704, the Court did not embrace the lower court's  [*442]  view that the boundary of Anne Arundel County was the "middle of the stream" of the Patapsco River, but referred instead to the "channel" of that river as constituting the boundary between Anne Arundel and Baltimore Counties.  Judge Tuck, who delivered the opinion for the Court, stated:

"It is manifest that the river [Patapsco], after this Act, [Act of 1726] remained as it had been for many years, within the limits of Baltimore county, and that [***19]  the jurisdiction of these counties adjoined on its southern shore, unless affected by the Act of 1704, ch. 92, ... and, under this Act, if applicable, the river, as far as the channel, remained in Baltimore county, and subject to the jurisdiction of its courts.  *** We are of the opinion, that the present case does not depend on that Act of Assembly, for the reason about to be stated.
"It is clear that the Act could have had no other effect than to enlarge the limits of Anne Arundel county to the channel, and that it did not extend the line of Baltimore county into the river. If it operated on these counties at all, its effect was to restrict the southern line of Baltimore county to the channel, and not to assign to it any jurisdiction not previously possessed.  Before the Act, this county had within its limits all the river, and afterwards, at least as far as the channel." 7 Md. at 497-98. (emphasis added).
In Acton v. State, 80 Md. 547 (1895), the appellant was charged in Anne Arundel County in a criminal information with a violation of the Sabbath, "at a building erected in the waters of a navigable river ... the Patapsco River ... on the south [***20]  side of the channel of said river, and distant less than one hundred yards of the land shore ... of [said] county." Contending that the site where the alleged offense was committed was not within the limits of Anne Arundel County, the defendant pleaded a want of jurisdiction; the State's demurrer to the plea was sustained.  In affirming,  [*443]  Judge Page, writing for our predecessors, quoted from Judge Tuck's opinion in Raab v. State, supra, and stated:

"So that, under this decision, [Raab v. State], it is clear that if the Act of 1704, ch. 92, is applicable, the jurisdiction of Anne Arundel County must extend to the channel of the river, and will include all that space which lies between the limits of Anne Arundel County as  [**85]  described in the Act of 1727, and the channel.  And we are of the opinion that such is the proper application of that Act." 80 Md. at 549 (emphasis added).
The Court further adopted "the views so well expressed by Judge Brewer in his opinion ... in the lower Court in Raab v. State, supra," that "the object of the Act of 1704, although it refers only to the counties already laid off, seems to be to establish [***21]  a rule applicable in all similar cases." Eschewing the use of the term "middle of the stream" as the boundary of Anne Arundel County, the Court, applying the Act of 1704, firmly established that such boundary extended to the "channel" of the Patapsco River, when it further stated:

"This Act [1704] has been codified ... and differs from the Act as originally passed, only in the respect that it is not made to apply 'where a dividing line has been fixed in such river by law.' No such line has been fixed with respect to Anne Arundel.  By the adoption of the Code this section became the law of the State, and is now applicable, whatever may originally have been the design of those who enacted it, to every county lying on navigable rivers in the State, except 'where a dividing line has been fixed in such river by law.'" 80 Md. at 550 (emphasis added).
The appellant, in Western Maryland Tidewater Railroad Co. v. Mayor and City Council of Baltimore, 106 Md. 561, 68 A. 6 (1907), challenged the validity of tax assessments by the City upon piers built by it, which extended from the shore or bulkhead line, out over the waters of the Patapsco River,  [*444]  contending [***22]  upon the holdings in Raab v. State, supra, that jurisdiction over the river, out from the shoreline, continued to remain with Baltimore County.  Pointing out that under Ch. 129 of the Acts of 1862, the owners of land binding on the water had the right to make improvements by the construction of wharves, piers, etc., out from the shore and that such improvements belonged to the owners of the land "as incident to their respective estates," our predecessors held that such piers were subject to taxation by the City and not within the jurisdiction of Baltimore County.
Noting that in Raab v. State, the boundary of Baltimore City had been limited to the shore along the Patapsco River, and that in Acton v. State, the boundary of Anne Arundel County had been established at the "channel" of the Patapsco, the Court, in an opinion by Chief Judge Boyd, although expressly not overruling the decision in Raab, nonetheless embraced the view, which had been stated by Judge Brewer (in the lower court in Raab), that the boundary of Baltimore City should likewise be held to extend into the Patapsco River, so as not to cut off so important a city as Baltimore from control and jurisdiction [***23]  of the waters of such a navigable river.
Chief Judge Boyd stated:

"[In Raab v. State,] [o]ur predecessors held that after the Act of 1726 the river remained, as it had been for many years, within the limits of Baltimore County, except so far as affected by the Act of 1704, ch. 92, which provided that every county lying on any navigable river in the province should extend its jurisdiction from the shore to the channel of such river, and be divided from the other county by the channel.  Our predecessors did not pass on the Act of 1704, but held that the river was still in Baltimore County at least as far as the channel, and was subject to the jurisdiction of its Courts.  In Acton v. State, 80 Md. 547, we held that the jurisdiction of Anne Arundel County did extend to the channel of the Patapsco river -- the question  [*445]  which had been left open in Raab's case.  If we were construing the Act of 1704, ... without regard to the decision in Raab's case,  [**86]  we would be inclined to adopt a similar view to that of Judge Brewer, who decided in the lower Court that by the Act of 1816, ch. 209, the jurisdiction of Baltimore City extended to [***24]  the middle of the river, because he thought that when that part of Baltimore County was added to the city, it could not have been intended by the Legislature to leave under the control of the county the water from the shore to the middle of the river, and as the policy of the State, as declared by the Act of 1704, was to extend the jurisdiction of counties to the channels of navigable rivers it should likewise be construed to apply to Baltimore City.  When Baltimore City was vested with control over the land to the shore it does seem to be singular that an important city like it was then, with the prospect of becoming much more so as it has, should be limited to the line on the shore while the counties could go [to] the channel.  But without overruling that case, ... it is clear that Raab v. State, does not conflict with what we have said above." 106 Md. at 572-73, 68 A. at 11. (emphasis added).
In sustaining the constitutionality of Ch. 82 of the Acts of 1918, which annexed a portion of Anne Arundel County to Baltimore City, our predecessors, in McGraw v. Merryman, 133 Md. 247, 104 A. 540 (1918), noted that the boundary of Anne Arundel County ran to "the current [***25]  of the river." n7 Chief Judge Boyd, who also authored that opinion for the Court, stated:

"[I]t was decided in Raab v. State 7 Md. 483, that the Act of 1816, Chapter 209, extending the boundaries of that city, limited its lines to the north  [*446]  side of the river, thus leaving the portion of the river between the north shore line and the current (to which the Anne Arundel County line extended) in Baltimore County.  Although it was intimated in West. Md. T. R. Co. v. Baltimore City, 106 Md. 561, that but for that decision we might have held the contrary, we expressly declined to overrule it.  But treating the boundaries of Baltimore County as inclusive of the space in the river between the Anne Arundel County line, in the current of the river, and that of the city, this Act can not be held to be invalid for that reason." 133 Md. at 258-59, 104 A. at 544. (emphasis added).

n7 The area "where the current flows" is embraced within the definition of a "channel." See The Northern Queen, 117 F. 906, 915 (W.D.N.Y. 1902).

 [***26]  
In 1908, the General Assembly enacted Ch. 487, which is set forth in Code (1957, 1969 Repl. Vol.), Art. 75, § §  82-84.  That enactment, without making any reference to Ch. 92 of the Act of 1704, or to boundaries along "navigable rivers," undertook to fix the jurisdiction of every county bounded by "navigable waters." The statute read as follows:

"AN ACT to define the jurisdiction of counties, and to supply maps showing the same to the officials of the counties of this State.
"WHEREAS, Some doubt exists as to the jurisdiction of certain counties situated on the navigable waters of the State; therefore:
"SECTION 1. Be it enacted by the General Assembly of Maryland, That the jurisdiction of every county bounded at any point by navigable waters shall extend from the shore to the inside of the channel, which shall be regarded to be the center of said waters, except where said waters adjoin neighboring States, in which case the jurisdiction of said counties shall continue to the ultimate limits of the State at the place in question; provided, however, that nothing in this Act shall be construed as changing such rights as the State of Maryland may have  [***27]   on or under such waters.
 [*447]  " [**87]  SEC. 2. Be it further enacted, That the center of the waters aforesaid shall be deemed to be as represented on the county maps issued under authority of the Laws of Maryland, 1896, chapter 51, and the Laws of Maryland, 1898, chapter 129, and said maps shall be admissible as evidence as to the location of the boundary or boundaries aforesaid. n8
"SEC. 3. Be it further enacted, That certified copies of said county maps shall be filed with the clerks of the several courts for all the several counties of Maryland, and also with the Board of County Commissioners of said counties; said maps to be regarded as official and authoritative." (emphasis added).

n8 Ch. 51 of the Laws of 1896 established a State Geological and Economic Survey Commission: (1) to examine the geological formations of the State, (2) to examine and classify the soils and their adaptability to particular crops, (3) to examine the physical features of the State, (4) to prepare special geological and economic maps to illustrate the resources of the State, and (5) to prepare special reports, with illustrations and maps, embracing both a general and detailed description of the geological and natural resources of the State.
Ch. 129 of the Laws of 1898 authorized the completion of the topographic survey of the State, and provided for the publication of topographic maps and reports dealing with the mineral products and natural resources of each county of the State.

 [***28]  
In Barnes v. State, 186 Md. 287, 47 A. 2d 50, cert. denied, 329 U.S. 754 (1946), where jurisdiction in the Circuit Court for Prince George's County was upheld over a criminal offense committed upon the Potomac River, Chief Judge Marbury pointed out:

"By the Act of 1908, Chap. 487, is emphasized the fact that the jurisdiction of the Southern Maryland counties extends to the ultimate limits of the state across the Potomac River, which would be to low water mark on the Virginia shore. In all other cases where navigable waters divide counties, the jurisdiction of the bordering counties extend to the center of the channel, but the exception clearly  [*448]  refers to the Southern Maryland counties, because they are the only ones which border on navigable waters where a neighboring state is on the other side." 186 Md. at 309, 47 A. 2d at 60. (emphasis added).
It is noteworthy that in Barnes, our predecessors, although taking cognizance of the provisions in Ch. 487 of the Act of 1908, nonetheless pointed out that the jurisdiction of counties, bordering upon navigable waters, extended "to the center of the channel" of those waters, rather than "to the center [***29]  of the waters."
In upholding the declaration made by the circuit court that "[t]he proper boundary between Wicomico County and Somerset County ... is as shown on the [topographical] county map of Somerset County," the Court of Special Appeals prefaced its holding by quoting the definitions of "channel," "main channel" and "natural channel," set forth in Black's Law Dictionary (Rev. 4th ed. 1968), and the definitions of "channel," in Webster's Third New International Dictionary (1967).  Concluding from these definitions that the term "channel" could denote the "bed in which the main stream of a river flows" or "the line delineating the deepest part of a river where the main current flows," the court adopted the former, or middle-of-the-river meaning.  Although recognizing that the word "channel," "when employed in treating of subjects connected with the navigation of rivers and bays, indicates the line of deep water which vessels usually (but not always) follow," that court, citing Dunleith & Dubuque Bridge Co. v. County of Dubuque, 55 Iowa 558, 8 N. W. 443 (1881) (which was later rejected by the United States Supreme Court in Iowa v. Illinois, 147 U.S. 1 (1893)), [***30]  expressed the view that a line fixed in the deepest part of a river where the main current flows "[a]s a precise boundary line between counties, however, ...  [**88]  is all but illusory and fosters uncertainty where certainty should exist." 28 Md. App. at 117, 344 A. 2d at 198.
From these premises, that court, in holding that the  [*449]  boundary between the two counties was the geographic mid-line of the Wicomico River, stated:
"It seems to us more likely that the framers of the 1867 Constitution used the word channel in its primary sense as meaning the great body of water between the banks of the river, and that, by analogy to the common law rule pertaining to non-tidal stream boundaries, the intended boundary was a line running along the middle of the river." 28 Md. App. at 117, 344 A. 2d at 199.
In support of its conclusion, the Court of Special Appeals drew upon the phrases "to the middle of the stream" and "to the middle of the river," as used by Judge Brewer in the lower court opinion in Raab v. State, supra, and the citation of his opinion and the use of the term "to the middle of the river" set forth in Western Maryland Tidewater Railroad Co. v. Mayor  [***31]   and City Council of Baltimore, supra; without reference to the term "to the current of the river" as used in McGraw v. Merryman, supra, that court was of the view that the term "channel," as set forth in the Act of 1704, and as used in the opinions of this Court in Raab, Acton and Western Maryland Tidewater Railroad, had been used synonymously with the term "middle of the river." Finding that "doubt and uncertainty" had been created with respect to the jurisdictional boundary of Baltimore City by the decision in Raab, the court surmised that it was "more than a coincidence" that the legislature enacted Ch. 487 of the Acts of 1908 in response to the language of Chief Judge Boyd in Western Maryland Tidewater Railroad, and that that statute manifested the clear legislative intention that "channel" was to be used in its primary sense -- as the geographic middle of the river -- and that "'the jurisdictional boundary between counties separated by navigable waters' is the geographical center between the banks of those waters, i.e., 'the center of said waters.'" It found this view to be "consistent with the lower court's opinion in Raab mentioned with such approval [***32]  by Chief  [*450]  Judge Boyd in Western Maryland, supra." 28 Md. App. at 122-23, 344 A. 2d at 202.
In arriving at the result reached, the Court of Special Appeals found it to be immaterial whether the Act of 1704, or the Act of 1908, was applicable "for in our opinion a proper interpretation of each reaches the same result: The jurisdiction of each county extends to the middle of the river, regardless of the location of the deep-channel line." 28 Md. App. at 119, 344 A. 2d at 200.
We do not agree either with the rationale or the conclusion reached by the lower court.
At the outset, it seems to us that no analogy can be drawn to the common law rule pertaining to non-tidal stream boundaries in undertaking to fix a boundary upon navigable waters. Although it is true "that a grant, by the owner of the bed of a non-navigable stream, of land bounding thereon, conveys, even without express language, ownership to the middle of the stream." Linthicum v. Shipley, 140 Md. 96, 99, 116 A. 871, 872 (1922); Day v. Day, 22 Md. 530 (1865); Browne v. Kennedy, 5 H. & J. 195 (1821), a person owning land, abutting on navigable water, where the land under the navigable water is [***33]  owned by the state, owns title only to the high water mark -- subject of course to certain riparian rights as an incident to his ownership of such land.  Van Ruymbeke v. Patapsco Industrial Park, 261 Md. 470, 475, 276 A. 2d 61, 64 (1971); Toy v. Atlantic Gulf and Pacific Co., 176 Md. 197, 206, 4 A. 2d 757, 762 (1939); Smoot Sand and Gravel Co. v. Columbia Granite and Dredging Corp., 146 Md. 384, 388, 126 A. 91, 92 (1924). See also Green v. Eldridge, 230 Md. 441, 446, 187 A. 2d 674, 676 (1963).
 [**89]  Although we recognize that the term "channel," in connection with water courses, has at times been referred to as "the bed in which the main stream of a river flows," or "the hollow bed where a natural body, or stream of water runs or may run," where navigable waters are concerned, the term more appropriately refers to that portion of the waters on which vessels move and "the deeper part of a river, where the main current flows, or which affords the  [*451]  best passage" for vessels. See The Oliver, 22 F. 848, 849 (E.D. Va. 1885); The Northern Queen, 117 F. 906, 915 (W.D.N.Y. 1902) (where "[a] 'channel' is defined ... to be 'the deeper part of a river,  [***34]  or of an estuary, bay, etc., where the current flows, or which is most convenient for the track of ships.'"); The Sarah v. Bellais, 52 F. 233, 235 (5th Cir. 1892) (where it was held that "[t]he term 'channel' is properly applied to the portion of the bed of a river or canal which furnishes uninterruptedly, through its course, the deepest water ...").
In our appraisal of the term "channel," as used in the Act of 1704, Ch. 92, we think it is here of significant importance to point out the observation made by our predecessors, in Toy v. Atlantic Gulf and Pacific Co., supra, that a channel, in navigable waters, is a "highway by water" of commerce.  Judge Parke, for our predecessors, there stated:
"To the extent of its public use in the transportation by boat of person and property, the channel of Back Creek was a highway by water, although it was not actually adapted for passage by any but small craft, such as row boats and small launches, but to that extent it continued to serve a limited public purpose while its waters in the canal bore the vessels engaged in general commerce and transportation." 176 Md. at 206, 4 A. 2d at 762.
It seems clear that the Act of 1704 [***35]  was passed at a time when the primary means for the transportation of goods over extended distances within the Colony, and the principal means of communication between its populated areas, were these "highways of water." From our reading of Judge Brewer's trial court opinion in Raab, and from the opinion by Chief Judge Boyd in Western Maryland Tidewater Railroad, we are persuaded that the underlying concept, in each of those opinions, was a recognition of the need for Baltimore City to have such a "highway of water" for its commerce.
It was undoubtedly in recognition of such water-borne commerce that the General Assembly, in enacting Ch. 92 of the Act of 1704, intended to carry the jurisdiction of  [*452]  counties, bordering on navigable rivers, to the channel of such rivers, where a "Ship or Vessel shall ride at Anchor," and to provide for the service of process upon vessels, within the navigable portions of such rivers, i.e., the channels, by an officer of either of the bounding counties.
In a case involving an issue substantially similar to that presented here, the Supreme Judicial Court of Maine, in Warren v. Thomaston, 75 Me. 329 (1883), was confronted with [***36]  interpreting a statute which fixed the boundary line between the towns of Warren and Thomaston.  The Maine legislature, in 1864, using language similar to that used in Article XIII, Section 2 of our Constitution (fixing the boundaries of Wicomico County), undertook to fix the "town line between the towns of Thomaston and Warren,'" as follows: '"[b]eginning in the centre of the channel of Oyster river, below Elder point, near the head of tide water, where the town lines now cross said river, and following down said river in the channel to the channel of Georges river; thence down said channel, till it intersects the town line where it crosses said Georges river."' At issue was whether the boundary of the two towns was the central line of the Georges river or the channel thereof.  That court, in holding that the channel of the river fixed the boundary, stated:

 [**90]  "The line, in the case under consideration, runs not by Georges river, but to and then down its channel. The channel is the deepest part of the river. It is the navigable part -- the water road over which vessels pass and repass.  It is the highway of commerce.  Had the line run to the river and down [***37]  the river, the boundary would have been the thread of the stream -- the filum aquae.  But, the thread of a stream is the middle line between the shores, irrespective of the depth of the channel, taking it in the natural and ordinary stage of the water. The channel and the thread of the river are entirely different.  The channel may be one side of the thread of the river or the other.  The legislature exclude[d] the idea of the thread of the river as the  [*453]  boundary and establish[ed] a totally different one -- the channel of the river. ... Hence, not the river, but the channel is made the boundary, so that the burden resting upon these towns may thus be equalized." 75 Me. at 332 (emphasis added).
Drawing an analogy to grants of land bounded on a highway, the court further stated: "[w]hether the highway be by land or water, the same rule of construction must apply.  When the river is a boundary, the thread of the stream is the dividing line.  When the channel, as here, is the boundary, the thread of the channel is constituted the boundary.  The Cold Spring Iron Works v. Tolland, 4 Cush. 492." 75 Me. at 332-33.
By a comparison of the boundary issue presented [***38]  in Warren v. Thomaston, supra, with the issue to be resolved in this case, it would appear, under the holdings by the Maine court, that if the Constitutional Convention of 1867, when it adopted Article XIII, sec. 2, fixing the boundary of Wicomico County, had intended that the geographic middle of the Wicomico River be the boundary between Somerset and Wicomico Counties, it would have provided that the boundary of such county would run "to the [Wicomico] River" and "up [that] River," rather than have chosen the term "up the channel of the Wicomico River." This same reasoning is equally applicable to the enactment of Ch. 92 of the Act of 1704, when the General Assembly used the terminology "to the channel of such river that divides the counties." Compare Taylor v. State, 79 Md. 130, 28 A. 815 (1894), in connection with the bounds of Talbot County, fixed by Ch. 3, of the Act of 1706, as "on the north side of Great Choptank River" and "up said River to Tuckahoe Bridge; ... and from thence down the south side of Wye River to the mouth thereof, and from thence down the bay (including Poplar Island) ..."
Another case strikingly similar upon its facts is Pratt v. State, [***39]  5 Conn. 388 (1824). Pratt, while taking oysters in the channel of the Connecticut River, about 20 rods from its eastern bank and about 100 rods from its western shore, was  [*454]  charged in a criminal information with having assaulted a constable of the town of Lyme, who undertook to arrest him upon a writ of attachment.  Challenging the jurisdiction of the court, Pratt asserted that he was not, at the time of his arrest, within the limits or jurisdiction of the town of Lyme.  The Supreme Court of Errors of Connecticut, finding that the patent of Lyme, granted in 1685, bounded it "Westerly on the channel of [the] Connecticut river," and that the patent of Saybrook, in the same year, bounded it "on [the] Connecticut River, on the east" concluded that Saybrook was "bounded by the margin" of the river and that the offense committed by Pratt, "in the channel of the river, between the two towns," "was not within the patented limits of either town." The court further held however that "the jurisdiction of Lyme, so far as [it] relate[d] to the service of process and enforcement of the laws," from "antient and invariable and undisputed usage," extended "to [***40]  the centre of the channel [of the Connecticut River]" and that the constables of Lyme had the right to serve legal process at the place of the alleged  [**91]  assault.  5 Conn. at 390-91. (emphasis added).
In a most noteworthy case where a similar issue was raised, concerning the boundaries of the States of Iowa and Illinois, upon the Mississippi River, the United States Supreme Court held that their boundary was not the geographic midline between the banks of that river, but rather was the thalweg, or the middle of the main navigable channel of that river.
Mr. Justice Field, writing for the Supreme Court in Iowa v. Illinois, supra, established what has become well known as the "thalweg doctrine," when he stated:
"When a navigable river constitutes the boundary between two independent States, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each State in the navigation of the river admits of no other line.  The preservation by each of its equal right in the navigation of the stream is the subject  [*455]  of paramount interest.  It is, therefore,  [***41]  laid down in all the recognized treatises on international law of modern times that the middle of the channel of the stream marks the true boundary between the adjoining States up to which each State will on its side exercise jurisdiction." 147 U.S. at 7-8.
Expressly rejecting the view adopted by the Iowa Supreme Court in Dunleith & Dubuque Bridge Co. v. County of Dubuque, supra, (cited by the Court of Special Appeals), the Court quoted with approval from the decision of the Supreme Court of Illinois in Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 548, 17 N. E. 439, 444 (1888), as follows:

"'It is the free navigation of the river -- when such river constitutes a common boundary, that part on which boats can and do pass, sometimes called "nature's pathway" -- that States demand shall be secured to them.  When a river, navigable in fact, is taken or agreed upon as the boundary between two nations or States, the utility of the main channel, or, what is the same thing, the navigable part of the river, is too great to admit a supposition that either State intended to surrender to the State or nation occupying the opposite shore the whole of the principal channel [***42]  or highway for vessels and thus debar its own vessels the right of passing to and fro for purposes of defence or commerce.  That would be to surrender all, or at least the most valuable part, of such river boundary, for the purposes of commerce or other purposes deemed of great value, to independent States or nations.'" 147 U.S. at 13.
In concluding that "the boundary line between the State of Iowa and the State of Illinois is the middle of the main navigable channel of the Mississippi River," the Court stated:

"[W]e are of [the] opinion that the controlling consideration in this matter is that which preserves to each State equality in the right of navigation in  [*456]  the river. We therefore hold, in accordance with this view, that the true line in navigable rivers between the States of the Union which separates the jurisdiction of one from the other is the middle of the main channel of the river. Thus the jurisdiction of each State extends to the thread of the stream, that is, to the 'mid-channel,' and, if there be several channels, to the middle of the principal one, or rather, the one usually followed." 147 U.S. at 13.
The "thalweg doctrine" was similarly [***43]  applied in Louisiana v. Mississippi, 202 U.S. 1 (1906) where the Court held that "the deep water channel sailing line," in the waters of Lake Borgne, was the boundary between those two states.  See also Arkansas v. Tennessee, 246 U.S. 158 (1918) (where the boundary had been  [**92]  specified as "along the middle of said Mississippi River"); and Whiteside v. Norton, 205 F. 5 (8th Cir. 1913), where a portion of the boundary between Wisconsin and Minnesota was fixed as the "main channel of the St. Louis River," and that court stated:
"If this, then, be the St. Louis river, not only is the boundary between Wisconsin and Minnesota declared by legislative enactment to be the middle of its main channel -- as that channel then existed -- but the doctrine of the 'thalweg,' meaning the middle, or deepest, or most navigable, channel, is applicable in determining the line of boundary between the two states." 205 F. at 9.
It appears to us that such considerations as "the preservation by each [of the bounding jurisdictions] of its equal right in the navigation of a stream" and the preservation of the "free navigation of the river" were of primary importance in the Province [***44]  in 1704, when the 11 existing counties, all upon tidewater, were bounded by navigable rivers and were economically dependent on those rivers as "highways of water" for their economic survival. n9 It  [*457]  thus seems clear that it was the intent of the General Assembly, by the express use of the term "channel," when it enacted Ch. 92 of the Acts of 1704, to extend, and to insure, the jurisdiction of every county, bounding on a navigable river, to the thalweg, or the middle of the main navigable channel of every such river which constituted a boundary between counties.

n9 Those Counties and the years in which they were founded, were: Anne Arundel (1650), Baltimore (1659-1660), Calvert (1654), Cecil (1674), Charles (1658), Dorchester (1668-1669), Kent (1640-1642), Prince George's (1695), St. Mary's (1637), Somerset (1666), Talbot (1661-1662).  See Maryland Manual, 1973-74, pp. 868-70.

The General Assembly patently did not intend that the navigable channel in such a river should lie wholly within the jurisdiction [***45]  of one or the other of the counties on opposite shores -- a result which could conceivably occur -- should such boundary be fixed at the geographic mid-point between the banks of such a river. It appears to have been in recognition of such mutual jurisdictional rights by the bounding counties, in the use of the channel of such a river, that the Act of 1704 provided for the service of process, by the officers of either of such bounding counties, upon a vessel "rid[ing] at Anchor in the Channel of such River."
Although the language used in Western Maryland Tidewater Railroad Co. v. Mayor and City Council of Baltimore, supra, appears to be in conflict with the use of the term "channel," as used in Raab v. State, supra, and in Acton v. State, supra, and in conflict with the phrase "the current of the river," as used in McGraw v. Merryman, supra, as we read those cases, they support the concept that when our predecessors used the term "channel," they intended it to mean not the geographical middle of the Patapsco River, but rather "the deeper part of the river, where the main current flows" and "which affords the best passage" for vessels.
When the statute was codified [***46]  in 1860, the legislature, by engrafting upon the original enactment the limitation "except where a dividing line has been fixed in such river by law," made allowance for those counties "bordering upon the Potomac River." See Barnes v. State, supra. It also appears  [*458]  that allowance was made for those counties, binding on navigable rivers which had prior thereto been created, sometimes by an Order, or a Proclamation by the Governor, sometimes by an Order of the Council and more often, by Acts of the General Assembly.  See Maryland Manual (1973-74) pp. 867-870 (in connection with the origin of the various counties of the State).
When the framers of the Constitution of 1867 created Wicomico County, and carved it out of what previously had been  [**93]  Worcester and Somerset Counties, they were obviously cognizant of the provisions in the Act of 1704, then codified as Art. 75, §  90, and mindful of the use of the term "channel" as used by our predecessors, in 1855, in Raab v. State, supra, in connection with the boundary line in the Patapsco River. When they chose specifically to fix the boundary as "to the channel of the Nanticoke River" (separating Wicomico [***47]  and Dorchester Counties) (rather than as proposed to the "middle" of that river) and "thence with the channel of [the Nanticoke River] to Tangier Sound, or the intersection of [the] Nanticoke and Wicomico Rivers, thence up the channel of the Wicomico River to the mouth of Wicomico Creek, [and] thence with the channel of said creek," etc., (separating Wicomico and Somerset Counties); and when they further fixed the boundary in part (separating Wicomico and Worcester Counties) at "the channel of the Pocomoke River" and "with the channel of said river," n10 the framers obviously intended to preserve and to insure the jurisdiction of each of those four counties to the channels of the three named rivers and to continue the mutual rights of navigation in those rivers which, as they had in Colonial times, in 1867, continued to play a significant role, as "highways of water" to counties bounding on navigable  [*459]  rivers. See Iowa v. Illinois, supra; Buttenuth v. St. Louis Bridge Co., supra; and Warren v. Thomaston, supra. See also 10 Op. A. G. 75 and 81 (1925).

n10 Although the committee, which submitted what later became Article XIII, §  2 of the Constitution of 1867, provided that the boundary of Wicomico County would run "with the middle of said [Nanticoke] River to Tangier Sound" and would run "to the mouth of Wicomico Creek," the Convention, apparently without debate, amended these respective provisions to read "with the channel of said [Nanticoke] River to Tangier Sound" and "with the Channel of said [Wicomico] creek and Passerdyke Creek." See P. Perlman, Debates of the Maryland Constitutional Convention of 1867, 322 (1923).  (emphasis added).

 [***48]  
It thus seems clear to us that Article XIII, §  2 of the Constitution intended to fix the boundary between Wicomico and Somerset Counties at the middle of the channel in the Wicomico River and to extend it, in that line, to its intersection, in Tangier Sound, with the middle of the main channel of the Nanticoke River.
As we see it, this interpretation of the term "channel," as used in the Act of 1704 and in Article XIII, §  2 of the Constitution, is unaffected by the language used in Section 1, Ch. 487 of the Act of 1908, now codified as Art. 75, §  82, which was applied both by the trial court and by the Court of Special Appeals.
We do not agree with the surmise that Ch. 487 of the Act of 1908 was enacted in response to the decision in Western Maryland Tidewater Railroad and to remove the "doubt and uncertainty" which the lower court found had been created by the decision in Raab v. State, supra. It would appear that that statute was enacted in response to the problem demonstrated by the decision in Taylor v. State, supra, where the place at which the appellant was taking oysters with a "scoop" -- "opposite Tilghman Island" and "inland from a line drawn from Sharp's [***49]  Island to Poplar Island," -- was held not to be within the boundaries of Talbot County, but outside thereof and upon the waters of the Chesapeake Bay.
Such a view is in accord with that adopted by the Circuit Court for Queen Anne's County in State v. Thomas (No. 50, Criminal Trials, 1957), where Chief Judge Horney (later a Judge of this Court), in holding that Ch. 487 of the Acts of 1908 extended the jurisdiction of Queen Anne's County over the waters of the Chesapeake Bay, between the westerly shore of Kent Island and the center of the Bay, stated:
"The Laws of 1704, Ch. 92, supra, settled only the extent of county jurisdiction over navigable rivers.  From 1704 to 1908 the question of jurisdiction over  [*460]   [**94]  navigable waters of the State, other than rivers, remained in doubt.  In order to remove all doubt which until then existed 'as to the jurisdiction of certain counties situated on all navigable waters of the State' as declared in its preamble, the Acts of 1908, Ch. 487, supra, indubitably extended the jurisdiction of Queen Anne's County over a portion of the waters of Chesapeake Bay." (emphasis added).
In acquitting the defendant [***50]  of a violation of the clamming laws, Judge Horney pointed out that the maps, prepared by the Maryland Geological Survey, in cooperation with the United States Geological Survey, pursuant to Ch. 51 of the Acts of 1896, and Ch. 129 of the Acts of 1898 (as referred to in Art. 75, §  83), showed "the boundary of Queen Anne's County as extending to approximately the center of the Chesapeake Bay." See also Barnes v. State, supra.
It is a fundamental principle that the law does not favor repeals by implication, Waye v. State, 231 Md. 510, 516, 191 A. 2d 428, 431 (1963); State v. Clifton, 177 Md. 572, 574, 10 A. 2d 703, 704 (1940). A latter statute should not be held to repeal by implication an earlier one "unless there is some express reference to the previous statute, or there is a manifest inconsistency in the two statutes, or their provisions are so repugnant that they cannot stand together." Kirkwood v. Provident Savings Bank, 205 Md. 48, 55, 106 A. 2d 103, 107 (1954). As was stated in Bowie v. Washington Suburban Sanitary Comm'n, 249 Md. 611, 618, 241 A. 2d 396, 400 (1968), such repeals "will not be found unless demanded by irreconcilability or repugnancy." See  [***51]   Pressman v. Elgin, 187 Md. 446, 450, 50 A. 2d 560, 563 (1947); Lewis v. Gsell, 183 Md. 123, 128, 36 A. 2d 702, 704 (1944).
In City of Baltimore v. Clerk of the Superior Court, 270 Md. 316, 311 A. 2d 261 (1973), Judge Digges, writing for the Court, stated:
"It is well settled in this State that when two acts of the General Assembly covering similar subject  [*461]  matter make no reference to each other, if it is at all feasible, they will be construed so as to give as full an effect to each other as possible.  Prince George's Co. v. McBride, 263 Md. 235, 240-41, 282 A. 2d 486, 489 (1971). In order for one statute to alter or limit another, the intention of the Legislature to do so must be clear and manifest; otherwise, the requirements of one will be construed as embodying the provisions of the other.  In such a situation, the second statute will not be considered as a substitute for the first regardless of the order in which they were enacted.  Welsh v. Kuntz, 196 Md. 86, 97, 75 A. 2d 343, 347 (1950); Pressman v. Elgin, 187 Md. 446, 450, 50 A. 2d 560, 563 (1947)." 270 Md. at 319-20, 311 A. 2d at 263.
See also Prince George's County v. White, 275 [***52]  Md. 314, 319, 340 A. 2d 236, 240 (1975); Plaza Corp. v. Alban Tractor Co., Inc., 219 Md. 570, 589, 151 A. 2d 170, 180 (1959).
Where two statutory provisions are neither irreconcilable nor mutually repugnant, they should be construed in harmony with their respective objects and tenor.  Smith v. Gray Concrete Pipe Co., Inc., 267 Md. 149, 155, 297 A. 2d 721, 725 (1972); Kirkwood v. Provident Savings Bank, supra; Public Service Commission v. Maryland Bay Co., 176 Md. 59, 73, 3 A. 2d 736, 742 (1939); Loker v. State, 2 Md. App. 1, 9, 233 A. 2d 342, 348 (1967), aff'd, 250 Md. 677, 245 A. 2d 814 (1968), cert. denied, 393 U.S. 1082 (1969). This principle is applicable even though the statutes were passed at different times and contain no reference to each other.  Board of Fire Commissioners of Balto. v. Potter, 268 Md. 285, 290-91, 300 A. 2d 680, 683 (1973); May v. Warnick, 227 Md. 77, 83, 175 A. 2d 413, 415-16 (1961).
Similarly controlling is the premise that "[w]here there is a specific enactment and a general enactment 'which, in its most comprehensive  [**95]  sense, would include what is embraced in the former, the particular enactment must be operative,  [***53]  and the general enactment must be taken to affect only such cases within its general language as are not within the  [*462]  provisions of the particular enactment.'" Criminal Injuries Comp. Board v. Gould, 273 Md. 486, 495, 331 A. 2d 55, 61 (1975); Henry v. State, 273 Md. 131, 134 n. 1, 328 A. 2d 293, 296 n.1 (1974); Maguire v. State, 192 Md. 615, 623, 65 A. 2d 299, 302 (1949). See also 73 Am. Jur. 2d Statutes §  416 (1974); 82 C.J.S. Statutes §  369 (1953).
When the Provincial General Assembly, in 1704, enacted Ch. 92, it pointed out that "no Rule yet made [established] how far the Jurisdiction of each County [divided by navigable Rivers] shall extend on the River;" that statute was directed specifically at fixing the boundary of counties separated by navigable rivers.  When, 204 years later, the General Assembly enacted Ch. 487 of the Acts of 1908, this subsequent enactment pertained generally to "the jurisdiction of every county bounded at any point by navigable waters" (emphasis added); no reference whatsoever was made therein to Ch. 92 of the Act of 1704.  Although concededly the term "rivers" would be embraced within the generic term [***54]  "waters," in its most comprehensive sense, in our view the provisions of Ch. 92, of the Act of 1704, as codified in Art. 75, §  81, must be considered as the operative specification for fixing the boundary between counties divided by navigable rivers.  Chapter 487, of the Acts of 1908, as codified in Art. 75, § §  82-84, providing for the fixing of jurisdiction of counties "bounded at any point by navigable waters," as a general enactment, must be held to affect "only such cases within its general language as are not within the provisions" of Art. 75, §  81.  Thus, inapplicable to the fixing of boundaries between counties upon navigable rivers, §  82 pertains otherwise to establishing the jurisdictional limits of counties, bounding at any point upon navigable waters -- such as upon the waters of the Chesapeake Bay.
When Ch. 487 of the Acts of 1908 was enacted, there was neither a reference to Ch. 92 of the Act of 1704, nor any suggestion in the title or preamble of the latter statute of any intention to repeal the earlier Act, or that it was to become a substitute for the statute enacted two centuries earlier.  We find no irreconcilability or repugnancy in the  [*463]   [***55]  provisions of the two enactments; in our view the two statutes relating respectively to the jurisdiction of counties on navigable rivers which separate them, and to the jurisdiction of counties which are bounded at any point on navigable waters, can be construed together, so that they will harmonize with each other and be consistent with their respective objects and tenor.  We conclude that Art. 75, §  81, as we construe it, is controlling in fixing the boundary between two counties upon a navigable river, at the middle of the channel of that river, except where a dividing line has been otherwise fixed by law.  We construe the provisions of Art. 75, §  82, pertaining to the extension of the jurisdiction of counties, bounded at any point on navigable waters, and fixing such a boundary at "the center of said waters," to be here inapplicable where the boundary between the counties is a navigable river.
We thus hold that under the provisions of Art. 75, §  81, as we have construed the term "channel," and by virtue of Article XIII, §  2 of the Constitution, the boundary between Wicomico and Somerset Counties is the thalweg, or middle of the channel of the Wicomico [***56]  River, and continues on that line to the point where that channel, in Tangier Sound, intersects the middle of the main channel of the Nanticoke River.
The location of the navigable channel of the Wicomico River, in the area under dispute, was identified on hydrographic maps prepared by the United States Coast and Geodetic Survey, and its predecessors, which were offered in evidence in the trial  [**96]  court.  These hydrographic maps dated 1857, 1901-02 and 1973, established that in the area under dispute, the natural channel of the Wicomico River had not changed significantly in 116 years.  A transparency of the channel, shown on the 1857 chart, when superimposed upon the 1973 chart, demonstrated that the channel had not shifted since 1857.  The boundary line between the two counties, as depicted on the hydrographic charts of the Oyster Survey of 1906 to 1912, and its amendments, including a chart prepared in 1961, followed the natural channel of the Wicomico River, and showed that the Great  [*464]  Shoals and the Middleground Oyster Bars are on the Wicomico County side of the channel of the Wicomico River.
There was testimony in the trial court from a waterman who had harvested [***57]  oysters in the waters of the Wicomico River for over 70 years, that historically, he, and his peers, had considered the areas where these oyster bars were located, to be within the boundary of Wicomico County.  There was additional evidence that for a period of 20 to 30 years, the Department of Natural Resources, for the purpose of the planting and seeding of oysters, had considered the disputed area to be within Wicomico County.
On the other hand, the topographic maps, prepared by the Maryland Geological Survey, which were admitted into evidence pursuant to Art. 75, §  83, portrayed only the geographic features of the counties lying landward of the highwater mark of the River. Such maps do not depict channels, shoals, or other underwater geographic features, as do hydrographic charts. No hydrographic data is used in their preparation, except a delineation of the shoreline, and occasionally the location of a large permanent structure, located within the water, such as a lighthouse, which has geographic significance.
It must here be observed that the Great Shoals lighthouse, established as a "triangulation point" by the United States Coast and Geodetic Survey, in 1901, is recorded [***58]  among the records of the United States Department of Commerce to be located "in Wicomico County," and that hydrographic charts prepared by the United States Coast and Geodetic survey, showing the lighthouse to be north of the channel of the Wicomico River, also locate it within Wicomico County.  On the other hand, the topographical maps prepared by the Maryland Geological Survey, which originate from a 1903 United States Geological Survey map, place the lighthouse, located upon the Great Shoals, and northward of the channel of the Wicomico River, to be south of the mid-river line and thus in Somerset County.
Similarly, the topographic maps, undertaking to lay out the boundary between the counties, do not follow the  [*465]  channel of the river, but depict it as passing in the geographic mid-point of the river, a significant distance north of the channel, with the result that a portion of both the Great Shoals and Middleground Oyster Bars geographically are located southward of the mid-line of the river.
We think it was error for the trial court to have used the topographical maps, prepared pursuant to Ch. 51 of the Laws of Maryland, 1896, and Ch. 129 of the Laws of Maryland,  [***59]  1898, in determining the boundary between the two counties; that court should have relied upon the hydrographic charts of the Oyster Survey of 1906 to 1912, and its amendments, depicting as they do, the channel of the Wicomico River, as the boundary between the two counties, for the purpose of determining venue.
For the foregoing reasons, we conclude that the second paragraph of the trial court's Order of December 23, 1974, as modified by the Court of Special Appeals, must be vacated; and in substitution therefor, that paragraph shall read: "The proper boundary between Wicomico and Somerset Counties, for the purposes of venue,  [**97]  is as shown on the charts of the Oyster Survey of 1906 to 1912, and its amendments, depicting the channel of the Wicomico River."
Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that the case be remanded to the Circuit Court for Wicomico County for the passage of an order, in accordance with the order set forth above; costs to be paid by appellant.  

DISSENTBY:
SMITH 

DISSENT:

Smith, J., dissenting:
I dissent for all of the reasons so lucidly and thoughtfully expressed by Judge Melvin for the Court [***60]  of Special Appeals  [*466]  in Dep't of Nat. Resources v. France, 28 Md. App. 110, 344 A. 2d 193 (1975), including his conclusions:
1 - That the primary meaning of the word "channel" as set forth in Black's Law Dictionary (Rev. 4th ed. 1968) and Webster's Third New International Dictionary (1967) is "[t]he bed in which the main stream of a river flows, rather than the deep water of the stream as followed in navigation" and "[t]he hollow bed where a natural body or stream of water runs or may run," respectively. n1
2 - That the term "channel" "[a]s a precise boundary line between counties ... is all but illusory and fosters uncertainty where certainty should exist."
3 - That it is "more likely that the framers of the 1867 Constitution used the word channel in its primary sense as meaning the great body of water between the banks of the river, and that, by analogy to the common law rule pertaining to  [*467]  non-tidal stream boundaries, the intended boundary was a line running along the middle of the river."
4 - That "it is immaterial which of the two Acts [(Chapter 92 of the Acts of 1704 or Chapter 487 of the Acts of 1908)] applies to the instant case, for [***61]  in our opinion a proper interpretation of each reaches the same result: The jurisdiction of each county extends to the middle of the river, regardless of the location of the deep-channel line."
5 - That there is no inconsistency between this view and the boundaries of Wicomico County as set forth in Maryland Constitution Art. XIII, §  2 specifying the boundaries of that county.

The majority opinion is based upon the premise:

"that such considerations as 'the preservation by each [of the bounding jurisdictions]  [**98]  of its equal right in the navigation of a stream' and the preservation of the 'free navigation of the river' were of primary importance in the Province in 1704, when the 11 existing counties, all upon tidewater, were bounded by navigable rivers and were economically dependent on those rivers as 'highways of water' for their economic survival.  It thus seems clear that it was the intent of the General Assembly, by the express use of the term 'channel,' when it enacted Ch. 92 of the Acts of 1704, to extend, and to insure, the jurisdiction of every county, bounding on a navigable river, to the thalweg, or the middle of the main navigable channel of every [***62]  such river which constituted a boundary between counties.
"The General Assembly patently did not intend that the navigable channel in such a river should lie wholly within the jurisdiction of one or the other of the counties on opposite shores -- a result which could conceivably occur -- should such boundary be fixed at the geographic mid-point between the  [*468]  banks of such a river. It appears to have been in recognition of such mutual jurisdictional rights by the bounding counties, in the use of the channel of such a river, that the Act of 1704 provided for the service of process, by the officers of either of such bounding counties, upon a vessel 'rid[ing] at Anchor in the Channel of such River.'"

Such a premise equates counties with sovereign nations or with other states of the United States.  All of the reading I have been able to do on the subject indicates that our counties and their powers were based upon the system prevailing in England at the time of the first settlements.  None of the authorities I have reviewed show any legislative power in a county prior to 1776.  From the adoption of our Constitution of that year until the advent of "home rule," a comparatively [***63]  new doctrine in Maryland, counties never had legislative powers.  Wicomico County has had "home rule" only since 1964.  Somerset County has never had it.

n1 I have found no dictionary giving a primary meaning to the word "channel" disagreeing with that above.  E.g., Webster's New International Dictionary (2d ed. unabridged 1959) is identical with that cited from Webster above.  Other authorities give the primary meaning as: The Compact Edition of the Oxford English Dictionary (1971), "The hollow bed of running waters ..."; Webster's New World Dictionary of the American Language (college ed. 1953), "The bed of a running stream, river, etc."; The Concise Oxford Dictionary (5th ed. 1964), "Natural or artificial bed of running water"; The Penguin Dictionary of English (1964), "river bed"; and The American College Dictionary (1964), "the bed of a stream or waterway." Moreover, 14 C.J.S. Channel (1939) states:

"It has been said that the word is a generic term applicable to any watercourse, whether a river, creek, slough, or canal; and that its precise meaning depends upon the context in which it is used, two lines of definitions being generally recognized, the one, employed in boatmen's parlance, as meaning the course where the water is deepest and the navigation safest; the other, in geographical usage, designating the depression of a bed, below permanent banks, wherein waters flow and which may be sometimes full and sometimes not." (Emphasis added.) Id. at 397.

It certainly is in "geographical usage," not in "boatmen's parlance," that the term is used in defining the boundaries of a county, whether that definition be in the Constitution or in a statute.

 [***64]  
Prior to the passage of Chapter 129 of the Acts of 1862, about which I shall have more to say, "it had been held that the Lord Proprietary became vested under the Charter of Maryland with title to the soil under navigable waters, that he could convey title thereto and that the State succeeded to these rights.  Browne v. Kennedy, 5 Harris & J. 195 [(1821)]." Wagner v. City of Baltimore, 210 Md. 615, 622, 124 A. 2d 815 (1956). Accretions to land on navigable waters did not become the property of the abutting land owners.  Consequently, patents are to be found among the patent records of this State issued to property owners on rivers of the State covering accretions to their land.  What was Code (1957) Art. 54, §  45, prior to its repeal by Chapter 241 of the Acts of 1970, provided under the 1862 enactment that "[t]he proprietor of land bounding on any of the navigable waters of this State sh[ould] be entitled to all accretions to said land ...." In that circumstance, with Maryland as sparsely settled as it was in 1704 and all authority concentrated in the Lord Proprietor or the Royal Governor (depending upon  [*469]  just what year is involved) and the Provincial [***65]  General Assembly, of what possible concern to a county was the precise location of its boundary line? Of one thing we may be sure, that is that the county as such was without power to interfere with navigation.
I find it much more reasonable to believe that Chapter 487 of the Acts of 1908 was enacted in response to the decision of this Court in Western Maryland Tidewater Railroad Company v. Baltimore City, 106 Md. 561, 68 A. 6 (1907) (actually decided November 13, 1907), than in response to the decision in Taylor v. State, 79 Md. 130, 28 A. 815 (1894), 14 years before the passage of that act.  I do not believe the position I take here is to the slightest degree inconsistent with the opinion of Chief Judge  [**99]  Horney in State v. Thomas, No. 50, Criminal Trials, (1957) in the Circuit Court for Queen Anne's County.
I note that the majority apparently is of the view that the term "navigable waters" as used in the 1908 act does not include the term "navigable river" as used in the 1704 act.  "Navigable waters" is defined in Black's Law Dictionary (Rev. 4th ed. 1968) as "[t]hose waters which afford a channel for useful commerce." Wagner is clear authority for [***66]  the proposition that in this State the test for determining navigability is "whether or not the waters in question are tidal ...." 210 Md. at 624. The position of the majority that the term "navigable waters" does not embrace a "navigable river" is inconsistent with many of the prior holdings of this Court.  See, e.g., Van Ruymbeke v. Patapsco Ind. Park, 261 Md. 470, 475, 276 A. 2d 61 (1971); Owen v. Hubbard, 260 Md. 146, 152-53, 271 A. 2d 672 (1970); and Wagner v. City of Baltimore, supra. In Wagner the Court had before it the proper interpretation to be given to Chapter 129 of the Acts of 1862 which was concerned with the rights of "proprietor[s] of land bounding on any of the navigable waters of this State," (Emphasis added.) providing, among other things, for such proprietors "to be entitled to the exclusive right of making improvements into the waters in front of [their] said land," and that "no patent sh[ould]  [*470]  [t]hereafter issue for land covered by navigable waters." (Emphasis added.) The controversy there involved neither the Chesapeake Bay nor the Atlantic Ocean, but the Patapsco River. Chief Judge Brune there said for the Court:  [***67]  

"Where a stretch of river is navigable lengthwise, we think that all of the waters between the opposite shores or banks are comprehended within the term 'navigable waters' as used in Chapter 129 of the Acts of 1862." Id. at 626.

Thus, it would seem to me that any river which is navigable would fall within the term "navigable waters" as expressed in the 1908 act.
In 1908 the session laws do not seem to have been put together in the same manner as they are today with chapters following in numerical order.  Chapter 487 was placed under the heading "Art. 75.] Pleadings, Practice and Process at Law." Also passed in that year by Chapter 408 and placed under the heading of "Art. 27.] Crimes and Punishments." was a new section, designated §  433 A, now Code (1957) Art. 27, §  590, providing that a "person who may commit any crimes ... on or at the boundary or divisional line between any of the counties in this State, or so near thereto or where the exact location of such boundary is so uncertain as to render it doubtful in which county the offense was committed, then the county which first assumes jurisdiction by issuing process for the arrest and prosecution of the [***68]  offender shall have jurisdiction to charge, present, indict, try, convict and sentence; and in such case it shall be only necessary for the State to establish the venue alleged in the information, warrant or indictment, by proving that the offense was at or on the boundary of the county wherein the accused is being tried, or was so near thereto or the location of the boundary is so uncertain as to render it doubtful in which county the crime was committed."
I think Chapter 487 was enacted for the purpose of providing  [*471]  a common sense method of determining county lines for the purposes of litigation without the necessity of a complicated survey and the production of expert witnesses.  Likewise, Chapter 408 was intended to provide a common sense method for prosecution where the exact situs of a crime in relation to a county boundary was uncertain.  

7 of 37 DOCUMENTS 

DEPARTMENT OF NATURAL RESOURCES et al. v. MAYOR AND COUNCIL OF OCEAN CITY et al.  

No. 64, September Term, 1974 

Court of Appeals of Maryland 

274 Md. 1; 332 A.2d 630; 1975 Md. LEXIS 1191 

February 21, 1975, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Circuit Court for Worcester County; Prettyman, J., pursuant to certiorari to the Court of Special Appeals.  

DISPOSITION:
Decree affirmed, costs to be paid by petitioners.  

HEADNOTES:

Navigable Waters -- Land Under Navigable Water Is Held By State -- Public Has Right To Use Ocean Front Area Extending Oceanward From Mean High Water Mark.
Easements -- Dedication To Public Use -- May Be Accompanied By Recorded Plat Showing Area For Public Use -- Easement May Also Be Implied From Plat Reference, Despite Absence Of Reference In Deed Transferring Title -- But To Create Easement By Dedication There Must Be Proof Of Clear And Unequivocal Intent To Dedicate.  Where there had been no express dedication of any beach area within owner's lot line, either by deed, plat or other evidence of an intent to dedicate, the Court held that no portion of owner's property, lying between dune line and mean high water mark, had been dedicated to public use.
Easements -- Prescriptive Use -- Existence Of Easement By Prescription Established By Uninterrupted User By Public For 20 Years.  Where there was no evidence that any part of owner's property had been used by public [***2]  prior to 1962, the Court held that there was insufficient proof to establish a public easement in such property by prescriptive use.
Easements -- Public's Right To Use Coastal Shores -- Neither Custom Nor Grant Under Maryland Charter Give Public Any Right To Use Coastal Shore (Littoral) Lying Within Property Line Of Private Owner Where Such Use Unreasonably Interferes With Owner's Possessory Rights.
Easements -- Public Gains No Easement Or Rights In Private Land Simply Because Such Property Is Improved From Expenditure Of Public Funds.
Navigable Waters -- Private Land Inundated By Gradual Erosion Reverts To State Ownership -- But Temporary Flooding Does Not Affect Title To Land.  Where privately owned fast land became temporarily submerged as a result of severe storms (avulsion), title to such land remains vested in private owners, and State gains no title or interest therein.  

SYLLABUS:

Bill of complaint by E. T. Park, Inc., against 71st Street, Inc., George Bert Cropper and the Mayor and City Council of Ocean City to enjoin construction of condominium and issuance of building permit therefor.  The Maryland State Department of Natural Resources intervened as a party [***3]  plaintiff.  From a decree denying injunctive relief and dismissing the complaints, E. T. Park, Inc., and the Department of Natural Resources appeal.  

COUNSEL:
Hamilton P. Fox, with whom were Hearne, Fox & Bailey on the brief, for E. T. Park, Inc., part of appellants.  Warren K. Rich, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General, on the brief, for Department of Natural Resources, other appellant.
Patrick L. Rogan, Jr., with whom were Richardson, Rogan, Anderson & Heland on the brief, for 71st Street, Inc., part of appellees.  Dale R. Cathell, City Attorney, for Mayor and City Council of Ocean City, other appellee.  

JUDGES:
Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Singley, J., delivered the opinion of the Court.  Eldridge, J., dissents and filed a dissenting opinion at page 15 infra.  

OPINIONBY:
SINGLEY 

OPINION:

 [*2]   [**632]  This case raises for the first time the extent of the rights which neighboring owners and members of the public may respectively have in the littoral at Ocean City, Maryland -- that portion of the beach which lies [***4]  west of the Atlantic Ocean's mean high tide line, referred to in this opinion as "mean high water mark."
The area involved is a development originally known as Oceanbay City, first platted in 1940.  E. T. Park, Inc. (Park), one of the petitioners, is a corporation owned by Dr. Nicholas J. Kohlerman.  Park owns lots 22 and 23 in block 38  [*3]  of Oceanbay City improved by a residence occupied by Dr. Kohlerman.  These lots front 100 feet on the south side of what is known locally as 71st Street with a depth of 120 feet, lying generally to the rear of an ocean front tract 100 feet in width and 120 feet in depth, known as lots 4 and 5 in the same block, owned by 71st Street, Inc. (the Developer). n1 When Park learned that the Developer had filed an application for a building permit for the construction of a condominium on its ocean front tract, an action was instituted by Park in the Circuit Court for Worcester County against the Developer; the Developer's builder; the Mayor and City Council of Ocean City (the City), and the City's building inspector, which sought to enjoin the construction of the condominium and the issuance of a building permit by the City.

n1 Lots 4 and 5 were platted as ocean front lots in 1940.  In 1963, the front lot lines were moved back 150 feet to reflect the erosion occasioned by the March, 1962 storm, and six lots were eliminated from the block.

 [***5]  
Park's complaint was grounded on the contention that it, along with the general public, had acquired an easement by implied dedication, prescription, or custom permitting use as a public beach of the area between the mean low water mark on the east and the line of vegetation on the west, and particularly the dry sand area lying between the Developer's lot line on the east and the line of vegetation on the west.  It was contended that the building to be erected would have its eastern front at the Ocean City building limit line and would be almost entirely to the east of the dune line, which is generally the same as the line of vegetation. As a result, the dry sand beach would be narrowed and might at times be covered by wave action, thus effectively denying the public use of the beach.
On petition filed after the action had been instituted, State of Maryland, Department of Natural Resources (the State) was permitted to intervene as party plaintiff.  From an order denying the injunctive relief prayed, Park and the State appealed to the Court of Special Appeals.  On motion of the petitioners, we granted certiorari.
 [*4]  Ocean City is located on one of a system of barrier islands [***6]  which parallels the mainland along the Atlantic coast from Florida to New England.  Because of the low elevation and unprotected character of the islands on the Maryland-Delaware coast, they are particularly susceptible to wave and wind action.
There was testimony below that the beach where the Developer's tract is located underwent a process of accretion in the 79-year period ending in 1929, when it gained width at an average of 1.6 feet annually.  From 1929 to 1947, it lost some 270 feet through erosion.  After the unusual storm of March, 1962, it was 450 feet narrower than it had been in 1922.
For the past 35 years, protective measures have been undertaken, at first with funds supplied by the State of Maryland.  These consisted of the placing of sand fences, the construction of asphalt groins, and the bulldozing of sand.
After the 1962 storm, and the designation of the Ocean City beach as a National Disaster Area, the reconstruction of a dune line was commenced by the U.S. Army Corps of Engineers.  The Developer's  [**633]  predecessors in title joined with other property owners in granting a perpetual easement to Worcester County for the construction and maintenance of the [***7]  dune. n2

n2 The agreement creating the easement grants, in pertinent part:

"... a perpetual easement across the aforesaid property for the purpose of constructing, reconstructing and maintaining a sand dune barrier (to be constructed or reconstructed originally by the Corps of Engineers of the U.S. Army) for the protection of our property, the other property in this vicinity and the public generally, but in connection therewith do grant the further right to construct and maintain across our property sand fences or such other protective devices as may be necessary, it being understood and agreed that the County Commissioners of Worcester County, their agents, employees, successors and assigns are hereby vested with all rights, powers and authority necessary for the construction, reconstruction, repair and maintenance of said dune barrier, sand fences or other protective devices, including the right to enlarge said dune barrier if it is subsequently determined that such action is necessary for the protection of property."

There is a further provision:

"... that any improvements or other facilities to be constructed or erected on the aforesaid premises will be done in accordance with permits to be issued by said County Commissioners and will be constructed or erected in such manner as will permit the free and unhampered flow of littoral currents and sand, thus avoiding as much as possible any disturbance or destruction of said dune barrier, sand fences or other protective devices, it being UNDERSTOOD AND AGREED that at such times as said County Commissioners, their successors and assigns may determine that the rights and easements herein granted are no longer necessary for the purposes intended, then and in that event the same shall cease to exist."

 [***8]  
 [*5]  So long as the dune lay outside the limits of the City, the County Commissioners refused to issue building permits for construction east of the dune line.  Some years after the 71st Street area was annexed by Ocean City in 1965, the County took the position that it was no longer responsible for the maintenance of the dune. As a consequence, the City proceeded to delineate a building limit line east of structures then existing, which in this area was east of the dune line.
As regards the public's right to use the foreshore, the area extending easterly from the mean high water mark, there can be little doubt, Shively v. Bowlby, 152 U.S. 1 (1894). It has long been held that navigable water and the land under it is held by the State, for the benefit of the public, Smith v. Maryland, 59 U.S. 71 (1855); 1 R. Clark, Waters and Water Rights § §  36.3 (B)-(C), at 192-94, 42.1, at 264-67 (1967); 1 Patton, Land Titles §  135, at 352-54 (2d ed. 1957). n3 At the time of the grant of the Charter by Charles I to Lord Baltimore, it was owned by the Crown and transferred to the proprietor, Browne v. Kennedy, 5 H. & J. 195 (1821) and after the Revolution has been held by the State [***9]  for the benefit of the public by virtue of Article 5 of our Declaration of Rights, Board of Public Works v. Larmar Corp., 262 Md. 24, 277 A. 2d 427 (1971); Kerpelman v. Board of Public Works, 261 Md. 436, 276 A. 2d 56, cert. denied, 404 U.S. 858 (1971). See also Day v. Day, 22 Md. 530 (1865); Baltimore v. McKim, 3 Bland 453 (1831). Prior to the enactment of  [*6]  Chapter 129 of the Acts of 1862, now Maryland Code (1957, 1972 Repl. Vol.) Art. 54, §  48, there were instances where the State issued patents for land under navigable water, defined by our cases as water where the tide ebbs and flows, Van Ruymbeke v. Patapsco Industrial Park, 261 Md. 470, 475, 276 A. 2d 61, 64 (1971).

n3 In some states, notably Massachusetts, Maine and New Hampshire, private ownership of the littoral extends to mean low water, subject, however, to public right of passage -- see Lakeman v. Burnham, 73 Mass. 437 (1856); Gerrish v. Proprietors of Union Wharf, 26 Me. 384 (1847); M. Frankel, Law of Seashore Waters and Water Courses (1969); 3 American Law of Property §  12.34, at 273-75 (A. J. Casner ed. 1952).

 [***10]  
 [**634]  This protects the public in the use of the foreshore only, however. n4 If a right of access is claimed over fast land, or there is an assertion of right of user of such of the dry sand littoral which lies west of the front property line, it must find support elsewhere. n5 In instances where there has been a prior grant of the foreshore to the owner of the littoral, the public's right to make use thereof is limited to navigation and fishing, 2 H. Tiffany, Law of Real Property §  659, at 697 (3d ed. 1939).  The notion that the rights of the owner of the littoral must be exercised in subordination to the paramount rights of the public is no longer applicable, since rights of fishing, boating, hunting, bathing, taking shellfish and seaweed and of passing and repassing have been pro tanto extinguished by the prior grant, Town of Orange v. Resnick, 94 Conn. 573, 109 A. 864 (1920). See Comment, 31 Mich. L. Rev. 1134, at 1135-39 (1933).

n4 The English rule is sometimes said to be more restrictive as regards the use of the foreshore, relying on Blundell v. Catterall, 5 B. & Ald. 268, 100 Eng. Rep. 1190 (1821). See J. Angell, The Right of Property in Tide Waters, at 17-35 (2d ed. 1847). [***11]  
n5 At argument, counsel for the respondent 71st Street, Inc. conceded that there was no challenge to public access to the foreshore by the use of dedicated streets which ended at the beach.

In recent years, as a result of an expanding population and a limited amount of shore line, courts have been confronted more frequently with the problem posed by this case.  Clark, supra, §  36.4 (B), at 200-02.  In some instances, the result sought by Park has been predicated on dedication. Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 330 N.Y.S.2d 495 (Sup. Ct. 1972), aff'd, 358 N.Y.S.2d 957 (1974); Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P. 2d 50, 84 Cal. Rptr. 162 (1970); Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N. J. 296, 294 A. 2d 47 (1972); Seaway  [*7]  Co. v. Attorney General, 375 S.W.2d 923 (Tex. Civ. App. 1964); Clark, supra, §  38.2 (B), at 227-30.  Compare, United States v. Certain Land in County of Worcester, Md., 311 F. Supp. 1039 (D. Md. 1970).
Other cases have suggested that an easement may be created by prescription, Gion v.  [***12]   City of Santa Cruz, supra; State ex rel. Thornton v. Hay, 254 Or. 584, 462 P. 2d 671 (1969); Clark, supra, §  38.2 (A), at 225-27.  Finally, there is some possibility that support could be found in custom, State ex rel. Thornton v. Hay, supra; Knowles v. Dow, 22 N. H. 387 (1851), or by invoking a concept of public trust, Borough of Neptune City v. Borough of Avon-by-the-Sea, supra, 61 N. J. at 309-10, 294 A. 2d at 54-55. See generally Degnan, Public Rights in Ocean Beaches: A Theory of Prescription, 24 Syracuse L. Rev. 935 (1973); McKeon, Public Access to Beaches, 22 Stanford L. Rev. 564 (1970); The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L. J. 762 (1970).
In considering the petitioners' contentions, the chancellor (Prettyman, J.) noted that much of the littoral in Ocean City had been dedicated to public use by recorded plats, in which areas east of the easterly lot lines had been designated "beach," "boardwalk" or as the location of a public way, all of which had been accepted by Ocean City.  Even in the absence of acceptance, however, an easement may be implied from a plat reference despite the absence of a reference [***13]  in the deed transferring title, Williams Realty Co. v. Robey, 175 Md. 532, 539-40, 2 A. 2d 683, 686 (1938); 3 R. Powell, Property para. 409, at 424-28 (1973); 26 C.J.S. Dedication, §  23 c, at 447-48 (1956).  Compare, Goodsell v. Lawson, 42 Md. 348 (1875). There was also a finding that east-west streets running to the beach, at least as far north as 94th Street, had been similarly dedicated and accepted.
However, the chancellor also found as a fact that prior to the 1962 storm, the Developer's lots stood on high ground, were covered with grass and were not used by  [**635]  the public.  There was a further finding that prior to the 1962 storm, the public had only used that portion of the littoral east of the  [*8]  dunes on what was then lots 4 and 5, and that no witness other than Park's sole stockholder testified as to the use of lots 4 and 5 as they existed after 1962, a use which did not antedate 1966. n6

n6 This was Dr. Nicholas J. Kohlerman, who had built a house on lots 22 and 23, acquired by Park in 1966 and 1967, respectively.

 [***14]  
Park and the State assign four reasons why the decree entered by the chancellor should be reversed, which we shall consider.
(i)

The area between the dune line and mean high water mark has been dedicated to the public.
Based on his findings, the chancellor concluded that there had been no express dedication of any area within the Developer's lot line: no such dedication was noted on the recorded plat; and the deed of easement to Worcester County did not contain an express dedication, but rather was a consent to the construction and maintenance of the dune. He concluded that dedication could not be implied, because there was no proof of a clear and unequivocal manifestation of an intent to dedicate. We think this conclusion was compelled by Toney Schloss v. Berenholtz, 243 Md. 195, 204-05, 220 A. 2d 910, 914 (1966); Canton Co. v. Baltimore, 106 Md. 69, 83-84, 66 A. 679, 680 (1907); and Harbor Co. v. Smith, 85 Md. 537, 541-42, [South Baltimore Harbor & Improvement Co. v. Smith,] 37 A. 27, 28 (1897).
The distinction between dedication and prescription cannot be lost.  Implying a dedication solely through long public use without regard to any intent [***15]  to dedicate on the part of the landowner is but a form of prescription, and as such, all of the requisites for prescriptive rights must be met.  Mt. Sinai Nursing Home, Inc. v. Pleasant Manor Corp., 254 Md. 1, 5-6, 253 A. 2d 915, 917-18 (1969). But see Conway v. Prince George's County, 248 Md. 416, 419, [Conway v. Board of County Comm'rs,] 237 A. 2d 9, 11-12 (1968).
 [*9]  (ii)

The public has attained the right to use the area between the dune line and the mean high water mark through prescriptive use.
We believe that the chancellor was quite right when he rejected the contention that an easement had been acquired by prescription, relying on Mt. Sinai, supra, 254 Md. at 5-6, 253 A. 2d at 917-18. As Chief Judge Alvey said for the Court in Thomas v. Ford, 63 Md. 346, 351-52 (1885):
"It is certainly a settled doctrine in this State that public roads or ways of any kind can only be established by public authority, or by dedication, or by long user by the public, which, though not strictly prescription, yet bears so close an analogy to it that it is not inappropriate to apply to the right thus acquired the term prescriptive.  Hence the existence [***16]  of a public way may be established by evidence of an uninterrupted user by the public for twenty years; the presumption being that such long continued use and enjoyment by the public of such way had a legal rather than an illegal origin.  Day v. Allender, 22 Md. 511. ..."

As was the case in Mt. Sinai, supra, the law would support the petitioners, if the necessary facts were available.  There was simply no testimony, other than Dr. Kohlerman's, as regards the public's use of lots 4 and 5.  In fact, there was a clear inference that the lots had been used by no one prior to 1962 because of their topography.  Such use as there may have been after the storm failed to meet the test of long user.  See also Code (1974), Real Property Article §  13-113.
 [**636]  (iii)

The public's interest in Maryland's coastal shores established through custom and grant requires that activities violative of the public trust be proscribed.
This contention seems to be based primarily upon Article  [*10]  IV of the Charter of Maryland, 20 June 1632, by which Charles I granted to Caecilius Calvert, Lord Baltimore

"... all islands and islets within the limits aforesaid,  [***17]  all and singular the islands and islets, from the eastern shore of the aforesaid region, towards the east, which have been, or shall be formed in the sea, situate within ten marine leagues from the said shore; with all and singular the ports, harbours, bays, rivers, and straits, belonging to the region or islands aforesaid, and all the soil, plains, woods, mountains, marshes, lakes, rivers, bays, and straits, situate, or being within the metes, bounds and limits aforesaid, with the fishings of every kind of fish, as well of whales, sturgeons, and other royal fish, as of other fish, in the sea, bays, straits or rivers, within the premises, and the fish there taken: ..." 1 Maxcy, Laws of Maryland 1, 2 (1811).

and then subjected the grant to the reservation contained in Article XVI:
"AND FURTHERMORE, of our more ample special grace, and of our certain knowledge, and mere motion, WE do, for US, our heirs and successors, grant unto the aforesaid now baron of Baltimore, his heirs and assigns, full and absolute power and authority to make, erect and constitute, within the province of Maryland, and the islands and islets aforesaid, such, and so many sea-ports, harbours, creeks,  [***18]  and other places of unlading and discharge of goods and merchandizes out of ships, boats, and other vessels, and of lading in the same, and in so many, and such places, and with such rights, jurisdictions, liberties and privileges, unto such ports respecting, as to him or them shall seem most expedient: And, that all and every the ships, boats, and other vessels whatsoever, coming to, or going from the province aforesaid, for the sake of  [*11]  merchandizing, shall be laden and unladen at such ports only as shall be so erected and constituted by the said now baron of Baltimore, his heirs and assigns, any usage, custom, or any other thing whatsoever to the contrary notwithstanding.  Saving always to US, our heirs and successors, and to all the subjects of our kingdoms of England and Ireland, of US, our heirs and successors, the liberty of fishing for sea-fish, as well in the sea, bays, straits, and navigable rivers, as in the harbours, bays, and creeks of the province aforesaid, and the privilege of salting and drying fish on the shores of the same province; and for that cause, to cut down and take hedging-wood and twigs there growing, and to build huts and cabins, necessary in  [***19]   this behalf, in the same manner as heretofore they reasonably might, or have used to do.  Which liberties and privileges, the said subjects of US, our heirs and successors, shall enjoy, without notable damage or injury in any wise to be done to the aforesaid now baron of Baltimore, his heirs or assigns, or to the residents and inhabitants of the same province in the ports, creeks, and shores aforesaid, and especially in the woods and trees there growing.  And if any person shall do damage or injury of this kind, he shall incur the peril and pain of the heavy displeasure of US, our heirs and successors, and of the due chastisement of the laws, besides making satisfaction." Maxcy, supra, at 7-8.  (Emphasis supplied.) n7

 [**637]  The scope of the rights reserved is strikingly reminiscent of Roman law. n8 This is not surprising, since Justinian's  [*12]  Institutes were well known in Britain by the 13th century.  See 1 F. Pollock & F. Maitland, The History of English Law 119 (2d ed. 1905).

n7 The original Charter, in Latin, appears in 3 Archives of Maryland, Proceedings of the Council of Maryland, 1636-1667, at 3-12 (Browne ed. 1885). [***20]  
n8 T. Cooper, The Institutes of Justinian, Book 2, Title 1, 67-68 (1812):

"§  1
"Things common to mankind by the law of nature, are the air, running water, the sea, and consequently the shores of the sea; no man therefore is prohibited from approaching any part of the sea-shore, whilst he abstains from damaging farms, monuments, edifices, & c. which are not in common as the sea is."
***
"§  3
"All that tract of land, over which the greatest winter flood extends itself, is the sea-shore."
***
"§  5
"The use of the sea-shore, as well as of the sea, is also public by the law of nations; and therefore any person may erect a cottage upon it, to which he may resort to dry his nets, and hawl them from the water; for the shores are not understood to be property in any man, but are compared to the sea itself, and to the sand or ground which is under the sea."

The Latin text of the Institutes uses the word casa in §  5 which is translated as cottage.  Alternate translations are cabin, shed, or hut.  The Latin text of the Maryland Charter uses the words casa (cabin) and "tuguriola." Compare tugurium (hut).  See The White Latin Dictionary 97, 622 (1948).

 [***21]  
The petitioners argue, with some force, that fish cannot be salted or dried, or cabins or huts constructed, or twigs and branches gathered on the foreshore, which is subject to continuous tidal action, therefore placing some of it under water a considerable portion of each day.  A fair reading of Article XVI's provisions, they say, contemplates the right of the public to carry on such activities on the littoral owned by others adjacent to the foreshore, seaward of the vegetation line, so long as there is no significant interference with an owner's rights.
It seems to us that there are obstacles which must be considered.  First, was the right reserved only to the king, his heirs and his subjects?  Second, does a fair reading of the Charter limit the reservation to the ocean shore? Third, did the reservation apply to the 17th century configuration of the shoreline, or as the shore receded westward, did property which formerly lay at a distance from the ocean become subject to the reservation? n9 Finally, may rights  [*13]  oriented about the 17th century fishing industry be regarded as encompassing the uses to which a beach is customarily put 300 years later? n10

n9 See Hay v. Bruno, 344 F. Supp. 286 (D. Or. 1972); State ex rel. Thornton v. Hay, 254 Or. 584, 462 P. 2d 671 (1969) which recognized that the dry sand area might move as much as 200 feet in a single year. [***22]  
n10 See Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N. J. 296, 309-10, 294 A. 2d 47, 54-55 (1972); Degnan, Public Rights in Ocean Beaches: A Theory of Prescription, 24 Syracuse L. Rev. 935, 955-59 (1973).

Intriguing as these questions are, we find it unnecessary to consider them in this case for a very simple reason.  What the petitioners are attempting to do here, under an assertion of the public's right to picnic and sunbathe on the dune, is to deny the Developer a use of his property to which he has an otherwise lawful right: the right to build to Ocean City's building limit line.  This is the "notable damage or injury in any wise to be done ... to the residents and inhabitants of the same province in the ... shores aforesaid, ..." which Article XVI of the Charter specifically proscribed.  Accordingly, we do not reach the question of the type of incursion, if any, which might be permitted by the Charter.
As did the chancellor below, we decline to rely on the rule of State ex rel. Thornton v. Hay, supra, 254 Or. at 595, 462 P.2d at 676, that the right of the public [***23]  to use a dry sand area contained within the legal description of a water front tract may be grounded solely on a custom of public use.
 [**638]  Insofar as Park sought to rest its claim on custom, we are quite satisfied to adopt the rationale explicated by the chancellor. No one, other than Dr. Kohlerman, alleged a right to venture upon the Developer's lots, and even he could go back no further than a half dozen years -- certainly not "so long, that the memory of man runneth not to the contrary," 1 W. Blackstone, Commentaries *76. n11 Moreover, just as there is no way that the Developer can challenge the right of others to use the beach between the mean high water mark and its lot line, there is no way, under the facts of this case, that the use by the public of the beach east of  [*14]  the easterly lot line can be extended to the lot itself in a manner which would deny to the owner a use permitted by law and local regulation.

n11 Additionally, Blackstone notes that in order to be enforceable, a custom must be: continued, peaceable, reasonable, certain, compulsory, and consistent with other customs, 1 W. Blackstone, Commentaries *77-78.

 [***24]  
The petitioners attempt to buttress their argument by contending that the area between the mean high water mark and the dune line has become impressed with a public trust, either because of the substantial sums expended in restoring the dune line after the 1962 storm, or because recreational and environmental considerations would thereby be served.
The lower court rejected this argument, as do we.  There was no evidence that the public had acquired any interest in lots 4 and 5, nor is any authority cited in support of the notion that such an interest may come into being simply as a consequence of the expenditure of public funds.  Moreover, it is clear from the record that the army engineers regarded the work which was done at public expense as a necessary emergency measure in a disaster area, in order to bring back the situation which existed prior to the storm, so that the ocean highway, far west of the dunes, could be kept open as an evacuation route.  Property owners received positive and unequivocal assurance that the work on the dune line would in no way affect the ownership, use, improvement, or disposition of their property -- an assurance inconsistent with the idea that the [***25]  work was undertaken to insure that the general public would be able to use a portion of the ocean front lots.
(iv)

Land inundated by mean high water reverts to State ownership: areas reclaimed by governmental efforts remain State property.
The first phrase of this proposition is a correct statement of the law of submergence, and is applicable when, as a result of gradual erosion, fast land becomes submerged.  We are not called upon here to pass on the correctness of the second phrase, for which reliance is made on Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N. C. 297, 177 S.E.2d 513 (1970) and on People v. Hecker, 179 Cal. App. 2d 823, 4 Cal. Rptr. 334 (1960).
 [*15]  The rule applicable to a gradual erosion is not applicable to an avulsion, defined as a sudden or violent change, which does not generally affect land boundaries, 1 H. Farnham, Law of Waters and Water Rights §  74, at 331-32 (1904); 11 C.J.S. Boundaries §  34, at 579-80 (1938); 56 Am. Jur. Waters §  477, at 892-95 (1945).  The March, 1962 storm at Ocean City would clearly be classified as an avulsion.  It was of short duration, flooding much of Ocean City at its height,  [***26]  and destroying or extensively damaging houses and other structures.  When it was over, the waters receded, leaving most of the land unchanged, except for the disappearance of the dunes which had lined the beach. The idea that title reverted to the State once the land was temporarily flooded is simply not a tenable contention.
Decree affirmed, costs to be paid by petitioners.  

DISSENTBY:
ELDRIDGE 

DISSENT:

 [**639]  Eldridge, J., dissenting:
As the majority points out, this is the first time that the issue of the rights of private landowners and the public in the littoral or dry sand beach of the Atlantic Ocean has been presented to this Court.  The majority, however, in upholding the landowner's right to build on the beach at the expense of the public's use of the beach, fails to give sufficient weight to the exceptional nature of the ocean beach, the various circumstances surrounding its use, and the historic and compelling public interest in the ocean beach.
Courts in other parts of the country, recognizing the unique resource of the ocean beaches, and the traditional public use of them, have recently been upholding the right of the public to continue to use the ocean beaches [***27]  for swimming, fishing, strolling and sunbathing.  In reaching this result, the cases have been based on several different grounds such as express dedication (Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 330 N.Y.S.2d 495, 504-505 (Sup. Ct. 1972), aff'd, 45 A.D.2d 841, 358 N.Y.S.2d 957 (1974)); implied dedication (Seaway Company v. Attorney General, 375 S.W.2d 923, 935-937 (Tex.Civ.App. 1964)); customary rights  [*16]  (State ex rel. Thornton v. Hay, 254 Or. 584, 462 P. 2d 671, 676-678 (1969); County of Hawaii v. Sotomura, 517 P. 2d 57, 61-62 (Haw. 1973); and see City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974)); or prescriptive use (Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P. 2d 50, 55-56, 59, 84 Cal. Rptr. 162 (1970); Seaway Company v. Attorney General, supra, 375 S.W.2d at 937-938).
I agree with parts (ii) and (iv) of the majority opinion, that no public rights in the subject beach area exist because of prescriptive use or because the land became temporarily flooded in 1962.  However, I disagree with the conclusion in part (i) of the majority opinion that the public has no rights in the dry sand ocean beach by implied [***28]  dedication. Furthermore, customary use of the ocean beach, contemplated from the time of Maryland's Charter, and discussed in part (iii) of the majority opinion is an important factor which, considered together with other circumstances, leads me to the conclusion that the public has by dedication the right to use the dry sand beach for swimming, fishing, sunbathing, and other normal beach activities.
The majority opinion, in not recognizing a public easement by implied dedication in the subject ocean beach above the mean high tide mark, fails to deal with the unique factors involved in this case.  An examination of prior Maryland cases convinces me that the doctrine of implied dedication is fully applicable here.
Almost one hundred years ago, Judge Alvey (later Chief Judge) speaking for the Court in McCormick v. Baltimore, 45 Md. 512 (1877), made it clear that dedication of land to public use need not take any particular form and that the landowner's intent to dedicate his land to public use may be presumed from acts or conduct which estop him from denying the public's right.  It was thus stated (45 Md. at 523):

"It is now settled that it is not essential to a complete [***29]  dedication that the legal title should pass from the owner, nor that there should be any grantee of the easement in esse to take the fee; nor is it necessary that there should be a deed or  [*17]  writing in order to evidence the dedication; but if the owner of the land has done such acts in pais as amount to a dedication, he is thereby estopped from denying that the public have a right to enjoy what is thus dedicated to its use, or from revoking what he has declared by his acts."

And later (id. at 524):

"The evidence of such intention [to dedicate] is furnished in various ways; but ... dedication will be presumed where the facts and circumstances of the case clearly warrant it ...."

In Mayor and City Council of Baltimore v. Frick, 82 Md. 77, 83, 33 A. 435 (1895),  [**640]  the Court emphasized that there are no general rules applicable to all cases of implied dedication, and that each case depends on its own facts and circumstances, saying:

"Indeed it has been found that it is very difficult to lay down any general rule applicable to all cases [of implied dedication].  It has been said 'that each individual case must be [***30]  decided by itself, taking into consideration all the attendant circumstances, the condition of the respective parties and the acts, declarations and intentions of the landowner as manifested by his conduct.  For it is largely on the ground of estoppel in pais that the principle of dedication rests.'"
The Court in Lonaconing Ry. Co. v. Consol. Coal Co., 95 Md. 630, 634, 53 A. 420 (1902), reiterated that no particular act or formality is needed for dedication of land to public use, that the intent to do so need not be expressed in any particular manner, and that dedication may be implied from the landowner's conduct:
"'There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land and the fact of its being used for the purposes  [*18]  intended by the appropriation.' Cincinnati v. White, 6 Pet. 431, 440; Morgan v. Chicago & Alton R. R. Co., 96 U.S. 723. This assent need not be expressed in any particular manner, but it may be implied from the conduct of the owner of the land.  Elliott on Roads and Streets, sec. 133; Carr v. Kolb, 99 Ind. 53; Noyes v. Ward, [***31]  19 Conn. 520; Abcott v. Mills, 3 Vt. 527. No conveyance of the land is necessary nor need there be any grantee in esse to take the title, 'but if the owner of the land has done such acts in pais as amount to a dedication he is thereby estopped from denying that the public have a right to enjoy what is thus dedicated to their use or from revoking what he has declared by his acts.' McCormick v. Mayor, 45 Md. 523; Hiss v. B. & H. P. R. R. Co., 52 Md. 250. Dedication is purely a question of intention and any act or acts of the owner of the land clearly manifesting such intention is sufficient."
More recently, in Smith v. Shiebeck, 180 Md. 412, 419-420, 24 A. 2d 795 (1942), Judge Delaplaine for the Court pointed out that acquiescence in public use is a manifestation of an intent to dedicate a facility for public use, that such use need not be for the prescriptive period or any definite length of time, that the public use need not be hostile, and that each case depends upon all of the circumstances involved in that case:

"As dedication is purely a question of intention, any act of a landowner clearly manifesting such an intention is sufficient.  .  [***32]  . . The intention to dedicate may be implied from the conduct of the landowner. If, for example, a person throws open a passage through his land, and makes no effort to prohibit persons from passing through it, and does not show by any visible sign that he wishes to preserve his right over it, his action is a manifestation of an intention to dedicate the highway to public use and he is presumed to have so dedicated it.  Thus, the  [*19]  question of dedication rests largely upon the ground of estoppel.  ... The right of the public to a road does not depend upon its continuous use for a period of twenty years or for any other definite length of time, but upon its use with the assent of the owner for such a period that the public accommodation and private rights might be materially affected by an interruption of such enjoyment.  ... Each particular case must be decided by considering the declarations of the landowner, his intentions as manifested by his acts, and all the other circumstances of the case.  In our opinion, the bill of complaint in this case, alleging that the road in question is a public road, is not defective merely because  [**641]  it does not expressly allege [***33]  that the public use of the road has been notorious and hostile."

Other cases setting forth these same principles are Conway v. Prince George's County, 248 Md. 416, 418-419, 237 A. 2d 9 (1968); Toney Schloss v. Berenholtz, 243 Md. 195, 204-205, 220 A. 2d 910 (1966); Harlan v. Bel Air, 178 Md. 260, 265, 13 A. 2d 370 (1940); Canton Co. v. Baltimore City, 106 Md. 69, 83-84, 66 A. 679 (1907); Pitts v. Mayor and City Council of Baltimore, 73 Md. 326, 332, 21 A. 52 (1891).
As these cases hold, there are few hard and fast rules with respect to implied dedication under Maryland law, and each situation must be viewed in light of its own peculiar circumstances.  The circumstances warranting the conclusion that the general public of this State has a right to use the beach at Ocean City above mean high tide are as follows:
The Charter of Maryland (1632), as set forth in the majority opinion, indicated that the ocean beach was to have a unique status.  The Charter certainly contemplated public use of the ocean beach, for it reserved to the subjects of England and Ireland, and their "successors," the "privilege of salting and drying fish on the shores of the same province;  [***34]  and for that cause, to cut down and take hedging-wood and  [*20]  twigs there growing, and to build huts and cabins, necessary in this behalf, in the same manner as heretofore they reasonably might, or have used to do." As pointed out by petitioners and also in the majority opinion, these privileges reserved to the public required that the public be able to use the dry sand beach above the line of mean high tide.
Moreover, the evidence clearly showed that the beach area involved in this case had in fact been used by the general public for many years prior to this litigation.  One witness, George Schoepf, the assistant captain of the Ocean City Beach Patrol, testified that an estimated 1,000 people per day used the beach between 70th and 71st Streets, of which the disputed area was a part, on some summer weekends.  Although he could not give a count of the number of users of the portions of respondent's lots 4 and 5 which were a part of the dry sand beach, he did testify to the use of lots 4 and 5 by a portion of the crowds which used the 70th-71st Street beach. Another witness, Dr. Kohlerman, the sole stockholder in petitioner E. T. Park, Inc., the owner of the land directly west [***35]  of lots 4 and 5, testified as to the "swimming, bathing, sunbathing, ball-playing, picnicking" by the public on lots 4 and 5.  There was no evidence presented that respondent landowner or its predecessor in title took any action to discourage or prevent use of the beach by the public.  While I do not suggest that mere acquiescence in the use by the public of a landowner's property, without more, constitutes an implied dedication, nevertheless it is an important circumstance indicating an intent to dedicate land such as this to public use. Smith v. Shiebeck, supra.
Another factor in this case is that the original plat, made in 1917, of the area involved in this litigation, designated a portion of that area bordering on the ocean as "beach." The 1940 revised plat (the Oceanbay City plat) also contained an area running along the shore which was designated as "boardwalk." The most recent plat of the area, submitted in 1963, also designated an area adjacent to the Atlantic Ocean as "beach." Although the sand beach in dispute is not within the area designated "beach" on the plats, because the beach has moved westward as a result of erosion, these plats show  [*21]  a consistent [***36]  recognition that the area immediately adjacent to the ocean was to be kept as beach.
The evidence also showed that prior to the 1938 completion of a paved road to the Delaware line, the beach in the area of dispute had been used as a public road.  See Seaway Co. v. Attorney General, supra, 375 S.W.2d at 932, 935.
The expenditure of government funds for the provision of services on the beach  [**642]  area at issue in this case is a circumstance indicating that the public, as well as the property owners, understood that the beach was dedicated to public use. Testimony demonstrated that the entire beach, including the area at issue, has been kept clean by government authorities.  Lifeguard services have been provided by the city at a point near the disputed area which protected swimmers using that part of the beach. Regulations governing the behavior of members of the public on the beach have been promulgated and enforced in the beach area here involved.  The county and later the city provided patrolling of the beach. See Gion v. City of Santa Cruz, supra, 465 P. 2d at 53, 59.
Government expenditures were also made to preserve the beach in the disputed area.  In 1938 [***37]  the State and in 1953 the county erected sand fences along the length of the island to build up dunes to protect the beach. In 1954, an asphalt jetty was constructed at 70th Street to protect the beach near that point.  Following the extensive damage to the 70th-71st Streets area caused by the storm of 1962, the Army Corps of Engineers rebuilt the dune line along the entire length of the beach, including the property in question.  1,050,000 cubic yards of sand were pumped from the bay to the beach for use in rebuilding the dunes. This operation cost over one and a half million dollars of public funds.  Easements were obtained from all property owners to allow construction and maintenance of the dunes. See United States v. Harrison County, Mississippi, 399 F. 2d 485 (5th Cir. 1968).
Lastly, the understanding of the citizens of this State that the entire beach at Ocean City is open to the public should be  [*22]  considered.  Anyone who has visited Ocean City, and this would include most Marylanders, knows that no one has ever questioned his right to stroll the beach and swim at any point on the length of the island. This is an assumption on which the rapid and profitable [***38]  development of Ocean City has been based.  It is an assumption which must have been known to the respondents.  When the respondent landowner allowed the public to use the dry sand beach, and accepted the government services and protections with respect to the beach, he was endorsing this widely held public belief.
The various factors listed above, taken together, lead me to the conclusion that the landowner and his predecessors in title have recognized the public's right to use and the public's use of the dry sand beach to such an extent, that an implied easement to the public for recreational purposes has been created.  None of the above factors, taken alone, result in this conclusion, nor do any two of the factors compel this result.  But all of the circumstances evaluated together create a total picture of an implied dedication by the landowner and an unmistakable acceptance by the general public.  See Seaway Company v. Attorney General, supra, 375 S.W.2d at 935-937, where essentially similar circumstances led the Court of Civil Appeals of Texas to hold that the Texas public had an easement by implied dedication to use the beach along the Gulf of Mexico.
Because the Atlantic [***39]  Ocean beach is a unique geographic phenomenon, because it is such a limited resource of the State of Maryland, and because the public involvement in it has been of a different character than that associated with other types of land, the result I would reach in this case is not at all inconsistent with prior Maryland law involving the issue of implied dedication of the shore. Thus in Thomas v. Ford, 63 Md. 346 (1885), this Court held that the defendant in that case acquired no easement, by either prescription or implied dedication, to store wood on the plaintiff's shore along the Patuxent River based upon the general public's use of that shore, which use had been acquiesced in by the plaintiff.  One of the chief reasons in that case for denying an easement to the defendant for the storage of wood was that  [*23]  such an easement would amount to an exclusive appropriation of the land, inconsistent  [**643]  with the general public's use of the shore. 63 Md. at 353. However, the Court also held that, for reasons of policy, merely permitting the public to use the shore should not give rise to an easement. Chief Judge Alvey stated for the Court in Thomas (id. at 354-355): [***40]  
"As appropriate to this case, we may repeat here what was said, with great force of reason by COWEN, J., in Pearsall vs. Post, that considering the great extent of shore lines within our State, and the long and uniform indulgence extended by the proprietors of those shores to those who have had occasion to use them for purposes connected with water transportation or fishing, a decision which should admit the possibility of turning such permissive enjoyment into prescriptive and absolute right on the part of the public, would open a field of litigation which no community could endure.  And what is still worse in a moral point of view, it would be perverting neighborhood forbearance and kind indulgence to the destruction of important rights.  Consequently, if it be once understood that this permissive indulgence of the proprietors of the shores may be construed into irrevocable privileges, restrictions and hinderances will inevitably follow, to avoid the possibility of such permissive use maturing into public adverse rights.  The production of any such consequence surely ought not to be desired by anyone."
I fully agree with the above-quoted passage, that merely permitting [***41]  the public to use the shore for boating, swimming or fishing should not in itself give rise to an easement. The same could be said with respect to a farmer permitting the public to hunt on his land, or any landowner permitting picnicking, hiking, etc.  However, as pointed out above, the ocean beach presents an entirely different matter.   [*24]  While Maryland's inland tidal shoreline measures over three thousand miles, its ocean shoreline is only thirty-five miles long.  To recapitulate, from the time of the Charter of Maryland on, the ocean beach has had a unique status.  Not only have the landowners acquiesced in the public's use of the beach, but they have accepted government services, protections and regulations with respect to the beach which are of a totally different character than the government services, protections and regulations provided for other types of privately owned land.  Plats have consistently shown an area to be dedicated as "beach." The public and property owners of the State well understand that use of other types of land for recreational activities does not effect a dedication to the public.  This is in stark contrast to the common understanding that the [***42]  beach at Ocean City is a public beach.
In light of the consistent holdings of this Court that dedication of land to public use need not take any particular form, that it does not depend on hard and fast rules, that a landowner's intent to dedicate may be presumed from acts and conduct, and that each case depends upon its own facts and circumstances, I would reverse the decision below on the ground that the peculiar facts and circumstances associated with the ocean beach and its use, compel the conclusion that the dry sand beach at the front of respondent landowner's lots has been dedicated to recreational use by the general public.
Petitioners in this case argue that the respondent landowner should be held to have dedicated the beach to the line of dunes built after the 1962 storm. Since I would decide that only that part of the property which constituted a part of the dry sand beach used by the public was dedicated, the line urged by petitioners may be too inclusive.  Other courts when faced with the question of what constitutes the "beach" for public recreational pursuits have settled on the line marked by the beginning of growth of vegetation. County of Hawaii v. Sotomura,  [***43]   supra, 517 P. 2d at 63; Seaway Co. v. Attorney General, supra, 375 S.W.2d at 927, 939; State ex rel. Thornton v. Hay, supra, 462 P. 2d at  [*25]  672-673. This would be a logical method of delineating the "beach" since the vegetation line marks the level reached by the waters of the  [**644]  ocean often enough to prevent the growth of plants.  On the other hand, if the evidence showed that in a particular area, the portion of the beach traditionally used by the public with the acquiescence of the adjoining landowners, and maintained by the public authorities, was east of the vegetation line, then that line of public use eastward of the vegetation line should be the limit of the public's easement in such area.  I would reverse the decree below and remand for further proceedings consistent with the views herein expressed.  

8 of 37 DOCUMENTS 

PRINCE GEORGE'S COUNTY, MARYLAND v. BOARD OF TRUSTEES OF PRINCE GEORGE'S COMMUNITY COLLEGE 

No. 261, September Term, 1972 

Court of Appeals of Maryland 

269 Md. 9; 304 A.2d 228; 1973 Md. LEXIS 799 

May 14, 1973, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Circuit Court for Prince George's County; McCullough, J.  

DISPOSITION:
Appeals dismissed; remanded with instructions to dismiss both suits for declaratory judgment; appellant to pay costs.  

HEADNOTES:

Declaratory Judgments -- Jurisdiction -- To Invoke Jurisdiction Of The Courts For Declaratory Relief There Must Be A Justiciable Controversy Between The Parties.
Declaratory Judgments -- Statutes -- While Action For Declaratory Judgment Will Lie To Determine Construction Or Validity Of A Statute, Such Action Cannot Be Maintained Where The Essential Elements Requisite To Such Relief Are Not Present.
Declaratory Judgments -- Justiciable Controversy -- A Controversy Is Justiciable When There Are Interested Parties Asserting Adverse Claims Upon A State Of Facts Which Must Have Accrued Wherein A Legal Decision Is Sought Or Demanded.  The Court held that in the present case although both parties desired declaratory relief there was lacking "the state of facts which must have accrued" to establish the requisite "justiciable controversy." The Court said the most that could be said for the county executive's letter requesting a detailed budget request [***2]  from the Trustees was an apparent disagreement over whether the 1973 fiscal year budget submitted by the Trustees contained sufficient detail to satisfy the county executive. This the Court said, reflected a difference of opinion but hardly rose to the level of a "justiciable controversy." 

SYLLABUS:

Petition for declaratory judgment by the Board of Trustees of Prince George's Community College against Prince George's County, its county executive and the individual members of the county council for a determination of their rights and obligations with respect to the annual operating budget of the college.  From a decree containing twelve declarations, all favorable to the Trustees, the County appeals and the Board of Trustees cross-appeals from the granting of a preliminary motion finding that the suit could only be brought against the County.  

COUNSEL:
Harry L. Durity, Associate County Attorney, with whom was Walter H. Maloney, Jr., County Attorney, on the brief, for appellants.
Joint Amicus Curiae brief filed by Anne Arundel County, with Paul F. Borden, County Solicitor, and John M. Court, Assistant County Solicitor, on the brief and Kent County, with Ernest S. Cookerly,  [***3]   County Attorney, on the brief and Calvert County, with J. Frank Boyd, County Attorney, on the brief.
Daniel I. Sherry for appellee.  

JUDGES:
Murphy, C. J., and Barnes, McWilliams, Singley, Smith, Digges and Levine, JJ.  Levine, J., delivered the opinion of the Court.  

OPINIONBY:
LEVINE 

OPINION:

 [*10]   [**228]  This appeal arises from a declaratory judgment proceeding brought by appellees, Board of Trustees of Prince George's Community College (the Trustees), against appellant, Prince George's County (the  [**229]  county), its county executive and the individual members of the county council. n1 The parties claim it is necessary to have a judicial determination of their respective rights and obligations under allegedly conflicting provisions of the Prince George's County Charter and Maryland Code (1957, 1969 Repl. Vol.) Art. 77A, § §  1-10, entitled "Community Colleges." They say the issues were drawn in February, 1972, when the Trustees forwarded to the county executive their estimated operating budget for fiscal year 1973; and the county executive then  [*11]  returned the budget with an opinion of the county attorney attached thereto.  The county executive wrote:

". [***4]  . . Essentially, the opinion points out (1) the County does have the authority to ask for a detailed budget from the Community College and (2) the County does have the discretion of establishing an amount which is equivalent to 28% of current expenses.
"In light of the foregoing, I am returning to you your three page budget request. I am requesting you to submit to me personally a detailed budget request for the Fiscal Year 1973.  Your budget must be received no later than the close of business March 6, 1972."

n1 A motion raising preliminary objection was filed by the county executive and the members of the county council, in which they contended that suit could only be brought against the county and not against them.  The motion was granted and that ruling is the subject of a cross-appeal brought by the Trustees.

Significantly, the county at no time refused to comply with the Trustees' budget request; and, in fact, acquiesced in a pendente lite order which, "without prejudice to the respective positions [***5]  of the parties with respect to the matters in issue," required the county to provide the funds budgeted by the Trustees for the college's 1973 fiscal year.
Following a hearing, from which there emerged no factual disputes, but which is said to have developed certain legal issues, the chancellor passed a decree containing twelve declarations, all favorable to the Trustees.  With one possible exception -- to which we shall refer later -- none of the twelve "issues" ostensibly dealt with in the decree was remotely suggested by the county executive's letter.
Under Code (1957, 1971 Repl. Vol.) Art. 31A, §  2, "[a]ny person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity ... arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder." Art. 31A, §  6, provides, in part, that:
"Relief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy exists between contending parties, or  [*12]  in which the court is satisfied that antagonistic claims are present between the parties involved which [***6]  indicate imminent and inevitable litigation, or when in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving rise to the proceedings.  ..."
Although this Court has said that declaratory relief is appropriate where public agencies are at loggerheads, Liss v. Goodman, 224 Md. 173, 178, 167 A. 2d 123 (1961), to invoke the jurisdiction of the courts for declaratory relief there must be a justiciable controversy between the parties, Kloze v. Provident Bank, 220 Md. 469, 154 A. 2d 711 (1959); Patuxent Co. v. Commissioners, 212 Md. 543, 129 A. 2d 847 (1957); Tanner v. McKeldin, 202 Md. 569,  [**230]  97 A. 2d 449 (1953); see also Borchard, Declaratory Judgments, 33 et seq. (2d ed. 1941).
While an action for a declaratory judgment will lie to determine the construction or [***7]  validity of a statute, such action cannot be maintained where the essential elements requisite to such relief are not present, Hitchcock v. Kloman, 196 Md. 351, 76 A. 2d 582 (1950); Hammond v. Lancaster, 194 Md. 462, 71 A. 2d 474 (1950); Davis v. State, 183 Md. 385, 37 A. 2d 880 (1944); see Thomas v. Solis, 263 Md. 536, 283 A. 2d 777 (1971). In Patuxent Co. v. Commissioners, supra, the Court, quoting from 1 Anderson, Actions for Declaratory Judgments §  17 (2d ed. 1951), stated:

"'A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.'" 212 Md. at 548 (emphasis added).
 [*13]  It may well be that there exists between these parties an "actual controversy;" "antagonistic claims" indicating "imminent and inevitable litigation;" or the assertion and denial of "a legal relation, status, right, or privilege." And, assuming any of these possibilities, we might have been "satisfied also that a declaratory ... decree [would] serve to terminate the uncertainty or controversy giving rise to the proceedings." The difficulty [***8]  confronting us is that if any or all of these grounds for granting declaratory relief do exist, we are unable to perceive them in the record presented to us.
The most that can be said for the county executive's letter -- and the parties point to no other "state of facts" that reveals an "actual controversy" -- is that it presents an apparent disagreement over whether the 1973 fiscal year budget submitted by the Trustees contained sufficient detail to satisfy the county executive. This may reflect a difference of opinion, but hardly rises to the level of a "justiciable controversy." In sum, although both parties desire declaratory relief in this case, there is nevertheless lacking "the state of facts which must have accrued" to establish the requisite "justiciable controversy."
Having concluded that this case is not a proper one for granting declaratory relief, we see no alternative to dismissal.  The suit was precipitated by the 1973 fiscal year budget for which, as we noted earlier, the requested funds were furnished.  Presumably, a declaration approved by this Court would have governed the relationship between the parties for the 1974 fiscal year budget, which is undoubtedly in [***9]  the final stages of preparation.  We think it unlikely, however, that further proceedings below and in this Court could lead to ultimate relief in sufficient time to be available for that budget. n2

n2 We are informed that at its 1973 session, which recently concluded, the General Assembly enacted House Bill 1160; and that it presently awaits the signature of the Governor.  Subject to gubernatorial approval and the right of referendum provided for by Art. XVI of the Maryland Constitution, it will become law on July 1, 1973.  House Bill 1160 amends § §  5(a), 6 and 7(a) and (c) of Art. 77A in such fashion as to clearly subject budgets of community colleges, except those which are regional, to review and approval of the counties and Baltimore City.  We find it curious that no reference was made to the pendency of this legislation when we suggested at oral argument that this "dispute" should more appropriately be addressed to the legislative branch.
Were House Bill 1160 to have been applicable to the budget for fiscal year 1974, we would undoubtedly have dismissed this appeal for mootness, since we do not decide moot questions or abstract propositions, Potts v. Governor, 255 Md. 445, 258 A. 2d 180 (1969); Eberts v. Congressional Country Club, 197 Md. 461, 79 A. 2d 518 (1951); Davis v. State, supra; see Note, Declaratory Judgments in Maryland, 6 Md. L. Rev. 221, 226 (1942).

 [***10]  
 [*14]   [**231]  Our disposition makes it unnecessary to consider the issue presented by the cross-appeal.
Appeals dismissed; remanded with instructions to dismiss both suits for declaratory judgment; appellant to pay costs.  

9 of 37 DOCUMENTS 

HYLTON et ux. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al. 

No. 298, September Term, 1972 

Court of Appeals of Maryland 

268 Md. 266; 300 A.2d 656; 1972 Md. LEXIS 649 

December 29, 1972 

February 26, 1973, Filed 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Ross, J.  

HEADNOTES:

Municipal Corporations -- Contracts -- Requirement Of Competitive Bidding -- General Purpose Is To Obtain Unrestricted Competitive Bids For Contracts And Thereby To Safeguard Public Funds By Preventing Favoritism, Collusion And Extravagance.
Municipal Corporations -- Contracts -- Exceptions To Competitive Bidding Requirements -- Two Kinds Of Competition Underlie Bidding Policy, Namely, Competition Between Different Things Which Will Equally Answer The Same General Purpose And Competition Between Prices Bid Upon Each Of Those Distinct Things -- Where The Thing Sought To Be Obtained Can By Its Nature Be Furnished By Only One Source, Competition Simply Is Not Possible.
Municipal Corporations -- Contracts -- Competitive Bidding -- Baltimore City -- Contract Not Invalid For Lack Of Competitive Bidding For A Solid Waste Disposal System Where The Various Governmental Criteria For The Project Limited The Competitors To One And There Was No Suggestion Of Favoritism Or Corruption.
Statutes -- The Rule Of Statutory Construction That The Expression Of One Thing Implies The Exclusion Of Another Thing Should  [***2]   Never Be Applied To Override The Manifest Intention Of The Legislative Body.
Municipal Corporations -- Contracts -- Competitive Bidding -- Baltimore City -- Mere Omission Of "Public Works" From Competitive Bidding Exceptions Contained In City Of Baltimore Charter (1964 Rev.), Art. VI, Sec. 4 (d) Does Not Represent A Deliberate Exclusion Calculated To Require, Under All Circumstances, That Competitive Bids Be Obtained For All Public Works Even Where, By The Nature Of The Project, No Competition Exists.
Municipal Corporations -- Contracts -- Performance Bond That Does Not Cover Post-Construction Performance Guarantees With Regard To A Public Works Project Can Still Conform To The Requirements Of Code (1957, 1964 Repl. Vol.), Art. 90, Sec. 11 (a) And City Of Baltimore Charter (1964 Rev.), Art. VI, Sec. 4 (g).  

SYLLABUS:

Action by William A. Hylton, Jr. and Carol W. Hylton, his wife, for a declaration that a contract to construct a solid waste disposal system for the Mayor and City Council of Baltimore by Monsanto Enviro-Chem Systems, Inc., is invalid.  From a decree in favor of defendants, plaintiffs appeal.  

COUNSEL:
Norman P. Ramsey, with whom were H. Thomas Howell and  [***3]  Alan N. Gamse on the brief, for appellants.
George L. Russell, Jr., City Solicitor, and Franklin G. Allen, with whom were Ambrose T. Hartman, Deputy City Solicitor, Allan B. Blumberg, Assistant City Solicitor, and Piper & Marbury on the brief, for appellees.  

JUDGES:
Murphy, C. J., and Barnes, McWilliams, Singley, Smith, Digges and Levine, JJ.  Murphy, C. J., delivered the opinion of the Court.  

OPINIONBY:
MURPHY 

OPINION:

 [*267]   [**657]  PER CURIAM ORDER
For reasons to be stated in an opinion to be filed later, it is this 29th day of December, 1972
ORDERED by the Court of Appeals of Maryland that the decree of Circuit Court No. 2 of Baltimore City be,  [*268]  and it is hereby, affirmed with costs to be paid by the appellants; and it is further
ORDERED that the mandate be issued forthwith.
This appeal presents the question whether a contract between the Mayor and City Council of Baltimore (the City) and Monsanto Enviro-Chem Systems, Inc. (Enviro-Chem) for the construction of a resource recovery solid waste disposal system was concluded in violation of the competitive bidding requirements contained in §  4 of Article VI of the City's Charter. The lower court [***4]  (Ross, J.) determined that there was no such violation, as claimed by appellants, taxpayers and residents of Baltimore City.  The appeal to us is from the court's decree declaring the contract valid and binding upon the parties, notwithstanding the fact that it had been negotiated and executed without competitive bidding. n1

n1 On December 29, 1972, we issued a per curiam order affirming the decree of the lower court; we now express the reasons for that affirmance.

By the terms of the contract, Enviro-Chem agreed, for $ 14,742,000, to construct a resource recovery solid waste disposal plant for the City utilizing its "Landgard" nonpatented proprietary process for disposing of one thousand  [*269]  tons per day of garbage and trash by pyrolysis n2 and recovering saleable by-products therefrom (resource recovery), viz., usable steam, glassy aggregate and ferrous metals.  The agreement specified that $ 6,000,000 of the contract price would be paid by the City from grant funds which it would receive from the [***5]  Environmental Protection Agency (EPA) of the United States; that $ 4,000,000 would be paid from funds received by the City through the Maryland Environmental Service (MES), an agency of the State of Maryland; and that the remainder of the contract price would be paid by the City from its own resources.

n2 Webster's Third New International Dictionary (1961 Ed.) defines "pyrolysis" as "chemical decomposition or other chemical change brought about by the action of heat regardless of the temperature involved." In the present context, pyrolysis refers to the chemical process whereby shredded waste is heated in an oxygen deficient atmosphere, resulting in conversion of organic matter into gaseous products and a residue.

The contract, which was finalized on December 8, 1972, was executed against this factual background: In an effort to find a satisfactory solution to its problem of disposing annually of approximately 540,000 tons of garbage and trash, the City initiated an in-depth study in early 1970 of all available [***6]  technology in the field of solid waste disposal; the study included on-site investigations of operational facilities throughout the nation.  As a result, the City prepared specifications and sought competitive bids in 1970 for a seventeen-year  [**658]  service contract for a one thousand ton per day solid waste disposal system, operational within State pollution control requirements.  The five bids received by the City failed to comply with the specifications set forth in the bidding documents and all bids were rejected.  The City thereafter explored the possibility that under the Solid Waste Disposal Act of 1965, as amended by the Resource Recovery Act of 1970, 42 U.S.C. § §  3251, et seq. (1970), it could obtain a grant of funds from the federal government to assist it in constructing its own solid waste disposal system.  By those enactments, the Congress of the  [*270]  United States recognized that the problem of solid waste disposal was a matter of national concern necessitating federal action through financial and technical assistance to municipalities "in the development, demonstration, and application of new and improved methods and processes to reduce the amount of [***7]  waste and unsalvageable materials and to provide for proper and economical solid-waste disposal practices." 42 U.S.C. §  3251 (a) (6).  Acting through EPA the federal government was empowered to make grants to selected municipalities for the demonstration of resource recovery solid waste disposal systems, the grants being limited in amount to 75% of project cost, including costs of design, construction, operation and maintenance.  42 U.S.C. §  3254b. The grants were in furtherance of the congressional purpose "to promote the demonstration, construction, and application of solid waste management and resource recovery systems which preserve and enhance the quality of air, water, and land resources." 42 U.S.C. §  3251 (b) (1).  In addition to conditions imposed by the provisions of 42 U.S.C. §  3254b (b) (1) and 40 C.F.R. § §  30.100, et seq. (1972), proposals to be submitted by municipalities applying for grants were to be judged on requirements and criteria specified in an EPA document entitled "Instructions for Submitting a Pre-application for a Resource Recovery Systems Demonstration Grant" (the EPA Instructions).  Under EPA standards, the proposed project could not duplicate a [***8]  resource recovery system that had already been developed and operated at full scale; however, it could not be an untested system because the EPA Instructions provided that:

"The feasibility of the unit processes of the proposed system must have been satisfactorily demonstrated in a pilot plant application at a sufficient rate to enable a reliable projection of the technical and economic performance of the proposed systems to be made.  The operation must have been documented in a formal technical report."

 [*271]  The EPA Instructions further provided that a minimum of 60% (by dry weight) of the solid waste input must be converted to useable energy or recovered as saleable materials; that purchase commitments, in the form of contractually binding purchase agreements or letters of intent, for at least 50% of the saleable materials must be included with the grant application; and that a market analysis defining markets for saleable products, particularly those for which no purchase commitments were included in the proposal, should be presented.
The action taken by the City to obtain an EPA demonstration grant was thoroughly documented by F. Pierce Linaweaver, the City's [***9]  Director of Public Works, who, in an affidavit included in the record before us, stated: n3

"It then became necessary for us to choose a system upon which to base our application.  At that point in time we reviewed all of the proposed solutions to Baltimore's solid waste disposal problem in search of the one system that we felt was able to solve the problem and at the same time be eligible for Federal funding. In order to determine the system that best suited our situation, certain criteria  [**659]  were used.  The system which we were going to choose had to convince us that a scale-up from a prototype to 1,000 tons per day could be achieved.  Another factor that was to be considered in the scale-up was that the system at 1,000 tons per day was economically justifiable when compared to other scale-up magnitudes.  It was absolutely necessary that the system meet all pollution control standards of the State.  The system's resource recovery would have to be at a maximum and produce by-products which could be marketed.  In addition, it cannot be overlooked  [*272]  that a choice of a system had to be one which we felt would qualify for Federal funding under the Resources [***10]  Recovery Act of 1970.
***"We believed that in preparing the City's application for a grant under the Act, our previous competitive bidding in 1970 as well as our continuing examination of all existing technologies had given the City a complete awareness of the state of the art in solid waste disposal systems.
***
It cannot be overlooked that the application could not be submitted with alternatives but had to have the City's choice of one system." (Emphasis supplied.)

n3 Linaweaver did not testify at trial, but it was stipulated below that were he to be called as a witness, his testimony would be in substantial conformity with his affidavit.  The facts in the affidavit were not contraverted at trial.

The City rejected incineration, composting, landfilling and "incineration residue separation" as unsuitable to its needs, a factual assertion which was not challenged at trial.  Several other systems using pyrolysis were investigated and rejected.  As to these, Linaweaver explained in his affidavit:  [***11]  

"... there were several other companies proposing solid waste disposal systems using to varying extents a pyrolysis process, among them the Garrett Research and Development Company, Torrax Systems, Inc., and Union Carbide, Incorporated.  None of these systems, however, had advanced to the point where they were ready for demonstration on a size of 1,000 tons per day.  Garrett Research and Development was not chosen because it had not advanced beyond the bench scale level.  Torrax Systems, Inc., although it had a larger prototype, was not chosen because it was having difficulties with its then existing plant.  Union Carbide, Incorporated, was not chosen because its resource recovery was not satisfactory.  In any event,  [*273]  none of the systems had advanced to the point where they were ready for demonstration on a size of 1,000 tons per day scale."
The substance of Linaweaver's affidavit was confirmed and amplified by Dale Chapman, Vice President in charge of operations for Enviro-Chem, who testified at the trial that Garrett's pilot plant had operated at a five tons per day level, had not yet published any information on its pollution levels, and produced fuel oil [***12]  as the primary by-product; that Torrax's pilot plant, with a capacity of 150 tons per day, had not performed consistently at that level, had not yet produced reliable information on air pollution levels, and produced steam and iron flocs; that Union Carbide had operated at four tons per day, and had not yet published information on the level of air pollution.  In addition to these three pyrolysis systems, there was evidence of the existence of the so-called Melt-Zit process developed by American Thermogent and later acquired by Process Plants Inc.; that the Melt-Zit process was technically not a pyrolytic process, but rather high temperature incineration; that it operated at a one hundred tons per day level, did not meet Maryland pollution standards, and produced by-products similar to Torrax, i.e., steam, iron flocs and a slag residue or frit of metal and glass chemically and by temperature fused.  Both Linaweaver and Chapman unequivocally stated that Enviro-Chem was unique, of the some seventy companies investigated by the City,  [**660]  in possessing all the characteristics that the City was seeking. n4

n4 Evidence in the record shows that the particular resources recovered by Enviro-Chem are marketable by the City.  The steam produced will be sold to the Baltimore Gas & Electric Company to provide energy for the downtown area.  In addition to steam, the Enviro-Chem system produces, per 1,000 tons of trash and garbage, seventy tons of clean ferrous metal, having a substantial market value, and 170 tons of glass, useful as a road-building material.

 [***13]  
Based on this evidence, the City selected Enviro-Chem's "Landgard" pyrolysis process as the subject of its demonstration grant application.  In enumerating the reasons  [*274]  for the City's selection of Enviro-Chem, Linaweaver said in his affidavit:

"In addition to the fact that this system had been tried on a prototype basis which made it clear to us that the technology would work, and the fact that there were opportunities for significant resource recovery, this company was willing to guarantee that it could meet the City's 1,000 tons per day requirements and the stringent pollution control standards in the State of Maryland.  This is the only company that was willing to make such a guarantee.  They also guaranteed the pay back of $ 4,000,000 of the City's risk money in the unlikely event that the system would not work.  This system had been proven through the prototype stage and was ready for demonstration on a size of 1,000 tons per day scale.  This was also the only system which satisfied our size requirements of the 1,000 tons per day.
***
I should reiterate that this was the only system by any private company where the technology had been advanced to the [***14]  point in its development where we were confident that the technology could satisfy our requirements on a size of 1,000 tons per day, meet our resources recovery goals, and meet pollution control requirements in the State of Maryland.  In our opinion this system was the best system for Baltimore and its needs irrespective of the Federal funding.
***"This system was the only one which was technologically advanced to meet all the requirements of Baltimore City." (Emphasis supplied.)
The City's application was one of sixty-six received by EPA; the proposals were evaluated by EPA and nine  [*275]  were selected for further consideration.  On September 8, 1972, EPA awarded demonstration grants to three applicants: Baltimore ($ 6,000,000), San Diego ($ 2,900,000) and Lowell, Massachusetts ($ 2,400,000).
Subsequent to the award, on November 30, 1972, EPA notified the City that:

"... the awarded EPA funds can only be expended to demonstrate the Landgard solid waste pyrolysis system developed by Monsanto Enviro-Chem Systems, Inc.
***... the subject application was approved by EPA to demonstrate the Landgard system.  No evidence has come to our attention that [***15]  would indicate that anyone other than Monsanto Enviro-Chem Systems, Inc. could satisfactorily design and construct the Landgard system."

On condition that the project be that of Enviro-Chem, as specified in the EPA grant award, MES awarded $ 4,000,000 to the City to be applied to the contract price, as authorized by the provisions of Maryland Code (1957, 1971 Repl. Vol.), Article 33B, §  4.
I
It is undisputed that the contract between the City and Enviro-Chem is a contract for a public work, that it involves an expenditure of more than $ 5,000 and that  [**661]  the City neither advertised nor received bids in accordance with its Charter (1964 Rev.), Article VI, §  4 (b), which provides in pertinent part:
"(b) In contracting for any public work, or the purchase of any supplies, materials, and equipment ... or of any services other than professional services, involving an expenditure of five thousand dollars or more, for the City or by any municipal agency, advertisements for  [*276]  proposals for the same shall first be published at least twice in two or more daily newspapers published in Baltimore City unless otherwise provided by the Charter.
***"The contract [***16]  for any public work or the purchase of any supplies, materials, and equipment ... or of any services other than professional services, involving an expenditure of five thousand dollars or more shall be made by the Board of Estimates in the manner provided in sub-section (g)."

Article VI, §  4 (g) of the Charter details the mechanism for opening and selecting bids and provides that the Board of Estimates "shall award the contract ... to the lowest responsible bidder" or else "shall reject all bids."
Appellants contend that the Charter requirements are mandatory.  Relying upon Hanna v. Board of Education of Wicomico County, 200 Md. 49, 87 A. 2d 846 (1952), and Maryland Pavement Co. v. Mahool, 110 Md. 397, 72 A. 833 (1909), they claim that failure to adhere to the competitive bidding requirements of the Charter renders the contract in issue null and void.  Appellants contend that there can be no exception to the competitive bid requirements other than those expressly outlined in §  4 (d) of the Charter, which provides:
"(d) When any supplies, materials, equipment, or services are of such a nature that no advantage will result in seeking or it is not practicable [***17]  to obtain competitive bids or when the need for such supplies, materials, equipment, or services is of an emergency nature, and a certification to that effect is filed by the Department of Finance with the Board of Estimates, the provisions of subsection (b) may be dispensed with, but such purchase shall not be  [*277]  made, nor shall the City incur any obligation therefor, until approval of the Board of Estimates.  ..."

Clearly, the §  4 (d) exceptions from the competitive bidding requirements do not expressly cover contracts for public works involving expenditures of $ 5,000 or more.  The relevant inquiry, therefore, is whether §  4 (b) admits of any exceptions other than those enumerated in §  4 (d).
The general purpose of competitive bid requirements is "to obtain unrestricted competitive bidding for contracts ... and thereby to safeguard public funds by preventing favoritism, collusion and extravagance." Hanna v. Board of Education of Wicomico County, supra, 200 Md. at 54, 87 A. 2d at 848; Stoll v. Mayor and City Council of Baltimore, 163 Md. 282, 288, 162 A. 267, 269-70 (1932). McQuillin has summarized the general law as follows:
"The provisions of [***18]  statutes, charters and ordinances requiring competitive bidding in the letting of municipal contracts are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable, and they are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest.  These provisions are strictly construed by the courts, and will not be extended beyond their reasonable purport.  Such provisions must be read in the light of the reason for their enactment, lest they be applied  [**662]  where they were not intended to operate and thus deny municipalities authority to deal with  [*278]  problems in a sensible, practical way.  ..." 10 McQuillin, Municipal Corporations 321-22, §  29.29 (3d. ed. rev. vol. 1966).

Utilizing this approach, courts have allowed exceptions to a seemingly mandatory requirement of competitive bids in diverse types of unique situations.  One line of cases [***19]  concerns the purchase of patented objects: Consentino v. City of Omaha, 186 Neb. 407, 183 N.W.2d 475 (1971) (City's choice of patented process for waste treatment not subject to competitive bids); Hodgeman v. City of San Diego, 53 Cal. App. 2d 610, 128 P. 2d 412 (1942) (parking meters, each covered by a patent, were not standardized to point where competitive bidding was feasible or necessary); Cf. Worthington v. City of Boston, 152 U.S. 695, 704-05, 14 S. Ct. 737, 740, 38 L. Ed. 603, 606 (1894) (nothing could have been gained by competition among bidders, only one of whom was entitled to use the patented engine the City desired to obtain).  Our predecessors recognized the futility of insisting on competitive bids where patented articles were involved in a dictum in Mayor and City Council of Baltimore v. Flack, 104 Md. 107, 144-45, 64 A. 702, 716 (1906):
"In many of the cases alluded to ... [in the course of the court's opinion] the further proposition is decided, that such provisions as secs. 14 and 15 of the charter [competitive bid requirements] do not apply when the city proposes to purchase a patented article, because competitive bidding for such an article [***20]  would be an idle and useless form ....  If the proposition were directly involved we should have no difficulty in yielding our assent to it, in a case where the patented article could not in the nature of the thing, be bid on or furnished except by the owner or licensee of the patent."
Judicially recognized exceptions to competitive bid statutes have not been limited to patented articles.  See 10 McQuillin, supra §  29.34 at 339-40; 1 Antieau, Municipal  [*279]  Corporation Law 757-60, §  10.28 (cum. supp. 1972).  In Whelan v. N.J. Power & Light Co., 45 N. J. 237, 212 A. 2d 136 (1965), the competitive bid statute was held not to apply to the sale of City land to a utility for use as a power station since, by contract, the only permissible buyer was the utility.  In Mullen v. Town of Louisburg, 225 N. C. 53, 33 S.E.2d 484 (1945), it was held that the competitive bid statute did not apply to the wholesale purchase of electricity for there could be but one bidder and one price, the rate fixed by law.  To the same effect, see Marino v. Town of Ramapo, 326 N.Y.S.2d 162 (1971); Kingsley v. City & County of Denver, 126 Colo. 194, 247 P. 2d 805 (1952).
All [***21]  of these cases are, of course, factually distinguishable from the instant case; however, a common thread runs through them all, namely, that where the object to be acquired is truly unique it would constitute a futile act, in the name of a policy which would not be served, to require competitive bidding. There are, as this court stated in Mayor and City Council of Baltimore v. Flack, supra, "two kinds of competition [underlying the competitive bidding policy] -- the one, competition between different things which will equally answer the same general purpose; and the other, competition between the prices bid respectively upon each of those distinct things." 104 Md. at 128, 64 A. at 710. Where, therefore, the thing sought to be obtained by a municipality can by its nature be furnished by one and only one source, competition simply is not possible.
In contracting with Enviro-Chem, the City recognized that that company had no monopoly on pyrolysis as a technology for disposal of solid waste. On the contrary, the City always recognized that a number of other companies have such processes in various states of development.  But, as reflected by the record, the processes differ [***22]  materially in the extent to which they have been proven, in the equipment  [**663]  that they use, in the order in which the equipment is arranged, in the manner in which  [*280]  they operate, in the resources they recover, and in the results which they achieve.  The City was not merely seeking a system by which to dispose of its solid wastes, with a wide range of alternatives open to it based upon differing characteristics between available systems; what it required was a particular system, materially different from all others, enabling it successfully to compete with other municipalities for a demonstration grant.  As heretofore indicated, to apply for a grant the City had to pre-select a particular process and persuade EPA that the process it selected ought to be demonstrated so that, if it worked on a full scale, other municipalities could adopt it without misgivings.  As so cogently observed by the City in its brief:

"To be eligible for a grant the process must meet requirements that reduce the [competing] candidates to a few.  It must never have been demonstrated on a full scale, because if it had been so demonstrated there would be no need for a demonstration [***23]  grant.  On the other hand, EPA requires that the system must have been demonstrated reliably in a pilot plant. The winning city will be the one proposing the process that looks best to EPA.
"Beyond that, it would obviously reduce the City's chance to win a grant if the City were to propose a particular process that was already the subject of a rival application by another city, because EPA would be unlikely to make two grants to demonstrate the same project or to favor the later over the earlier applicant for the same process.  It is therefore clear that to apply for a grant it was necessary to select a process and that to select a particular process is to designate only that process and to exclude any rival process, for they are all materially different.
*** [*281]  "Therefore once the City had selected the Enviro-Chem process competition did not exist, and there can be no competitive bidding if there is only one source of the thing desired.  ..."
The singular nature of the contract between the City and Enviro-Chem, created by the factors hereinbefore enumerated, and particularly the immediate needs of the City to dispose of solid waste in large quantity (1,000 tons [***24]  per day), to recover resources saleable in the area, to meet the pollution requirements of State law, and the need to obtain funding assistance through an EPA demonstration grant, narrowed the "competitors" capable of fulfilling the City's need to one.  In other words, in the language of Flack, supra, no competition existed "between different things which will equally answer the same general purpose." The trial judge found from the evidence that the City made a determination "that the proprietary process of Monsanto [Enviro-Chem] best suits the needs of the City"; that there was no evidence or suggestion of favoritism or corruption; that the circumstances presented not only the clear impracticability, but "the virtual impossibility" of competitive bidding; and that the policy behind the competitive bid statute -- avoidance of corruption and economy to the taxpayers of Baltimore -- had been met without competitive bids.
Appellants argue that since the municipal power to contract must be strictly construed (citing Mayor and Council of Mount Airy v. Sappington, 195 Md. 259, 263, 73 A. 2d 449, 450 (1950), and Mayor and City Council of Baltimore v. Canton Co., 186 Md.  [***25]  618, 631, 47 A. 2d 775, 781 (1946)) any reasonable doubt as to the existence of municipal power must be resolved against the City.  They maintain that courts should not attempt, under the guise of construction, to imply the existence of exclusions in Charter provisions in addition to those expressly stated, citing Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 71-72, 225 A. 2d 294, 306 (1966); State Insurance Commissioner v. Nationwide  [*282]  Mutual Ins.  [**664]  Co., 241 Md. 108, 117, 215 A. 2d 749, 754-55 (1966).
While we agree with appellants' statement of the law, we find it inapplicable to the present case.  In Kirkwood v. Provident Savings Bank, 205 Md. 48, 55, 106 A. 2d 103, 107 (1954), we noted:

"... the maxim 'expressio unius est exclusio alterius' ... meaning that the expression of one thing implies the exclusion of another thing not mentioned, is not a rule of law, but merely an auxiliary rule of statutory construction applied to assist in determining the intention of the Legislature where such intention is not manifest from the language used.  It should be used with caution, and should never be applied to override [***26]  the manifest intention of the Legislature or a provision of the Constitution.  ..."

We do not think that the mere omission of "public works" from the express exceptions contained in §  4 (d) represents an expression of deliberate exclusion calculated to require, under all circumstances, that competitive bids be obtained for all public works even where, by the nature of the project, no competition exists; if such were part of a deliberate plan, some mention of it would likely have been made in the Charter Revision Committee Notes, but there is none.  Indeed, when the §  4 (d) exceptions were first inserted in the 1946 revision of the Charter as §  37 (b), there was little reason for anyone to foresee technological advances which could make public works as unique as supplies, materials, equipment and services.
We recognize the important protection provided by competitive bid provisions.  We hold only that in the peculiarly unique factual situation of this case, competitive bidding was not required by the Charter. In so concluding, we are mindful of the full range of power vested in the City, by Article II, §  (3) of its Charter, "[t]o accept from the United States or any [***27]  agency thereof any  [*283]  grant or aid of any character"; and of related provisions contained in Maryland Code, Article 96 (1957, 1964 Repl. Vol.), § §  49, 50.
II
Nor do we find merit in appellants' remaining contention that the contract is invalid for failure to comply with the performance bond requirements of the Maryland Code and the City Charter. Maryland Code (1957, 1964 Repl. Vol.), Article 90, §  11 (a), provides in pertinent part that:
"(a) ... Before any contract exceeding five thousand dollars ($ 5,000) in amount, for the construction ... of any ... public work or improvement of the State of Maryland, or of any ... city ... is awarded to any person, he shall furnish to ... such ... city ... the following bonds which shall become binding upon the award of the contract to such person, who is hereinafter designated as 'contractor':
"(1) A performance bond executed by a surety company authorized to do business in this State satisfactorily to the public body awarding the contract, and in such amount as it shall deem adequate, for the protection of the public body."

The performance bond provisions in the City's Charter are found in Article VI,  [***28]  §  4 (g), which provides:
"The successful bidder shall promptly execute a formal contract to be approved as to its form, terms, and conditions by the City Solicitor, and such bidder shall also execute and deliver to the Mayor a good and sufficient bond to be approved by the Mayor in the amount of the contract price. ..."
 [*284]  The contract requires a performance bond in the amount of the contract price and provides:
"Enviro-Chem shall furnish a bond covering the payment of all obligations for labor, materials and equipment arising out of construction of the Plant and a bond covering the faithful performance of the obligation of Enviro-Chem  [**665]  to complete construction of the Plant in accordance with the detailed drawings and specifications to be prepared by Enviro-Chem hereunder.  Said bonds shall be in the amount of the Contract Price and issued by sureties authorized to act as a surety by the State of Maryland.  The bond covering performance shall not cover any obligation of Enviro-Chem which must be performed or may arise subsequent to completion of construction including, but not limited to, demonstration of the performance guarantees and Baltimore [***29]  shall have no claim against the surety on the bond with respect to any such obligation."
Appellants claim that the performance bond must, but does not, cover the entire contract as required by the holding in Board of Education of Carroll County v. Allender, 206 Md. 466, 112 A. 2d 455 (1955).
We think the performance bond provided by Enviro-Chem fully complies with the quoted provisions of law, notwithstanding the fact that it did not cover Enviro-Chem's post-construction performance guarantees.  Nothing in Allender dictates a contrary conclusion.  

10 of 37 DOCUMENTS 

COUNTY FEDERAL SAVINGS AND LOAN ASSOCIATION et al. v. EQUITABLE SAVINGS AND LOAN ASSOCIATION, INC. et al.  

No. 319, September Term, 1970 

Court of Appeals of Maryland 

261 Md. 246; 274 A.2d 363; 1971 Md. LEXIS 1078 

March 8, 1971, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Montgomery County; Miller, J.  

DISPOSITION:
Order affirmed, appellants to pay costs.  

HEADNOTES:

Constitutional Law -- Maryland Rules Of Procedure Have The Force Of Law And A Rule Would Apply Despite A Prior Statute To The Contrary And Until A Subsequent Statute Would Repeal Or Modify The Rule -- Maryland Constitution, Art. IV, Sec. 18A.
Administrative Law -- De Novo Appeals -- Where In An Appeal To A Circuit Court From A Decision Of The Board Of Building, Savings And Loan Commissioners, The Court Is Authorized To Hear The Matter De Novo The Scope Of Review Is Limited To The Specific Issue Appealed From -- Code (1966 Repl. Vol.), Art. 23, Sec. 161H (e) And Maryland Rule B2 e.
Administrative Law -- De Novo Appeals -- The Legislature Did Not Contemplate That A De Novo Appeal From The Board Of Building, Savings And Loan Commissioners Was To Be An Entirely New Proceeding -- Taking New Evidence On Issues Appealed From As Well As Consideration Of The Record Before The Board Is What Was Intended -- Code (1965 Repl. Vol.), Art. 41, Sec. 255 (g) (6) And Sec. 255 (g) (7) And Maryland Rules B7 and B10.
Administrative Law -- De Novo Appeals -- Party Is  [***2]   Not Precluded From Changing Its Tactics And Emphasizing Different Factors As It Participates In A Board Hearing, A Lower Court De Novo Appeal, And On Appeal To The Court Of Appeals.
Savings and Loan Associations -- Associations Chartered In Maryland Are Authorized To Maintain Branch Offices In Foreign Jurisdictions.
Savings and Loan Associations -- Code (1966 Repl. Vol.), Art. 23, Sec. 161U Does Not Prohibit The Transfer To A Duly Chartered Maryland Savings And Loan Association Of The Assets Of A Foreign Chartered Building And Loan Association.
Savings and Loan Associations -- The Purpose Of The Freeze On Branches In Maryland Of Foreign Associations Is Not Violated By The Maintenance Of Branches In Foreign Jurisdictions By Maryland Associations -- Code (1966 Repl. Vol.), Art. 23, Sec. 156.  

SYLLABUS:

Application for a Maryland charter by Equitable Savings and Loan Association.  County Federal Savings and Loan Association, Citizens Building and Loan Association, Metropolitan Federal Savings and Loan Association, Laurel Building Association and Montgomery Federal Savings and Loan Association intervened in opposition to the granting of the charter.  From a decision of the [***3]  Board of Building, Savings and Loan Commissioners that the charter be granted provided the applicant phase out its District of Columbia branches, the applicant appealed to the Circuit Court for Montgomery County.  From an order reversing that part of the Board's decision calling for the phasing out of the branches, the Board and the intervenors (except Montgomery Federal) appeal.  

COUNSEL:
David E. Betts, with whom were Betts, Clogg & Murdock and Theodore A. Miller on the brief, for County Federal Savings and Loan Association et al., part of appellants.  Thomas N. Biddison, Jr., Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for Board of Building, Savings & Loan Commissioners, other appellant.
William M. Canby, with whom were Miller, Miller & Canby and George E. Krouse and Charles Wilson Schoeneman on the brief, for appellees.  

JUDGES:
Hammond, C. J., and Barnes, McWilliams, Finan and Smith, JJ.  Finan, J., delivered the opinion of the Court.  

OPINIONBY:
FINAN 

OPINION:

 [*248]   [**364]  This case involves the application for a Maryland charter (Maryland Code (1966 Repl. Vol.), Art. 23, §  161M) by Equitable Savings [***4]  and Loan Association, an unincorporated voluntary association (Old Equitable) with its main office and a branch in the District of Columbia, and a branch office already in existence in Wheaton, Montgomery County, Maryland.  The application contemplated a plan whereby the savings and loan business (all assets and liabilities) of Old Equitable would be transferred to a new corporation which would be granted the charter and which would be known as Equitable Savings and Loan Association, Inc., a Maryland corporation (New Equitable).  Both Old Equitable and New Equitable are appellees and we shall refer to them hereafter in the opinion as Equitable.  They proposed to establish the Wheaton office as their principal office and to retain the two District of Columbia offices as branches.
A hearing on the charter application was held before the Board of Building, Savings and Loan Commissioners (Board).  Code, Art. 23, §  161M (e).  Several associations intervened in the proceedings before the Board in opposition to the granting of the charter and extensive written and oral testimony was taken on two separate days.  On  [**365]  March 6, 1969, the Board issued an "Opinion and Order" in which [***5]  it recognized that the following issues were before it:
"*** first, whether the application for a Maryland Charter will be approved by this Board, second, whether the proposed transfer of assets and assumption of liabilities by the New Equitable from the Old Equitable will be permitted, and, third, if so, under what conditions, and, especially whether the New Equitable will be permitted to retain and to continue the two branches within the District of Columbia."
The Board found, as to the first question, that the "public  [*249]  interest, convenience and advantage" would be served by permitting Equitable to obtain a Maryland charter. (Code, Art. 23, §  161M.) This was based upon a finding that Equitable is "fundamentally a Maryland organization seeking a Maryland charter and as such its savings and loan activity in Maryland should be subject to Maryland law." The facts noted in the opinion as supporting this conclusion were that mortgage loans made by Equitable are being made almost exclusively on Maryland property, and that the Wheaton branch was growing rapidly in deposits while the main office in the District of Columbia was markedly declining and the Friendship office [***6]  was remaining stable.  These facts were developed during the hearing by Equitable to show the decline in Washington, D. C. operations and the growth of the association in Maryland and its increasing orientation towards Maryland.
On the second question as to whether the proposed transfer of assets to, and assumption of liabilities by, the Maryland chartered association would be approved, the Board held that this would be allowed if the newly formed association complied with Departmental requirements predicated on a complete examination of the operations of Equitable both in Maryland and Washington, D. C.
The third question, regarding the continuation of the two branches within the District of Columbia, is the subject of this appeal.  Applying the test set forth in Code, Art. 23, §  161V, with regard to the establishment of "Branch Offices," the Board found "there has not been a showing that the public interest, convenience and advantage will be served by permitting the new association to continue indefinitely either its F Street office or its Friendship office.  We do find that the evidence compels a continuance on a temporary basis." (The office on F Street in the District of Columbia [***7]  had been the principal office and the Friendship branch is also in the District, near the Maryland boundary line.)
The conditions imposed upon Equitable by the Board as a prerequisite to the granting of the charter were:  [*250]  compliance with the Maryland requirements as might be proposed after examination by the Maryland Department of Building, Savings and Loan Association prior to transfer of assets; the obtaining of insurance for accounts; retention of a general reserve fund; and the submission of a program satisfactory to the Board for phasing out its F Street and Friendship offices in the District of Columbia by July 1, 1972.  After a re-hearing, and the presentation of additional testimony, the Board extended the time for phasing out the District of Columbia offices for an additional two years.
At the hearing before the Board the County Federal Savings and Loan Association, Citizens Building and Loan Association, Metropolitan Federal Savings and Loan Association, Laurel Building Association and Montgomery Federal Savings and Loan Association had all intervened and participated in the hearing.  All of these associations, with the exception of Montgomery Federal, are parties [***8]  to this appeal.  It is of significance that, following the Board's final order on June 12, 1969, no appeal was taken by the Intervenors.  Equitable, however, waited until the last possible moment in which an appeal could be timely filed, and on the 32nd day following  [**366]  the order of the Board noted an appeal to the circuit court, still within the limit prescribed by the Rules, as the 30th day fell upon a Saturday.  Maryland Rule B1, Rule B4 a and Rule 8.  In the petition filed by Equitable with its appeal, as required by Rule B2 e, it cited as grounds for the appeal, "that the Board was in error in requiring the closing of the *** two District of Columbia branch offices at a date certain and imposing other conditions in reference to the closing of said branch offices * * *." There having been no cross-appeal filed by the Intervenors (appellants here) before the Board, Equitable contends that the only issue preserved for review by the circuit court was that pertaining to the conditions imposed by the Board relative to the phasing out of the District of Columbia branch offices.  Although an appeal from an order of the Board is heard de novo, Equitable contends that it [***9]  is only a de novo  [*251]  review with regard to that issue or issues from which the appeal was taken.  Appeals from orders of the Board to the Circuit Court of Baltimore City or a county circuit court are authorized by Code (1966 Repl. Vol.), Art. 23, §  161H (d).  Article 23, §  161H (e), entitled Judicial review, provides "The court to which the appeal is taken shall hear the matter de novo without a jury * * *." (Emphasis supplied.)
The Intervenors before the Board, who are the appellants here, also intervened in the appeal taken from the Board to the Circuit Court for Montgomery County.  They strenuously objected there, and again here on appeal, to the limitation which the lower court placed on the scope of the de novo appeal from the Board to the circuit court.  It is their contention that they should have been allowed to have presented evidence and argued matters going to the merits of all issues resolved by the Board and in particular the issue regarding the granting of the Equitable charter in Maryland.
By a pre-trial order, Judge H. Ralph Miller, in the court below, limited the scope of appeal to the sole issue of the continuation of the branch offices [***10]  as raised in the petition for appeal.  In taking this action the lower court relied heavily upon the case of Bullitt v. Kentucky Dept. of Highways, 298 S.W.2d 290 (Ky. 1957), and Maryland Rules B1 through B12, with particular reference to Rule B2 (e) which requires every appellant, in appealing the decision of an administrative agency, to file a petition setting forth "the action appealed from, the error committed by the agency in taking such action, and the relief sought."
The Bullitt case, supra, involved a factual situation quite similar to that in the instant case.  Although the Bullitt appeal arose out of eminent domain proceedings, the statutory provisions for appeal with trial de novo were similar to those in the instant case when Article 23, 161H (e) is read together with Rule B2. In both instances, the grounds for appeal are required to be specified in the petition on appeal.  The Kentucky Statute did,  [*252]  however, contain express language of limitation, limiting the appeal de novo to "questions which are raised in the original statements of the grounds of appeal * * *."
Without regard to the statutory language, the Kentucky Court of Appeals [***11]  reasoned that "[w]hile 'trial de novo' on appeal means a trial anew, it only requires a new trial as to the questions in issue and not a re-examination of matters concerning which there was no dispute.  In re Littlefield, 61 Wash. 150, 112 P. 234 [1910]." Bullitt, supra, at 292. The lower court, in the case at bar, bolstered its determination that the scope of appeal would be limited to the issue raised by the petition of appeal by observing that the Maryland Legislature by Chapter 575 of the Laws of Maryland 1966 amended §  161H of Art. 23 to bring the appeal provisions into conformance with the Maryland Rules of Procedure (Rule B 2 e).  The Legislature thereby removed all the procedural provisions in the statutory provision for appeal in favor of the requirements found in Rules B1 through B12.  In our opinion there is no doubt that  [**367]  Rules B1 through B12 are meant to control the procedure in this appeal from an administrative agency and we are satisfied that the provision in the statute authorizing the appeal from the Board (Code, Art. 23, §  161H) which provides for an appeal de novo, must be read in conjunction with Rules B1 through B12 and with particular [***12]  reference to Rule B2 e, and should also be reconciled with the Administrative Procedure Act, Code (1965 Repl. Vol.), Art. 41, § §  244 through 256.
In the case of Baltimore City v. Hurlock, 113 Md. 674, 78 A. 558 (1910), this Court recognized that the scope of a de novo appeal may be limited by a statute.  Also, see Hensley v. Bethesda Metal Company, 230 Md. 556, 188 A. 2d 290 (1963), an opinion written for the Court by Judge Hammond (now Chief Judge) regarding the exercise by the Court of Appeals of its constitutional grant of powers to "make rules and regulations to regulate and revise the practice and procedure in that Court, and in the other courts of this State which shall have the force of law until rescinded, changed or modified by the Court  [*253]  of Appeals or otherwise by law." Maryland Constitution, Article IV, §  18A.  In Hensley there is a specific discussion regarding appeals from an administrative agency which illustrates that the Maryland Rules of Procedure (in this instance Rule B 2 e) would apply despite a prior statute to the contrary and until a subsequent statute would repeal or modify the Rule.  Hensley, supra, at 259-262.
Subsequent [***13]  to the pre-trial order in the lower court, Daihl v. County Board of Appeals, 258 Md. 157, 265 A. 2d 227 (1970), was decided by this Court.  In Daihl we were presented with the problem of construing the provision of the Baltimore County Zoning Regulations which provided that appeals from the Zoning Commissioner shall be made to the County Board of Appeals, and which further provided by Section 501.3 of the Ordinance that *** all decisions of the County Board of Appeals shall be made after notice and opportunity for hearing de novo upon the issues before said Board * * *." In Daihl we stated:

"We think that the context in which the term de novo is used in Section 501.6 and 501.3 (both quoted above) means that on appeal there shall be a de novo hearing on those issues which have been appealed and not on every matter covered in the application.  In this sense de novo means that the Board of Appeals may hear testimony and consider additional evidence pertaining to the issue or issues presented on appeal.  See Vol. 2, The Law of Zoning and Planning, Rathkoff, ch. 65-30, §  7.  The original nature of a de novo hearing with its quality of newness [***14]  is in contradistinction to a review upon the record as exists where matters are heard on certiorari.  73 C.J.S. Public Administrative Bodies and Procedure, §  204." 258 Md. 162.
***
"*** we think the more sensible interpretation  [*254]  of the meaning of the scope of a de novo hearing as used in relation to an appeal heard by the County Board of Appeals, from a decision of the Zoning Commissioner, is that it is restricted to the specific issue or issues resolved by the Commissioner from which an appeal has been taken.  By exclusion, this may not encompass all issues which may have been resolved by the Commissioner in his decision, when more than one issue is involved.  We think it is consonant with the concept of appeal, that it be coextensive with those issues concerning which the moving party or parties feel aggrieved.  We are also buttressed in our reasoning on this matter by the knowledge that such hearings are adversay in nature and are ofttimes complicated.  Furthermore, we are of the strong belief that an orderly procedural disposition of these matters requires specificity of the adverse ruling concerning  [**368]  which the aggrieved party seeks review."  [***15]  258 Md. 163-164.
In Daihl we further noted that the appeal was to be "de novo upon the issues" and that Webster's New World Dictionary, (College Edition) defined issue as: "*** a point, matter or question to be disputed or decided * * *." In the instant case the language of the statute provides that on appeal the court "shall hear the matter de novo." (Emphasis supplied.) We think any distinction that can be made between the language of the ordinance in Daihl and the Statute in the instant case as between the word "matter" vis a vis the term "issues" is not one of substance when we consider the context in which the terms were used in Daihl and in the instant case.  In any event, a reading of the Statute (Article 23, §  161H (e)) in conjunction with Rule B2 e, which latter delineates the manner in which an appeal shall be taken from an administrative agency, leaves no doubt in our minds but that the appeal to the circuit court was limited in scope to the  [*255]  specific issue embracing the continuance of the branches in the District of Columbia.
While we have been discussing the limiting of the scope of the de novo appeal to the specific [***16]  issues from which the appeal was taken vis a vis a plenary hearing on all matters de novo, there is yet another facet of the de novo appeal, as provided by Article 23, §  161H (e), which must be resolved.  Does the appeal de novo preclude the circuit court from considering the record made before the Board, i.e., the transcript of the testimony and exhibits presented at the hearing before the Board, and conversely restrict the court's consideration to the testimony and exhibits presented on the appeal? Judge Miller in the court below unquestionably thought he was restricted to the consideration of the evidence presented de novo and in circumscribing his scope of review stated:

"Although the trial de novo has been limited by the pre-trial order, the court in this case is not dealing with a statute which requires a certiorari type review in which it is bound by the findings of the administrative agency if the facts presented were fairly debatable unless the Board's ruling was arbitrary and against the weight of the evidence.  As to items raised in the petition for appeal this is a de novo trial, and while the court is cognizant of the decision of [***17]  the Board this opinion and order is based on the evidence before the court and the stipulations of the parties contained in the pre-trial order."
We think Judge Miller was wrong in so restricting his range of deliberation, although, under the facts of this case, we believe it amounted to harmless error, as we shall hereafter explain.  We have already stated that we are of the opinion that the provision for a de novo appeal found in Article 23, §  161H (e) should be read in conjunction with Maryland Rules B1 through B12, which Rules are grouped under the subtitle "Administrative  [*256]  Agencies -- Appeal From," and the Administrative Procedure Act, Article 41, §  244 et seq. Certainly, Rule B7 which provides for the transmission of the record (which includes the transcript of the testimony before the agency) to the circuit court, is suggestive that a certiorari type of review is contemplated, nonetheless, it should be noted that Rule B10 provides that: "Additional evidence may be allowed when permitted by law." Likewise, we observe that the Administrative Procedure Act, Article 41, §  255 (g) (6) and (7) provides that the lower court should reverse the agency [***18]  or board if it finds that the decision of the agency or board was "against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency and including de novo evidence taken in open court; or unsupported by the entire record, as submitted by the agency and including de novo evidence taken in open court; * * *." (Emphasis supplied.)
The wording found in the Rules (B1 through B12) and in the Administrative  [**369]  Procedure Act (Section 255 (g) (6) and (7)) persuades us that the circuit court on appeal should, in reaching its judgment, take into consideration the evidence (the record) before the Board, together with the evidence presented at the de novo hearing.  We think such a conclusion is also consonant with the legislative intent behind the enactment of the provision for a de novo appeal pursuant to Article 23, §  161H (e).  Certainly, such a holding may be harmonized with Rules B7 and B10, and the Administrative Procedure Act, Article 41, §  255 (g) (6) and (7). n1

n1 The confusion attendant to the manner in which appeals from administrative agencies should be perfected and conducted, prompted the following graphic language from the sub-committee drafting Rules B1 through B12 in 1962:
"The subcommittee in preparing its initial drafts of this Rule for the consideration of the whole Committee was confronted at the outset with a substantial volume of statutory provisions dealing with the procedural asspects of appeals from State and local administrative agencies to the nisi prius courts.  The Code of Public General Laws was examined page by page in an effort to discover all of these statutory provisions.  In all there are approximately one hundred different statutory provisions for appeal dealing with approximately forty administrative agencies. ***
"There is a considerable variation among the several existing statutory procedures for appeal from administrative agencies. In this Rule the Committee has endeavored to bring uniformity to this field." Committee note, Maryland Rule B1.

 [***19]  
 [*257]  We cannot accept the proposition that the appeal de novo contemplated by Article 23, §  161H (e), is to be considered in the sense of a new proceeding, which we believe to be the purest form of a de novo appeal.  In this regard, we learn something from a comparison of the instant case with our opinion in Volz v. State Roads Commission, 221 Md. 209, 156 A. 2d 671 (1959), in which Judge Horney, writing for the Court discussed the meaning of a de novo hearing in an appeal taken from an award of the Board of Property Review, stating:

"[Code (1957 Ed.) Art. 89B, §  18, provides in part] In cases where the appeal is sought by the property owner he shall so notify the [State Roads] Commission in writing and it shall be the duty of the Commission to prepare and file the condemnation case in the proper court, *** and the case shall be heard de novo and as if there had been no hearing before the board of property review.  (Emphasis added.)
"It is clear that this section provides in terms for a court proceeding de novo, and it is equally clear that it does not provide for a review by the court, whether by way of affirmance, reversal or modification,  [***20]  of the award of the review board.  The complete absence of any such provisions shows, we think, that the 'appeal' under Section 18 [Code (1957 Ed.) Art. 89B] is not an appeal in the usual sense of the term, but is the institution of a new proceeding." n2 221 Md. 212-213.

n2 The italicized language was deleted from Article 89B, §  18 by Ch. 36, §  56 of the Acts of 1962.

The difference in the wording of Article 89B, §  18, as  [*258]  contrasted with Article 23, §  161H (e) is immediately apparent, as language similar to the wording, "as if there had been no hearing before the board of property review," found in Article 89B, §  18 is completely absent from Article 23, §  161H (e).  Certainly by the wording used in Article 23, §  161H (e) the Legislature did not contemplate any new proceeding in providing for a de novo appeal from a decision of the Board of Building, Savings and Loan Commissioners.  We think an appeal providing for new evidence on the issues appealed from as well as a consideration [***21]  of the record before the Board, is what was intended.  We cannot discount the fact that the Legislature by Chapter 575 of the Acts of 1966 amended Article 23, §  161H to bring the appeal provisions generally in conformity with Rule B2 (e).  It would,  [**370]  therefore, seem to be a logical extension of the legislative intent to give as full interplay among the Rules, The Administrative Procedure Act, and Article 23, §  161H (e) as a reasonable interpretation might permit.
We have spent considerable time in this opinion discussing the nature and scope of the hearing held by the circuit court on the appeal from the Board.  We have done this because it is essential not only to determine the issue which was properly before the lower court, but also the evidence it should have considered in deciding that issue.  It has been established to our satisfaction that the only issue was the question of a continuation of the branch offices in the District of Columbia, and in determining that issue the court should have considered not only the new evidence presented to it but also the contents of the record before the Board.  The only new evidence presented to the circuit court on the issue [***22]  of the continuance of the branches was presented by Equitable.  It sought to establish through its witnesses that the branches in the District of Columbia would promote the public interest, convenience, and advantage of the people of Maryland.  The Intervenors failed to present any contrary evidence but contented themselves with cross-examination of Equitable witnesses.
 [*259]  We have stated that the lower court erred in reaching its judgment by considering only the evidence presented before it and in not considering the record made before the Board.  We further stated that under the facts of this case we believed this to be harmless error. We say this because the issue before the lower court was the question of the continuance of the District of Columbia branches.  After reviewing the record before the Board (including the testimony on this issue found in the record) and considering the evidence presented on the de novo appeal, we think it would have been "against the weight of competent material and substantial evidence in view of the entire record, as submitted by the agency and including the de novo evidence taken in open court," for the court to have affirmed the [***23]  Board.  Code (1965 Repl. Vol.), Art. 41, §  255 (g) (6).
The Intervenors took umbrage with the fact that Equitable varied its position regarding the importance of the District of Columbia offices in relation to its overall organization.  In its initial appearance before the Board, Equitable took the approach that it should be granted a Maryland charter because its Maryland business was proliferating by leaps and bounds and that its District of Columbia business was in a state of decline, although it consistently insisted that it would like to retain its District of Columbia branches and estimated it would lose $ 20,000,000 in deposits were it to close its F Street branch.  However, upon a re-hearing concerning the extension of the phase-out period it changed its tactics and became more emphatic regarding the importance of the District of Columbia branches to its overall operation.  On appeal to the circuit court, Equitable again concentrated its efforts on the showing of the need for the continuation of the District Columbia branches; indeed, that was the sole issue then to be reviewed.  We do not view this change of tactics as an unsettling factor in this case for we would note that [***24]  few are the parties participating in an appeal de novo who, having been educated during the proceeding below, do not seek to improve their  [*260]  lot on appeal by the presentation of new evidence within legitimate bounds.  We think that is what occurred here.  We might further add that this is one of the inherent weaknesses in a de novo hearing, as opposed to an appeal strictly on the record.
Before considering the import of the evidence found in the record from the Board and before the court, we deem it appropriate to take a look at the several questions of law raised by the Intervenors regarding the continuation of the District of Columbia branches.  The first contention is that, as a consequence of the lower court's order, a new Maryland chartered building and loan association has been authorized to operate in Maryland and to  [**371]  maintain branch offices in a foreign jurisdiction, a result which is not permitted under Maryland law, according to the Intervenors.
We think the Board itself gave a competent and satisfactory answer to this argument, when it stated:
"A further question which is raised by this case is the corporate power of a Maryland association [***25]  to have branches outside the State of Maryland, yet another point not yet decided under the Act.  The only applicable section of the Act in this regard is [Art. 23] section 161V which gives the Director the authority to approve the establishment, maintenance and relocation of a branch office, the criteria for his approval is a finding by the Director that such branch office 'will promote the public interest, convenience and advantage and whether such branch office will be efficiently operated in accordance with the policies of this subtitle.'
"It is significant that there is nothing whatsoever in the Act specifically denying a Maryland association the right to operate a branch office outside of the State of Maryland.  We recognize that the Act was drafted to supplement the general corporation law of Maryland, which is  [*261]  therefore the determinative law as to the corporate powers of savings and loan associations, unless specifically modified by the Act.  [Code, Art. 23, §  9 General Powers.] Under the general law a Maryland corporation without question may operate in any place where its business so requires.  The only limitation which the Act imposes upon this general [***26]  power, relevant here, is the requirement for prior approval by the Director.  Section 156 deals only with associations which are not chartered under Maryland law.  It is obvious, therefore, that a Maryland savings and loan association may, with the approval of the Director, have a branch office outside the State of Maryland, provided, of course, that the foreign jurisdiction will permit such branch."
The second point raised by the Intervenors was that the Maryland law (Code, 1966 Repl. Vol., Art. 23, §  161U) expressly prohibits the transfer to a duly chartered Maryland savings and loan association, of the assets of a foreign chartered building and loan association.  Such a conclusion can only be reached by an artificial and tortured interpretation of the wording of the statute.  Code, Art. 23, §  152 provides for the merger of an unincorporated association which existed any time prior to the adoption of Article 23, with an incorporated association.  It is our opinion that the purpose of Section 161U is to provide for the merger of "any" association with an incorporated one.  The Intervenors mistakenly overemphasized certain words in the statute, specifically in Section 161U wherein [***27]  they cite and then quote in part, italicizing the following words:

"Any association shall have power to consolidate or merge or sell or transfer, all or substantially all of its property and assets to any other incorporated association in this State.  * * *." [Emphasis supplied by the Intervenors.]
 [*262]  Actually, with only usual and proper emphasis the quoted provision would read:

"Any association shall have power to consolidate or merge with or sell or transfer, all or substantially all of its property and assets to any other incorporated association in this State.  * * *." [Emphasis supplied.]
Over and above this misplaced emphasis on the words of §  161U, is the Intervenors' failure to refer to the controlling definitional provision of the statute, §  161B.  Section 161B of Article 23 provides in part:

"161B. Application of provisions.

(a) Definition of 'association' -- As used in this subtitle, the word 'association' shall mean building, savings and loan or  [**372]  homestead association or any other similar association by whatever name called.

(b) Domestic and foreign associations.  -- The provisions [***28]  of this article shall apply to all associations heretofore or hereafter organized under the laws of this State; and to all foreign associations duly authorized to do business in this State; * * *."

We think this argument of the Intervenors which seeks to restrict the transfer of assets of a foreign chartered association to a Maryland chartered savings and loan association, is an effort to exalt semantics over substance and is without merit.  We further note that this point was not argued before the lower court and we fail to find in the record where it was pressed before the Board.  (Maryland Rule 885.)
The third point of law raised in connection with the application of Article 23, is that the decision of the lower court violates the spirit and intent of Section 156 of the Article which contains the "grandfather clause" proviso to the effect that only those branches of a foreign association  [*263]  shall be permitted to operate in Maryland as existed on or before June 1, 1955.  This is an argument not predicated on logic but apparently designed as some type of emotional appeal.  In pursuit of this argument it is stated that the "grandfather clause" in spirit also intended [***29]  to guard against branches being established in foreign jurisdictions.  We think the Board had a ready answer to this argument when it stated that the purpose of the freeze on branches in Maryland of a foreign association (Ch. 234 of the Acts of 1955) was to bring savings and loan activity affecting the people of Maryland under the control of Maryland law.  The Board rationalized that, in the instant case, by granting Equitable a Maryland charter it was bringing regulation under Maryland law to an association whose customers were predominantly Maryland citizens and thus, in so doing, it was following the intent and purpose of the 1955 amendment to the law.
We think the contentions urged upon us by the Intervenors are placed in proper perspective when we note the obvious lack of citations in support of them.  It is further interesting to observe that the Attorney General of Maryland, appearing in this Court on behalf of the Board, at no time questioned the authority of the Board to approve the merging of Old Equitable with New Equitable and the granting of the Maryland charter to New Equitable, or the legal right of the Board to authorize the operation and maintenance of branches in [***30]  the District of Columbia.  The sole thrust of the Attorney General's brief is directed at the lower court's disagreeing with the Board, relative to the "public interest, convenience and advantage" to be served by the granting of the charter.
We think it also conducive to more enlightened understanding of the present litigation to peruse the very knowledgeable observation of the Board to the effect that:
"The Intervenors primarily fear a future ability of the new Maryland Equitable to open additional Maryland branches, which they contend is a right not available to the old Equitable.  It  [*264]  is not necessary here to decide the latter contention.  Of course, if the charter is granted, the new Equitable can apply for new branches as every Maryland association can apply.  But this question is not before us at this stage, because no additional Maryland branches are sought.  Each branch application will be given appropriate notice and hearing, on its merits.  We might remark on this precise point, that Section 161A of the Act suggests that there is a public interest in fostering healthy competition among associations, so long as it does not become suicidal.  We might also remark [***31]  that the Washington suburban area of Montgomery County is growing so fast and is so wealthy that an upsurge in savings and loan activity there seems inevitable and highly desirable."
Turning to the evidence presented before the Board, as well as that introduced  [**373]  de novo before the lower court, we find that while Equitable's testimony before the Board regarding its District of Columbia branches was given a low key treatment, as compared with the bullish picture painted of its Wheaton operation, nonetheless, it can be reconciled with the testimony given before the lower court.  The testimony before the Board, regarding the branch offices, was far more superficial than the in-depth testimony given before the court which latter was bolstered by statistical data.  Viewing the testimony before the Board in a light most favorable to the Intervenors, it presented the picture that the F Street branch was in a neighborhood which has become blighted and that although the deposits amounted to some $ 35,000,000, approximately $ 20,000,000 consisted of dormant accounts and that there was scarcely any "walk in" traffic.  Equitable also stated that the Friendship branch had, in [***32]  its opinion, reached maximum growth.  However, Equitable consistently held to the proposition that it would lose $ 20,000,000 in deposits if it closed the F Street branch.  It  [*265]  also, under questioning from the Board, reluctantly admitted that it could phase out the Friendship branch fairly soon, but that it would take years to phase out the F Street office.  There was also evidence that the F Street branch was in an area slated for urban renewal and that the neighborhood should eventually become rehabilitated.
On appeal, the viability of the branches was covered in much greater depth, and the testimony before the court may be summarized as follows:
William K. Hogan, the Assistant Vice President of Old Equitable and the officer in charge of computer operations testified that at least 24.20 percent of the number of accounts in combined District of Columbia offices are held by Maryland residents; that 21.92 percent of the amount deposited in accounts in the combined District of Columbia offices is held by Maryland residents; that $ 7,181,000 is held by the combined District of Columbia offices as deposits of Maryland residents; that 24.50 percent of the number of saving certificates [***33]  in the combined District of Columbia offices are held by Maryland residents; that 23.54 percent of the new accounts in the combined District of Columbia offices are held by Maryland residents; that 24.62 percent of the active accounts in the combined District of Columbia offices are held by Maryland residents; that 22.90 percent of the dormant accounts in the combined District of Columbia offices are held by Maryland residents; that the savings accounts in the combined District of Columbia offices total $ 32,747,319, while the savings accounts at the Wheaton office total $ 23,728,861.
Frederick S. Genau, vice president and loan officer of Old Equitable, testified that the mortgage loan portfolio discloses that 69.21 percent of all loans are secured by realty in Maryland; and that during the immediate prior two and one-half years, 78 percent of loans were on Maryland property, 15 percent on District of Columbia property and 7 percent on Virginia property.
J. Lee Sammons, Senior Associate with the firm of Hammer, Greene, Siler Associates and an expert in the field of analysis of economic data, testified that the Bureau  [*266]  of the Budget and the Interstate Commerce Commission [***34]  both recognize the metropolitan area surrounding the District of Columbia as part of the District of Columbia commercial and economic unit that the U. S. Census survey showed that in 1960, 46 percent of the residents of Montgomery and Prince George's County commuted to Washington, D. C.; that 25 percent of the employees in the F Street area are Maryland residents; that the business of the District of Columbia offices of Equitable with Maryland residents stems primarily from persons employed in the District of Columbia in the area of Equitable's respective District of Columbia locations; that at least 1,785 Maryland residents are served by the District of Columbia offices of Equitable and there are several Savings  [**374]  and Loan Associations located in Maryland who serve less than 1,785 Maryland residents and have less than 7.2 million dollars in deposits by Maryland residents; that of the 1,785 accounts in the District of Columbia offices of Equitable held by Maryland residents, only 117 have addresses located in Wheaton and that there are 1,668 such accounts held by Maryland residents who do not have a Wheaton address as their residence; that there are dramatic changes planned [***35]  for the improvement of the neighborhood of the F Street office and that the Washington Metropolitan Area Transit Authority has estimated that there will be 137,400 employees who are Maryland residents working in the area of the F Street office in 1990.  He also noted that the F Street office of Equitable is in a very convenient location to serve Maryland residents who will be using the proposed subway system commonly known as the "Metro System." As regards the Metro System, Mr. Sammons stated that the F Street office "will be one of the most convenient spots in all of Washington."
Dr. Irwin Friend, Professor of Finance and holder of the Richard K. Mellon chair at the Wharton School of Finance at the University of Pennsylvania, author of several studies in the field of finance, and author of a four volume study of the savings and loan industry sponsored  [*267]  by the U. S. Congress and the Federal Home Loan Bank Board, known throughout the industry as the "Friend Report" testified that convenience of location is the single most important factor considered by depositors in choosing a savings and loan institution; that if Equitable were forced to close its District of Columbia offices,  [***36]  well over one-half of the 35.4 million dollars deposited in the two District of Columbia offices would be lost in a relatively short period; that if over one-half of the said deposits were withdrawn, Equitable would either have to sell its mortgages on the market at a great loss or borrow from the appropriate Federal Home Loan Bank and pay an amount of interest in excess of the return on the present mortgage portfolio of Equitable, a circumstance that "would be extremely serious for the continued existence * * *" of the association, and in either case, no loans could be made in the foreseeable future, with the resulting permanent loss of customers; and that it would be unrealistic to assume that any substantial proportion of persons withdrawing funds from the District of Columbia offices would redeposit them in the Wheaton office.
As we have already stated, we think the lower court was in error in not considering in its deliberations the record made before the Board as well as the evidence submitted at the trial de novo; however, as we have previously indicated, we view this to have been harmless error and the failure to review the record from the Board should not, in our opinion,  [***37]  have prejudiced the Intervenors insofar as the final result reached by the court is concerned.  It follows, therefore, that the order of the lower court reversing that part of the decision of the Board calling for the phasing out of the District of Columbia branches should be affirmed.
Order affirmed, appellants to pay costs.  

11 of 37 DOCUMENTS 

TOWN OF GLENARDEN v. BROMERY, et al.; COUSINS, et al. v. BROWN, et al.  

Nos. 320, 321, September Term, 1969 

Court of Appeals of Maryland 

257 Md. 19; 262 A.2d 60; 1970 Md. LEXIS 1281 

February 11, 1970, Decided 

PRIOR HISTORY:
 [***1]  

Three appeals from the Circuit Court for Prince George's County; Bowen, J.  

DISPOSITION:
Orders affirmed, with costs.  

HEADNOTES:

Constitutional Law -- Municipal Home Rule -- Amendment Of Municipal Charter -- Maryland Constitution, Art. XI-E, Authorizes Amendments To Charters Of Municipal Corporations -- Code, Art. 23A, Secs. 11-18, Prescribe Exclusive Manner In Which Municipal Corporations May Implement Charter Amendments.
Constitutional Law -- Municipal Home Rule -- Amendment Of Municipal Charter -- Citizens Of Municipal Corporation May Lawfully Amend Municipal Charter Even If Such Amendment Results In Shortening Terms Of Mayor And Councilmen Of Town -- Amendment To Municipal Corporation Charter May Provide For Special Election For Mayor And Councilmen Who Are To Serve Until Next Regular Election -- Code, Art. 23A, Sec. 2(29).
Constitutional Law -- Municipal Home Rule -- Amendment Of Municipal Charter Which Had Effect Of Diminishing The Terms Of Incumbent Mayor And Councilmen Does Not Violate Federal Constitution -- Appointment To And Tenure Of Public Office Is Not A Constitutionally Protected Contract Right.  

SYLLABUS:

Action for declaratory judgment brought by Town of Glenarden [***2]  regarding the validity of certain amendments to the town Charter.  Also, petition by James R. Cousins, Jr., and others, for injunction against interference by Stanley D. Brown, and others, with the offices of mayor and town council of the Town of Glenarden.  Also bill of complaint by Decatur W. Trotter, and others, for injunctive relief and damages.  From orders which 1) sustained validity of the Charter amendments, 2) dismissed the petition of James R. Cousins, Jr., and others, and 3) granted the relief prayed for by Decatur W. Trotter, and others, the Town of Glenarden and James R. Cousins, and others, appeal.  

COUNSEL:
Alfred L. Scanlan, with whom were Shea & Gardner and Patricia A. Trivers on the brief, for appellants.
Amicus Curiae Brief filed by The Maryland Municipal League.  Joseph S. Casula on the brief.
Charles A. Dukes, Jr. for appellees.  

JUDGES:
Hammond, C. J., and Barnes, McWilliams, Singley and Smith, JJ.  Hammond, C. J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*21]   [**61]  By adopting a number of amendments to the town charter, the electorate of Glenarden replaced a mayor and a set of councilmen during their terms with another [***3]  mayor and another set of councilmen. The displaced persons here challenge the effectiveness of the charter amendments to validly accomplish the change in terms and officials.
Glenarden is a municipality that sometime ago availed itself of the authorizations of Art. XI-E of the Constitution of Maryland (the Municipal Home Rule Amendment) and of Code (1957), Art. 23A, the implementing statute, its charter being in all significant respects one contemplated by Art. 23B of the Code, titled Municipal Corporation Charter.
At a regular election called for by the original charter held on May 5, 1969, Mayor Cousins who had served for some  [**62]  twenty-eight years was reelected over the appellee Trotter, and six councilmen aligned with the Mayor also were elected. Four members of the prior council became lame ducks, having failed of reelection.  Perhaps for this reason the Town Council, after the election but before its successors took office, approved petitions of Glenarden citizens proposing ten amendments to the Town Charter, and on September 15, 1969, at an election ordered by Judge Digges, sitting in the Circuit Court for Prince George's County, the voters approved all the amendments.  [***4]  Number 2 provided that there be six councilmen to be elected for two-year terms (for no more than three consecutive terms), and Number 3 made the term of the mayor two years, with a limit of two consecutive terms.  Under the original charter, the terms were for four years.  Number 4 established regular town elections on the first Monday in May in odd numbered years, and amendment Number 7 set up a special election and directed that the mayor and councilmen elected at that special election should serve as such until the next regular election.
 [*22]  Various legal proceedings and counter-proceedings followed the adoption of the amendments.  Finally, Judge Bowen in the Circuit Court for Prince George's County issued a mandatory injunction requiring the holding of a special election for all town offices on November 21, 1969.
Of 755 votes cast for Mayor at the November 21st election, the appellee Trotter, who had lost the May 5th election, received 354 while the incumbent Mayor Cousins who had won in May received 311.  Two other candidates split the remaining votes.  Since no candidate received a majority, a run-off election was held on December 22, in which Mr. Trotter beat Mayor [***5]  Cousins. Six councilmen were elected in November, including two incumbents and two members of the Trotter faction who had been beaten in the May election, Messrs. Brown and Jackson.
The appellants are the Town, Mr. Cousins, and the six councilmen who were elected on May 5; the appellees include Mr. Trotter, Messrs. Brown and Jackson, and other citizens and taxpayers of the Town.
The appellants at the argument limited their contentions to the claims that the special election of November 21 was an exercise in the governmental process of recall of elected officials for which there is neither constitutional nor statutory authority in Maryland, and that the charter amendments reducing the terms of office of the mayor and the councilmen from four to two years, if construed to be applicable and effective prior to the regular town election of May 1973, are both unconstitutional and illegal until that time.
The appellants point out that the terms of those elected on November 21 were neither for two nor for four years, and that in the present posture of the matter the candidates elected on May 5 had enjoyed a five and one-half month term, those elected on November 21 will serve to early [***6]  June 1971 or for a term of 19 months, while those elected at the next regular election in May 1971 will serve the newly prescribed term of two years.  From this  [*23]  they argue that "in every meaningful sense the special election represents an attempt by the Town electorate, for purely political reasons, to recall elected public officials prior to the expiration of the term of office for which they had been elected." The argument goes on to urge that the recall in the sense here relevant is a governmental associative cousin of the initiative and the referendum, all representing mechanisms by which the electorate reserve to themselves powers ordinarily given without reservation to the legislators representing the voters. n1

n1 The initiative, the referendum and the recall all originated in the cantons of Switzerland, and in whole or in part were considered in the Constitutional Convention of 1787, and after 1900 adopted in whole or in part by various States.  Rappard, Initiative, Referendum and Recall in Switzerland, Annals of the American Academy of Political and Social Sciences (September 1912); 19 Ency. Brit. 14 (1959); Morrison, The Oxford History of the American People 815 (1965); Dulles, The United States since 1865, 186 (1959).

 [***7]  
 [**63]  Appellants next seek to find comfort in the fact that the referendum was made part of the Maryland governmental scheme by amendment to the constitution in 1915 (and since then often is found in municipal charters) but that the power to recall elected officials never has been made a part of the Maryland political scheme.  They argue that the legislature lacks the inherent power to provide for recall and therefore could not delegate the right to provide for recall locally and that, assuming the legislature could so delegate, it has not seen fit to do so in Glenarden's case.  Finally, they plead that "the recall should not be introduced into Maryland in disguise" lest every mayor and councilman tremble ever in his boots in a continuous fear that the electorate at any moment will strip him of his powers, prestige and emoluments -- a fear the Maryland Municipal League indicates in its brief as amicus that it shares.
The arguments of the appellants are well marshalled and skillfully presented.  Their fatal weakness is, however, that the recall procedure has nothing to do with the case.  By Art. XI-E of the Constitution and Art. 23A  [*24]  of the Code, the citizens of Glenarden [***8]  were given the legal right and power to do exactly what a majority of them did -- that is, amend the charter of their town to bring about a form of government contemplated by Art. XI-E of the Constitution and the statute, that is, Art. 23A of the Code.  The fact that the exercise of the right to amend the charter of Glenarden resulted in shortening the terms of the mayor and councilmen of that town just as the exercise of a power to recall, had one existed, would have done is coincidental, and does not make the permitted process of amendment the withheld or forbidden process of recall.  This is not a situation in which that which we call a rose by any other name would smell as sweet.
In Hitchins v. Mayor & City Council of Cumberland, 208 Md. 134, 140-141, Chief Judge Brune for the Court made an elaborate analysis of Art. XI-E of the Constitution (the Municipal Home Rule Amendment) and Art. 23A of the Code, pointing out in the process, first, that § §  3 and 4 of Art. XI-E provide that:
"Sec. 3.  Any such municipal corporation, now existing or hereafter created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation,  [***9]  organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this Article.
"Sec. 4.  The adoption of a new charter, the amendment of any charter or local laws, or the repeal of any part of a charter or local laws shall be proposed either by a resolution of the legislative body of any such municipal corporation or by a petition containing the signatures of at least five per cent of the registered voters of a municipal corporation and filed with the  [*25]  legislative body of said municipal corporation.  The General Assembly shall amplify the provisions of this section by general law in any manner not inconsistent with this Article,"

and, second, that §  11 of Art. 23A prescribes that "Every municipal corporation in this State shall proceed as in this sub-heading provided in exercising and applying the powers for the amendment of municipal charters which are granted  [**64]  thereto by Article XI-E of the Constitution of Maryland," and that § §  12, 13 and 14 "contain provisions authorizing the adoption of charter [***10]  amendments and permit them to be initiated by action of the legislative body of the municipality through a majority vote of all persons elected to such legislative body or by petition of at least 20% of the qualified voters of the municipality." Judge Brune thereafter said (at p. 143 of 208 Md.):
"We think, however, that this is clearly a case in which the provisions of Sections 11-18 of Art. 23A of the Code, enacted to implement Article XI-E, and particularly to implement Section 4 thereof, occupies the whole field of amendments to charters of municipalities * * *.  Article XI-E of the Constitution authorizes amendments of the charters of all municipal corporations (with certain exceptions not here material), and Sections 11-18 of the Code prescribe how such municipal corporations shall make amendments to their charters, and the methods prescribed differ from those of the old Charter of Cumberland.  That the general provisions of the Code were meant to be all-inclusive is, we think, clear.  This view is fortified by the provisions of Article XI-E which manifest strongly and explicitly an intention that the Legislature shall deal with the charters of municipalities in matters pertaining [***11]  to their incorporation, organization, government or affairs  [*26]  on a general basis and shall not enact local legislation to amend the charters of individual municipalities. Correlatively, the solution of local problems is left to local action by the adoption or amendment of charters of municipalities to be effected in accordance with general laws.  While we find no difficulty in reaching this construction of the Constitutional and Code provisions and hence there is no need to resort to any extrinsic aids to construction, we note that these provisions are in harmony with the recommendations of the Sobeloff Commission which were before the General Assembly and which seem to have served as the basis for the Constitutional Amendment and the implementing legislation."

See also Mayor of Hagerstown v. Lyon, 236 Md. 222.
It is conceded that all of the ten amendments to the Charter of Glenarden adopted on September 15, 1969, save amendment Number 7, were proper and appropriate provisions to be included in its municipal charter under Articles 23A and 23B of the Code.  We think that the voters of Glenarden had the power to adopt amendment Number 7 in order to facilitate and [***12]  effectuate the transition from four-year terms for the Mayor and councilmen to two-year terms.  Section 2 (29) of Art. 23A gives to a municipality covered by its provisions the express power "to provide for special elections for municipal purposes, at such times and places as may be determined, and subject to the provisions of the charter of said municipality." Number 7 required an election if more than three simultaneous charter amendments were adopted and its obvious intent was to further Glenarden municipal purposes by arranging for the election of officials for the interim term from the time of the special election until the next regular election.
In our view there is no compelling force to the argument of the appellants that if amendments 2, 3 and 4 are  [*27]  construed and applied so as to divest Mayor Cousins and the councilmen elected with him in May of their offices and the emoluments thereof they would be unconstitutional.  In Higginbotham v. Baton Rouge, 306 U.S. 535, 83 L. Ed. 968, the Supreme Court reiterated that the legislative power of a State, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its [***13]  reach, so that it may  [**65]  at pleasure create or abolish them, or modify their duties, and may also shorten or lengthen the term of service.  The Supreme Court had held in Crenshaw v. United States, 134 U.S. 99, 33 L. Ed. 825, that appointment to and tenure of an office created for the public use do not come within the import of the term "contracts" as used in the Constitution or, in other words, within the vested, private, personal rights intended by the Constitution to be protected.  The Court said:

"The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is a matter of public convenience or necessity, and so, too, are the periods for the appointment of such agencies * * *.  It follows then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designed for the execution of those laws."

In Rhyne, Municipal Law (1957), the author says (p. 141-142) that an official's claim to tenure is not protected by the contract clause of the Federal Constitution and that a legislature may diminish [***14]  the term of or entirely abolish an elective office.  Mr. Rhyne says further (p. 147-148) that an office may be abolished at any time by a constitutional amendment even though the constitution provides that the officer shall hold office during the term for which he was elected, and that an office created by a charter may be abolished by charter amendment.  The statement is supported by Millard v. Guy (Mich.), 55 N.W.2d 210,  [*28]  in which the Court held that an amendment to the charter of the City of Dearborn, approved by the voters, which provided for election of a municipal judge and an associate municipal judge for six-year terms and set a salary for the associate which was less than the previous salary of each of two municipal judges properly and permissibly amounted to a bona fide abolition of the office of one municipal judge to take effect immediately, rather than an unconstitutional reduction in salary, term, duties and authorities of the office of a municipal judge.  The Court also held that pursuant to the terms of the amendment the voters could elect a named individual as interim appointee to the office of associate municipal judge.
There have been similar holdings [***15]  in Maryland.  In County Commissioners v. Supervisors of Elections, 192 Md. 196, the Court, dealing with the transitional problems arising from the adoption of the charter form of government by Montgomery County, held that subsidiary governmental bodies have implied authority to exercise all such powers as may be necessary or fairly implied in or incidental to the enjoyment and exercise of their express powers, that a first charter may provide for the prompt special election of a first council and that the terms of the existing county commissioners of a county becoming a charter county are not unlawfully shortened by the transfer by the charter of their powers and duties to the council since "the Commissioners hold their offices subject to the possibility that they may be ousted under the provisions of the Home Rule Amendment providing for the adoption of a charter." The Court held that the County Commissioners of Montgomery County were not entitled to an injunction banning the holding of a special election to elect a County Council.
In Brown v. Brooke, 95 Md. 738, Ch. 442 of the Laws of 1892 had provided for three county commissioners for Anne Arundel County to hold office [***16]  for two, four and six years respectively as the governor should designate.  The appellants in that case were in office as such county  [*29]  commissioners, their terms not having expired, when Ch. 13 of the Laws of 1901 became effective to repeal the Act of 1892 and to provide that at the general election of November 1901 seven county commissioners should be elected  [**66]  for Anne Arundel County to hold office for two years, and that upon their qualification "the terms of the present County Commissioners of Anne Arundel County shall cease and determine as fully as if when elected they had only been elected to serve until that time." The individuals elected in November 1901 sought and were granted by the lower court a writ of mandamus directing the old commissioners to surrender their offices.  The order was affirmed without opinion by an equally divided Court of Appeals.
We were told at the argument that the transfer of offices from the Cousins faction to the Trotter faction had been effected peacefully if not fraternally.  We shall not disturb the results of the direct and energetic participation by the voting citizens of Glenarden in remoulding the form of their government [***17]  and arranging for a change in the identity of their political agents and servants, and therefore will affirm the orders appealed from.
Orders affirmed, with costs. 

12 of 37 DOCUMENTS 

HERITAGE REALTY, INC., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.  

No. 112, September Term, 1968 

Court of Appeals of Maryland 

252 Md. 1; 248 A.2d 898; 1969 Md. LEXIS 1052 

January 9, 1969, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court of Baltimore City; Cullen, J.  

DISPOSITION:
Decree affirmed; costs to be paid by appellants.  

HEADNOTES:

Ground Rents -- Reversion As To Ground Rents Not To Be Equated To Mortgage In All Respects -- Difference In Lessee's Or Leasehold Owner's Rights And Liabilities.
Ground Rents -- Leasehold Owner -- Assignments -- If Leasehold Owner Acquired Title By Assignment He Is Obligated To Pay Rent And Taxes Only So Long As He Owns Leasehold And Is Bound By Privity Of Estate -- The Original Lessee Is Forever Bound By Covenant.
Ground Rents -- Acquiring Reversion -- If Rent Is Irredeemable Leasehold Owner Cannot Acquire Reversion And Extinguish Rent Unless Reversioner Agrees To Sell -- If Rent Is Redeemable Leasehold Owner Can Redeem If He Wishes But Cannot Be Required To Do So.
Ground Rents -- Condemnation -- An Entity Having The Right Of Eminent Domain May Exercise Such Right After Acquiring The Leasehold Interest And Need Not Acquire The Reversion By Redemption.
Ground Rents -- Sale Of Reversion -- Condemnation -- Market Value -- Reversioner Is Entitled To Receive Fair Market Value On Condemnation -- Fair Market Value Determined By Price Acceptable  [***2]   To A Willing Buyer And A Willing Seller.
Ground Rents -- Reversion -- Valuation -- Redemption Price Which Leasehold Owner Without Power Of Eminent Domain May Be Required To Pay Under Terms Of His Lease As No More Conclusive Of The Value Of The Reversion Than The Fixed Price In Any Unexercised Option To Purchase.
Ground Rents -- Condemnation -- Compensation For Taking -- The Holders Of The Leasehold Interest And The Reversion Have The Constitutional Right To Be Fully Compensated By The Condemning Authority And Cannot Be Driven To Seek Redress From Some Other Party.
Grounds Rents -- Acquisition By Condemnation -- If The Condemning Authority Acquires The Leasehold By Negotiation And The Reversion By Condemnation Or Vice Versa, Or Acquires One Interest Immediately And The Other Later, The Total Cost May Be Larger Than The Value Of The Property -- The Method Of Acquisition Is Permissible So Long As There Is No Abuse Of Its Power. 

SYLLABUS:

Suit by Heritage Realty, Inc., and other individuals and co-operatives owning irredeemable and redeemable reversions in Baltimore City against the Mayor and City Council of Baltimore seeking a declaratory judgment to the effect that the City [***3]  in the course of acquiring property for public purposes had adopted a procedure which was invalid and which deprived the owners of their property without just compensation.  From a decree in favor of the defendants, plaintiffs appeal.  

COUNSEL:
Joseph S. Kaufman and Herbert M. Brune for appellants.
Clayton A. Dietrich, Chief Assistant City Solicitor, and Thomas P. Perkins, III, with whom were George L. Russell, Jr., City Solicitor, and Richard W. Emory on the brief, for appellees.  

JUDGES:
Hammond, C. J., and Marbury, McWilliams, Singley and Smith, JJ.  Singley, J., delivered the opinion of the Court.  

OPINIONBY:
SINGLEY 

OPINION:

 [*3]   [**899]  A ground rent, while not entirely unknown elsewhere in Maryland n1 and in other states, n2 is almost as peculiar to the City of Baltimore as the espantoon. n3 The legal characteristics -- which are both atypical and indigenous -- of Baltimore ground rents have been the subject of extensive consideration by Judge Frank A. Kaufman, The Maryland Ground Rent -- Mysterious But Beneficial, 5 Md. L. Rev. 1 (1940) and by Mayer, Ground Rents in Maryland (1883).

n1 Anderson v. Susquehanna Power Co., 162 Md. 501, 160 A. 286 (1932) involves ground rents in the town of Port Deposit. [***4]  
n2 Cadwalader, Ground Rents in Pennsylvania (1879).
n3 "Espantoon: a. A spontoon, b. Baltimore, U. S. a policeman's club" -- Webster's New International Dictionary (2d Ed. 1961).

Starting in about 1750, owners of fee simple property commenced to lease building sites to persons who would undertake the construction of improvements on the lots.  From the outset, the leases were essentially  [**900]  identical in form and usually were for a term of 99 years, renewable forever at the option of the lessee. The payment of taxes and of other public charges was made the responsibility of the lessee by covenant. The annual rent reserved was small, usually an amount which, if capitalized at a reasonable rate of interest, represented what was conceived to be the value of the land.  Since the rent was categorized as a rent service, the remedy of distraint was available to the lessor.  Ehrman v. Mayer, 57 Md. 612 (1882). The lessor also had a right to re-enter in the event that the rent was six months in arrears. 4 George II, Chapter 28, recodified by Chapter 346, Laws of 1872, Maryland [***5]  Code (1957, 1965 Repl. Vol.) Art. 75, §  27; Campbell v. Shipley, 41 Md. 81 (1874).
The legal origins of such arrangements are uncertain.  Certainly of some significance is the fact that the charter n4 granted to Lord Baltimore provided that the statute of quia emptores  [*4]  18 Edw. I c 1 (1290), which had originally been enacted to prevent subinfeudation, should not apply to the lord proprietor and his immediate grantees, n5 and that from the early days of the colony, the proprietor granted manors in fee, sometimes reserving quit rents in perpetuity and sometimes for 99 years without provision for renewal.  Others have traced the origin of the leases to agricultural tenancies in Ireland. n6 Those leases had avoided quia emptores by being for stipulated terms, usually 99 years, which at the time represented three lives, and were renewable.

n4 "*** the Statute made in the Parliament of Lord EDWARD, son of King HENRY, late King of England, our Progenitor, commonly called the "STATUTE QUIA EMPTORES TERRARUM," heretofore published in our Kingdom of England, or any other Statute, Act, Ordinance, Usage, Law or Custom, or any other Thing, Cause or Matter, to the contrary thereof, heretofore had, done, published, ordained or provided to the contrary thereof notwithstanding." (Emphasis in original) Charter of Maryland, June 20, 1632, Art. XVIII, Maryland Manual (1967-68) at 588; 3 Thorpe, American Charters, Constitutions and Organic Laws (1909) at 1677. [***6]  
n5 Chesnut, The Effect of Quia Emptores on Pennsylvania and Maryland Ground Rents, 91 U. of Pa. L. Rev. 137 (1942).
n6 See, for example, Myers v. Silljacks, 58 Md. 319 (1882) and Banks v. Haskie, 45 Md. 207 (1876).

As the years passed the whole ground rent system acquired a gloss under statutory provisions and to a lesser extent from custom and case law.  This Court first dealt directly with a lease creating a ground rent in Banks v. Haskie, 45 Md. 207 (1876), involving a lease dated 18 January 1772 by which a quarter-acre lot had been leased for an annual rent of L2 10s.  As the 99 year terms of the leases which had been entered into in the last years of the eighteenth century commenced to expire, the Court began to hear cases which offered opportunity to refine further the nature of the relationship created by the leases.
The leasehold interest was recognized as personal property, Craig v. Craig, 140 Md. 322, 117 A. 756 (1922) and cases there cited, although it had to be conveyed like realty, Bratt v. Bratt, 21 Md. 578 (1864); Code (1957, 1966 Repl. Vol., 1968 [***7]  Cum. Supp.) Art. 21, §  1.  The interest of the owner of the reversion had long been held to be an interest in real property.  Myers v. Silljacks, 58 Md. 319 (1882); Coombs v. Jordan, 3 Bland 284, 22 Am. Dec. 236 (1831). The holder of a mortgage on the leasehold could be held responsible for the payment of the rent and taxes, whether or not he foreclosed.  Williams v. Safe Deposit and Trust Co., 167 Md. 499, 175 A. 331 (1934);  [*5]  Mayhew v. Hardesty, 8 Md. 479 (1855). Fluctuations in the value of the property inured to the benefit of the owner of the leasehold or conversely worked to his detriment.  Whiting-Middleton Const. Co. v. Preston, 121 Md. 210, 88 A. 110 (1913); Mayor & C. C. of Balto. v. Canton Co., 63 Md. 218 (1885); Banks v. Haskie, supra. So long as the covenants contained in the lease were observed, the leaseholder was  [**901]  the substantial owner of the property, Holland v. Mayor & C. C. of Balto., 11 Md. 186 (1857) and his interest was perpetual.  Mayor & C. C. of Balto. v. Latrobe, 101 Md. 621, 624, 61 A. 203 (1905).
For more than a century there was no way in which the leasehold owner could absolve himself of the necessity [***8]  of paying the rent in the absence of appropriate provisions in the lease. Commencing in 1884, however, by a series of statutes which were only prospective in their operation, Trustees of Sheppard & Enoch Pratt Hosp. v. Swift & Co., 178 Md. 200, 13 A. 2d 174 (1940), ground rents were made redeemable at the option of the leasehold owner; but redemption could not, and to this day cannot be exacted by the owner of the reversion. By Chapter 485 of the Laws of 1884, Code (1957, 1966 Repl. Vol.) Art. 21, §  103, leases made on and after 8 April 1884 for a term of more than 15 years could be redeemed at any time after the expiration of 15 years by the payment of an amount computed by capitalizing the annual rent at a rate of six per cent, unless some other rate, not exceeding four per cent, was stipulated in the lease. Chapter 395 of the Laws of 1888, Code Art. 21, §  103 reduced the period during which redemption could not be effected to 10 years with respect to leases made after 5 April 1888, fixed the rate of capitalization at not more than six per cent, but required six months' notice.  Chapter 207 of the Laws of 1900, Code Art. 21, §  104, effective 5 April 1900, reduced the period [***9]  during which a rent could not be redeemed to five years, fixed the notice period at one month, and left the six per cent rate unchanged.  As a result, ground rents created prior to 8 April 1884 are irredeemable unless the lease creating them provides otherwise; ground rents created between 8 April 1884 and 5 April 1888, and between 6 April 1888 and 5 April 1900 are redeemable in the manner provided by the applicable statute; and rents created after 5 April 1900 are subject to redemption  [*6]  at the option of the leaseholder on one month's notice at a capitalization rate not to exceed six per cent.
It is in the context of this historical background that the controversy before us must be viewed.  The appellants, who are 11 individuals and corporations (the Owners) owning both irredeemable and redeemable reversions in Baltimore, sought declaratory relief in the Circuit Court of Baltimore City against Mayor and City Council of Baltimore (the City), by filing a petition alleging that the City, in the course of acquiring property for public purposes, had adopted a procedure which was not only invalid, but was depriving the Owners of their property without just compensation.  The City [***10]  answered, as did Housing Authority of Baltimore City, which had been granted leave to intervene.
The practice of which the Owners complain is essentially this: The City, once it takes title to leaseholds subject to redeemable ground rents, is acquiring the reversions through negotiated purchase in lieu of condemnation, or by condemnation, rather than by exercising the right of redemption provided for by the lease and by statute.  The whole point, of course, is that in a period when interest rates are high, the rents have a market value less than the amount which a leaseholder not having the power of condemnation would be required to pay to extinguish the rent by redeeming it at a capitalization of six per cent.
That the reverse of this situation may also be true was observed in Mayor & C. C. of Balto. v. Latrobe, 101 Md. 621, 61 A. 203 (1905) when the Court, speaking through Judge Boyd, said at 629:

"*** We cannot close our eyes to the fact, which is frequently before us, that ground rents, especially in Baltimore City, are constantly being sold and have market values (resembling somewhat those of bonds and stocks), depending upon the manner in which they are secured [***11]  and the length of time they are to continue.  As under our system the taxes are  [**902]  paid by the owner of the leasehold interest, when well secured they are in demand and frequently realize prices far beyond  [*7]  what they could have been capitalized at when the leases were originally made."

Judge Boyd, in this case, was speaking of irredeemable rents, but redeemable rents can fluctuate in value, too, depending on market conditions.  James F. Miller, who testified below as an expert for the City, pointed out that in the period 1945-1950, top quality redeemable rents sold on a six per cent basis, or even at prices in excess of redemption value, while less desirable rents sold at rates of between eight and twelve per cent.  By about 1960, first quality redeemable rents were selling at a capitalization of seven to seven and one-half per cent, while the lower level of the market was in the eight to fifteen per cent range.  It was this change which caused the City to acquire reversions by purchase or condemnation rather than by redemption.
The Owners would have us reverse the declaratory decree upholding the procedure followed by the City and dismissing their petition.  [***12]  The thrust of the Owners' argument is that a reversion is a first lien on the property, superior to that of any mortgage, the amount of the lien being fixed, in the case of a redeemable rent, by the redemption formula contained in the lease or ordained by statute.  In the case of an irredeemable rent, the Owners say, the amount may be fixed by adopting a figure obtained by capitalizing the rent at the six per cent rate used in the statute.  It is the Owners' argument that to permit the City, as leasehold owner, to acquire the reversion in any manner save by redemption, is an unconstitutional abrogation of the rights vested in the reversioner by contract.
The Owners place their principal reliance on cases which analogize the interest of the reversioner to that of a mortgagee, citing Jones v. Magruder, 42 F. Supp. 193 (D. Md. 1941); Whiting-Middleton Const. Co. v. Preston, supra; Mayor & C. C. of Balto. v. Canton Co., supra; Posner v. Bayless, 59 Md. 56 (1882) as well as on the manner in which ground rent payments have been treated for federal income tax purposes, § §  163, 1055 Internal Revenue Code, where a ground rent paid is treated as mortgage interest and the reversion [***13]  is "treated as being in the nature of a mortgage." See also, Kaufman v. Commissioner,  [*8]  372 F. 2d 789 (4th Cir. 1966); Welsh Homes, Inc. v. Commissioner, 279 F. 2d 391 (4th Cir. 1960); Commissioner v. Simmers' Estate, 231 F. 2d 909 (4th Cir. 1956). We think this reliance is misplaced, when we take into account the peculiarities of the legal rights of the reversioner on the one hand, and those of the leaseholder on the other, and consider the difficulties that have confronted courts when an attempt is made to articulate these rights in language meangingful to persons other than skilled conveyancers or legal historians.
While it is quite true that the texts and the cases have compared a ground rent to a mortgage, the comparison is frequently qualified by pointing out that the reversion is "in effect a mortgage without a due date -- a mortgage whose principal need never be paid -- * * *", Kaufman, supra, 5 Md. L. Rev. at 47, or is comparable to a mortgage "where the principal never matures so long as the mortgagor pays the interest and taxes", Jones v. Magruder, supra, 42 F. Supp. at 196, or is "analogous to an [investment] secured by a mortgage," Mayor  [***14]   & C. C. of Balto. v. Canton, Co., supra, 63 Md. at 237; Whiting-Middleton Const. Co. v. Preston, supra, 121 Md. at 216.
The analogy stops short, as it must, of equating a reversion to a mortgage in all respects.  A mortgage secures a debt of a specified sum, the mortgagor binding himself to pay at some definite future date.  The leasehold owner's obligation is of a different sort, whether the rent to which his property is subject be irredeemable or redeemable. If he has acquired title by assignment he is obligated to pay the annual  [**903]  rent and taxes -- but only so long as he owns the leasehold and is bound by privity of estate.  If he fails to do so, the reversioner can re-enter and take possession of the leasehold. The original lessee is forever bound by covenant, however, whether he owns the leasehold or not.  Consumers' Ice Co. v. Bixler & Co., 84 Md. 437, 35 A. 1086 (1896); Hintze v. Thomas, 7 Md. 346 (1855). If the rent to which the interest is subject is irredeemable, the leasehold owner cannot acquire the reversion, and thus extinguish the rent, unless the reversioner agrees to sell.  If the rent is redeemable, the leasehold owner may redeem if he wishes,  [***15]  but cannot be required to do so.  Commissioner v. Simmers' Estate, supra. His right of redemption is like a continuing option, entitling him, if he  [*9]  holds under a lease executed after 5 April 1900, to acquire the fee after five years from the date of the lease for a fixed sum.  Holzman v. Wager, n7 114 Md. 322 at 333, 79 A. 205 (1911); Kaufman, supra, 5 Md. L. Rev. 47.

n7 Holzman v. Wager incorrectly interprets Chapter 207 of the Laws of 1900 as permitting redemption after ten years.

The Owners would have us hold that the City, once it acquires the leasehold, is bound to exercise this option to redeem and is barred from acquiring the reversionary interest by negotiation or condemnation. The Supreme Court of Pennsylvania was faced with a similar contention in Lock Haven Bridge Co. v. Clinton County, 157 Pa. 379, 27 A. 726 (1893). The reasoning of that opinion is peculiarly apposite here:

"*** It was strenuously contended that under section 13 of the act of 1850 incorporating [***16]  plaintiff company, the proposed testimony embraced in the offers recited in the first two specifications was both competent and relevant.  That section provides as follows: 'At any time after the expiration of twenty years from the time of completing said bridge it shall be lawful for the commonwealth to purchase the same by paying to the said company a sum of money, which, together with the dividends declared, shall equal the cost of constructing said bridge and ten per centum per annum interest thereon.' It is claimed that this provision has all the force and effect of a contract between the company and the commonwealth, and furnishes the only measure of the damages or compensation to which the company is entitled for its bridge property and franchise, whether the same be taken for public use under the right of eminent domain, or purchased by the commonwealth in the manner above specified.  The very able and ingenious argument of learned counsel in support of this position has failed to convince us that the legislature ever intended to thus surrender or barter away the right of eminent domain, and substitute in lieu thereof the provision above quoted.  In the first place, it was [***17]  powerless to do so; but assuming,  [*10]  for argument's sake, that it possessed the power, it did not attempt to exercise it.  To hold otherwise would involve a strained construction of the language employed, and convert a mere reservation of the privilege of purchasing the company's bridge, etc., after the lapse of 20 years, and on specified terms, into an implied contract on the part of the commonwealth that the property should never be taken for public use in any other way or upon any other terms than those stated in the section.  That would be doing great violence, not only to established rules of construction in such cases, but also to the language of the section itself.  Charters are to be construed most strongly against the grantees and in favor of the public.  They are to be strictly construed, because in every such case the just presumption is that the commonwealth has granted in express terms all that she intended to give.  Mills, Em. Dom. § §  39, 40, 489, 490; Cooley, Const. Lim. 488; 6 Amer. & Eng. Enc. Law, 522; Pennsylvania R. Co. v. Canal Com'rs, 21 Pa. St. 22; State v. Commissioner of Railroad Tax'n, 37 N. J. Law, 239;  [**904]  Backus v. Lebanon, 11 [***18]  N. H. 19; Charles River Bridge v. Warren Bridge, 11 Pet. 420. In Backus v. Lebanon, supra, Mr. Chief Justice Parker said: 'Nor does the provision of the charter by which the legislature reserved the right to purchase the property with the consent of the corporation (given through their acceptance of the charter) prove, by any means, that the right of eminent domain was thereby surrendered, even if the legislature might be supposed to possess the power to make such surrender.  That provides a mode by which the government might, after a certain period, come into the possession of all the property of the corporation, and a mode which could not have existed but for the provision in the charter itself.  But this reservation does not seem to us to imply, in any manner, a relinquishment of any right by which the property of the corporation, or a part of it, might be taken for public use.'"
Since the owner of a leasehold interest cannot be compelled  [*11]  to redeem the rent which he is required to pay, his contractual obligation to the owner of the reversion is limited to the payment of the rent and taxes.  If the owner of the reversion determines to dispose of it, he can [***19]  seek a buyer in the market place, and the value of the reversion will be the price at which a buyer, willing but not obligated to buy, is ready to pay, and a seller, willing but not obligated to sell, is prepared to accept.  The owner is entitled to receive fair market value on condemnation, Maryland Code (1957, 1967 Repl. Vol.) Art. 33 A, §  5; Brinsfield v. Mayor & C. C. of Balto., 236 Md. 66, 202 A. 2d 335 (1964), and the statute adopts the willing-buyer-willing-seller definition, Code Art. 33 A, §  6, excluding, however, any increment or diminution in value caused by the project.  Mayor & C. C. of Balto. v. United Stores, Inc., 250 Md. 361, 243 A. 2d 521 (1968); King v. Mayor and Council of Rockville, 249 Md. 243, 238 A. 2d 898 (1968), Judge Boyd, speaking for the Court in Mayor & C. C. of Balto. v. Latrobe, supra, said:
"The reversioner [when his interest is condemned] is undoubtedly entitled to what his interest is worth in the market and prima facie the leasehold is charged with that value.  Of course we are aware that the market value may vary according to the conditions of the money market and other circumstances, but so will the leasehold interest [***20]  vary and the jury must be governed by the values of each, at the time." 101 Md. at 632.
The redemption price which a leasehold owner, not having the power of eminent domain, may be required to pay under the terms of his lease or by statute is no more conclusive of the value of the reversion than would be the price fixed in any option to purchase, where the option is currently exercisable but has not been exercised.
The final point made by the Owners is that the leaseholder and the reversioner should be joined in the same condemnation proceeding in order to assure that the sum of the awards shall be the full value of the property taken.  Gluck v. Mayor & C. C. of Balto., 81 Md. 315, 321, 32 A. 515 (1895). We do not propose to question the rationale of Gluck, which we read as authority  [*12]  for the proposition that the holder of each interest has a constitutional right to be fully compensated by the condemning authority, and cannot be driven to seek redress from some other party.  See also, Sholom, Inc. v. State Roads Commission, 246 Md. 688, 229 A. 2d 576 (1967); Mayor & C. C. of Balto. v. Gamse, 132 Md. 290, 104 A. 429 (1918). If the City embarks on a policy [***21]  of piecemeal taking, i.e., the acquisition of the leasehold by negotiation and of the reversion by condemnation, or vice versa, or the immediate acquisition of one interest and the acquisition of the other at a later date, which it has the right to do so long as there is no abuse of its power, Riden v. Phila. B. & W. R. R. Co., 182 Md. 336, 345, 35 A. 2d 99 (1943); Brack v. Mayor &  [**905]  C. C. of Balto., 128 Md. 430, 97 A. 548 (1916), it may well be that the total cost to the City will be a sum which in the aggregate is greater than the value of the property.  Such a result was clearly forecast by our predecessors in Mayor & C. C. of Balto. v. Latrobe, supra, 101 Md. at 631, and found unobjectionable:

"*** We say that because each is entitled under the Constitution to be compensated in damages for the amount of his interest taken, and if it be true that the values of the two interests are more than what the lots would be worth, if owned by one person, the necessities of the case require an apparent exception to the general rule announced above [that the sum of the values of the part interests should equal the value of the whole] as to what the [***22]  condemning party must pay."

Compare, U. S. v. Certain Parcels of Land, 43 F. Supp. 687 (D. Md. 1942).
We find no error in the result reached by the chancellor.
Decree affirmed; costs to be paid by appellants.  

13 of 37 DOCUMENTS 

HANAUER et al. v. ELKINS, PRESIDENT OF THE UNIVERSITY OF MARYLAND, et al.  (Two Appeals In One Record) 

No. 173, September Term, 1957 

Court of Appeals of Maryland 

217 Md. 213; 141 A.2d 903; 1958 Md. LEXIS 605 

June 3, 1958, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Prince George's County; Fletcher, J.  

DISPOSITION:
Judgments affirmed, with costs.  

HEADNOTES:

Constitutional Law -- Freedom Of Religion -- University Of Maryland -- Refusal Of, To Exempt Conscientious Objectors From Requirement That All Students Take Basic R. O. T. C. Course -- Not Contrary To University's Charter, Maryland Constitution Or First And Fourteenth Amendments Of Federal Constitution.  The University of Maryland, a land grant college, receives federal funds under the Morrill Act (7 U. S. C. A., sec. 304), which requires the University to offer a course in Reserve Officer Training Corps, either upon an elective or mandatory basis.  The Board of Regents of the University offered such a course, conducted and taught by Air Force personnel, and required all male students under a certain age who were citizens of the United States, except those specifically exempted, to take the basic two-year course, which included instruction in the nature of a military force and involved military drills and the wearing of Air Force uniforms but imposed no subsequent military obligations.  Students who had completed the basic course in other approved R. O. T. C.  [***2]  units or who had served in the Army, Navy, Marine Corps, Coast Guard or Air Force were exempted, but there was no exemption provided for conscientious objectors. In the instant case, two students who had been classified by their draft boards as conscientious objectors and who had served two years in civilian work after being inducted under the Selective Service Act sought writs of mandamus to compel the President and Board of Regents of the University to allow them to continue as students without taking the basic R. O. T. C. course.  The Court held that the mandatory requirement that the petitioners take the basic course was not contrary to the University's Charter, the Maryland Constitution or the First or Fourteenth Amendments of the Federal Constitution.  The Charter provides, in part, that the University shall be maintained for students of every religious denomination who shall be freely admitted to equal privileges without requiring or enforcing any religious or civil test.  Art. 36 of the Maryland Declaration of Rights protects the religious liberties of all persons and Art. 37 forbids a religious test as a qualification for public office.  Since the requirement of taking [***3]  a basic course as part of the curriculum did not impose a religious test, it was within the limitations imposed by the Constitution and laws of Maryland.  The policy of the University, in imposing a general condition not directed at the petitioners, need not yield to their views that the prescribed course was at variance with their personal beliefs.  The University is an agency or branch of the State government and its policies, therefore, must yield to rights guaranteed by the Federal Constitution, but under the decisions of the Supreme Court of the United States, the Due Process Clause of the Fourteenth Amendment does not prohibit a state university from excluding a conscientious objector who refuses, because of his religious convictions, to take a R. O. T. C. course.  In permitting conscientious objectors to fulfill their obligations under the Universal Military Training and Service Act by performing certain civilian work, congress granted this exemption as a matter of grace and did not thereby confer any federal right, and the refusal of the University to grant an equivalent exemption to its students did not violate petitioners' "privileges and immunities" under the Fourteenth [***4]  Amendment. Since the requirement applied to all persons in petitioners' age group who had not taken the course elsewhere, it was not discriminatory and did not deny the equal protection of the law to petitioners, who had not taken the prescribed course elsewhere.  

SYLLABUS:

Petitions by Kenneth George Hanauer and Jack A. Crabill for writs of mandamus to compel the President and Board of Regents of the University of Maryland to allow them to continue as students in the University without requiring them to take a mandatory course in Air Force Reserve Officer Training Corps.  From orders denying their petitions, the petitioners appealed.  

COUNSEL:
Robert B. Myers and Oliver Ellis Stone for the appellants.
Clayton A. Dietrich, Assistant Attorney General, with whom was C. Ferdinand Sybert, Attorney General, on the brief, for the appellees.  

JUDGES:
Brune, C. J., and Henderson, Prescott and Horney, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned.  Henderson, J., delivered the opinion of the Court.  

OPINIONBY:
HENDERSON 

OPINION:

 [*215]   [**903]  The appellants, Kenneth George Hanauer and Jack A. Crabill, claiming to be  [**904]  conscientious [***5]  objectors, filed petitions in the Circuit Court for Prince George's County on January 16, 1957, for writs of mandamus directing the President and Board of Regents of the University of Maryland to allow them to continue as students in the University without conforming to the general requirement that all able-bodied male undergraduates take basic military training. The petitions were denied by the trial court and the petitioners appealed.  Both cases involve the same constitutional questions and substantially the same facts and were consolidated for the purpose of hearing the appeals.  The writ was denied in the Hanauer case and judgment entered in favor of the appellees after full hearing and consideration of testimony.  In the Crabill case, judgment was entered for the appellees by order  [*216]  of the trial court sustaining a demurrer to the petition, without leave to amend.
The material facts established by the evidence in the Hanauer case and alleged in the petition in the Crabill case are substantially similar.  The Board of Regents of the University of Maryland adopted as a part of the curriculum of the University a course in the Reserve Officer Training Corps, which is [***6]  conducted by United States Air Force personnel. The University, as a land-grant college, received federal funds under the Morrill Act (7 U. S. C. A., Sec. 304).  Pursuant to the provisions of that Act, the University is required to offer a course in Reserve Officer Training Corps, which may be either elective or mandatory in the discretion of the University.  The regulations concerning this course which have been adopted by the Board of Regents require that all male students under thirty years of age, who are citizens of the United States, except those specifically exempted by the regulations, take the basic two-year course during their first two years after matriculation.  Included in the exemptions are those students who have completed the basic course in other approved units of the Army, Navy or Air Force R. O. T. C., or have served in the Army, Navy, Marine Corps, Coast Guard, or Air Force, for a period of time long enough to be considered equivalent to the basic training in the AFROTC course.  Conscientious objectors are not expressly exempted.
The basic course was described as being "designed as a course training a man to better perform his duties as a citizen of the United [***7]  States and of his community, to understand the impact of international tensions, world organization, the place of the United States in the family of nations, and his responsibility as a citizen to support his country." The training includes instruction in the nature of a military force, that is, how the Army, Navy and Air Force combine together to form the defense force of the nation and their mission and responsibility as a combined defense force.  The basic course involves learning to engage in military drill as a unit, and the wearing of an Air Force uniform, but completion of the basic course does not impose any subsequent military obligations.   [*217]  The purpose of the elective advanced course of two years, following the basic course, is to instruct Junior Officers of the United States Air Force and provide a major source of officer personnel for the regular Air Force.  Insofar as the basic course is necessary in order to take the advanced course, the objectives of the advanced course are reflected in the basic course.  United States Air Force Officers conduct all classroom academic work and supervise drill on the field.  Regulations covering the type of training offered [***8]  by the course are the regulations of the United States Air Force which have been adopted by the University.
Both Hanauer and Crabill claimed to be conscientious objectors. Both profess to be followers of the teaching of Jesus Christ and believe from his teaching that violence and the killing of human beings is against the principles of the Christian religion. They are opposed to war or military training in preparation for war, as being contrary to their religious beliefs.  Hanauer  [**905]  is a member of the Evangelical Reformed Church.  Crabill is a member of the Church of the Brethren.  The tenets of neither of these denominations require that its members be conscientious objectors, but it is their policy to show consideration to those members who are conscientious objectors and support them in their conviction.  The sincerity of this religious belief by Hanauer and Crabill is not questioned by the officials of the University in either case.  Prior to their enrollment, both Hanauer and Crabill were classified by their local draft board as conscientious objectors under the provisions of the Universal Military Training and Service Act (50 U. S. C. A. App. 456 (j)).  This section [***9]  of the Act provides for exemption from military training of conscientious objectors who are opposed to participation in war in any form and their assignment to work of national importance under civilian direction.  Pursuant to this classification, each of the appellants served two years in civilian work after being inducted into service under the Selective Service Act and received their certificates of discharge as draftees.
Hanauer is twenty-four years of age and a citizen of Maryland.  He enrolled as a third year student in the College of  [*218]  Education in September, 1956.  He desired to become a student at the University because the cost is lower than a private school and he could receive the training required to become a high school teacher.  At the time of his admission, he informed the officials he was a conscientious objector and that he could not take the required two year basic AFROTC course because it was against his religious beliefs.  The officials of the University, through inadvertence, neglected to consider his case until after he had been admitted as a student and had entered upon the first semester. After consideration they advised him he must take the course [***10]  or leave the University at the end of the first semester in January, 1957.
Crabill is twenty-five years of age and a citizen of Maryland.  He enrolled as a first year student in the College of Education in September, 1956.  At the time of his enrollment he likewise advised the University officials that he was a conscientious objector. Upon being informed that he could not become a student unless he agreed to take the prescribed two year, basic course in AFROTC, he agreed to take the course under written protest.  After experiencing the requirements of the course he notified the officials, prior to the end of the first semester, that he could not continue as experience showed it was a military program in violation of his religious beliefs.  The officials then notified him he must leave the University at the end of the semester because of his failure to take this required course.  We think no distinction should be drawn between Crabill and Hanauer for present purposes, although the appellees argue that there is evidence of a waiver on Crabill's part.
The appellants' first contention is that the mandatory requirement that they take the basic course is contrary to the charter of the [***11]  University and the Maryland Constitution.  The charter of the University provides, in part, that "'no sectarian or partisan test shall be allowed or exercised *** in the admission of students thereto, or for any purpose whatever * * *' and that the University shall be maintained for students of '*** every religious denomination who shall be freely admitted to equal privileges of education and to all the honors of the college according to their merit without requiring  [*219]  or enforcing any religious or civil test'." Art. 36 of the Maryland Declaration of Rights provides that "all persons are equally entitled to protection in their religious liberty; wherefore, no person ought, by any law to be molested in his person or estate, on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or infringe the laws of morality, or injure others in their natural, civil or religious rights * * *." Art. 37 forbids a religious test as a qualification  [**906]  for public office.  It seems clear that the University, in requiring the basic course as a part of the [***12]  curriculum, is not imposing a religious test.  The same contention was considered and rejected by this Court in University v. Coale, 165 Md. 224, 235. The petitioner in that case was not required to assume any obligation to bear arms in the service of the State or the United States, but was required to take a course similar in all material aspects to that now prescribed. The question is, as it was in the case cited, simply whether the policy of the University must yield to the views of the petitioners that the prescribed course is at variance with their personal and pacifist beliefs.  The test of eligibility to attend the University is not directed at these petitioners.  They are asserting a right to attend the University without compliance with a general condition which they are unwilling to meet, because of religious convictions personal to them.  We think the Regulations adopted by the Board of Regents are well within any limitations imposed by the Constitution and laws of this State.
The appellants invoke the protection of the First and Fourteenth Amendments of the Federal Constitution.  We entertain no doubt that the University of Maryland is a branch or agency of the State [***13]  government.  University v. Murray, 169 Md. 478, 483. If its exclusionary policy towards persons who are otherwise qualified, but who refuse to take the prescribed basic course, is a violation of rights guaranteed by the Federal Constitution, then the policy of the State must yield.  But we are not persuaded that such rights exist.  The case of University v. Coale, supra, was appealed to the Supreme  [*220]  Court of the United States, but the appeal was dismissed for want of a substantial federal question.  290 U.S. 597. In Hamilton v. University of California, 293 U.S. 245, it was held by a unanimous court that a conscientious objector was properly excluded from the State University because of his refusal to take the required course in the R. O. T. C. Mr. Justice Butler, for the court, said (p. 262): "Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no more than an assertion that the due process clause of the Fourteenth Amendment as a safeguard of 'liberty' confers the right to be students in the state university free from obligation to take military training as one of the conditions of attendance.  Viewed in the light of our [***14]  decisions that proposition must at once be put aside as untenable." Mr. Justice Cardozo, concurring "to say an extra word", and joined by Justices Brandeis and Stone, said (p. 266): "The First Amendment, if it be read into the Fourteenth, makes invalid any state law 'respecting an establishment of religion or prohibiting the free exercise thereof'.  Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a state religion when it insists upon such training. Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of peace and war.  *** Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of.  The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral.  The [***15]  right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government.  One who is a martyr to a principle -- which may turn out  [**907]  in the end to be a delusion or an error -- does not prove by his martyrdom that he has kept within the law."
The appellants contend that the authority of the Hamilton  [*221]  case has been undermined by the overruling of the cases of U. S. v. Macintosh, 283 U.S. 605, U. S. v. Bland, 283 U.S. 636, and U. S. v. Schwimmer, 279 U.S. 644, by the later case of Girouard v. U. S., 328 U.S. 61. These cases all dealt with naturalization, and turned upon a question of the construction of Acts of Congress.  Mr. Justice Douglas, for the court, in the Girouard case, said (p. 63): "The Schwimmer, Macintosh and Bland cases involved, as does the present one, a question of statutory construction." The constitutional power of Congress to withhold citizenship upon condition that the applicant swear to bear arms was assumed.  There was no intimation in either the majority or dissenting opinion that the Hamilton case was overruled.
The appellants also rely upon the case of [***16]  W. Va. State Board of Education v. Barnette, 319 U.S. 624, overruling Minersville School District v. Gobitis, 310 U.S. 586, and holding unconstitutional a state act requiring a flag salute.  But the Hamilton case was not overruled.  In fact, it was cited and distinguished in the majority opinion by Mr. Justice Jackson, on the grounds that attendance in the Hamilton case was not compulsory, and because the State "has power to raise militia and impose the duties of service therein upon its citizens." There were also intimations that the requirement had no substantial or apparent relation to the public welfare, and that the flag salute was a form of utterance compelling the students to declare a belief.  Mr. Justice Frankfurter in his dissent, conceded that the Hamilton case was not overruled, but found it impossible to distinguish it, at least upon the first ground assigned.  We need not speculate as to where the line may ultimately be drawn or redrawn.  Unless and until the Hamilton case is overruled, we think it is controlling, so far as the interpretation of the Federal Constitution is concerned, in its application to the facts of the instant case.
The appellants [***17]  further contend that since they have completed their obligation to serve under the Universal Military Training and Service Act, by performance of "civilian work contributing to the maintenance of the national health, safety, or interest", it is a violation of their "privileges and immunities",  [*222]  under the Fourteenth Amendment to require them to take the AFROTC basic course.  But we think the answer is that the Act of Congress according the exemption was a matter of grace, not conferring any federal right that would preclude this State from refusing to accord an equivalent exemption to students applying for admission to the State University. Cf. In re Summers, 325 U.S. 561, 572. If we assume, without deciding, that Congress has any Constitutional power to supersede the State policy in the training of its youth, it is sufficient to say that Congress has not yet attempted to do so.  Nor do we think that the requirement is discriminatory, or denies the equal protection of the laws to these appellants.  The appellants have not taken the prescribed course elsewhere, and the Regulations of the University require all persons in their age group to take the course if they have [***18]  not taken it elsewhere.  Brown v. Board of Education, 347 U.S. 483, relied on by the appellants, turned upon a question of racial discrimination.  Fowler v. Rhode Island, 345 U.S. 67, and cases therein cited, turned upon an issue of freedom of speech.  We think these cases are readily distinguishable and not in point.
Judgments affirmed, with costs.  

14 of 37 DOCUMENTS 

WAGNER et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE 

No. 195, October Term, 1955 

Court of Appeals of Maryland 

210 Md. 615; 124 A.2d 815; 1956 Md. LEXIS 493 

July 30, 1956, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Anne Arundel County; Macgill, J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Real Property -- Patent for Land Described as Island -- Island Held Covered by Water at Time Patent Issued within Meaning of Applicable Statute.  In this case to determine the validity of a patent for land described as an island in the Patapsco River in Anne Arundel County, this Court held that the evidence warranted the Chancellor's finding that the island was covered by water in 1909 (when the patent was issued) within the meaning of an 1862 Act providing that "*** no patent shall hereafter issue for land covered by navigable waters".  Acts of 1862, ch. 129; Code (1951), Art. 54, sec. 48.  The Court pointed out that a 1914 plan in profile prepared by the State Roads Commission and showing none of the island as being above mean low water was alone almost conclusive evidence, because the testimony made it clear that the island was gradually building up over a number of years, so that evidence that it was under water later than 1909 was both relevant and persuasive as to its underwater condition in 1909; that a U. S. Coast and Geodetic Survey chart corrected to [***2]  1904 indicated that the island was then below mean low water; that a State Roads Commission engineer (with thorough and exact knowledge) testified that from 1912 to 1915 the island was below water, not only at high tide, but at normal low tide; and that there was testimony by persons living in the neighborhood that the island was covered by water in 1908 and 1909 (although there was testimony to the contrary and a surveyor stated on his certificate prepared in 1908 that the land was not covered by navigable water).
Navigable Waters -- Patent for Land Described as Island -- Waters of River Held Navigable at Point Where Island Was Forming at Time Patent Was Issued, within Meaning of Applicable Statute.  Where a suit was brought to determine the validity of a patent for land described as an island in the Patapsco River in Anne Arundel County, this Court held that the waters of the River at the point where the island was forming were "navigable waters" in 1909 (when the patent was issued) within the meaning of an 1862 Act providing that "*** no patent shall hereafter issue for land covered by navigable waters".  Acts of 1862, ch. 129; Code (1951), Art. 54, sec. 48.  The Court [***3]  found it unnecessary to decide whether the ancient Maryland test of navigability, i. e., whether the waters are subject to the ebb and flow of the tide (as the Patapsco River unquestionably is), should be abandoned for the more generally prevailing test of factual navigability. In 1908 and 1909 the River at and above the point where the island was formed was navigable and navigated by small craft, and there was considerable testimony that such craft navigated over the island then and later.  Since the island was found to be submerged at mean low water, it made no difference whether the water then over the island was one inch deep or several feet deep.  Where a stretch of river is navigable lengthwise, all of the waters between the opposite shores are comprehended within the term "navigable waters" as used in the 1862 Act.  The testimony showed that there was a main channel in the River to the north of the island and a lesser channel between the island and the southern shore. The Act contemplated that parts of such "navigable waters" would be, or become, shallow and eventually recede entirely from alluvion which might build up and become connected with the shore.
Navigable Waters [***4]  -- Carrying Large Vessels.  A stream need not be capable of carrying large vessels to be navigable in fact.  

SYLLABUS:

Suit by the Mayor and City Council of Baltimore against John P. Bruns and Harry M. Wagner to have a patent issued in 1909 to Mr. Bruns for land described as an island in the Patapsco River in Anne Arundel County ("Reed Bird Island") declared null and void, and to have a deed whereby Mr. Bruns and others claiming an equitable interest in the island conveyed it in 1910 to Mr. Wagner also set aside.  H. Milton Wagner, Jr., and others, the successors in interest of Mr. Wagner, were substituted as parties defendant for him and Mr. Bruns.  From a decree setting aside the patent, and declaring it null and void, defendants appeal.  

COUNSEL:
William L. Marbury and Frank T. Gray, with whom were Piper & Marbury on the brief, for the appellants.
John R. Cicero, Assistant City Solicitor of Baltimore, with whom were Thomas N. Biddison, City Solicitor, Edwin Harlan, Deputy City Solicitor, and Lloyd G. McAllister, Assistant City Solicitor, on the brief, for the appellee.  

JUDGES:
Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ.  Brune, C. J., delivered [***5]  the opinion of the Court.  

OPINIONBY:
BRUNE 

OPINION:

 [*617]   [**816]  This is a controversy between the City of Baltimore (the "City") and the successors in interest of the late Harry M. Wagner over the validity of a patent for land described as an island in the Patapsco River in Anne Arundel County.  This patent was issued on September 10th, 1909, to one John P. Bruns.  He and others, who claimed an equitable interest in the island, joined in a deed dated September 23rd, 1910, by which they conveyed the island known as "Reed Bird Island" to Wagner.  The present suit was instituted by the City to have the patent issued to Bruns and the deed to Wagner set  [*618]  aside and declared null and void.  The original bill of complaint was filed on March 28, 1916, the amended bill on May 9th, the answer on June 13th and a replication on September 2nd, 1916.  Thereafter, except for the withdrawal in 1933 of certain exhibits which were subsequently refiled, the case lay dormant until May 28th, 1954.  After a substitution of parties defendant the case proceeded and was tried in the Circuit Court for Anne Arundel County and resulted in a decree setting aside the patent and declaring it null and [***6]  void.  The successors in interest of Harry M. Wagner (who may be referred to collectively as the "Wagners") appeal from that decree.
Reed Bird Island lies at about the point where the Patapsco River flows into the harbor of Baltimore, but much of the harbor east and southeast of that point is still known as the Patapsco River and it continues to be so designated until it flows into Chesapeake Bay some miles away.  The Bay, the harbor and the river for some distance above Reed Bird Island are all within the ebb and flow of the tide. The City claims to be the owner of riparian rights pertaining to land bounding on the south side of the Patapsco River in front of which Reed Bird Island grew up as a result of the deposit of mud and silt.  The principal question in the case is whether Reed Bird Island was or was not covered by navigable water when the patent for it was issued to Bruns in 1909.
The south shore of the Patapsco River in front of which Reed Bird Island developed has been the southern terminus of  [**817]  a highway bridge or bridges across the Patapsco for nearly a century.  In 1856 an Act of the Legislature authorized one Richard Owens Crisp to build a bridge from Ferry [***7]  Point on the north to some point on the southern shore, which was then a part of Anne Arundel County.  Crisp and one Richard Cromwell, Jr., purchased a bridgehead site near where Reed Bird Island now is (though, at least partly as a result of a fill, it is no longer an island).  The projected bridge was built and was known as the Light Street Bridge or Long Bridge. In 1878 another Act of the Legislature authorized the City and Anne Arundel County to purchase the bridge, and in 1880 they did so.
 [*619]  On September 15, 1908, a survey of Reed Bird Island was made by the then County Surveyor of Anne Arundel County on a warrant issued from the State Land Office.  His survey stated that the land was not covered by navigable water. On September 10, 1909, the patent now in question was issued out of that Office to Bruns.  The Light Street Bridge was shown on this survey as crossing Reed Bird Island.
In 1914 the Legislature authorized the State Roads Commission to construct what is now known as the Hanover Street Bridge to replace the Old Light Street Bridge. Actual construction began about 1915, but a plan in profile of the proposed bridge was approved by the Chief Engineer of the [***8]  Commission on August 25, 1914.  It was based upon data gathered during a period of a year and a half to two years prior to that date and was prepared under the direction of Mr. John N. Mackall, then Engineering Surveyor for the Commission.  The Hanover Street Bridge followed a new route.  One section crossed the Middle Branch of the harbor to a point which was then in Baltimore County, another crossed the main channel of the Patapsco to a causeway across and about six feet above Reed Bird Island and a third and last span crossed from Reed Bird Island to the Anne Arundel County shore at Brooklyn.  Wagner conveyed to the State Roads Commission for one dollar a right of way across Reed Bird Island, reserving to himself certain rights of access.  The profile dated August 25, 1914, shows no part of Reed Bird Island as being above mean low water.
In 1917, after the completion of the Hanover Street Bridges, the Old Light Street or Long Bridge was removed.
Under the Annexation Act of 1918 (Chapter 82) the limits of the City of Baltimore were extended and the whole of the Hanover Street Bridges, and the connecting link which had formerly been in Baltimore County, the area which had formerly [***9]  been occupied by the Old Light Street Bridge, and the southern bridgehead of both the old and the new bridges were included within the City.  Also under this Act, the City acquired title to all highways and bridges in the newly annexed area.
In 1924 the City conveyed to a third party a part of the  [*620]  land which it and Anne Arundel County had acquired from Crisp and Cromwell in 1880, but reserved to itself all riparian rights in and to the Patapsco River pertaining to this property.  In 1926 the City acquired additional land in the area bounding on the river and the riparian rights pertaining thereto.
In December, 1940, the then successors to Harry M. Wagner's title to Reed Bird Island executed a deed to the City of a part of the island lying in the bed of what was then known as "Race Street".  The deed was executed after the Commissioners for Opening Streets awarded damages for the strip in question to the City and the grantors had appealed.  The appeal was dismissed and the deed was executed in consideration for the City's agreement to go forward with this suit.
In October, 1951, the City opened an extension of Potee Street (formerly Race Street) across Reed Bird Island.  [***10]  No consideration was paid therefor and apparently no agreement was made with regard thereto.  The City and the Wagners have filed a stipulation in this case, one paragraph  [**818]  of which reads as follows: "No advantage is to be taken by either party by reason of the delay in prosecuting or defending this suit."
One other fact which it seems appropriate to mention at this point is that in 1900 the Baltimore & Ohio Railroad Company was granted permission by the Corps of Engineers of the U. S. Army to fill in under the bridge of the Railroad's Curtis Bay Branch across the Patapsco, provided that it left a 600 foot opening northwest of Billiken Island. This fill was made in 1900 and it seems to have contributed to the silting up of the river below that point and the building up of both Billiken and Reed Bird Islands.
Billiken Island lay upstream -- i. e., to the southwest of Reed Bird Island. It became in part joined to the shore at some time prior to 1920 and was the subject of litigation in Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, in which a patent for this island issued in 1916 was held invalid.
The statute which is controlling as to the principal controversy [***11]  in the present case is Chapter 129 of the Acts of 1862,  [*621]  the three sections thereby enacted now being codified as Sections 45, 46 and 48 of Article 54 of the Code (1951).  (The only amendment to any of these sections was made by Chapter 47 of the Acts of 1955 to correct an error in the numbers of the two earlier sections referred to in Section 48, which apparently occurred as the result of the insertion of what is now Section 47.) This statute has been before this Court in a number of cases.  In the present case a great deal of argument has been directed to the meaning of "navigable waters" -- whether the term should be construed as including all waters subject to the ebb and flow of the tide or only such waters as are navigable in fact.  For reasons which we shall state below, we do not consider this particular question as necessarily determinative of the case.
The statute itself, as originally enacted (Acts of 1862, Chapter 129) reads as follows, the numbers of the Sections in the 1951 Code being inserted in brackets after the numbers of the corresponding Sections of the Code of 1860, to which these Sections were added:
"Whereas, Doubts are entertained in regard to [***12]  the extent of the rights of proprietors of land bounding on navigable waters, to accretions to said land, and to extend improvements into said waters; for the purpose of solving such doubts, therefore,
"Section 1. Be it enacted by the General Assembly of Maryland, That article fifty-four of the Code of Public General Laws, be amended by adding thereto the following sections, to wit:
"'Thirty-seven [45].' The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable.
"'Thirty-eight [46].' The proprietor of land bounding  [*622]  on any of the navigable waters of this State, is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which they are attached, as incident to their respective [***13]  estates.  But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.
"'Thirty-nine [48].' No patent hereafter issued out of the Land Office shall impair or affect the rights of riparian proprietors, as explained and declared in the two sections next preceding this section, and no patent shall  [**819]  hereafter issue for land covered by navigable waters."
Prior to the Act of 1862 it had been held that the Lord Proprietary became vested under the Charter of Maryland with title to the soil under navigable waters, that he could convey title thereto and that the State succeeded to these rights.  Browne v. Kennedy, 5 Harris & J. 195. Since then this doctrine has been repeatedly recognized or reaffirmed, as in Day v. Day, 22 Md. 530; Hess v. Muir, 65 Md. 586, 5 A. 540, 6 A. 673; Goodsell v. Lawson, 42 Md. 348; Sollers v. Sollers, 77 Md. 148, 26 A. 188; Cahill v. Baltimore, 173 Md. 450, 196 A. 305. As was pointed out by Judge Markell in Mayor & City Council of Baltimore v. Canton Co., 186 Md. 618, 630-631, 47 A. 2d 775, 781, "For over 200 years, until 1862, the State (and [***14]  the proprietor or the colony) patented to individuals, subject to the public rights of navigation and fishery, fee-simple title to land under water."
Since the passage of Chapter 129 of the Acts of 1862 that can no longer be done, as the case just cited indicates and has been held in other cases, including Day v. Day, supra; Sollers v. Sollers, supra; and Linthicum v. Shipley, 140 Md. 96, 116 A. 871.
The first question to be determined is whether or not Reed Bird Island was covered by navigable waters at the time when  [*623]  the patent for it was granted, September 10, 1909.  We think that the testimony was ample to support the Chancellor's conclusion that it was then covered by water. We shall consider later whether it was navigable or not.  The State Roads Commission's plan in profile of the Hanover Street Bridge above referred to is alone almost conclusive since the testimony makes it clear that the island was gradually building up over a number of years, so that evidence to the effect that it was under water later than 1909 seems both relevant and persuasive as to its underwater condition in 1909.  In addition, there is a U. S. Coast and Geodetic Survey chart corrected [***15]  to November, 1904, which indicates that Reed Bird Island was then below mean low water. There is also testimony from several persons who lived in the neighborhood that it was covered by water in 1908 and 1909, though there was also some testimony to the contrary on behalf of the appellants as well as the surveyor's statement.
With the fact in mind that the island built up over a period of years, the testimony of Mr. Mackall is highly significant.  He was actually engaged as an engineer for the State Roads Commission in the construction of the Hanover Street Bridge across Reed Bird Island, and he had been familiar with the locality for about two years prior to the actual construction work.  His knowledge of the area was necessarily thorough and exact and extended over the years from 1912 to 1915.  His testimony showed that during that period boats of the State Roads Commission passed over Reed Bird Island, that the island was below water not only at high tide, but at normal low tide.
There is the statement on the surveyor's certificate that the land was not covered by navigable water. Whether that statement may have been due to his own idea of what constituted "navigable water"  [***16]  we cannot tell.  It is possible that at the time he made his survey he thought that no craft could traverse Reed Bird Island or that no craft of sufficient size to be significant could navigate over it.  Whatever may have been the basis for the surveyor's conclusion, we think that the evidence in this case is sufficient to sustain the Chancellor's finding that the "island" was covered by water in September, 1909.  We  [*624]  shall now turn to the question whether the water was navigable water within the meaning of the pertinent statute.
If we start, as we think we should, with the premise that Reed Bird Island in 1909 was covered by water, and if we follow  [**820]  the rule as stated in a number of Maryland decisions that the test of navigability is whether or not the waters are subject to the ebb and flow of the tide, there is an end to the case, for it is unquestioned that the Patapsco River is, and in 1909, was subject to the ebb and flow of the tide. See the following cases which state the rule of navigability in terms of whether or not the waters in question are tidal: Browne v. Kennedy, supra; Chapman v. Hoskins, 2 Md. Ch. 485; Day v. Day, 22 Md. 530; Hess  [***17]   v. Muir, Sollers v. Sollers, Linthicum v. Shipley (all three cited above); and Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A. 2d 757. See also a note to Gray v. Gray, 178 Md. 566, 16 A. 2d 166, in V Maryland Law Review, 314.  In some cases, such as Clark v. Todd, 192 Md. 487, 64 A. 2d 547, the general rule of public ownership of the soil under tidal waters up to the high water mark is stated; and this rule seems to be correlative with and complementary to the rule that such waters are navigable.
The appellants, however, earnestly insist that the rule that navigability exists if the waters are tidal is based upon a misinterpretation of the English law made by Chancellor Kent in Palmer v. Mulligan (Cai. 307) which was erroneously accepted by others, including the Court of Appeals of Maryland, in some cases.  The appellants further urge that the tidal test has been departed from in some cases, particularly Havre de Grace v. Harlow, 129 Md. 265, 98 A. 852, Gray v. Gray, supra, and Linthicum v. Shipley, supra. The latter case, we think, lends no real support to the appellants.  It held that the patent there involved was invalid whether the waters [***18]  were navigable or nonnavigable, and did not determine whether they were or were not navigable.
Havre de Grace v. Harlow, supra, involved the question whether or not the Susquehanna River between tidewater and the Pennsylvania line was navigable. The Court cited the then Federal rule stated in The Daniel Ball, 10 Wall. 557, which recognizes that the test of navigability is navigability in fact  [*625]  in the natural state of the river. It was held that the Susquehanna above tidewater did not meet this test.  (The rule now recognized by the Supreme Court goes beyond the former rule in that waters which, though not navigable in fact in their natural state, may be made navigable in fact without undue cost, are navigable waters. U. S. v. Appalachian Power Co., 311 U.S. 377.) Havre de Grace v. Harlow did not undertake in terms to overrule earlier cases such as Browne v. Kennedy and Day v. Day, which it did not even refer to.
Gray v. Gray, and Tyler v. Cedar Island Club, 143 Md. 214, 122 A. 38, which is cited and relied on in the Gray Case, dealt with patents which covered waters which were both tidal and navigable in fact, and which patents also [***19]  covered marshland.  In each instance the patent was held or regarded as invalid as to the bed of the navigable streams and valid as to marshland.  The Gray Case did undoubtedly discuss navigability in fact, but it can hardly be said to have overruled Sollers v. Sollers or Linthicum v. Shipley (both supra), since it took pains to distinguish them on the ground that in both of those cases "the area for which patents were applied for was entirely submerged, and that over it the tide ebbed and flowed; while, in the [Gray Case], a large area of land, through a part of which a tide water stream flows, is embraced in the certificate of survey returned to the Land Commissioner."
In the present case, as in many others, it makes no difference in result, we think, whether the tidal or factual test of navigability is adopted.  We therefore find it unnecessary to decide whether our ancient rule, which differs from that generally prevailing in this country should be abandoned.
The testimony is clear that in 1908 and 1909 the Patapsco River at and above the point where Reed Bird Island  [**821]  was formed was navigable and was navigated by small craft. There was, indeed,  [***20]  considerable testimony that such craft navigated over Reed Bird Island both then and later.  In view of the finding that Reed Bird Island was submerged at mean low water, it makes no difference, in our view, in the applicability of Section 48 of Article 54 of the Code (1951)  [*626]  whether the water then over the island was one inch deep or several feet deep.  Hess v. Muir, supra. Where a stretch of river is navigable lengthwise, we think that all of the waters between the opposite shores or banks are comprehended within the term "navigable waters" as used in Chapter 129 of the Acts of 1862.  The testimony showed that there was a main channel in the river to the north of Reed Bird Island and another and lesser channel between that island and the southern shore of the river. The clause of Section 48 of Article 54 which prohibits the grant of a patent impairing the riparian rights of owners of land abutting upon navigable waters, as set forth in Sections 45 and 46, was held applicable to Billiken Island, which almost adjoins Reed Bird Island on the upstream side.  Melvin v. Schlessinger, supra. We think that the waters covering Reed Bird Island were equally within the meaning [***21]  of the term "navigable waters" under a different clause of the same section of the same Act.  The Act clearly contemplated that parts of such waters would be or become shallow and would eventually recede entirely from alluvion which might build up and become connected with the shore. Prior to the Act of 1862 the rights of the abutting landowners depended upon whether the land was built up by growth outward from the shore or by extension inward from an island formed in the water. Linthicum v. Coan, 64 Md. 439, 2 A. 826. Under the statute, it makes no difference.  Melvin v. Schlessinger, supra.
It is not necessary to a stream's being navigable in fact that it be capable of carrying large vessels.  Gray v. Gray; Toy v. Atlantic Gulf & Pacific Co.; U. S. v. Appalachian Power Co., all above cited.  In the Toy Case, this Court said: "To the extent of its public use in the transportation by boat of person and property, the channel of Back Creek was a highway by water, although it was not actually adapted for passage by any but small craft, such as row boats and small launches, but to that extent it continued to serve a limited public purpose while its waters in the canal [***22]  bore the vessels engaged in general commerce and transportation." (176 Md. at 206, 4 A. 2d 762). Similarly, in the Appalachian Power Co. Case, the Supreme Court (at 311 U.S. 416) said: "Nor  [*627]  is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation."
In view of our holding that the waters of the Patapsco River at the point where Reed Bird Island was forming in September, 1909, were navigable waters within the meaning of Section 48 of Article 54 of the Code (1951), and our holding that the evidence warranted the Chancellor's finding that such waters then covered the island, it is unnecessary to decide whether or not a patent for an island forming immediately off the shore of someone other than the patentee should have been granted, under Chapter 129 of the Acts of 1862 and such cases as Chapman v. Hoskins, 2 Md. Ch. 485, Patterson v. Gelston, 23 Md. 432, and Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, or to decide any of the other questions raised such as various alleged defects in the survey and patent; all of which [***23]  questions, as well as that upon which we base our decision, were thoroughly and ably presented on both sides.
Decree affirmed, with costs.  

15 of 37 DOCUMENTS 

BOARD OF REGENTS OF THE UNIVERSITY OF MARYLAND v. TRUSTEES OF THE ENDOWMENT FUND OF THE UNIVERSITY OF MARYLAND et al.  

No. 111, October Term, 1954 

Court of Appeals of Maryland 

206 Md. 559; 112 A.2d 678; 1955 Md. LEXIS 218 

March 24, 1955, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Petition for Certiorari Filed in Supreme Court of United States, July 6, 1955.  

PRIOR HISTORY:
Appeal from the Circuit Court No. 2 of Baltimore City; Moser, J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Constitutional Law -- Acts of 1952, Ch. 5, Is Unconstitutional -- Power Of State To Amend Corporate Charters -- Limitation Upon, Violated -- Due Process And Taking Property Without Compensation Provisions, Violated.  Acts of 1952, Chapter 5, which undertook to amend the charter of the corporation operating under the name of "The Trustees of the Endowment Fund of the University of Maryland" to provide that thereafter its members should be the Regents of the University of Maryland and that "all the rights, powers, duties, obligations and functions" of its members should be conferred upon the Regents, is unconstitutional, being violative of the constitutional principle, which has the status of a vested right, that a State under its reserved power to amend the charter of a corporation, cannot make an alteration therein that defeats or fundamentally changes the corporate purpose, and of the due process clauses of the Fourteenth Amendment and Article 23 of the Maryland Declaration of Rights,  [***2]  and of Section 40 of Article 3 of the Maryland Constitution prohibiting the taking of private property for public use without just compensation.  Such a change in the administration of the Endowment Fund would be fundamental.  The corporation is a private, non-stock corporation of a charitable nature, composed of nine members with perpetual succession who are self-perpetuating, the power of management being lodged in an executive committee of four members.  It has power to receive, etc., property as an endowment fund for the University and apply the income therefrom in its discretion to the University's benefit and to accept property in trust for the University and administer it according to the purpose of the trust.  The University has the status of a State agency and the Regents are appointed by the Governor.  They have the powers of management over the affairs of the University.  

SYLLABUS:

Bill for a decree declaring Acts of 1952, Chapter 5, unconstitutional and for an injunction by the Trustees of the Endowment Fund of the University of Maryland against the Board of Regents of the University of Maryland.  From a decree declaring the Act unconstitutional and granting the injunction,  [***3]  defendants appealed.  

COUNSEL:
David Kauffman, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and Harrison L. Winter, Deputy Attorney General, on the brief for appellants.
David C. Green and H. Vernon Eney, with whom were Venable, Baetjer & Howard and Carlyle Barton, on the brief, for appellees.  

JUDGES:
Brune, C. J., and Delaplaine, Collins, and Henderson, JJ.  Henderson, J., delivered the opinion of the Court.  

OPINIONBY:
HENDERSON 

OPINION:

 [*561]   [**679]  The question presented on this appeal, from a final decree entered after the Chancellor had overruled a demurrer to a bill of complaint and the appellants declined to answer, is the constitutional validity of Chapter 5 of the Acts of 1952.  This Act undertook to amend the Charter of the corporation operating under the name of "The Trustees of the Endowment Fund of the University of Maryland" to provide that  [**680]  thereafter its members should be the Regents of the University of Maryland and that "all the rights, powers, duties, obligations, and functions" of its members should be conferred upon the Regents.  By its decree, the court below held that the Act is unconstitutional [***4]  and enjoined the Board of Regents "from interfering with, taking possession of or attempting to exercise any control over the funds, property and assets" of the corporation, and also enjoined the Maryland Trust Company, the agent and custodian of the securities and funds of the corporation, from delivering the same to the Regents.  Since the Maryland Trust Company is in the nature of a stakeholder we shall hereinafter refer to the corporation whose charter was amended as "the appellee".
The appellee contends that the Act violates: (1) Article I, Section 10 of the Federal Constitution prohibiting the impairment by a state of the obligation of contracts, (2) the Fourteenth Amendment to the Federal Constitution and its State equivalent, Article 23 of the Maryland Declaration of Rights, regarding due process, (3) the Fourteenth Amendment regarding equal protection of the laws, and (4) Article III, Section 40 of the Maryland Constitution prohibiting the taking of private property for public use without just compensation.  It also contends (5) that the Act violates Article III, Section 29 of the Maryland Constitution regarding defective title, and (6) Article III, Section 33 regarding special [***5]  laws.  Before discussing any of these points it is necessary to state the corporate and legislative history in some detail.
 [*562]  The appellee was originally incorporated on June 29, 1893, under the name of "The Trustees of the Endowment Fund of the Faculty of Physic of the University of Maryland of Baltimore City", pursuant to the General Corporation Laws of Maryland.  Since then the charter has been amended three times: by Chapter 529, Acts of 1904; by Chapter 435, Acts of 1929; and by Articles of Amendment filed with the State Tax Commission of Maryland on April 9, 1946, pursuant to the General Corporation Laws of Maryland.
At the time the corporation was formed the University of Maryland consisted only of the professional schools in Baltimore City, the part of the University now located at College Park being then known as the Maryland Agricultural College.  For the early history of the University see The Regents of the University of Maryland v. Williams, 9 G. & J. 365 (1838). A principal school of the University of Maryland in 1893 was the Medical School.  The original charter of the appellee recited that it was formed by the nine incorporators as "*** a corporation [***6]  for educational purposes in connection with and in aid of the School of Medicine *** and for the specific object of receiving, investing and controlling an endowment fund for said School of Medicine and applying the income thereof in the discretion of said Trustees to the exclusive benefit of said School".  Management was lodged in an executive committee of four of the trustees.  Its corporate existence was limited to a period of 40 years.
By Chapter 529, Acts of 1904, the charter was amended so as to change the name to its present form, to correspondingly enlarge its purposes, and to give the corporation perpetual succession. It was provided in Section 2 that the nine persons who were then the members "shall severally continue as such until their membership be terminated by death, resignation or removal." In the event of a vacancy, the remaining members were authorized to fill the vacancy from alumni of the University of Maryland, the membership at all times to consist of  [*563]  five graduates of the School of Medicine and four graduates of the School of Law.  These eligibility requirements were eliminated by Chapter 435, Acts of 1929.  Section 4, Chapter 529, Acts of 1904,  [***7]  provided for an executive committee of four to be elected by the members annually from among their own number, who were empowered to manage the affairs of the corporation and to elect a president and secretary and treasurer.  It was directed to report annually to the General Alumni Association  [**681]  of the University.  The Act also specifically provided that the Act should take effect only after the provisions thereof had been accepted by resolution of the corporation.  It was so accepted, as was the amendment of 1929.
At a meeting of the members of the corporation held on March 12, 1946, Articles of Amendment were adopted which struck out all sections of the charter and inserted four new sections.  These articles were duly filed with the State Tax Commission under the general law.  Except for the persons who were named as the then members, the four sections were virtually identical with the provisions of the charter as amended by the Acts of 1904 and 1929, but a requirement that all investments be registered in the name of the trustees was eliminated.
Accordingly, the corporation may be described as a non-stock corporation of a charitable nature, composed of nine members with [***8]  perpetual succession who are self-perpetuating, the power of management being lodged in an executive committee of four members.  Among the powers set out in Section 3 are: "to receive, hold, invest and control any money, funds or other property *** as an endowment fund or funds for said University of Maryland, and either any or all of its several separate faculties and departments, and to apply the income of such fund or funds in its discretion to the benefit of said University and the several faculties and departments thereof to whichever such fund or funds may respectively appertain." It is also empowered to accept "money, funds or other property in trust for said University and  [*564]  any or all of its several faculties and departments, and the same to administer according to the declared purpose of such trusts".
At the 1951 session of the General Assembly there was introduced and passed House Bill No. 701, reading as follows:
"AN ACT to repeal Section 2 of Chapter 435 of the Acts of 1929, said Act amending the Charter of the Trustees of the Endowment Fund of the University of Maryland, and to enact in lieu thereof a new section, said section to be known as Section 2 [***9]  and relating to the membership of the Corporation known as 'The Trustees of the Endowment Fund of the University of Maryland'.
"Section 1. Be it enacted by the General Assembly of Maryland, That Section 2, Chapter 435 of the Acts of 1929, be and it is hereby repealed.
"Sec. 2. And be it further enacted, That a new section to be known as Section 2, said section to be in lieu of Section 2 of Chapter 435 of the Acts of 1929 and in lieu of Section 2 of Chapter 529 of the Acts of 1904, be and the same is hereby enacted to read as follows:
"2. The said corporation shall have perpetual succession and its members shall be the Regents of the University of Maryland, constituted and organized at present, and such other or additional members of the said Regents of the University of Maryland as may, from time to time, be appointed as authorized by law; and all the rights, powers, duties, obligations, and functions now conferred by any and every provision of law or by the Charter of 'The Trustees of the Endowment Fund of the University of Maryland' shall be conferred upon the Regents of the University of Maryland, it being the intention of this Act that said Regents shall,  [*565]  from the [***10]  date of passage hereof, be considered for all purposes as the sole members of the Corporation found [sic] under Articles of Incorporation dated the 29th day of June, 1893, and recorded among the Charter Records of Baltimore City in Liber J. B. No. 31 at folio 167, as said charter has been amended from time to time.
"Sec. 3. And be it further enacted, That this Act shall take effect June 1, 1951."
H. B. 701 having been presented to the Governor, he returned it to the House without his approval on May 7, 1951, noting that  [**682]  the corporation was chartered under the General Corporation Laws and did not derive its existence from legislative act, that the bill would "defeat the purposes" for which the trusts had been created and "frustrate the purpose of the donors", and that its constitutionality appeared to be "extremely questionable".  Acts of 1951, pp. 2143, 2144.  Nevertheless, the bill was passed over his veto, and became effective June 1, 1952, as Chapter 5, Acts of 1952.  It has never been accepted or acted upon by the corporation.
The endowment funds now held by the Trustees amount to about $ 2,000,000, and the annual income to about $ 38,000.  There are some 42 [***11]  separate funds, some of which are restricted.  In soliciting contribution to the Endownment Fund, emphasis had always been placed on the permanence of the Endowment Fund, the fact that only interest would be expended, and that the Fund would always be managed and controlled by a separate corporation completely independent of the governing body of the University.
The University of Maryland, as now constituted, was formed in 1920 by merger of the old University and the Maryland State College of Agriculture.  Chapter 480, Acts of 1920.  The Regents were vested with the powers of management, and the Act of 1920 was duly approved by the governing boards of the merging institutions.  By Chapter 925, Acts of 1941, the number of Regents  [*566]  was increased from 9 to 11.  The corporation has the status of a State agency.  University of Maryland v. Maas, 173 Md. 554; University v. Murray, 169 Md. 478. All of the Regents are appointed, from time to time, by the Governor.
The contention that the transfer, of the entire power of management and control of the appellee corporation and its funds from the Executive Committee selected by its members to the Board of Regents of the University,  [***12]  is an impairment of the obligation of contract, is met at the outset by the contention that the alteration of the charter is within the power reserved to the Legislature.  Following the decision of the Dartmouth College case, 4 Wheat. (U.S.) 518 (1819), that the corporate charter of an educational institution was a contract which the State was forbidden to change by legislative enactment, a reservation of the power to alter or repeal charters thereafter granted was written into the constitutions of many states.  It was written into our Constitution of 1851 and restated in our Constitution of 1867 in these words: "*** all charters granted or adopted in pursuance of this section, and all charters heretofore granted and created subject to repeal or modification, may be altered from time to time, or be repealed; * * *." Article III, Section 48.  In the General Corporation Law of 1868 (Chapter 471, Acts of 1868) it was provided in Section 77 that every corporate charter, when granted, should be subject to "all provisions and regulations which may hereafter, by any change in or amendment of the laws of this State, be made applicable to such corporation." In Code (1951), Art. 23, Sec.  [***13]  1(g), it is provided that "The charter of every corporation formed prior to June 1, 1951, which is subject to repeal or modification and the charter of every corporation formed under the provisions of this Article shall be subject to repeal or modification by public general law of the General Assembly."
Passing the question as to whether the reserved power can be validly exercised by a special act under  [*567]  the circumstances of the instant case, the question arises whether the contract clause of the Federal Constitution can ever be invoked in the case of a corporation formed subject to the reserved power of alteration or repeal. The appellant contends that the reserved power is one of the terms of the contract, and any objections to its exercise must be sought in other provisions of the basic law.  In what appears to be the latest expression of the United States Supreme Court on the subject, Phillips Petroleum Co. v. Jenkins, 297 U.S. 629, 634, it was said: "The reservation of power to amend is a part of the contract between the State and the  [**683]  corporation and therefore §  10 of Art. I of the Federal Constitution does not apply." Cf. Noble State Bank v. Haskell [***14]  , 219 U.S. 104, 109. But continuing, the court said: "The reserved power is not unlimited and cannot be exerted to defeat the purpose for which the corporate powers were granted, or to take property without compensation, or arbitrarily to make alterations that are inconsistent with the scope and object of the charter or to destroy or impair any vested property right." Many other cases state the proposition that the reserved power cannot be exercised so as to defeat or substantially impair the fundamental purpose for which a corporation is formed.  Holyoke Co. v. Lyman, 15 Wall. (U.S.) 500, 522; Shields v. Ohio, 95 U.S. 319, 324; Fair Haven R. R. Co. v. New Haven, 203 U.S. 379, 388; Breslav v. N. Y. & Queens Elec. Light & Power Co., 249 App. Div. 181, 185, aff. without opinion, 273 N. Y. 593; Sprigg v. Western Tel. Co., 46 Md. 67, 78. In Webster v. Cambridge Seminary, 78 Md. 193, 205, Chief Judge Robinson said: "The right *** of the Legislature to alter and amend the charter of the defendant corporation is not, and could not, be denied.  At the same time we agree with the appellant that it could not change fundamentally the nature and character of the charter [***15]  itself.  It could not, under the guise of an amendment, substitute a new and different charter with distinct and different purposes, and oblige the stockholders to accept it.  Nor could it divest property  [*568]  rights acquired under the legitimate exercise of the powers granted.  Independent altogether of the contract clause of the Federal Constitution is the provision which declares that no one shall be deprived of his property without due process of law." It was held that a charter amendment authorizing the directors to enter into a lease of school property was not a fundamental change.
The charter in the instant case is, of course, a contract between the State and the incorporators.  As pointed out by Mr. Justice Story, in his concurring opinion in the Dartmouth College case, supra, (p. 689) there is also "an implied contract springing up, and founded on a valuable consideration, that the crown would not revoke, or alter the charter, or change its administration, without the consent of the corporation.  There was also an implied contract between the corporation itself, and every benefactor upon a like consideration, that it would administer his bounty according to [***16]  the terms, and for the objects stipulated in the charter."
It may well be that there are also implied contracts between the subscribers to the common fund.  The appellee argues that although the State may repeal the charter outright, with consequences that might lead to distribution of the assets to the donors or reversioners, to a trustee appointed by the court under its general equity powers, or, in an appropriate case, to another corporation under the cy-pres power conferred by Code (1951), Art. 16, sec. 131 (Ch. 291, Acts of 1931), it cannot compel the corporation or its members and donors to accept a new charter having a different purpose.  The contention is that an alteration that would defeat the corporate purpose and prescribe a new one is still forbidden by the contract clause.
It has been said that the Dartmouth College case, supra, would perhaps have been decided as it was, even under a reserved power to amend, had the Fourteenth Amendment been then in effect, since it involved a deprivation of property.  See Note 40 Harv. L. Rev. 891, and  [*569]  Scott, Education and the Dead Hand, 34 Harv. L. Rev. 1, 9. It has been suggested that reservation of [***17]  a power to alter or repeal does not extend beyond the alteration or repeal of the franchises conferred by the charter, and cannot affect subsidiary contracts, unless the change can be supported under the police power.  Some courts have held that the reservation extends to subsidiary contracts.  Note, 31 Col. L. Rev., 1163, 1166. In dealing with the internal affairs of  [**684]  corporations, the traditional tests of due process are not strictly applicable, and it has been said that the rule that the change must be confined to the objects for which the charter was primarily granted was borrowed from the English corporation cases.  31 Col. L. Rev., supra, p. 1167 n. 22; Ware v. The Grand Junction Water Works Co., 2 R. & M. 470 (1831). Cf. Durfee v. Old Colony and Fall River Railroad Company, 87 Mass. 230 (1862).
The rule that an alteration that defeats or fundamentally changes the corporate purpose is beyond the constitutional power of the Legislature is conceded on both sides.  Whether this is true because it is a violation of the contract clause of the Federal Constitution we need not decide.  The Supreme Court and our Court of Appeals have both adopted the rule [***18]  as a constitutional principle which has the status of a vested right, whether it stems from the law of implied contract, the law of property, or the corporation law.  If the right is violated, we are constrained to hold that it violates the due process clause of the Fourteenth Amendment as well as the provisions of Article 23 of our Declaration of Rights and Section 40 of Article III of the Maryland Constitution.
The nub of the controversy is the character of the alteration. The appellant says that the fundamental object of the Endowment Fund is to benefit the University, and the administration of the Fund is secondary and of no real importance.  We think, however, that the change is fundamental.  The charter plan was designed to retain to the donors, through the exercise of discretion by their chosen representatives and their self-appointed  [*570]  successors, a voice in the management and expenditure of the fund, subject, of course, to a veto power by the Regents.  The views of this independent group may, from time to time, differ widely from those of the current managers of the University.  The plan of public management and private endowment is no more anomolous than the more [***19]  common one of private management and public contribution.
The appellant argues that the discretion conferred upon the Executive Committee, selected by and from the self-perpetuating members, is not personal but inheres in the office.  Hence it might be exercised by court-appointed successors.  But we have here no case of necessity, to appoint trustees to prevent a failure of a trust, but simply a case where the Legislature has attempted to remove a private self-perpetuating board and replace it by a public one appointed from time to time by the Governor, without any necessity to effectuate the general purpose or to protect the public interest.
The appellant attempts to minimize the change by arguing that the discretion in any event is subordinate to the general power of management and control over the University by the Regents under Section 240(d), Ch. 14, Acts of 1952.  As we have said, the Regents hold a veto power, but as a practical matter an independent board could withhold or condition their grants in such a way as to secure a reasonable compliance with their views and those of the donors.
The appellant argues that the alleged "independence" is not properly shown by the allegations [***20]  of the bill and exhibits filed, concerning various representations in the publication of "Old Maryland", sponsored by the University or some of its schools, and catalogues inviting subscriptions to the Endowment Fund. But the independence of those who serve in the capacity of trustees in administering the funds entrusted to the corporation is clear on the face of the charter. The importance of their independence is a major question of fact in the case, and the allegations and exhibits are relevant to  [*571]  that issue, and as bearing upon the implied contracts arising out of the solicitations and subscriptions.  This is true even if we assume, without deciding, that the donors parted with all interest in the funds solicited.  St. John's College v. Purnell, 23 Md. 629, 639.  [**685]  Any donor was, of course, at perfect liberty to make gifts directly to the Board of Regents, and we can only infer that those who chose to channel their gifts through the appellee corporation instead, did so because they preferred it as the repository of their benefactions.
It has been held that a right of management and control, if not a property right in the usual sense, is one of the incidents [***21]  of ownership that may survive a transfer of the legal and equitable title.  In Allen v. McKean, 1 Sumner 276, 305 (1st Cir. 1833), Mr. Justice Story said: "Nothing is clearer in point of law, than the right of a founder to have his visitatorial power exclusively exercised by the very functionaries, in whom he has vested it.  It is the very substratum of his donation.  This is not all.  The founder has a right to have the statutes of his foundation, as to the powers of the Trustees, strictly adhered to, except so far as he has consented to any alteration of them.  But an authority to alter or modify those powers can never be fairly construed into an authority to take them away from his Trustees, and confer the same powers on other persons."
In Ohio v. Neff, 52 Ohio St. 375, 401 (1895), the act incorporating Cincinnati College provided that trustees should be elected annually by the donors, and reserved the legislative power of amendment.  In 1892, the legislature passed an act placing the management under the control of the directors of the University of Cincinnati.  The act was held void.  The court said: "It is no answer *** to assert that the new directory represents the [***22]  old corporation, or that the legal title to the property still remains in The Cincinnati College.  The mere naked legal title to property has no value, when that title is absolutely severed from its control and beneficial enjoyment.  It is the province and the duty of courts to look at the substance  [*572]  of a transaction, and to ignore refined and unsubstantial distinctions.  And we can see no substantial difference between a statute which expressly creates a new corporation and endows it with the property of another body corporate, and a statute, like the one under consideration, which, finding a corporation already existing, vests in the directory of the latter all the powers and rights of property which had belonged to another corporate body.  And whether we regard the corporation as the actual and potential proprietor of the property in contention, or whether we consider those who contributed to or created this fund or property as such proprietors, and the corporation a mere agency, created to represent them and carry their will into execution, is immaterial in this connection." Cf. Sage v. Dillard, 15 B. Mon. (Ky.) 340, 360, and Printing House v. Trustees, 104 U.S.  [***23]  711, 722. The appellant argues that the case is not in point, for the court was there dealing with a proposed diversion of private funds to an entirely separate institution of a private character.  Nevertheless, the language quoted is apposite here on the question of the effect of a change of control.  The case of Lupton v. Leander Clark College, 194 Iowa 1008, 187 N. W. 496, holding that a change of name was not a legislative alteration of fundamental charter purposes, is readily distinguishable.  So also, is the case of Bryan v. Board of Education, 151 U.S. 639, 657, involving a change of location, where the court said: "There is no question of diversion of funds, or of change of control or management."
The appellant relies strongly upon the case of Jackson v. Walsh, 75 Md. 304, 312 (1892). In that case the charter of the "Maryland Agricultural College", which had been incorporated in 1856 as a stock corporation, prescribed the method of electing 22 trustees and also provided for an annual appropriation by the State to aid the college.  Some years later, the college became financially embarrassed and the Legislature in 1866 appropriated money to pay the indebtedness [***24]  of the college  [*573]  upon condition that the college make  [**686]  the State the equal joint owner of all its property.  This same act reduced the number of trustees to 11 and provided that 4 should be members of the State Board of Education.  The act was accepted by the stockholders and a conveyance made.  In 1880 the Legislature increased the number of trustees to 12, only 5 of whom were elected by the stockholders, and in 1888, the number of trustees was increased to 18, 5 of whom were elected by the stockholders. Under this act the stockholders elected 5 trustees each year until 1891, when they claimed the right to elect 7 trustees under the Act of 1866.  Judge McSherry, speaking for the court, said (p. 313): "To give to the State a more liberal representation in the Board of Trustees *** interfered with no contractual, vested, or constitutional rights of the private stockholders."
We think the case is distinguishable on several grounds.  The decision was rested in part upon the fact that the Acts of 1880 and 1888 "were acted on and acquiesced in by the stockholders of the college with the full knowledge of their provisions, and thereby were legally accepted".  While [***25]  not stressed in the opinion, it was also a fact that the State appropriations were vital to the continued operation of the college.  Upon familiar principles of law relating to corporate reorganization, the giving of control to a financial backer and joint owner of a stock corporation could be upheld as fair and reasonable.  Finally, the fact that the State was the equal joint owner gave it a legal right to participate in the management, at least to the extent of its equal ownership and to protect the proposed additions to its investment.  Cf. Miller v. The State, 15 Wall. (U.S.) 478, where there was a similar change of representation based upon municipal ownership of corporate assets.  In the instant case the State has no proprietary interest in the Endowment Fund, the private members are denied any voting rights, and the owners are thus deprived of any participation in the management whatever.
 [*574]  The appellant relies upon the case of In re Mt. Sinai Hospital, 250 N. Y. 103, 164 N. E. 871. There an act of the New York Legislature, providing for the election of successors to the existing board of trustees of the hospital by a majority vote of the remaining members,  [***26]  was upheld.  The act was challenged by two out of four thousand dues-paying members, after it had been duly accepted by the corporation.  This acceptance would, in itself, serve to distinguish the case.  The complainants were neither founders, nor the representatives of founders, but were in the position of minority stockholders opposing a continuity of management approved by the overwhelming majority.  In a careful opinion by Judge Pound, the court held that the change disturbed no vested right under the circumstances, but clearly recognized the principle that charter alterations must be reasonable and consistent with the scope and object of the act of incorporation.
In the instant case, we think the complete transfer of management and control over the Endowment Fund to the Board of Regents is arbitrary and unreasonable.  It defeats the very purpose for which the corporation was formed, for there would have been no need whatever for a separate corporation to hold, invest, control and distribute the fund, unless for the purpose of limiting the control of the Board of Regents.  The removal of the limitation is, in effect, a nullification of the charter, without any justification arising [***27]  out of the police power or an existing proprietary interest in the State.
Since we hold that the Act of 1952 exceeds the permissible limits of the reserved power to amend the corporate charter, it is unnecessary to discuss the other points argued in the briefs.
Decree affirmed, with costs.  

16 of 37 DOCUMENTS 

NAN WIMBROW CURTIS v. MARYLAND BAPTIST UNION ASSOCIATION et al.  

No. 4, April Term, 1939 

Court of Appeals of Maryland 

176 Md. 430; 5 A.2d 836; 1939 Md. LEXIS 191; 121 A.L.R. 1516 

April 26, 1939, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Worcester County, In Equity; Crockett, J.  

DISPOSITION:
Decree reversed and cause remanded for further proceedings not inconsistent with the views herein expressed, the costs, above and below, to be paid out of the funds in the hands of the trustee.  

HEADNOTES:

Laches -- Necessity of Prejudice -- Attack on Validity of Remainder -- Suit During Life Tenancy -- Rule against Perpetuities -- Vesting of Interest -- Gift to Religious Society -- For Orphans' Home -- Validity.
That the doctrine of laches may be successfully invoked, there must not only be delay, but the delay must have worked a disadvantage to the party against whom relief is sought.
Each case involving the applicability of the doctrine of laches is dependent on its own facts and circumstances.
Where a will gave a fund in trust for testator's brother and sister during their lives, and provided that, after the death of the last survivor of them, the fund should pass to a named association for a certain purpose, it was not until the death of the last surviving life tenant that relatives of testator could assert a right to possession of the fund on the ground that the gift to the association was [***2]  invalid.
The grant of a declaratory decree as to the right to a fund after the expiration of existing life tenancies is within the court's discretion, and the power to pass such a decree is to be exercised with great care and jealousy.
A petition filed by testator's next of kin, seeking possession of a trust fund on the ground that testator's gift of such fund to a religious association was invalid, was not barred by laches because not filed until six years after the death of the last survivor of life beneficiaries of the fund, the association not having been prejudiced by the delay, nor its position changed thereby, and the petitioners, non-residents of the state, not having had knowledge nor means of knowledge of the facts on which their rights depend.
The fact that an equity court appointed a trustee for a fund given by will, and also a successor trustee, did not involve an adjudication of the validity of testator's gift of the fund, as against next of kin asserting its invalidity, they not having been parties to the proceeding in which the trustees were appointed, they not having actual or imputed knowledge of the proceeding, and the question of the validity of the gift not [***3]  having been adjudicated on its merits.
The rule against perpetuities is directed against the vesting of interests at a future date and has no application to interests already vested.
The word "vest," as used in the law of property, signifies the fixation of a present right to the immediate or future enjoyment of property.
The law favors the early vesting of estates, and as a general rule courts will, when there is more than one period mentioned, adopt the earlier one, unless this contravenes the intent of the testator or donor, as revealed by the terms of the instrument.
A devise or bequest in favor of a person or persons in esse, whether such persons be individualized or treated as a class, confers an immediately vested interest upon the testator's death, although the time of possession or enjoyment may be postponed, unless there be some clearly expressed desire or manifest reason for suspending or deferring the time of vesting.
It is not the duration of a trust which determines whether the rule against perpetuities is violated in its creation.
In the case of a testamentary gift of a trust fund to a religious association, the association's rights to the fund vested at the [***4]  testator's death, in the absence of anything to indicate an intention to postpone the vesting, and this though the association's absolute enjoyment of the fund was postponed during the lives of certain life tenants and until the fund, by the accumulation of income, amounted to a sum named, and consequently the gift did not violate the rule against perpetuities.
The Maryland Baptist Union Association, which was formed under a statute specifically authorizing the formation of corporations for religious purposes, and the charter of which stated that its object was to advance the cause of true religion, to supply preaching to destitute neighborhoods, to encourage reading of the bible and religious books, to provide fraternal intercourse among Baptist churches, and to afford opportunity during its sessions for preaching and devotional exercises, is a religious and not an eleemosynary corporation.
The association named does not by the terms of its charter, or by implication therefrom, have power to establish an orphans' home, and consequently a testamentary gift to the association for that purpose was invalid, and the fund given belonged to the testator's next of kin.
The testator's injunction [***5]  that the fund be used for an orphans' home could not be regarded as merely precatory, entitling the association to take the fund for such purposes as were within its charter powers.  

SYLLABUS:

Petition by Nan Wimbrow Curtis and others, seeking the termination of a trust, and possession of the trust fund in the hands of the Safe Deposit and Trust Company of Baltimore as trustee, defended by the Maryland Baptist Union Association, claiming as legatee under the will of Julius T. Hall, deceased.  From a decree dismissing the petition, petitioners appeal.  

COUNSEL:
G. Walter Mapp and Edmond H. Johnson, for the appellants.
N. Irvin Gressitt and John S. Whaley, for the appellees.  

JUDGES:
Bond, C. J., Offutt, Parke, Sloan, Mitchell, Shehan, Johnson, and Delaplaine, JJ.  Johnson, J., delivered the opinion of the court.  

OPINIONBY:
JOHNSON 

OPINION:

 [*433]   [**837]  At the time of his death on October 30th, 1918, Julius T. Hall, of Pocomoke City, Worcester County, Maryland, was advanced in years and unmarried, his nearest relatives being two brothers and a sister. By his last will and testament, dated January 28th, 1916, and duly probated on November 8th, 1920, he undertook to dispose of [***6]  his estate.  The will contained no residuary clause.  He devised his house and lot to his sister, Laura Wimbrow, his farm to a brother, Charles Hall, and one acre of land to the Trustees of the Pocomoke Baptist Congregation.  To a niece, Lois Elliott, another parcel of real estate was devised.  His tangible property, consisting for the most part of furniture, personal effects, and a small amount of livestock, was bequeathed to various friends and relatives.
 [**838]  The bulk of his personal estate comprised securities and cash in bank.  These he dealt with in the fifth and sixth items of his last will and testament as follows:
"Fifth, I hereby instruct my executor to put in trust all bonds and cash in bank of which I may die seized and possessed, the annual income from same to be divided equally between my brother, Charles Hall, and sister, Laura Wimbrow, as long as they live, and at the death of either, the survivor to enjoy the whole income for the remainder of his or her life, at which time provision is hereinafter devised.
"Sixth, I give to the Maryland Baptist Union Association, after the death of my brother and sister, as set forth in the preceding item, the bonds and money [***7]  which are left in trust, provided they will raise within twelve months a like amount to build an Orphan's Home somewhere in the State of Maryland; but if they do not raise an amount to equal the amount in trust in twelve months,  [*434]  I instruct that this amount be left in trust until the income added to the principle shall make a like amount, thus doubling the principle, at which time I give to said Maryland Baptist Union Association to enjoy absolutely, for the purpose of building an Orphan's home in the State of Maryland."
On September 10th, 1929, the cash and securities thus referred to, amounting to $ 20,354.61, were by his administrator d.b.n.c.t.a. delivered to the First National Bank of Snow Hill, which had, upon the petition of Maryland Baptist Union Association, been designated by the Circuit Court for Worcester County as trustee to receive the same after the court had assumed jurisdiction.  The trustee thus appointed duly qualified and administered the trust until July 12th, 1935, at which time its petition to be discharged was granted, after it had filed an accounting, and subsequently, upon petition of Maryland Baptist Union Association, the Safe Deposit and Trust [***8]  Company of Baltimore was appointed substituted trustee of the funds in question and is continuing to act as such.
Charles Hall, one of the life tenants mentioned in the fifth item of the will, died in June, 1925, and Laura Wimbrow, the other life tenant, died in January, 1932.  Both life tenants, as well as Richard F. Hall, a brother of the testator not provided for in the fifth item of the will, left children surviving them, all of whom in February, 1938, filed their petition in the Circuit Court for Worcester County on the equity side thereof, alleging the facts heretofore referred to, including their relationship to the testator and the life tenants under the will and charged (1) that the object of the bequest contained in the sixth item of the will was not included in the corporate powers of the Maryland Baptist Union Association; (2) that the object for which the gift was to be applied was not such as the corporation was organized for, and, therefore, amounted to a trust for an indefinite object; (3) that the bequest was void, because it violated the rule against perpetuities, especially as to remoteness.  The prayers of the petition were (a) that the court decree that the trust [***9]   [*435]  created under the will be terminated, and that the bequest over to the Maryland Baptist Union Association be declared null and void, and the substituted trustee be directed to turn over to the plaintiffs, as the next of kin of the testator and the rightful owners thereof, the funds in its possession; and (b) for further relief.
To that petition, answers as well as demurrers were filed by the succeeding trustee and Maryland Baptist Union Association, testimony was taken orally before the chancellor, and at the final hearing upon the merits four questions were presented, viz: (1) Whether petitioners were barred by laches in asserting their claim; (2) whether the matter in controversy was res judicata; (3) whether the bequest violated the rule against perpetuities; and (4) whether the object of the bequest was included within the corporate powers of Maryland Baptist Union Association.  The chancellor answered the third inquiry in the negative and the fourth in the affirmative, disregarded questions one and two, passed a decree refusing the relief prayed by petitioners, and dismissed their petition.  From that decree this appeal is taken.
The contentions here presented [***10]  do not arise upon the facts, for, as to these, there is no dispute between the parties.  It is also admitted that appellants are the next of kin of the testator, Julius T. Hall.  The answers to the questions presented must depend upon the law for their solution, and we will therefore consider the four questions which were before the chancellor in the order previously named.
1. Laches.  Obviously, if the doctrine of laches is applicable in the present case, no other questions need be considered.  But in order for it to be invoked  [**839]  successfully there must be not only mere delay, but delay that works a disadvantage to the party against whom relief is sought.  Necessarily, each case is dependent upon its own facts and circumstances.  For this reason instances may arise justifying its application when the matters upon which relief is sought arose within a period far short of the time within which the Statute of Limitations  [*436]  might ordinarily constitute a defense in an action at law, while in others laches will not be applied, although the grounds for relief would, standing alone, be barred by limitations.  4 Pomeroy's Equity Jurisprudence, sec. 1442; 19  [***11]  Amer. Jur., page 352; 21 C.J., page 231; Baker v. Cooper, 166 Md. 1, 170 A. 556; Lipsitz v. Parr, 164 Md. 222, 164 A. 743; Mays v. Mays, 176 Md. 159, 4 A.2nd 121.
The surviving life tenant, Mrs. Wimbrow, lived until January, 1932, and, until her death, appellants had no right to possess the funds in question, since until that time all income therefrom was, from the time of her brother's demise, payable to her.  And it may be seriously doubted whether, during Mrs. Wimbrow's lifetime, appellants were, under the provisions of Code, art. 16, secs. 28-34, entitled to a declaratory decree respecting the funds.  In any event such decree would have been obtainable only in the court's discretion, and it is generally held that the power to pass such decrees is to be exercised with great care and jealousy.  Fleishman v. Bregel, 174 Md. 87, 197 A. 593; Saunders v. Roland Park Co., 174 Md. 188, 198 A. 269; Wahl v. Brewer, 80 Md. 237, 30 A. 654.
While appellants did not file their petition until approximately six years after the death of the surviving life tenant, it is to be observed that this delay has in no way prejudiced appellees, nor has their position in any [***12]  manner changed in the meanwhile.  Under such circumstances, courts should be hesitant in applying so strict a doctrine as laches, and thereby preventing appellants' case from being considered upon its merits, and this is especially true in the present case, because the testimony of appellants, all of whom live beyond the confines of Maryland, negatives the idea that they had the knowledge or means of knowledge of the facts which created the rights here sought to be enforced.  See Walters v. Order of Holy Cross, 155 Md. 146, 142 A. 297.
2. Res Judicata.  The contention that the matter in controversy is res judicata deserves some consideration, since, like that respecting laches, if upheld, it would completely  [*437]  put an end to appellants' case.
The argument advanced is that the Circuit Court for Worcester County, in equity, by assuming jurisdiction of the trust in 1929 and appointing The First National Bank of Snow Hill as trustee, and later upon its resignation appointing Safe Deposit and Trust Company of Baltimore as succeeding trustee, in purely ex parte proceedings, thereby determined the character of the bequest, and its action, as evidenced by those orders,  [***13]  determined and concluded the rights of all parties in interest, including appellants.  Several answers to the contention are disclosed by the record, among which are the following: (1) That appellants were not parties to that proceeding; (2) that they are not shown to have had any knowledge thereof or knowledge of other facts which put them on notice as to its existence; (3) that the cause was never adjudicated on its merits.
As stated in 34 C.J. "Judgments," sec. (1405)-2: "To constitute a judgment an estoppel there must be a substantial identity of parties as well as of the subject matter; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action.  This rule, that there must be a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can be deprived of his property except by due process of law, a principle which in the United States has been embodied in the federal constitution and [***14]  in the constitutions of the several states.  In applying the rule the courts have allowed themselves a good deal of latitude, observing the spirit of it rather than the letter, and there are some well recognized exceptions to or modifications of it." See also Ibid, secs. 1165-1174 (a), 1405-1409-1410; and Trayhern v. Colburn, 66 Md. 277, 7 A. 459; Shryock v. Hensel, 95 Md. 614, 53 A. 412; Parsons v. Urie, 104 Md. 238, 64 A. 927; Murphy v. Coale, 107 Md. 198, 68 A.  [*438]   [**840]  615; Lumpkin v. Lumpkin, 108 Md. 470, 70 A. 238; Feldmeyer v. Werntz, 119 Md. 285, 292, 86 A. 986; Wiley v. McComas, 137 Md. 637, 113 A. 98.
3. Perpetuities.  The rule against perpetuities is directed against the vesting of interests at a future date and has no application to interests which are already vested. Miller, Construction of Wills, sec. 322.  And the word "vest," as used in the law of property, "signifies the fixation of a present right to the immediate or future enjoyment of property." Safe Deposit & Trust Co. v. Sheehan, 169 Md. 93, 107, 179 A. 536, 543. The law favors the early vesting of estates, and as a general rule courts will, when there [***15]  is more than one period mentioned, adopt the earlier one, unless this contravenes the intent of the testator or donor as revealed by the terms of the instrument.  Miller, Construction of Wills, sec. 226.  The general principle is that "any devise or bequest in favor of a person or persons in esse, whether such persons be individualized or treated as a class, confers an immediately vested interest upon the death of the testator, although the time of possession or enjoyment may be postponed, unless there be some clearly expressed desire or some manifest reason for suspending or deferring the time of vesting." Ibid, sec. 277.
Maryland Baptist Union Association did not, in accordance with the terms of the sixth item of testator's will, raise within twelve months a like sum to build an Orphans' Home in Maryland, and it is argued from this that the trust may during the period of accumulation continue for such time as to violate the rule.  But it is not the duration of the trust that determines whether the rule is violated.  Miller, Construction of Wills, sec. 326; Turner v. Safe Deposit & Trust Co., 148 Md. 371, 129 A. 294.
No provision appears in the will to indicate [***16]  that the intention of the testator was to postpone vesting the estate in Maryland Baptist Union Association, and this being true, it would seem that, under the settled rules of construction, to which reference has been made, the  [*439]  Association's right to receive the benefits of the bequest vested at the death of the testator, the enjoyment being postponed during the lives of the life tenants and, as it develops, during the period of accumulation. This view certainly does not violence to the language used by the testator. Cole v. Safe Deposit & Trust Co., 143 Md. 90, 94, 121 A. 911. See also subsection (a) to note 89, 48 C.J., page 990; Tayloe v. Mosher, 29 Md. 443, 451; Buck v. Lantz, 49 Md. 439, 445.
We are therefore of the opinion that, assuming the Maryland Baptist Union Association had power to take the bequest, the chancellor was correct in holding that the rule against perpetuities had no application to the bequest under consideration, because the same vested at the time of testator's death.
4. Power of the Maryland Baptist Union Association to take the fund.  This brings us to the final question, which is whether the purposes of the bequest are [***17]  included within the corporate powers of the Maryland Baptist Union Association.  The corporation came into existence on April 30th, 1853, under the provisions of chapter 323 of the Acts of 1846.  Its name is suggestive of its character, but article 2 of its charter expressly declares its objects and purposes to be as follows: "The object of this association shall be to advance the cause of true religion in Maryland and the District of Columbia by efforts to aid feeble Baptist Churches and supply destitute neighborhoods with preaching to encourage the more general diffusion and reading of the Sacred Scriptures and evangelical books and tracts to provide a fraternal intercourse among the Baptist Churches and to afford opportunity during the session of the association of preaching and other devotional exercises."
While by the sixth paragraph of its answer to appellants' petition, the association asserts that it is a private eleemosynary corporation and not a religious corporation, this allegation is not sustained by the proof, and it is not without signifiance, in this connection, that although chapter 231 of the Acts of 1852, authorizing the formation  [*440]  of corporations for [***18]  charitable purposes, was passed prior to the incorporation of Maryland Baptist Union Association, yet the charter of the latter in express terms declares that the corporation is formed under the Act of 1846, ch. 323.  That Act was not incorporated in the Code of 1860, which did, however, include the provisions of chapter 231, Acts of 1852.  The former Act (chapter 323, Acts 1846) differs from the latter in that it specifically authorizes the formation of corporations for religious purposes,  [**841]  but the latter Act contains no express provisions repealing the former.  The Legislature, in adopting the Code of 1860, by chapter 1 provided, however, that the laws therein set forth should be in lieu of and a substitute for all public general and public local laws previously passed.  See Code 1860, art. 1 (Rules of Interpretation), sec. 1, by which all rights vested and existing at the time of its adoption were preserved.
It may also be stated that, in obedience to article 38 of the Maryland Declaration of Rights, the bequest under consideration has received legislative sanction (Acts of 1936, 1st Special Session, ch. 14, sec. 1, item 22).  While this circumstance, standing alone,  [***19]  would not be sufficient to identify the Maryland Baptist Union Association as a religious sect, order, or denomination within the purview of the article, the conclusion is, under the considerations previously mentioned, irresistible that it is a religious corporation.  And it cannot be said that legislative sanction of the bequest had the effect of enlarging its powers beyond the purposes and objects declared in its charter, for the sanction of the Legislature to the bequest was necessary, notwithstanding the religious corporation was given power under its charter to take and hold property.  Church Extension v. Smith, 56; Md. 362, 391; State v. Warren, 28 Md. 338, 354; Mills v. Trustees of Zion Chapel, 119 Md. 510, 513, 87 A. 257; Regents of University of Maryland v. Trustees of Calvary Church, 104 Md. 635, 640, 65 A. 398; Grove v. Trustees of Congregation of Disciples, 33 Md. 451, 454; Gardner v. McNeal, 117 Md. 27, 33, 82 A. 988.
In final analysis, the problem is reduced to this inquiry:  [*441]  Did the Maryland Baptist Union Association at the time of the death of the testator possess the power to take the bequest for the purpose to which he limited [***20]  it?  7 Fletcher, Cyclopedia Corporations, sec. 3524; In re McGraw's Estate, 111 N.Y. 66, 19 N.E. 233, 2 L.R.A. 387.
The chancellor apparently rested his opinion in favor of the existence of the power upon the decision of this court in Mt. St. Mary's College v. Williams, 132 Md. 184, 103 A. 479. In that case a sum of money had been bequeathed by the testator to Mt. St. Mary's College "for the erection of a plain substantial stone church on the site of the present old church on the hill near the graveyard." It was held that the idea of the worship of God was too closely associated with that of education to permit it to be said that the corporation did not have the power to build and maintain a church on its own property as directed by the will.  But the facts in that case are not analogous to those in the case at bar, for here we are dealing with a religious corporation, whose powers are clearly defined in its charter as follows:
1. To advance the cause of true religion in Maryland and the District of Columbia by efforts to aid feeble Baptist Churches.
2. To supply destitute neighborhoods with preaching.
3. To encourage the more general diffusion and reading of the sacred [***21]  scriptures and evangelical books and tracts.
4. To provide a fraternal intercourse among the Baptist Churches.
5. To afford opportunity during the session of the association of preaching and other devotional exercises.
In 14A C.J., page 255, sec. 2087, it is stated: "The act, in order that the power to do it may be implied, must tend directly and immediately, and not slightly or remotely, to accomplish the object for which the corporation was created, an incidental power being 'one that is directly and immediately appropriate to the execution of the specific power granted, and not one that has a slight or remote relation to it,' nor one that is merely convenient or useful.  An incidental or implied power  [*442]  exists only for the purpose of enabling a corporation to carry out the powers expressly granted to it, that is to say, the powers necessary to accomplish the purpose of its existence, and can in no case avail to enlarge the express powers, and thereby warrant it to devote its efforts and capital to other purposes than such as its charter expressly authorizes, or to engage in collateral enterprises, not directly, but only remotely connected with its specific corporate [***22]  purposes.  Such a power must result from the charter by necessary implication, regard being had to the object and purpose of the corporation; and if there is any uncertainty or doubt as to the terms of the charter it must be resolved in favor of the public." See also 13 Am. Jur., page 772, sec. 740, to the same effect.
It is argued on behalf of appellees that the care of orphans is a part of true religion. Without disputing that general contention, it is sufficient to state that the term " [**842]  true religion" as used in the charter of Maryland Baptist Union Association is specifically limited so as to apply only to the purposes stated in the association's charter.
A consideration of the decisions of this court in Hanson v. Little Sisters, 79 Md. 434, 32 A. 1052; Eutaw Place Baptist Church v. Shively, 67 Md. 493, 10 A. 244, and Woman's Foreign Missionary Society of M. E. Church v. Mitchell, 93 Md. 199, 48 A. 737, discloses situations entirely foreign to those presented on this record.  It cannot be disputed that a sunday school or parish school, as it is variously termed, has always been considered as an integral part of a church and within its scope of activity.  [***23]  But in the present case there is no power granted by the corporation's charter to establish an orphans' home, and such a power is so foreign to the declared purposes expressed in the charter that it cannot be deemed as granted by implication.
It has been urged upon the court that it was testator's intention for appellants not to receive any benefit from the fund in question, and that to hold the Maryland Baptist Union Association without power to take the fund would be equivalent to frustrating his intention, but this argument may be answered by the statement  [*443]  that it becomes our duty to declare the law as it exists.  As said by this court in State, use of Trustees of M. E. Church v. Warren, 28 Md. 338, "It is to be regretted that the wishes of the testatrix should be thus defeated, but our duty is to declare the law as we find it to be, not to make law for the purpose of carrying out what we may think in individual cases, ought to be done."
Furthermore, that argument loses force when it is considered that, whether the bequest be stricken down or upheld, the testator's wishes apparently will not be gratified, for the Maryland Baptist Union Association has no power,  [***24]  express or implied, to establish a home for orphans, never has established one, and so far as can be determined from the record, does not intend to establish such an institution.  On the contrary, it is on its behalf insisted that it takes the fund for such purposes as are within its charter powers, and the testator's injunction that the fund is to be used to establish an orphan's home is merely precatory.  To this contention we do not subscribe, and the language of the will does not sustain it.  If the will is to be thus construed, no purpose could have been served by the requirement that the recipient of the fund was not permitted to have it until it raised an equal amount, or, on its failure so to do, until interest accumulations caused it to be doubled.  Obviously, this requirement was because testator realized the insufficiency of the fund for the erection of an orphans' home, and desired to postpone its enjoyment by Maryland Baptist Union Association until such amount was in existence.
It being our conclusion that the bequest fails because of the inability of Maryland Baptist Union Association to take it for the purpose specified, it follows that testator died intestate as to [***25]  the same, and that the fund in question belongs to his next of kin.
Decree reversed and cause remanded for further proceedings not inconsistent with the views herein expressed, the costs, above and below, to be paid out of the funds in the hands of the trustee.  

17 of 37 DOCUMENTS 

HOME FOR INCURABLES v. NORA J. BRUFF ET AL. NORA J. BRUFF ET AL. v. HOME FOR INCURABLES ET AL.  

Nos. 34, 35 

COURT OF APPEALS OF MARYLAND 

160 Md. 156; 153 A. 403; 1931 Md. LEXIS 62 

January 14, 1931, Decided 

PRIOR HISTORY:
 [***1]  Appeals from the Circuit Court of Baltimore City (DAWKINS, J.).

Bill by the Safe Deposit and Trust Company of Baltimore, executor of the will of Georgia Gelston Jones, against the Maryland Bible Society, Home for Incurables of Baltimore City, Nora J. Bruff, and others, for a construction of said will and for other relief. From the decree rendered, the Home for Incurables of Baltimore City appeals (No. 34), and Nora J. Bruff and others, next of kin of deceased, also appeal (No. 35). Affirmed in part and reversed in part.  

DISPOSITION:
Decree affirmed in part and reversed in part, and cause remanded for further proceedings in conformity with this decision; the costs of this appeal to be paid out of the residuary fund.  

HEADNOTES:

Devise -- Ademption -- Description of Beneficiary -- Charitable Corporation -- Legislative Amendment of Charter -- Limitation on Corporate Income -- Effect.

That, after executing a will which contained a legacy of $ 1,000 to a charity, testatrix had a certificate for Baltimore City stock in that amount issued to herself for life and at her death to that charity, did not effect an ademption or satisfaction of the legacy, in the absence of evidence of any act or declaration by testatrix from which an intention to that effect could be inferred.

p. 160

Acts 1872, ch. 148, effecting a perpetual extension of the life of the Maryland State Bible Society, originally incorporated by Acts 1842-3, ch. 290, and changing its name to the Maryland Bible Society, dealt with but one subject, the charter of the society, and this was sufficiently described in its title, "A supplement to an Act entitled an Act to incorporate the Maryland State Bible Society *** and to change the name of said corporation to the Maryland Bible Society."

pp. 162-164

The revival or amendment of the charter of a private corporation need not set out in full the whole charter, or such sections as are revived or amended, the requirements of Const., art. 3, sec. 29, in regard to the form which the body of an enactment shall assume, applying in terms only to amendments of an article or section of the Code, and to enactments of any public general law not amendatory of such an article or section.

pp. 164, 165

Const., art. 3, sec. 29, providing that no law, or section of law, shall be revived or amended by reference to its title or section only, was not violated by an act, the preamble of which showed an intent to amend a certain act of incorporation, and also showed the corporate name and limitation of the corporate life as fixed by the act of incorporation, and the body of which showed an intent to make the corporate life perpetual, and to make a stated change in the corporate name, subject to provisions limiting the annual income from corporate property, requiring suits to be brought in the name of the president, and reserving to the Legislature the right of amendment or repeal.

pp. 165-169

Whether a charter limitation, as regards the amount of annual income of a corporation from its property, has been exceeded, is to be ascertained at the end of the recurring annual periods, when the income for the preceding year is determined, and a gift to a corporation is not invalid because the income from such gift would exceed the limitation, if the gift were kept invested throughout a year, which may possibly not be done.

pp. 169-171

The acquisition and holding of property by a corporation in excess of a charter limitation cannot be questioned by a private person, but the State alone may assert the voidable nature of the acquisition or holding, in a direct proceeding begun for that purpose.

pp. 171, 172

While the estate in personalty passing under the residuary clause of a will does not ordinarily pass from the executor to the residuary legatee, so as to give the latter the right to sue therefor at law, until the executor signifies his assent by making a distribution of the residue, nevertheless the inchoate or beneficial title in the residue, though uncertain in amount or kind, is vested in interest in the residuary legatee, or his assignee or personal representative.

pp. 172, 173

Where equity assumes jurisdiction to superintend the administration of decedent's assets, and to decree distribution among the legatees and distributees, it may do so without reference to the executor's assent to any legacy, such assent being implicit in whatever the chancellor may decree with respect to the legacies.

p. 174

The discovery of a testamentary design may be aided, but not defeated, by punctuation or capitalization.

p. 175

Where a will contained two gifts of equal amount, one to the "Home for Incurables for Men," and the other to the "Home for Incurables for Women," but there was no corporation of either of such names, while there was a "Home for Incurables," which had received only women because financially unable to receive men, held that this latter was intended to be the beneficiary of both gifts, the interpolation of the words "for Men" and "for Women," and the division of the share given to that corporation into two parts, serving merely to show a desire that it would use one-half for men and one-half for women in providing a home for the incurable.

pp. 175-178

Where property was given to a charitable corporation for such uses or application as were within the scope of its corporate purposes, and there was no intention on the part of testatrix to create a trust, the gift cannot be declared void as being in trust for indefinite purposes or as being in conflict with the rule against perpetuities.

p. 178

A testamentary gift "to the Invalid Fund for Disabled Ministers in the care of the Trustees of the General Assembly of the Presbyterian Church," held to be valid as a gift to such trustees, an existing corporation, to be used as a portion of such fund, then in its hands for a specific corporate purpose.

pp. 180, 181 

COUNSEL:
W. Ainsworth Parker, with whom was James Carey, 3rd, on the brief, for the Home for Incurables.

Edward H. Burke, with whom were H. Courtenay Jenifer and Bowie & Burke on the brief, for Nora J. Bruff and others, next of kin.

Charles McH. Howard, with whom was Frederick J. Singley on the brief, for the Maryland Bible Society.

Arthur L. Jackson, for the Southern Presbyterian Church and the Presbyterian Foundation.  

JUDGES:
The cause was argued before BOND, C. J., PATTISON,  [***2]  URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.  

OPINIONBY:
PARKE 

OPINION:

 [**405]   [*159]  PARKE, J., delivered the opinion of the Court.
Georgia Gelston Jones, a resident of Baltimore City, died on July 24th, 1928, leaving a duly executed will which was executed on December 28th, 1897, and which devised and  [*160]  bequeathed her property. The administration of her estate was substantially accomplished, with the exception of several disputed claims, and certain devises and bequests about which there was controversy. In order to obtain a  [**406]  construction of the will and to make the distribution under the control and with the guidance of a court of equity, the executor filed a bill of complaint, and from the ensuing decree certain of her next of kin and the Home for Incurables of Baltimore City, a devisee and legatee, have severally appealed. These appeals present a number of questions with reference to the validity of gifts to the Maryland Bible Society, to the "Home for Incurables for Men" in Baltimore, Md.; to the "Home for Incurables for Women in Baltimore," Md.; and to the "Invalid Fund for Disabled Ministers" in the care of the Trustees of the General Assembly of the Presbyterian [***3]  Church in the United States (popularly known as the Southern Presbyterian Church). In order to avoid repetition, there will be no general statement of the problems presented, which can be grouped advantageously with respect to the separate beneficiaries.
1. By the fourth item of her will the testatrix devised and bequeathed to the Maryland Bible Society the sum of $ 1,000 and a ground rent of $ 27 yearly "to be applied to the uses of the said corporation as a 'memorial' of my father." After her death the executor found a certificate for $ 1,000 of Baltimore City Dock Improvement 4 per cent. stock, due 1961, which the testatrix had issued on June 18th, 1913, to herself for life and at her death to the Maryland Bible Society. There is no evidence of any act or declaration by the testatrix from which it could be inferred that the subsequent gift of stock was intended to be a satisfaction or payment in whole or in part of the legacy of $ 1,000. The mere fact that the gift of stock was subject to the life estate of the donor, and that its face value was the same in amount as the legacy of $ 1,000, is insufficient to raise a presumption of ademption or satisfaction, although the party takes [***4]  both the gift and the legacy at the death of the testatrix. Loyola College v. Dugan, 137 Md. 545, 550, 113 A. 81; Gallagher  [*161]  v. Martin, 102 Md. 115, 62 A. 247; Miller on Construction of Wills, secs. 144, 145; 2 Pomeroy's Eq. Juris. (4th Ed.), sec. 562.
2. In addition to this gift, the Maryland Bible Society was made the beneficiary of valuable gifts of land and money by the fifth, nineteenth, and twentieth items of the will. The gift under the nineteenth item of the will is of one-half of the residuary estate upon the death of a life tenant without issue surviving at the time of her death. As this contingency has happened and as, by the twentieth item of the will, the society is given an additional one twenty-fourth of the residuary estate, thirteen twenty-fourths of the entire residuary estate was attempted to be given to the society.
The contention is made by the next of kin that every one of the gifts to the Maryland Bible Society must fail and fall to the next of kin on the ground that intestacy results because the corporate existence of the Maryland Bible Society is at an end; but if the society be a subsisting corporate entity,  [***5]  then the gifts of the thirteen twenty-fourths part of the residuary estate are voidable, since they would increase the income of the society to more than the yearly statutory limitation of $ 10,000; and a court of equity will not lend its aid to enforce what the state may avoid and thereby create an intestacy as to the gifts mentioned.
The Maryland State Bible Society was incorporated by the General Assembly of Maryland, by chapter 290 of the Acts of 1842-43, and its corporate life was limited to thirty years. It was given the capacity "to hold by deed, bequest, and devise any interest, estate or property, real, personal or mixed in possession or expectancy and also to use, sell, mortgage, lease, transfer or convey all or any part of said property; provided, that the clear annual income of said estate, interest and property shall not exceed the sum of ten thousand dollars." The Legislature reserved the right to alter or amend the act of incorporation at pleasure. Sections 1-4.
By chapter 148 of the Acts of the General Assembly of 1872, entitled "A supplement to an Act entitled 'An Act to  [*162]  incorporate the Maryland State Bible Society, passed at December session, eighteen [***6]  hundred and forty-two, chapter two hundred and ninety, and to change the name of said corporation to The Maryland Bible Society,'" it was enacted "that the corporate franchises granted by the said Act of Assembly, entitled an Act to incorporate the Maryland State Bible Society, passed at December session, eighteen hundred and forty-two, chapter two hundred and ninety, be and the same are hereby continued and re-enacted without any limitation as to the duration of said corporation, subject to the provisions of this Act; and that the name of the said corporation be *** changed to The Maryland Bible Society," and that the provision with respect to the clear annual income be continued. The Legislature further declared that it reserved the right to alter, amend, or repeal the new as well as the original act at any time.
The next of kin assert that the Maryland Bible Society has no legal corporate existence; and, so, it is incapable of taking any gift. In support of this position, they rely upon the two provisions of article 3, section 29, of the Maryland Constitution: (A) That every law shall embrace but one subject and that shall be described in its title; and (B) that no law, or section [***7]  of law, shall be revived or amended by reference to its title or section only.
A. The one subject-matter of chapter 148 of the Acts of 1872 was the charter of the Maryland State Bible Society, which had been  [**407]  granted by the General Assembly by chapter 290 of the acts passed at the December session, 1842. This charter was about to expire as its existence was limited to a period of thirty years, and the act was consequently introduced for the prevention of the end of the corporate existence through the passage of time, by enlarging the duration of its corporate existence in perpetuity; and to permit it to exercise its corporate powers under a slightly different corporate name, but subject to the same provisions with respect to the limitation of the clear annual income to $ 10,000, and the reservation to the Legislature of the right to alter, amend, or repeal both acts. The natural and obvious meaning of  [*163]  the term "supplement to an act," in the title to a pending legislative bill to amend a subsisting statute, is that something is to be incorporated in the statute by way of addition, completion, or extension, so as to supply a deficiency or meet a want. Century  [***8]   Dictionary, "Supplement"; 37 Cyc. 605. So, the perpetual extension by statute of the life of a corporation, with a similar continuation of its corporate powers, as the period of its existence was about to end, is clearly within the purview of a supplemental act, since it added perpetual duration to a subsisting charter.
While the prolongation of the corporate existence was indispensable to a continuance of corporate power or function, a change in the corporate name is a nominal matter; and, therefore, when the proposed law was introduced, it affected the charter in matters of substance and of form. The title reflected this twofold object, since it is composed of two clauses, which respectively refer to a supplement to the charter and to an alteration in the corporate name. As has been seen, these are distinct, but not conflicting, provisions, which relate to the same general subject-matter. Furthermore, the second clause does not limit the scope of the first clause, with which it is conjunctively connected as an additional and co-ordinate clause. So, the language and grammatical form of the title advised the legislators not only that the proposed enactment would supply the original [***9]  charter with complementary provisions which it lacked or needed and with an alteration in the corporate name, but also that the change in name was in addition to, and not among, the supplementary amendments contemplated. The body of the act was within the contemplation of the title, and wholly dealt with the powers of the corporation, so the statute has but one general subject which is fairly disclosed by its title, and, therefore, in this respect, the requirements of section 29 of article 3 of the Constitution is fulfilled. 1 Lewis' Sutherland on Statutory Construction (1904), sec. 131; County Commrs. of Worcester County v. School Commrs., 113 Md. 305, 309, 77 A. 605; Phinney v. Sheppard etc. Hospital, 88 Md. 633, 42 A. 58; Brown v. Md. Telephone  [*164]  Co., 101 Md. 574, 579, 580, 61 A. 338; Gans v. Carter & Aiken, 77 Md. 1, 25 A. 663; Dinneen v. Rider, 152 Md. 343, 357, 358, 136 A. 754.
In Drennen v. Banks, 80 Md. 310, 315, 30 A. 655, and in Smith v. Standard Oil Co., 149 Md. 61, 67, 130 A. 181, the particular second clause of the title was not a co-ordinate [***10]  of the first clause but qualified and limited the scope of the general first clause, and therefore was misleading as to the intent to include other subject-matter in the enactment. In the first case, the statute was upheld because the legislation was within the limits of both the general and qualifying and dependent second clause, and the act was no broader than either clause of its title. Drennen v. Banks, 80 Md. 310 at 315, 30 A. 655. But in the second case, the act was declared void because the legislation went beyond the subject limited by the restrictive second clause, as is illustrated by the case cited in support of Section 140 of 1 Lewis' Sutherland on Statutory Construction (2d Ed.).
B. The second point is based upon another clause of section 29 of article 3 of the Constitution of Maryland, which ordains that "no law, or section of law, shall be revived or amended by reference to its title or section only." This provision relates to the body of the statute and not to its title, and must be read in connection with these subsequent parts of section 29: "And it shall be the duty of the General Assembly, in amending any article or section of the Code of Laws [***11]  of this State, to enact the same as the said article or section would read when amended. And whenever the General Assembly shall enact any Public General Law, not amendatory of any section or article in the said Code, it shall be the duty of the General Assembly to enact the same, in articles and sections, in the same manner as the Code is arranged, and to provide for the publication of all additions and alterations which may be made to the said Code." See Dorchester County Commrs. v. Meekins, 50 Md. 28, 45; Anderson v. Baker, 23 Md. 531, 570, 585. There are no other provisions with respect to the form the body of an enactment must assume; and as these refer exclusively to amendments  [*165]  of any article or section of the Code, and to enactments of any public general law that are not amendatory of any such article or section, the quoted requirements have no application to the instant case, because the statute in question is neither an amendment of the Code nor a public general law, but merely an amendment of the charter of a private corporation. See Const. of 1864, art. 3, sec. 28; Const. of 1851, art. 3, sec 17. And since the cases,  [***12]  Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Stewart v. Commrs. of Hale County, 82 Ala. 209, 2 So. 270; State v. Hubbard, 148 Ala. 391, 41 So. 903; Board  [**408]  of Fire Commrs. v. Trenton, 53 N.J.L. 566, 22 A. 731; Board of Penitentiary Commrs. v. Spencer, 159 Ky. 255, 166 S.W. 1017; People v. Greer College, 302 Ill. 538, 135 N.E. 80; People v. Crossley, 261 Ill. 78, 103 N.E. 537, 544; Beale v. Pankey, 107 Va. 215, 57 S.E. 661; Portland v. Stock, 2 Ore. 69; Copland v. Pirie, 26 Wash. 481, 67 P. 227; Appeal of Barrett, 116 Pa. 486, 10 A. 36; Seay v. Laurel etc. Co., 110 Miss. 834, 71 So. 9; In re Lovett (D. C. Illinois) 2 F.2d 307; Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Smails v. White, 4 Neb. 353, are decisions of courts which were controlled by constitutions severally prescribing that the amendatory statute must set out at length the act so amended, they do not support the position of the next of kin.
It follows [***13]  that there is neither a mandatory nor a directory constitutional provision which requires that the revival or amendment of the charter of a private corporation must set out in full the whole charter or such sections as are so finally revived or amended. The question here then is: Was chapter 290 of the Acts of 1842-43, creating a private corporation, revived or amended by reference to its title or section only? There are but few decisions which relate to this clause. In Davis v. State (1854), 7 Md. 151, 158, the court held that there could be a repeal of a statute by implication where there was a subsequent inconsistent enactment, although the Constitution then read "no law or section of law shall be revived, amended, or repealed by reference to its title or section  [*166]  only." Const. 1851, art. 3, sec. 17 In Dorchester County Commrs. v. Meekins (1878), 50 Md. 28, the decision was that the imposition of the duty upon the General Assembly to enact public laws in articles and sections was merely directory; and that the present Constitution had omitted the words "or repealed," and there was no longer any restriction upon the Legislature with [***14]  respect to the repeal of laws by reference to their titles alone. Pages 44, 45 of 50 Md.; Redmond v. State, 155 Md. 13, 17, 141 A. 383. And in Barron v. Smith (1908), 108 Md. 317, 70 A. 225, it was determined that a provision in the Code of Public General Laws may be repealed, so far as it relates to a territorial division of the state, by a statute making reference in its title to the article and section of the Code; and such statute is not in conflict with the portion of article 3, section 29, of the Constitution now under construction.
These last cited cases are all instances in which the constitutional requirement was considered in connection with a public law, and the combined effort of counsel and bench has not found a decision of this court in which the precise point here involved was determined. In the solution of the problem, the fact that there is no constitutional mandate with respect to the form of an enactment reviving or amending a private law, except that it be not revived or amended by reference to its title or section only, leaves, with this single restriction, absolute freedom in the formulation of the body of the statute. It is [***15]  clear that the expression of the legislative intent must go beyond the enacting words and the repetition either of the title or of the title and the designation of the particular section by reference. It is also clear that the requirement that the enactment shall be of a certain form and manner in designated instances, exempts all different legislation from the operation of these particular constitutional provisions. So, what is necessary to gratify the clause in question, when applied to a law reviving or amending a private statute or one of its sections, lies between the necessity of going beyond a mere reference to its title or section, and  [*167]  the privilege of enacting the law or section without setting it forth as it would read as amended, and in articles and in sections as the Code of Public General Laws is arranged. Within the limits bounded by these two extremes, a private act is constitutional unless it exemplify the legislative mischief the constitutional mandate was designed to correct. Although expressed in decisions in which public laws were involved, this court has summarized the evils, and stated the purpose of the inclusion of this clause in the Constitution,  [***16]  in Davis v. State, 7 Md. 151, 159, and Barron v. Smith, 108 Md. 317, 326, 327, 70 A. 225. From these decisions it would appear that the mischief to be corrected was the insertion of additional provisions in the body of the law, the striking out of phrases, clauses, sentences, or paragraphs, and the change, addition, or omission of words by mere reference to the place in the old law where the modification should be introduced, so that the former law would have to be examined and the two compared in order to understand the effect of the proposed legislation. In these illustrations, or in case there should be a revival of a law by reference to the title, the assemblymen would have to make an examination of the state of the law proposed to be amended and determine its effect, without having the law in its ultimate and certain form presented for their convenient consideration. The resulting confusion, which would be greatly increased in the event of other amendment, would make it difficult for the legislators to comprehend the pending bill, and for the public to know definitely the law of the subject. In addition, the confusion and uncertainty which arise [***17]  from the proposed legislation not being submitted in its complete and contemplated form would afford greater opportunity for mistake, for the  [**409]  perpetration of wrong, and for the passage of undesirable, ill-advised, and corrupt measures. Sutherland on Statutory Construction, sec. 131; Cooley's Constitutional Limitations (8th Ed.), pp. 313-319.
If the projected special or private legislation should be clear and comprehensible from its language, and its effect  [*168]  upon the subsisting law of which it is a revival or an amendment should be obvious, it is manifest, from the terms employed, that both the letter and the spirit of the clause of the Constitution would be gratified and the mischief remedied. So, if the reviving or amendatory act is complete in itself, or shall identify in terms the law to be affected, and shall explicitly embody the change in the existing law that will be accomplished by the new legislation, then no one reading the law is either misled as to the intent, or not apprised of the result of the new statute, which would, therefore, be neither within the letter nor the spirit of the constitutional prohibition.
In the present case the preamble [***18]  to the act of 1872 may be resorted to for the purpose of obtaining information with respect to the provisions of the original charter. Chesapeake & Ohio Canal Co. v. Balto. & O. R. R., 4 G. & J. 1, 90; Levin v. Hewes, 118 Md. 624, 634, 86 A. 233. By this preamble the intent to amend the specific charter is made clear, as well as the corporation's name, the limitation of its corporate life to thirty years, and the immediate necessity that the corporate franchises granted by the act should be continued in order that the beneficent purposes of the corporation be prolonged. The body of the enactment discloses the legislative intent to be: (A) The extension in time of a temporary corporate life to one in perpetuity without any alteration in the corporate powers; and (B) the change of the old name of the "Maryland State Bible Society" to that of the "Maryland Bible Society," subject to the provisions (a) that the clear annual income of the corporate property shall not exceed the sum of $ 10,000, and that all suits shall be brought in the name of the president of the Maryland Bible Society; and (b) that the Legislature reserves the right to alter, amend, [***19]  or repeal the new, as well as the original, at any time. See Phinney v. Sheppard Hospital, 88 Md. 633, 637, 42 A. 58; Const., art. 3, sec. 48; Hodges v. Railway Co., 58 Md. 603, 620, 621; Acts of 1870, chs. 6, 38, 127, 145, 149, 227; Acts of 1872, chs. 5, 6, 41, 129, 142; Acts of 1874, chs. 4,  [*169]  74, 110, 111, 138, 192, 249, 316, similarly removing or extending time limit of corporate duration.
From the preceding statement of its form and content, it is conclusive that the act here assailed is neither within the letter nor the general purpose and policy of section 29 of article 3 of the Constitution.
C. The charter of the society authorizes it to hold by deed, bequest, or devise any interest in realty or personalty, and "to use, sell, mortgage, lease, transfer or convey all or any part of said property; provided, that the clear annual income of such estate, interest and property shall not exceed the sum of ten thousand dollars." Acts of 1842-43, ch. 290, sec. 2, 1872, ch. 118, sec. 3.
The sanction and consent of the Legislature to the gifts made by the testatrix to the society were given by Acts 1929, ch. 554, at page 1337. See Basshor v. Dressel, 34 Md. 503, 510, 511; [***20]  Koch v. North Ave. Rwy. Co., 75 Md. 222, 225-226, 23 A. 463; Munich Co. v. United Surety Co., 113 Md. 200, 224-225, 77 A. 579. The property, however, if it should thus pass to the society, would yield a clear yearly income in excess of $ 10,000, provided the gift be put or kept in the form of an investment. So, the next of kin maintain that the corporation has no power to hold the gift and, therefore, cannot take it and, consequently, that a court of equity will not decree that the gift be delivered to the corporation, since it would be a nugatory act to put the corporation in possession of what it cannot keep within the law of its being.
The vice of this argument lies in its assumptions of fact. The limitation imposed by the statute is not upon the quantity or value of the corporate property, but upon its aggregate net yearly yield to the corporation, which may be predicted, but never ascertained until the end of year. Moreover, for its corporate purposes, the corporation may use, sell, mortgage, lease, transfer, or convey all or any part of this property at any time during any of the these successive periods of twelve months. The "promoting of the [***21]  circulation of the Holy Scriptures, without note or comment," is a vast  [*170]  design which is not limited in language nor in hemisphere, but is consistent with the expenditure of large capital sums in a single year. Hence the corporate assets at the close of a fiscal year may be much less than at the beginning, and the clear income so greatly affected by the corporate use made of the corporate property during the yearly period that, no matter how large the acquisition of property may have been throughout the year, at its close the net income of the aggregate assets would not exceed the sum prescribed by the statute. It follows that the statute contemplates, at the end of every year of corporate life, the computation of all income received upon all the corporate property which has at any time been held throughout that year; and that any excess of clear corporate income from  [**410]  all corporate assets is then determinable by such periodic calculations.
The position of the next of kin would require the test of the power to take depend upon the potential income of the particular gift at the time of its delivery, despite the fact there might never be any income received by [***22]  the corporation, by reason of either a failure of dividends or of other expected yield, or of the application of the gift to corporate purposes. In other words, the argument of the next of kin is that, notwithstanding the corporation can lawfully use and expend, as quickly as requisite, the entire sum of the benefaction for any corporate purpose, the mere possibility that the gift may assume the form of an investment, which shall be suffered to continue for a period of one year, during which the clear income thereof shall be over $ 10,000, is sufficient to make the gift voidable. In order to accede to this construction, the operation of the provision under review is made to turn upon the probable, although essentially contingent and conjectural, earning capacity for the next succeeding year of the gift, at the time of its acquisition by the corporation, instead of upon the income of all corporate assets as definitely established at the end of the normal fiscal year of the corporation. Not only must an ascertained fact at the end of a year be abandoned for an assumption, at the beginning  [*171]  of that period, of what that fact may be at the termination of the year, but this assumption [***23]  also exacts the arbitrary rejection of the possibility of the exercise of any corporate power other than keeping the gift intact as a capital investment, although the animating purpose of the corporate enterprise is not the accumulation of invested funds nor the earning of financial profit, but the diffusion of the Holy Scriptures through a wide circulation among all the nations of the earth. From these considerations it is apparent that the test of the corporate power to have and to hold the property of which it is the owner is at those recurring annual periods when the clear income of all its property for the preceding year is determined. By limiting to a fixed amount the net annual income of the corporation from all its property, the statute effectively restrained within definite limits the accumulation of productive capital assets in the corporation. The distinguishing feature of the limitation is that it is measured by a periodic net income, which is derived from all the corporate property and is fixed in its greatest amount, but which may remain, notwithstanding large productive benefactions, within the prescribed bounds, by the conversion and consumption, at any time and to [***24]  any extent, of the corporate property in the prosecution of the pious purpose for which the corporation was created.
Consequently, on reason and authority, the gift in question passes to the Maryland Bible Society; and, should the clear yearly income from all corporate property be increased to an amount in excess of the charter limitations, the State, and not the next of kin, may then complain. By this construction the intention of the Legislature, as manifested by the provision in question and the context, is gratified, and the rule for this jurisdiction, stated in Hanson v. Little Sisters, 79 Md. 434, 439, 440, 32 A. 1052; In re Stickney's Will, 85 Md. 79, 104-107, 36 A. 654; Waters v. Order Holy Cross, 155 Md. 146, 154, 142 A. 297; Jones v. Habersham, 107 U.S. 174, 187, 2 S. Ct. 336, 27 L. Ed. 401; Id., 3 Woods, 443, 13 Fed. Cas., page 957, No. 7465, is enforced.  [*172]  To exceed a limit in the holding of property, whether measured in terms of value or income, is not a private wrong but a violation of a policy or mandate of the State with consequences which the State alone may redress.
The [***25]  cases last cited are precedents against the points made by the next of kin on this phase of the case. The doctrine of this forum, that the acquisition and holding of property by a corporation in excess of a charter limitation cannot be questioned by a private person, but the State alone may assert the voidable nature of the acquisition or holding, in a direct proceeding begun for that purpose, is announced and applied in instances (a) where the statutory restriction is expressed in language similar to that used in the will at bar; (b) where the gift attacked itself exceeds in amount or income the charter limitation, instead of becoming violative of the inhibition when added to the property already owned by the corporation; and (c) where personalty was the kind of property involved and the personal representative of the testator had not assented to the gift. Jones v. Habersham, 107 U.S. 174, 187, 2 S. Ct. 336, 27 L. Ed. 401; Hanson v. Little Sisters, 79 Md. 434, 439, 32 A. 1052; In re Stickney's Will, 85 Md. 79, 104, 36 A. 654; Waters v. Order of Holy Cross, 155 Md. 146, 154, 142 A. 297.
The last point rests upon the [***26]  erroneous conception that the legatee has no title to his bequest until the executor has made a distribution to the residuary legatee of his portion of the residuary estate. Drovers' etc. Bank v. Hughes, 83 Md. 355, 361, 34 A. 1012. This view is too narrow, as it ignores the distinction between a legal and an equitable title, and between property which is vested in interest but not in possession, and property which is vested both in interest and possession. A residuary bequest is a general and not a specific legacy, as the residuary legatee  [**411]  takes the rest and residue of the personal estate after the payment of all costs and expenses of administration, of the debts and charges against the estate, and of all other legacies having priority under the will. Miller's Construction of Wills, secs. 58, 131; Miller v.  [*173]  Weber, 126 Md. 658, 663, 664, 95 A. 962. At the death of the testator the legal title to all the personalty devolves upon the executor for the purpose of administration in due course and according to the terms of the will, and, in order to protect him against liability for the testator's debts to the extent of the [***27]  assets in his possession, no legatee could acquire a complete title to his bequest without the assent of the executor to the delivery of the legacy. So, while the legal estate in the personalty passing under the residuary clause of the will was vested in the executor from the time of the death of the testatrix, and would not ordinarily pass from the executor to the residuary legatee, so as to give the legatee the right to maintain an action at law for the bequest, before the executor had signified his assent by making a distribution of the residue of the estate, yet until, by this distribution, the residuary bequest became fixed in kind or sum and the title absolute and complete, the inchoate or beneficial title in the residue, although uncertain in amount or kind, was concurrently vested in interest in the residuary legatee, or his assignee or personal representative. Drovers' etc. Bank v. Hughes, 83 Md. 355, 360, 361, 34 A. 1012; Rockwell v. Young, 60 Md. 563, 566; Schaefer v. Spear, 148 Md. 620, 627, 129 A. 898; Sloan v. Sloan, 117 Md. 141, 150, 151, 83 A. 38; Crean v. McMahon, 106 Md. 507, 519-522, 68 A. 265; [***28]  Bagby's Executors and Administrators (2d Ed.) sec. 42; Woerner on Law of Administration (3d Ed.), sec. 453; Schouler on Wills etc. (6th Ed.), sec. 3071; Williams on Executors, vol. 2, 1225, 1226 (star); Roper on Legacies, vol. 1, 844 (star).
The consent of the executor creates no new title, and that of the residuary legatee is derived through the will, and generally perfected or completed by administration in the orphans' court and a distribution; but where the validity of a devise or bequest is the inquiry for determination, or where the proper settlement of an estate is rendered difficult and complicated by the true construction of the will and by the uncertainty of who are the next of kin and parties in interest,  [*174]  recourse may be had to equity, which will assume jurisdiction to superintend the administration of assets, and to decree distribution among the legatees and distributees without reference to the assent of the executor to the legacy. Fenby v. Johnson, 21 Md. 106, 116, 119; Myers v. Forbes, 74 Md. 355, 360, 363, 22 A. 410; Davis v. Clabaugh, 30 Md. 508, 510, 511; Ege v. Hering, 108 Md. 391, 412, 415, 70 A. 221; [***29]  Reilly v. Union Protestant Infirmary, 87 Md. 664, 666, 40 A. 894; Myers v. Safe Deposit Co., 73 Md. 413, 427, 428, 21 A. 58; Meyers v. Kooke, 146 Md. 471, 473, 474, 126 A. 710.
So, by bringing the construction of the will and the further administration and the distribution of the estate under the jurisdiction, supervision, and direction of chancery, the assent of the executor, the party complainant to the cause, to the several legacies, is implicit in whatever the chancellor may decree with respect to these legacies. The equitable title to the shares is now in the society, and its title will be complete with the passage of a decree determining and distributing its share. Supra; Jones v. Habersham, 107 U.S. 174, 2 S. Ct. 336, 27 L. Ed. 401; Id., 3 Woods, 443, 13 Fed. Cas., page 957, No. 7465; In re Stickney's Will, 85 Md. 79, 98, 36 A. 654, 35 L. R. A. 693, 60 Am. St. Rep. 308; Waters v. Order of Holy Cross, 155 Md. 146, 142 A. 297.
As a result of these conclusions, the several gifts to the Maryland Bible Society are valid.
II. In disposing of a one-half of the residue [***30]  of her estate, the testatrix separated it for testamentary purposes in twelve equal parts, and disposed of two of these undivided interests in these terms: "To the 'Home for Incurables for Men' in Baltimore, Maryland, one of said twelve equal portions or shares; To the 'Home for Incurables for Women in Baltimore,' Maryland, one of said twelve equal portions or shares."
The testatrix wrote the will, and her punctuation and capitalization appear from the text to be so free, arbitrary, and variable as to afford no reliable guide to her meaning.  [*175]  A striking illustration of this characteristic occurs in an earlier item of her will, where she exercised a contingent power of appointment by giving a fourth part of the subject matter to the "Home for Incurables for Men" and another fourth to the "Home for Incurables for Women," without any other description. It will be observed that, although she employed quotation marks, she omitted from the second name the last two words which were inclosed within quotation marks in the item of the will to be construed. Under such circumstances, the meaning will not be controlled by punctuation or capitalization, if the intention of the testatrix [***31]  can otherwise be ascertained. The discovery of a testamentary design may be added, but not defeated, by punctuation or capitalization. Black v. Herring, 79 Md. 146, 149, 28 A. 1063; Olivet v. Whitworth, 82 Md. 258, 277, 33 A. 723; Miller v. Weber, 126 Md. 658, 663, 95 A. 962; Ewing v. Burnet, 36 U.S. 41, 11 Pet. 41, 9 L. Ed. 624; Miller on  [**412]  Construction of Wills, sec. 20, p. 78; State v. Warfield, 139 Md. 74, 77, 114 A. 835.
If the quotation marks be disregarded, the two names are identical with the exception of for Men in the one and for Women in the second. The context of the will makes it plain that the names were each intended to designate a corporate body. However, neither at the time of the making of the will nor since has there been any corporation in Baltimore nor in this state whose corporate title corresponded to either of the two given in the will. It is indispensable to the validity of every testamentary disposition that there be not only a definite subject of disposition but a definite object of the testator's bounty. There is admittedly no uncertainty with [***32]  reference to the subject, but the next of kin insists there is no certain object in either gift because no such corporations exist. While it is true there is no corporation whose title literally agrees with that of the beneficiary of either gift, yet a misnomer will not defeat a devise or legacy if the identity of the beneficiary is otherwise sufficiently certain. As is admirably stated in Miller's Construction of Wills, sec. 51: "The name is simply descriptive of the legatee. The name  [*176]  is no more the legatee than is the name of an individual the individual himself. It is the identity of the individual, natural or artificial, that is material, not the name, for this name is simply one of the means by which the identity is ascertained. The identity being established, the name is of no importance." And, so, in the case of a corporation, provided the corporation intended is made apparent. If it is the testator's intention that a particular corporation should take the gift, and if that intention sufficiently appear from the language of the will, when read in connection with the situation of the testator at the time the will was written, then the real legatee or devisee is [***33]  ascertained and will take, notwithstanding the inaccuracy with which the corporation has been named. The effect of holding a legacy or devise void because of a misnomer of the beneficiary is to divert the gift from the object of the testator's bounty and to bestow it upon those whom the testator intended should not receive it, so the court will endeavor to preserve the intention of the testator, as made known by the words of the will and the circumstances which attended the testator at its execution. Miller's Construction of Wills, sec. 52, 10, 13. There are many illustrations of this rule in the reports, as, for example, Reilly v. Union Protestant Infirmary, 87 Md. 664, 666, 40 A. 894; Doan v. Ascension Parish, 103 Md. 662, 665, 64 A. 314; Woman's Soc. v. Mitchell, 93 Md. 199, 202-205, 48 A. 737; Holloway v. Mission Helpers, 119 Md. 667, 671-672, 87 A. 269; Board of Foreign Missions v. Shoemaker, 133 Md. 594, 599, 105 A. 748; Gardner v. McNeal, 117 Md. 27, 32-33, 82 A. 988.
When the testatrix made the will she was a spinster with wealth. She lived in Baltimore and wrote the will [***34]  in her own handwriting, and the words of the immediate clause under consideration declare a testamentary intention to aid by gift in securing and maintaining a home for a general class which is composed of those diseased persons who are incurably afflicted. Her language, also, made clear that in this charity she desired her benefaction to be devoted equally to the relief of men and women, because she devised and  [*177]  bequeathed the same portion of her estate for each sex. It is further manifest from the four corners of the will that she intended and believed that an existing corporation was the object of her bounty and the selected legal entity through which her charity should be accomplished. This is plain because, in the preceding item 16 of her will, she exercised a contingent power of appointment of a trust fund by giving a fourth to each of two corporations, and then a fourth to the "Home for Incurables for Men," and the last fourth to the "Home for Incurables for Women," and concluded the appointment with the explanatory sentence: "The property so given to the said corporations to be applied in each instance by the recipient to its corporate purposes." The definite terms [***35]  of this sentence are not modified by any portion of the will, so it is indisputable that the testatrix intended a corporation to take each gift, but the words are not inconsistent with the two gifts for a home for the incurables being intended for a corporate entity whose function was to secure and maintain a home for the incurables of both sexes.
Having been informed by the words of the document of the testator's testamentary design, the circumstances under which she wrote clarify her meaning and make certain the object of her two gifts. When the testatrix was in the course of forming her plan for the will, she knew that, under the name of Home for Incurables of Baltimore City there was a charitable corporation engaged in providing a home for incurables. This institution was incorporated in 1883 for the "creation and maintenance of a hospital or asylum in and near the City of Baltimore," with its principal office in Baltimore. It was a corporation without capital stock or shareholders, and depended upon charitable contributions for its support. Although both sexes were within the scope of its relief, the corporation, notwithstanding a continuous intention,  [**413]  had never been [***36]  able financially to receive men as inmates to its home. At the time of writing the will, and for more than twenty years afterward, there was no institution in Baltimore or within the State of Maryland that provided  [*178]  a home for incurables except the Home for Incurables of Baltimore City.
When the testatrix expressly discloses in her will that it is a subsisting corporation which is the object of each of her gifts, and that this corporation is located in the city of her own residence, and there is, at the execution of her will, in the whole state but one existing legal entity whose corporate functions embrace and can fulfill the benevolent purpose of the testatrix and, so, answer the descriptive terms of her will, it is certain beyond reasonable denial that this single corporation, which was known to her when she wrote the will, is the one intended by the testatrix. It is not incompatible with this construction that there are two subjects of disposition, since a plurality of legacy or devise to one legatee or devisee is not an anomaly. The words of each gift would be identical if for Men, in one, and for Women, in the other, were left out, and this elimination would [***37]  leave no question as to the identity of the beneficiary in each gift. When the testatrix sat down to write her will, without aid of counsel, it would be unreasonable to hold her to technical accuracy, and the interpolation of the words for Men and for Women in the title, together with the division of the share given to the corporation into two parts, was obviously to indicate the writer's desire that the legatee and devisee would use one-half for men and one-half for women in providing a home for the incurable. If the words were capable of a twofold construction, and one would defeat and the other effectuate the testator's object, the court is bound to choose the construction which would prevent an intestacy.
Since the property was given to the corporation for such uses or application as are within the scope of its corporate purposes, and there was no intention on the part of the testatrix to create a trust, the gifts cannot be declared void on the ground that they were in trust for indefinite purposes or in conflict with the rule against perpetuities. Hanson v. Little Sisters, 79 Md. 434, 436, 32 A. 1052; Trinity Church v. Baker, 91 Md. 539, 46 A. 1020; [***38]  Waters v. Order of Holy Cross, 155 Md. 146, 151, 142 A. 297; Ege v. Hering, 108 Md. 391,  [*179]  70 A. 221; Board of Foreign Missions v. Shoemaker, 133 Md. 594, 105 A. 748; Peter v. Carter, 70 Md. 139, 16 A. 450; Halsey v. Convention, 75 Md. 275, 281, 23 A. 781; Baltzell v. Church Home, 110 Md. 244, 271, 73 A. 151; Miller's Construction of Wills, sec. 164, p. 439.
The chancellor held the legacy and devise to the Home for Incurables for Men was void, but sustained the legacy and devise to the Home for Incurables for Women. In failing to decree both gifts valid he was in error.
III. The remaining questions arise on these further provisions of item 20:
"To the 'Invalid Fund for Disabled Ministers' in the care of the trustees of the General Assembly of the Presbyterian Church in the United States (popularly known as the Southern Presbyterian Church) one of said twelve equal portions or shares; To the trustees of the General Assembly of the Presbyterian Church (popularly known as the Southern Presbyterian Church) one of said twelve equal portions or shares, and I suggest that [***39]  the same or the proceeds thereof be applied by the said General Assembly to the Home Missions Work in its charge."
The next of kin do not question the validity of the second gift but the first is challenged as void.
The corporation known as the Trustees of the General Assembly of the Presbyterian Church in the United States was incorporated by the State of North Carolina in 1866 (Private laws of North Carolina, Acts of 1866, ch. 30). It was granted full capacity to take and hold all forms of property, whether acquired by gift, purchase, devise, or bequest. Its broad powers and functions were further enlarged by the passage of an amendment in 1872 (Laws of North Carolina, Acts of 1871-72, ch. 87) that enabled the corporation to undertake and carry on works for the relief of invalid ministers and the widows and children of deceased ministers, and all other benevolent objects of the church. From that time until the death of the testatrix on July 24th, 1928, the only pertinent changes in this corporate charter were made in July, 1925, by an amendment removing all limitations  [*180]  upon the property which could be held, and lengthening the corporate name by an addition which made [***40]  the title read: Trustees of the General Assembly of the Presbyterian Church in the United States and the Presbyterian Foundation, Incorporated.
When the will was made, in December, 1897, one of its corporate purposes was the relief of invalid or disabled ministers, or the undertaking of any other benevolence with reference to this class. So, the gift was well within the corporate capacity to acquire. The difficulty arises because of the manner of making the gift. It is not made direct to the corporation or to any unincorporated agency of the corporation, for the purpose of carrying on certain corporate functions of the corporation, but is to a fund which is used for  [**414]  a specific corporate function. And the gift is to a corporate fund which is in care of the legal entity to take the title of all the corporate property and to use, hold, and administer this property for its several corporate functions. The language is plain enough to show that the testatrix must necessarily have intended the absolute title to pass to the corporation to use the gift thus acquired as a portion of an existing fund then in its hands for a specific corporate purpose. Where the intention of the [***41]  testatrix is so evident, a mere inartificiality in expression will not be permitted to divert a clear testamentary purpose into an intestacy. Miller's Construction of Wills, secs. 164, 165, pp. 434-445; Littig v. Hance, 81 Md. 416, 424-426, 32 A. 343; Holloway v. Mission Helpers, 119 Md. 667, 671-672, 87 A. 269; Board of Foreign Missions v. Shoemaker, 133 Md. 594, 599, 601, 105 A. 748; Mather v. Knight, 143 Md. 612, 614, 123 A. 109; Waters v. Order of Holy Cross, 155 Md. 146, 142 A. 297; Reilly v. Union Protestant Infirmary, 87 Md. 664, 40 A. 894. In the present instance there was no intention to create a trust, so no trust for uncertain beneficiaries is created, and this gift to a religious corporation for its corporate purposes is not invalid, although the beneficiaries of the corporation are uncertain. Supra; Eutaw Place Church v. Shively, 67 Md. 493, 10 A. 244; Peter v Carter, 70 Md. 139 16 A. 450;  [*181]  Halsey v. Convention, 75 Md. 275, 23 A. 781; Hanson v. Little Sisters, 79 Md. 434, 32 A. 1052; Bennett v. Humane Impartial Society, 91 Md. 10, 45 A. 888; [***42]  Baltzell v. Church Home, 110 Md. 244, 271, 272, 73 A. 151; Doan v. Ascension Parish, 103 Md. 662, 664, 64 A. 314; Ege v. Hering, 108 Md. 391, 413, 417, 418, 70 A. 221; Gray v. Orphans' Home, 128 Md. 592, 601-602, 98 A. 202; Conner v. Trinity Church, 129 Md. 360, 363-365, 99 A. 547; Rydzewski v. Grace Church, 145 Md. 531, 536, 537, 125 A. 717.
It follows that the chancellor rightly held and decreed that the legacy and devise here discussed passed under the will to the Trustees of the General Assembly of the Presbyterian Church in the United States according to its present amended corporate name.
For error in declaring the gift to the Home for Incurables for Men in Baltimore, Md., void, the decree must be reversed, but in other respects the decree is affirmed.
Decree affirmed in part and reversed in part, and cause remanded for further proceedings in conformity with this decision; the costs of this appeal to be paid out of the residuary fund. 

18 of 37 DOCUMENTS 

THE UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE, vs. THE STATE ROADS COMMISSION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

123 Md. 561; 91 A. 552; 1914 Md. LEXIS 148 

June 25, 1914, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Superior Court of Baltimore City. (HEUISLER, J.)

The facts are stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed, with costs to the appellant without awarding a new trial.  

HEADNOTES:

Police power: limitations of -- . State Roads Commission: improvement of highways; within limits of Baltimore City; rights of railway companies.

Chapter 141 of the Acts of 1908 does not give the State Roads Commission the power to take, acquire or disturb any interest, easement or right of any individual or corporation, otherwise than by agreement, gift, purchase or condemnation; and the fact that the Act expressly states the manner in which all property, rights and interests necessary for the purpose of the Act may be acquired, negatives the idea that the Legislature intended to confer upon the Commission the power to disturb those rights under the authority of the police power of the State.

p. 583

Whatever police power can be exercised by a municipal corporation over the rights and property of the citizen, must be derived from the Legislature of the State; it must be expressed by grant, or by fair and reasonable intendment; otherwise the trades and business of the people would be at the mercy of, and dependent upon, the caprice of those who might exercise municipal power, instead of being governed by the general law of the State.

p. 586

Chapter 141 of the Acts of 1908 does not authorize the State Roads Commission to require a railway company to move its tracks, at its own cost.

pp. 582, 584

The intention of the Legislature, as expressed by Chapter 141 of the Acts of 1908, was to provide for the entire cost of the construction and improvements of such roads and turnpikes, as might be selected by the State Roads Commission, as part of the system of new roads and highways of the State, and nothing in the Act suggests that part of that expense was to be borne by the electric railways company whose rights the Act expressly declares shall not be disturbed.

p. 589

Even if a city street may be improved by the State Roads Commission, yet turnpikes within the limits of Baltimore City, while in course of construction or improvement by the commission, belong to and are under the control of the State, and all contracts made by the commission for their construction or improvement must be construed with reference to the powers of the commission under the Act creating it.

p. 587

Where a contract, under which the United Railways Company made certain changes in its tracks and the streets on which they were laid, was made with the State Roads Commission, and the work was done in compliance with the commission's requirements, it was held, that the liability of the parties to any contract for the cost of such work must be determined by the provisions of the Act of 1908, and that the commission could not escape the liability of such expense on the ground that the city could require the railways company to make its track conform to any change that the city might make in the grade of such street.

p. 587 

COUNSEL:
Joseph C. France (with whom was J. Stanislaus Cook, on the brief), for the appellant.

S. S. Field, the City Solicitor, and Isaac Lobe Straus (with whom was Leon E. Greenbaum, on the brief), for the appellee.  

JUDGES:
The cause was argued before BOYD, C. J., BRISCOE, BURKE, THOMAS, PATTISON and CONSTABLE, JJ.  

OPINIONBY:
THOMAS 

OPINION:

 [*563]   [**552]  THOMAS, J., delivered the opinion of the Court.
In 1908 the Legislature passed an Act, Chapter 141, "providing for the establishment of a system of public roads and highways in Maryland, and providing for the appointment of a Commission to be known as the 'State Roads Commission,' with full powers to construct, improve and maintain public roads and highways in the several counties of this State; and providing also the ways and means, and making the necessary appropriations of money and for a bond issue for the construction, improvement and maintenance thereof, and for the expenses of such Commission in the execution of its powers and duties.  [***2]  "
 [**553]  By Section 32B of the Act, the State Roads Commission, hereinafter referred to as the Commission, was given full power and charged with the duty to select, construct, improve and maintain such a general system of improved State roads and highways as could "reasonably be expected to be completed" with the funds therein provided "in and through all the counties of this State," and was required to make the selection of the roads to be improved before the first of May, 1909. The Commission was authorized to make such preliminary investigation, to do such preliminary work and to adopt such means or system of road construction, etc., as in it its judgment was best calculated to promote the objects of the Act; "condemn, lay out, open, establish, construct, extend, widen, straighten, grade and improve, in any manner, any main road, of the system, in any county of this State and establish or fix the width thereof; cause to be prepared such surveys, plans, drawings or maps as it may deem proper in the course of its work; acquire for the State of Maryland, by agreement, gift, grant, purchase or condemnation proceedings *** any private road or roads whatsoever, or private property [***3]  or rights of drainage for public use, whether belonging to private individuals or to turnpike companies or other corporations, and including any avenues, roads, lanes or thoroughfares, rights or interests, franchises, privileges or easements, that may be, in its judgment,  [*564]  desirable or necessary to complete said system of roads or to carry out the purposes of this Act; contract with any person or persons, company or corporation, either private or quasi-public, or municipal, in furtherance of the duties and objects of this Act or any of the same," etc. This section authorized and directed the Commission to include in its work of improving the system of main roads of the State the improvement of such portions of the main roads selected by said Commission as a part of such system "as lie inside the limits of the City of Baltimore, up to the old city limits, provided that on completion of such improvements, the portions of the roads so improved within the city limits shall be city streets under the provisions of the city charter," and provided that "where rights, easements and franchises of the United Railways and Electric Company of Baltimore, its successors and assigns, exist [***4]  upon any turnpike or private right of way in the Annex which may be improved hereunder, then said rights, easements and franchises may (if the Mayor and City Council of Baltimore and said railways company, its successors and assigns fail to agree upon terms of purchase or surrender) be condemned by the Mayor and City Council of Baltimore under the provisions of Chapter 274 of the Acts of 1904, and Chapter 566 of the Acts of 1906, or in the exercise of its general powers of condemnation, the cost thereof to be defrayed out of the loan provided for in said first mentioned Act, or out of the ordinary proceeds of municipal taxation; provided, however, that the provisions of said Act of 1906 shall be obligatory upon, and not discretionary with, the Mayor and City Council of Baltimore and the Board of Estimates, and the price to be charged for new rights, franchises and easements similar to those condemned, shall be the same as the amount of the condemnation award."
Section 32C is as follows: "If the State Roads Commission shall determine that the public necessity or convenience, or that the purposes of this Act require that any turnpike, or part thereof, whether maintained as such by any [***5]  turnpike  [*565]  company or otherwise, or whether formerly maintained as such and now abandoned by any turnpike company, or that any public road in whole or in part in any county or counties, and forming a section of a through route or continuous thoroughfare between two or more important points in the State, should be taken charge of by said Commission for the State for the purposes of this Act, then, as to such public road or abandoned or acquired turnpike, whether acquired by purchase or condemnation, the said Commission shall file a certified copy of the plan thereof in the office of the County Commissioners for the county or the several counties in which said section or sections of road or turnpike may be situated, and setting forth its purpose to acquire and to take over the same, and said Commission thereupon, without any further procedure, shall acquire and take over any such and all county roads, turnpikes or sections thereof or interests or rights therein, as in its judgment may be necessary or proper for the purpose of this Act, and with full power to widen, relocate, change or alter the grade or location thereof; and said Commission shall have full power so to take [***6]  over and take possession of any county road or abandoned turnpike, and to accept by gift or surrender, and to acquire by purchase or condemnation, any and all existing turnpikes or any sections thereof, or any rights or interests therein, subject to any outstanding occupation, use or franchise of any electric railway company or other public service corporations; and thereafter all highways, however acquired hereinunder, shall be State highways and shall be constructed, improved and maintained by said Commission for the State and at its expense, except as provided in Section 32B."
Section 32E provided, "that said Commission shall keep all State highways reasonably clear of brush and maintain same in good condition; shall cause suitable shade trees to be planted thereon, if practicable, and may establish and maintain watering troughs upon said highways. No opening shall be made in any such highway, nor shall any structure be  [*566]  placed thereon, nor shall any structure which has been placed thereon be changed or renewed, except in accordance with a permit from the Commission, which shall exercise complete control over such highways, except as herein otherwise provided. No State [***7]  highway shall be dug up for laying or placing pipes, sewers, poles, wires or railways, or for other purposes, and no trees shall be planted or removed or obstruction placed thereon without the written permit of the State Roads Commission, or its duly authorized agent, and then only in accordance with the regulations of said Commission; and the work shall be done under the supervision and to the satisfaction of said Commission; and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the permit was given or by whom the work was done; provided, however, that no electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed in its operation or in the maintenance of its roadbed and overhead construction and all necessary repairs, together with the maintenance of the space between its tracks and two feet on each side thereof shall be performed by such railroad company under the supervision and to the satisfaction of said Commission. Said Commission may give suitable names to the State highways and may change the name of any highway which  [**554]   [***8]  becomes a part of a State highway. They shall erect suitable guide posts at convenient points along State highways."
In 1910 the Legislature passed an Act, Chapter 116, page 304, "enlarging the powers of the State Roads Commission as created by Chapter 141 of the Acts of 1908"; and "providing, also, for the enlargement of the work of said commission and making the necessary appropriations of money; and for an additional bond issue for the purpose of carrying out the provisions of this Act." This Act authorized the Commission to acquire, construct and maintain bridges for the purpose of making connection between any highways or  [*567]  parts of any highway constructed and improved by it; to acquire by purchase, condemnation or otherwise the Conowingo Bridge across the Susquehanna River, to build a bridge across the Nanticoke River, and to construct a highway to be known as the Annapolis and Baltimore Boulevard, and provided that "Nothing in any of the foregoing sections or in the provisions of any Act adding to or supplementing Chapter 141 of the Acts of 1908 (creating the State Roads Commission) shall be construed as modifying or changing the provisions of said last named Act,  [***9]  in so far as the same define and regulate the rights of any electric railways company in operation upon any public or private road or existing or abandoned turnpike," and further providing that "Whenever any State road crosses the grade of the line of any railroad worked by steam or other power, the State Roads Commission shall have the power to contract with such railroad for the construction of any bridge, archway, or culvert that may be needed for the purpose of any over-grade or under-grade crossing; and to provide by contract or otherwise for the maintenance thereof. Provided, that one-half of the construction cost of such bridge, archway, culvert or roadbed shall be paid for by the railroad and one-half by the State Roads Commission."
On the 29th of April, 1909, the Commission and the United Railways and Electric Company of Baltimore City entered into an agreement by which the Railways Company, "to the extent of its ownership and interest in the Harford, the Baltimore and Jerusalem, and the York Turnpike roads," agreed that the same should be transferred to the commission without charge other than the cost, if any, of perfecting the title, "subject, however, to any and all railway [***10]  easements and rights of way now existing," and subject to the further provisions of the contract, among which were the following: "Where any tracts owned or operated over by the company now exist on any road which the commission may acquire and improve all changes made necessary by the  [*568]  work of the Commission shall be done by the company to the satisfaction of the commission and the expense incurred shall be paid by the Commission." "The company shall duly keep in repair the space between the rails of its tracks and the two-foot adjacent space, as provided by the State Roads Law; but, except by mutual agreement, it shall not be disturbed in the use of or required to change, the existing character of its rails, ties, ballast, roadbed or overhead construction; but the company will, at the request of the commission, lower or raise its tracks so as to conform with the adjacent roadway,--the expense incurred by any such change to be borne by the Commission." "The word tracks shall be taken to include switches, turnouts and electrical construction, unless such inclusion would be unreasonable. The formal Deed or Acts or Instruments of Surrender by and on behalf of the several turnpike [***11]  companies to the Commission shall in terms recite and reserve the rights of the company hereunder."
The agreement of counsel filed in the case states that after the execution of the above agreement "certain members of the State Roads Commission took the position that its terms were broader then they had intended them to be; that they had not intended to bind the Commission in regard to roads other than the three roads specified by name in said contract, namely, the York, Baltimore and Harford and the Baltimore and Jerusalem turnpike roads; that they thought that the Railways Company ought to enter into a supplemental agreement so that--as to the roads other than the three roads which the Railways Company had agreed to procure to be turned over to the Commission--the rights or obligations of the Commission in regard to the Railways Company's structures thereon should be passed upon and determined by the Courts. The Railways Company's position was that the agreement of April 29, 1909, was understood by the parties thereto and was intended to be exactly as it was. The company agreed, however, to make a supplemental  [*569]  agreement as requested by the Commission." The Railways Company [***12]  and the Commission accordingly entered into a supplemental agreement on the 7th of July, 1910, by which they agreed that the agreement of April 29, 1909, should be applicable to the roads referred to, "and that, as to all other roads on which the United Railways and Electric Company has or operates any tracks, the State Roads Commission shall proceed with such improvements or works as it may determine to make, subject to the provisions of Chapter 141 of the Acts of 1908 and any Acts of the General Assembly supplementary thereto, it being particularly agreed that as to all such other roads last aforesaid the said Commission shall in the first instance, pay the costs and expenses of all changes in the tracks, roadbed and overhead construction of the said Railways Company, caused by the works or improvements made by the said Commission, and that the ultimate liability for the costs and expenses of said changes shall be determined by the Courts according to law." The agreement further provided that as to all other roads than those mentioned in the agreement of April 29th, 1909, the work of changing said tracks, roadbed and overhead construction of the company should be done by the company [***13]  under the supervision and to the satisfaction of the Commission; that the payments to be so advanced by the Commission should be made on the 15th day of each month, and for the amount of the costs and expenses shown  [**555]  by vouchers, approved by a responsible official of the company and furnished by the company to the Commission not later than the 8th day of each month and approved by the Commission "to have been actually incurred for the changes in the tracks, roadbed and overhead construction of said railways company during the calendar month last preceding the 15th day of each month aforesaid caused by the works and improvements made by the Commission upon said roads, and the further and additional sum of ten per cent upon the amount of said  [*570]  actual costs and expenses for each said calendar month for tools and supervision provided by said Railways Company."
Under the supplemental agreement referred to the Commission undertook the improvement of the Falls Road, in Baltimore County and Baltimore City, the Baltimore and Liberty Turnpike Road, within the present limits of Baltimore City, known as Garrison Avenue; First Street, in Brooklyn, Anne Arundel County, and [***14]  Maryland Avenue, in Westport, Baltimore County. In reference to each of these roads the Commission and the Railway Company entered into a further agreement specifying the changes to be made by the Railways Company in the location, grade, rails and construction of its railway so as to conform to the specifications and requirements of the Commission, and further agreeing that the cost of said changes should be paid by the Commission and that the ultimate liability therefor should be judicially determined.
This suit was brought by the Commission in the Superior Court of Baltimore City to recover from the Railways Company the amounts paid by the Commission to the company in accordance with the agreements referred to.
In the agreement of counsel it is stated that the Commission expended for the relocation of the tracks and structures of the Railways Company on the roads mentioned the following amounts: On Falls Road, in Baltimore County, $ 25,209.75; on Falls Road, within the present city limits, $ 4,306.32; on the Baltimore and Liberty Turnpike Road, now Garrison Avenue, $ 40,972.54; on First Street, Brooklyn, $ 10,616.66; on Maryland Avenue, Westport, $ 6,811.44, which amount in the [***15]  aggregate to $ 87,916.68, and it was agreed that if the Court should find for the plaintiff, "in whole or in part," the above figures should be used by the Court "as a basis upon which the amount" of its judgment should be ascertained. It was further agreed that by reason of the changes and relocations of the company's tracks, roadbed and structures required by the Commission, the company  [*571]  incurred the cost of additional changes in its tracks, etc., for which it makes no claim against the Commission, to the following amounts: On Falls Road, $ 16,382.39; on the Baltimore and Liberty Turnpike Road (Garrison Avenue), $ 12,972.31; on First Street, Brooklyn, $ 3,839.66; on Maryland Avenue, Westport, $ 5,112.82; miscellaneous, labor and material, $ 589.89, amounting in the aggregate to $ 38,897.03; that the changes and relocations referred to above as having cost $ 87,916.68, the amount which the Commisson now seeks to recover, were necessitated by the plans and specifications adopted by the Commission for the improvement of the several roads mentioned, and that the work was done in compliance with said specifications and the orders of the Commission.
Prior to the passage of [***16]  the Act of 1908, Chapter 141, "and until the time the structures of the railways were removed at the instance of the State Roads Commission, the Railways Company maintained its tracks and structures upon" the roads hereinafter mentioned, as to which the "agreement as to facts" contains the following statements: "The defendant's structures in Baltimore County were located under and in accordance with grants executed in 1897 from the president, managers and company of the Falls Turnpike Road, the said grants setting forth a consideration of five thousand dollars and purporting to convey the right to the Falls Road Electric Railway Company to construct, maintain and operate its railway, and also under and in accordance with the charter of said company. The charter of the Maryland Traction Company, which was incorporated under the General Law, was amended by the Act of 1896, Chapter 360, which changed its name to the Falls Road Electric Railway Company and gave certain additional powers to that company. The rights of this company, as well as the rights of the other railway companies referred to in this agreement, are now vested in the defendant, The United Railways and Electric Company [***17]  of Baltimore. The  [*572]  Falls Road Turnpike Company was chartered by the Act of 1804, Chapter 91, for the purposes set forth in its charter. Some years thereafter the Falls Road Turnpike Company abandoned the Turnpike Road moving its gates therefrom and the State Roads Commission took over and acquired it as an abandoned road. *** The Mayor and City Council of Baltimore acquired the portion of Falls Road within the present city limits by deeds from the president, managers and company of the Falls Turnpike Road to the Mayor and City Council of Baltimore. The railway structures upon the Falls Road, within the present city limits, were constructed and maintained under an ordinance of the Mayor and City Council of Baltimore, Ordinance No. 105," approved June 11, 1896 (p. 52).
"One of the tracks of the Railways Company on the Baltimore and Liberty Turnpike Road in Baltimore City, now known as Garrison Avenue, was constructed under and in accordance with grants from the Baltimore and Liberty Turnpike Road in 1894 to the Baltimore Traction Company, said grants purporting to convey to the said company the right to construct, maintain and operate its railway, and under and in accordance [***18]  with the charter of said company. The Baltimore and Liberty Turnpike Company was chartered by the Act of 1860, Chapter 274. This charter was amended by the Act of 1902, Chapter 203. The other track of the Railways Company, upon what is now Garrison Avenue as widened, was located and maintained along and to the side of the turnpike under and in accordance with grants acquired from property owners of the property abutting upon the Turnpike Road. Where the Railways Company's structures have been relocated along the Liberty Road, that is upon Garrison Avenue as widened, the structures have been moved so that both tracks are now located in the center of the  [**556]  bed of Garrison Avenue as widened, the space which was formerly occupied by the track of the defendant, which was located under grants acquired from the abutting property  [*573]  owners before said tracks were relocated, having been included in the widened Garrison Avenue as improved by the State Roads Commission. By deed dated May 21, 1910, the Baltimore and Liberty Turnpike Company conveyed, assigned, released and quit-claimed unto the State Roads Commission all its rights, title, interest and estate in, to and over [***19]  that portion of its turnpike road within the present limits of the City of Baltimore. The agreement for the work on Garrison Avenue was entered into by the Railways Company and the Roads Commission on October 17, 1910, and the work, including the relocation of the tracks of the company, was commenced on the 19th day of October, 1910, and was finished on the 14th day of December, 1911. Garrison Avenue as at present widened, was widened by the Commissioners for Opening Streets, acting as the Annex Improvement Commission, under the Act of 1904, Chapter 274, and Ordinance No. 216 of March 6th, 1905. With respect to the franchise and structures of the Railways Company upon said Garrison Avenue, the agreement or arrangement embraced in the following correspondence and resolution of the Board of Estimates was made by the company and the City of Baltimore, to wit: 
"'December 10, 1910.

"'Edgar Allan Poe, Esq., City Solicitor.
"'Dear Sir: In order to remove any possible doubt as to our understanding relative to the Garrison Avenue situation, I am giving below a memorandum outline of plan, and will be obliged if you will look it over and let me know whether or not it conforms to your [***20]  ideas.
"'The City is endeavoring to secure quit-claim deeds or deeds to the reversion from the owners of the 10-foot strip to the side of the turnpike over which this company has an easement. When the City has obtained as many deeds as practicable, it will acquire the remaining portion of this strip through condemnation proceedings.
 [*574]  "'The City will institute condemnation proceedings against the rights and easements of this company upon the Liberty Road or Garrison Avenue as widened or intended to be widened, excepting from the effect of such condemnation all of this company's structures and removable property of every kind; and, before the final confirmation of the condemnation proceedings, the City will have introduced and passed an ordinance bringing the tracks under the graduated park tax, such ordinance to be on the general outline of the Seventh Street or Bloomingdale Road ordinance, as far as the latter is applicable. Of course, the provision as to the sub-grading and ballast will not apply, as the work is to be done by the State Roads Commission.
"'The City is to take care of any claim or claims of Mr. Marburg or others growing out of or in connection with the [***21]  yearly rental or charge of $ 250 for a single track on the Liberty Road,--by making Mr. Marburg or the proper person or persons parties to the condemnation proceedings.
"'This company is not to oppose a nominal award in the condemnation proceedings after the passage of the above-mentioned ordinance, and is to receive no compensation other than this nominal award for its rights along the Liberty Road or the 10-foot strip adjacent thereto.
"'Very truly yours,
"'J. Pembroke Thom,
"'Assistant General Counsel.'
"'December 13, 1910.

"J. Pembroke Thom, Esq.,
"'Assistant General Counsel,
"'United Railways & Electric Co., Baltimore.
"'Dear Sir: I have your favor of the 10th, relating to the Garrison Avenue situation, in which you outline the plan proposed to be followed. The plan as outlined in your letter meets with my approval,  [*575]  and is in accordance with the understanding reached between us. I will take the matter up before the Board of Estimates and let you know whether the plan is also acceptable to the Board.
"'Truly yours,
"'Edgar Allan Poe,
"'City Solicitor.'
"'Baltimore, December 14, 1910.

"'Edgar Allan Poe, Esq.,
"'City Solicitor.
"'Dear Sir: Your [***22]  letter of the 13th instant, confirming the understanding as outlined in my letter to you of the 10th instant, in regard to the Garrison Avenue situation, to hand. I will be glad to receive advice from you that the plan is acceptable to the Board of Estimates, after the matter has been laid before that body.
"'Very truly yours,
"'J. Pembroke Thom,
"'Assistant General Counsel.'
"'Copy of Minutes of Board of Estimates, December 20, 1910: City Solicitor Poe presented letter of Mr. J. Pembroke Thom, Assistant General Counsel of the United Railways and Electric Company, relative to the institution of condemnation proceedings upon Garrison Avenue. Upon motion of Mr. Hooper, seconded by Mr. Mahool, it was moved that the plan for the condemnation proceedings on Liberty Road or Garrison Avenue be approved by the City, the City to take care of any claim or claims of Mr. Marburg, or others, growing out of or in connection with the yearly rental or charges of $ 250.00 for a single track on the Liberty Road, by making Mr. Marburg or the proper person or persons parties to the condemnation proceedings.'
 [*576]  "'February 3, 1911.

"'J. Pembroke Thom, Esq.,
"'Assistant General Counsel,  [***23]  
"'United Railways & Electric Co., Baltimore.
"'Dear Sir: I write to state that your letter, in which you outlined the understanding that had been reached between you and myself, in reference to the plan of procedure in connection with the laying of the railway tracks, etc., on Garrison Avenue, was submitted by me some time ago to the Board of Estimates, and the Board gave the plan its approval.
"'Truly yours,
"'Edgar Allan Poe,
"'City Solicitor.'
"'Baltimore, February 4, 1911.

"'Edgar Allan Poe, Esq.,
"'City Solicitor.
"'Dear Sir: I beg to acknowledge receipt of your letter of the 3rd instant, in which you state that the understanding outlined in my letter to you of December 10, 1910, reached between you and myself in reference to the plan or procedure in connection with the laying of railway tracks, etc., on Garrison Avenue, was submitted to the Board of Estimates and that the Board gave the plan its approval.
"'Very truly yours,
"'J. Pembroke Thom,
"'Assistant General Counsel.'
"The proceedings were begun by a notice inserted in the papers by said Annex Commission on November 10, 1911, and have been completed, that is, all appeals have been disposed of at the [***24]  date of this agreement. In the proceedings for condemning and opening Garrison Avenue, a nominal award was made to the United Railways and Electric Company for their pre-existing rights and franchises, no award being made to William A. Marburg, who held an outstanding obligation for the payment of $ 250 a year, redeemable at  [*577]  $ 5,000, connected with said rights and franchises as to one track. Appeals were taken by both Marburg and the United Railways Company. In the Marburg appeal there has been an award of $ 3,250, to be paid him by the city, and the nominal award to the Railways Company has been confirmed, in pursuance of an agreement entered into in the Marburg case between the City Solicitor, the counsel for the Railways Company, and counsel for Marburg, by virtue of which the United Railways and Electric Company is to be given a new franchise under the Act of 1906, Chapter 566, the three years' exemption from the park tax to date from January 1, 1912, and the question whether or not the United Railways shall be charged the $ 3,250 to be adjusted between the Railways Company and the Board of Estimates, or,  [**557]  in default, to be submitted to arbitration. It [***25]  is expected that the ordinance will be introduced and passed in a short while.
"The Railways Company's tracks and structures on First Street, Brooklyn, Anne Arundel County, were located and maintained in accordance with the charter provisions of the Baltimore and Curtis Bay Railway Company and under and in accordance with a deed from the South Baltimore Harbor and Improvement Company of Anne Arundel County to the Baltimore and Curtis Bay Railway Company, which deed purported to grant the right to the Railways Company to construct and maintain a railway over and upon First Street. The Baltimore, South Baltimore and Curtis Bay Railway Company was chartered by Chapter 505 of the Act of 1890, and its name was changed to the Baltimore and Curtis Bay Railway Company by the Amendatory Act of 1892, Chapter 574."
"The Railways Company's structures, located on Maryland Avenue, Westport, were laid in accordance with the provisions of Chapter 203 of the Acts of 1894; under and in accordance with a deed from the South Baltimore Company to the Shore Line Electric Railway Company and the Baltimore Traction Company executed May, 1896, and under and in accordance with orders of the County Commissioners [***26]   [*578]  of Baltimore County, dated September 25, 1895, and January 21, 1896."
In addition to the facts stated in the above agreement of counsel, the plaintiff introduced evidence to show what changes the Railways Company was required to make in its railway and appliances on the several roads referred to in order to comply with the plans, specifications and orders of the Commission; that these changes consisted in raising and lowering the company's roadbed and tracks; moving its tracks from the side to the center or from the center to the side of said roads; repaving the space between its tracks and two feet on either side of its tracks, and in some instances repaving the space referred to with vitrified brick, and in the substitution of new and different rails, poles and appliances for the ones then used by the company. The Commission also offered evidence tending to show that the plans adopted by it, in accordance with which the work referred to was done by the company, were necessary for the proper improvement and construction of the roads; that at the time the company's railway was constructed on First Street, Brooklyn, said street was a public road of Anne Arundel County,  [***27]  and that Maryland Avenue, Westport, at the time the company's railway was located thereon, was one of the public roads of Baltimore County.
The Railways Company offered evidence tending to show that some of the changes the company was required to make in the location, construction, etc., of its railway in order to comply with the requirements of the Commission were not necessary for the proper construction or improvement of the roads in question, were very expensive and were not justified by the conditions and circumstances under which they were made; that no condemnation proceedings have been instituted by the Commission for the acquisition of any of the roads referred to in this case, or for the acquisition of any of the defendant's rights in or properties on said roads; that at the time the bill, which became the Act of 1908, Chapter 141, was introduced in the Legislature the defendant and other  [*579]  companies operated railway lines upon the roads and turnpikes of the State; that the bill, as originally introduced, did not provide for the improvement of public highways within the limits of the City of Baltimore, and that section 32B was amended in the Senate so as to authorize [***28]  the improvement of such portions of the main roads of the State as lie within the limits of Baltimore City, and was further amended by adding that part of Section 32B which authorizes the Mayor and City Council of Baltimore to condemn, etc., the right of way of the Railways Company upon any turnpike improved by the Commission. The company also offered in evidence the agreement between the South Baltimore Company, the Shore Line Electric Railway Company and the Baltimore Traction Company, dated the 18th of May, 1896, and the orders of the County Commissioners of Baltimore County, under which its railway was originally constructed upon Maryland Avenue, Westport, and the deed from the South Baltimore Harbor Company to the Baltimore and Curtis Bay Railway Company, dated March 13th, 1893, for its right of way on First Street, Brooklyn.
At the conclusion of the testimony the Court below granted the plaintiff's seventh, eighth, ninth and eleventh prayers and rejected the prayers of the defendant, and from the judgment in favor of the plaintiff for $ 87,916.68, the total amount paid by the Commission to the defendant for the work, etc., done by the company upon the several roads in question,  [***29]  the defendant has appealed.
The granted prayers of the plaintiff are as follows:
Seventh--"The plaintiff prays the Court to rule, as a matter of law, that by a true construction of the Act of 1908, Chapter 141, and amendments thereof, the duty rests upon the United Railways and Electric Company of Baltimore, in the event of the improvement by the State Roads Commission, under said Act or amendments thereof, of any public road upon which there had been constructed, prior to such improvement, tracks and other railway structures of said company, at its own expense, to shift, adjust and take care  [*580]  of its said tracks and structures so as to conform to the said road as improved by said Commission. And if the Court find that Maryland Avenue, Westport, and First Street, Brooklyn, were public roads under the eighth prayer of the plaintiff, then under plaintiff's ninth prayer and by a true construction of the agreement of facts offered in evidence at the trial of this case, the verdict of the Court sitting as a jury should be for the plaintiff for the amount mentioned in said agreement, to wit, eighty-seven thousand nine hundred and sixteen dollars and sixty-eight cents ($ 87,916.68).  [***30]  "
Eighth--"The plaintiff prays the Court to rule, as a matter of law, that if the Court find that Maryland Avenue, Westport, and First Street, Brooklyn, had been uninterruptedly used by the public as public highways for more than twenty years prior to the construction thereon of the railway tracks of the defendant, and prior to said time has been repaired by the County Commissioners  [**558]  of Baltimore County and Anne Arundel County, respectively, and during all of said time had been open, free and unobstructed for the use of the public, and so used by the public, then the said roads were public roads at the time the railway tracks were laid thereon."
Ninth--"The plaintiff prays the Court to rule, as a matter of law, under the Acts of Assembly relating to the Falls Roads and the Liberty Turnpike, referred to in the evidence, that the said turnpikes were public roads at the time of the laying of the railway tracks thereon, in the meaning of the principle of law; that where the right to use any public road is granted to any railway company such right is subject to the superior right of its use as a public road and subject to the duty of the railway company, upon any improvement [***31]  of said roads, to shift and adjust its tracks and structures at its own expense, so as to accommodate them to the improved condition of said roads."
Eleventh--"The plaintiff prays the Court to rule, as a matter of law, that by the agreement between the City and the United Railways and Electric Company, relating to Garrison  [*581]  Avenue, as shown by the correspondence included in the Agreed Statement of Facts, offered in evidence, the United Railways and Electric Company was obliged, at its own expense, to remove and relocate its tracks and readjust them to the new Garrison Avenue, as then contemplated and subsequently constructed."
The contentions of the appellee are (1) that all of the roads and turnpikes in question were public roads and highways, and that the State in the exercise of its police power to improve its public highways for the convenience and welfare of the public may require a railway company using such highways, at its own expense, to relocate its tracks and make such changes in its roadbed and structures as are necessary to enable the State to make such improvements, and to conform with the improvements when made; and (2), that the Act of 1908, Chapter [***32]  141, conferred upon the State Roads Commission the right to exercise that power. In support of the first proposition counsel for the Commission have presented a very elaborate and instructive brief, citing and quoting many cases, Federal and State, to the effect that where a corporation obtains from a municipality the privilege of using a street for its corporate purposes, its use of the street is subject to the power of the municipal authorities to make such improvements and changes in the street as they may deem necessary for the public welfare, without liability to the corporation for any interruption of its use or expense to which it may be subjected in consequence of such changes or improvements, and among the cases relied on are Kirby v. Citizens' Railway Co., 48 Md. 168; N. Balto. Pass. R. R. Co. v. Balto., 75 Md. 247, and M. & C. C. of Balto. v. Turnpike Co., 80 Md. 535, 31 A. 420.
On the other hand the appellant contends: (1) That the changes it was required to make in its railway are not within the scope of the police power of the State; (2) that where a railway company has acquired an easement or right of way [***33]  prior to the opening of a street, it cannot be deprived of  [*582]  that right by the municipality or by the State in the exercise of the police power; and (3) that the Act of 1908 did not confer upon the Commission the authority to interfere with the use by the Railways Company of the roads and turnpikes in question. In support of the second contention counsel for the appellant in their carefully prepared brief cite and rely upon the cases of N. C. R. R. Co. v. Baltimore, 46 Md. 425; Baltimore City v. Cowen, 88 Md. 447, 41 A. 900; Balto. & Ohio R. Co. v. Baltimore City, 98 Md. 535, 56 A. 790, and Anne Arundel Co. v. U. Rys. Co., 109 Md. 377, 72 A. 542.
In the view we take of the case it will not be necessary to consider the propositions presented by the appellee's first and the appellant's first and second contentions, for after a very careful examination of the provisions of the Act of 1908, Chapter 141, we think it is clear that the Legislature never intended to confer upon the Commission the power upon which it now relies.
In Section 32B the Commission was empowered to select, construct, improve [***34]  and maintain a general system of improved state roads and highways through all the counties of the State, and was directed to include in its work the improvement of such portions of the main roads selected by it as a part of the system as lie inside the limits of the City of Baltimore, "up to the old city limits." To that end the Commission was given power to "condemn, lay out, open, establish, construct, extend, widen, straighten, grade and improve any road of the system, in any county of the State." and in order to enable it to exercise the powers thus conferred, it was given the further power to "acquire for the State of Maryland, by agreement, gift, grant, purchase or condemnation proceedings--any private road or roads whatsoever, or private property or rights of drainage for public use, whether belonging to private individuals, or to turnpike companies or other corporations, and including avenues, roads, lanes or thoroughfares, rights or interest, franchises, privileges or easements, that may be, in its judgment, desirable  [*583]  or necessary to complete said system of roads or to carry out the purpose of this Act." In this careful enumeration of the many powers granted [***35]  to the Commission for the purpose of enabling it to accomplish the ends desired, there is not a suggestion of a power to take, acquire or disturb any interest, easement or right, of any individual or corporation, however obtained, except by "agreement, gift, grant, purchase or condemnation," and the fact that the Act expressly states the manner in which all property, rights and interests necessary for the purposes of the Act may be acquired, negatives the idea that the Legislature intended to confer upon the Commission the power to disturb these rights under the authority of the police power of the State.
Again, in Section 32C it is provided that  [**559]  when the Commission shall determine that public necessity or convenience or the purposes of the Act require that any turnpike, or part thereof, whether maintained as such or abandoned, or any public road should be taken charge of by the Commission for the State, it "shall acquire and take over" such "county roads, turnpikes, or sections thereof or interests therein," and that section further provides, "and said Commission shall have full power to so take over and take possession of any county road or abandoned turnpike, and to [***36]  accept by gift or surrender and to acquire by purchase or condemnation, any and all existing turnpikes or any sections thereof, or any rights or interests therein, subject to any outstanding occupation, use or franchise of any electric railway company or other public service corporation." While this section authorizes the Commission to take over any county roads or abandoned turnpikes, it requires it to acquire by purchase, etc., all existing turnpikes and any rights or interests therein, and distinctly recognizes the right of an electric railway to continue its occupation and use of such roads and turnpikes.
The legislative intent that railway companies occupying the roads and turnpikes acquired and taken over by the Commission should not be disturbed in the maintenance of  [*584]  their roadbeds and use of their rights and easements is even more clearly expressed in Section 32E of the Act. That section, after declaring that the Commission shall have complete control of the State highways, "except as herein otherwise provided"; that no State highway shall be dug up for any purpose, or any obstruction placed thereon without the "written permit" of the Commission, and that when [***37]  a permit is given the work shall be done under the supervision of the Commission at the expense of the person to whom the permit is given, then says, "provided, however, that no electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed in its operation or in the maintenance of its roadbed or overhead construction, and all necessary repairs, together with the maintenance of the space between its tracks and two feet on each side thereof shall be performed by such railway company under the supervision and to the satisfaction of the Commission."
It is urged by the appellee that the language of the section we have just quoted should, by reason of its context, be construed as only applying to the highways after the improvements thereof by the Commission have been completed, but apart from the fact that the section referred to, as we have construed it, is in entire harmony with the other provisions of the Act, it is clear that the language used is not open to the construction claimed by the appellee. The provision is, "no electric railway company in operation upon a public or private road or existing [***38]  or abandoned turnpike when acquired hereunder shall be disturbed," etc. That cannot be held to refer to an electric railway in operation upon the highway after it is completed, when the section expressly says an electric railway in operation upon a "private road," etc., "when acquired." If the contention of the appellee that under the Act the Railways Company may be required, at its own expense, to change the location of its roadbed whenever in the judgment of the Commission public convenience,  [*585]  etc., requires it, is sound, then the provision referred to would be meaningless, for it could not change the location of its roadbed without being "disturbed in its operation or in the maintenance of its roadbed." As suggested by counsel for the appellant the contention of the appellee is further answered by the provision of the supplemental Act of 1910, Chapter 116, which declares that nothing in that Act or any Act adding to or supplementing the Act of 1908, "shall be construed as modifying or changing the provisions of said last named Act, in so far as the same define and regulate the rights of any electric railway company in operation upon any public or private [***39]  road or existing or abandoned turnpike." In the Act of 1910 there is no such context as that relied on by the appellee, and the railways there referred to, as in the section we are now considering, are the railways in operation "upon any public or private road," etc. The provision of section 32E, requiring the railway companies to keep in repair the space between their tracks and two feet on each side thereof was doubtless borrowed from an old Act, Section 383 of Article 23 of the Code of 1912, and inserted to save, to that extent, the expense imposed upon the State by other provisions of the Act of 1908 of maintaining the improved highways. That the Act of 1908 does not give to the Commission the powers claimed by it is we think, also shown by the further provision of the Act of 1910, Chapter 116, which authorizes the Commission, where a State road crosses a railroad, to contract with the railroad company for the construction of a bridge or archway for an "over-grade" or "under-grade" crossing, and provides that the Commission shall pay one-half of the cost of such bridge or archway and that the other half shall be paid by the railroad company. If it was the purpose of the Legislature [***40]  to impose upon railway companies the expenses of changing the grade of their roadbeds and location of their tracks on the public roads and turnpikes improved by the Commission there is no good reason why railroads should have been relieved of  [*586]  one-half of the cost of constructing an "under-grade" or "over-grade" crossing.
Even if there was any doubt about the meaning of the Act of 1908, certainly there could be no presumption in favor of a grant of such powers as the appellee claims in this case. In the case of State v. Mott, 61 Md. 297, CHIEF JUDGE ALVEY said:  [**560]  "Whatever power can be properly exercised by the municipal authorities of the City of Baltimore over the rights and property of the citizen, under the denomination of police regulations, must be derived from the Legislature of the State. It must be by express grant, or by fair and reasonable intendment; for otherwise the trades and business of the people would be at the mercy, and be made dependent upon the caprice, of those who might exercise municipal power, instead of being governed and regulated by the general law of the land. Within the power granted, the degree of necessity [***41]  or propriety of its exercise rests exclusively with the proper corporate authorities; but in all cases the power exercised, or attempted to be exercised, must depend upon the nature, and extent of the power granted, and whenever the question of the existence or limit of the power is raised, it becomes the plain duty of the Courts to see that the corporate authorities do not transcend the authority delegated to them." Heiskell v. Baltimore, 65 Md. 125 at 148, 4 A. 116; Hagerstown v. Balto. & O. R. R. Co., 107 Md. 178, 68 A. 490.
As the Commission was not authorized by the Act of 1908 to require the Railways Company, at its own expense, to make the changes referred to in the grade and location of its railway, it can make no difference in this case whether its roadbeds were constructed on its private rights of way or upon the public roads and highways of the State.
The agreement of counsel shows that the Mayor and City Council of Baltimore acquired that part of the Falls Road which is located within the city limits by deeds from the Falls Road Turnpike Company, and that the railway of the appellant on that part of the turnpike was constructed [***42]  under  [*587]  the provisions of Ordinance 105 of 1896. The appellee, relying upon the case of M. & C. C. of Balto. v. Turnpike Co., supra, insists that that part of the Falls Road Turnpike, after it was ceded to the city, became a public street of the city, and that under the provisions of said ordinance the Railways Company was bound to make its tracks conform to any change in the street at its own expense. The Act of 1908 provided that the roads and highways to be improved by the Commission shall be first taken over and acquired by it for the State, and after requiring the Commission to improve such parts of turnpikes as are within the city limits, between the present and old city limits, declares that the same, when the improvements have been completed, shall become "city streets" and subject to the provisions of the city charter. It would seem therefore that under the Act of 1908, if we assume that a city street may be improved by the Commission, turnpikes within the present city limits, while in the course of construction or improvement by the Commission, must be regarded as belonging to and under the control of the State, and that all contracts made by [***43]  the Commission for such construction or improvement must be construed with reference to the powers, duties and liability of the Commission under the Act creating it. As the contract under which the Railways Company made the changes referred to was made with the Commission, and the work was done in compliance with its requirements, the liability of the parties to that contract for the cost of that work must be determined by the provisions of the Act of 1908, and the Commission cannot escape liability for such expense on the ground that the city can require the Railways Company to make its tracks conform to any change the city may make in the grade of said street.
The agreement of counsel as to the Baltimore and Liberty Turnpike, Garrison Avenue, shows that the Commission acquired all of the rights of the Turnpike Company by a deed dated May 21st, 1910; that the contract between the Commission  [*588]  and the Railways Company, under which the changes in the railway was made and the work was done, was executed on the 17th of October, 1910, and that the work was commenced on the 19th of October, 1910, and completed in December, 1911. At the time the expense which the appellee [***44]  now seeks to recover was incurred the turnpike belonged to the State, and was under the control of the Commission as the agency created by the State for the improvement of the highway, and the change in the company's railway was made and the work was done in accordance with the contract with the Commission. The contract contained in the correspondence between the representatives of the city and Railways Company makes no reference to the contract between the Railways Company and the Commission, or to the work to be done or the liability of the parties under it, but relates only to the acquisition of the right of way and easement of the Railways Company in Garrison Avenue, and to bringing the Railways Company under the provisions of the acts and ordinances relating to the Park Tax. The agreement on the part of the Railways Company not to oppose a nominal award for its easement in the proposed condemnation proceedings cannot be construed as a waiver of any rights it had under its contract with the Commission, and to give it such a construction would be to import into the agreement terms it does not contain and which would be entirely foreign to the subject matter of the contract. That [***45]  the parties to this correspondence were not dealing with the liability of the company for the work to be done by it under its contract with the Commission, is further indicated by the following statement in the letter of Mr. Thom of December 10th, 1910, where, referring to the "Bloomingdale road ordinance," he says: "Of course, the provision as to the sub-grading and ballast will not apply, as the work is to be done by the State Roads Commission."
There is nothing in Section 32B to justify a different construction of the agreement contained in the correspondence,  [*589]  or to support the contention of the appellee. That section, as we have said, provides that when the improvement of a turnpike within the city limits  [**561]  has been completed by the Commission the turnpike shall become a city street, and the city is authorized by the concluding provision of that section to condemn any right of way or easement of the Railways Company upon or in such turnpike, the costs thereof to be paid by the city. That section does not authorize the Commission to require a railway company to move its tracks, at its own cost, and the changes made by the appellant in its railway tracks and [***46]  structures under its contract with the Commission, and in compliance with its plans, were practically completed before the proceedings referred to in the correspondence were begun.
The evident intention of the Legislature as expressed in the provisions of the Act of 1908 was to provide for the entire cost of the construction and improvement of such roads and turnpikes as might be selected by the Commision as part of the system of main roads and highways of the State, and there is nothing in the Act to suggest that any part of that expense was to be borne by electric railway companies whose rights the Act expressly declares shall not be disturbed.
It follows from what we have said that there was error in the ruling of the Court below in granting the plaintiff's seventh and eleventh prayers; that the defendant's first prayer, which asserted that "under the pleadings, there is no evidence legally sufficient to entitle the plaintiff to recover, and the verdict should be for the defendant," should have been granted, and that the judgment appealed from must be reversed without granting a new trial.
Judgment reversed, with costs to the appellant without awarding a new trial. 

19 of 37 DOCUMENTS 

JOHN H. MORGAN AND FRANK B. SMITH, RECEIVERS OF THE MARYLAND STORAGE COMPANY vs. FAIRFAX S. LANDSTREET.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

109 Md. 558; 72 A. 399; 1909 Md. LEXIS 19 

January 20, 1909, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Circuit Court for Baltimore County (BURKE, C. J.).

Plaintiffs' 1st Prayer.--The plaintiffs pray the Court to instruct the jury that since it appears from the uncontradicted evidence in this cause that the Maryland Storage Company of Baltimore City, on June 10, 1907, and for nearly a year previous thereto, was engaged, to the knowledge of the defendant, in carrying on an active warehouse business, and had incurred and was incurring liabilities; and that the said company's capital stock, to the knowledge of the defendant, had not been fully taken or subscribed for, it therefore follows that the fact that all of said capital stock was never taken is no defense to this action; and if the jury find from the evidence (1) that the defendant signed the subscription agreement dated June 10, 1907, and offered in evidence, to $ 30,000 of said company's capital stock; (2) that personal demand was made by said company upon the defendant for the payment of his said subscription more than ninety days before the institution of this suit; (3) that the defendant did not pay the same, and (4) that the plaintiffs are the receivers for said company, that in this event the plaintiffs [***2]  are entitled to recover against the defendant to the extent of his said subscription. (Rejected.)

Plaintiffs' 2nd Prayer.--That since it appears from the uncontradicted evidence in this cause that the Maryland Storage Company was incorporated on or about November 18, 1904, with an authorized capital stock of $ 150,000, divided into 3,000 shares of the par value of $ 50 each; that the company organized by the election of directors and officers on or about December 12, 1904, that thereafter, in July, 1906, the said company's capital stock was duly increased to $ 250,000, divided into 5,000 shares of the par value of $ 50 each, and that the defendant's subscription (if the jury find said subscription) was to said increased capital stock, it therefore follows that the fact that all of said capital stock was never subscribed is no defense to this action, and that if the jury find from the evidence (1) that the defendant signed the subscription agreement dated June 10, 1907, and offered in evidence, to $ 30,000 of said company's capital stock; (2) that personal demand was made by said company upon the defendant for the payment of his said subscription more than ninety days before the [***3]  institution of this suit; (3) that the defendant did not pay the same, and (4) that the plaintiffs are the receivers for said company, that in this event the plaintiffs are entitled to recover against the defendant to the extent of his said subscription. (Rejected.)

Plaintiffs' 3rd Prayer.--That if the jury find from the evidence that the defendant, on or about June 10, 1907, signed the written subscription offered in evidence, to $ 30,000 of the capital stock of the Maryland Storage Company, and that at the time of making said subscription the said company, to the knowledge of the defendant, had been engaged in an active warehouse business since on or about July 1, 1906, and had incurred and was incurring liabilities, and that the defendant also knew that the company's capital stock had not been fully taken and subscribed for, that in this event the jury are instructed that the fact that all of said capital stock was never taken is no defense to this action, but that the plaintiffs are entitled to recover against the defendant to the extent of his said subscription, provided the jury further find from the evidence that personal demand was made by said company upon the defendant [***4]  for the payment of his said subscription more than ninety days before the institution of this suit, that the defendant did not pay the same, and that the plaintiffs are the receivers for said company. (Rejected.)

Plaintiffs' 4th Prayer.--That if the jury find from the evidence that the Maryland Storage Company was incorporated on or about November 18, 1904; that the plaintiffs are the receivers for said company; that the defendant on or about June 10, 1907, signed the written subscription offered in evidence, to $ 30,000 of the said company's capital stock, and that at the time of making such subscription the defendant knew: (1) that the said company on or about July 1, 1906, had commenced and had since been prosecuting an active warehouse business under the contract with the Western Maryland Railroad dated June 12, 1906, and offered in evidence, of the contents of which contract the defendant had knowledge; (2) that the company was about to begin the construction of a warehouse upon its property at York and Johnson Streets; and (3) that the capital stock of the company had not been fully taken and subscribed for; and if the jury further find from the evidence that upon or after [***5]  making his said subscription the defendant consented to become a director in said company, and acquiesced in his election as such director, knew that the company was continuing to carry on its business and was incurring liabilities; learned that it had contracted for and started to erect a warehouse upon its property; advised the company's Vice-President and General Manager with regard thereto; visited the said property in the fall of 1907, and examined and approved the work there being done upon the warehouse; consented to assist said company in raising funds for the completion of said warehouse, and about August or September, 1907, promised to make payments on account of his said subscription; and if the jury further find from the evidence that at the time of each and all of the transactions mentioned above (if the same are found by the jury), the defendant new that the said company's capital stock was not fully subscribed for, that in this event the jury are instructed that the fact that the entire capital stock of said company was never subscribed is no defense in this cause, and the plaintiffs are entitled to recover against the defendant to the extent of his said subscription;  [***6]  provided the jury find from the evidence that personal demand was made by said company upon the defendant for the payment of his said subscription more than ninety days before the institution of this suit, and that the defendant did not pay the same. (Rejected.)

Plaintiffs' 5th Prayer.--That if the jury find from the evidence that the plaintiffs are the receivers of the Maryland Storage Company; that the defendant signed the subscription agreement dated June 10, 1907, offered in evidence, and that personal demand was made upon the defendant for the payment of his said subscription more than ninety days prior to the institution of this suit, then the verdict of the jury must be for the plaintiffs, even though the jury also find that the whole authorized capital stock of the Maryland Storage Company was not subscribed; provided the jury further find that the defendant knew that all of said capital stock was not subscribed for, and with such knowledge participated in the affairs of the company in a way which could only properly be done upon the assumption that the subscribers intended to proceed with the stock partially subscribed. (Rejected.)

Defendant's 2nd Prayer.--The Court [***7]  instructs the jury that if they find from the evidence that the stock of the Maryland Storage Company authorized by its charter, to wit: Three thousand shares, at fifty dollars a share, was never fully subscribed, then, even though they find that the defendant signed and delivered the subscription paper offered in evidence, as stated by witnesses for the plaintiff, their verdict must be for the defendant, unless they further find that after such subscription and with knowledge that said capital stock had not been fully subscribed the defendant participated in the conduct of the business of the said company in such a way as to indicate that he consented to and acquiesced in the company's proceeding in its business before the whole amount of said stock was subscribed, and the jury are further instructed that even if they find that the defendant, after knowledge that said stock was not fully subscribed, consented to become a director. but did not act as such, and promised to pay part of his subscription, such facts do not amount to such participation in the business of the company as would make the defendant liable under such subscription. (Rejected.)

Defendant's 3rd Prayer.--And [***8]  further prays the Court to instruct the jury that so much of the second alleged amendment to the charter of the Maryland Storage Company, dated July 20th, 1906, as undertakes to increase the number of authorized directors of said company from nine to twelve is void, and conferred no power upon said company to select or have more than nine directors, and it being undisputed that said company had nine other legal directors at the time of the attempted election of defendant as one more, and that defendant never acted as such, then defendant never became a director of said company, either in law or fact. (Rejected.) 

DISPOSITION:
Judgment affirmed with costs to the appellee above and below.  

HEADNOTES:

Corporations -- Subscriber to Capital Stock Not Liable Until Whole Amount Is Taken -- Waiver of This Condition.

When the number of shares and the amount of the capital stock of a corporation are fixed by its charter, a subscriber to the shares of stock is not liable on his subscription until the whole number of shares have been unconditionally subscribed.

A subscriber to the original capital stock of a corporation does not waive the defence that all of the stock was not taken by making his subscription at a time when he knew that the corporation was already engaged in business in a small way without having all of its stock subscribed for, but when a larger business was then contemplated, and when, although he was elected a director, he never qualified as such, or attended a meeting of the directors or stockholders, and did not participate in the business carried on by the corporation.  

COUNSEL:
Joseph C. France and Stuart S. Janney (with whom were A. C. Ritchie and Gibson & Smith on the brief), for the appellants.

1. The defense depended upon by the appellee is based upon the well-known principle that when the charter of a corporation fixes the amount of its capital, the law implies a condition in subscription to its formative stock, that the amount fixed in the charter shall be raised before the corporation creates any liabilities. and that a subscriber may depend upon a violation of the condition [***9]  as a defense to an action on the subscription agreement. The cases where this Court has recognized the defense and defined its application are as follows: Hughes v. Antietam Manufacturing Co., 34 Md. 332; Hager v. Cleveland, 36 Md. 476-491; Fiery v. Emmert, 36 Md. 474; Garling v. Baechtel, 41 Md. 305; Stillman v. Dougherty, 44 Md. 384; Morrison v. Dorsey, 48 Md. 461; Musgrave v. Morrison, 54 Md. 164; Gettysburg National Bank v. Brown, 95 Md. 367.

The recognition of this defense is a relaxation for the protection of investors of the well-known doctrine that the stockholders' liability in an insolvent corporation constitutes a trust fund for the creditors. The equities of the creditors being generally considered superior to those of stockholders, who take their chance of large profits and must be held to have assumed a corresponding risk of loss. Cook, Vol. 1, sec. 166.

The Courts, therefore, are careful to confine the privileges of the defense to deserving defendants, and will not extend them to those whose rights have not been invaded by the premature start of the corporation, and who are merely seeking to dodge the stockholders' liability. "The defense was intended to protect [***10]  subscribers who in good faith objected to the organization of a company when its capital stock which was necessary to the enterprise had not in fact been taken, but it was never intended and Courts will never permit it to be used as an instrument of fraud." Morrison v. Dorsey, 48 Md. 461.

It is a mere presumption that the condition of full subscription exists, founded upon the probable understanding of the parties. The matter involves no question of public policy and the Courts will never presume the presence of the condition when the facts show it could not have been the mutual understanding. For example, the whole theory being founded upon a presumption that the subscriber depended upon the corporation raising the amount of stock fixed in the charter or subscription agreement. The defense has no application where the amount of capital is not fixed therein. Kennebec & Portland R. R. Co. v. Jarvis, 34 Me. 360; Warwick R. R. Co. v. Cody, 11 R. I. 131; Hambleton Co. v. Rice, 7 Barb. Sup. Ct. (N.Y.) 157-166; Lynch v. E. I. & M. R. Co., 57 Wis. 432; Hager v. Cleveland, 36 Md. 491.

Nor does it arise where the charter expressly authorizes the corporation to start before all of [***11]  the stock is subscribed. Morawetz, Private Corp., Vol. 1, sec. 138.

By analogy and in reason it also follows that if the corporation is already a going concern at the time of the subscription and has already created and is continuing to create liabilities to the knowledge of the subscriber, and the subscriber also knows that its stock fixed in its charter is not fully subscribed, the presumption cannot arise "that the amount fixed in the charter shall be raised before the corporation creates any liabilities." That would be a foolish presumption, for the contrary is already the fact.

This Court has in a dictum already expressed itself on the point, in the case of Musgrave v. Morrison, which was a similar suit to the one at bar. It was here proved that the defendant knew at the time of his subscription that the corporation was engaged in active business, and that its stock was not fully subscribed, and the Court said: "Under these circumstances it might well be argued that his subscription was not made upon the condition that the company was not to organize until the whole number of shares had been taken." Musgrave v. Morrison, 54 Md. 164.

It is true that the Court did [***12]  not rest its decision upon that ground. As there was conclusive evidence of an estoppel, even if the condition had ever existed, it was not necessary to do so. It is for this reason that the defense is never allowed where the subscription is to increased stock and not original stock. Gettysburg Bank v. Brown, 95 Md. 386-7. For when increased stock is in question the corporation must have been a going concern before the subscription, and the presumption does not arise. Morawetz, Private Corpr., Vol. 1, sec. 142.

In the case at bar at the time of the appellee's subscription, the Maryland Storage Company had been for a year engaged in active business, with receipts of $ 1,500 a month, under a contract negotiated by the appellee binding it to pay a rental of $ 500 a month and to construct a warehouse at York and Johnson Streets. The appellee admits that he was perfectly familiar with that fact, and with all the business conducted by the company. He also admits that he knew at the time that the company's capital stock was not all subscribed. His first connection with the company as subscriber (unlike the case of the subscriber in Bank v. Brown), took place at a time when the company [***13]  was, to his knowledge, actually engaged in business.

Under such circumstances it approaches the frivolous to say that "it is presumed that capital, to the amount fixed in the charter, would be raised before the corporation created any liabilities." He knew such liabilities already existed and that the capital was not raised. The only case where this point is directly treated is Arkadelphia Mills v. Trimble, 54 Ark. 519. See also Nutter v. R. R. Co., 72 Mass. 85.

2. The evidence was legally sufficient to show a waiver of any defense of partial subscription.

Landstreet did not actually sign the subscription until June 10, 1907, But he personally bound himself to subscribe in February, 1905, and his interest in the company and participation in its affairs may be regarded in the light of that fact.

What are the acts showing this consent and acquiescence?

As a prospective subscriber, and with Timanus' letter before him, saying he was delaying financing the company until an agreement with the Western Maryland Railroad Company was signed, he negotiated the agreement of June 12, 1906, which bound the company to a monthly rental of $ 500 and to an active business requiring [***14]  capital, and to the construction of a warehouse. It is moderate to say this was an acquiescence in the company's proceeding with its business. He was starting it, and he knew its condition.

When he voluntarily subscribed, he knew that the company was already in business and under large liabilities. This was a very practical acquiescence in the start that he knew had been made.

When talking to Brady, he advised him to go along with the contract as it then existed, and not to undertake any further enterprise. This was an acquiescence in the liabilities that had been incurred, with which he was familiar, and in a continuance of them.

When he subscribed, his understanding was that the company was to borrow money for its building on his subscription. If he regarded his subscription as conditional, this was a great wrong upon the proposed lender, and if he did not so regard it, the liability sought to be enforced is no greater than what he intended to undertake. This understanding is in itself clear evidence of his consent that the company should borrow the money, which is to create liabilities.

He visited the building when it was under way and congratulated President [***15]  Timanus on the showing. This was an acquiescence in what had been done.

He then promised to send $ 5,000 on account of his subscription. This was a very encouraging acquiescence.

He accepted an election as director. Will directors be allowed to set up their omission to attend meetings as a defense to their subscription agreement?

He agreed to intercede with the Western Maryland Railroad Company to have them lend money to the company to enable it to complete the building.

He then showed his consent that the company should continue to proceed with its business.

During all of this time the appellee knew that the corporation's capital was only partially subscribed.

It is submitted that each of the above segregated facts would be legally sufficient to indicate his consent to the company's operations. Their accumulated force is sufficient to show not only an acquiescence in what was done, but that he was one of the moving spirits in the enterprise. And it is not strange that when called upon to pay his money he never thought of the possibility of making the defense now insisted upon, but set up an alleged private understanding with Brady. It is respectfully [***16]  submitted that the lower Court erred in ruling as a matter of law that the defendant had not waived the defense of partial subscription.

3. The appellee is estopped from setting up the defense of partial subscription.

At the time of signing the subscription agreement the appellee knew that the corporation was in a position where it would become financially responsible upon its failure to carry out the terms of the agreement of June 16, to comply with which it had given or was under obligation to give a heavy bond. He knew that it was employing the funds of other stockholders in doing business under that agreement, and that it would employ more of these funds of other stockholders if it carried out such agreement, or would defraud creditors if it did not use such money. He knew that its stock was not fully subscribed, and put his name to the unconditional subscription for the express purpose of getting others to subscribe and pay, and his subscription was used as he had authorized, for the purpose of inducing others to subscribe, and also to pay their subscriptions.

His subscription was used as the basis for the action of the board in contracting for the construction [***17]  of the warehouse by the Hopkins-Barnett Company, and therefore on the faith of it their money was spent in labor and materials, and while two-thirds of his subscription would have paid the company's indebtedness, he declined to pay.

To allow this defense in a case of this character will not only open the way to future frauds, but a present and very oppressive hardship will have been visited upon the other subscribers who paid their money on the faith of these acts, and on creditors who trusted the corporation.

This Court, in treating of verbal agreements and private understandings in connection with stock subscriptions, has said: "The defendant putting upon paper an unconditional promise to pay may have induced others not only to subscribe, but to pay, and his attempts now to shield himself by his private understanding may be a fraud upon others who have thus been induced to subscribe and pay." Scarlett v. Academy of Music, 46 Md. 122.

In the case at bar the elements are proved which in the Academy of Music Case are suppositions. This appellee did subscribe unconditionally, for the purpose of inducing others to subscribe and pay. By so doing, others were thereby induced [***18]  to subscribe and pay. Having stood in position to take the profits if the enterprise was successful, he would now avoid all liability upon its failure, and that by a legal fiction which he never thought of, but which skillful counsel have evolved for his protection.

The receivers in this case represent the stockholders, as well as the creditors of the Maryland Storage Company, and it is respectfully submitted that the appellee will not be permitted to commit this grievous wrong upon them and then step aside and let the weight of his actions rest upon other shoulders, but he will be held to be estopped by his actions from setting up the defense of partial subscription.

Counsel for the appellee argued below that the condition which is implied in a contract of subscription is not as heretofore believed that the corporation shall not embark in its business before its stock is fully subscribed, but quite different from that, to wit, that the subscriber shall not be called upon to pay his money until the full amount of capital stock is taken. That he can only be deprived of this defense by the actual casting of votes in favor of the company's business, or the creation of its liabilities,  [***19]  or by participation in the corporate affairs within the corporation, meaning thereby as an officer or director and in such capacity.

The appellants submit that even measured by the erroneous standard thus contended for, the liability of the appellee in this case would be for the jury, there being evidence legally sufficient to show the character of participation mentioned. But the argument is fallacious and the fallacy consists in mistaking the result of the condition when implied and not waived for the condition itself.

A corporation with its capital fixed in its charter is not authorized to incur liabilities in the course of its business until all of its stock is taken, as the subscribers are presumed to have subscribed with reference to the amount named in the charter as a minimum. To violate this principle is to violate an implied condition of the subscription, and the result is that the subscriber is not liable for calls unless he has consented to or acquiesced in the corporation's proceeding with its business. Morawetz, Private Corporations, sec. 149; Gettysburg Nat. Bank v. Brown, 95 Md. 386.

The converse of the proposition has frequently been ruled upon and demonstrates [***20]  this. Thus it is clear that if a corporation is authorized by its charter to begin the prosecution of its business before all of its capital stock is taken, the subscribers cannot have subscribed with reference to any particular amount of capital, and the result is that they will be liable to be called upon to contribute to the extent of their undertakings. Morawetz, Private Corp., sec. 138.

This Court has made the true condition clear in the last opinion heretofore quoted: "It is not to be supposed that a reasonably prudent person will invest in a corporation which is not to be supplied with sufficient capital with which to prosecute its affairs, and therefore it is that a presumption arises that the amount fixed in the charter shall be raised before the corporation creates any liabilities."

And, again, the waiver of the condition may be shown by acts indicating that the subscriber has consented to the company's proceeding with its business before all of its stock is subscribed. Gettysburg Nat'l Bank v. Brown, 95 Md. 386.

That the condition may be waived by acts or declarations either prior or subsequent to organization has also been decided in this State. Fiery v. [***21]  Emmert, 36 Md. 474.

The same contention here made was made in a Minnesota case, and the Court's treatment of it is apposite and enlightening. The Court said: "A subscriber may waive the defense that the full capital stock of the corporation has not been subscribed. This waiver may be either express, or implied from the acts or declarations of the subscribers. The appellant claims that the waiver must amount to an estoppel; the respondent, that acts or declarations of a subscriber showing an intent not to object that the full stock has not been subscribed are sufficient, although a technical estoppel may not be shown. Some of the cases cited use the word 'waived,' others the word 'estopped.' An estoppel in pais, as the word is usually employed and applied, includes the fact that the party claiming the estoppel relied upon and acted upon the acts or declarations, so that he will be prejudiced if the other party is not held to them. We do not find that the cases referred to using the word 'estopped,' and holding that the subscriber was or was not estopped, use the word in this sense. So in Hager v. Cleveland, 36 Md. 476; Garling v. Baechtel, 41 Md. 305 (and others cited), the Courts,  [***22]  in stating what will estop the subscriber, or prevent his being heard to make the objection, refer only to his acts, and do not include the fact that they did influence others. If a technical estoppel were required to prevent a subscriber withdrawing his subscription on the ground that the full stock has not been subscribed, much fraud might be permitted *** The safer rule is that if his acts are of such a character that either the corporation or subscribers may have been induced by them to act, and will be prejudiced if he be permitted to withdraw, he shall be held to have waived, or be estopped to assert the defense." Masonic Temple v. Channel, 43 Minn. 353.

The results of the adoption of the theory of the appellee would be disastrous. It would create a crowd of dormant subscribers, who might be held out to the world as such; credit might and would be procured on their names; they might encourage and advise the officers in the conduct of the corporate affairs, and, carefully keeping the full amount of stock from being taken, and being also careful not to have any official connection with the corporate management, they would be in position to take up the profits accruing to [***23]  them as stockholders in the event of success, and, in the event of failure, snap their fingers at stockholders who subscribed on the faith of their subscription and who paid their money when called upon, and at creditors, who relied upon the standing their subscriptions gave the company and gave it credit.

Benjamin A. Richmond and Edgar H. Gans (with whom was J. F. C. Talbott on the brief), for the appellee.

There was nothing in the nature or kind of business of the storage company, or in its situation, which would deprive the appellee of the benefit of the condition of his subscription. Its certificate of incorporation states that it is formed for the purpose of carrying on a forwarding and warehousing business in this State, and for the construction, owning, chartering or leasing of steamboats, wharves, docks, roads, vehicles or other property required for the purpose of such forwarding and warehousing business, and for the buying, selling, mortgaging, leasing, improving, disposing of, or otherwise dealing in lands in this State, etc. These powers are very broad, and contemplated the doing of several things, some of which might require but little capital, and some of which [***24]  would require a large amount of capital, depending upon the will of the company. In this case it appears that the storage company from the very start contemplated expending its whole capital in these enterprises, and not merely a part of it. It began doing some business on July 1, 1906, at Brown's wharf, a place which it had leased from the Western Maryland Railroad Company on June 12, 1906. But at that time it contemplated the expenditure of a large amount, if not all, of the money realized from its whole capital stock, for by the second paragraph of this lease, it agreed to construct a modern warehouse for the storage of merchandise and to commence the same forthwith, and to endeavor to complete the same on or before the first day of January, 1907. This, then, was the main object and purpose of its incorporation, and especially of its purpose to get together a capital of $ 150,000. It required little or nothing in the way of capital to merely rent Brown's wharf and carry on a little storage business there, but it required a large capital to construct this warehouse.

When, therefore, having in the meantime done nothing toward this building, Mr. Brady, on behalf of the storage [***25]  company, came to appellee in June, 1907, and got the subscription now sued on, there was nothing in the kind of business contemplated by the company which would rob this subscription of the rule of the condition therein which has been applied by this Court in Hughes' Case, 34 Md.; Cleveland's Case, 36 Md.; Garling's Case, 41 Md., or the Gettysburg Bank Case, in 95 Md., or which has been applied in the many other cases. Some of these were corporations for the putting up of buildings, such as hotels, warehouses; some for the building of railroads, and so on. Taking the object and purpose of the storage company as manifested by its board of directors, the principal one of which was the erection of a costly building, there is nothing to distinguish this corporation in kind from the other corporations in Maryland and elsewhere, to which the rule has been applied.

In Musgrave's Case, 54 Md. 164, although JUDGE ROBINSON says that the application of the rule of implied condition in the subscription might not extend to a building association the same as it would to other corporations, yet he expressly fails and refuses to place his decision of the case in hand on any such distinction,  [***26]  but proceeds to place it on the ground of waiver or estoppel, thus finally clearly applying the rule to the case in hand, notwithstanding it was a building association. For if he had not applied the rule of condition in the subscription to the case in hand, it would have been wholly unnecessary and improper to go ahead and decide that the condition in that case had been waived. There would have been no necessity to resort to the question of estoppel if the rule did not apply to a building association.

JUDGE ROBINSON cites no authority for any such distinction, and after a diligent search we have been unable to find any case making any such distinction. In none of the cases is the reason of the rule based upon the kind of corporation, provided it is a stock corporation calling for the expenditure of money to a certain amount under its charter. The reason of the rule is to comply with the mandate of justice, and to give effect to the obvious intention of parties. It is based upon the idea that a man might be willing to embark his money in a certain proportion along with others, provided they were putting up money in like proportions to a total amount, but should not in equity and [***27]  justice be required to put up his money by the corporation until its affairs had been fully financed according to the amount stated in its charter, so as to insure the success of the enterprise. If this is the reason of the rule, it is impossible to see on what ground a distinction can be made between corporations in the application of the rule, no matter what is the object of the enterprise, if both authorize and require the expenditure of money. If there is anything so peculiar in the financing of a building association as to abrogate the rule so far as building associations are concerned, it has never been so decided in Maryland. The Court in Musgrave's Case did not so decide, but placed its decision upon an entirely different ground, which decision could not have been made without a full recognition of the applicability of the rule to even a building association.

Before defendant's subscription, all that the company had done was merely preliminary to its main object and purpose. It had leased Brown's wharf, but this entailed but little financial responsibility and the expenditure of practically no capital at all. It had bought a lot at York Street, but had paid for it with [***28]  mortgages on the lot, and the lot was presumably worth the mortgages. It went along in this preliminary way from July 1, 1906, to the 10th day of June, 1907, when the subscription of appellee was taken. After July 1, 1906, under its lease with the Western Maryland, it did a small business as warehouseman at Brown's wharf. The taking of the lease did not impose any financial hardship upon the company. The company was put in debt by the building. The giving of the mortgage did not embarrass the company; it was the beginning of the building, in July, 1907, that was the cause of the failure of the storage company.

When, therefore, Mr. Brady went to appellee, June 10, 1907, to get his $ 30,000 subscription, there was nothing in the kind or nature of the company or in the character of its business or its business situation which in any way whatever deprived appellee of the benefit of the rule, that his subscription was based upon the implied condition that he was not to be liable at all, unless all the capital stock was subscribed. On the contrary, every condition and reason was present in the situation to entitle him to the benefit of this rule. The company had merely perfected a preliminary [***29]  organization, but not a full organization. It had for some months been doing a small business preliminary to the main business it intended to do, but had not commenced the main business. It now desired its capital stock subscribed in large amounts to fully organize the company and proceed with its main business. It was about to involve its stockholders in large financial obligations. It was the same as though the company was about to newly organize for its main and most expensive purposes. If, therefore, there ever was a time or a situation which entitled a subscribing stockholder to the benefit of the rule of this implied condition it was this time and this situation.

We, therefore, submit that there is nothing in the contention that this corporation at the time it procured appellee's subscription was not the kind of corporation, or was not doing the kind of business, or was not in the sort of situation which would entitle a stockholder to the benefit of the rule; but that, on the contrary, under the circumstances of this case, every ground and reason allowed by the authorities in Maryland and elsewhere for the application of the rule to appellee's subscription, were present [***30]  and entitled him to it.

But it will be contended further by appellants that this company was chartered by certificate in November, 1904, and later on effected a preliminary organization, and had a president and officers, and that appellee's subscription not being made at the time of the preliminary organization, but subsequent thereto, is not entitled to the benefit of the rule. The Maryland authorities are a full answer to this contention. In Morrison's Case, 48 Md., this Court, speaking of the rule of the condition of subscriptions, says: "And this well-settled rule applies to subscriptions before and after the company is chartered." See also 2 Clark & Marshall, Corp. sec. 382, page 1177; sec. 439, etc., page 1365.

In Musgrave's Case, 54 Md., the rule was applied in favor of a subscriber to stock, notwithstanding the company organized in April, 1869, and continued in the prosecution of its business for which it was chartered from that time continuously down to May, 1871, when Musgrave became a stockholder. Notwithstanding the doubt JUDGE ROBINSON had in that case, whether the rule would apply to a building association, he seems to have had no doubt about the application [***31]  of the rule to Musgrave's subscription, notwithstanding he did not become a subscriber until more than two years after the company had organized and during which it had been doing business. He expressly allowed him the benefit of the rule of the condition of the subscription, but defeated him on the ground of acts of estoppel, which amounted to a waiver of the condition. See S. & K. R. Co. v. Cushing, 45 Me. 524; Munroe v. Ry. Co., 28 Mich. 275.

In Temple v. Lemon, 112 Ill. 55, the subscriptions sued on were taken after the company had formed, and after it had done business, and yet the rule was allowed. The reason of all this is well illustrated in the case of Anvill Mining Co. v. Sherman, 74 Wis. 228, where the rule was allowed in favor of an after-subscribing stockholder, because, as the Court there said, before the company can embark upon its main enterprise, incurring the main expense, all its stock must be subscribed.

There is nothing, therefore, in the time of his subscription which will deprive appellee of the benefit of the rule.

But it will be contended further that the manner in which he subscribed for this stock or the circumstances under which he subscribed,  [***32]  deprive his subscription of the benefit of the rule. It will be said that when he subscribed he knew that the company had organized, even though the organization was but a temporary or preliminary one; that it was doing some little business; that it had rented a warehouse from the Western Maryland Railroad Company, and in the lease had promised to build a warehouse, and that it contemplated spending a large sum of money to build a warehouse of its own, and that one who subscribes under these circumstances and with this knowledge cannot have the benefit of the rule which makes his subscription a conditional one. But why not? What is there in all this which places appellee in a different position from that usually occupied by every man who takes stock in an enterprise of this kind? Whoever subscribed for stock in any concern without the knowledge that the company was about to embark in some business which would require the expenditure of money? The very fact that he was asked to subscribe for stock would inform him that the company needed money to invest in some enterprise. Every man who subscribes for stock, whether at the time of the first organization or later, if he is a business [***33]  man at all, endeavors to thoroughly inform himself before he subscribes as to the object of the company, what business it proposes to embark in, what money it proposes to spend, what it has in the way of property, what it is doing in the way of business and what it proposes to do. It is common knowledge that no business man subscribes to stock without knowing all these things, or at least trying to know them as far as he can. When was it ever heard before that this knowledge on the part of the intending subscriber would deprive him of the benefit of the rule or the condition of his subscription?

As we have said above, the very fact that appellee knew the company contemplated a new departure and was about to build an expensive building and change from the condition of a concern doing a little business, which required little or no capital, and involved it in but little liability, entitled the appellee peculiarly to the benefit of the rule. A subscriber may know that a coal company has leased coal lands, or has bought coal lands, and wants to pay for them and wants to spend large money in improving the same, and yet it would be idle to say that this very knowledge on his part, that [***34]  the company was about to spend large moneys in the enterprise, would deprive him of the benefit of the rule, that he was not to be bound unless the whole capital stock is subscribed. On the contrary, it is just in such a case as that that the rule applies with peculiar force. That is the very time and the very occasion when a man will not embark his money without some guarantee in the law that others to the full amount of the capital stock will share the burden with him, and that the company will not and cannot, merely because he has subscribed a certain amount, throw the whole burden of the enterprise upon him. It is too clear for argument, therefore, that there is nothing in the manner of appellee's subscription, or in the circumstances under which he subscribed, which will deprive him of the benefit of the rule which inheres as a matter of law in his contract of subscription.

The implied right to the condition of the subscription is a valuable right, which belonged to the appellee the moment he signed for the stock. It was a right which arose out of the contract of subscription and because of the contract. It did not exist before the subscription. It could, therefore, only [***35]  be waived by some act done at the time of the subscription or thereafter. Therefore, acts done before the subscription could not waive a right which arose out of the subscription, and which did not accrue until the subscription had been signed. And so it was held in Curry Hotel Company v. Mullin, 93 Mich. 319, that no acts done by the stockholders before the subscription could constitute a waiver of this right which grew out of the subscription. This is sufficiently obvious, and narrows the case down to the consideration alone of those acts of the appellee which were done at the time of the subscription or thereafter.

It is said that at the time the defendant subscribed and shortly thereafter he consented to be elected a director of the storage company, and that shortly thereafter he was elected a director and notified of his election, and that thereafter he was several times requested and urged to attend a meeting of directors, but always failed or neglected to do so. Now, what is there in all this which would estop appellee in his defense or amount to a waiver of his right? Estoppels of this kind are based upon conduct inconsistent with his present claim of right. At the time [***36]  he consented, what was inconsistent in his consent to be elected a director?

He had subscribed for $ 30,000 of stock in the company, based upon a legal condition precedent that all the remainder of the capital stock should be taken before he was bound. He naturally expected the company to go ahead and complete its organization according to this condition. Relying upon this, as he had a right to rely, was there anything inconsistent with his right to permit himself to be elected a director in a company which he had every right to suppose would in its further conduct proceed according to law? Becoming a director was perfectly consistent with all this. The estoppel is based upon inconsistent conduct, but there is nothing inconsistent here. His becoming a director was perfectly consistent all the time with his right to claim the condition of his subscription.

But it is said further that Mr. Timanus testified that he told him that the storage company was proceeding with its building. At what time he told appellee this does not certainly appear, but it was some time in the summer of 1907. It is not shown, however, that on these occasions he did anything or said anything, and there [***37]  is not a particle of testimony in the record tending to show that appellee during this time knew or had any reason to suppose that the storage company was going ahead or getting itself in debt without getting its stock subscribed. It is said appellee did not object to the company's going ahead with the building. But why should he object? What right did he have to object? He had a right to presume that the company had financed its stock. His failure to object, therefore, was in no way inconsistent with his right to have all the stock subscribed. He never acted as a director or attended any of the meetings, either as director or stockholder. From beginning to end he took no part in the proceedings or conduct of the company. It is not shown that he had been informed by the company that it had let a large and expensive contract and had gone heavily in debt. So far as the record discloses, the first information appellee had is the letter of Mr. Henderson, August 26, 1907, calling on appellee for an installment of stock subscription, because "funds are needed for the completion of building now under construction at Dodson's wharf."

Appellee replies to this, August 30, 1907, that when [***38]  he signed his subscription it was with the understanding with Mr. Brady that he would not be called upon for any payment until financial conditions became easier. Then follows the testimony of Mr. Timanus, that in pursuance of the action of the directors, September 24, 1907, he called on appellee and told him the company was in difficulties and asked for a payment on his subscription. Here, then, on or about September 24th, was the first time appellee was informed that the company needed money for its contractors. In the meantime, from July 1st, the company had gone ahead without obtaining any further subscriptions to its stock to amount to anything, after appellee subscribed, and had let a building contract for more than $ 136,000. It had not in any way complied with the condition of appellee's subscription. It had gotten itself head over heels in debt, and all this had been done without the knowledge of appellee down to September 24th, when he was called upon by Mr. Timanus for money and informed of the difficulties of the company. During all this time he had a right to presume that the company was keeping its contract with him, including the condition of his subscription. During [***39]  all this time there is not one act shown on the part of appellee inconsistent with his defense to this action.

But it is said that some time in September, Mr. Brady called on appellee for a part of his subscription, and that appellee said he would try to arrange for some part of it, and that under the business conditions and money conditions, "he thought we had better hold off in the work at that time," and that in the latter part of September or early in October, Brady, Timanus and appellee, at the request of Timanus, went down to look at the building. They went all over the building and looked at it, and that appellee said he thought "we did very well, and the building was a very good one." That "we had made good progress, and it looked like a good building;" and that Mr. Timanus asked him for $ 5,000 on his subscription, and that appellee said he was going to New York, and would try to raise some money for his payment to the storage company. And this testimony is relied upon as showing an estoppel upon the appellee.

But what was inconsistent in all this with the condition of his subscription? It was no act on his part as a member of the company, either as director or stockholder,  [***40]  which contributed in the slightest particular to bringing about the predicament in which the storage company then found itself. He had done no act which either directly or impliedly authorized the making of the debt, or which had encouraged the company in making the debt. Brady and Timanus say he made some indefinite promise about paying part of his subscription, but he did not pay. Even at that time the damage had been done, the debt had been created, the embarrassment existed, the company was insolvent. As soon as he heard of it he advised Brady to stop the work. In his letter to Messrs. Gibson and Smith, October 30, 1907, appellee says that at the time of his subscription he had advised Brady it was not wise to undertake any construction until conditions had improved, and criticises the policy of the company in undertaking the building without sufficient capital, and because of the hard times. Instead of doing any act encouraging the company toward incurring this disaster, this letter to Gibson and Smith, and the testimony of Mr. Brady show the attitude of appellee was one of cautious protest against incurring liability before the company was properly financed. He spoke of the building [***41]  as a good one, but there is nothing in this to indicate that he thereby approved the policy of the company in bankrupting itself to build it. He merely gave expression to an obvious fact to the effect that the building had been well constructed. This was no doubt true, but cannot be construed by any stretch of the imagination into an approval of the policy which had procured the fine building at the expense of the solvency of the company, and even if he had paid a part of his subscription instead of making some indefinite promises in regard thereto, such payment at that time would not have been inconsistent with his right to refuse to pay any further calls.

These, then, are the acts and all the acts relied upon by appellants to estop the appellee from setting up his defense of partial subscription. To these acts occurring after the subscription may be added all the other evidence in the record (if deemed admissible), showing the state of the knowledge of appellee of the situation and affairs of the storage company at the time he made the subscription, and all of it combined falls far short of that which will estop the appellee under the rule of waiver or estoppel in such cases [***42]  laid down in this State and elsewhere. Garling's Case, 41 Md. 305; Stillman's Case, 44 Md. 380; Gettysburg Bank Case, 95 Md. 367; Central R. Co. v. Johnson, 30 N. H. 408; Ridgfield R. Co. v. Reynolds, 46 Conn. 375; Parker v. Thomas, 19 Ind. 220; Salem Mill Dam v. Rope, 9 Pick. 194; Munroe v. F. W. R. Co., 28 Mich. 275.  

JUDGES:
The cause was argued before BOYD, C. J., BRISCOE, PEARCE, SCHMUCKER, THOMAS, WORTHINGTON and HENRY, JJ.  

OPINIONBY:
PEARCE 

OPINION:

 [**400]   [*582]  PEARCE, J., delivered the opinion of the Court.
This action was brought in the Circuit Court for Baltimore County by John H. Morgan and Frank B. Smith, receivers of the Maryland Storage Company, a corporation under the laws of Maryland, duly adjudged to be insolvent, against Fairfax S. Landstreet, to recover the sum of $ 30,000, being the amount of the defendant's written subscription made June 10, 1907, for 600 shares of the capital stock of said company of the par value of $ 50 per share. The proceeding was by way of attachment against the defendant as a nonresident, who entered a voluntary appearance in the summons case. The short note contained one count for money due on account stated, and a special count on the contract [***43]  of subscription. The defendant filed the two general issue pleas in assumpsit, and a third plea, "that the subscription mentioned in the plaintiffs' declaration was subject to a condition precedent, that said subscription was not to be binding on the defendant until all of the original capital stock of the said Maryland Storage Company was duly subscribed, and that  [*583]  subscriptions were never obtained for all of said original stock, and said condition precedent never complied with, whereby the defendant's subscription never became effective or binding." The plaintiffs joined issue on the defendant's first and second pleas, and to the third plea filed two replications--first, that said subscription was not subject to the condition precedent pleaded; and, second, that the defendant, by his acts, had waived any and all defense on account of the alleged fact that all of the original capital stock of the Maryland Storage Company was not subscribed.
The defendant joined issue on the first replication to the third plea, and as to the second replication, rejoined that he had not, by his acts, waived any defense on account of the alleged fact that all of the said original stock had [***44]  not been subscribed. And the plaintiffs joined issue by way of surrejoinder on the defendant's rejoinder to the plaintiffs' second replication to the defendant's third plea. It thus appears that the fact of the subscription was admitted, and also that no part of the same has been paid, and under the pleadings two questions only were in issue--first, whether the contract of subscription was subject to the condition precedent pleaded; and, second, if so, whether such condition had been waived by the acts of the defendant.
At the close of all the testimony on both sides of the case, the defendant moved to strike out certain items of testimony which had been admitted subject to exception, and the plaintiffs moved to strike all the testimony adduced at the trial which tends to qualify the written subscription, whether contained in the defendant's own statements or in his letters offered in evidence, or in the testimony of the witnesses Timanus and Brady; also defendant's statement of what he told Timanus as to taking the last $ 30,000 of stock, when he, Timanus, had secured the balance, and also what he said either to Redwood or Brady, as to any subscription to be made to this stock by [***45]  the Western Maryland Railroad Company. Both these requests were refused.
The plaintiffs then offered five prayers, all of which were  [*584]  rejected, and the defendant offered three prays, of which the second and third were rejected, and the first was granted, as follows: "The Court instructs the jury that by the uncontradicted evidence in the case the stock of the Maryland Storage Company authorized by its charter was never fully subscribed, and their verdict must be for the defendant, there being no evidence in the case legally sufficient to estop the defendant from setting up the defense of partial subscription to stock," thus withdrawing the case from the jury. The rejected prayers will be set out by the Reporter. The defendant excepted specially to the plaintiffs' second prayer on the ground that there was no evidence that defendant subscribed to any increased capital stock of the storage company, and not its formative or original stock, and this special exception was sustained; all of these rulings being embraced in the single exception taken.
A brief statement of the history of the case will throw material light upon the situation, before going into the law applicable [***46]  to the case.
The storage company was incorporated under the laws of Maryland, Nov. 18th, 1904, to carry on a forwarding and warehouse business, there being seven directors, and  [**401]  the authorized stock being 3,000 shares of the par value of $ 50 each. Mr. Timanus was then President of the storage company, and Mr. Landstreet was then Vice-President of the Western Md. R. R. Co. This company had recently established a tidewater terminus at Port Covington, and one of the principal objects of the organization of the storage company was to secure the storage business incidental to the new tidewater terminus. This appears in Mr. Timanus' letter of July 1st, 1904, to Mr. Landstreet as Vice-President of the railroad company. On November 17th, 1904, Timanus, learning that the railroad company was about to acquire the possession of Brown's wharf, on the north side of the harbor of Baltimore City, proposed to Landstreet to take a lease of the warehouse then on that wharf. This permitted, without further cost for building, a small active business, requiring nine or  [*585]  ten clerks and laborers and doing a business of about $ 1,800 a month. He testified they were trying to get the [***47]  railroad company or Landstreet interested in the storage company. No agreement was reached in the matter of the lease until June 12, 1906, when a lease of Brown's wharf was executed for five years, containing a covenant on the part of the storage company to erect a storage house on York Street, to be completed, if possible, by January 1st, 1907. At that time there was no actual subscription by Landstreet, either for the railroad company, in his own name, or for any other individual. In May, 1905, the charter was duly amended, so as to increase the number of directors from seven to nine. In July, 1906, a stockholders' meeting was called for the purpose of increasing the capital stock from $ 150,000 to $ 250,000 and the number of directors from nine to twelve. It appears from the minutes of that meeting that stockholders were present representing sixty-five shares of stock, that being more than two-thirds of the whole number of shares then issued, and that these voted to increase the amount of capital stock and the number of directors as above proposed. These proceedings, however, were abortive, both because the requisite notice was not properly addressed to the stockholders, and because [***48]  the proposed amendment was not acknowledged and recorded as required by secs. 51, 52 and 55 of Art. 23 of the Code.
In May, 1907, Landstreet resigned as Vice-President of the railroad company, and Brady, Vice-President of the storage company, testifies that at that time he asked him when he would sign a subscription, as some who had subscribed would not pay until they felt sure of his subscription, as he had resigned from the railroad company, and he said he would let him hear in a few days. Later he told Landstreet they wanted him as a director. On June 10, 1907, he signed the subscription and consented to be elected a director. At that time there were ten directors elected and serving, being one more than the charter allowed. Landstreet never qualified  [*586]  as director, and never attended any stockholders' or directors' meeting.
At the date of his subscription, Brady testifies there were subscriptions, including Landstreet's, of about $ 101,000, and no greater amount was ever subscribed.
Mr. Morgan, one of the receivers, testified from the books and papers that came into his hands as receiver, that at that time $ 40,000 had been paid in on subscriptions, about $ 36,000 [***49]  unconditional subscriptions, unpaid, including Landstreet's $ 30,000, and some conditional subscriptions, unpaid, the whole amounting to about $ 101,000, as stated by Brady.
On July 1, 1907, there being then only $ 76,000 unconditionally subscribed, including the $ 30,000 of Landstreet, the directors resolved to build the York Street storage house at a cost not to exceed $ 145,000. The York Street lot was subject to two mortgages aggregating $ 51,000, and the building contract called for an expenditure of $ 136,000. The lot sold for barely enough to cover these mortgages. Brady in the latter part of July, 1907, tried to induce Landstreet to go to see the building, then started, but he declined to go. In September, 1907, he asked Landstreet for a payment on the subscription, and he told Brady that, under the business and financial conditions existing they ought to hold off the work, and Brady explained they had gone too far to stop. Later, and early in October, Landstreet did go with Timanus and Brady and examine the work in progress, and he said he thought it was a good building. Brady did not then ask for any payment and did not hear Timanus ask for any; and Brady never afterwards [***50]  saw him on that subject.
Timanus testified that he asked Landstreet several times in the summer and fall of 1907 for payments on account, and his answer was that money was hard to get, and once, in September, 1907, he said he was not liable and would not pay it at all.
He also testified that Landstreet told him that when he subscribed Brady told him that all the stock had been either subscribed or promised. Brady, however, denied this, and  [*587]  said that he told Landstreet that his binding subscription would enable them to get many others, but did not say they could complete the total authorized capital. Landstreet testified that when the organization of the storage company was under discussion between Timanus and himself, he said that if he would get a strong management and have the finances in unquestionable form before undertaking the enterprise, the railroad company would co-operate with him and would take the last $ 30,000 of its stock of $ 150,000, and that in all the negotiations throughout he acted in behalf of the railroad company, and at no time and in no way as an individual, and that it was so understood by all concerned. He states that as early as January,  [***51]  1907, when informed by Brady of their plan to acquire property on the south  [**402]  side of the harbor that he advised against any additional enterprises, and that after his resignation as Vice-President of the railroad company he remained one of its directors, and told both Timanus and Brady they would have to take up the subscription of the railroad company with other officials and that if the storage company complied with the previous understanding, he saw no reason why the matter should not be concluded. That shortly after this Brady came to see him, and said that he had responsible men in Baltimore, mentioning a number of them, who were only waiting for the signature of the railroad company, and who would then sign subscriptions to the full amount of the authorized capital stock of the company, and urged him to sign personally for this $ 30,000, which he did upon those assurances, and the further assurance that their finances were in condition to meet any undertaking entered into.
He also says, that in signing he expressly stated to Brady that he was not signing his name as an individual that would engage him in any financial obligation, and that Brady replied nothing was [***52]  to be paid on that subscription until business conditions would warrant it. He also says that when he visited the building in October, 1907, no reference was made to his subscription, but Messrs. Timanus and  [*588]  Brady stated that they wished to arrange with the Western Md. R. R. Co. to take over this building, and some of the officials advised them to get him to examine it, so that he could report thereon to the executive board.
We have thus condensed the most material testimony in the case, and will now consider the propriety of the granted instruction, which constitutes the principal and controlling question in this appeal.
We could not expect, and do not understand the appellants to deny the general rule, that where the capital stock and the number of shares are fixed by the act, or certificate, of incorporation as in the present case, no assessment can be lawfully made on the share of any subscriber until the whole number of shares has been taken. This principle was early adopted both in England and in this country, and is now firmly established as a rule of law. Two of the earliest cases in this country are Salem Mill Dam v. Ropes, 6 Pick. 23, and [***53]  Stoneham v. Gould, 2 Gray 277, in both of which the reasons for the rule were given by eminent Chief Judges of the Supreme Court of Massachusetts, PARKER and SHAW. No more convincing reasons could be given than those stated by CHIEF JUDGE SHAW in 2 Gray, supra. He says: "This is no arbitrary rule. It is founded on the plain dictate of justice and the strict principles regulating the obligation of contract. When a man subscribes for a share of stock, consisting of one thousand shares, in order to carry on some designated enterprise, he binds himself to pay one-thousandth part of the cost of such enterprise. If only five hundred are subscribed for, and he can have no assurance which he is bound to accept, that the remainder will be taken, he would be held, if liable to an assessment, to pay one-five hundredth part of the enterprise, besides incurring the risk of the entire failure of the enterprise itself, and the loss of the amount advanced towards it."
This rule, with the reasons which led to it, were adopted in this State in Hughes v. Antietam, 34 Md. 316, and has been laid down consistently since in Cleveland v. Hager, 36 Md. 476; [***54]   [*589]  Garling v. Baechtel, 41 Md. 305; Dougherty v. Gilman, 44 Md. 380; Morrison v. Dorsey, 48 Md. 461; Musgrave v. Morrison, 54 Md. 161, and Gettysburg Bank v. Brown, 95 Md. 367. In the last-mentioned, the latest case upon the point in this State, JUDGE PAGE said: "These rules apply to subscriptions made before and after the company is chartered. They are founded upon the theory that the subscription is made upon the implied understanding that the entire amount of stock fixed by the charter is necessary for the successful prosecution of the business for which the company was incorporated. It is not to be supposed that a reasonably prudent person will invest in a corporation which is not to be supplied with sufficient capital with which to prosecute its affairs; and therefore it is that a presumption arises that the amount fixed in the charter shall be raised before the corporation creates any liabilities."
There are substantial differences, it is true, in this regard between "original or formative" stock and "increased" stock, but that question does not arise here, because [***55]  the attempt to increase the stock was not operative.
It is sufficient that the Maryland rule is as stated, but, as indicating its soundness and universality, it may be stated that it prevails in New York, Missouri, Connecticut, New Hampshire, Wisconsin, Iowa, Georgia, California, Illinois, Maine, Tennessee, Ohio and generally throughout the United States.
It will be observed that it is spoken of generally as an implied rule, but it may of course be expressed, and in this case the uncontradicted testimony of Mr. Landstreet is that he expressly agreed to take only the last $ 30,000 of the whole amount of $ 150,000, so that his subscription was upon the express condition that the whole residue of the stock should be taken before his subscription became binding. This condition not having been incorporated in the written subscription, might, perhaps, not have been available as a defense, if the residue had been fully and unconditionally subscribed; but the uncontradicted evidence in this case shows that there  [*590]  were never over $ 76,000 unconditional subscriptions, and the cases are uniform that for this purpose there can be counted only unconditional subscriptions, payable [***56]  in cash. Troy v. R. R. Co., 8 Gray 596; Oskaloosa v. Parkhurst, 54 Iowa 357; Brand  [**403]  v. Lawrenceville R. R., 77 Geo. 506; Cal. Southern Hotel Co. v. Russell, 88 Cal. 277.
While the appellants, as we have said, do not deny the general rule invoked, they do contend that "if the corporation is already a going concern at the time of the subscription, and is continuing to create liabilities to the knowledge of the subscriber, and the subscriber also knows that its stock fixed in its charter is not fully subscribed," then the presumption which this Court, in Gettysburg Bank v. Brown, 95 Md. 367, said arises, "that the amount fixed in the charter shall be raised before the corporation creates liabilities," cannot arise, and the rule has no application. This contention seems to us to confound the general rule with the subsidiary rule, equally well settled, that this defense may be waived, or the subscriber be estopped from setting it up. The appellants cite in support of their contention what they concede to be a dictum of this Court in Musgrave v. Morrison, 54 Md. 161, [***57]  in which JUDGE ROBINSON said: "We do not mean to say that this rule applies to corporations of every kind without regard to the objects and purposes for which they are chartered. *** In this case, the company was chartered for the purpose of buying, selling and leasing property and also as a hamestead and building association, and at the time of the appellant's subscription was engaged in the prosecution of its business, and he knew at the same time that its whole capital stock had not been taken, and under these circumstances it might well be argued that his subscription was not made upon the condition that the company was not to organize until the whole number of shares had been taken." But the learned Judge, nevertheless, placed the decision squarely on the ground that during three years that he was a member, he not only regularly paid his weekly dues, but accepted his proportion of the profits earned, and through an attorney  [*591]  voted his stock at all meetings, whether for the election of directors or the transaction of other business, and the Court expressly states that all this time he knew the whole capital stock had not been taken.
Another case cited for their [***58]  contention is Arkadelphia Mills v. Trimble, 54 Ark. 519, in which the Court said: "The fact was that the corporation began business as soon as the $ 14,500 was subscribed, and after that Trimble agreed to take and pay for the $ 500 subscribed by him. From this it is evident that there was and could be no implied condition in his agreement that the corporation should not begin business until all the capital stock was taken. The corporation was engaged in business when he subscribed. It was evident it would need money in the prosecution of its enterprise, for if it would not, there was no necessity for his subscription. He was not to be an honorary member." A little further examination of that case will show, however, that far from supporting the appellants' contention as applied to the facts of this case, it bears out the application of the general rule as inherent in the appellee's subscription, and shows it as avoidable only by waiver or estoppel. The articles of association in that case which were subscribed by Trimble contained the following provision: "The amount of capital stock of said association shall be $ 50,000, of which $ 14,500 have been subscribed [***59]  by corporators aforesaid, and the residue may be issued and disposed of as the board of directors may from time to time order and direct;" and the Court said: "No implication arises from this provision that the corporation was to postpone its enterprise until all the capital stock had been subscribed. The most reasonable inference to be drawn from it is that the $ 14,500 was all the money needed for the purpose. The fact was that it began business as soon as the $ 14,500 was subscribed, and after that Trimble agreed to take his stock." These articles of association could well be construed as fixing the formative or original stock at $ 14,500, with power to increase the same from time to time as the directors should see fit, up to $ 50,000, and this is precisely  [*592]  what it is fair to presume JUDGE ROBINSON meant in Musgrave v. Morrison, supra, when he said, on page 164: "It may be obvious from the face of the charter itself, that the whole capital stock is not in any manner necessary to the organization of the company, and that the subscriber knew, or had reason to know, this at the time of subscription."
We can perceive nothing in the case before [***60]  us in the nature or kind of business for which the storage company was incorporated (if that can in any case be a proper subject of inquiry), nor in the time when, or the circumstances under which, the appellee made the subscription in suit which should take this case out of the general rule. It appears from the subscription blank that the capital stock was then designed to be $ 250,000, presumably upon the supposition that the attempted increase from $ 150,000, as fixed by the certificate, to $ 250,000 was regular and effective. The original stock, however, was $ 150,000, and there is no evidence, as in the Arkansas case, supra, that the charter authorized the organization of its main enterprise before the full amount was subscribed. The subscription in this case was made June 10, 1907. Prior to June 12th, 1906, the company was doing a small business, principally in towing and lighterage, requiring comparatively small capital. In July, 1906, it leased Brown's wharf and began a storage business there, but at that time it contemplated the expenditure of a large amount in the erection of a modern storage warehouse, to which it bound itself in that lease in pursuance of negotiations [***61]  with the appellee representing the railroad company. The erection of that warehouse, for that purpose, then became and  [**404]  continued to be its main enterprise. The appellee's subscription was made June 10, 1907, and the building contract, made in July, 1907, called for an expenditure of $ 136,000, nearly the whole of the authorized capital. In addition to this, the storage company purchased ground on which to erect the warehouse, and mortgaged the same for $ 50,000. All this was done without the concurrence of the appellee, who at the time of making the subscription advised against undertaking any construction under  [*593]  existing business conditions, and continued so to advise. In considering this situation it must not be forgotten, as said in Hager v. Cleveland, 36 Md. 476, that "there is a wide difference between the existence of the company as a corporate body, and the liability of parties for their subscriptions to its capital stock;" and, as repeated in Gettysburg Bank v. Brown, 95 Md. 367, that "this rule applies to subscriptions made before and after the company is chartered." The fact that the appellee knew that [***62]  the storage company was about to involve its stockholders in this large financial undertaking is conclusive that he was entitled to the benefit of the rule he now invokes. We cannot imagine a situation in which this rule could apply with more peculiar force if the reasons so forcibly assigned by JUDGE SHAW in 2 Gray, supra, and so fully approved by this and other Courts, are in themselves sound and satisfactory.
But it remains to enquire whether this defense has been waived, or the appellee estopped to claim its benefit.
In considering this question it must be kept in mind that there is not only no evidence to show that Landstreet did not know all the stock was not subscribed, but that he subscribed in reliance upon Brady's assurance that it was all either actually subscribed or promised to be subscribed immediately upon his subscription being made, as indicating the co-operation of the railroad company. Technical estoppel, it may be conceded, is not required, and any acts which constitute waiver will be sufficient.
It is uncontradicted that Landstreet never qualified as a director, and never attended any directors' or stockholders' meeting, nor participated in any way in the [***63]  incurring of any obligation or the transaction of any business of the company.
In Garling v. Baechtel, 41 Md. 305, it was held that where a stockholder attends meetings of the company, knowing the whole capital stock has not been taken, and votes for the expenditure of money for the purchase of property and materials to carry on the business of the company, he will not be  [*594]  permitted to set up the defense that the capital stock had not all been taken. And to the same effect is Hager v. Cleveland, 36 Md. 476; Stillman v. Dougherty, 44 Md. 380. But in Garling v. Baechtel, 41 Md., supra, which was a suit to recover of Garling as a stockholder a debt due Baechtel by the company, JUDGE ROBINSON also said: "The mere fact that he paid his subscription, knowing that the whole capital stock had not been paid in, and that the company was incurring debts for property and material, were not such acts of participation as to estop him from setting up in this action the partial subscription of the capital stock." And this was held also in Bray v. Farwell, 81 N.Y. 600, in a similar case,  [***64]  where defendant never attended a stockholders' meeting or assented in any way to the commencement of the enterprise before all the shares were taken.
In Ridgefield R. R. v. Reynolds, 46 Conn. 375, Reynolds attended stockholders' meeting to elect directors and was himself elected a director and accepted. He was present at a meeting of directors when an assessment of forty per cent. was laid, and when a report was made by the President of a contract for construction, and work actually begun; but it did not appear he participated in any action taken at the meeting. It was held none of these things constituted a waiver. CHIEF JUSTICE PARK said: "The case is silent as to his conduct. His simple presence is as much in accord with one supposition as the other. The burden of proof is on the appellees."
In Masonic Temple v. Channell, 43 Minn. 353, the Court said: "It is to be regretted that there has been any relaxation of this rule. The acts as stockholder which will constitute a waiver are those which constitute a part of the business for which the corporation is formed, and which evince a willingness to enter upon that business with [***65]  the stock already subscribed." This is a clear and plain statement of the principle upon which all such questions should be resolved.
In that case the defendant was a director, attended meetings as such, and was chairman of a committee to select a  [*595]  building site, and only resisted payment when the site he favored was not selected. This was held a waiver. The facts in this case do not, in our opinion, bring it within any well-considered decision under which a waiver could be found, and we think the learned Judge below correctly granted the defendant's first prayer.
As this necessarily requires the affirmance of the judgment, there is no occasion to consider the other prayers, nor the disposition of the motions to strike out evidence, all of which were refused.
Judgment affirmed with costs to the appellee above and below. 

20 of 37 DOCUMENTS 

STATE OF MARYLAND vs. THE MARYLAND CLUB.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

105 Md. 585; 66 A. 667; 1907 Md. LEXIS 58 

April 26, 1907, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Criminal Court of Baltimore (HARLAN, C. J.) 

DISPOSITION:
Judgment reversed, and the case remanded, with costs to the appellant.  

HEADNOTES:

Sale of Liquor on Sunday by Social Clubs. -- Construction of Charter of Baltimore City.

Section 682 of the charter of Baltimore City (Act of 1898 ch. 123) provides that no licensee under that article shall sell or furnish to any person intoxicating liquor on Sunday. The Act of 1898, ch. 246, makes it unlawful for any club or association to sell or furnish intoxicating liquors to its members or any other person without having first obtained a license and provided that no license should be granted except to legitimate bona fide clubs. The Act of 1906, ch. 278, amending the charter of Baltimore City, provided that if the applicant for a license to sell liquor desired a club license that fact must be stated in the application. Held, that it was the intention of the Legislautre by the Acts of 1898, ch. 246 and 1906, ch. 278, to bring social clubs in Baltimore City fully within all the provisions of the charter relating to the sale of liquor.

Held, further that the Maryland Club, a bona fide social organization in said city, incorporated in 1858, being required by the Acts of 1898, ch. 246 and 1906, ch. 278, to take out a license for the sale of liquor is a licensee under the Charter and as such is prohibited by sec. 682 of the Charter from selling liquor on Sunday, although such sale or furnishing of liquor be made only to its own members and not for profit.  

COUNSEL:
William S. Bryan, Jr., Attorney General and Albert S. J. Owens, State's Attorney, for the appellant.

Bernard Carter and Morris A. Soper for the appellee.  

JUDGES:
The cause was argued before BOYD, PEARCE, SCHMUCKER, BURKE and ROGERS, JJ.  

OPINIONBY:
BURKE 

OPINION:

 [**667]   [*586]  BURKE J., delivered the opinion of the Court.
The Maryland Club, a bona fide social organization, incorporated under the laws of Maryland, was indicted in the Criminal Court of Baltimore on the 12th day of December, 1906, for the offense of selling and furnishing intoxicating liquors on Sunday, November 25th, 1906, in the City of Baltimore, to a certain person whose name was unknown to the Grand Jurors. The indictment contained four counts. The first count charged that the Maryland Club, a body corporate, duly incorporated, late of said city on the 25th day of November, in the year one thousand nine hundred and six, at the city aforesaid, the said day in the said year being the Lord's day, commonly called Sunday, and being then and there a body corporate, duly incorporated,  [***2]  in said State of Maryland, and being then and there a Club, and being then and there a licensee of the said State under the name of the Maryland  [*587]  Club, then and there licensed as aforesaid, to sell, offer for sale, and keep for sale intoxicating liquors by retail by the drink in said city, and not being then and there a hotel keeper, unlawfully did then and there sell and furnish intoxicating liquors to a certain person to the Jurors aforesaid unknown, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.
The second count alleges that the Maryland Club was incorporated by an Act of the General Assembly of Maryland passed in the year 1858, and sets out in full the act of incorporation; it then sets out an Act of the General Assembly of Maryland, known as chapter 22 of the Acts of 1892, by which the original charter of the Maryland Club was amended; it then alleges that the said Maryland Club during all of the time aforesaid was, and still is such corporation and body corporate as aforesaid; and that on the 25th day of November, in the year nineteen hundred and six, at the city of Baltimore,  [***3]  in the State of Maryland, said Maryland Club was, and still is such corporation and body corporate duly incorporated as aforesaid, and was on the said last mentioned day, and still is, at the city aforesaid, a club and licensee of said State licensed to sell, offer for sale, and keep for sale intoxicating liquors by retail by the drink in said city of Baltimore, and not being then and there on said 25th day of November in said year, nineteen hundred and six, at the city aforesaid, a hotel keeper, unlawfully at the city aforesaid, did on the said last mentioned date, to wit: November 25th, nineteen hundred and six, the last-mentioned day being the Lord's day, commonly called Sunday, sell and furnish at the city aforesaid, intoxicating liquors to a certain person whose name is to the jurors aforesaid unknown, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.
The third count alleges that the said Maryland Club, a body corporate, duly incorporated, on the said 25th day of November, in the year of our Lord, nineteen hundred and six, at the  [*588]  city aforesaid, the said day in the said year, being [***4]  the Lord's day and Sabbath day, commonly called Sunday, and being then and there a body corporate, duly incorporated, and being then and there  [**668]  a club, society and association, and a licensee of the said State, under the name of the Maryland Club, then and there licensed to sell, offer for sale and keep for sale intoxicating liquors by retail by the drink in said city, and not being then and there a hotel keeper, unlawfully did sell and furnish on the said last mentioned day in the said year, at the city aforesaid, intoxicating liquors to a certain person whose name is to the jurors aforesaid unknown, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.
The fourth count charges that said Maryland Club, a body corporate duly incorporated, on the said 25th day of November, in the year nineteen hundred and six, at the city aforesaid, the said last-mentioned day in the said year being the Lord's day, commonly called Sunday and being the Sabbath day, and the said Maryland Club being then and there a corporation, duly incorporated; and being then and there a club, society and association, and then [***5]  and there a licensee of the said State, under the name Maryland Club, then and there licensed to sell, offer for sale and keep for sale intoxicating liquors by retail by the drink in said city, and not being then and there a hotel keeper, unlawfully did then and there sell, furnish and dispose of certain spirituous and fermented liquors, cordials, lager beer, wine, cider and intoxicating liquors to a certain person whose name is to the jurors aforesaid unknown, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.
To this indictment the defendant filed two special pleas, to each of which the State demurred. The demurrer of the State to each of said special pleas was overruled by the Court, and, the State declining to traverse the pleas, judgment was entered that the traverser, the Maryland Club, be dismissed and discharged from said indictment. From this judgment the appeal now before us was taken.
 [*589]  The special pleas filed by the Maryland Club are quite lengthy, and only the substance of the first plea need be stated, as the identical defense presented by the first plea is relied on under [***6]  the second. It sets out the Act of 1858, ch. 95, by which it was incorporated, and by which it appears that "an association of citizens has been formed in the city of Baltimore, under the title of the Maryland Club, having for its object the promotion of regulated social intercourse among its members, and the extension of hospitable courtesies to strangers;" that upon the passage of said Act of incorporation the corporation thereby created, and as thereby authorized, organized itself as a social club for the accomplishment of the objects set forth in its said charter, committing the administration of said club to a board of twenty-five governors, and began to exercise the rights and privileges granted to it thereby, and continued in the exercise of the same up to and including the year 1892, in which year its charter was amended by an Act of the General Assembly of Maryland, being ch. 22 of the Acts of the General Assembly of Maryland of 1892; the amended charter is then set forth, and it is then alleged that "after the passage of said last mentioned Act of Assembly the said corporation, the Maryland Club continued in the exercise of the rights and privileges granted to it by its original [***7]  charter and the aforesaid amendment thereof, and was in the exercise thereof at the times mentioned in the several counts of the indictment; and after the passage of the said Act of Assembly of Maryland in 1892, ch. 22, the said Maryland Club for the better accomplishment of the purposes of a social club, for the accomplishment of which it has been created and organized, did, at great cost and expense, erect and provide for the use of its members a large building situated at the southeast corner of Charles and Eager streets in the city of Baltimore, containing parlors, sitting rooms, sleeping rooms, reading rooms, library, billiard rooms, dining rooms, a cafe and restaurant, a large and commodious kitchen, store rooms for articles of food, wines, liquors, beers, and cigars, and other rooms adapted to the proper use of a first class social club;  [*590]  and furnished and equipped said house and rooms with articles suitable and adapted to the use of its members as a place where they may meet from day to day and have the conveniences and advantages of a first class social club. That a large number of the members of the club from time to time, as well on week days as on Sundays, get [***8]  their meals in the said club building, including breakfast, lunch, and dinner; that the membership of said club is divided into two classes designated as resident members and non-resident members, the resident members being those who reside in the city of Baltimore, and the non-resident members being those who reside elsewhere; that at the times mentioned in said indictment the number of its resident members was approximately four hundred and eighty-two (482), and its non-resident members one hundred and seventy-six (176); that the initiation fee of each resident member is one hundred and fifty (150) dollars, and of each non-resident member (50) dollars, and the annual dues paid by each of the resident members is seventy-five ($ 75) dollars, and by each of the non-resident members thirty-six ($ 36) dollars; that from the said fees and dues the said Maryland Club derives an annual revenue each year of more than forty thousand ($ 40,000) dollars. That in the conduct of its affairs, and for the purpose of carrying out the objects for which it was incorporated, the said Maryland Club serves and furnishes articles of food, meals, wines, liquors, beers, and cigars, which liquors, wines  [***9]   and beers are known as intoxicating liquors, wines and beers, to those of its members who from time  [**669]  to time ask to be served and furnished therewith, at times furnishing said intoxicating liquors to members with meals and at times without meals, as well on Sundays as on week days; that to enable it to furnish the same to its said members it purchases and keeps on hand the said articles, and furnishes the same to its members at prices fixed by a committee of its board of governors, and paid by the member or members ordering said articles; that the prices so fixed for said meals, articles of food, cigars, wines, liquors and beers, and the prices fixed for each of them, are not fixed with the view of making by the said club any  [*591]  profit in the furnishing of the same, but the prices are fixed with the view of furnishing the said articles at a minimum cost to its members, and such an amount only is charged as will compensate for the cost of the said articles, and a reasonable portion of the expenses of serving the same, taking into consideration the cost of the service, including the wear and tear of the articles used in connection therewith, the lighting,  [***10]  heating, use of the premises in which the said articles are furnished; that the revenues derived from the furnishing of the said articles are not equal to the cost of furnishing the same, the difference between said cost and said revenues differing from year to year, and large in amount in each and every year, and most years running into thousands of dollars, up to and including the year 1906; that said deficit is paid out of the revenues received as aforesaid by the club from the fees and dues of its members. That no person other than resident and non-resident members are admitted to the privileges of said club except a limited number of persons not residing in the State of Maryland, but who are visitors to the city of Baltimore, and upon invitation of members, with the sanction of the executive committee of the board of governors, are admitted to the privileges of the club for a limited number of days, and that said persons while so enjoying said privileges are members of said club."
It then alleges that for the purpose of complying with the laws of the State of Maryland and in order to be able to furnish its members with liquors, wines and beers in the manner hereinbefore set forth [***11]  in the plea, the Maryland Club did on the 6th day of April, 1906, file through its secretary, George May, with the Board of Liquor License Commissioners of Baltimore City a petition for the grant of a Liquor License. This petition is then set forth, and states that it is made by George May, of Baltimore City, as president, or secretary of the club, society, or Association thereinafter named, for and on behalf of the said club, society, or association in accordance with the provision of section 81 A and section 81 B of article 56 Code of Public General Laws of  [*592]  Maryland: The petition states that the name of said club, society, or association, is the Maryland Club; that R. C. Hoffman is the president, and that said club, society, or association desires to sell, barter, furnish, or dispense liquors, wines, and beers to its members; that the name of the owner of said premises for which the license is applied for is the Maryland Club; that the petitioner "on behalf, and in the name and by the authority of the said organization hereby agrees to furnish to the Board of Liquor License Commissioners, whenever requested to do so, such facts and information as may be necessary [***12]  or proper to satisfy the Board that the club, society or association hereby making application for license is in fact such legitimate and bona fide organization as it purports to be, and that such organization would not be a nuisance to the neighborhood where it is located or proposes to locate;" that the organization has not been indicted for any alleged violation of the law; and the petition states that the said organization is legitimate and bona fide organization for the purposes named in its certificate or incorporation or charter; that it is composed of reputable and law abiding citizens, and that this license is not intended to be and will not be used for any purpose or in any manner contrary to law or subversive of peace and good order. To this petition was annexed a sworn list of bona fide members of said organization, as required by section 81 A. of Article 56 of the Code of Public General Laws. This petition was verified by the oath of Mr. May, as secretary of the Maryland Club.
It is then averred that the said "Board of Liquor License Commissioners decided to grant the license prayed for, and notified in writing the defendant that such decision had been made,  [***13]  and thereupon on the first day of May in said year, the defendant produced to the clerk of the Court of Common Pleas the said notification in writing and paid to the said clerk sum of Two hundred and fifty dollars, and the said clerk thereupon issued to the defendant the license granted to the defendant by the said board, which said license was of the tenor, purport and effect following, to wit:
 [*593]  $ 250 for 12 months.
License for the sale of liquor by retail at a club, society or association.

Baltimore City, to wit:
This is to certify that a license has this day been granted to the Maryland Club, No. 1 E. Eager street, to sell by retail, distilled liquors or any mixture of distilled liquors containing more than fifteen per cent alcohol, or fermented liquors containing less than fifteen per cent alcohol, under and by virtue of the provisions of Article 4 of the Code of Public Local Laws, title "City of Baltimore," sub-title "liquors and intoxicating drinks;" as amended by the Act of the General Assembly of Maryland of 1890-1892 and 1894, and chapter 364 of the Act of 1898."
The plea then concludes as follows: "And the Maryland Club further saith, that at all times [***14]  from the time of its organization up to and including  [**670]  the time of the finding of said indictment, it has been, and it is now, a legitimate and bona fide social club, a legitimate and bona fide organization for the purposes named in its original charter, that is to say for the promotion of regulated social intercourse among its members and the extension of hospitable courtesies to strangers; that it is composed of reputable and law-abiding citizens; and that in pursuance of its said object it places upon its own members and all strangers admitted to its privileges, the obligation of preserving order, and decorum of language and behavior in the club house; and that said Maryland Club is not in any sense of the word a trading corporation or engaged in the sale of liquor for making a profit therefrom. And the Maryland Club says that the intoxicating liquors charged in each of said counts to have been sold on the day therein mentioned to a person to the jurors unknown, were by the said Maryland Club furnished to a member or members of said club without meals, and were so furnished in the manner hereinbefore set forth, and in no other manner."
The averments of the pleadings [***15]  which have been stated present the conflicting theories of the State and the Maryland Club with respect to this case.
Section 385 of Article 27, Code of Public General Laws  [*594]  provides, "that no person in this State shall sell, dispose of barter, or, if a dealer in anyone, or more of the articles of merchandise in this section mentioned, shall give away on the Sabbath day, commonly called Sunday, any tobacco, cigars, candy, soda, or mineral waters, spirituous or fermented liquors, cordials, lager beer, wine, cider or any other goods, wares or merchandise whatsoever; and any person violating any of the provisions of this section shall be liable to indictment in any Court in this State having criminal jurisdiction." And section 682 of the city charter declares that "no licensee under this subdivision of this Article shall sell or furnish to any person intoxicating liquors on any days upon which elections now or hereafter may be required by law to be held; nor on the Lord's day, commonly called Sunday, except that if the licensee is a hotel keeper he may supply such liquors, to be drunk in their rooms or with their meals, to bona fide guests; nor between the [***16]  hours of twelve o'clock midnight and five o'clock, A. M., at any time; nor, except in hotels, shall conduct the business in any place in which an entrance shall be allowed other than directly from a public traveled way; provided, however, that a licensed dealer may, with the permission of the Board of Police Commissioners at bona fide entertainments of any society, club or corporation, sell intoxicating liquors between such hours as the board aforesaid may designate in said permit."
It will be observed that the allegations contained in the indictment are broad enough to support a conviction either under the general law, or under the section of the charter we have quoted. The first, second and third counts, as we have seen, aver that the defendant did sell and furnish, on the Sunday mentioned, intoxicating liquors, while the fourth count charges the defendant with having sold, furnished and disposed of, on the Sunday named, certain spirituous and fermented liquors, cordials, lager beer, wine, cider and intoxicating liquors. The position taken by the Maryland Club, as shown by its pleas, is that it is not a licensee under the subdivision of the city charter mentioned,  [***17]  but that it is a licensee under the  [*595]  provisions of the Public General Law of the State, to wit, the Act of 1898, chapter 246, and that under the facts alleged in its special pleas it is not unlawful for it to sell or furnish to its members intoxicating liquors on Sunday. The facts averred in the pleas, it is contended, bring the Maryland Club fully within the decision of this Court in the case of Seim v. The Concordia Club, 55 Md. 566, and constitute an effectual bar to the prosecution.
The State, while denying the authority of the Seim case, takes this further position: That it is unlawful for any licensee under the subdivision of Article 4 of the Public Local Laws of Baltimore City relating to liquors and intoxicating drinks to sell or furnish to any person intoxicating liquors on Sunday; except as provided in section 682 of said Article. But that the Maryland Club is such a licensee, and is not embraced within any of the exceptions expressed in section 682 of that Article. Therefore, it is unlawful for it to sell or furnish intoxicating liquors to its members on Sunday. The major premise of this syllogism must be admitted, and if the propositions [***18]  asserted in the minor premise be true, the judgment in this case must be reversed.
We think the determination of the conflicting contentions of the parties depends upon the proper construction of the Acts of 1898, ch. 246, and 1906, ch. 278. It must be borne in mind that all licenses for the sale of liquor are granted by the State in the exercise of its police powers. It is a mere permit, which may be granted, or withheld at the pleasure of the State, and which may be modified, or annulled by the State at any time. The State has a right to prescribe the conditions upon which license may be granted. It may, therefore, be taken for granted that the source from which all licenses for the sale of intoxicating liquors is derived, whether in the city of Baltimore or elsewhere, is the authority of the State. The subdivision of the City Charter (Act 1898, ch. 123), relating to intoxicating liquors, prescribes the conditions upon which all liquor licenses should be issued in the city of Baltimore. Licenses to sell, or furnish intoxicating liquors in said city  [*596]  were required to be taken out in the mode and manner therein prescribed, and the exclusive power to grant licenses  [***19]   [**671]  to sell intoxicating liquor in that city was committed by the law to the Board of Liquor License Commissioners for Baltimore City. The provisions of the City Charter which deal with the sale of liquor and the granting of liquor licenses are merely a re-enactment of the Act of 1890, ch. 343, known as the high license law for Baltimore City. The sections of the charter relating to these subjects, as originally enacted, have been amended by the Acts of 1900, chapters 278, 442, and 704; Act 1902, ch. 228; and 1906, ch. 278. There are several other Acts of Assembly defining certain territory in Baltimore City within which no license shall be granted, but these need not be noticed as they have no bearing upon the question before us.
By the original charter as thus amended, most careful and elaborate provisions have been made as to the sale of liquors in Baltimore City. This Court in the case of Trageser v. Gray, 73 Md. 250, speaking through JUDGE BRYAN, of the Act of 1890, ch. 343, which, as we have said was made a part of the City Charter by the Act of 1898, ch. 123, said: "The Act of 1890, ch. 343, prescribed a new system for the regulation of the sale [***20]  of liquors in the city of Baltimore. A board was established, consisting of three commissioners, invested with a power of granting licenses to sell these liquors by retail. Every one applying for such license was obliged to file his petition with the board, setting forth a number of statements tending to show that he was a fit person to be licensed. It was required to be verified by his own affidavit, and also to be sustained by a certificate of at least ten respectable persons, declaring that they were acquainted with the petitioner, and that they had good reasons to believe that all the statements of the petitioner were true, and that they therefore prayed that the license should be issued to him. Provision was also made for giving extended notification of the petition, by advertisement in two newspapers of general circulation in the city. And also for the public hearing of this petition; and the petition of  [*597]  other persons in favor of granting the license; and also remonstrances against granting it. It was further provided that licenses to sell by retail should be granted only to citizens of the United States of temperate habits and good moral character. A number of other [***21]  regulations were made, which it is not now necessary to state but they all show extreme and anxious solicitude on the part of the Legislature to diminish the evils arising from the excessive use of ardent spirits. If the commissioners should grant the license, the applicant was required to pay to the Clerk of the Court of Common Pleas two hundred and fifty dollars; and thereupon it became the duty of the said clerk to issue it."
As originally enacted, and until the first day of May, 1898, at which time the Act of 1898, chapter 246, became effective, bona fide social clubs of the character of the Maryland Club were not required to take out a liquor license in Baltimore City, and under the authority of the Seim case, supra, could neither be indicted for the sale of intoxicating liquors without license, nor for selling, or disposing of liquors to its members on Sunday, first, because as decided in that case, the liquor license laws did not apply to such a club, and secondly, because the members of such a corporation who obtained liquors at the club, by paying into the common fund the price fixed by the regulation of the society, could not be said in any sense to buy them [***22]  from the corporation, nor could the corporation be said to sell them to the members within the meaning of the law prohibiting the sale, or disposing of spirituous or fermented liquors on Sunday. Such was the state of the law in Baltimore City at the time of the passage of the Act of 1898, chapter 246.
The learned Judge who passed upon the demurrers in the lower Court has correctly stated the evils intended to be corrected by the passage of this Act. "The evil," he said, "which I think the Legislature intended to reach by the passage of the Act of 1898, chapter 246, grew out of the condition of the law between 1890 and 1898. During this period in Baltimore City, saloons were required to pay a license fee of  [*598]  two hundred and fifty dollars, and there were so called high license laws in force in other parts of the State; as, for example, in Havre de Grace, where the license fee under the Act of 1890 chapter 180, section 192, was three hundred and fifty dollars. It was easy to evade the payment of these fees and commit a fraud upon the revenue of the State. A saloon keeper taking the advantage of the general incorporation law, could get four friends to join him in executing [***23]  and acknowledging a certificate of incorporation for a social club; which certificate when approved by a Judge as being in proper form and duly recorded, would constitute the incorporators a body corporate; and this body could carry on a retail liquor business without a license by the simple expedient of requiring any person who wanted a drink to sign a constitution as a condition precedent to getting it. In point of fact, the number of such clubs formed during this period was so great, and their purpose was so well known, that they were familiarly spoken of as Beer Clubs."
The Act of 1898, chapter 246, made it unlawful for any club, society, or association whatever, whether incorporated or not, now in existence, or hereafter to be formed, to sell, give barter, or in any manner furnish, or dispense to its members, or any other person, or persons any intoxicating liquors without first having obtained a license as therein provided. After making it unlawful for clubs, societies etc., to sell, give, barter, furnish, or dispense to their members intoxicating liquors without license, it provided by whom  [**672]  and under what conditions the license should be granted. The act [***24]  did not grant the license, but it conferred authority upon certain well known agencies to grant it, when the applicant had first complied with the reqirements of the act, and when the person or tribunal authorized to grant the license "shall be satisfied that the club making application for license is in fact such legitimate and bona fide organization as it purports to be, and such organization would not be a menace where it proposes to locate." This act did not apply to Baltimore and Washington counties, because in those counties there were local laws covering this subject.
 [*599]  The Act of 1906, chapter 278, amended the sub-title of the city charter relating to liquors, and, among other things, provided what the application for the license should contain. If the applicant desired a club license it was made necessary to state that fact in the application. It seems to us to have been the evident intention of the Legislature by the Acts of 1898, chapter 246 and of 1906, chapter 278 to bring a social club applying for a license in Baltimore City fully and completely within all the provisions of the sub-title of the city charter relating to intoxicating drinks which in [***25]  their nature are properly applicable thereto, and that a club to which a license has been granted by the Board of Liquor License Commissioners is as much a licensee under that subdivision of the charter as is an individual to whom it may have granted a license. It by no means follows that because the Act of 1898, chapter 246, was intended to remedy the evils mentioned, a licensed club in Baltimore City is not to be held subject to such provisions of the charter as may be properly applied to it, or that it is not liable, upon conviction, to the penalty prescribed by section 685 of the charter for the sale of liquors on Sunday. The conclusion that it is not so liable, it appears to us, can only be reached by a forced and overstrict construction of the Acts of Assembly referred to. We, therefore, decide that the Maryland Club is a licensee under the subdivision of the city charter relating to the sale of liquors and intoxicating drinks, and if the allegations of the indictment be true it has committed the offense of selling, or furnishing intoxicating liquors on Sunday within the meaning of section 682 of the city charter. It follows that the judgment appealed against must be reversed.  [***26]  
Judgment reversed, and the case remanded, with costs to the appellant. 

21 of 37 DOCUMENTS 

THE HAGERSTOWN MANUFACTURING, MINING AND LAND IMPROVEMENT COMPANY OF WASHINGTON COUNTY vs. MARTIN L. KEEDY, TRUSTEE, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

91 Md. 430; 46 A. 965; 1900 Md. LEXIS 55 

June 15, 1900, Decided 

PRIOR HISTORY:
 [***1]  Appeal from a decree of the Circuit Court for Washington County (STAKE, J.), directing M. L. Keedy, Trustee, to convey to the appellant the land conveyed by it to the Maryland Beneficial Association in October, 1892, and directing the appellant to pay to the Maryland Beneficial Association $ 1,085 with interest from October 5th, 1895, the date of the filing of the answer in the cause.  

DISPOSITION:
Decree reversed with costs and bill dismissed.  

HEADNOTES:

Contract Between Two Corporations Having Some Directors in Common -- Power of Benefit Society to Hold Land -- Ultra Vires -- Bill to Rescind Purchase of Land Made in Excess of Corporate Powers.

When a contract is made between two corporations, the mere fact that some of the directors are common to both does not create any presumption of illegality or unfairness in the transaction.

When a corporation is authorized by its charter, or by general statute, to hold land for some purposes, its right to take and hold any particular parcel can only be called in question by direct proceeding instituted by the State.

A benefit society, incorporated for the purpose of paying money to its members in cases of sickness and death, purchased certain lots of ground from defendant at auction. Three years afterwards the society made an assignment for the benefit of creditors to plaintiff, who filed a bill alleging that at the time of the purchase of the lots the benefit society was insolvent to the knowledge of defendant; that the purchase of the lots was made as a speculation and not as an investment and was incompatible with the purposes of the society, and that some of the officers of the benefit society were also officers of the defendant, and that the purchase was fraudulent. The prayer of the bill was that the defendant be required to pay back the purchase-money and receive a reconveyance of the lots. The evidence established that the benefit society at the time regarded the purchase as a good investment, but the property was not necessary for the purposes of the society. Code, Art. 23, sec. 52, authorizes corporations to acquire any property necessary or proper to enable it to fulfill purposes named in the certificate of incorporation. Held,

1st. That there is no evidence to sustain the allegation that the sale of the lots was the result of a fraudulent combination between the directors of the two corporations or that the benefit society was then insolvent.

2nd. That the plaintiff cannot ask for a rescission of the contract of sale merely because the benefit society exceeded its powers in making the purchase.  

COUNSEL:
Alex. R. Hagner, for the appellant.

1. The bill is faulty in that there is no allegation offering to reconvey the property to the appellant upon receipt of the purchase price and nothing to show the willingness of the appellee to place the parties as near as possible in the position before the contract was entered into. When the complainant offers to reconvey the property, etc., in question, it will have taken the first step towards reaching a position which may entitle it to be heard. Memphis, etc. v. Dow, 19 Federal Rep. 394; 27 Am. and Eng. Ency. of Law, 373, note 4. The appellee certainly cannot retain the property purchased and recover the money paid for it. This is a proposition that needs no authority.

2. The contract sought to be set [***2]  aside was entered into and completed on both sides three years before the deed of trust was made and nearly four years before the bill was filed in this cause to vacate the same. The bill admits that it was complete and executed. Executed and completed contracts will not be interfered with by Courts of Equity, even though they be beyond the powers of either party to enter into them. Booth v. Robinson et al., 55 Md. 419; Elysville Manufacturing Co. v. Okisco Co., 5 Md. 158. Ultra vires contracts are recognized as unassailable and are permitted to stand as the foundation of right acquired under them after they have been fully performed on both sides. 27 Am. and Eng. Ency. of Law, 377; Camden, etc., R. R. Co. v. Mary's Landing, etc., R. R. Co., 48 N. J. L. 530; St. Louis, etc., R. R. Co. v. Terre Haute, etc., R. R. Co., 145 U.S. 409; Penn. R. R. Co. v. St. Louis, etc., R. R. Co., 118 U.S. 316; Union Trust Co. v. Illinois Midland R. Co., 117 U.S. 468; Central Transportation Co. v. Pullman Car Co., 139 U.S. 56; Buckeye Marble Co. v. Harvey, 92 Tenn. 115; James v. Eve, L. R., 6 H. L. 335; Taylor v. South & North Alabama R. Co., 4 Woods (U.S.) 575.

3. This contract was not ultra vires [***3]  the powers of the charter of The Maryland Beneficial Association. Because its charter does not expressly authorize it to purchase real estate, does it necessarily follow that it has no power to invest its funds in that kind of property? There is nothing in the Code of Maryland to prevent the Maryland Beneficial Association from acquiring real estate as an investment. It would be the duty of the board of directors to invest its surplus earnings in order that its accumulated fund could be earning something to increase its assets. The testimony of C. W. Sebold shows that lots within a few yards of the lots in question were at the time he testified, selling for as much as $ 200 apiece, and he swears that they were bought as an investment. Insurance companies are not to be precluded from investing their funds in real estate, and directors cannot be charged with bad faith if their investments do not always bring the best returns.

It is sought to cast reflections on this transaction because two of the directors were the same in both corporations. There is no legal presumption of illegality or unfairness in transactions between two corporations from the mere fact that a portion of the [***4]  board of directors in the one are also members in the other. Booth v. Robinson, 55 Md. 420.

It seems that the secretary of the Maryland Beneficial Association did not record the resolution in the minute-book authorizing the manager, A. Romain, to buy these lots. Is that alone to be construed as an act of fraud? Or that the purchase was not the act of the corporation? The testimony of Mr. Sebold shows that such a resolution was agreed to--but the corporation acted and paid out the purchase price, thereby ratifying the transaction. Fraud is nowhere proven, nor can it be inferred from any facts or circumstances in this case. A contract once made and carried into execution cannot be rescinded or set aside, except upon the clearest and most satisfactory proof of fraud or mistake. McShane v. Hazlehurst, 50 Md. 107.

The evidence shows that at the time of the purchase in October, 1890, the Maryland Beneficial Association had considerable money and investments and was not insolvent, owing no debts. Not one allegation in the bill has been established. But have not the Maryland Beneficial Association and its stockholders slept on their rights? Keedy v. Nally, 63 Md. 311; Cook on Stockholders,  [***5]  sec. 666.

Alex. Armstrong and Charles D. Wagaman (with whom was William T. Hamilton, Jr., on the brief), for the appellees.

The question is whether a transaction such as is detailed in this case will stand; whether the Beneficial Association which has found its way into the hands of a trustee can recover back from the Land Company the moneys which were paid over to the Land Company by returning title to the lands which had been conveyed, or whether the members of the association, who were placing their pittances weekly into the treasury of the association, are to be shorn of their moneys and take in lieu thereof seven "boom" lots lying outside the corporate limits of Hagerstown in the open.

That the deal in real estate made by the association "from its start to its finish" was an ultra vires act on the part of the association, there can be no manner of doubt. Inhabitants of Sutton Parish v. Cole, 3 Pick, 232; Weckler v. 1st. Nat'l Bank, 42 Md., 581; Reese on Ultra Vires, sec. 8, 9, 11, 19; Cook on Stock and Stockholders, sec. 664 and note. "Upon the principle now perfectly well settled that a body incorporated for special purposes can not devote any part of its funds [***6]  to objects unauthorized by the terms of its charter." Booth v. Robinson, 55 Md. 435. Being an ultra vires act, under the authorities it was a void act--an illegal act--and as such will it stand or can it be relieved against? If the transaction were executory no one would say that either party could enforce it. The authorities, we believe, are uniform as to this point. Reese on Ultra Vires, 53, 54. But it is contended that the transaction is closed; that the Land Company has received the purchase price and has given a deed; that it is an executed contract, and therefore the association, or its representative, the trustee, can have no relief in equity. Is this the law?

The Land Company has the money for the lots; the Beneficial Association has the title. The members of the association, who are the aggrieved parties, come and ask the aid of this Court to overthrow a transaction which was a fraud upon their rights and interests, and that this illegal act which was engaged in by the directors, now that it has come to light, shall be set at naught and the moneys restored to the hands of the trustee to be distributed to the policy holders of the association. We think that this can well [***7]  be done. The principles governing such cases briefly stated are these: A contract ultra vires is void; if executory, neither party can enforce it; if executed, either party injured by its performance can ask to have the contract disaffirmed, and to be restored to his rights and have restitution of money or property by surrendering all benefits under the contract to the opposite party. In other words, that the parties be placed as nearly as possible in the state in which they were before the contract was made. Maryland Hospital v. Foreman, 29 Md. 531; Cent. Transportation Co. v. Pullman Car Co., 139 U.S. 24; Railway Co. v. Keokuk Bridge Co., 131 U.S. 387; Curtis v. Levitt, 15 N. Y. 297; Levitt v. Palmer, 3 Comst. 19; Platt v. Short, 79 N. Y. 437; Reese on Ultra Vires, sec. 74, 75.  

JUDGES:
The cause was argued before MCSHERRY, C. J., FOWLER, BRISCOE, PAGE, BOYD, SCHMUCKER and JONES, JJ.  

OPINIONBY:
SCHMUCKER 

OPINION:

 [*434]   [**965]  SCHMUCKER, J., delivered the opinion of the Court.
The bill of complaint in this case was filed in the Circuit  [*435]  Court for Washington County by the appellee against the appellant to procure a rescission of a sale of certain real estate made by the appellant [***8]  to the Maryland Beneficial Association of Washington County. The sale was made in October, 1890, and the bill was filed in August, 1895. In January, 1895, the Beneficial Association made a deed of trust for the benefit of its creditors to the appellee, who was authorized to file the bill by an ex-parte order of the Court under whose supervision he was administering the trusts of the deed.
It appears from the record that the appellant, in the legitimate exercise of its corporate powers, undertook to lay out in town lots and expose for sale a tract of land owned by it lying in the suburbs of Hagerstown. At a public sale of these lots the Beneficial Association purchased seven of them at an aggregate price of $ 1,085; payable one-third cash and the balance in one and two years. The lots were paid for by the Beneficial Association according to the terms of sale, and on October 24th, 1892, they were conveyed to it by a deed which it placed on record a few days thereafter.
The bill of complaint sets up title to the lots in the appellee as trustee under the deed of trust from the Beneficial Association, and relies upon two grounds for the relief for which it prays. These grounds are,  [***9]  first, a want of power in the association to purchase and hold the lots, and secondly, that their purchase was the result of a fraudulent combination between the directors  [**966]  of the two corporations. In amplification of the second ground the bill avers that two of the directors were common to both corporations, that the Beneficial Association was insolvent to the knowledge of the appellant when the purchase was made, and that the purchase was not made for the bona fide purpose of investment, but as a speculation. The prayer of the bill is that the appellant may be required to repay the price paid to it for the seven lots, with interest, upon receiving a conveyance of the lots.
 [*436]  The appellant answered the bill neither admitting nor denying the want of capacity in the Beneficial Association to purchase the lots, denying any knowledge of its insolvency, and emphatically denying the allegations of fraud set up in the bill, and insisting that the sale was made in perfect good faith by the appellant.
The appellee, to support the allegations of the bill, introduced the testimony of two witnesses, Forbes and Barrick, of whom the former was president of the [***10]  Beneficial Association and the latter was its general agent. These witnesses not only failed to prove the charges of fraud contained in the bill, but testified in substance that the lots were bought for investment by the association in pursuance of a previous agreement or understanding arrived at by its directors at a conference at which they were all present, and that no action had been taken by the appellant to induce or procure the purchase of the lots by the association. No acts or conduct were proven on the part of any of the directors of either corporation from which a fraudulent purpose could be fairly inferred. Two of the directors were shown to be common to both corporations but that fact alone, while it inclines us to look carefully into their conduct, does not afford ground of legal presumption of illegality or unfairness in transactions between the two corporations. Booth v. Robinson et al., 55 Md. 419. The lots were sold at public sale and there is no testimony impeaching the fairness of the sale.
Nor does the record show that the Beneficial Association was insolvent at the time of the purchase. The only testimony on the subject of its financial condition [***11]  at that time is that of the witness Forbes, who says that although the association had been in business for but a short time (less than one year), it already had 1,400 members, and was in receipt of an income over and above all expenses of from $ 40 to $ 100 per week and had $ 700 out on mortgage and had no debts. The evidence on this subject is incomplete, but it neither proves nor indicates insolvency.
 [*437]  The purchase of these lots may have been unwise or indiscreet, but we find no evidence in the record sufficient to sustain the charges that it was the result of a fraudulent combination between the directors of the two corporations, or that the sale was not fair and bona fide on the part of the appellant.
We now come to the contention of the appellee that the purchase of the lots of ground was not within the corporate power of the Beneficial Association. The appellee's brief was prepared, and his argument in this Court was made upon the theory that the purchase of the lots was ultra vires the corporation and was for that reason altogether void, but the bill of complaint is drawn upon a different theory. It does not allege or assume a total want of capacity on [***12]  the part of the association to purchase or hold real estate or even that the conveyance of the seven lots in question did not operate to vest the title to them in the association. The bill assumes that the title did pass to the association, for it distinctly avers that, under the deed of trust from that body to the appellee, "the title to the said lots became vested in the said Martin L. Keedy, trustee," and the prayer for relief is not that the purchase should be declared ultra vires or void, but it is for a reconveyance of the land to the appellant and a repayment by it of the purchase money. The allegations touching the incapacity of the association are simply that the lots were purchased not for investment but for speculation, and that their purchase was incompatible with the purposes for which it was incorporated, and in fraud and derogation of the rights of its policy holders.
If, however, we assume, for the purposes of this opinion, that the scheme and allegations of the bill are in strict accord with the argument and contention of the appellee's counsel we do not think the case presents any such incapacity on the part of the Beneficial Association to purchase the land [***13]  in question, as can be availed of by the appellee to maintain the present proceeding.
 [*438]  It appears from the record that this association was incorporated in February, 1890, for the purposes indicated by its title, by filing a certificate of incorporation under the provisions of Article 23 of the Code. The certificate is in the usual form and contains no recital or enumeration of the powers to be exercised by the corporation but simply refers in that connection to the provisions of the Code of Public General Laws. Under sec. 53, of Art. 23, of the Code, this association, in common with all others formed under the provisions of that Article, had power to acquire by purchase and to hold any real or personal property necessary to enable it to carry on the operations or fulfil the purposes named in its certificate of incorporation.
The Beneficial Association thus having by law the capacity to purchase and hold real estate under some circumstances, and having purchased the lots of ground in controversy and taken a conveyance of them, the question remains whether, in the absence of fraud, the appellee as its assignee is entitled to maintain the present bill upon the mere ground [***14]  that the association exceeded its powers in making the particular purchase. The weight of authority is plainly against the right of the appellee to do so.
It has been repeatedly held in Maryland and elsewhere that when a corporation has by its charter or by general statute power to hold land for some purposes or to a limited extent, its right to take  [**967]  and hold any particular parcel of land, is a matter solely between the corporation and the State and can be called in question only in a direct proceeding instituted by the State for that purpose. Cowell v. Colorado Springs Co., 100 U.S. 55, 25 L. Ed. 547; Hamsher v. Hamsher, 132 Ill. 273, 23 N.E. 1123; Heironimus v. Sweeney, 83 Md. 146, 34 A. 823; Hanson v. Little Sisters of the Poor, 79 Md. 434, 32 A. 1052; In re Stickney's Will, 85 Md. 79.
The doctrine that, even where a corporation has no power to take or hold real estate, a deed made to it is not void but voidable, and that only at the suit of the State, has found strong support. Union Nat. Bk. v. Matthews, 98 U.S. 621, 25 L. Ed. 188;  [*439]   [***15]  Reynolds v. First Nat. Bank, 112 U.S. 405, 28 L. Ed. 733, 5 S. Ct. 213; Fritts v. Palmer, 132 U.S. 282.
The appellee having failed to show a state of facts entitling him to the relief prayed for in his bill upon the ground of fraud practiced upon the Beneficial Association in the sale to it of the seven lots of ground, and not being entitled to raise in this proceeding the question of the capacity of the association to purchase the lots, it follows that the decree appealed from must be reversed and his bill dismissed.
Decree reversed with costs and bill dismissed. 

22 of 37 DOCUMENTS 

THE UNITED GERMAN BANK OF BALTIMORE CITY, use of THOMAS R. CLENDINEN, ISIDOR RAYNER and H. W. RUSK, Receivers vs. HENRY KATZ.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

57 Md. 128; 1881 Md. LEXIS 15 

July 1, 1881, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

Exception.--At the trial, the defendant offered one prayer (stated in the opinion;) which the Court (GILMOR, J.) granted, the plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.  

DISPOSITION:
Reversed and new trial awarded.  

HEADNOTES:

Construction of Act of 1868, ch. 471 -- Banking Privileges -- Discounting by a Savings Institution -- Estoppel in Suit on Discounted Note.

In an action instituted by the appellant, a corporation duly incorporated as a savings institution under the Act of 1868, ch. 471, secs. 152-155, against the appellee to recover upon a note endorsed by the appellee and discounted by the appellant, it was HELD:

1st. That the appellant under the provisions of the Act of 1868, ch. 471, sec. 2, had no power to discount the note, but was prohibited from so doing.

2nd. That though the appellant had exceeded its powers, yet that was not available as a defence in this suit, and recovery could be had.  

COUNSEL:
Isidor Rayner and Thomas R. Clendinen, for the appel lant.

The case of Duncan vs. Md. Sav. Inst., 10 G. & J., 299, is identically similar to this, and precisely the same reasoning applies to both. At the time that decision was rendered, there was the same prohibition against the exercise of banking powers that is now contained in the Act of 1868, ch. 471. It was contended there, that the Legislature had precluded itself from granting banking powers to the corporation in question, just as it is argued here, that the Legislature has prohibited any corporation from exercising such powers, and the reasoning with which the Court overruled the proposition in that case, applies with equal force to this. It has been supposed that this case has been overruled by an obiter dictum, that fell from this Court in Hammond vs. Straus,  [**2]  53 Md. 1, but a reference to that case shows that the case of Duncan vs. The Savings Institution, was not even referred to in the opinion of the Court; that in passing, this Court merely remarked that the Union Banking Company had exercised certain banking privileges which were not provided for in the general incorporation law, and which it must, therefore, have exercised under the special Act which was under discussion in that case. The question as to whether a savings institution could discount a negotiable promissory note, was not before the Court in that case, and was not even indirectly involved in the controversy. The banking privilege, which the Legislature intended to interdict, was the issuing of negotiable bills and notes, as a circulating medium in the community. This is an important as well as a dangerous franchise, and it was intended that no corporation should exercise it, unless under the safeguards provided for by the Constitution. The discounting of a note is not a privilege of any sort; any individual can discount paper. The language of the Act is to invest its funds in good security; a note may be the very best sort of security. Commercial paper, as a general [**3]  thing, is certainly a better security than speculative stocks or bonds. Why should the taking of that class of securities be excluded, then, from the operation of the Act? Receiving deposits is a banking privilege, yet a savings institution, as has been said in the above case, could receive deposits without any enabling Act of Assembly for that purpose. It will be furthermore noticed that there is no evidence in this record that the corporation was in the habit of discounting notes, or invested all its funds in that way. On the contrary, the only evidence before the Court was that it discounted this one single promissory note.

It is, therefore submitted, that this question is res adjudicata in this State; that while decisions may be found which incline to the contrary in other States, they all rest upon statutory legislation, which expressly prohibits this class of corporations from exercising the power of discounting paper. In this State there exists no prohibitory legislation upon this subject; on the contrary, the Act of Assembly, under which this institution was incorporated, in express terms, by any construction that can be placed upon its language, gives it the right and [**4]  power to use its funds in this manner. Duncan vs. The Maryland Savings Institution, 10 Gill & John., 299; Gee vs. The Alabama Life Insurance and Trust Company, 13 Alabama, 579; U. S. Trust Company of New York vs. Brady, 20 Barbour, 119; State of Ohio on relation of John A. Corwin vs. The Urbana and Champaign Mutual Insurance Company, 14 Ohio, 6.

The defendant is estopped from questioning the right of the corporation to discount this note. The principle that a corporation cannot exceed its chartered powers, is invoked for the benefit of those who would suffer by the exercise of the unlawful power. This is not a case in which a stockholder or depositor of this institution is contending for the illegality of the transaction, or attempting to prevent the corporation from exercising a power not conferred by its charter; but it is the case of an executed contract, as far as the corporation is concerned, and of a party who has received the full benefit of the transaction attempting to evade the corresponding responsibility that he has incurred. The appellee presents this note to this corporation, procures it to be discounted upon the faith of his endorsement, and when the note matures,  [**5]  refuses payment, upon the ground that the corporation had no right to discount the note which it received upon the faith of his own act; and he does this without pretending to return the consideration that has been paid upon the note. What then would be the consequence of allowing the principle of ultra vires, to operate in a case of this sort. It would re-act upon the very class of persons, (creditors and stockholders,) for whose benefit and advantage alone it exists. They do not claim that the corporation could not exercise this power; on the contrary, they depend upon the proceeds of this and other notes for a retnrn of the money which they have deposited in this institution. To call into play the doctrine of ultra vires, in this case, would prevent the creditors of this insolvent corporation from following its funds into the hands of the persons who have received them; and would entirely preclude them from obtaining even the smallest return for the savings and earnings which they have entrusted to this corporation. Whatever conflict there may be in the earlier decisions on this subject, it is submitted that the better considered authorities, and especially those in this State,  [**6]  establish the existence of the doctrine of estoppel in pais in a case of this sort. Albert and Wife vs. The Savings Bank, et al., 11 Md. 172; Shoemaker vs. The National Mechanics' Bank, 31 Md. 396; Steam Navigation Company vs. Weed, 17 Barbour, 378; 2 Potter's Law of Corporations, p. 663, secs. 538, 548, and cases referred to on said page.

H. L. Bouldin and M. S. Weil, for the appellee.

The appellant became a corporation under secs. 152 to 155 of the Act 1868, ch. 471, which relate only to saving institutions. Saving banks are agents or trustees for depositors. 20 Conn., 111; 32 Conn., 173; 38 Id., 203; 43 Id., 155. For difference between savings bank deposit and regular bank deposit, see 37 Barb., 129. This case involves the construction of the Act of 1868, ch. 471, sec. 2.

The term "banking powers" is an authority to deduct the interest at the commencement of loan, or to make loans upon discounts instead of the ordinary form of security for an accruing interest. "The principal attributes of a bank are the right to issue negotiable notes, discount notes and receive deposits." New York Fire Ins. Co. vs. Ely, 2 Cowen, 710; Weckler vs. First National Bank, 42  [**7]  Md. 592.

The discounting of money on notes is peculiarly a banking power. New York Fire Ins. Co. vs. Ely, 5 Conn., 573; Fleckner vs. U. S. Bank, 8 Wheat., 350.

For a savings bank to prosecute the business of a bank of discount is unlawful, and the notes discounted by it cannot be by it proved in bankruptcy proceedings. In re Jaycox, 12 Blatchford, (U.S.) 209.

"True discount is in effect, a mode of loaning money; and so far as the mischief intended to be guarded against by the Act is concerned, the difference between loaning money by discounting the notes of third persons, and doing so directly upon the note and mortgage of the borrower may be immaterial, but the difference itself is substantial, and according to established definitions, distinguishes between banking and the mere loan of money." O. and W. T. and I. Co. vs. Rathburn, 5 Sawyer, 36.

"The ordinary meaning of the term 'to discount' is to take interest in advance, and in banking is a mode of loaning money." Weckler vs. First Nat. Bk., 42 Md. 592.

Loaning full value, not discounting; there must be a deduction at the commencment of the loan. 1 Hilton, (Wis.,) 98.

In Hammond vs. Straus,  [**8]  53 Md. 1, one of the questions was whether the Union Banking Company of Baltimore City, incorporated under the Act of 1868, ch. 471, same as the appellant, as a saving institution, had accepted the Act of 1874, ch. 118, incorporating it as a banking company. The Court said, "to prove the fact of acceptance, it was only necessary to show, in connection with the Act of incorporation itself, that the parties incorporated had actually used and exercised the privileges conferred by the Act, and if such act of user and exercise of privileges could only be referred to the Act of incorporation, would fully justify the presumption that the Act of incorporation had been accepted," and "that the facts and circumstances, in proof, required that the question of acceptance of the Act of incorporation should have been submitted to the jury," and "that the Act contains the grant of large and valuable franchises, that the same parties named in the Act were afterwards found conducting a regular banking business, under a name substantially that authorized by the legislative Act of incorporation, with all the external indicia of a regularly organized bank of discount and deposit such as that Act authorized,  [**9]  and when the exercise of such power would have been illegal and wholly unauthorized under the law if not derived from the Act of 1874, ch. 118, constituted evidence certainly tending to prove that the Act of incorporation had been accepted." The Court had the precise question before it of what was, and what was not banking powers; and the Court decided that conducting a bank of discount and deposit was illegal and wholly unauthorized under the Act of 1868, ch. 471. The case of Hammond vs. Straus in effect overrules Duncan vs. Md. Sav. Inst., 10 G. & J., 299. The Court could not certainly have meant to decide that a corporation formed under the Act of 1868, ch. 471, could discount notes; but that they could not receive deposits, and if they discounted notes and also received deposits they were doing a banking business, when the Act of 1868, ch. 471, sec. 152, under which the Union Banking Company of Baltimore City was formed, same as the appellant, authorized it to receive deposits.

The contract was in violation of the appellant's charter, and Chief Judge GARDINER, of New York, speaking of contracts in violation of banking Acts, says: "That the contract was not only unauthorized,  [**10]  but illegal. No action could be sustained upon it if executory in its favor, nor set it aside if executed, nor could it become the foundation of an implied assumpsit on behalf of the offending party." Gillett, Receiver vs. Phillips, 13 New York, 114 and 119; Re Jaycox, 12 Blatchford, (U.S.) 216.

The contract was in violation of the appellant's charter, and MILLER, J., speaking of a corporation discounting notes when it was expressly prohibited from exercising banking powers, says, "the discounting of notes by the plaintiff, was an exercise of power which is expressly prohibited by law." * * "The Legislature having thus aimed to restrain illegitimate and improper banking, the Courts are bound to carry out the law, and to see that it is not violated." N. Y. State Loan and Trust Co. vs. Helmer, 77 N. Y., (32 Sickels,) 68 and 69.

Upon the question of estoppel, the language of MILLER, J., in the case of N. Y. State Loan and Trust Co. vs. Helmer, 77 N. Y., 71 and 72, seems conclusive where he says, "that notes were discounted without any authority of law, and in the very teeth of the statutes, cannot be denied; and do not bring the case within that class of decisions where [**11]  the party having received the benefit of a contract is not allowed to repudiate it, because the other party had no power to make it. Such cases rest upon the principle that the contract was an innocent or lawful one; and in this respect differs from a case where the act was illegal and expressly prohibited by law. Where there is fraud or illegality, the Courts will not aid either party in enforcing the contract, or in setting it aside, or in recovering back what has passed between them."

No recovery can be had on a prohibited contract. 55 Ills., 92 and 93; Lazear vs. National Union Bank of Baltimore, 52 Md. 124; Green's Brice's Ultra Vires, (2nd Ed.,) notes 732, 738, 739, 740, 741, 742 and 743.  

JUDGES:
The cause was argued before BOWIE, MILLER, ROBINSON, and IRVING, J., and re-argued before BARTOL, C. J., MILLER, ALVEY, IRVING and MAGRUDER, J.  

OPINIONBY:
IRVING 

OPINION:

 [*135]  IRVING, J., delivered the opinion of the Court.
The specific question which we are called on to decide in this case, is whether the appellant, The United States German Bank of Baltimore City can, under its charter, recover upon a promissory note, which it has procured by discounting.
This corporation was made [**12]  such by certificate executed and acknowledged, certified by a Judge of the Supreme Bench of Baltimore City, and recorded under the provisions of Article 26 of the Code of Public General Laws as enacted by Act of 1868, ch. 471. The second clause of its certificate states, "that the corporation so formed, is a corporation for the purpose of receiving from any person or persons or bodies corporate or politic, any deposit of money, which shall be invested or loaned out on good security, in the discretion of its directors, as provided for in  [*136]  Article 26, Maryland Code of Public General Laws, secs. 152 to 155; that the term of existence of the said corporation is limited to forty years; and that the said corporation is formed upon the articles, conditions and provisions herein expressed, and subject in all particulars to the limitations relating to corporations, which are contained in the General Laws of the State."
The fourth clause of the certificate certifies, "that the aggregate of the capital stock of the said corporation is one hundred thousand dollars, and that the said capital is divided into four thousand shares of the par value of twenty-five dollars each."
In March,  [**13]  1878, the note upon which this suit was instituted, was discounted by this corporation, and its collection is resisted on the ground, that having been incorporated under the provisions of the Act of 1868, it not only acquired no power to discount, but is, by the second section of that Act, expressly prohibited from doing such business.
By the second section of this Act of 1868 it is provided "that no corporation created or to be created, and not expressly incorporated for banking purposes, shall by any implication or construction be authorized to exercise banking privileges, or to issue any note, token, device, scrip, or other evidence of debt to be used as currency."
The lower Court instructed the jury "that if they shall find from the evidence that the plaintiff was incorporated under the provisions of the Act of 1868, ch. 471, secs. 152 to 155 inclusive, and was not expressly incorporated for banking purposes, then the said plaintiff was prohibited from discounting the promissory note which is the cause of action in this case; and if they shall further find that the promissory note was discounted by the plaintiff, the plaintiff is not entitled to recover and their verdict must [**14]  be for the defendant." The appellant contends this ruling was error, and relies on the decision of this Court in Duncan vs. The Maryland Savings Institution, 10 G. & J., 299.
 [*137]  That there is strong analogy between that case and the one at bar cannot be denied; but the analogy is not perfect; and in view of the very broad language of the second section of the Act of 1868, ch. 471, as contrasted with the language of the several Acts of Assembly involved in the decision of the Duncan Case, we do not think that case can control the decision of this. In that case the Maryland Savings Institution had discounted a note and brought suit to collect it, as here the receivers of the United German Bank have done. As is done in this case, payment was resisted on the ground, that the Maryland Savings Institution had no power to discount and in fact was prohibited from discounting, and therefore, could not recover. The institution was incorporated by ch. 189 of the Acts of 1826. The third section of the Act of incorporation among other things provides, that it shall be competent for the corporation "to regulate the manner of receiving deposits," and "to provide [**15]  for the investment of the funds of the corporation in such manner as they shall deem most safe and beneficial." The fourth section provides that "said corporation shall be capable of receiving from any person, or persons, any deposit or deposits of money, and that all moneys so received shall be invested in stocks or other securities at the discretion of the directors, and in the manner deemed most safe and beneficial." The same section exempted the members of the corporation from personal liability for the debts of the corporation, and that no funds should be loaned to an officer or director of the institution. By the sixth section of its charter, it was declared that nothing in this Act shall be held or construed to authorize the company incorporated by this Act, to do any act or acts inconsistent with the privileges secured to the existing banking institutions in the City of Baltimore, by the Acts of 1813, ch. 122, and 1821, ch. 131, or by any other Act or Acts now in force." The eleventh section of each of the last mentioned Acts had pledged the faith  [*138]  of the State, to the banks accepting the provisions of those Acts, and doing what was thereby required of them, not [**16]  "to grant to any other bank" in Baltimore a charter until after a designated period, which had not expired when that charter was granted; and the sixth section above quoted was inserted in compliance with that pledge, for the purpose of restricting the institution thereby incorporated to a business not violative of the banks' rights under the State's pledge.
Judge DORSEY in delivering the opinion of the Court said, "that banking powers have been defined to consist of the right of issuing negotiable notes, discounting notes and receiving deposits."
He then said, "if the creation of a corporation with any one of these banking powers is a violation of the faith of the State, then the incorporation of the Maryland Savings Institution is a violation of that pledge, whether the right of discounting be granted or not." He said that the right "to receive deposits was a banking privilege," and although that was conferred, it was not contended that thereby the pledge of the State was violated. The Court therefore concluded that the right to discount was not intended to be prohibited, but that which was intended was the banking power of issuing notes to be used as a currency. The pledge of [**17]  the State in the Acts of 1813 and 1821, was a simple pledge not to charter any other bank in Baltimore City within the designated period. It was a promise on the part of the State, in consideration of the acceptance by the banks then existing of the conditions of their existence and tax on them, not to create any other corporation with their collective or aggregate powers. Unless the institution therefore did or could use all the powers of a bank, it was not a violation of that pledge; and the sixth section of the charter of the Maryland Savings Institution was given a construction having that effect.
 [*139]  The law before us now for construction is broader and more emphatic. The second section of the Act of 1868, ch. 471, is very express. It says, "no corporation not expressly incorporated for banking purposes shall by any implication or construction be authorized to exercise banking privileges, or to issue any note, token, device, scrip, or other evidence of debt to be used as currency." With the exception of the inhibition against implication or construction being resorted to, to accord to institutions not expressly incorporated as banks in their full sense, banking privileges, [**18]  it is the same provision which is found in the seventeenth section of the Code of 1860; and that section is taken from the Act of 1852, ch. 231, sec. 5. The provision, in substance, is therefore not a new one, but an old one rendered more stringent and emphatic by the addition of the language forbidding the resort to implication and construction to accord privileges not expressly and unambiguously conferred. It is a plain declaration by the Legislature, that the natural meaning of language is not to be tortured by construction or implication to include privileges not expressly given. The charter of the institution in express terms gives nothing but the power to receive and invest deposits. The language of the second section of the Act of 1868, is as plainly directed against other privileges as it is against the issuance of notes as currency, The only privileges belonging to banks besides issuing notes, are to receive moneys on deposit, and the right to discount promissory notes. These three privileges are given by Judge DORSEY in Duncan vs. The Maryland Savings Institution, 10 G. & J., 299, as answering the definition of bank privileges." He cites The People  [**19]   vs. President, &c. of Manhattan Co., 5 Conn. 383; and The People vs. Utica Insurance Company, 15 Johns., 390. To these may be added Morse on Banking, 2; New York Fire Insurance Co. vs. Ely, 5 Conn. 560.
Now, the prohibition of this second section of the Act of 1868, ch. 471, cannot mean the right or privilege of  [*140]  receiving deposits, to be included within the inhibition, for the very Act of which it is a part, allows the incorporation of institutions in express terms, with the power of receiving deposits. The prohibition is, therefore, to be read as if it had said, "such bank privileges as are not accorded by this Act." The right to receive deposits, then, is to be excluded, as not within the meaning and contemplation of the Legislature. But one privilege, included in the definition of "bank privileges," is left to be intended by the words "banking privileges," which precede the words "or issue any note," &c., as currency, in the section under discussion. The first part of the section before the express mention "of notes to be used as currency," must mean something; and as receiving deposits is necessarily [**20]  excluded, by subsequent express provisions in the Act allowing to corporations, such as this corporation is, the power of receiving deposits, discounting must be the thing intended to be prohibited by the phrase "banking privileges." Any other construction would not accord to every word of the Act its full meaning. "Implication or construction" could not possibly set aside a direct inhibition of issuing notes as currency. Those words manifestly were introduced to prevent something else. If the issuance of notes as currency was alone intended to be prevented, that would have been effectually accomplished by omitting all that is said about banking privileges. It would seem as if language had been expressly chosen to prevent an interpretation such as was given the Acts of Assembly involved in the Duncan Case; for the law says, it shall not be held by "implication or construction" to embrace banking privileges. In the case of Hammond vs. Straus, 53 Md. 1, this view was taken of the provisions of this second section of the Act of 1868, ch. 471; although it was only incidentally considered and applied, and that, without any special reference to the case of Duncan,  [**21]   in 10 G. & J.; for it does not  [*141]  appear that the case was cited in argument, or was in the mind of the Court. The language of the statutes considered in that case, was materially different; and we do not pretend to question the propriety of that decision. In this case, we think the statute, by logical test, is free from ambiguity, and properly controlled the decision of the case of Hammond vs. Straus. There the Court said, that "discounting notes," among other acts, which could only be referred to the authority by legislative charter, to carry on banking was an act, with others, to go to the jury, from which the jury might find the "Union Banking Company" had accepted the charter given by the Legislature. To be evidence, the Court said, the several acts of the company must be such as could only be referrible to banking authority, "and as would be illegal and void" acts, unless they could be so referred. It was, therefore, a determination by the Court, that, by virtue of the charter, acquired by certificate, made, executed and certified under the Act of 1868, it could not discount; for, if it could do so under that charter, it was clearly not evidence of [**22]  having accepted another.
Both, upon reason and upon authority therefore, we think the appellant, The United German Bank, had no authority to discount promissory notes. It does not follow, as a consequence of this view, that because the appellant exceeded its legitimate powers in procuring this note by discounting the same, that recovery cannot be had. If he received the plaintiff's money, or was the knowing instrument of some one else doing so, he ought not to escape liability to pay on that ground. It might be good ground for proceedings to forfeit its charter, but, in a case like this, it is not available as a defence. In 2 Potter's Law of Corporations, 663, it is stated, that there are some well recognized legal and moral distinctions, in respect to this doctrine of ultra vires; "one of which is between executory and executed contracts." As to executory contracts  [*142]  "if made in excess of authority the Courts, at the instance of a stockholder, will interfere to prevent performance, because such contracts contemplate an unauthorized diversion of corporate funds, and are, therefore, a breach of trust. But the rule is different in regard to executed contracts;  [**23]  these by the plainest rule of good faith should be permitted to stand." A large array of authorities is cited by the learned author in support of the statement in the text. And Sedgwick in his work on Constitutional Law, page 73, says, that although a corporation in making a contract "acts in disagreement with its charter," yet "a party, who has had the benefit of the agreement, cannot be permitted to question its validity." The doctrine thus stated by these text-writers is fully sustained by judicial decisions in this State, the Supreme Court of the United States, and several States of the Union. Albert and Wife vs. The Savings Bank, 2 Md. 172; National Mechanics' Bank vs. Shoemaker, 31 Md. 396; Steam Navigation Case, 17 Barbour, 378; 53 Howard's Practice Reports, 506; 6 Otto, 258; 8 Otto, 621; 63 N. Y., 62.
The principle upon which all these decisions proceeds is, that it is inequitable to permit one who has received the proceeds and benefit of the contract, to repudiate it on the ground, that the corporation from which he has obtained the benefit had no [**24]  power to make the contract. It has been insisted in argument that the case of Jesse Lazear vs. The National Union Bank of Baltimore, 52 Md. 78, has established a different doctrine in Maryland. We do not understand that case to establish that where there is entire privity between the parties recovery may not be had. In that case the suit was upon the guaranty of the defendant, and he was not found to have been privy to the transaction by which the money was procured. The distinction is material and substantial. It is the person who actually participates in the contract, that is to be held liable, in the case of an executed contract,  [*143]  under the rule laid down in the authorities cited. In this case the appellee endorsed with the knowledge that the note was to be taken by the bank by way of discount. He signed his name with the knowledge that the money was to be given by the bank upon that being done. He is shown to have gone to the bank to give his name on the paper. Whether he received the money personally or not is immaterial, if by his procurement some one else did get the money upon the faith of what he did. It was all one transaction. Under the circumstances [**25]  we do not think he can be heard to dispute the bank's right to recover, on the ground that it exceeded its charter rights in discounting the note. We think the Court erred in granting the instruction given.
Reversed and new trial awarded. 

DISSENTBY:
BARTOL; MILLER 

DISSENT:

BARTOL, C. J., dissented and filed the following opinion:
The power of a Savings Institution, incorporated under the Act of 1868, ch. 471, conferred by the 152nd section of the Act, "to receive deposits of money and to invest the same, or to loan it out on good security in the discretion of the directors" includes, in my opinion, the power to loan the funds of the institution by discounting promissory notes. This is not, in my judgment, such an exercise of "banking privileges" as was intended to be prohibited or forbidden by the second section of the Act. On this point I concur in the opinion of my brother MILLER; and for the reasons expressed by him, I think the instruction given by the Court below was erroneous, and the judgment ought to be reversed.
With respect to the second point, it is perhaps unnecessary for me to express an opinion. But as the decision of the case has been rested upon it, it may not [**26]  be improper for me to say, that in my view, even if it were conceded  [*144]  that the Savings Institution was not authorized by its charter to discount the promissory note sued on; under the proof in the cause, the appellee would be estopped from setting up that defence, and the appellant would be entitled to recover. On this point I concur in the opinion of the majority of the Court.
MILLER, J., dissented and filed the following opinion:
In my opinion a Savings Institution incorporated under the Act of 1868, ch. 471, has the power to discount promissory notes. In section 29 of that Act, Savings Institutions are mentioned as one of the classes of corporations authorized to be formed under the general provisions of the statute; and by section 152 it is enacted "that any Savings Institution incorporated under this Article, shall be capable of receiving from any person or persons, or bodies corporate or politic, any deposit of money, which shall be invested or loaned out on good security in the discretion of the directors; provided no part of the funds of said corporation shall be loaned to any officer or director of such corporation." The power to receive deposits and the power [**27]  to invest or loan them out on good security, are powers essential to the existence of such institutions. The question then is, does the power to invest or loan out the deposits on good security include the power to discount bills or notes. Thirty years before this Act was passed, language substantially and almost identically the same, had received an authoritative construction by the Court of Appeals in the case of Duncan vs. Maryland Savings Institution, 10 G. & J., 299. In that case the institution sued the maker of a promissory note which it had discounted, and one of the main questions to be determined, as stated by the Court, was, had the plaintiff "the power of lending out any portion of its deposits, or of discounting therewith, promissory notes or other  [*145]  securities for debt?" Its charter provided that "said corporation shall be capable of receiving from any person or persons, any deposit or deposits of money, and that all moneys so received shall be invested in stocks or other securities at the discretion of the directors, and in the manner deemed most safe and beneficial," with a proviso that no part of its fund should be loaned [**28]  to any officer or director of the corporation. This was the provision construed in that case, and it becomes necessary to quote the very language of the Court, as delivered by Judge DORSEY, to see what construction was placed upon it.
"In incorporating this company," say the Court, "it was not the design of the Legislature to create a mere stockjobbing institution, the funds of which were to be kept employed in buying and selling stocks, which, from the nature of business in receiving and paying off deposits, must have been the case, if all funds were exclusively appropriated to the purchase of stocks. Its charter, therefore, gave to the directors a discretionary power to make investments in stocks or other securities. What is the nature of the security here alluded to? Anything given or deposited to secure the payment of a debt. The words 'other securities' therefore embrace bills, bonds, notes, mortgages, &c., and the authority to make investments therein, clothes the institution with the power of making loans by way of discount. The concluding proviso to this section of the Act of Assembly, 'that no part of the funds of said corporation shall be loaned to any officer or [**29]  director of said corporation,' demonstrates the existence of the power we have ascribed to it. The People vs. The Utica Insurance Company, 15 Johns., 392."
The decision upon this point, thus plain and emphatic, is not modified by, nor is it in any way dependent upon, anything else in the Court's opinion. The question whether the Savings Institution had the power, under this provision of its charter, to discount the note sued on,  [*146]  necessarily arose, and had to be first decided, because it was a vital part of the plaintiff's case. Whether the enactment of a charter containing such power as well as the power to receive deposits, was in violation of the pledge given to the existing banks by antecedent laws, was a matter entirely apart from the question as to what powers this clause of the charter actually conferred. I take it then, that this is an unqualified adjudication, that the provision in the charter, above quoted, comprehended and granted the discount power. When, therefore, the Legislature of 1868, said that deposits in savings institutions, "shall be invested or loaned out on good security in the discretion of the directors," with a [**30]  proviso that no loan shall be made to any officer or director of such corporations, they did not use terms, requiring a construction now to be placed upon them for the first time, but terms which long before had been construed by the Appellate Court, as conferring the discount power, a power everywhere acknowledged to be a banking privilege; and the inference seems to me irresistible, that they employed these terms for the very purpose of granting such power. Where the construction and effect of certain language in an antecedent statute, has been settled by the Courts, and the same terms are found in a subsequent statute upon the same subject, the presumption is that the Legislature had knowledge of, and adopted such construction, and that they used the same language with the intent that it should have the same effect. For these reasons, I am convinced that sec. 152, confers the discount power, just as effectually as if it had been so stated in totidem verbis; and holding this to be the effect of that section I do not deem it necessary to consider the general prohibitions against the exercise of banking privileges, contained in the second section of this Act, because [**31]  it is a familiar canon of construction, that where there is a general intention expressed in a statute, and in a subsequent part of the  [*147]  same statute, there is also a particular intention expressed incompatible with the previous general intention, the particular intention must be considered in the sense of an exception. Dwarris on Statutes, 765; Stockett vs. Bird, 18 Md. 484. Upon this ground, I rest my dissent to so much of the opinion of the majority, as decides that this Savings Bank had no power to discount the note sued on.
Having decided that the plaintiff had no power to discount the note, the opinion of the majority further declares that it does not follow as a consequence, "that recovery cannot be had," and the judgment is reversed and a new trial awarded. To this also I am constrained to dissent, because I regard the proposition as in direct conflict with what was recently decided in the case of Lazear vs. The National Union Bank of Maryland, 52 Md. 78. In that case the defendant had given the bank a written guaranty, to the effect that he would be responsible for "all liabilities of Lazear Brothers [**32]  to the bank," to the extent of $ 25,000, and the suit was brought on this instrument. Among the items which the bank claimed was a note for $ 5000, drawn by Lazear Brothers which it had purchased. The defendant contended that the bank had no power to purchase this note, and having no such power, Lazear Brothers were not liable therefor to the bank, and consequently it was not within the terms of his guaranty. The question was therefore directly presented whether the bank could recover upon this note against Lazear Brothers, the makers, or in other words, whether the makers were liable therefor to the bank, and it was expressly so treated by the Court. It was, moreover, a new question in this State, and was twice elaborately argued by eminent counsel. In the opinion of a majority of the Judges who heard the case on re-argument, delivered by Judge GRASON, it is said: "This question was most thoroughly and ably argued by the counsel of the respective parties, and after a very careful consideration of the case, it was  [*148]  held that the appellee acquired the note in question by purchase and not by discount, that such purchase was not authorized by the Banking [**33]  Act, and that the appellee acquired no title to the note and could not recover upon it. The question has again been very fully argued upon notes filed by the counsel of the respective parties, and has again been carefully considered, and a majority of the Court concur in the opinion heretofore filed in the case, and in the conclusions therein reached." Besides this, the two cases of Farmers' & Mechanics' Bank vs. Baldwin, 23 Minn. 198, and First National Bank of Rochester vs. Pierson, 24 Minn. 140, referred to and relied on as sustaining the Court's own reasoning upon the subject, were cases in which suits were brought directly by the banks against the makers and endorser of the purchased notes, and in both, after elaborate discussions of the question, it was decided the banks acquired no title to the notes by purchase, and therefore could not recover upon them. So far as my experience has gone, no question was ever more thoroughly argued, more carefully considered, or more deliberately decided, than was this in Lazear's Case. I cannot suppose it is the intention of the majority of the Court in this case, to overrule that decision,  [**34]  but where the distinction is, I am unable to discover. If the Union Bank in Lazear's Case acquired no title to the note, and could not recover upon it, because it had, under its charter, no power to purchase it, how can it be said that this bank has acquired title to this note, and can recover upon it, notwithstanding it has, under its charter, no power to discount it? If want of power in the one case is fatal to title and recovery, it must be so in the other.
The position taken is that if the defendant received the bank's money, "or was the knowing instrument of some one else doing so, he ought not to escape liability to pay" on the ground that the bank had exceeded its legitimate  [*149]  powers in obtaining the note by discounting it. The defendant, as the record discloses, is the endorser of this negotiable promissory note, but it was not discounted for his benefit, nor did he receive any of the bank's money in the transaction. It is true he placed his name upon the note as endorser at the time the bank discounted it, and he unquestionably did so for the purpose of given credit to the paper, and to aid the party who obtained the money, in having it discounted. In [**35]  this sense, and in no other, was he the "knowing instrument" of some one else receiving the bank's money. But the same thing may be said of every one who endorses a note under like circumstances. It is a common practice for parties desiring to borrow money, to draw notes, procure the endorsements of their friends, and then take them to banks to be discounted. A very large proportion of the paper discounted by banks comes to them in this shape, and it would be a novel doctrine to hold that a party who thus endorses a note, enters into any other contract, or incurs any other liability, than that of endorser. I take it for granted that no holder of such a note, no matter how or under what circumstances he obtained it, could recover against the endorser, except upon proof of demand and notice. The suit, as against him, must therefore be upon the note, to enforce his contract as endorser, and if the decision in Lazear's Case be law, it is competent for him to set up as a bar to the action, want of corporate power in the plaintiff bank to acquire the note either by purchase or discount. The Lazear Brothers when they drew the $ 5000 note and placed it the hands of a broker to be sold [**36]  or discounted, did so for the purpose of obtaining money from some one who would purchase or discount it, and they actually received the bank's money; and yet it was plainly decided in that case, that want of power in the bank to purchase the note, was a bar to recovery, and absolved them from all liability to the bank therefor. Upon the  [*150]  assumption then that this Savings Bank had no power to discount this note, I do not see how it is possible for the plaintiff to recover in this case, unless the recent and carefully considered decision in Lazear's Case be overruled.  

23 of 37 DOCUMENTS 

THE ST. MARY'S INDUSTRIAL SCHOOL FOR BOYS vs. GEORGE S. BROWN, WILLIAM G. HARRISON and others. THE MARYLAND INDUSTRIAL SCHOOL FOR GIRLS vs. GEORGE S. BROWN, WILLIAM G. HARRISON and others. THE ST. VINCENT'S INFANT ASYLUM OF THE CITY OF BALTIMORE vs. GEORGE S. BROWN, WILLIAM G. HARRISON and others. THE MARYLAND INSTITUTE FOR THE PROMOTION OF THE MECHANIC ARTS vs. GEORGE S. BROWN, WILLIAM G. HARRISON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

45 Md. 310; 1876 Md. LEXIS 102 

June 22, 1876, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Circuit Court of Baltimore City.

On the bill of complaint of the appellees, the Circuit Court of Baltimore City on the 28th of June, 1875, passed an order directing a preliminary injunction to be issued restraining the Mayor and City Council of Baltimore from paying, and certain corporations and associations (including the appellants) from demanding certain sums of money appropriated for the benefit of the latter by the city ordinance, approved on the 12th of June, 1875, making general appropriations for that year. The injunction was issued as ordered. Nearly all of the institutions which were made defendants appeared and answered, as also the Mayor and City Council of Baltimore. After the coming in of the answers, on the motion to dissolve the injunction, the Court (PINKNEY, J.) on the 18th of February, 1876, ordered that the injunction previously issued, except as to three of the defendants, as to which it had been dissolved, be continued until the final hearing or further order. From this order these appeals were taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Equity Jurisdiction -- Ultra Vires -- Municipal Appropriations -- Charitable Institutions -- Act of 1874, ch. 288 -- Act of 1870, ch. 391 -- Municipal Powers -- Power of Municipal taxation -- Power of the City of Baltimore to Provide for certain classes of its Population.

Tax-payers of a municipal corporation may invoke the restraining powers of a Court of Equity, and the Court will entertain jurisdiction of their suit against such corporation and its officers, whenever the latter are shown to be acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such unauthorized acts may affect injuriously the rights and property of the parties complaining.

The Mayor and City Council of Baltimore has no authority to make appropriations, by the exercise of the taxing power, to sustain or aid institutions, however benevolent and charitable in their character, which do not owe their creation to the municipal power conferred on the City of Baltimore, and were not created for the city by the Legislature of the State, as instruments of municipal administration, but which are separate and distinct corporations, composed of private individuals and managed and controlled by officers and agents of their own, and over which the city has no supervision or control, and for the management of which there is no accountability to the city whatever.

The fact that the Governor of the State and the Mayor of the City of Baltimore each appoints, every two years, three persons to represent the State and city in the Board of trustees of the St. Mary's Industrial School for Boys under the amendment of its charter, by the Act of 1874, ch. 288, in no manner changes the nature of the institution, nor makes it a municipal agency.

The fact that the Governor of the State is empowered (Act of 1870, ch. 391,) to appoint ten, and the Mayor of the City of Baltimore five of the directors of the Maryland Industrial School for Girls, the Board being composed of thirty, does not put the State nor the city in such relation to the corporation as to make it either a public, State or municipal institution.

The mere fact that the City of Baltimore may own the ground upon which the building is erected, or that the city, in its deed to the institution, has reserved certain privileges in the use of the hall, as part of the consideration for the grant, cannot constitute The Maryland Institute for the Promotion of the Mechanic Arts, a municipal agency.

Municipal powers are delegated, and depend upon legislative charter or grant; and the corporate authorities can exercise no power which is not, in express terms, or by fair and reasonable implication, conferred upon the corporation.

Municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. The authority must be given either in express words, or by necessary implication, and it cannot be collected by doubtful inferences from other powers, or powers relating to other subjects, nor deduced from any consideration of convenience or advantage.

While the City of Baltimore has ample power delegated to it to provide for the foundlings, the insane, the indigent infirm and helpless, and for the correction of the vicious and vagrant portions of its population, such provision when made, must be under the control, and subject to the supervision, of municipal authority. 

COUNSEL:
Charles J. Bonaparte and William M. Merrick, for the St. Mary's Industrial School for Boys.

The bill charges that [**2]  the respondent institutions are not public agencies, but are private corporations managed for private ends. If these allegations could be sustained as to this appellant, it would be needless to consider whether the city has been authorized to use the taxing power in its aid, for the State cannot itself tax for any other than a public purpose, and consequently cannot delegate such a power to the city.

A public agency is one which discharges some function which, by the custom of communities governed by the common law, has always been matter of public concern; in other words, if the State could itself establish and support an institution similar to this appellant with the proceeds of taxation, it may use the same funds to aid this appellant and authorize the city to do likewise. Loan Association vs. Topeka, 20 Wall., 653; St. Joseph's Township vs. Rogers, 16 Wall., 644; Railroad Co. vs. County of Otoe, 16 Wall., 667; Olcott vs. The Supervisors, 16 Wall., 678; O. C. & F. R. R. R. Co. vs. County of Plymouth, 14 Gray, 155.

If this definition be admitted as a test, the public character of this appellant is undoubted, for no one will question the right of the State to maintain a [**3]  house of reformation. Roth vs. The House of Refuge, 31 Md., 329; Boyle vs. Same, 31 Md., 329; Ex parte Crouse, 4 Whart., 11; McKim vs. Odom, 3 Bland, 407, 417.

If, however, some other test be sought, none can be found at all supported by authority, which will not make this respondent a public agency. Sharpless vs. The Mayor, &c., 21 Penn. R., 147; Booth vs. The Town of Woodbury, 32 Conn., 118; Broadhead vs. The City of Milwaukie, 19 Wis., 624; Spear vs. Sch. Dir., &c., of Blairsville, 50 Pa., 150; Schenley vs. The City of Allegheny, 1 Casey, 130; Cooley on Const. Limitations, 67, 89.

If the State has authority itself to aid this appellant by taxation, there can be no doubt of its right to delegate that authority to the city. In re Oliver, 17 Wis., 681, and cases there cited; Mayor and City Council vs. The State, 15 Md., 376, 398.

We are then brought to what the Court below calls "the real question in the case," i. e., whether the State has authorized the city corporation to use its taxing powers in aid of this appellant? The question whether this appellant is a public or a private corporation is wholly immaterial. A private corporation, as a private individual, may be [**4]  the recipient of the proceeds of taxation, provided that the use or purpose for which such proceeds are expended is a public one. Spear vs. Sch. Dir., &c., of Blairsville, 50 Penn., 150; The Regents, &c., vs. Williams, 9 G. & J., 365, 401; Visitors, &c., of St. John's College vs. State, 15 Md., 330, 375; Mayor and City Council of Baltimore vs. State, 15 Md., 376, 462.

If the use for which these funds were to be expended by the appellant were not a public one, the State could not itself tax in its aid. Loan Association vs. Topeka, 20 Wall., 653. And of course could not delegate a power which it did not possess; so that, in order that the authority of the city may be matter of argument at all, it must be assumed that the use to which these funds will finally be put is a public one, and if it is public the private character of the corporation which will serve as the channel of its expenditure, cannot invalidate the appropriation.

To call the appropriation to this appellant "a gratuity, a bounty or a gift," is inaccurate, or, at least, misleading; the sum given would be expended neither for its benefit as a corporation nor for the benefit of its members individually, but for [**5]  the benefit of the community, and in discharging duties which the municipal corporation must fulfil either directly or indirectly. In short, it is a fund entrusted to the appellant to be expended in the way contemplated by its charter.

The question of the city's authority really involves two considerations, i. e., whether the city has power to expend the proceeds of taxation in order to "train to virtue, industry and learning orphans and other destitute boys," and especially such as have been legally committed to a reformatory, and whether the city has power to make the appellant its agent in expending its funds for such purposes?

The city can claim neither power unless it has been either expressly or by fair implication conferred upon it by the State, but it is submitted that each is sustained by both express and implied authority. The city is authorized "to pass ordinances .... for promoting the great interests and insuring the good government of the city." Code Public Local Laws, Art. 4, sec. 32.

This is the equivalent, at least of a "general welfare" clause in its charter, and confers upon it all the usual powers of municipal corporations. 1 Dillon on Mun. Cor.  [**6]  , secs. 58, 59, 334; Shafer vs. Mumma, 17 Md., 331. And the care of paupers and reformation of youthful offenders have always been matters of municipal concern. Spear vs. Sch. Dir., &c., of Blairsville, 50 Penn., 150.

But the matter is put beyond all doubt by the authority conferred in the Code of Public Local Laws, Art. 4, sec. 31, "to erect or establish houses of correction." There can be no question that this appellant discharges the duties of a "house of correction," and if this could be disputed, the city has power under the Code of Public Local Laws, Art. 4, secs. 907, et seq., to provide for the care of the very persons which the appellant is intended to receive.

The city corporation having authority to expend the proceeds of taxation to support and reform youthful vagrants under the above Acts, is also empowered to use whatever agency may seem proper to it to conduct the expenditure. Cooley on Const. Lim., 63, 64.

The Acts quoted in the answers which authorize the city to name a portion of the trustees of this appellant, confer by the clearest and fairest implication, authority to contribute to its support. Why otherwise should the city name these trustees? Were [**7]  they not intended to supervise the expenditure of the appropriation from the city? Curtis' Adm'rs vs. Whipple, 24 Wis., 350, 353.

Edward Otis Hinkley, for the Maryland Industrial School for Girls.

The appropriations by the City of Baltimore to this appellant are lawfully made, because by virtue of the Act of Assembly of 1870, ch. 391, it became a proper part of the government of the city itself, five directors on the part of the city, ten on the part of the State, and fifteen on the part of the members constituting the management.

Section 7 of Article 11 of the State Constitution, prohibits the City of Baltimore from lending its credit to corporations, &c., but it does not prevent appropriations to such as perform uses properly of a public nature, whether individuals or corporations.

There are two criteria of the appropriations, first, and principally, the uses, whether public in their nature, and such as concern the whole city and all its inhabitants; and secondly, the character of the agency, which the city may choose for the execution thereof. If the uses be purely public and the agency properly controllable--no danger can arise to the body politic--the appropriation [**8]  is infra vires.

The real protection which the city has as to the proper disposition of its appropriation to this appellant, is the presence and control of the directors on the part of both city and State, whose duty is to protect the people and report, and by proper proceedings prevent abuse, misuse or diversion of funds or powers. Here the uses are purely public, and the organization is controlled by directors on the part of the city and State. The very fact of the enactment of a law by the State for the appointment of directors by city and State, creates the body an agency of a governmental nature. This agency then is to the extent of the directorship under the appointment of the government, distinctly and unequivocally a public agency--the directors are public agents--public officers. The only question then that can arise, is whether the addition of an equal number of directors elected by the members, vitiates in any manner. The answer is found in the Act of the Legislature itself. An examination of it shows that it does not in the case of this appellant.

Michael A. Mullin, for the St. Vincent's Infant Asylum of the City of Baltimore.

The object of both appropriation [**9]  and tax, in respect of this appellant is to feed, clothe and educate the helpless orphan children of the community, including the unfortunate class known as "foundlings." This is an object universally recognized as a charity, and one for which taxes have with the common approval of mankind, customarily and by long usage been levied. "All charities are in some sense public." Fox vs. Phila., 64 Pa. St. R., 182. "Taxes may be levied and collected for charitable purposes." Curtis vs. Whipple, 24 Wis., 355; Booth vs. Town of Woodberry, 32 Conn., 128.

Such a tax would be legal whether from a duty in the community to provide for those who cannot provide for themselves, or because, although not for the support of government, it would be one imposed with a political view for the good government and benefit of the community, (Waters vs. The State, 1 Gill, 302,) inasmuch as it would tend to a decrease of pauperism and crime, (particularly infanticide,) and to an increase in the probity and intelligence of those who must hereafter be a portion of the citizens of the State.

If a public object is to be accomplished, and it can be effected best and with least expense by the agency of an [**10]  individual or a private corporation, what principle of right or dictate of policy forbids the public not to avail itself of such agency. Sharpless vs. Philadelphia, 21 Penn., 169, &c.

"It is the thing done or sought to be accomplished which must determine the question of the power of the Mayor and City Council to pass the ordinance." Gill vs. Mayor, &c., 31 Md., 387. "The legality of laying a tax **** depends on the object, the motive of the corporation." Mayor, &c., vs. Hughes, 1 G. & J., 480.

The legislative and judicial history of Maryland has settled, so far as this State is concerned, that private corporations may be used to accomplish public objects. For works of public improvement, the Baltimore and Ohio Railroad, the Chesapeake and Ohio Canal Company and other private corporations, have been used as the agencies of the State; for the purposes of education, St. John's and Washington Colleges and various private schools and academies; and for the purposes of charity, many private asylums and institutions, some of which are defendants in this action, have been the means through which the State has been accustomed to reach the objects proposed. Through all these agencies [**11]  large sums of money raised by taxation have from the origin of the government customarily been expended, and although the rights and powers of such corporations have been repeatedly investigated by the Courts with the aid of the most learned counsel in the State, a doubt as to the power of the State to expend money through these agencies has never been suggested. That such powers should have been exercised without being questioned for such a long period of time ought to be deemed almost conclusive evidence of their being possessed by the Legislature. State vs. Mayhew, 2 Gill, 497; Burgess vs. Pue, 2 Gill, 19; Mayor, &c., vs. State, 15 Md., 461.

By Art. 4, sec. 31, of the Code of Public Local Laws, the Mayor and City Council of Baltimore "may erect or establish houses of correction, hospitals or pest houses." What is an hospital? "Hospital--a house for the reception of insane persons, *** foundlings, &c., who are supported by public or private charity. A building appropriated for the reception of sick, infirm and helpless paupers."

The City may thus establish hospitals (note the plural) to an indefinite number, and the term "hospitals" covers institutions similar to St.  [**12]  Vincent's Infant Asylum. The City having thus the power of erecting a similar institution, the question remains whether if she be unable or unwilling to do so, she may avail herself of the assistance of this corporation to effect the same object.

The City Charter, sec. 33, enacts: "The Mayor and City Council shall have power to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the City of Baltimore." In Harrison vs. Mayor and City Council of Baltimore, 1 Gill, 264, 276, the Court of Appeals held that the power to pass all laws and ordinances necessary to preserve the health of the City, clothed the Mayor, &c., of Baltimore "with all the legislative powers which the General Assembly could have exerted. To their sound discretion was committed the selection of the means and manner (contributory to the end) of exercising the powers, which they might deem requisite to the accomplishment of the objects of which they were made the guardians."

It is impossible to conceive any essential difference between the power "to pass all laws and ordinances necessary" cited in that case, and the power in sec. 33, "to pass all ordinances [**13]  necessary." If there be no essential difference between the powers so conferred, it follows that sec. 33, clothes the Mayor and City Council with all the legislative power the General Assembly could itself exert to carry into effect the corporate powers of said City, among which is the power to erect and establish hospitals, (sec. 31.) And if the General Assembly could, as asserted by Judge BLACK, in Sharpless vs. Philadelphia, above cited, and as the Court below practically concedes, avail itself of the agency of a private corporation to effect a public object, it logically follows that the Mayor and City Council would do likewise. The selection of the means and manner (contributory to the end) being committed to their sound discretion, if they were unable or unwilling to erect and establish an hospital for the foundlings for whom it was their power and duty to provide, they were at liberty to avail themselves of this institution to effect their object. If the means employed may accomplish the object or contribute in any degree to its accomplishment, the Court should not interfere. Mayor, &c. vs. Chase, 2 G. & J., 376.

John M. Carter, for the Maryland Institute for the Promotion [**14]  of the Mechanic Arts.

This appellant is a well recognized adjunct to the public school system of the State, and as such, constitutes one of the means of education, for the expense of which, the Mayor and City Council are authorized to levy and collect taxes under the Act of Assembly of 1872, ch. 377, sub-ch. 16, sec. 4. The 43rd Article of the Bill of Rights, directs the Legislature to encourage the extension of a judicious system of general education and the promotion of the arts and sciences.

The 8th Article of the Constitution makes it mandatory upon the Legislature to pass laws for the establishment of a thorough and efficient system of free public schools, and for their maintenance by taxation.

The Act of Assembly of 1872, ch. 377, delegates this power to the Mayor and City Council so far as the City of Baltimore is concerned, and especially authorizes the levy and collection of "such amount of taxes as may be necessary to defray all expenses incurred for educational purposes by the Mayor and City Council."

Thus, to the municipal corporation, is delegated the power to legislate upon the subject of an educational system for the City, and where such power is [**15]  delegated, every intendment and presumption ought to be made in favor of its acts in the premises. Mayor, &c. of Baltimore vs. Clunet, 23 Md., 467.

The language of the 4th section of the Act of 1872, ch. 377, is broad and comprehensive. The City is authorized to levy and collect taxes to defray all expenses incurred for educational purposes by the Mayor and City Council.

Certainly then it is legitimate for the Mayor and City Council to levy and collect taxes for expenses incurred in this behalf by themselves directly, if they can do so for expenses incurred by the Commissioners. Some of the respondents below provide for the education of different classes of pupils than those who attend upon the schools organized and controlled by the School Commissioners, as for instance, the Institutions for the Blind and Deaf and Dumb. In the case of this appellant the course of instruction is different, and young mechanics, who have no opportunity of attending upon the daily sessions of the public schools, and where, even if they could, the course of instruction is not provided for them, are taught the theoretical branches of all those trades in which a knowledge of drawing and designing [**16]  is essential. Hence the City avails itself of these agencies outside of the regular schools, to provide for the instruction of different classes and in different branches of education. And the wisdom of such a course is apparent. Instead of establishing at great expense schools for these specific purposes, the City avails itself of agencies already established by private enterprise.

The appellant is, in the conduct of its affairs, under the supervision of the State and City authorities, and is, therefore, such a public and municipal agency as entitles it to the public aid. By the Act of 1868, ch. 198, sec. 9, the Institute is required to report annually to the State Treasurer--just such an Act as the authorities agree, constitutes a recognition of the public agency or character of the corporation. If the State exercises the slightest act of supervision over a corporation, it makes its agency public. Curtis' Adm'r vs. Whipple, et al., 24 Wisconsin, 355.

The City actually owns and holds the title to the property used by the Institute. The building was built in part with the City's money, under the immediate supervision of the City's officers. The ground floor is used and occupied [**17]  by the City as a market house; and the City reserves the right to use the whole whenever desired.

The entire building is open to the public at all times, subject only to such restrictions as the board of directors may prescribe, and the Institute's use of the building is at best a qualified one. Ordinance of the City of Baltimore, No. 43, approved June 6th, 1850.

S. Teackle Wallis and Fred. W. Brune, for the appellees.

Assuming for the purposes of the argument in its principal aspect, that the General Assembly could have endowed the municipal authorities of Baltimore with ample power to make the appropriations in controversy, if it had seen fit to do so, the question is whether it has done so in fact.

Has the State authorized the City to burden the taxpayers with a levy for the purpose of supporting or encouraging the institutions whose claims are here set up?

The solicitors for the appellees will assume the law to be well established, that municipal corporations have no inherent right of legislation, and can exercise no powers which are not, in express terms or by fair implication, conferred upon them. These powers must be construed as confined in their exercise [**18]  to the territorial limits of the municipality, and are not to be extended beyond the proper province of local self-government. Where they are not granted by express language, or fair or necessary implication, they must be either incident to the powers expressly granted, or essential--not simply convenient, but indispensable--to the objects and purposes of the corporation. When the power in dispute is that of taxation, it must especially be held not to exist, unless plainly and unmistakably conferred, and it cannot be collected by doubtful inferences from other powers, or powers relating to other subjects, nor can it be deduced from any consideration of convenience or advantage. The rule accepted by all the authorities is, that all powers to tax must be construed with strictness. Minturn vs. Larue, 23 Howard, 435, 6; Thompson vs. Lee County, 3 Wallace, 327, 330; Thomas vs Richmond, 12 Wallace, 349; Booth vs. Woodberry, 32 Conn, 124; Spaulding vs. Lowell, 23 Pick., 71, 74; 2 Dillon's Circuit Court Cases, 354, 359, 360; Cooley's Constit. Limit., (Ed. 1874,) 211 to 213; Sedgwick on Stat. and Constit. Law, (2 Edit,) 397; 1 Dillon on Municip. Corp., (Ed. 1873,) sec 55; 2 Dillon on Municip.  [**19]  Corp., sec. 605; Cooley on Taxation, 209, 210; Mayor, &c. vs. Clunet, 23 Md., 467; Frederick vs. Groshon, 30 Md., 437; Gill vs. Mayor, &c., 31 Md., 395; Mayor of Cumberland vs. Magruder, 34 Md., 386.

The appellants all claim to be public agencies: the St. Mary's Industrial School as a reformatory institution for juvenile offenders; the St. Vincent's Orphan Asylum as a school and infant asylum, the Maryland Industrial School as the female House of Refuge of the State, and the Maryland Institute as an agency of public education.

No doubt is suggested or entertained by any one as to their usefulness and excellence in their several departments, whatever those may be, nor as to the benevolent and praiseworthy purposes which they labor to promote. The question raised is, not whether they deserve support and praise, but whether the municipal government of Baltimore has the right to tax the people to support them. It is a question of power and nothing else.

The City Council, in the ordinance in question, have not undertaken to classify the appellants, as they describe themselves. The ordinance assumes to provide for them as "City Poor" and not otherwise. It does not profess [**20]  to derive the power which it assumes for their benefit, from any other source than that of pauperism. It does not assert, in their behalf, the special powers which they invoke, nor does it act under them. It does not deal with them as houses of correction, hospitals or schools. Now, while it is very clear that if a municipal corporation assumes to exercise a power, without stating the particular basis of such exercise, the Courts will refer the same to any basis of authority, sufficient to support it, which the corporation may possess; yet if the act is rested, in terms, by the corporation, upon a basis which will not support it, the act must be held void. This proposition is sustained by two express opinions of this Court, and is adopted by the elementary writers as clear law. Mayor vs. Moore, 6 Harr. & Johns., 380-381; Method. Church vs. Mayor, &c., 6 Gill, 399; 1 Dillon Municip. Corpor., sec. 252.

The appellants must, consequently, stand upon the powers which the city may lawfully exercise for the support and care of its poor, and upon those only.

Under the powers conferred by law upon the city corporation in respect to its poor, the city has no authority to make provision [**21]  for that class, except in its Almshouse, or in some other place erected, established or provided by the city and governed by its ordinances, or under the care and charge of the Trustees of the Almshouse, and regulated by such by-laws as they may enact. (Art. 4, sec. 45, 2 Code, 158.) Inasmuch as neither of the appellants derives its existence from the Mayor and City Council, or has been "established" or "provided" by it in any sense, or--what is absolutely indispensable under the statute--is governed by its ordinances or is under the care, charge or administration of the Trustees of the Almshouse, it would seem to follow, of necessity, that the corporation is entirely without power to appropriate money for their benefit, as is sought to be done by the ordinance under discussion. Indeed, it would be difficult for legislation to make it more apparent than it is on the face of the Code, that the whole system of pauper support and government in the City of Baltimore was intended to be administered by the city itself, in its own municipal establishments, regulated exclusively by its own officers and laws.

But the claims of the St. Mary's school, as well as the St. Vincent's Asylum [**22]  and the Maryland Institute are urged upon the further ground that they are schools. But are these appellants or is either of them, as a school, within the scope of municipal support? St. Mary's Industrial School, unlike the other two, is situated outside of the corporate limits of the city, several miles in Baltimore County, and its inmates if they are scholars, may come from the whole State. It is plainly, therefore, in no sense a city school. Is either of the other appellants?

Art. 8, sec. 1, of the Constitution, requires the General Assembly, at its first session, to establish by law a thorough and efficient system of free public schools through the State, and to provide by taxation for their maintenance. Under the Acts of 1868, ch. 407, and 1872, ch. 377, the Mayor and City Council have conferred upon them full power and authority to establish such a "system" in the city, and to regulate the same and levy taxes for its support. The Treasurer is likewise directed to pay to the city its portion of the school fund. The Mayor and City Council have accordingly exercised their powers and established their "system" and a very complete one, by ordinances, which will be found in the [**23]  City Code, pp. 658 to 668, and Supplement to City Code, pp. 238 to 240. The appellants are not, any of them, embraced in this system or connected with it, or governed by the ordinances or officers controlling it. In the very ordinance now under consideration, in which the appellants are classified among the "City Poor," the "Public Schools" are otherwise specifically provided for, and a separate and distinct appropriation of more than half a million of dollars is made for their support. It is submitted, therefore, that none of the appellants are schools, such as the city has a right to maintain or pretends to maintain, and that being no part of the "system" which alone the city may create and must govern, they are no more entitled to its support, through taxation, than any other private institutions, under the charge of private individuals. The powers of the city, in that direction, are exercisable only in the organization of the "system" required by the Constitution, and independent schools, under private control but supported by taxation, are in direct and pointed antagonism to the whole policy of the Constitution and the statutes. Jenkins vs. Andover, 103 Mass., 94, 96, 101, 103;  [**24]  Curtis vs. Whipple, 24 Wisconsin, 353; Loan Association vs. Topeka, 20 Wal., 669; Merrick vs. Amherst, 12 Allen, 502.  

JUDGES:
The causes were argued before BARTOL, C. J., BOWIE, GRASON and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*326]  ALVEY, J., delivered the opinion of the Court.
The question of jurisdiction was rather suggested than seriously argued by the counsel for the appellants. Since the case of the Mayor and City Council of Baltimore vs. Gill, 31 Md. 375, the question of jurisdiction in a case like the present must be considered as settled in this Court. Parties in the position of the appellees in this case may invoke the restraining powers of a Court of equity, and that Court will entertain jurisdiction of their suit against municipal corporations and their officers whenever the latter are shown to be acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such unathorized acts may affect injuriously the rights and property of the parties complaining. This is the principle settled by the case to which we have referred, and in addition to the [**25]  authorities therein cited, we may refer to the cases of Mercer County vs. Pittsburgh and Erie R. Co., 27 Pa. 389; Mott vs. The Pennsylvania R. Co., 30 Pa. 9; Page vs. Allen, 58 Pa. 338, and Newmeyer vs. The Missouri and Miss. R. Co., 52 Mo. 81, and also to 2 Dillon Mun. Corp., sec. 731, in all of which the same proposition is maintained.
 [*327]  The question of jurisdiction being clear, we must consider the question of the appellees' right to relief on the facts as charged in their bill of complaint. That they are tax-payers of the city, and would be affected by the appropriations stayed by the injunction, are facts not controverted by the appellants.
The record before us contains four appeals,--all from the same decree. The first, that of the "St. Mary's Industrial School for Boys;" second, that of the "Maryland Industrial School for Girls;" third, that of the "St. Vincent's Infant Asylum of the City of Baltimore;" and fourth, that of the "Maryland Institute for the Promotion of the Mechanic Arts." These appellants were among a number of other institutions to which appropriations were made by the City Ordinance, [**26]  approved on the 12th of June, 1875, making general appropriations for that year. The appropriations to the appellants were classed under the head of "City Poor," and were of specific sums of money, without reference to or mention of any relation or agency between the city and those institutions.
The bill of the appellees was filed upon the theory that the Mayor and City Council in the administration of the municipal government, can exercise only the defined and limited powers, and perform the duties, prescribed in the charter of the city, and therefore cannot sustain or aid institutions, however beneficial in themselves, which are not created for or required in the exercise of the powers and performance of duties prescribed by law. The bill charges that the appellants were organized for the administration of private charities, mostly under the influence and control of churches or religious denominations, and are in no sense public institutions; that they are organized by and composed of private citizens and managed by them, and are not under the control or supervision of the City or of the State, nor were any of them formed or incorporated to aid or facilitate the municipal  [*328]   [**27]  government of the City in the performance of any of the duties imposed by its charter. It is therefore insisted by the appellees, that such institutions are not in any sense public, or at all events not municipal agencies, such as the City is bound or has the right to maintain, assist, or promote by the exercise of the taxing power. The prayer of the bill is, that the appropriations in question may be declared inoperative and void, and that an injunction be issued to restrain the payment of the appropriations to the institutions to which they were made.
The appellants, in their several answers, controvert the positions of the appellees taken in their bill, and insist that they are now, and have been since their organization, performing functions that properly pertain to the municipal government of the City. That they are charitable and benevolent institutions; the three first named appellants having been organized for the purpose of, and are devoted to, fostering, reforming and educating the pauper children of the City, and thus relieving the City of an expense that would otherwise be entailed upon it; while for the Maryland Institute for the Promotion of the Mechanic Arts it is claimed [**28]  that it is an important adjunct to the Public School System of the City, and hence should receive aid from the City government. They all deny that they are private corporations, managed for private purposes; but claim, on the contrary, that they are public corporations, managed for public purposes, and are in fact municipal agencies, and therefore entitled to the appropriations made to them as of right.
These institutions are all of the most benevolent and charitable character, and well deserve the patronage and support of all good citizens; but the question here is as to the authority on the part of the municipal government to make appropriations for their support, by the exercise of the taxing power.
Whether these institutions are strictly private, or quasi public corporations, it is unimportant here to inquire; it is  [*329]  enough to know that they do not owe their creation to the municipal power conferred on the City of Baltimore, and were not created for the City by the Legislature of the State, as instruments of municipal administration. They are separate and distinct corporations, composed of private individuals, and managed and controlled by officers and agents of [**29]  their own, and over which the City has no supervision or control, and for the management of which there is no accountability to the City whatever. No ordinance or resolution of the City Council can control the powers and discretion vested in the managing boards of these institutions, nor have the Mayor and City Council the power to determine who shall or who shall not receive the benefits of the charities dispensed by them.
In the case of the St. Mary's Industrial School for Boys, the fact that the Governor of the State and the Mayor of the City of Baltimore each appoint every two years, three persons to represent the State and City in the board of trustees of that institution, under the amendment of its charter, by the Act of 1874, ch. 288, in no manner changes the nature of the institution, nor makes it a municipal agency. And the same may be said in regard to the amendment to the charter of the Maryland Industrial School for Girls, made by the Act of 1870, ch. 391. The fact that the Governor of the State is empowered to appoint ten, and the Mayor of the City five, of the directors of the institution, the board being composed of thirty, does not put the State nor the City in such [**30]  relation to the corporation as to make it either a public, State or municipal institution. The object, manifestly, in providing such representation in those institutions, on the part of the State and City, was for the purpose of removing an objection to them, made by some portions of the community, that they were close corporations; that there were no means provided to give assurance to the public that the inmates of the institutions were properly treated; and  [*330]  insamuch as those institutions themselves applied for and obtained from the Legislature compulsory powers and control over the inmates, it was deemed proper that the State and the City should appoint the number of trustees and directors named. Such trustees and directors, however, do not control the institutions; nor are they clothed with any State or municipal authority, beyond their mere appointment, to be exercised in the management of the affairs of the institutions, and cannot, therefore, be directed, controlled, limited or restrained, in the exercise of the powers and duties as prescribed in the charters and by-laws of the corporations in whose proceedings they participate. They simply exercise, in common with [**31]  the other trustees or directors, the special authority conferred by the Acts of incorporation, and nothing more. Nelson vs. Cushing, 2 Cush. Rep. 529. So far, therefore, as the City is concerned, these corporations are entirely separate from and independent of it, in all corporate action and control. And as to the Maryland Institute for the Promotion of the Mechanic Arts, the mere fact that the City may own the ground upon which the building is erected, or that the City, in its deed to the institution, has reserved certain privileges in the use of the Hall, as part of the consideration for the grant, cannot constitute that corporation a municipal agency. It is, like the other corporations just mentioned, without municipal relation, and is under no obligation to the City to discharge any mere municipal function for which it can legally claim compensation.
Such, then, being the nature of these institutions and their relation to the municipal government of the City of Baltimore, the question is, upon what principle can the appropriations made to them be legally supported?
It is contended by the appellants, and with considerable force of argument, that though they are not under [**32]  the control and supervision of the City, yet they have been performing functions and duties that rightfully pertain  [*331]  and belong to the City government, and have, to that extent, relieved the City from the duty and the expense of providing and maintaining agencies for the performance of those functions under its immediate control; that it was the duty of the municipal authorities to establish and maintain institutions of like character to those of the appellants, and inasmuch as no such institutions have been established by the City, it is competent for it to exercise the taxing power and apply the funds thus raised to enable or assist others to do what the City has been authorized but failed to do. And in support of this view of the subject, we are referred to Code, Local Laws, Art. 4, secs. 31, 32, 33, and 827, under title "City of Baltimore."
By sec. 31, just referred to, the Mayor and City Council are authorized to "erect or establish houses of correction, hospitals, or pest houses within or without the City, if necessary, and pass all ordinances for the government of the same." By secs. 32 and 33, the Mayor and City Council are authorized to pass ordinances "for [**33]  promoting the great interests and insuring the good government of the City," and also "all ordinances necessary to give effect and operation to all the powers vested in the Corporation of the City of Baltimore." And by section 827, as modified by Act of 1872, ch. 377, sub-ch. 16, secs. 1 and 4, the Mayor and City Council are authorized "to establish in the City a system of free public schools, under such ordinances, rules and regulations as they may deem fit and proper to enact and prescribe;" and are also authorized to levy and collect such amount of taxes as may be necessary to defray all the expenses of the system.
Before proceeding to determine what application these or any other provisions of the Code have to the subject under consideration, it will be proper to state some general rules as to the construction of municipal powers. And first and principally, we must bear in mind that all such powers are delegated, and depend upon legislative charter or grant;  [*332]  and that the corporate authorities can exercise no power which is not, in express terms, or by fair and reasonable implication, conferred upon the corporation. In construing a grant of municipal powers, in the [**34]  case of Minturn vs. Larue, 23 HOW 435, the Supreme Court of the United States but announced a well established rule when it said, "It is a well settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the Act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the Legislature must be resolved in favor of the public. This principle has been so often applied in the construction of corporate powers, that we need not stop to refer to authorities." This same rule of construction is stated by Judge COOLEY, (Const. Lim., 211, 213,) and by Judge DILLON, (Mun. Corp., sec. 55,) as settled, and it is supported by a large number of decided cases, to which may be added cases decided by this Court.  Mayor & City Council vs. Clunet, 23 Md. 449; Baltimore v. Gill, 31 Md. 375. And in respect to the power of taxation, Judge DILLON has summed up the result of the authorities in a very clear and [**35]  succinct form, (2 Dillon Mun. Corp., sec. 605,) which we cannot do better than give in his own words. He says: "It is a principle universally declared and admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. It has, indeed, often been said that it must be specifically granted in terms; but all Courts agree that the authority must be given either in express words, or by necessary implication, and that it cannot be collected by doubtful inferences from other powers, or powers relating to other subjects, nor deduced from any consideration of convenience  [*333]  or advantage. It is important to bear in mind that the authority to municipalities to impose burdens of any character upon persons or property is wholly statutory, and as its exercise may result in a divestiture and transfer of property, it must be clearly given and strictly pursued." This is according to the authorities, and is a most just and salutary rule of restriction against arbitrary and unauthorized taxation.
Seeing, then, that there must be authority either plainly expressed in terms [**36]  or necessarily implied for making the appropriations in question, we fail to perceive how that authority can be deduced from the sections of the Code to which we have been referred. The power to erect or establish houses of correction or hospitals exists, it is true, but those institutions, when erected or established, are required to be governed by the City. They must not only derive their existence from the authority of the City, but they are made municipal institutions, and become agencies in the administration of municipal power. Nor is there anything in sections 32 or 33 bearing upon this subject. They simply declare the authority of the City to pass ordinances for general regulation, and to carry into effect and operation the powers conferred upon the City government. And as to the power supposed to be conferred by the Act of 1872, ch. 377, that has reference alone to the free public school system of the City, established, regulated and governed by the Mayor and City Council, and does not at all contemplate support to institutions like the appellants. It is claimed for the Maryland Institute for the Promotion of the Mechanic Arts that it is a school of an important character,  [**37]  and is of great interest and value to the mechanics and others of the City; that it has accumulated a large circulating library, and has established and successfully maintained large and flourishing schools in the various branches of designing, book-keeping, writing, music and chemistry, all of which have been availed of by  [*334]  the youth of the City, and that the Institute is in truth an important adjunct of the school system established for the City. All this is doubtless true, and while the establishment of such an institution reflects great credit upon, and has justly become an object of interest and pride to, its founders and supporters, and indeed to the City, the difficulty here is, that it has not been legally embraced in the public school system, and made subject to the ordinances, rules and regulations that the Mayor and City Council may have adopted in pursuance of the Act of 1872, ch. 377. Until this difficulty be removed, the legality of the appropriation cannot be supported under the Act of 1872.
We have carefully examined all the statutes to which we have been referred, and all others in any manner relating to the subjects under consideration, and we have utterly [**38]  failed to discover any express power, or any by fair implication, by which the appropriations to the appellants, in the manner in which they have been made, can be sustained. They are made without terms or conditions. The institutions could receive the money thus appropriated, and the day after, in the exercise of the powers completely in their control, discharge every inmate received from the City. We speak not of what would likely be done, but of the power to do. The City Council in making these appropriations entirely abdicate all discretion over the subject of their application. They become, therefore, mere donations. Who shall or who shall not be the objects of the charity, the City retains no power to determine. Whether the inmates really belong to the pauper class,--whether they be really objects of municipal care and protection,--are questions that the City authorities do not determine, and have no means of determining. It is all left to the discretion of those who manage the institutions, and they, as we have shown, are not municipal agents, nor subject to any control or accountability as to the use and application  [*335]  of the money. It is certain, we suppose, that [**39]  the City Council could have no power to make appropriations to these institutions simply as such, nor because merely of the very humane and laudable objects and purposes for which they were created by their founders and promoters; it is only because of the actual services and benefits rendered the City that any claim could be urged for their support from the City treasury. And if this be so, what guarantee has the City that services or benefits will accrue, commensurate with the appropriations that are made? The same principle that would sustain these appropriations, would equally sustain appropriations to every private school and private charity in the City. And once concede the power to make them, and it will be in vain to invoke the Courts to exercise a discretion as to any limit in the amount or extent of them.
That the city has ample power delegated to it, and that it is a duty, to provide for the foundlings, the insane, the indigent infirm and helpless, and for the correction of the vicious and vagrant portions of its population, is beyond all question; but whatever provision may be made must be under the control and subject to the supervision of municipal authority. The authority [**40]  that is held and exercised in this behalf is a trust, as well for those who become the objects of it, as those who support it by contribution in the form of taxes levied upon their property; and being an important public trust, it cannot be delegated beyond the power and discretion of those to whom it is confided. We do not design, however, to be understood as intimating that it would not be competent for the Mayor and City Council to contract for the care, maintenance and training of those subject to its power, or who have claims upon its charity, of the class of those cared for, maintained and trained, in the St. Mary's Industrial School for Boys, the Maryland Industrial School for Girls, and the St. Vincent's Infant Asylum of Baltimore. If the city has not provided  [*336]  for such persons, or if they can be better taken care of and trained in those, or such institutions, than in the institutions of the city, we can perceive no good reason why the city may not arrange and contract for such care and training. Such contracts appear to have been made in the cases of the "Maryland Lying-in-Asylum," and the "Eye and Ear Institutes;" and we think the power to make such contracts may [**41]  well be conceded to exist. Its exercise, however, to be valid, must be with the limitation, that the subject-matter of the contract be kept within the power and control of municipal authority, and that complete accountability be provided for; and thus make the institutions contracted with, pro hac vice, municipal agencies.
The fact that the institutions may be under denominational or religious control, can in no manner affect their qualification for assuming such relation to the city, or for the full and faithful discharge of the duties that they may contract to perform. Charity, to say the least of the matter, is quite as likely to be fully and faithfully administered under such auspices as it could be under any other. It could, therefore, be no objection that the institutions are or may be under the control and influence of those belonging to any particular church or denomination.
Finding no warrant or authority to justify the appropriations to the appellants, we have no alternative but to declare them void, and must, therefore, affirm the decree as to those appropriations. We shall do so, however, without costs to the appellees.
Decree affirmed. 

24 of 37 DOCUMENTS 

JOSEPH O'NEAL and others, vs. THE VIRGINIA AND MARYLAND BRIDGE COMPANY AT SHEPHERDS TOWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 1; 1861 Md. LEXIS 62 

November 2, 1861, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity side of the Circuit Court for Baltimore City.

This appeal is from an order making perpetual an injunction, granted upon a bill, filed on the 14th of December 1857, by the Appellee against the Appellants, the collector of the tax and the county commissioners of Washington county, for the years 1854 and 1855, restraining the defendants from selling certain property of the complainant, for the payment of the State and county taxes for those years.

The bill, answers, and admissions of fact, show, that the complainant was incorporated by an Act of Virginia, passed in January 1848, under the corporate name of "The Virginia and Maryland Bridge Company at Shepherds Town;" which law was assented to by the Act of Maryland of 1847, ch. 287, passed in March 1848, in which the name is recited as, "The Maryland and Virginia Bridge Company." The company having been organized under these Acts, in July 1849, purchased from one Blackford, for $ 15,000, the public ferry and ferry rights, across the Potomac at Shepherdstown, with certain lands and improvements thereto annexed, situated on both sides of the river, viz: fourteen or fifteen acres of land in Washington county,  [**2]  Maryland, at the Maryland termination of the ferry, with a ferry house and other improvements thereon, and about a half or three-fourths of an acre of land on the Virginia side, in Jefferson county, with a warehouse thereon. Prior to the passage of the Act of 1852, ch. 337, providing for a general assessment of property in Maryland, this company constructed a bridge over said river, at said ferry, with the necessary roads to the same, at both abutments. This bridge was a wooden structure, covered, resting upon stone abutments on the shores, and stone piers in the river, and was built in such manner as not to obstruct the navigation of the river, if the same had been navigable, as before the construction of the Chesapeake and Ohio canal: and the total cost of the same, including the purchase of the ferry right, was $ 37,069.85.

The assessors, under the Act of 1852, ch. 337, assessed the property, and made the following entry upon the assessment book for Washington county, "Potomac Bridge Company:-- Bridge opposite Shepherdstown, and 10 acres of land with building attached, $ 27,000," and in the assessment leger or book, made from the foregoing by the county commissioners, an account [**3]  was opened headed thus: "Bridge Company at Shepherdstown, $ 27,000." And this latter entry so remained till the 1st of October 1856, when it was changed by prefixing the words, "Virginia and Maryland," and this change was made on that day by the clerk of the commissioners, upon an order of the board, for the purpose of proceeding against the complainant for the taxes for the years 1854 and 1855. No change was ever made in the entry upon the assessment book first above stated. The taxes for 1852 and 1853, were paid by the complainant on the 24th of February 1855, and the tax for 1853 was made out in the name of the "Potomac Bridge Company." The commissioners held their session under sec. 26th of the Act of 1852, ch. 337, in January 1853, in pursuance of regular notice given in the newspapers, for hearing and determining complaints and appeals of persons who felt themselves aggrieved by the valuation of the assessors under said Act, and the complainant did not then appear with any appeal or complaint, or for any purpose.

The answers aver, that the complainant was fully aware of this assessment and valuation from the time it was made, and never objected to it or urged any exception [**4]  whatever, until some two or three years afterwards, when they applied to the commissioners to have a change made, and to be relieved from taxation altogether; which is the same relief they are now asking, but which was refused. It was admitted that the application so referred to in the answers, was made sometime in 1856, and was not in the form of a regular proceeding by bill or petition, and no minute or record was made of the result by the commissioners or their clerk, but the whole proceedings were oral.

It was also admitted, that the assessment, aforesaid, includes the entire bridge of the complainant, (except so much of the abutment on the Virginia shore as may be beyond the limits of Maryland, as prescribed by the charter to Lord Baltimore,) and all the lands and improvements on the Maryland side of the river, but not the toll-house and other improvements on the Virginia shore, which are conceded to be within that State. That the office of business of the company is, and always has been, on the Virginia shore; that the officers of the company reside in Virginia, and two of its directors are appointed by that State; that the capital stock of the company consists of 727 shares [**5]  at $ 50 per share, of which $ 10,000 are held by the State of Virginia, $ 5000 by a citizen of Pennsylvania, and the residue by citizens of Virginia; and that an annual report is made by the company to the Board of Public Works of that State in pursuance of the laws of Virginia.

It was further admitted, that the bridge of the complainant at Shepherdstown, is the only bridge over the Potomac, within the limits of Washington county, and that there is no other organised company for a bridge over that river in that county, beside the complainant; but that there is a bridge over that river at Berlin, in Frederick county, called "The Berlin and Potomac Bridge Company," erected under the Act of Maryland of 1847, ch. 197.

The grounds upon which this company claimed exemption from these taxes, are fully stated in the arguments of counsel, the opinion of this court, and the following opinion of the court below, (PERRY, J.,) delivered upon passing the decree making the injunction perpetual:

"In this case I have had much difficulty in determining the questions that have been made by the bill and answers. I will briefly give the opinion I entertain in the case. The complainant, by [**6]  its Act of incorporation, is known by the name of 'The Virginia and Maryland Bridge Company.' It appears that the assessors for Washington county, appointed by virtue of the Act of 1852, ch. 337, made an assessment of property in these words: 'Potomac Bridge Company, Bridge opposite Shepherdstown, and 10 acres of land, with building attached, $ 27,000,' and that the commissioners, in what is called the assessment leger or book, opened an account headed: 'Bridge Company at Shepherdstown, $ 27,000,' which entry remained in that form, on said leger or book, up to the first of October 1856, when it was changed by prefixing the words, 'Virginia and Maryland.' By the Act of 1852, ch. 337, sec. 25, it was made the duty of the county commissioners, of the respective counties, to cause to be made, on or before the 1st day of March 1853, and on or before said day, annually thereafter, an alphabetical list of the owners of the property assessed by virtue of the Act, together with the amount of his, her or their assessments, respectively answering to his or her name; which said list was to be deposited in the offices of the clerks of the county commissioners, &c.; and it was made the duty of said [**7]  clerks to keep the same in some conspicuous place, in his or their offices, for the inspection and perusal of any person or persons interested therein, without fee or reward. I indulge the belief, that the commissioners of Washington county discharged their duty and complied with the provisions of the law to which I have referred, and that upon this presumption, there would have been found in the office an alphabetical list of the owners assessed, answering to his or her name, at the time required by law, as returned by the assessors.

"The 21st section of the Act of 1852, makes it the duty of the assessors, in case they could not discover the owners of any property within their assessment district, to return the same as the property of some person unknown. The assessors did not value the property assessed in this case, as the property of some person unknown, but assessed it as the property of the 'Potomac Bridge Company.' I have referred to these sections of the Act to show, that the name of the owner of property assessed should appear in the return and alphabetical list, for inspection by the owner; this was no doubt wisely required, so that such owner, or other person interested,  [**8]  might know in what way the conduct of the assessors affected them. The name of the owner was important to enable him or her to know how they were assessed, so that it could have been seen, and if unjustly imposed, an application could have been made for redress, in the mode pointed out, to the commissioners of the county.

"There is nothing in this case to show that the name of 'The Virginia and Maryland Bridge Company' was returned by the assessors, or was found in the alphabetical list, or that it was property held by any person unknown to the assessors or commissioners. Supposing the law intended that the name of the owners should appear, and that an examination or inspection of the list was a right of such owner, can it, when this requirement of the law has been disregarded, be supposed, the commissioners could legally assess the property of one not named or returned as unknown? This list, or return, was deemed necessary. Indeed it is an express obligation of the assessors and county commissioners to have the name returned and alphabetical list made out, as the means of discovering the property and extent of the assessment, so that the commissioners could be appealed to, to [**9]  make such abatement, or to exclude entirely property from assessment, &c.

"It may be though that the description of the property, 'Bridge opposite Shepherdstown,' would gratify the requirements of the law, there being but one bridge of that kind in the limits of the county--that there has been a substantial compliance with the law--that it shows the property intended to be assessed, and the corporation, who is the owner. In this I do not agree. It is, as a general rule, not required to give the name of a corporation with as much certainty as in the case of individuals; that in grants to and from corporations courts will sustain them, though there is a variation in words and syllables. There is a difference between the alteration of a letter or transposition of a word between the name of a natural person and a name of a corporation. It makes entirely another name of the person in the one case, while the name of a corporation frequently consists of several descriptive words, and the transposition of them, or interpolation or omission of them, may make an essential difference in the sense. The true rule has been stated to be, that, in grants and conveyances, the name must be the [**10]  same in substance as the true name, but need not be so in words and syllables. Angell & Ames on Corp., sec. 99.

"I can see nothing by which the true name in this case can be seen or known, unless it be arrived at on account of the property taxed. If it were a case in which there was a transposition of the words of the name, or an omission of some of them, a doubt might exist under such circumstances. But the corporate name of the complainant is, 'The Virginia and Maryland Bridge Company,' and in no place can such a name be seen in the books of the commissioners, except in the year 1856. I think it cannot be doubted, that if the assessment, prior to October 1856, was not valid, the action of the county commissioners in that year could not make it so. 'The Virginia and Maryland Bridge Company' had a right to be heard, and there being no such owner named on the books of the commissioners, the imposition of the tax was without the authority of law, and I know of no power in them by which they can make valid an improper assessment of property, for such period as is claimed in this case. The description of the property in the return of the assessors, does not furnish the commissioners [**11]  with the name of the owner. At least it seems not to have accomplished that purpose in the case under consideration, for that body departed from the name as given by them and contented itself with the name of "Bridge Company at Shepherdstown," such name on the alphabetical list was not its true name, and possibly nothing short of an examination of the assessors' entire return would enable them to know their property was assessed. If the proceeding of the assessors and commissioners had been conducted in such a manner as to show, substantially, the name of the corporation, it may be well questioned, whether this court would have jurisdiction, and whether the only remedy of the complainant was not that which is provided for by the Act of 1852: an application to the county commissioners and an appeal to the Court of Appeals. (See Osborn vs. The Inhabitants of Danvers, 6 Pick., 99. Methodist Protestant Church vs. The Mayor and City Council of Baltimore, 6 Gill 391.) Assuming, however, that the proceedings of the assessors and commissioners had been regular, by giving the true corporate name, and making, as required by law, the alphabetical list, it is still urged, that the commissioners [**12]  do not possess the power to tax the property of that corporation. I cannot forbear being influenced by the provisions of the Act of 1852, sec. 17, which provides, that the stock of a turnpike, railroad or other improvement corporation, shall be valued at the place where its principal office for the transaction of business is established, if the office be within the limits of the State, and if not, then the assessable property of such corporation shall be valued in the county in which it is situated. When I look at the plain and obvious design of the Legislature, to tax the entire property of the State and to make all that is liable to assessment contribute to the common burden, together with this section of the Act, no doubt exists in my mind that such is liable to taxation. The right of taxation is never presumed to be surrendered by the sovereign power, and such surrender is never understood to be made, unless it be the result of express terms or necessary inference, and by the 13th Article of the Bill of Rights, the Legislature can impose no tax upon any particular property, which is not legally borne by every species of property in the State in proportion to its value.  Mayor &  [**13]  City Council of Baltimore vs. B. & Ohio R. R. Co., 6 Gill 290. It is not a case in which they should stand by and see their property illegally exposed to public sale, and then force the purchaser to bring his ejectment to gain possession. In such a case a court of equity will interpose, ( Holland vs. Mayor & C. C. of Balto., et al., 11 Md. 187,) by injunction, in behalf of the complainant.

"If the assessors and commissioners had complied with the law, the only remedy of the complainant for relief was, by an application to the latter body for re-valuation, or such change as is contemplated by the Act of 1852, and should their application be rejected and the party consider itself aggrieved, by an appeal to the Court of Appeals, and in no other mode could relief be had, as such is the law as announced in the case of the Methodist Protestant Church vs. The Mayor and City Council of Baltimore, and the case of Osborn vs. The Inhabitants of Danvers. If the corporation, when taxed, should apply to the commissioners, and show to that body that their property should not have been assessed, then it was certainly competent for them to have appealed to the highest tribunal of the State [**14]  to have determined that question. They have that remedy, and it is not in their province to abandon it and resort to the power of this court for its equitable jurisdiction, which is always upon the notion that he is without remedy at law." 

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

A bridge over the Potomac river, and other property of a corporation for the erection of such bridge, lying within the limits of Maryland, is taxable in the county in which it is situated, under the Act of 1852, ch. 337, sec. 17, the principal office of the corporation, for the transaction of its business, not being within the limits of this State.

The property of a corporation was assessed, and entered on the assessors' books, in the name of the "Potomae Bridge Company," whereas the true corporate name was, "The Virginia and Maryland Bridge Company at Shepherds Town." The corporation had knowledge of the assessment, and no reason was assigned for their not going before the commissioners to have the error, as to the name, corrected. HELD:

That in such a case equity cannot interfere in behalf of the corporation, and relieve them from the payment of the tax so assessed.

Taxes are laid for the support of government, and all property made liable for contribution to this object, ought to be embraced in assessments for that purpose.

Tax assessments ought not to be vacated, and property released altogether, because the public officers have not strictly followed the provisions of law, which are merely directory; assessments are not invalid if such directions are not complied with.

If the property owner omits to pursue the relief offered by the tax laws against the improper exercise of the taxing power, he cannot be relieved in equity, if at all, unless a strong case is presented.

In such case the property owner must show he has not been in default in availing of the means provided by the tax laws, and there must be something more than legal error assigned; facts must be presented appealing to the conscience of the court, to prevent wrong and injustice.

If the objection, as to the manner of making and returning the assessment, is merely technical, and goes to matter of form and not to substance, a court of equity ought not to interfere.

Substance, and not form, is to control the construction of legislative enactments prescribing a mode in which acts are to be done.

The tax laws require public notice to be given of the meeting of the commissioners to correct errors, &c., in assessments, and the laws and publication impute notice to all persons, whether they have actual information or not.

The tax laws authorise the commissioners to increase or abate valuations, and to exclude property improperly valued, and, where such remedy is afforded, a court of equity has no jurisdiction to make corrections. 

COUNSEL:
A. K. Syester, for the appellants, argued at length the following points:

1st. That the assessment, as made by the assessors in the first instance, was sufficiently certain to enable the county commissioners to levy, and the collectors to collect, the taxes imposed upon the property of the appellee; and although the appellee may not have been properly styled in the return books of the assessors, still it was sufficiently designated to inform every person acquainted with or interested in its property, of the party intended to be assessed therewith, and if so, that was all that was required. Act of 1852, ch. 337. 2 Gill 487, State vs. Mayhew.

2nd. That whatever lapse may have been made by the assessors in the style of the appellee in the return book, the identification is rendered sufficiently certain by the county commissioners, when they, upon the return of the assessment to them, entered the [**15]  assessment of the property of the appellee in their assessment leger to the "Bridge Company at Shepherdstown," there being no bridge company other than the appellee to answer such a description.

3rd. That whether the form of the entry made by the assessors in their return book, or made by the commissioners in their leger, were sufficient or not, still, it is insisted, the county commissioners had ample power to correct any error that may have been made in the entries, in the style of the owner of the property, and that the subsequent action of the commissioners in prefixing the proper corporate name of the appellee to the imperfect designation of the owner, on their books, was legal and binding on the appellee, as much so as if the assessors, themselves, had so correctly styled it by its proper name in the beginning. Act of 1852, ch. 337, sec. 27.

4th. That the appellee, however, is concluded by its own solemn acts of recognition of the correctness and legality of the assessment.

5th. That the objection to the entries on the assessment book, forms no ground for relief in a court of equity, where substance and not technical formality is regarded. The whole case is destitute [**16]  of equity. 10 G. & J., 358, Fowler vs. Lee.

6th. That the compact of 1785 has no application to the case, and therefore imposes no restriction on the authorities of this State, in levying a fair and equal tax on all the property that may be found within the chartered limits of the State, whether that property belongs to citizens of Virginia or not. 2 Bland, 99, Binney's case.

7th. That the power to levy taxes to support the goverment is never presumed to be waived or renounced by the Legislature, but it requires unequivocal language expressive of such intent; and as neither the compact of 1785, nor the Act of 1847, makes any provision upon the subject of taxation, it therefore follows, that the Legislature of this State has not divested itself of the taxing power over property situated as that of the appellee. 6 Gill 288, City of Balt. vs. Rail Road Co. 4 Pet., 514, Providence Bank vs. Billings, et al. 11 Pet., 420, Charles River Bridge Co. vs. Warren Bridge. 10 How., 376, Phil. Wil. R. R. Co. vs. State of Maryland.

8th. That the county commissioners had, and still have, exclusive control and jurisdiction of the subject matter of complaint in this case, and were [**17]  and are competent, and they only competent, to extend to the appellee the appropriate relief, if it be entitled to any; and application having been made to that body for the same relief now asked, and being refused, and the appellee failing to pursue its remedy as provided by law, it is effectually concluded, and a court of equity can take no jurisdiction in the premises. Act of 1852, ch. 337, secs. 26, 31, 32, 35. 6 G. & J., 312, Gott & Wilson vs. Carr. 6 Gill 391, Methodist Church vs. City of Balt. 39 Eng. Law & Eq. Rep., 553, Newry Railway Co., vs. Ulster Railway Co. 26 Wend., 132, City of Brooklyn vs. Meserole.

D. Weisel, and J. R. Tucker, (Attorney General of Virginia,) for the appellee, argued the following points, the argument of Mr. Tucker being confined to the points relating to the interstate rights of Maryland and Virginia.

1st. That the appellee was not assessed under the Act of 1852, ch. 337, and agreeably to its provisions, and the other Acts of Assembly in force in such cases, the property claimed to have been assessed, not having been assessed in the name of the appellee. Acts of 1841, ch. 23, secs. 9, 22, 23, 27, and 1852, ch. 337, secs. 21, 25, 29. These [**18]  laws require that the name of the owner, when known, must be returned by the assessors, property must be assessed in the names of the owners thereof respectively, and if an owner cannot be found, or is unknown, the return must show it to be the property of some person unknown. This corporation had a charter name which ought to have been found out by the assessors, but it was not so done, and the property was returned as, and assessed in the name of the "Potomac Bridge Company;" a name by which it could neither sue nor be sued. Not being assessed in its proper name, the corporation was not bound to make an appeal to the commissioners to have the assessment changed, nor had the commissioners any power, after the assessment was made, to usurp the authority of the assessors and change the name so as to make it the name of this corporation.

2nd. That the appellee is a Maryland corporation, and its capital stock only is liable to taxation, whether owned by residents or non-residents of this State, the laws and decisions of Maryland sufficiently pointing out the mode of assessing the stock and enforcing the payment of the tax; and the shares represent all the property of the company.  [**19]  Acts of 1841, ch. 23, secs. 1, 16, 17, 18; and 1852, ch. 337, secs. 1, 17, 18. 12 G. & J., 117, Tax Cases. 2 Gill 494, 499, State vs. Mayhew. 6 Gill 295, 296, 297, City of Balt. vs. Railroad Co. 5 Gill 236, Gordon vs. City of Balt. Bill of Rights, Art. 13.

3rd. That the bridge itself is not liable to taxation, being a highway, any more than a turnpike road, or the corpus of a canal, or the public ferry it superseded. It is not a portion of the assessable property of the corporation, the Potomac river, itself, being a public navigable river. Act of 1768, ch. 5. 1 Harg. Tracts, ch. 3, page 9 to 10. Shultes on Aquat. Rights, 134, in 24 Law Lib. Angell on Water Courses, 201 to 207. 1 Showers, 255, Payne vs. Partrige. 5 H. & J., 195, Browne vs. Kennedy. 1 Rand., 417, Hayes vs. Bowman. 1 Rand., 33, Mead vs. Haynes.

4th. That under the compact with Virginia, of 1785, ch. 1, sec. 1, the bridge, or at least one-half of it, is Virginia property, or property attached to the Virginia shore, and exempt from the taxing power of Maryland; that by that compact, Maryland surrendered in favor of Virginia her power to tax the property within her chartered limits on that shore, and [**20]  all improvements projected therefrom, out, into or over the river, so as not to interfere with its navigation.

On this point Mr. Tucker said, there is reason to believe the received opinion as to the construction of Lord Baltimore's charter for Maryland, is not the correct one; and produced a copy of an original charter translated by Tomlyn, in which the description of the southern boundary differs in some material points from that usually received as the original charter in Maryland, and showing that the River Potomac was within the limits of Virginia. He further stated, that for more than eighty years, Virginia had exercised jurisdiction over the Potomac River by granting ferry privileges, establishing ferries and ports of entry, and making pilot laws; whilst there was no evidence of the exercise of any power on the part of Maryland to grant ferry privileges. He referred to Rev. Code of Va. of 1819, pages 243, 343. Cons. of Va. of 1776, sec. 21. He further argued that the taxing power may be relinquished by necessary implication, as well as by express terms, and that it was so relinquished in reference to the property now in question, 1st, by the compact of 1785, and 2nd, by [**21]  the incorporation Act of 1847. That the compact should be construed liberally, he cited Vattel, ch. 22, and pages 247 to 270, and also referred to the case of Handly's lessee vs. Anthony, 5 Wheat., 375.

5th. That by the tax laws of Maryland the assessors could only assess property in Maryland, and liable to taxation; not property exempt from taxation, or lying beyond the taxing limits of the State; and if such property (entitled to exemption) were assessed by them, an appeal to county commissioners was not the only or exclusive relief, (Act of 1852, ch. 337, sec. 26,) but a court of equity can be resorted to for the purpose, and its restraining powers invoked, when a sale of property for taxes thus illegally imposed, is attempted. Especially so, when the property assessed lies beyond the jurisdiction of the State, and the attempt is to sell property in the State for taxes levied upon such assessment. 11 Md. 186, Holland vs. Mayor & C. C. of Balt. 3 Gill 23, Howell vs. The State.

6th. That the appeals allowed to the county commissioners, and thence to the Court of Appeals, took cognizance only of the complaints made by persons who were aggrieved by the valuation, by [**22]  the assessors, of property liable to be assessed, and were not given to relieve persons from taxation on property not liable to be assessed and taxed. Otherwise, by a failure to appeal, property expressly exempt from taxation by law, could be brought under taxation; or property in another State could be subject to taxes in Maryland, by first assessing it, and then by levying and selling any property which the owner might have contiguous thereto, or otherwise, in Maryland. Besides, the time of appeal is specified in the tax laws of Maryland, and an appeal would lie at no other time; and any application at any other time for relief, would be nugatory, or if made and entertained by the commissioners, would be without their jurisdiction, and such action or proceedings would not preclude a resort to a court of chancery for redress for the same matter or cause of complaint; nor would payment of illegal taxes at one time, bind the party, thus paying them, to a continuance of their payment without remedy. 6 Gill 402, 403, Methodist Church vs. City of Baltimore.

R. H. Alvey, for the appellants, in reply.

The leading propositions of this case are reducible to two:

1. Whether [**23]  the property assessed and levied on, under the facts and circumstances of this case, is legally exempt from taxation?

2. Whether a court of equity can properly exercise jurisdiction to relieve the appellee from the payment of the taxes, assessed and attempted to be enforced by the proper officers, either because of an exemption of the property from taxation, or because of irregularities and informalities committed in the assessment? And--

1. Is the property exempt from taxation? If so, it is incumbent upon the appellee to establish it clearly and beyond doubt.--It is contended, for the appellee, that the property assessed is not liable to taxation, upon three distinct grounds:

1. That, under the compact of 1785, this State relinquished her taxing power over property situated as is the bridge of the appellee.

2. That the bridge itself, being a highway, is not subject to taxation,--not being of that species of property legally assessable.

3. That the appellee being a Maryland corporation, or corporation authorised by the concurrent legislation of the two States of Virginia and Maryland, its capital stock only, and not its property, is taxable.

A great deal [**24]  of the argument for the appellee has been predicated of the territorial rights and jurisdiction of Virginia, in and over the Potomac river. It is supposed that Virginia has, at least, an equal and a concurrent right and jurisdiction with Maryland, over the Potomac. But, whatever controversy formerly existed between the two States, as to their respective chartered claims to territory and jurisdiction, it has long since been adjusted in a spirit of amity. The charter of Maryland defines the southern boundary to be, from "the first fountain of the river Potomac, thence verging towards the south unto the further bank of the said river, and following the same on the west and south, unto a certain place called Cinquack, situate near the mouth of the said river," &c. "To the full extent of this call for the right bank of the Potomac, Maryland has always held; and under that holding, all the islands in the river have been granted by the patents issuing from the land office, or under legislative enactments, or titles derived from this State; and the whole of the bed of the river, above tide, it is believed, has always been admitted to be rightfully parcel of the territory of Maryland." Binney's [**25]  case, 2 Bland, 127. And to this full extent has Virginia, by her Constitution of 1776, acknowledged the rights and claims of Maryland; for by that Constitution are renounced and confirmed to the State of Maryland, "all the territory contained within its charter, with all the rights of property, jurisdiction and government, and all other rights whatsoever, which may at any time heretofore have been claimed by Virginia." Seeing, then, that the entire Potomac, "unto the further bank of the said river," is within the chartered limits of Maryland, and that she has always claimed and exercised jurisdiction over it, and that Virginia has acknowledged and confirmed the right, if the property sought to be taxed is located on the Maryland side of this clearly established boundary, there can be no question of mere territorial jurisdiction for discussion here. And hence it is, that so much of the discussion on the part of the appellee, has been wholly inapplicable and foreign to the case, as presented by the record; for it is expressly admitted, in the agreed statement of facts, that the assessment was only upon the property of the appellee, found within the chartered limits of Maryland. No property [**26]  beyond it has ever been interfered with, nor is hat the complaint here. The complaint is, that the bridge structure over the Potomac river, and the land of the appellee on the Maryland side of the river, have been assessed. There being, then, no question of mere boundary or territorial jurisdiction, the question is one of exemption by some competent Act of Maryland. This exemption is supposed to be secured to the appellee by the compact of 1785. Upon the true and proper construction of this compact, I contend:

1. That it does not extend to that portion of the Potomac river over which this bridge is erected, or to any portion of it above tide water; and--

2. That, were it even construed to extend to the entire river, as well above as below tide-water, there is no clause or provision in the compact contemplating the exemption claimed.

That it does not extend to the river above tide-water, is manifest from its various provisions, all applying only to waters that were then, and by nature, navigable, and regulating the terms upon which the navigation was to be enjoyed and conducted by the citizens of the two States. This compact is to be construed according to the intention [**27]  of the parties at the time it was made, and we are to arrive at that intention by ascertaining the objects and subject matter to which its provisions were applicable at the time. We know that the Potomac river, above tide-water, was not, in 1785, an object of such provisions as we find in this compact. It could then and can now, in the nature of things, have no application to the river above tide-water. If it be construed to extend to the river above tide, to what extent will it be applied? Will it be said that it applies to the entire river, to its "first fountain?" And if so, to the fountain of which branch, the northern or southern? It has been settled by judicial construction of this compact, that it does not apply to the river Potomac higher than the flow of the tide. Binney's case, 2 Bland, 125 and 126.

But if the compact were supposed to apply to the river above tide-water, in what clause or article of it is found the exemption claimed? It must be admitted, that it is not expressly granted; and from what is it necessarily implied?

Did this State intend, by that compact, to give up and abandon any of her domain or territorial rights? The compact is confined exclusively [**28]  to matters of jurisdiction and navigation; "it leaves the territorial rights of the parties untouched." 2 Bland, 127. It is but "a series of commercial regulations, constituting a treaty of commerce, predicated upon the basis of free and equal rights in the navigation of these rivers, to be maintained for their common benefit, by their common efforts, and at their joint expense, and securing these in a manner eminently calculated to promote and establish a harmonious and beneficial intercourse." McMahon's History of Md., 61. Such being the character of this compact, upon the adoption of the Federal Constitution, which devolved upon Congress the exclusive power of regulating commerce with foreign nations, and among the several States, its provisions were superseded; for the power of regulating commerce extends to the regulation of navigation, and to every species of commercial intercourse between the United States and foreign nations, and among the several States, and is exclusively vested in Congress, and no part of it can be exercised by a State. Gibbons, vs. Ogden, 9 Wheat., 1.

But whatever provisions of the compact may still be of force, if any, there is not the least reason [**29]  to suppose, that it was ever the design to renounce the taxing power, so essential to the State. "It resides in government as a part of itself, and need not be reserved, when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies." Providence Bank vs. Billings, et al., 4 Pet., 562. There is no express exemption, nor is there any by necessary implication under this compact. Why then should this corporation be exempted from such taxes as every citizen, holding property in the State, may be required to pay? It was said by the Supreme court of the United States, in the case of the Phil. & Wilm. R. R. Co., vs. The State of Maryland, 10 How., 393, of a corporation, seeking an exemption from taxation by implication, as in this case, that "there is no provision in the law exempting its stocks or its property, real or personal, from taxation. And certainly there is no reason why the property of a corporation should be presumed to be exempted, or should not bear its share of the necessary public burdens, as well as the property of individuals. This court, on several occasions has held, that the taxing power of a State is never presumed [**30]  to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms." Charles River Bridge vs. Warren Bridge, 11 Pet., 422. Mayor & C. C. of Balt., vs. Balt. & Ohio R. R. Co., 6 Gill 288. Mayor, &c., of Balt., vs. Board of Police, 15 Md. 376.

Nor does the fact that the State of Virginia holds a portion of the stock of the corporation entitle the appellee to a more favorable consideration. The State is to be regarded as simply a stockholder, with no greater privileges then individuals owning the stock. She can urge no claim to exemption upon any grounds of comity, because we are not dealing with her in her sovereign capacity. "Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." Bank of U. S., vs. Planters' Bank of Georgia, 9 Wheat., 907. Louisville Railroad Co., vs. Letson, 2 How., 497. Curran vs. State of Ark., 15 How., 309.

But how is it that the appellee can claim exemption, under the compact of 1785, in the name and behalf of Virginia, when [**31]  it is alleged and insisted that it is a Maryland corporation? If it be a Maryland corporation there is an end of the claim to exemption. For it is the body corporate with which we have to deal, and not with the individuals composing it, and whether they are citizens of Virginia or Maryland, is immaterial.

The next ground upon which exemption is claimed for the bridge is, that, being a highway, it is not taxable. This objection to the assessment turns upon a very simple question; and that is, whether the bridge structure is property, either real or personal? For if it be of either kind, it is liable. The Act of 1841, ch. 23, sec. 1, provides "that all real and personal property in this State," and after specifying the various descriptions, then further provides, "and all other property of every description whatsoever, shall be valued agreeably to the directions of this Act, and shall be chargeable according to such valuation, with the public assessment;" and by the Act of 1852, ch. 337, it was enacted that all property, of every kind and description, "now by law liable to be valued and assessed, and chargeable with taxes in this State," should be valued and charged. The bridge [**32]  is certainly property. It is profitable property, it yields the company its tolls. Its value is represented by the stock of the company. It is liable to be taxed upon the same principle that the bed of a railroad, its rails, and other structures, are assessed. The decisions are express, that assessments on such structures are proper. The Tax cases, 12 Gill & John., 117. The P. W. & B. Railroad Co., vs. Bayless, 2 Gill 355. The Phil. & Wilm. R. R. Co., vs. Maryland, 10 How., 376.

Nor is the third ground of objection to the assessment better founded. It is agreed, that nearly all the stockholders are non-residents of this State; that all the officers of the corporation reside in the State of Virginia; and that the principal and only office of business of the company, is in the latter State. Nor is it pretended, that any part of the capital stock, as such, has been assessed by the authorities of this State. Either the stock in the hands of the holders, or the property of the corporation is to be assessed; and, as in a case like this, where the principal and only office of business of turnpike, railroad, canal, or other improvement corporations, is beyond the limits of the State,  [**33]  and therefore, not subject to its jurisdiction, the Act of 1852, ch. 337, sec. 17, provides, that "the assessable property of such corporations shall be valued and assessed, in the county or counties in which it is situated." It is very manifest, that the only tax that can be enforced against this corporation is that upon the assessment of its property found within the State, and not of the stock in the hands of unknown stockholders residing out of this State.

The second leading question presented, is one of jurisdiction. No fraud or surprise is alleged or pretended. The application is one, simply, to have revised the acts and judgment of an inferior tribunal of special and limited powers and jurisdiction. The mode of proceeding by these inferior officials, the assessors and commissioners, is particularly prescribed; and a particular mode pointed out by statute, to those thinking themselves aggrieved, by which they can obtain redress. There is no power or jurisdiction conferred upon the courts of equity, "to review or control the determination" of either the assessors or commissioners; but the power to review and correct errors, mistakes and abuses in the exercise of the powers [**34]  of subordinate public jurisdiction, and in the official acts of public officers, belongs exclusively to the courts of law; and in this case, by express direction to the Court of Appeals, upon appeal from the judgment of the commissioners. In a case in principle identical with this, Ch. Kent declared that, "in the whole history of the English Court of Chancery, there is no instance of the assertion of such a jurisdiction as is now contended for." Mooers vs. Smedley, 6 Johns. Ch. Rep., 28. And in the case of The Mayor of Brooklyn vs. Meserole, 26 Wend., 138, 139, 140, it was said by the court that, "the question whether these subordinate tribunals have acted in pursuance of the powers conferred upon them by law, and whether their acts are void or valid, involves an examination of purely legal principles, unmixed with equity." It is admitted that the assessment of the property was made by the assessors, and that the subject matter has been, and is still, before the county commissioners; that although due notice was given to all concerned, to come forward and urge their objections to the assessments, the appellee never appeared, but recognized and acquiesced in the assessment by paying [**35]  the first tax bill that was presented; that an application was made to the county commissioners to relieve the appellee from the tax, but that application was refused, and the party neglected and failed to take an appeal as directed by the statute. I contend that the appellee is concluded by the judgment of the commissioners, and that the only mode by which a review of their judgment could be had, was by an appeal direct from their judgment. The case of the Methodist Church vs. City of Balt., 6 Gill 391, is directly in point, and conclusive of this case. There the law having given to parties considering themselves aggrieved by the proceedings of the street commissioners, an appeal to the city court, as here to the Court of Appeals, the former Court of Appeals decided, that the party complaining could seek redress only in the city court, as directed by the statute. And, in delivering the opinion of the court, Judge Dorsey said: "To the court of chancery or county court, sitting as a court of equity, no such power is delegated, nor can it be lawfully or judiciously exercised by those tribunals. To persons aggrieved by the proceedings of the commissioners in cases like the present,  [**36]  the Legislative enactments upon the subject have provided the tribunal and means of redress, and through these only can it be successfully sought." 6 Gill 402.

The technical objection to the assessment, upon the ground of informality, and the misnomer of the appellee, is wholly untenable and unavailing here. There is no allegation of surprise, and the party, in fact, had notice, and acted on it. All parties owning property in the State, are bound to take notice of the existence of the laws affecting their property, and to know by what means taxes are assessed and collected. The levy of the taxes constitutes a lien upon the property; and the proceedings are altogether in rem. Thompson vs. Carroll, 22 How., 432 423. The law authorises the assessment to parties unknown, and so, too, to the heirs of deceased parties, without naming them. The object of the true name of the owner is more to enable collectors and officials to collect than to give the parties notice; and the true name is in no case material, except where proceedings are taken to sell for taxes. The designation of the owner, however, was sufficiently certain in this assessment, and the commissioners had ample power [**37]  under the 27th sec. of the Act of 1852, to make any correction or supply any omission, necessary to completeness. But whatever mere technical defect may have existed in the assessment, the Act of 1852, ch. 337, sec. 35, has prohibited any advantage being taken of it. It provided that, on appeal, 'neither party shall be permitted to discuss any point involving merely a question of value or of regularity, or any other question of fact merely." If the party is thus prohibited on a direct appeal from the action of the commissioners, how is it possible that it should be done indirectly, and through the agency of a court of equity--a tribunal that is proverbially opposed to relieving parties upon mere informal or technical grounds? 

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*23]  TUCK, J., delivered the opinion of this court:
The admissions of fact, to be found in the agreement, on which this case was tried, render it unnecessary to examine the points that were so fully argued at the bar, touching the inter-state rights of Maryland and Virginia. It is admitted that the property on which this tax was assessed, lies within the limits of Washington [**38]  county, in this State; this brings it under the operation of the 17th section of the Act of 1852, ch. 337, which provides, that where the office of a turnpike, railroad, canal, or other improvement corporation, is not within the State, "the assessable property of such corporation shall be valued and assessed in the county in which it is situated." We agree, in opinion, with the judge below, that this bridge-property was a proper subject of taxation under that Act. It is plain, upon the words of the Act, and need not be amplified. Howell's case, 3 Gill 14. 4 Peters 563.
The questions, relating to the manner of making the assessment, and the proceedings of the commissioners of Washington county, are more difficult of solution; but upon the best consideration we have been able to bestow upon them, we have reached the conclusion, that the views of the learned judge cannot be sustained.
Taxes are laid for the support of government, and all property made liable for contribution to this object by the Constitution and laws, ought to be embraced in assessments for that purpose. It is not only the duty of the Legislature to reach all descriptions of property,  [**39]  for the sake of justice to all the citizens, but the interests of the State require it. To this end the  [*24]  tax laws have made provision for the correction of errors on the part of the assessors, by appeal to designated tribunals; so that if they perform their duty, excessive valuations are not likely to occur; nor will any persons escape, whose property is liable to be taxed. But assessments ought not to be vacated, and the particular property released altogether, because the public officers have not strictly followed the provisions of law, which are merely directory. It is not said any where that the assessment shall be invalid if such directions are not complied with. For example, suppose the commissioners neglect to have lists prepared and deposited in the clerk's office, or the clerk were to omit his duty in that behalf, as required by the 25th section of the Act of 1852, ch. 337, would the whole assessment be inoperative, and all the property of such county discharged from its contribution to the public expenses? In the case of Young vs. The State, 7 G. & J. 253, where a sheriff's bond had not been executed according to law, it was held that the parties [**40]  were liable; that the formalities were required for the public security, and not for the benefit of the obligors. It was also said, "substance, and not form, is to control the construction of legislative enactments, prescribing a mode in which acts are to be done." Where provision is made for the relief of property owners against the improper exercise of the taxing power, the law expects those concerned to be diligent in protecting their interests; and if they omit the opportunity, they cannot be relieved in equity, if at all, unless a strong case is presented, showing, among other things, that they have not been altogether in default in availing of the means provided by the tax laws. And there must be something more than legal error assigned: it must present facts appealing to the conscience of the court, to prevent wrong and injustice. 6 Gill 391. 6 G. & J., 312.
It is not averred here that the assessment was excessive, or that it was made without notice to the owners, and that they had no knowledge, until after the time for appealing to the commissioners had expired, even conceding that these averments  [*25]  would have entitled the company [**41]  to relief. The ground of the equity is, that the property is not taxable at all, and that the assessment had not been made and returned according to the law. If the objection as to the manner of making and returning the assessment, is merely technical, and goes to matters of form, and not to substance, this court ought not to interfere. It is not pretended that the bridge-property of the company was not assessed. The case shows that, if they pay this tax, they will pay on their own property and on none other. The answer shows that they had knowledge of the assessment: and no reason is assigned for their not going before the commissioners to have the supposed errors corrected. The entries in the books sufficiently identify the property. The complaint is, that their property is entered in the name of the "Potomac Bridge Company," which is not their corporate title, and the proceeding was commenced, not to correct the error by having the proper name inserted on the books, and thereby charge the real owner, but to avoid payment altogether. We have no power to make the correction, for the benefit of the public, which the commissioners might have done, and if courts of equity were to interfere [**42]  in such cases, parties taxed, instead of going before the proper tribunal to have errors corrected, and thereby, whilst protecting themselves, secure to the State or county their just demands against the property, would wait until the time had elapsed, and then, by proceeding in equity, escape altogether. 6 Gill 391.
Much stress was laid on the 25th section of the Act, as showing that some important privilege was designed to be conferred on property owners, and that this property had not been properly set out in the lists placed in the clerk's office. It will be observed that the lists are required to be made out in March, after the assessments are corrected in January, in which month the commissioners are required to meet. Hence, it is clear that, the supposed error in this list did not injure the company, nor so mislead their officers as to the property and the owner, thereby preventing their application to the board of  [*26]  commissioners in proper time. All persons must take notice of the law. The Act of Assembly requires public notice to be given of the meetings of the commissioners. The Act and the publication impute notice to all persons, whether they [**43]  have actual information or not. The 26th section of the Act authorized the commissioners to increase or abate valuation, and to exclude property which had been improperly valued. It is well settled that, where such remedy is afforded, a court of equity has no jurisdiction to make corrections. Methodist Protestant Church vs. Mayor & C. C. of Balt., 6 Gill 391.
For these reasons the decree must be reversed and the bill dismissed.
Decree reversed and bill dismissed. 

25 of 37 DOCUMENTS 

THE STATE vs. J. WESLEY HOOFMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 28; 1856 Md. LEXIS 3 

JUNE, 1856, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Circuit Court for Charles county.

The defendant in error was indicted for fishing with gill nets in the Potomac river, contrary to the act of 1845, ch. 148, but the indictment contained no averment that this act had been assented to by the legislature of Virginia, as required by the 8th article of the compact between the two States, made in 1785, and recited in the act of 1785, ch. 1. To this indictment the defendant demurred generally, which demurrer the court (CRAIN, J.) sustained, and gave judgment thereon for the defendant. To correct this judgment the State sued out the present writ of error from the equity side of said court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An indictment for fishing with gill nets in the Potomac river contrary to the act of 1845, ch. 148, must aver that that act was assented to by the legislature of Virginia, as required by the 8th article of compact of 1785 between the two States; for without such assent that act is of no effect.  

COUNSEL:
Robert S. Reeder, State's Attorney for Charles county, argued for the State:

1st. By the charter of Maryland the Potomac river to its mouth belonged originally to Maryland, and by the charter of Virginia the Chesapeake bay from its mouth to the mouth of the Potomac belonged originally to Virginia. The compact of 1785 gave a right in common to both States to both the river and the bay, (2 Bland, 123, Binney's case; Vattel's Law of Notions, Book 1st, ch. 22,) and hence, from these authorities, the river and bay [**2]  being owned in common by the two States out to the ocean, the fish within the river and bay for the time being, although beneath the surface of the waters, could not be considered creatures ferae naturae, because they are in a common pond. Whart. Cr. Law, 391. 2 Bl. Com., 7. 1 Stephen's Com., 149, 157, 158.

2nd. By the compact of 1785 commerce and fishing were made common to both States. The question of commerce is transferred to the jurisdiction of the United States by the adoption of the constitution of the United States. 9 Wheat., 1, Gibbons vs. Ogden. Holcombe's Digest, 205. The right of fishing remains in common as at first, unaffected by the adoption of the constitution of the United States.

3rd. The compact in this case is a law. 2 Pet., 255, Foster, et al., vs. Neilson. 6 Do., 691, United States vs. Arredondo, et al. 12 Do., 511, Garcia vs. Lee. By the terms of the 7th section of this law, the right of fishing on the river shall "be common to and equally enjoyed by the citizens of both States, provided that such common right be not exercised by the citizens of one State to the hindrance or disturbance of the fisheries on the shores of the other State; and that the [**3]  citizens of neither State shall have a right to fish with nets or seines on the shores of the other." The act of 1845 refers exclusively to nets which are not laid from or landed upon the shore of the Potomac and its tributaries, and therefore is not in conflict with this part of the compact. The question then arises, is it in conflict with that portion of the 8th section of the compact which says, "all laws and regulations which may be necessary for the preservation of fish shall be made with the mutual consent and approbation of both States?" For the power of the State government to pass laws to protect the fisheries as a police regulation, see the numerous cases in Metcalf & Perk. Digest, 425 to 428. In navigable rivers the fishery is common to all the subjects under the regulations of government. 5 Pick., 199, Commonwealth vs. Chapin. 5 Mass., 266, Burnham vs. Webster.

4th. Under the compact I should suppose either State could enact a police regulation by which the fish should be protected, provided it does not interfere with the rights of the other; and if a law is passed either with the provisions annexed and tacitly acquiesced in by the other it is consent, and certainly,  [**4]  I should think, a stranger has no right to obtrude himself into the construction or execution of this compact, for it does not appear from the face of the indictment that the defendant is either a citizen of Maryland or Virginia, and neither Virginia nor one of Virginia's citizens has complained. Metcalf & Perk. Digest, 534. In Brien vs. Elliott, 2 Penn. Rep., 49, I find this language: "The basis of this compact is an admission that the jurisdiction of the territory shall be taken to have been in common," and in the same opinion it is said: "Both States have a power to regulate questions of title to the soil." The right of fishery in this case is common, and neither Virginia nor one of her citizens objects, and that Maryland could control her own citizens, see the authorities cited upon the third point.

No counsel appeared for the defendant in error.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*30]  TUCK, J., delivered the opinion of this court.
The defendant in error was indicted for fishing with gill nets in the Potomac river, contrary to the act of 1845, ch. 148. Upon general demurrer to the indictment judgment was rendered against [**5]  the State.
The question for decision is, whether it was necessary to aver and show upon the trial that the legislature of Virginia had assented to our act of Assembly.
The eighth article of the compact between the States, recited in the act of 1785, ch. 1, declares, that "all laws and regulations  [*31]  which may be necessary for the preservation of fish in the river Potomac shall be made with the mutual consent and approbation of both States." It follows that our act of 1845 could have no operation until assented to as required by the compact. And, as the court must take notice of the compact, as well as the act of 1845, the indictment was defective, in not informing the court that the assent of Virginia, of which they had no judicial knowledge, had been obtained.
Judgment affirmed. 

26 of 37 DOCUMENTS 

JAMES MANLY vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 135; 1854 Md. LEXIS 92 

DECEMBER, 1854, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore city.

The plaintiff in error was indicted at the May term 1851 of Baltimore city court for an assault, with intent to kill and murder one George Konig, and the indictment contained also a second count for a simple assault and battery upon the same party, at the same time.

On the 10th of July 1851, at the same term and before the same court, the prisoner made a suggestion and affidavit for the removal of his case for trial. The record then states, that afterwards, at the May term 1853 of the Criminal Court of Baltimore, to which the said indictment had been transferred under and by virtue of the new constitution, the prisoner asked leave to withdraw his suggestion and affidavit aforesaid, which the court, (STUMP, J.,) granted.

The case was then, upon the suggestion and affidavit of the prisoner, that a material witness on his part was absent, continued to the September term of said court, when it was tried and the jury rendered a general verdict, as shown by the record, that the prisoner "is guilty of the premises aforesaid, in the indictment aforesaid above specified, and laid to his charge in manner and form as by the said indictment [**2]  is above charged upon him."

The prisoner then moved for a new trial, upon several grounds, which need not be stated. He also moved in arrest of judgment:--1st. Because the whole matter was coram non judice, there being in view of the law no indictment in this court against the said Manly. 2nd. Because the verdict is uncertain: the indictment containing one count for a penitentiary offence, and another for the common law offence of assault and battery, requiring punishments different in degree and kind, and the court, under a general verdict in such a case, can render judgment upon neither.

The court overruled both these motions, and sentenced the prisoner to confinement in the penitentiary until the 26th of October 1859. To correct this judgment, the prisoner sued out a writ of error from the Superior Court of Baltimore city.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Prior to the adoption of the present constitution a party convicted of a misdemeanor was entitled to a writ of error ex debito justitiae, and the convention did not intend to, nor does the constitution, deprive the people of the State of the benefit of this process.

The constitution gives to the judges of the circuit courts "all the power, authority and jurisdiction" the court of chancery then possessed, and as the chancellor had the power to issue writs of error, the constitution devolves the same power upon the circuit judges for the counties.

Though the same comprehensive language is not used by the constitution in creating the Superior Court for Baltimore city, yet this writ having always belonged to the applicant as matter of right, and the framers of the constitution having no intention to impair this right in any degree, the judge of that court has the same power to issue it as the judges of the circuit courts.

The constitution is not to be interpreted according to the words used in particular clauses; the whole must be considered to ascertain the sense in which the words were used, and they must be taken in their common acceptation, in which they are presumed to have been understood by the framers and the people who adopted it.

The constitution, unlike acts of the legislature, owes its whole force and authority to its ratification by the people, who judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal and technical sense.

In granting equity jurisdiction to the Superior Court, the constitution intended to secure to the people of Baltimore the same rights, and as fully in all respects, as by other clauses it gave the rest of the State in reference to the powers of equity courts.

A suggestion and affidavit by a prisoner for the removal of his case does not oust the jurisdiction of the court where the indictment is found, but the case remains pending there until the order for removal is passed, and at any time before this is done the prisoner has the right to withdraw his suggestion.

An indictment contained two counts, both relating to the same transaction, one charging the traverser with an assault with intent to kill, and the other with a simple assault and battery, and the jury rendered a general verdict of guilty. HELD:

This verdict was in effect a finding as to both counts, and the higher offence of the assault with intent to kill merged the simple assault and dispensed with a finding of non cul. as to that count, and judgment for the higher offence was properly passed.

The offence of an assault with intent to kill and murder is defined and prohibited by the act of 1809, ch. 138, by which a severer punishment is prescribed than at common law.

It is a common practice to insert several counts, stating the occurrence in different terms, but as it is liable to abuse, the prisoner may, when the nature of the case will permit, require the prosecutor to elect on which count or counts he will proceed, and in some cases he may demur.

Where general verdicts are rendered in such cases, the general practice in England and in this country has been to pass judgment according to the count charging the highest grade of offence.

It is the settled law of this State, that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient if one is good, though all the rest are bad.  

COUNSEL:
T. Yates Walsh for the plaintiff in error, argued:

1st. That the writ of error in this case properly issued from the Superior Court of Baltimore city. It is impossible, at this day, precisely to trace the origin of the practice of applying to the chancellor for writs of error to the common law courts. Some lawyers falling [**3]  into the mistake that the writ in Maryland is a prerogative writ emanating from the sovereign, believed, as a matter of course, it should be authenticated by the sovereign's seal, which, by positive enactment, was placed in the custody of the chancery court. A more probable origin of the practice may be found in the fact, that in the earlier days of Maryland all her law courts of record were common law tribunals, and it would have been invidious and impolitic to have allowed a process in the nature of a positive command, to be issued by one of them to another, its equal in dignity and power. The lawyers of that period, while disdaining the idea of prerogative, may have seen in this state of the case the propriety of a resort to the great principle of equity, that its jurisdiction will furnish a remedy whenever law is inadequate to do so. Indeed it may be well doubted, whether under a fair construction of the statute passed in the 12th year of queen Anne, an invocation of this principle was necessary. It may be well suggested, that the course marked out by the 5th section of that act, did dispense with the necessity of making any application, save to the clerk of the court, by which [**4]  the judgment had been pronounced. But this inquiry is immaterial. For a long series of years a writ of error has been considered as a proper emanation from the chancery court. And accordingly this Court of Appeals has held, that writs of error issued by the county circuit courts, sitting in equity, to their law side, are in all respects legal. And this because they have, under the new constitution, all the rights, powers and authority possessed by the court of chancery. I have already said that this is not a prerogative writ. A party is entitled to it ex debito justitiae; so the Court of Appeals have decided more than once. See the case of Anderson vs. The State, 5 H. & J., 174, and Buchanan's case, Ibid., 362. It would be a reflection upon the framers of our organic law, which I am unwilling to cast, to intimate that they secured this writ of right to the people of the counties, and at the same time disfranchised the metropolis of their State with its two hundred thousand inhabitants. It will be observed that the argument of the State's attorney comes to this result. He waives the inquiry as to the power of the Chancery Court, under its prolonged existence, by virtue of the constitution,  [**5]  and insists, that the Superior Court for Baltimore city cannot, at this day, issue such a process as is now before this court. I do not perceive the force of the suggestion, that Baltimore county court, sitting as a court of equity, did not possess coordinate powers with chancery in relation to writs of error. We are called upon to give a fair and just construction to that constitution which destroyed the tribunal, where all concede the right rested. Did the professional men, assembled in grave and deliberate council, intend, not only to break down the court, but also the law? Were they such architects of ruin? Did they not rather mean to distribute the powers exercised under a general jurisdiction, among the local courts as more adequate to further the purposes of justice? The clause in the constitution relating to the circuit courts, to be sure, declares, that the judges thereof shall have and exercise, in their respective circuits, all the power, authority and jurisdiction of the present Court of Chancery; while that providing for the Superior Court declares, that it shall have equity jurisdiction within the limits of the city, and jurisdiction in all other civil cases not assigned [**6]  to the Court of Common Pleas. Now if the proposition, that this is a common law writ, be correct, here is a common law court with the amplest powers. It is indeed a mistake to suppose that the Criminal Court is not inferior in power and authority to the Superior Court for Baltimore city. It is a mistake to argue that the Criminal Court is a common law court at all. It has a special jurisdiction marked out by particular laws, which, in effect, are adopted by the new constitution. The Superior Court, on the contrary, is the depository of all the common law powers and authority which originally belonged to the King's Bench in England, in addition to the particular authority given by the law of its creation. By the provisions of the constitution, the chancery court was prohibited from entertaining jurisdiction over new cases. To issue a writ of error was the business of the chancery court, whether as an act of law or of equity, is immaterial. If such business had been transacted after the 4th of July 1851, it would have been a violation of the constitutional enactment. I submit, then, that this writ of error is proper and regular, and should not be quashed.

2nd. Upon the first reason [**7]  for the motion in arrest, viz., that the whole matter was coram non judice, I have this to suggest: The indictment against Manly was found at May term 1851, and on the 10th of July in that term, he filed his suggestion and affidavit for removal. All these proceedings took place in Baltimore city court. Under the constitution, had the Criminal Court jurisdiction to try cases that had originated in the time of its predecessor? and if so, was this in contemplation of law a pending case? The very moment the affidavit and suggestion were filed, the whole matter became coram non judice, except for the purpose of removal. If the record once got into the hands of the clerk of the court to which it was removed, what act of Assembly gave the power to remand it to the City court? The City court ceased to have jurisdiction the instant the suggestion was filed, and having no jurisdiction over this case, it could not be transferred to the Criminal Court; the subsequent withdrawal of the suggestion did not restore the jurisdiction.

3rd. As to the form of the verdict: The indictment contained two counts; the first for the penitentiary offence created by the statute of 1809, ch. 138, and the second [**8]  for the common law misdemeanor, and it is conceded these two counts are meant as descriptions of the same transaction. The first charges an assault with malice, and the other an assault without malice. It is a mistake to say that an assault with intent to kill is simply an assault and battery; it is an assault and battery with aggravating circumstances, but these circumstances constitute the statutory offence. 3 G. & J., 10, State vs. Dent. Now I cannot understand how an assault without malice can be part and parcel of an assault with malice. The circumstances surrounding the act must make the offence one or the other. The jury, therefore, in this case have in one breath declared the traverser guilty of the penitentiary crime, and in the next not guilty of that but guilty of an inferior one. These general verdicts were for a series of years sustained upon the ground, that whenever there were good counts and bad counts, or inconsistent counts, upon which a general verdict was rendered, the court would apply the verdict to such counts as were proper under the law and sustained by their view of the evidence. But this doctrine was discovered, in O'Connell's case, 11 Clark & Finnelly, 155,  [**9]  to be an invasion of the province of the jury and repudiated. It is a concession that the jury is to judge of the evidence, and yet the court was to be authorised to pass judgments upon counts which the jury might have believed there was no evidence to sustain. It is believed that the case of State vs. Sutton, 4 Gill, 494, sustains the decision in O'Connell's case. The subsequent case of Queen vs. Gompertz, 58 Eng. C. L. Rep., 823, is supposed to be in conflict with O'Connell's case, but it will be observed that is not a case of inconsistent findings, and the court say the evidence proved all the counts. In the case of Campbell vs. The Queen, 63 Eng. C. L. Rep., 799, the several counts called for the same sort of punishment, and Lord Denman there expressly approves of O'Connell's case, and says that a verdict "bad for uncertainty when delivered, cannot be made good by the court choosing to apply it as they may think fit." The American authorities are also in accordance with this view of the case. In 2 McCord, 258, State vs. Montague, it was held, that a general verdict of guilty, where the indictment contained two counts charging different offences for which the law prescribed different [**10]  punishments, was bad for uncertainty. This position is sustained in 1 Water. Arch., 175--1, and the citations there made from Chitty. If the verdict contains inconsistent and contradictory findings, it is bad. 1 Mason, 170, Stearns vs. Barrett. See also 3 Grattan, 615, Clere's case. 1 Strobhart, 455, State vs. Anderson. 1 Spencer, 404, Stone vs. The State. A general verdict may be right where there is no inconsistency in the findings, and that is all that the cases cited on the other side establish. But here the jury say the traverser is guilty of the penitentiary offence, and then that he is guilty of the common law misdemeanor. Now for these offences different punishments are prescribed, and how is the court to determine which to inflict? It is submitted, that if the court can punish at all in such a case, they must sentence for the lesser offence. 2 Strobhart, 12, State vs. Thompson.

But again, looking to the grammatical construction of the language of the verdict, it is a verdict upon the second count only in the indictment. The terms, "Guilty of the premises aforesaid," point to the last antecedent as the premises meant, which is the second count in the indictment. The terms,  [**11]  "in the indictment aforesaid specified," are also gratified by reference to the second count, and the verdict therefore is precisely in meaning as if the jury had said, "Guilty upon the aforesaid second count in the aforesaid indictment contained." See 1 Moody & Robinson, 177, and 1 Russell & Ryan, 531.

Charles J. M. Gwinn, State's Attorney for Baltimore city, for the State, argued:

1st. That the case was properly before the Criminal Court of Baltimore city at the time of the trial. The constitution gives to it all the jurisdiction of the old city court, and it therefore clearly had jurisdiction if the case was pending in the City Court at the time of the adoption of the constitution. Can there be a doubt that it was so pending? There was no order passed for its removal from that court, and the suggestion and affidavit for removal were withdrawn by the prisoner who made them. There is no power to prevent his doing this; the provision for removal was made for the benefit of the prisoner; suppose he had filed an imperfect suggestion, he would clearly have the right to withdraw it and file a new one.

2nd. That the writ of error should be quashed. On this point the learned [**12]  counsel argued, that under the charter of Maryland, sec. 4, the lord proprietor had the rights of the bishop of Durham. That he had his chancellor as early as 1692, with a right in that officer to issue writs of error. That this palatinate right to a chancellorship existed to the date of the constitution of 1776, and that the chancellor, under the constitution, had all the powers of the chancellor of the bishopric of Durham, and that this right to issue writs of error was in him alone and his powers were entire and undivided. A writ of error, therefore, is a prerogative common law writ, issued by the chancellor, not by virtue of any equity jurisdiction vested in him, but as the depository of a portion of the supreme power of the State, after the manner that this officer represents the king at common law. Now my argument is, that if the present circuit courts of the State have the power to issue writs of error, the county courts had the same power prior to the adoption of the present constitution: for the act of 1815, ch. 163, gives to the county courts all the power, authority and jurisdiction of the chancellor, in precisely the same terms that the 8th sec. of the 4th art. of the constitution [**13]  gives all the power, authority and jurisdiction of the court of chancery to the circuit courts. The two grants are in totidem verbis, and yet it was never imagined that the old county courts had power to issue writs of error, because it is no part of equity jurisdiction whatever, but was a power exercised by the chancellor because he possessed the prerogative of the State to see that the courts did not exceed their jurisdiction, and this power is indivisible. But at any rate, it is clear that the Superior Court of Baltimore city has no such power, for the 11th sec. of the 4th art. of the constitution, creating this court, confers upon it equity jurisdiction only within the limits of the city. No act of Assembly can give to it jurisdiction larger than that given by the constitution, and the act, therefore, of 1852, ch. 16, sec. 1, conferring upon it chancery powers, is unconstitutional and void. 5 Md. Rep., 337, State vs. Mace.

3rd. The general verdict in this case was well taken. The first count is only the second count stated with the statutory aggravation. The act of 1809, ch. 138, does not create a new offence in making assaults with intent to kill punishable by confinement [**14]  in the penitentiary. Arch. Pl. & Ev., 194. The circumstance of aggravation is only a guide to the punishment. The indictment for an assault with intent to kill, is but an indictment for an assault and battery. 3 G. & J., 11, State vs. Dent. The offence is the same, the only difference being, that if aggravating circumstances are alleged and proved, the statute makes the punishment severer, but the offence does not cease to be an assault because the intent to kill is added. An indictment may well set out counts on which the punishment is different, and a general verdict of guilty is good, and the judgment is good if it correspond with the count affixing the greatest punishment. 1 East's Pleas of the Crown, 408, Rex vs. Lord Thanet. 1 Starkie's Crim. Pl., 342. Wharton, 864, 865. 4 East, 179, King vs. Darley. 1 Wood. & Minot, 305, United States vs. Peterson. 3 Do., 166, United States vs. Stetson. 5 Wheat., 184, 201, United States vs. Pirates. 20 Ohio, 28, Wilson vs. The State. 14 Sme. & Mar., 124, Wash vs. The State. 2 Bailey, 73, State vs. Crank. 10 Geo. Rep., 60, Bulloch vs. The State. 11 Metcalf, 575, Crowley vs. The Commonwealth. Ibid., 581, Kite vs. The Commonwealth. 2 H. & J., 429,  [**15]  Burk vs. The State. It is well settled in this country, that if there be one good count in an indictment, the general verdict of guilty will be referred to that count which is good, although others are defective. 3 Strobhart, 508, State vs. Brown. 8 B. Monroe, 30, Parker vs. The Commonwealth. 18 Ala. Rep., 547, Shaw vs. The State. 3 McLean, 410, United States vs. Burroughs. 7 Iredell, 275, State vs. Miller. 3 Brevard, 416, Poole vs. The State. 12 Verm., 300, State vs. Davidson. 3 Scammon, 328, Townsend vs. The People. 2 McMullan, 399, State vs. Turner. 2 H. & J., 429, Burk vs. The State. Any inferences to be drawn from O'Connell's Case, 11, Clark & Finnelly, 155, are rebutted by the subsequent cases of Queen vs. Gompertz, 58 Eng. C. L. Rep., 823, and Campbell vs. The Queen, 63 Do., 799, which are directly inconsistent with it. If when one count is bad the judgment on a general verdict is to be referred to the good counts, ought not the judgment where all the counts are good, to be referred after general verdict to that count which carries with it the gravest punishment.

The question whether the verdict relates to the first or second count can be thus settled. If it relates to [**16]  the second the prisoner can be tried again on the first. If the State had so proceeded to try him, could he not have pleaded autre fois convict, and would not the verdict rendered in this case have sustained this plea? It being conceded, that the two counts described the same act, the word "aforesaid" can be properly referred to every count which describes the act in its most general statement in the indictment. Nor do I see how the verdict could be stated clearer than it is. The usual form has been followed, (2 Ev. Har., 209,) and the verdict and the form of the judgment stand upon the long settled practice of the State, and are both in strict conformity with exact technical law.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and MASON, J.  

OPINIONBY:
TUCK 

OPINION:

 [*145]  TUCK, J., delivered the opinion of this court.
The present indictment was found in Baltimore city court at May term 1851. The traverser filed a suggestion and affidavit for the removal of the record to an adjoining county. Afterwards, at May term 1853, of the Criminal Court of Baltimore, "the indictment," (as we are informed by the record,) "having been transferred under and by virtue of the new constitution,"  [**17]  to that court, he obtained leave to withdraw his suggestion and affidavit, and having pleaded not guilty, was convicted and sentenced to the penitentiary.
The first question arises, on the motion on the part of the State to quash the writ of error, on the ground that the Superior Court of Baltimore city had no authority to issue it.
Prior to the adoption of the present constitution, a party convicted of a misdemeanor was, ex debito justitiae, entitled to prosecute a writ of error. Anderson vs. State, 5 H. & J., 174. We have no idea that the Convention intended to deprive the people of the State, of the benefit of this process, nor do we think that by any reasonable interpretation of the constitution, such a purpose can be deduced. The chancery court was abolished, but the system of equity jurisprudence was no otherwise disturbed, than by transferring the jurisdiction to other courts. As to the circuit courts for the counties this was done in the most ample manner. Not content with devolving upon these courts all the powers, authority and  [*146]  jurisdiction which the county courts then exercised, the constitution expressly declares, that the "judges in their [**18]  respective circuits shall have and exercise all the power, authority and jurisdiction of the present court of chancery." By the act of 1815, ch. 163, the county courts had equity jurisdiction conferred upon them in the most comprehensive terms, but it seems that they were never considered as having had authority to issue writs of error. If the Convention intended to restrict the circuit courts to the exercise of powers before possessed by the county courts, the first grant of jurisdiction, by the eighth section of the fourth article, would appear to have been sufficient for the purpose, and the assignment to the judges of the same powers that belonged to the chancery court would have been unnecessary, unless their design was to charge them with functions before exercised by the chancellor, and not previously conferred on the county courts "or their judges." As the chancellor had this power, it is manifest that the constitution has devolved it upon the circuit judges for the counties.
But the argument is, that the eleventh section of the judiciary article, by which the superior court for Baltimore city was created, only confers "equity jurisdiction" within the limits of that city;  [**19]  and that as the right to grant this writ was no part of the chancellor's equity jurisdiction, but was vested in him as the depository of a portion of the supreme power, after the manner that this officer represented the king, at common law, it does not appertain to the judge of the Superior Court, as a portion of his equity jurisdiction. It is unnecessary to inquire into the origin and nature of this writ. It is enough for us to know that it has always been considered in this State, as belonging to the applicant as matter of right; and, believing, as we have said, that the framers of the constitution had no intention to impair it in any degree, we are clear in the opinion, that the judge of the Superior Court possessed the power equally with the judges of the circuit courts.
It is true that the same comprehensive language is not  [*147]  employed as to both these courts. But constitutions are not to be interpreted according to the words used in particular clauses. The whole must be considered, with a view to ascertain the sense in which the words were employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood [**20]  by the framers and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent on its face, according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense. State vs. Mace, 5 Md. 337.
Applying this mode of construction, it ought not to be doubted that the constitution, in granting equity jurisdiction to the Superior Court, intended to secure to the people of Baltimore the same rights, and as fully, in all respects, as by other clauses it extended to the rest of the State, in reference to the powers of the courts clothed with equity jurisdiction. If, by these other clauses, the writ of error may be claimed elsewhere, it would be unjust to the city of Baltimore, by a strict construction of these words, to deny the same power to the only court then administering equity jurisprudence within her limits. Believing that, under the constitution, the writ was not improvidently issued, it is unnecessary to express any opinion upon [**21]  the act of 1852, ch. 16.
Two questions arise under the motion in arrest of judgment. 1st. As to the jurisdiction of the Criminal Court. 2nd. As to the form of the verdict.
1st. The point, on the part of the traverser, is, that, after the suggestion and affidavit for removal of the record, the Baltimore city court ceased to have jurisdiction, and could transfer none to the Criminal Court, and that the subsequent withdrawal of the suggestion did not restore the jurisdiction. We are of opinion that the jurisdiction was not ousted by the suggestion and affidavit. It does not appear that any order  [*148]  was passed, and until then, the indictment remained pending in the City Court. Indeed we cannot say but that the court would have deemed the suggestion insufficient, or for some other reason have refused to remove the record.
The case being before the Criminal Court, under the constitution, the question is, whether the accused had the right to withdraw his suggestion? We think he had this right, in either court, before the order for removal was passed. The constitution authorizes the change of venue for the benefit of the party making the application. Circumstances may arise, in [**22]  the progress of the cause, to render this resort unnecessary. The objection, with the party, may be to the judge, the jury, or the sheriff. ( State vs. Dashiell, 6 H. & J. 268.) If, in consequence of a change in these, the ground for the removal no longer exists, we perceive no reason against the party's submitting the case to the court, in which the suggestion may have been made. On the contrary, convenience as well as justice, might often be promoted by this course.
2nd. As to the alleged error in rendering the verdict. Each of the counts in this indictment is sufficient, and standing alone, would have authorised a judgment against the party if found guilty. It is manifest that the two counts, though alleging offences of different degrees, relate to the same transaction. The one set out in the first count "is defined and prohibited" by the act of 1809, ch. 138, (3 Gill & Johns. 8, State vs. Dent,) by which a severer punishment is prescribed than at common law. This was necessary in order to bring the case within that act, with which the count for assault and battery might well be joined. It is quite common to insert several counts, stating the occurrence [**23]  in different terms, that the indictment may, at the trial, correspond with the proof, for the State cannot always know what the evidence will be. This mode of pleading apprises the prisoner of the accusation in more precise language, and, at the same time, aids the jury in finding their verdict. But, as it is liable to abuse, the law allows the prisoner, where the nature of the case will permit, to require the prosecutor to  [*149]  elect on which count or counts he will proceed, and in some cases he may demur. The general practice in England and in this country, with very few exceptions, has been to pass judgment on general verdicts in these cases, according to the count charging the highest grade of offence. And even where some of the counts are good and others bad, the practice has been to pass judgment on those which are good. This doctrine does not appear to have been questioned, until the case of O'Connell & al., vs. The Queen, 11 Clark & Finnelly 155. If the law had been so understood in this State, before that judgment, it could not change it, and that such was the practice we have no doubt. The elementary writers, as well as reports, show this. In Burk vs. State,  [**24]   2 H. & J. 426, Judge Buchanan said, "There is no principle better established than that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient if one is good, although all the rest are bad." The judgment, on rendering which this opinion was delivered, was affirmed, and, we believe, has ever since been considered as the law of this State. 1 Ch. Cr. Law 249, 640. Starkie's Cr. Pl., 378, ch. 20. Rex vs. Lord Thanet, East's Cr. Law, ch. 8, folio 408. Regina vs. Ingram, 1 Salk. 384.  1 B. & P. 185. 2 Lord Raymond 886. Cowp., 276. Arch. Cr. Pl., 175. Wheat. Cr. Law, 618. 1 Spencer 408.  2 Strobhart 17. 10 Ga. 60. There are decisions the other way, but we think that the weight of authority is greatly in favor of the practice pursued in this case. This branch of criminal jurisprudence was examined and discussed in 1 Woodbury & Minot 305, where many cases are collected and arranged, to which we refer without citing them here.
It may be observed in reference to O'Connell's case, that the judgment was pronounced by Lords Cottenham and Campbell,  [**25]  against Lords Lyndhurst and Brougham, the latter sustained in the most direct terms by all the judges, whose opinions had been required, except Parke & Coltman. It was not questioned, that this had always been the practice, but its correctness upon principle was denied.
 [*150]  The counsel for the plaintiff in error contends, that, whatever the doctrine may be as to other cases, it cannot apply to an indictment like the present, because there is a manifest incongruity between the counts, one charging an assault with and the other without malice, and that the general verdict is necessarily repugnant. We think the inconsistency would be more apparent if the jury had found guilty on the first, but not guilty on the second count, because, as they relate to the same transaction, that finding would affirm, in one breath, that the party had committed an assault with intent to murder, and in the next, that he had committed no assault at all. We must presume that the jury understood the issues they were to try, and the consequences of their verdict, and that if they had intended to have acquitted the party of the intent charged, they would have said so.  10 Ga. 60. [**26]  In this case two offences, growing out of the same transaction, are connected together. One merged the other. No evidence could have been admissible on the second count that was not applicable to the other, which meets the argument of the counsel as to the confusion that might occur at the trial.  4 H. & J. 432. The case is unlike State vs. Sutton, 4 Gill 494, where the party was convicted of the minor offence, and the court held that the verdict should have been rendered on all the issues. Where a general verdict is rendered, it is in effect or finding as to all the counts. On an indictment like the one before us, the jury must, where the party is guilty on either count, find the assault to have been committed, and if guilty of an assault with the intent charged, he is necessarily guilty on both counts. So on an indictment containing counts for robbery, and an assault with intent to rob, the crime is made by the law of a higher grade by the consummation of the illegal intent. If the accused be convicted of the actual robbery, how could the jury with any consistency say that he was not guilty of the intent to rob? It appears to us that in such cases, where all [**27]  the counts relate to, and are but various statements of the same occurrence, the general verdict establishes that all the circumstances exist that are  [*151]  embraced in either charge. The higher crime necessarily merges the inferior offence, and dispenses with a finding of non cul, as to that count.
Judgment affirmed. 

27 of 37 DOCUMENTS 

JOSEPH DUNCAN vs. THE MARYLAND SAVINGS INSTITUTION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 G. & J. 299; 1838 Md. LEXIS 31 

December, 1838, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court.

This was an action of assumpsit, brought on the 22nd August 1834, by the Maryland Savings Institution against Joseph Duncan. Issue was joined on the plea of non assumpsit.

1st Exception. The plaintiffs to support the issue on their part offered in evidence the charter granted them by the General Assembly of Maryland, with the bye laws which they had enacted under the same, and also the supplement thereto, and the following promissory note, admitted to have been made and delivered to them by the defendant, viz:

"Baltimore, July 3rd 1833.

"Six months after date I promise to pay the Maryland Savings Institution one hundred and fifty dollars for value received, for the prompt payment of which sum I hereby pledge 16 shares of stock standing in my name on the books of said institution.

Joseph Duncan."

$ 150.

The defendant then proved that, the said note was made and delivered by him to the plaintiffs, to obtain thereon from them, the loan of the sum of money expressed upon its face for the period of time therein mentioned, and that the plaintiffs did, on the day of the date of said note, make a loan thereon to him of [**2]  the said sum for that period, and for interest upon said loan did deduct from the face of said note, on the day on which said loan was made, the sum of $ 4.60, which was admitted, for the purposes of this prayer, to be the interest legally chargeable at the expiration of six months, and three days of grace for the forbearance of one hundred and fifty dollars for that length of time. And thereupon the defendant prayed the court to instruct the jury, that although they may believe that, he made and delivered to the plaintiffs the promissory note which they have given in evidence, yet if they shall also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant, upon the day on which said money was loaned, the sum of four dollars and sixty cents, as and for interest upon the sum so loaned them, that the plaintiffs are not entitled to recover, because such exaction and taking of interest in advance, upon the loan of money on a note not negotiable, was corrupt and usurious, and avoids the contract of loan, which instruction the court [MAGRUDER and PURVIANCE, A. J.,] refused; but directed the jury, that [**3]  the said exaction and taking of interest was not usurious. To which refusal the defendant excepted.

2nd Exception. The plaintiffs having offered the evidence already given in the first exception, the defendant in addition to the evidence already given by him in said exception proved by Rowlett's interest tables, that the interest of one hundred and fifty dollars for six months and three days, the time contained in said note, was four dollars and fifty-eight cents.

And thereupon, the defendant prayed the court to instruct the jury that, although they may believe that, the defendant made and delivered to the plaintiffs the promissory note, which they have given in evidence, yet, if they shall also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant, the sum of four dollars and sixty cents, as and for interest upon the sum so loaned by them, then that the plaintiffs are not entitled to recover, because such exaction and taking of said sum for interest, was corrupt and usurious, and avoids the contract of loan. The court refused the instruction, and directed the jury, that the said exaction [**4]  and taking of interest, was not in itself usurious. The defendant excepted.

3rd Exception. The plaintiffs having offered the evidence already given in the foregoing bills of exception, the defendant proved that, the said note was a renewal of one dated the 3rd October 1831, and payable 60 days after date for $ 150, which was made and delivered by him to the plaintiffs, and which was in the words and figures following to wit:

"$ 150.00.     Baltimore, 3rd October 1831.

Sixty days after date I promise to pay to the Maryland Savings Institution one hundred and fifty dollars, for value received.

Joseph Duncan."

And further offered in evidence that, the said note of the 3rd of October 1831, was made and delivered by him to the plaintiffs, to obtain thereon a loan of the sum of money expressed upon its face for the period of time therein mentioned, and that said loan was on the 4th October 1831 granted to defendant by the plaintiffs, and that for interest upon said loan the said plaintiffs did deduct from the face of said note, on the day on which said loan was made, the sum of one dollar and sixty cents, and further offered in evidence by Rowlett's interest tables,  [**5]  that the interest of one hundred and fifty dollars, from the 4th October 1831 to the 5th December 1831, reckoning both days inclusive, was one dollars and fifty-eight cents.

And thereupon the defendant prayed the court to instruct the jury, that although they may believe he made and delivered to the plaintiffs the promissory note which they have given in evidence, yet, if they also believe the facts offered in evidence by him, and shall further believe that, the plaintiffs did intentionally exact and take from the defendant the sum of one dollar and sixty cents, as and for interest upon the sum so loaned by them, then that the plaintiffs are not entitled to recover, because such exaction and taking was corrupt and usurious, and avoids the contract of loan. The court refused the instructions, but directed the jury, that such exaction and taking of interest, was not usurious. The defendant excepted.

4th Exception. The plaintiffs having offered the evidence already given by them in the foregoing exceptions, the defendant proved, that the said note was so made and delivered, with a view to have the same discounted by the plaintiffs, and that the plaintiffs did discount it for [**6]  the defendant; thereupon the defendant prayed the court to instruct the jury, that if they believe the above facts, then, although they may believe that the defendant made and delivered to the plaintiffs the promissory note which they have given in evidence, that the plaintiffs are not entitled to recover, because their charter prohibits their discounting promissory notes; but the court by consent of counsel refused pro forma to give the instruction, and directed the jury, by consent of counsel and pro forma, that the plaintiffs had power to invest their funds, and as a mode of investment, were authorised to discount promissory notes by their charter. The defendant excepted.

5th Exception. The plaintiffs offered the evidence on their part stated in the foregoing bills of exceptions; whereupon the defendant proved that, the said note was made and delivered to the plaintiffs with intent to obtain from the plaintiffs a loan of the money therein expressed, upon a pledge of sixteen shares of their own stock standing upon their books in the name of the defendant, and that the plaintiffs did make said loan accordingly; and thereupon the defendant prayed the court to instruct the jury,  [**7]  that although they may believe that, the defendant made and delivered to the plaintiffs the promissory note which they have given in evidence, yet, if they shall also believe the evidence offered by the defendant in this bill of exceptions, then that the plaintiffs are not entitled to recover, because their charter does not authorise them to loan upon a pledge of their own stock. The court refused the instruction; and directed the jury, that the plaintiffs had such authority. The defendant excepted, and the verdict and judgment being against him, he brought the present appeal.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

A charter conferring on a Savings Institution the power to invest deposits made with it in public stocks, or other securities, authorises the lending upon bills, bonds, notes, and mortgages, as well as stocks, and also the power of making loans by way of discount.

The incorporation of Savings or other institutions in the city or precincts of Baltimore, with authority to receive deposits and discount paper, is no violation of the pledge of the State given to the Banks of Baltimore, by the act of 1813, ch. 122, and 1831, ch. 131; the true interpretation of that engagement being, that no charter of incorporation should be granted within those limits during the specified period, with power to issue negotiable notes.

There is nothing in the charter of the Maryland Savings Institution which requires two securities to be taken for money lent, nor is it an objection to a note discounted there, that it is not negotiable. A promissory note in which the negotiable words are omitted, is within the Statute of Ann, and on it three days of grace are allowed according to mercantile usage.

It is not usurious in a bank to receive interest in advance upon notes discounted by it, and by the act of 1832, ch. 152, all other corporate bodies, and all citizens and residents of this State, are placed in this respect upon the same footing with the banks.

Usury does not consist in merely intentionally taking a larger amount of interest than is allowed by law, but there must be superadded to such intent, a corrupt design to charge more than the legal rate,--and that is a matter of fact to be submitted to the jury.

But the court did right in withholding the question from the jury, where the amount charged was only two cents more than the legal rate of interest, that circumstance standing alone being too trifling and inconclusive to warrant the jury in finding a corrupt and usurious intention.  

COUNSEL:
J. Mason Campbell for the appellant.

All the bills except the fourth show, that the defendant's prayers were rejected, and in that one it appears that the direction he asked for was refused by consent.

The 1st, 2nd, and 3rd prayers raise questions on the usury laws. The 4th and 5th present points, as to the corporate powers of the plaintiffs.

In proceeding to discuss the exceptions, I cannot refrain from premising, that I fear (an apprehension warranted by the past) of some attempt to prejudice my client in the eyes of the court, grounded on the character of his defences. Let a [**8]  single sentence be my answer. I never would have taken those defences except in support of merits otherwise defenceless; and should the reply be, that my assertion is no proof, the court will take notice that it is opposed only to a counter assertion of demerits; the record being studiously barred of every fact except those absolutely necessary to a legal decision.

The first three questions, are questions of usury, and as preliminary to their presentation, it is proper that I should say, such a defence is admissible under the general issue. Fulton Bank vs. Stafford, 2 Wendell, 486, and the cases there cited.

The first exception raises the point--Whether it is not usury to take interest in advance on the discounting of a note not negotiable?

The facts show that the discount was taken in advance, and that the note was not negotiable.

The authorities indisputably support the affirmative.--New York Firemen's Insurance Company vs. Ely, 2 Cow. 703, 704. Bank of Utica vs. Wagner, 2 Cowen, 769. Utica Insurance Company vs. Bloodgood, 4 Wendell, 655. Thornton vs. Bank of Washington, 3 Peters, 40. State Bank vs. Hunter, 1 Deveroux, 100.

From all these cases it appears,  [**9]  that the taking of interest in advance is against the statute, and only protected where the character of the paper discounted is negotiable; the circulation and convertibility of such paper being important to trade. There is no denying here, that the note was not negotiable; nay more, that it was the obvious intent of both parties it should not be, is clear from the face of the instrument.

It was said before, I think, that the acts of 1826, ch. 99, and 1832, ch. 152, legalizing Rowlett's Interest Tables, allow discounting in all cases. But the court is aware that those tables have nothing to do necessarily with the period at which interest is to be paid. They furnish a rule of calculation and nothing more, being framed upon the supposition that the year has an even number of days.

The second exception raises the point--Whether it is not usury, or rather, whether the taking of more than legal interest is not per se, in the absence of any evidence to the contrary. Evidence of a corrupt and usurious taking.

By the evidence it appeared $ 4.58 was the legal interest, and that $ 4.60 were exacted, and no proof explains for the plaintiff the cause of the excess. Prima facie [**10]  evidence is conclusive if there be nothing to oppose it. New York Firemen's Insurance Company vs. Ely, 2 Cowen, 705. Duvall vs. Farmer's Bank of Maryland, 7 Gill & John. 60, 61.

The third exception shews that the note sued on is a renewal of one, tainted, upon the authorities just cited, with usury, and presents the simple question, whether a contract usurious in its inception, is not equally bad in its continuation.

This exception calls for no observations.

The fourth exception presents the question--Whether the Maryland Savings Institution had by its charter the right to discount promissory notes.

I understand it to be already decided by this court, that a contract beyond the scope of a charter cannot be enforced. If the decision however had not been made, I refer to Fairtitle vs. Gilbert, 2 Du. & E. 871. New York Firemen's Insurance Company vs. Ely, 5 Connecticut, 564. Same vs. Bennet, 5 Cowen, 574. Same vs. Ely, 2 Cowen, 709. North River Ins. Co. vs. Lawrence, 3 Wendell, 482. Life and Fire Ins. Co. vs. Mechanics' Fire Ins. Co. 31.

Now the 6th section of the charter forbids the assumption under it of any banking powers,--those powers having been exclusively [**11]  granted to other institutions in Baltimore.

Is the power, then, to discount promissory notes a banking power?

Undoubtedly. 15 John. 390. The People vs. Bartow, 6 Cowen, 294. Same vs. Manhattan Co. 9 Wendell, 383. 5 Connecticut, 564.

If then, in discounting promissory notes, this institution was assuming powers forbidden it, will the court sustain it in violation of law?

The fifth exception raises the question--Whether the Maryland Savings Institution had the right to invest its monies in a loan on its own stock?

The 4th section of the charter authorises an investment in public stocks or other securities, at the discretion of the directors, and in the manner deemed most safe and beneficial.

Now, if the discretion of the directors is without limit, there is an end of the point. But I apprehend that, looking to the purpose apparent on the charter's face--that of making this institution a mere corporate trustee, the court will set some bounds to its discretion. In Trafford vs. Boehm, 2 Atkyns 444, where trustees were empowered to invest monies "in government funds or other good securities," Lord Hardwicke decided that the authority was not unlimited.

Is [**12]  it not too clear for argument, that it was the intent of this charter to give the depositor two securities.--The one, that of the institution itself, and the other, that of an investment to be made by the institution elsewhere? The deposites, while in the stock of the institution, are owing by nobody but itself. It still has them, and they cannot be said to be invested, till they are in some third hand, who thereby becomes a debtor to the institution, and as such is an additional security to the depositor.

D. Stewart for the appellees.

Upon the question that this corporation had the power to invest, and also to invest in the species of paper discounted, cited 6 Term. Rep. 123. 2 Ld. Ray. 1545. 15 J. Rep. 392. 3 Wendell, 296. Ib. 301. Ib. 583.

Upon the question that this transaction, nor the facts admitted by the prayers sought, did not constitute a case of usury. Act of 1826, ch. 99. Act of 1832, ch. 153. 3 Peters' S. C. Rep. 40. 9 Ib. 378. 7 Gill & John. 60, 61.

That if a case of usury existed, the debt was still recoverable on the money counts.--4 D. & E. 564. 3 Wendell, 296. Ib. 302. 19 John. R. 7. 8 Cowen, 20.

C. F. Mayer also for the appellees.

The [**13]  error of calculation might be evidence of a corrupt agreement, but it is not corruption per se. Usury depends on intention. 12 Pick. 588. 3 Gill & John. 123. Duvall vs. Farmers' Bank of Maryland, 7 Gill & John. 60, 61. 9 Peter. 400.--An agreement intended to violate the statute must be found.

But I contend the error is not even evidence of usury. 4 Wendell, 655. 2 Cowan, 664. 15 J. R. 168.

Taking interest in advance is not usurious. 8 Cowan, 20. 8 Wheat. 353. 3 Pet. 40. Cowper, 115.

As to the right of recovery on the common counts under the circumstances, as for a loan. 2 Cow. 664. 4 Wendell, 655.

The power to lend money, is an authority to invest. 5 Connec. 571. 9 Wendell, 383.

As to the charter of this institution violating the faith of the State plighted to the banks in the city of Baltimore, it is alone competent to those banks to complain. If they submit, no one else is to be heard on that head; but they are not injured unless the three great powers of a bank are conferred here,--creating money, receiving and discounting. 15 John. 390. 9 Wendell, 383. 2 Cowan, 700.  

JUDGES:
The cause was argued before BUCHANAN, C. J., STEPHEN, DORSEY, CHAMBERS, and SPENCE,  [**14]  J. CHAMBERS, J., dissented.  

OPINIONBY:
DORSEY 

OPINION:

 [*307]  DORSEY, J., delivered the opinion of the court.
Of the numerous questions which have been raised in this case, that which, in its proper order, first presents itself for determination, is, whether the Maryland Savings Institution has  [*308]  the power of lending any portion of its deposites, or of discounting therewith, promissory notes or other securities for debt.
As a corporation possessing no powers but those expressly or impliedly conferred on it by the enactment which brought it into being, to the terms of such enactment must we look for the outline of its powers.
The first section of the act authorises the institution to make all contracts whatsoever.
The third empowers the directors to provide for the investment of the funds of the corporation.
The fourth section under which deposites are received provides that, all monies so received shall be invested in public stocks or other secureties at the discretion of the directors.
In incorporating this company it was not the design of the legislature to create a mere stock jobbing institution, the funds of which were to be kept employed in buying and selling stocks [**15]  which, from the nature of business in receiving and paying off deposites, must have been the case, if all funds were exclusively appropriated to the purchase of stocks. Its charter therefore gave to the directors a discretionary power, to make investments in stocks or other securities.
What is the nature of the security here alluded to? "any thing given or deposited to secure the payment of a debt." The words, "other securities," therefore, embrace bills, bonds, notes, mortgages, &c., and the authority to make investments therein, clothes the institution with the power of making loans by way of discount. The concluding proviso to this section of the act of assembly, "that no part of the funds of said corporation, shall be loaned to any officer or director of said corporation," demonstrates the existence of the power we have ascribed to it. The People vs. The Utica Insurance Company, 15 Johns. 392.
But it is insisted that, the Maryland Savings Institution is deprived of the authority imputed to it, by the 6th section of its charter, which restrains it from doing "any act or acts in  [*309]  consistent with the privileges secured to the existing banking institutions [**16]  in the city of Baltimore."
By the acts of 1813, chapter 122 and 1831, chapter 131, in the 11th section of which it is enacted that, "in case of the acceptance of, and compliance with, the provisions of this act, by the several banks hereby required to make the aforementioned road, the faith of the state is further pledged to the aforesaid banks in the city of Baltimore, not to grant a charter of incorporation to any other banking institution to be established in the city or precincts of Baltimore, before the 1st January 1845."
Banking powers have been defined as consisting of the right of issuing negotiable notes, discounting notes, and receiving deposites. See 5 Conn. 383, The People vs. President, &c. of Manhattan Co. 15 Johns. 390, The People vs. Utica Insurance Company.
If then the creation of a corporation with any one of these banking powers is a violation of the faith of the State, plighted to the banks of Baltimore, the incorporation of the Maryland Savings Institution, is a violation of that pledge, whether the right of discounting be granted or not. The primary object of the legislature and of the company incorporated,  [**17]  the authority to receive deposites, has been explicitly given; and this is one of the three enumerated attributes of a banking institution. If the construction now contended for of the acts of 1813 and 1831 were sustained, it would follow that, all the Savings Institutions and Insurance Companies, created by legislative sanction in the city of Baltimore, since the year 1813 were violations of the faith of the state pledged to the banks of Baltimore. To disrobe itself of the power of creating such institutions, so highly beneficial to the public interest, was never designed by the legislature. The interference of the operations of such institutions with the concerns of the banks, was too unimportant, to induce the exaction of such a pledge from the State. The true interpretation of the engagement, entered into by the legislature with the banks was, that no charter of incorporation should be granted to any banking institution  [*310]  to be established within the city or precincts of Baltimore, clothed with the valuable and important power of issuing negotiable notes. The object of the banks being to secure to themselves the exclusive emission of bank paper within [**18]  the prohibited district.
It is said that, a loan on such security as that given by the appellant, was not authorised by the charter of the Maryland Savings Institution, which requires two securities to be taken for all money lent. But no such requisition is to be found in the charter, and if there were, it has been complied with in making the loan in question, two securities having been given, one the personal responsibility of the appellant, the other the sixteen shares of hypothecated stock.
An objection was made to the form of the note discounted, that it was not a negotiable note. In this there is no weight, it is a note within the Statute of Anne; on it three days of grace are allowed according to mercantile usage, and it is as beneficial a security to the institution as if it had been made payable to its order.
The first bill of exceptions concedes that, the interest taken by the Maryland Savings Institution was the legal interest, which would have been payable on the note at the expiration of six months and three days; but insists that, it was the duty of the institution to have advanced to the appellant the entire sum of money specified in the note, and at the [**19]  maturity thereof he was to repay the amount of the note with the interest thereon.
The fallacy of such a position is demonstrated by the note itself. It was payable six months after date and did not bear interest. If then the institution had advanced, upon the note, the amount expressed upon its face, according to its tenor, at the expiration of the six months, the institution would have been reimbursed the sum by it originally advanced, without any interest whatever. Such a mode of making a loan, on such a security, has no countenance from the charter of the Savings Institution, or the law of the land. Under this exception it is also insisted that, taking the interest in advance,  [*311]  upon the discount of the note, is usurious, and avoids the note given as a security for the loan. In Floyer vs. Edwards, 1 Cow. 114, Lord Mansfield said, "upon a nice calculation it will be found that the practice of the bank in discounting bills exceeds the rate of 5 per cent. (the legal rate of interest in England,) for they take interest upon the whole sum for the whole time; the bills run, but pay only part of the money, viz., by deducting the interest; yet this is [**20]  not usury." And in Thornton vs. Bank of Washington, 3 Peters 40, the Supreme Court say, to sustain the defence it has been said that the receipt of the interest in advance for sixty four days, upon the discount of the note, is usury. But we are all of opinion, that the taking of interest in advance upon the discount of notes in the usual course of business by a bank, is not usury. The doctrine has been long settled, and is not now open for controversy. And the same principle was decided in The Bank of Utica vs. Wager, 2 Cow. 712. Agricultural Bank vs. Bissel, 12 Pick. 588, and Fleckner vs. U. S. Bank, 8 Wheat. 338,--in which latter case STORY, J., in delivering the opinion of the court, says, that an authority to make discounts, means an authority to receive the interest in advance. By the act of assembly of 1832, ch. 152, all other corporate bodies, and all citizens and residents of this State, are, in respect to the mode of discounting and the rate of charging interest on loans, placed upon the same footing with the banks.
In the second bill of exceptions the defendant insists that, by Rowlett's Tables, [**21]  the discount deducted from the note should have been four dollars and fifty-eight cents, whereas the deduction actually made was four dollars and sixty cents; and he thereupon prayed the court to instruct the jury, that if they believe the plaintiffs did intentionally exact and take from the defendant the sum of four dollars and sixty cents, as and for interest upon the sum so loaned by them, that the plaintiffs are not entitled to recover; because such exaction and taking of said sum for interest was corrupt and usurious, and avoids the contract of loan; which instruction the court refused, but directed  [*312]  the jury that, the said exaction and taking of interest was not in itself usurious.
We do not stop to inquire whether, according to Rowlett's Tables, now made a part of the law of the land, two cents more have, in point of fact, been deducted for interest than is authorised by law. But we assume, upon the hypothesis of the prayer, that two cents more were intentionally exacted as interest, than by the letter of the law the plaintiffs were warranted in receiving; and we are still of opinion that the court were right in refusing the defendant's prayer, and giving to [**22]  the jury the instruction as stated. In Stockett vs. Ellicott, 3 G. & J. 123, a case where usury was set up as a defence to a note, given for the balance due on an account, containing items of principal and interest, and where in fact more than six per cent. Interest had been charged, this court said, it is the intention that gives character to the transaction; the agreement, the intention of the parties, constituting a principal ingredient of usury. In Duvall vs. The Farmers Bank of Maryland, 7 G. & J. 44, this court have said, that "the finding of an intention to take more than legal interest was indispensable. The calculations or deductions of interest according to Rowlett's Tables were in all cases legalized by the act of 1826, ch. 90, and the admission is, that the bank has always been in the practice of charging interest or discount agreeably to the calculations in Rowlett's Tables. Now if it be true that the exception does show, greater interest or discount was in fact taken than was indicated by these tables, it would not necessarily follow that it was usury. For that must depend on intention, and if designing to follow calculations [**23]  which were lawful, and the admission of the uniform practice would seem to lead to such a deduction, they had, by mistake or error, and not by intention, deviated from the rules prescribed by Rowlett, a case would be presented from which usury could not be deduced." A party who demands and takes as a discount, a larger amount than is authorised by Rowlett's Tables, intentionally exacts what he receives. But whether this intentional exaction be the result of mistake or accident, or of a corrupt usurious  [*313]  design, is a matter of fact to be submitted to the jury. In the prayer under consideration, the defendant's counsel called on the court to decide this fact, instead of leaving it to the jury. The prayer on that account was properly rejected, and the instruction given was fully sustained by the authorities referred to.
We think the court below were right in refusing the defendant's prayer, in his third bill of exceptions, for the same reasons that sustained the refusal in the second exception. Nor do we think that, the judgment of the county court ought to be reversed, on account of the court's instruction to the jury that, the exaction of the interest complained [**24]  of, was not usurious, conceding, without a reference to Rowlett's Tables, to test the truth of the fact, that there was an overcharge of two cents in the calculation of interest in the absence of all proof indicating a corrupt and usurious design in making such overcharge, we regard it as too trifling and inconclusive a circumstance, to warrant the jury in finding a corrupt and usurious intention in the plaintiff. The pitiful amount of the sum exacted standing alone, rather disproves than proves usury. The finding of such a fact was therefore properly withheld from the jury.
Approving of the conduct of the county court as set forth in all the defendant's bills of exceptions we affirm their judgment.
JUDGMENT AFFIRMED.
CHAMBERS, J., dissented.  

28 of 37 DOCUMENTS 

THE CHESAPEAKE AND OHIO CANAL COMPANY vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 G. & J. 1; 1832 Md. LEXIS 12 

June, 1832, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Court of Chancery.

A bill was filed by the appellees, against the appellants, and the Potomac Company, on the 23d of June, 1828, which stated--That by an act of the legislature of Maryland, passed at December session, 1826, entitled, "An act to incorporate The Baltimore and Ohio Rail Road Company, it was enacted, that as soon as ten thousand shares of the capital stock of said company should be subscribed, the subscribers thereof should be incorporated into a company by the name of The Baltimore and Ohio Rail Road Company, and should be clothed with all the powers necessary to the construction of a rail road from the city of Baltimore to the river Ohio; that the sum required in order to the incorporation and organization of said company having been previously obtained, the said company was duly organized by the election of a president and directors to manage the affairs of the same; that the subscriptions to the capital stock of said company having been augmented, so as to amount in all to four millions of dollars, the said company found itself, at once prepared to commence the construction of said road, and possessed of means at least sufficient for its completion [**2]  to the town of Cumberland, in Alleghany county; and that with a view to the construction of said road, the president and directors of said company caused all the various routes for said road to be examined by skilful engineers, in order to the determination of its general direction, who ultimately recommended the adoption of the southern route for the said road, to wit: from Baltimore to the Potomac river by the waters of the Patapsco and the Monocacy, striking the Potomac at the Point of Rocks, on the north-eastern side of the gap, at which, the Potomac passes through the Catoctin mountain, and thence to Williamsport, and thence with the Potomac, with inconsiderable deviations, to Cumberland; that the route for said road was finally adopted by the said president and directors, and the said president was ordered, by a resolution of the said board of directors, to proceed at once, to the construction of said road, upon said route. Your Orator further showeth, that after said route for said road had been definitely ascertained by said report, and a day for the commencement of the operations of the company thereon assigned, the said president and directors deputed engineers to pass along [**3]  the route thus adopted, and whenever the character of the ground was such, as to leave but little choice as to the location of said road, to make an actual location of the same at once over such ground, so that the said actual locations might serve as regulating points, for its location over the intermediate sections, and secure the passage of said road; and the said president and directors also deputed agents and attorneys to accompany said engineers, who were directed and required by the said president and directors to take all necessary or proper steps, to procure a title to the lands over which said actual locations were made, or to a right way over them. Your Orator further showeth, that under and in conformity to the requisitions of the said president and directors, the said engineers proceeded at once to the actual location of said road, over such portions of the route from the Point of Rocks aforesaid, to the town of Cumberland aforesaid, of which specifications of said locations which have been adopted and confirmed by the said president and directors, and which extend from the Point of Rocks inclusive, through Frederick, Washington, and Alleghany counties, to and over the [**4]  lands of John Mitchell, in Alleghany county, lying immediately above Mitchell's rocks, and above the lands of John Folch, are herewith exhibited marked A B C D, &c. &c. That all the said locations were made with a bona fide intention on the part of your Orator, of perfecting its incipient title to the lands included in said locations, or on the route of said road, by purchase, condemnation, or otherwise, and of proceeding as speedily as possible, to the construction of said road over the same. That acting with this intention, and designing to accomplish this object, the said president and directors therefor deputed agents and attorneys to procure a title to the same, or a grant of a right over the same, as aforesaid; and that the aforesaid agents and attorneys of the said company, in pursuance of the authority aforesaid, and to accomplish the objects aforesaid, have obtained from various persons (whose names were specified) relinquishments or agreements, under hand and seal, binding themselves, their heirs and assigns, to grant to your Orator, a right of way for the Baltimore and Ohio Rail Road, either specifically according to the said actual locations, or generally, so as in either [**5]  case, to bind all the lands lying within the said actual locations. Your Orator further shows, that all its above mentioned acts in locating said road, and obtaining and securing a right of way for said road over the lands included in said locations, were done by your Orator in strict pursuance of the powers conferred upon it, by the above mentioned act of assembly, and with a view to the accomplishment of the objects for which said company was incorporated, in the best possible manner, and not merely with the intent and design on the part of your Orator, to impede or obstruct the Chesapeake and Ohio Canal or Potomac Companies, hereafter mentioned, in the exercise of their respective powers; and that to carry into effect the agreements and relinquishments above mentioned, which are herewith exhibited marked 1 2 3 4 M M, and which your Orator prays may be taken as a part of this bill of complaint, the said agents and attorneys of the said president and directors were about to procure grants of said lands, or of rights of way over them, from said grantors, in conformity to their above exhibited agreements, by deed duly acknowledged for record, or to institute the necessary proceedings [**6]  to enforce the specific performance of such agreements, where such grant was refused, and would have procured such grants, or have instituted such proceedings. But now so it is, may it please your honor, that after the above mentioned acts had been done, by and under the direction of the said president and directors of the said Baltimore and Ohio Rail Road Company; after the above mentioned actual locations of said road had been made, and the above mentioned contracts or agreements with your Orator made or entered into, upon an application to Washington County Court, as a court of equity, made in the name and on the behalf of the Chesapeake and Ohio Canal Company, and Potomac Company, by bill of complaint, praying a writ of injunction against your Orator, its attorneys, agents, and all persons whatsoever acting under its authority, or on its behalf, to prevent them from obtaining a title by purchase, deed, or condemnation, or otherwise, to any of the lands lying within the actual locations aforesaid, or to a right of way over them, and otherwise, to restrain the lawful acts and proceedings of your Orator, an injunction as prayed for, was accordingly issued; all of which will more fully [**7]  appear from a copy of the said bill of complaint, and the said writ of injunction, which are herewith exhibited, and which your Orator prays may be taken as part of this bill of complaint. Your Orator is advised, that neither the said Potomac, nor the said Chesapeake and Ohio Canal Company, has any such unquestionable and absolute right of election and preemption for the route or site of said canal, as to all or any of the lands lying within the aforementioned actual locations of said Baltimore and Ohio Rail Road, as is set forth in said bill of complaint; that as your Orator is credibly informed and believes, neither of the said companies had obtained, at the time of issuing the said injunction, any title or right, by location, purchase, deed, condemnation, or otherwise, to the exclusive use and possession of any of said lands: that the Potomac Company has been organized for more than forty years, and during all that period has not exercised any franchise or right of election as to said lands, which it may have derived under its charter, so as to vest in it an exclusive title to the same, or to any part of them, and that at the time when all the above mentioned locations and agreements [**8]  were made, the said Chesapeake and Ohio Canal Company was not, and never had been, sufficiently organized so as to be competent, under its charter, to do such acts, make such contracts, or accept such gifts, grants and relinquishments, as were, and are necessary to vest in the said company any pre-emption, election, or exclusive right, to any of the lands lying within the aforesaid actual locations; although as your Orator has reason to believe, from the allegations of said bill of complaint of said company, and from other information from credible persons, and verily does believe, the said Chesapeake and Ohio Canal Company is now sufficiently organized for said purposes by the election of a president and directors. And your Orator further alleges, that it has good reason to believe, and verily does believe, that whilst the said Chesapeake and Ohio Canal and Potomac Companies were professing, in their said bill of complaint, an entire reliance upon the pretended priority and right of election, as set forth in said bill, unaccompanied and unfortified by any location, purchase, condemnation, or other act, on their part, as necessary to secure and vest in them, such alleged priority and [**9]  right of election, it was the principal, if not the sole object of the said companies, and their confederates, in obtaining said injunction, to obstruct and prevent your Orator, from enjoying the benefit of the above mentioned agreements and relinquishments, and from perfecting the same by deed or conveyance, so as to vest in your Orator, a complete legal title to the lands to which said agreements or relinquishments relate, or to a right of way over them, until the said Chesapeake and Ohio Canal Company was properly organized and prepared to appoint, and might appoint agents, adopt routes, make or cause to be made locations and contracts, and do and assent to all other acts which might be necessary or proper to vest in the said Chesapeake and Ohio Canal Company a title to the very lands, for which, or a right of way over which, the above agreements have been entered into with your Orator. And your Orator has also good reason to believe, and verily does believe, that it was the intent and design of the said companies, and their confederates, in applying for and obtaining said injunction, to set up their pretended priority for the purpose of restraining your Orator from enjoying the [**10]  benefit of the above agreements, and from acquiring a title to the lands affected by the same, until the said Chesapeake and Ohio Canal Company was competent and prepared to acquire, and could acquire, a title to the said lands, in the very mode in which your Orator was about to obtain, and would have obtained a title to the same, but for the interposition of the above mentioned injunction, and might thus be enabled, if their propriety and right of election, set forth and relied upon in their said bill of complaint, should fail them, to resort to a title acquired by purchase, deed or condemnation, and acquired only, by fraudulently restraining your Orator from availing itself of the equitable title which it derives under said agreements; and as further evidence of such intention and design, your Orator alleges, that it has been credibly informed, and verily believes, that since the said locations and agreements have been made, and the said injunction obtained, and before, attempts have been made by one or more agents or persons, professing to act under the authority of the said companies, and on their behalf or for their benefit, to dissuade and prevent parties to the said agreements [**11]  from performing their said contracts, and to procure from them, deeds for, or written agreements to convey the very lands affected by such agreements, or lying within the actual locations as aforesaid, and that one or more such deed or agreement has actually been obtained by a certain Clement Cox, or under his directions as the agent, or professing to act for the said companies; from all of which, and many other actings and doings of the said companies, and their attorneys, solicitors and agents, to obstruct and hinder your Orator in the enjoyment of its rights, your Orator has reason to believe, and verily believes, that the said companies, or their agents, combining and confederating for the wrongful purposes aforesaid, will endeavor to procure, and are endeavoring to procure, deeds for the said lands, from the very parties to the said agreements, and in violation of said agreements, or to value and condemn them, or have them valued or condemned for the use of the said Chesapeake and Ohio Canal Company, so as to hold them free, if possible, from any equitable interest in the same, which your Orator may have acquired under said agreements, and if not prevented, will procure, or value [**12]  and condemn them, for their own use, and will endeavor to obtain, and will obtain, possession of the very lands affected by such agreements, and will prevent your Orator from taking possession of the same, and will otherwise obstruct and hinder your Orator in exercising its rights under said agreements over the same. And your Orator further showeth, that having a due respect for, and in all respects obeying the said injunction issued out of Washington County Court, it will, during the continuance of said injunction, be restrained from doing any act whatsoever, to protect the title which it derives under said agreements against said companies, and will, during that period, be left unprotected against the unjust and inequitable attempts of the said Chesapeake and Ohio Canal and Potomac Companies, to take advantage of their own wrong, by procuring titles by purchase, location or condemnation, so as to give a priority which they could not have obtained but for the said injunction; that the said injunction has been issued solely to protect an alleged priority or right of election in the said Chesapeake and Ohio Canal and Potomac Companies, as set forth in their bill, and not requiring any [**13]  acts on the part of said companies, such as location, purchase or condemnation, to vest or originate the same, and as the said companies in their said bill of complaint allege, only in order to a speedy determination as to the existence of such priority of right, and that the purposes and objects of said injunction can be accomplished, and full justice done to your Orator, and to the said companies, in the premises, only by restraining the said Chesapeake and Ohio Canal and Potomac Companies from doing any act or acts whatsoever to deprive your Orator of the benefit of said agreements, until the question of priority or right as claimed by said companies, shall have been determined upon their said bill of complaint; so that, if said question should be determined against the said companies upon their said bill, your Orator may be remitted to all the rights which it possessed or enjoyed at the time of such injunction obtained, unaffected by any wrongful acts, in prejudice of the same, which the said companies may have done under color of said injunction, and in perversion or abuse of its objects, that thus all the alleged rights and priority of the said companies will be saved and reserved [**14]  to them from their alleged nature, and by the aid of the above mentioned injunction, to which your Orator is ready to pay all due respect, and all the equities of your Orator will also be preserved and reserved to it, so that in the event of a decision in its favor upon the bill of complaint of the said companies, it will be remitted to the full enjoyment of them. Wherefore, and forasmuch as without such restriction imposed upon the said Chesapeake and Ohio Canal and Potomac Companies, and their agents, your Orator may be thus unjustly deprived of or injured in the possession of said equitable rights, and may thus suffer an injury which cannot be repaired by any decision in its favor upon the bill of complaint of the said companies, and forasmuch as a Court of Equity can alone give relief in the premises, and this honorable court having full jurisdiction co-extensive with the limits of the State, can alone give that speedy, extensive, and efficient relief which the nature and urgency of the case require. To the end therefore, that the said Chesapeake and Ohio Canal Company and the said Potomac Company, being companies incorporated and organized under acts of the legislature of Maryland,  [**15]  may under their respective corporate seals, full, true, and perfect answer make, to all the matters herein before set forth, and that in the mean time the said Chesapeake and Ohio Canal Company and Potomac Company, their agents or attorneys, and the agents or attorneys of either of them, and all persons acting or professing to act under their authority or on their behalf, or on behalf of either of them, may be strictly prohibited and enjoined, &c.

On the 24th of the same month, a second bill was filed by the same parties, alleging that, where, from the absence of the owners of the land, over which the road was located, or from other causes, they were unable to make such agreements or contracts as are spoken of in the preceding bill, they were causing warrants to be issued for the purpose of condemning the same, in the manner authorized by their charter, and they asked for and obtained an injunction, to protect them in the rights so acquired.

On the 25th of the same month, they exhibited a third bill, asking to be protected in the rights which they alleged themselves to have acquired, in virtue simply of actual locations for the route and site of the road, independent, either [**16]  of contracts with the owners of the soil, or proceedings for its condemnation; and an injunction was accordingly granted and issued for that purpose.

On the 16th of May, 1829, the Chesapeake and Ohio Canal Company answered these bills, as consolidated in one suit. The answer stated, that in order more clearly to illustrate the antiquity of their right and title, and of the public recognitions of their right and title, in preference to all other projects of internal improvement, and to the claims and interests of all other corporations and individuals, particularly of the complainants, to appropriate to the construction of the Chesapeake and Ohio Canal, and of its incidental works and appendages, the most eligible, proper, and convenient site or route for the canal through the vale of the Potomac, from tide water to its highest sources, and especially that identical site and route along the vale and narrow passes of that river, from the Point of Rocks where the river passes through the Kitocton mountain in Frederick county, Maryland, to Cumberland, in Alleghany county, which the complainants have attempted, or now pretend in their said bills, a right to appropriate and occupy for [**17]  the site and route of their intended rail road, they deem it expedient and proper to submit to the court, a historical deduction of their title, from the inception of the first scheme for improving the navigation of that river by means of a canal or otherwise, to its consummation in the charter, by which these respondents are incorporated, shewing the notoriety of the public and early dedication of the ground in question, to the ends and purposes of a canal supplied by the waters of the Potomac and its tributaries; the authentic and binding acts of public authority, and the implied as well as direct pledges of public faith, by which such dedication of the ground in question has been sanctioned and guarantied; and the conclusive, and plenary notice of the same, with which the complainants have advanced their adverse pretensions, and in so doing, have not only unconscionably infringed the chartered rights of these respondents, but have attempted to overreach, contravene and defeat the high objects and intents of public policy, as authentically declared and promulgated by the most solemn conventions of states, communities, and individuals, and irrevocably established by numerous legislative [**18]  enactments.

That the improved navigation of the Potomac, by means of a canal or otherwise, from tide water to the sources of that river, or at least as high as Cumberland, was early considered, before the incorporation of the late Potomac Company, and both before and after the revolution, an object of public and national importance; and as such, engaged the active attention of the most eminent statesmen and patriots in Virginia and Maryland; that immediately after the peace of 1783, it was the first and leading object of public improvement, to which, those states and their principal citizens directed their attention; that the far-reaching views of the eminent citizens, conjointly employed by those states in devising and perfecting the plan of that great improvement, and among the most active and zealous of whom were found many of the most celebrated patriots and warriors of the revolution, contemplated it, even at that early period, as the great channel of commerce and intercourse, which was to connect the original states, with the vast and fertile regions beyond the Alleghanies; and that the charter of the late Potomac Company was the practical and direct result of those enlarged [**19]  views and objects, is matter of history; and is more particularly illustrated by the papers and plans of General George Washington, by the delegation from the states of Virginia and Maryland, of that eminent citizen and other most distinguished public men of both states, as commissioners, to consider and report a plan of the work; by the public proceedings and report of those commissioners at Annapolis, in the year 1784; and by the concurrent laws of Virginia and Maryland establishing the late Potomac Company, followed up by various acts of the like concurrent legislation, from time to time, enlarging, modifying, or confirming the original charter of that company. For authentic copies of some of the preliminary documents and proceedings above referred to, and of all the laws relating to the said Potomac Company, these respondents pray leave to refer to the printed collections of the same, annexed to this answer, among the other public and authentic documents hereto annexed, and enumerated in a schedule hereto annexed; all of which they aver to be public and authentic documents, and pray that the same be received and referred to, as part and parcel of this their answer.

It was [**20]  found, after an experience of between thirty and forty years, that the plan adopted by the late Potomac Company for rendering the river navigable, was essentially defective, and wholly inadequate to the great objects for which that company had been instituted; that all their large capital, and the long and arduous labors of so many years, had been expended without attaining the great end of an uninterrupted and safe navigation from the tide water to the source of that river; a failure not originating in any defect of zeal or perseverance, or general intelligence in the conduct of that company, but in the inadequacy of their pecuniary means at the time; in the imperfect state of the science of canalling, and in the general misconceptions of the facilities afforded by the river itself, for navigation, and of the comparative advantages of a continuous canal through the vale of the river, supplied by its own and its tributary waters, and of what is called sluice navigation; misconceptions, common to them, and to the whole American community, till the progressive lights of experience and science had subsequently demonstrated the superior advantages of the continuous canal. When this unfortunate [**21]  result had become evident, the Potomac Company, as well as the community at large, began to consider, with an earnestness and solicitude due to the great and extensive interests dependent on the scheme, the means of repairing the original errors in its theory and details, and of reverting to the proper, and now demonstrated plan of a continuous canal all along through the vale of the river, using the waters of the river and its tributaries as feeders to the canal; a plan entirely within the scope of their chartered powers, and of the original, notorious, and declared ends and objects of their institution; and with this the company connected the ulterior plan to which their chartered limits did not then specifically extend, and the practicability of which, had but recently been thought deserving of further inquiry, (after the report of the Secretary of the Treasury, in the year 1808, assuming it to be impracticable for a canal to pass the summit of the Alleghany, for want of an adequate supply of water on the summit level,) of effecting a connected canal navigation between the head waters of the Potomac and Ohio river. With these views, the late Potomac Company, in the year 1819, applied [**22]  to the Board of Public Works of Virginia, to institute, through their principal engineer, the proper examinations and surveys for determining the best mode of improving the navigation of the Potomac, and facilitating a communication by way of that river, with the western waters. In consequence of which application, the legislature of Virginia passed their resolution of the 8th of January, 1820, requesting the said Board of Public Works, to inquire into the expediency of directing their principal engineer, to examine the waters of the Potomac, and to explore the country between the Potomac and Ohio, &c. with a view to ascertain and report the practicability of effecting a communication by canals between those rivers; an authentic copy of which resolution is hereto annexed among the said scheduled documents. And the said Board of Public Works did accordingly cause the proper examinations and surveys to be made by their principal engineer, the late Thomas Moore, who, in the year 1820 made his official report of the same, which, with the said application from the Potomac Company, was officially printed and published in the annual reports of the said Board, and is hereto annexed among the [**23]  said scheduled documents.

The examinations and surveys of the ground itself, by this practical and gifted engineer, gave results very different from those of the report of the Secretary of the Treasury above referred to, and which had proceeded upon the apprehension of conjectural difficulties, not brought to the test of professional examination and experiment, as will be evident from a comparison of the two reports.

This report of Mr. Moore gave a fresh impetus to public curiosity, and the long talked of plan of a connected navigation between the eastern and western waters, was agitated with renewed interest. Then followed the law of Virginia, and the concurring resolutions of the general assembly of Maryland, (also annexed among the said scheduled documents,) passed at the December sessions, 1821, of the legislatures of those states respectively, for the appointment of two commissioners on the part of each state, among other things to examine into and report the state of the navigation of the Potomac, and to advise and consult as to the measures most advisable to be recommended to, and conjointly adopted by, the said states, either for giving aid to the Potomac Company [**24]  in the further prosecution of the work, or for the more effectual improvement of the navigation of the said river by other means, &c.

The commissioners appointed in pursuance of the said law and resolutions, proceeded in the summer and autumn of the year 1822, to execute their commission in its utmost latitude, with the assistance of the said Thomas Moore, the principal civil engineer attached to the Board of Public Works of Virginia, and other competent engineers and surveyors. Their joint report of their proceedings, with an appendix of explanatory documents, was duly returned to the respective governors of the two states, in December, 1822, and by the said governors officially communicated to the respective legislatures of those states at the December sessions, 1822, of the same, and were immediately printed and published at public expense, in both states, by the authority of each legislature; and a copy of the same report, &c. was in January, 1823, sent with an official and public communication from the governor of Maryland to the president of the senate of the United States, to be laid before the senate pursuant to a resolution of the general assembly of Maryland, and was,  [**25]  together with the governor's communication, then immediately re-printed and re-published by order of the senate, among its public documents; each of the printed copies, so printed and published by authority of the legislature of Maryland, and of the senate of the United States, is hereto annexed among the scheduled documents.

These respondents also refer to the original communication from the governor to the general assembly of Maryland at the December session, 1821, and the report of the committee of the house of delegates at that session thereon, as printed and published by authority of said house, and hereto also annexed among the said scheduled documents.

At the same sessions of the two legislatures of Virginia and Maryland, to which the report of the commissioners was communicated by their respective governors, applications were made to each legislature, by a number of individuals and corporations, acting in concert, for a charter to a new company, in place of the old Potomac Company, upon certain terms, for the surrender of the charter of the latter, approved by them. This new charter, connected with a provision for a considerable part of the stock to be taken by each [**26]  state, was at that time earnestly solicited by the persons principally interested in the scheme; and especially by the three corporate cities in the District of Columbia, who deputed proper agents to solicit and advance the plan with the two legislatures. Such progress was made in this matter with the legislature of Maryland, that in January, 1823, a bill to establish the Potomac Canal Company was reported by a committee to the house of delegates; one of the copies of which, as printed by the authority of the said house, is hereto annexed among the said scheduled documents. But as this was accompanied by a proposition for a large pecuniary contribution from the state, which met with considerable objection and difficulty in the assembly, and without which the friends of the bill did not deem it material to press the enactment of the charter, that session passed over without any definitive enactment on the subject.

At the contemporary session of the Virginia legislature on the 22d February, 1823, an act incorporating the Potomac Canal Company did pass; an authentic copy of which is also here annexed among the said scheduled documents. The original bill had been presented to the [**27]  Virginia legislature, and the enactment of it solicited in the same terms as that above mentioned in the Maryland legislature, and underwent in its progress, sundry changes and modifications, originating with, and suggested by particular members of the Virginia assembly.

About the time that these proceedings were going on in the two state legislatures, the subject was brought before Congress, in consequence of sundry memorials from the inhabitants of Pennsylvania, Maryland, and Virginia, and of resolutions moved in Congress on the suggestion of certain members of that body. For the progress of that body, in considering the subject and preparing measures for the advancement of the projected canal, in the winter of 1821-2, and the ensuing spring, these respondents refer to the printed and official reports and proceedings of the house of representatives of the United States, at the first session of the seventeenth Congress, mentioned in the annexed schedule.

Before the sessions of the two legislatures of Virginia and Maryland, for December, 1823, when the solicitations for the final enactment of the charter were intended to be renewed with unabated activity and zeal, the views [**28]  of the numerous individuals and communities interested in the business, were considerably extended and improved in the scope and objects of the immediate plan of the canal. The great scheme of a canal, not confined to the Potomac region, but forming a connected navigation between the head waters of that river and the western waters, even to Lake Erie, had excited such general attention, and so intense an interest throughout the country, that the people of the states of Virginia, Maryland, Pennsylvania, and Ohio, and of the District of Columbia, solemnly appointed numerous delegates from among their most respectable and influential citizens, to meet in convention at the seat of the general government, and there consult and co-operate for the advancement of the common object; this convention held its first session at Washington, in November, 1823, and its second session at the same place in December, 1826; the debates and proceedings in both of which were public, and were respectively printed and published immediately after each session of the convention; and an authentic copy of all of which, collected in one pamphlet, containing a second printed edition of the proceedings of the first [**29]  session, together with the proceedings of the second, printed and published immediately after its adjournment, is hereto annexed among the said scheduled documents.

From the time of the organization of this body, the whole management of the undertaking, the business of maturing its plan, of promoting and soliciting its general interests, and the grant of a charter and public patronage from the several legislatures and governments upon which it more particularly depended, and in fulfilment of the enlarged and beneficial views disclosed in the proceedings of the convention, devolved upon that body, and the several standing committees appointed by, and acting under its authority, as recorded in its proceedings; reinforced by the occasional representations and memorials of the corporate cities in the District of Columbia, and the commissioners appointed by the Executives of Virginia and Maryland, and the President of the United States, to open subscriptions for the capital stock of the company, pursuant to the charter finally obtained. The report of the central committee of the said convention, as printed in the aforesaid proceedings of its second session in December, 1826, correctly [**30]  details the actings and doings of that and its associate committees, and the general objects and results of their labors during the recess of the convention; and these respondents refer to the same, among other of the recorded and published proceedings of the said convention, as part of this their answer. For the further proceedings of the said convention, and its committees, and of other parties interested in the public project of the Chesapeake and Ohio Canal, and for the action of the public authorities upon the subject, from the adjournment of the first session of the said convention in November, 1823, down to the passage of the act of Congress of the 24th of May, 1828, authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company, the respondents refer to all and singular the public proceedings and acts of the legislatures of Virginia, Maryland, and Pennsylvania, and of the Congress of the United States, and the several committees of those bodies, as recorded and published in their respective journals, reports, documents, and bodies of laws; the whole of which, in any manner relating to the subject of the Chesapeake and Ohio Canal, its plan, course, and construction,  [**31]  to its adoption by the public authorities as a work of national import, to the interest taken in it by the several States and the United States, to the incorporation of this company, and to all the preparatory legislative deliberations, measures, and proceedings, leading to that act, or consequent to it, these respondents pray may be referred to and taken by this court as part and parcel of this answer, and as public, authentic and notorious, in themselves.

From these documents the respondents deem it material, by way of illustration, here to recapitulate only the following facts, which are verified in detail by the said documents, and are true, and of public notoriety.

At the opening of the first session of the eighteenth Congress, in December, 1823, the President of the United States, in his message to Congress, having direct reference to the said convention, and its proceedings in the month of November preceding, mentioned, with decided approbation, the plan of the Chesapeake and Ohio Canal, as having been suggested by many patriotic and enlightened citizens, and recommended an adequate appropriation for the employment of a suitable number of the officers of the corps [**32]  of engineers, to examine the ground, and report their opinion thereon: and also to extend their examination, to the several routes through which the waters of the Ohio may be connected by canals, with those of Lake Erie. This, among other important objects of internal improvement, having been thus officially brought before Congress, the whole subject was referred to a committee of that body, called the committee on roads and canals, who, at the same session, reported a bill, which was passed on the 30th day of April, 1824, appropriating the sum of thirty thousand dollars, for the purpose of procuring the necessary surveys, plans, and estimates upon the subject of roads and canals.

In the month of May following, the President of the United States appointed, from among the corps of engineers and the topographical and civil engineers in the service of the United States, a board of internal improvement, with assistants to superintend the execution of the provisions of the said act; and attached to the said board several officers of the corps of engineers and of the topographical engineers, with sundry civil engineers and surveyors in the service of the United States, to perform the [**33]  practical operations in the field, under the direction of the board. The board was instructed "to make an immediate reconnaissance of the country, between the tide waters of the Potomac and the head of steam boat navigation of the Ohio, and between the Ohio and Lake Erie, for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable routes for the same, and of forming plans and estimates in detail of the expense of execution." The board was also instructed to use every possible exertion, to have their report, on this important line of communication, prepared in time to be submitted to Congress at their next session.

These examinations and surveys were prosecuted with the utmost vigor and diligence; and on the 14th of February, 1825, the President of the United States communicated, in a special message, to both houses of Congress, the result of the labors of the board and their assistant corps, as far as they had then proceeded, which was immediately printed and published, by order of each house respectively. These operations were resumed and completed under the direction of the board, in the ensuing season, and a detailed [**34]  report of the same made by the board to the chief engineer, on the 23d of October 1826, which was in like manner, communicated to both houses of Congress in a special message from the President, on the 7th of December, 1826, and in like manner immediately published and printed by order of each house. These several reports were accompanied by detailed descriptions and surveys, and large maps and profiles, and exhibited with the utmost clearness and minuteness the whole route of the canal from Georgetown and the head of the tide water of the Potomac to Cumberland, and thence to its western termination, the plans and various sections of the canal, the geography and topography of the ground through which it passed, with detailed estimates of its cost, including the section of the canal from the head of tide water to Cumberland, and minutely exhibiting its course, and its various subdivisions, and sections, on the western and northern, or as expressed by the engineers, the left bank of the river between those points. The printing of this last report having been expedited by the printers to Congress in anticipation of the President's message, and of the orders of the two houses, several [**35]  copies of the same were laid before the said convention at its second session, by direction of the Secretary of War; and formed the ground work of the proceedings of that body and its committee, towards a corrected estimate of the cost of the canal; the high estimates of the cost, given by the board of internal improvement, being considered as founded on erroneous data.

During the same session of Congress, several members of the House of Representatives, considering the disagreement between the estimates of the convention, and those of the board of internal improvement, and the necessity of the most exact preparatory estimates, as well for the success of the various applications to Congress, and to the States, for subscriptions to the stock of the canal and other aids, as for the general recommendation of the plan to the public, requested the President to submit these estimates to the revision of practical civil engineers, of long tried experience and skill. The President accordingly appointed James Geddes and Nathan S. Roberts, two eminent civil engineers, who, to great professional skill, added a long experience in the practical execution of other works of a similar description,  [**36]  to view and resurvey the route of the said canal, and revise the estimates of its cost. This duty was performed by these engineers with all diligence and despatch; and their detailed report of their surveys and estimates of the same, from Cumberland, or about one mile below Cumberland, to Georgetown, was duly returned to the engineer department, accompanied by detailed descriptions, surveys and maps of the route and site of the canal, between those points.

This last report and its results were largely quoted and commented on, in a report of the committee on roads and canals, in the House of Representatives of the United States, on the 11th of February, 1828, which report of the said committee was then immediately printed and published by order of the house, in the due course of its proceedings; and on the 26th of the same month, a resolution passed the house, calling upon the Secretary at War for the report at large of the said civil engineers; and the same was accordingly transmitted to the house on the 10th of March following; and then immediately printed and published by order of the house.

And these respondents, further answering, say, that upon the completion of their [**37]  charter by the act of Congress passed on the 3d of March, 1825, assenting to and confirming the acts of Virginia and Maryland, commissioners were duly appointed by the Executives of Virginia and Maryland, and the government of the United States, pursuant to the directions of the charter, to open books for receiving subscriptions to the capital stock of the Chesapeake and Ohio Canal Company; and the said commissioners, in pursuance and execution of their appointment and authority, on the 20th of August, 1827, published due notice that such books would be opened at various places in the United States, on the 1st of October then next ensuing; which notice was published weekly in various places, at, or as near as practicable, the respective places where the books were to be severally opened; and among others in the city of Baltimore, a copy of that published in the National Intelligencer, at the city of Washington, is annexed; and the others were in the like form, only designating other banks or agents, and other places for receiving the subscriptions in the different sets of books, all to be opened on the same day. The opening of the books had been so long postponed at the request of [**38]  the central committee of the said convention, in order to obtain, in the first instance, the most satisfactory estimates of the cost of the canal; in the meantime the conflicting estimates of the board of internal improvement and of the said canal convention, were before the public; and the engineers, Geddes and Roberts, were then engaged in their surveys of the route, and revision of the estimates, whose report, though not then completed, would, as was then well understood, confirm upon the most unquestionable data and calculations, the lowest estimates.

Pursuant to the said notice, the subscription books were duly opened on the said 1st of October, 1827, and subscriptions to a large amount were received; a correct summary of the different amounts whereof, at different periods of the 14th day of November, 1827, till the 3d day of October, 1828, is hereto annexed. The subscriptions on the part of the United States and of the State of Maryland, as authorized by their respective laws, have been duly fulfilled upon the conditions respectively prescribed by them, and were made at the respective dates mentioned in the said summary. Notwithstanding the subscriptions amounted, so much [**39]  sooner, to the one-fourth of the capital stock required by the charter, to give immediate effect to the incorporation of the company, it was deemed advisable to postpone a call of the stockholders for the election of the president and directors, in the certain expectation, of an act at the then ensuing session of Congress, authorizing a subscription on the part of the United States; and in order to give an opportunity to Maryland and the United States, on the completion of their respective subscriptions, to vote at the said election, and on other matters to be brought before the meeting. The said commissioners, accordingly, on the 5th day of March, 1828, called a meeting of the stockholders for the purpose of electing their president and directors on the 7th day of April then next ensuing; by which day it was expected the two subscriptions, just mentioned, would be completed, by means of a bill then pending in Congress. But some unexpected delays in the passage of this bill occurring, the call was postponed; and on the 26th day of May thereafter, (the said bill authorizing the subscription of one million of dollars, on the part of the United States, having passed on the 24th of the [**40]  same month,) the call was renewed, and the general meeting of the stockholders appointed for the 20th of June, 1828. These calls of the general meeting of the stockholders, and the intermediate postponement of the first, were duly published by the said commissioners in several public prints or newspapers, at various places in the United States, and among others at the city of Baltimore, pursuant to the directions of the charter; copies of which as published in the National Intelligencer, at the city of Washington, are hereto annexed. Pursuant to the last of the said calls, the stockholders assembled at the City Hall, in the city of Washington, on the 20th day of June, 1828, and duly elected their president and directors, who were immediately organized according to law; and have ever since been diligently engaged in prosecuting the execution of the canal, pursuant to their charter, with all practicable vigor and despatch.

The Potomac Company, by their several authentic and valid acts, in their corporate capacity, on the 16th of May, 1825, the 10th of July, 4th and 15th of August, 1828, duly declared their assent to the provisions of the said charter of the Chesapeake and Ohio Canal [**41]  Company, in the manner prescribed by that charter; and duly surrendered their charter, and conveyed, in due form of law, to the Chesapeake and Ohio Canal Company, all the property, rights and privileges by them owned and possessed under their charter, which surrender and transfer were duly accepted by the Chesapeake and Ohio Canal Company; true copies of all which several acts of the two companies are hereto annexed as part of this answer.

The last named company, also at their said general meeting in June, 1828, and at several adjourned meetings of the same, in June and July of that year, adopted, and passed, among others, the several resolutions, by-laws, and regulations, printed copies of which are annexed among the said scheduled documents; and, among these, the annexed resolution adopting the route and site of the canal surveyed and laid down by the United States' Engineers, and by Messrs. Geddes and Roberts, &c.

Among the works done under the orders of the president and directors, since the organization of this company, they have caused detailed plans of their canal to be surveyed and laid down by their engineers in a practical form for contractors, upon the route before [**42]  surveyed and laid down under the direction of the said Board of Internal Improvement, and by Messrs. Geddes and Roberts as aforesaid, from Georgetown, in the District of Columbia, to Williamsport, in Washington county, Maryland; and for the distance of about forty-eight miles from Georgetown, up to within about a half mile of the Point of Rocks, or foot of the Kitoctin mountain, the canal has been actually put under contract for execution upon these plans; and the work was actually commenced by the contractors in September last, has ever since been diligently and efficiently prosecuted by them, and such progress made in it, as leaves no rational doubt of its completion, upon the most enlarged scale and improved plan contemplated by its projectors, far within the time prescribed by the charter; and the said president and directors would, before now, have had at least so much more of the said canal, as the section from the Point of Rocks in Frederick, to Williamsport in Washington, under contract and in actual progress, but for the interruptions thrown in their way by the complainants, on the route from the former point to Cumberland. The respondents, by way of further illustrating the [**43]  plan and route of their canal, refer to the annexed copies of the plans and surveys of the same from the said Point of Rocks to Williamsport, executed by their engineers; which they pray may be taken as part of this their answer.

As to the pretensions of the complainants to interpose and oust these respondents of their priority of selection, and their vested right in the route of their canal, and to intrude the rail road of the complainants upon the same, these respondents say, the legislature of Maryland never contemplated, by the charter granted to the complainants, any interference with the route selected for the canal, as if these be involved in the terms of that charter any covert or latent construction or operation in practice, authorizing such interference, (which these respondents are well advised there is not,) and if the parties, who projected the said rail road, and actively promoted and solicited, and finally obtained, and now enjoy the charter for the same, originally intended that any such latent construction or operation in practice should be involved in its terms, with a premeditated design to press the advantage of such in their future operations under their charter,  [**44]  (which these respondents by no means charge, but, on the contrary, presume the said parties were at the time direct and sincere in their professed object and in the ostensible purpose and intent for which they solicited their charter,) then it would be manifest, that the legislature and people of Maryland were misled and deceived into the grant of a charter for the said rail road, contravening the well known views, and established policy, and interests of the state, long avowed and practically acted on by the legislature, and the solemn faith and compacts of the state, as well with her co-sovereigns Virginia, Pennsylvania, and the United States, as with the Potomac Company, with the Chesapeake and Ohio Canal Company, and with the public at large. For not only was any intent, (if it existed) to supersede or interfere with the proper route and site of the canal, and occupy the same with the said rail road, kept out of view, and reserved and concealed in the minds of the parties who solicited and obtained the rail road charter, but it was studiously and elaborately masked, by their openly professing and setting up a different and shorter route for the rail road than any practicable route [**45]  for the canal, and upon this very difference in the routes, they valued themselves, as having projected an improved mode of intercourse with the west, very superior to the canal.

The project of the said rail road was originated, and set in motion at a meeting of a number of the citizens of Baltimore, held at that city, on the 12th and 19th of February, 1827: the proceedings of that meeting, with a report of a committee unanimously approved by the meeting, were printed and published by its authority; the whole train of the elaborate reasonings of which, tends to establish two points; 1st. The intrinsic advantages, in point of expedition and convenience, of a rail road over a canal; 2dly. The particular advantages of the projected rail road from Baltimore to the Ohio, over the Chesapeake and Ohio Canal; among the most decided of which was, that the former was to reach the western trade, by a different and shorter route. Upon this latter point the most minute calculations are made, of the differences, in distance and time, between the known route of the canal and the intended route of the rail road. The direct route, proposed for the Rail Road, as contrasted with the circuitous route [**46]  chosen for the canal, was vauntingly printed in capitals, and its various advantages reiterated in every form calculated to illustrate the superiority of the rail road over the canal. The charter of the Rail Road Company was immediately solicited, and obtained of the legislature of Maryland, then in session, by the committee or some of them, named in the said printed proceedings; the pamphlet containing the said proceedings was circulated among the members of the legislature, and the same topics were enforced and illustrated by the committee, in the course of their solicitations. All the active and influential persons, composing the said meeting, and its committees, became members of the corporation, when the said Rail Road Company became incorporated, and the president and directors of that company were chosen from among the same description of persons, and so continued to the time of the filing of the complainants' said bills, and yet so continue, as these respondents are credibly and certainly informed, and do verily believe. One of the said pamphlets, so published by the said meeting, or by its committee, is hereto annexed among the scheduled documents; and to that, as well as [**47]  to the representations and memorials of the said rail road committee to the legislature, and the proceedings of the legislature thereon, preparatory to the grant of the said rail road charter, these respondents pray that reference may be had, as part and parcel of this answer.

These respondents are further credibly and certainly informed, and verily believe, that not only was all idea of any interference with the site or route of the canal kept out of view, and masked by the general proposition of a different route for the rail road, studiously impressed on the legislature, and promulgated to the public, as one of the pre-eminent merits of the rail road project, but that the said parties, so engaged and interested in that project, and in the promotion of it as aforesaid, and now claiming the benefits of the charter for the same, did, both before and after the grant of that charter, and while the same was in a course of solicitation before the legislature, and down to a period considerably posterior to the subscription of the stock, and the formation of the company, even specify the difference between the two routes, both to the members of the legislature, and otherwise, to the [**48]  public; that is, a direct route from Baltimore to the Ohio; cutting down the hills between Baltimore and the Monocacy 50 or 60 feet, by machinery, and forming an inclined plane to the Monocacy; and then crossing the mountains in the direct route to the Ohio, by a number of stationary steam-engines, computed at the number of a hundred; that afterwards, in the winter of 1827-8, when the complainants were soliciting of the legislature the law authorizing a subscription on the part of the State to the rail road stock, the president of the said Rail Road Company, in behalf of the company, assured the members of the legislature, and especially the members from the western counties, that the rail road would pass by Westminster, through Harman's gap to Williamsport, and actually accepted the services of Mr. James Johnson, of Frederick, to explore the mountains on that route; that the said parties, on all these occasions, and continually, until they formed their sudden resolution, in May, 1828, to pounce upon the route and site chosen for the canal, publicly and distinctly disclaimed any rival ship or interference with the canal; and gave out that the comparative directness and shortness of [**49]  the route of the rail road, and its other advantages, would place it above all competition from the canal. If on the other hand, the new route now proposed for the rail road, and the idea of ousting the Chesapeake and Ohio Canal of its chosen and proper route were after thoughts, originating with the complainants, or suggested to them, after their organization as a body corporate under their charter, then it is equally a perversion and abuse, in practice, of the original and genuine intent of their charter, and the privileges which that instrument was designed to confer on them. These respondents are not certainly or precisely informed at what time such change in their views was effected, or upon what ostensible grounds; but these respondents have good reason to think and believe, and do verily think and believe, that it was not until after the advertisements of the said commissioners, notifying a call of the stockholders of the Chesapeake and Ohio Canal Company, and the near prospect of large subscriptions to the stock of that company, from the State of Maryland, and the United States, gave sure promise of its speedy and efficient organization, and suggested to the complainants the [**50]  policy of some bold and extraordinary measures to defeat it. The actual operations of the complainants, through their agents, in appropriating to themselves the route and site chosen for the canal, did not commence, as these respondents have good reason to believe, and do verily believe, and so far as they have been able to ascertain from the documents and exhibits of the complainants, or other evidence, till some time about the middle of May, 1828.

These respondents are further credibly and certainly informed, and do verily believe, that the real tendency and effect of those operations, as an adversary interference with the canal, were studiously masked and concealed by the complainants and their agents; and that they pushed them on with unusual and otherwise uncalled for hurry and precipitation, for the direct and concerted purpose of completely forestalling the chosen and well known route and site of the canal, before any of the persons materially interested in the conservation of its rights could have notice; and with such views and intents, that the agents who were employed by the complainants in making their locations of the rail road on the route of the canal, gave out [**51]  to the people in the neighborhood who witnessed their proceedings, that they were merely making experiments, and intended no interference with the canal; and some of the persons with whom contracts were made for cessions of their lands, were also informed by such agents, that the only intent and effect of such contract, were to give permission to the surveyors of the rail road to pass through. So much, however is certain, that it was not till about the 7th of June, 1828, that the persons principally concerned in the conservation, ad interim, of the rights and interest of the canal, (as the said central committee, the said commissioners appointed to open subscription books, and call the first meeting of the stockholders, the Secretary of the Treasury representing the interest of the United States in the stock of the company, and other principal stockholders,) received with the utmost surprise the first information that the agents of the complainants were proceeding with the utmost haste and secrecy in an attempt to forestall the chosen route and site of the canal, by making their surveys upon the most important and indispensable parts of it, and taking up the ground by contracts, with [**52]  the adjacent proprietors. Measures were immediately taken at Washington, by the persons principally interested, and with the concurrence of the Secretary of the Treasury, to despatch proper agents, and counsel, to ascertain the true state of the case, and to take the proper measures for the protection of the rights of the Canal Company. The bill of injunction in the name of this company, and of the Potomac Company, against the now complainants, &c. in Washington County Court, and the injunction thereon grounded, on the 10th of June, 1828, to which the complainants have referred in their said bills, were the result of those measures. To that bill, a copy of which is hereto annexed, these respondents also refer, and pray that it may be taken as part of this answer, now here re-asserting the material facts therein stated, and all the rights and immunities therein claimed and asserted on behalf of this company; of all which, they pray that they may have the like benefit, as if ever so formally averred or pleaded in this answer.

These respondents further answering say, that at the Point of Rocks where the Potomac intersects the ridge of the Kitoctin Mountain, and where the pretended [**53]  route of the said rail road is described by the complainants in their said bills, to strike the Potomac river, there is one of those narrow passes in the exact route and site of the canal as officially and definitively selected, surveyed, and laid down as aforesaid, which presents no choice of ground for the canal; but where for a considerable distance up the river along the foot of the mountain and its spurs, the canal is confined by the nature of the ground within certain primeval and unremovable barriers; as is more particularly shewn and illustrated by the topographical descriptions, maps and profiles of the engineers, herewith exhibited, and above referred to. Through the whole of this pass, the space between the jutting and precipitous rocks on the one hand, and the river on the other, is so narrow, that in order to obtain the proper and necessary breadth for the canal and its towing path, a solid and wide wall must be constructed in the river; and if the canal be intercepted and cut off by the rail road, or otherwise, from that single route through this pass, it must be completely intercepted, and cut off from the whole of its route above, and be either entirely stopped and [**54]  defeated, or compelled to the precarious, dangerous, and enormously expensive, and every way inconvenient and burdensome expedient of crossing to the opposite side of the river on an aqueduct, and then in order to regain its route to its western terminus, of re-crossing the river on another such aqueduct, at such unknown and uncertain point above, certainly not lower than Cumberland, as where it may please the complainants to allow them verge and space enough. Through all the space between these two points on the southern and eastern bank of the river, these respondents will then have to explore a new route and site for their canal; all the elaborate reconnaissances, surveys, maps, plans, &c. by which the present and appropriate route and site of the canal have been determined; all the estimates already made of its cost, inseparable as are their date from the localities of the actual route and site of the canal so determined, and upon the faith of which, and of the already ascertained practicability of that route, the subscriptions to the stock of the canal have been made; all the labors and expenses of years consumed by the engineers of the United States, and of this company and their [**55]  co-adjutors, in ascertaining these results, must then be utterly wasted and thrown away, and the whole progress be gone over again, on the opposite side of the river, at an immense increase of expense, and loss of time to the said Canal Company, and to the utter peril of the franchise bestowed on them by their charter, and every way to their inconvenience and oppression. Besides, if it were possible (which it is not,) for the said Canal Company, after deserting their appropriate route as already specifically selected, surveyed and laid down, and conceding to the rail road the choice of the site next the river, at any labor or expense, within the reasonable compass of human means, and at all commensurate with the object, to lay off and conduct the canal out side of the rail road, by cutting down the sides of the mountains and rocky precipices, that bound their operations through the said pass, and through many other narrow and difficult passes of a like description, and presenting some of them equal, and others nearly equal difficulties on the route in controversy from the Point of Rocks to Cumberland, to the proper level, and of the proper breadth for the canal and its towing path,  [**56]  so as to keep the canal on the same side of the river, with the rail road interposed between it and the river, all the way between those points, still the inconveniencies and impediments to the proper construction, supply and use of the canal, would be immense and incalculable, if not insuperable, by its being cut off and intercepted in so great a portion of its route, from its cognate source and appendage, the river, and the numerous and necessary feeders and communications between it and the river, the frequent and continually recurring necessity of such communications throughout that route, being indispensable alike to the proper construction of the canal and its appendages, as to the purposes of its intercourse, commerce and navigation, for which alone, it was and is designed. The above mentioned pass at the Point of Rocks, and for some distance above the point so called, is not the only one of that description, and presenting the like narrow and difficult bounds to the canal, on the route in controversy, from that point to Cumberland; but there are numerous others on that route, where the Potomac breaks through the numerous ridges, mountains, and rocky precipices, where it is [**57]  hemmed in by rocky and high banks, with a very narrow space between, and where in some instances equal, and in other instances nearly equal difficulty, labor and expense, to open and improve the site for the passage of the canal and its appendages, occur as at the Point of Rocks, as is more particularly shewn and illustrated by the documents above referred to, and cited for the topography of this last mentioned pass.

These respondents submit to the equity and discretion of this court, that even if originally, and by virtue of their prior grants and franchises, they had no priority of right to the choice and selection of the route and site of their canal, along the margin and bank of the River Potomac; if no authorized, determinate, and binding selection and designation of such route and site had been made, and if the complainants stood on a foot of perfect equality as to the date and origin of their franchise, still the preferable right of this company to conduct and construct their canal on the route and site in controversy, is just as absolutely determined by a concurrence of equitable and cogent circumstances, by the intrinsic qualities and faculties of these two works, and [**58]  by their respective relations to the means, the objects, and the uses of their construction, and to the nature of the obstructions and public inconveniencies which they are designed to remove by artificial means. Because, according to the complainants' own shewing, and the facts are otherwise true and notorious, they have the choice of two, or more, practical routes for their rail road, without any interference with the canal, or connection with, or even approximation to the river; the different routes only presenting some differences in the comparative labor and expense of construction; and these compensated, if they occur with any considerable increase on the more northern route originally proposed for the rail road, by the advantages and savings from directness of course and shortness of distance, as the principal and leading personages, both among the original projectors, and promoters, and the present managers and proprietors of the rail road, have repeatedly averred, and publicly contended; the principle and the operation of the lifting power of stationary steam engines, by which the rail road overcomes ascents, and gains new levels, admit of an infinitely greater diversity and [**59]  extent of application than that of the canal, circumscribed and limited as it is, by water levels, and are perfectly practicable and convenient, and within the ordinary compass of that power, either to overcome all the necessary ascents on the more northern and direct route first proposed for the said rail road; or if what the complainants designate the southern and circuitous route be preferred by them, to assume with ease and convenience, a higher level than the canal on that route, and leave the canal ample verge and room between the rail road and the river, there is no necessary or proper connection or dependence between the rail road and the river, either intrinsically, as regards the construction, appendages, and uses of the rail road, or relatively as regards the purposes of intercourse, trade, and commerce, which the rail road was designed to subserve; whereas the river is, as it were, the life-blood of the canal; and continual access and frequent communication from the one to the other, are inseparable from the very idea of the canal; and lastly, the complainants, before they took any step towards a change of their original route, for the one now in controversy, or towards [**60]  any claim or appropriation of the latter, or even contemplated any such change, claim or appropriation, had the most ample, direct and conclusive knowledge and notice of all the steps that had been taken to designate and appropriate this same route for the canal, they had the most certain knowledge that every procedure, practicable in the nature of things, had been adopted to consummate and render effectual such designation and appropriation for the canal route and site, both before and after the consummation of the charter to the said Canal Company by the passage of the act of Congress confirming it, and before the charter to the Rail Road Company was either enacted or projected; and that such designation and appropriation of the route and site of the canal, its ascertained practicability and facilities of execution on that route, and the estimates of its capital and cost, which were founded on the local circumstances of that route, all entered into the considerations, motives, and terms of the charter, and more distinctly of the subscription to the capital stock created by it; and with the entire notice and consciousness of all these circumstances, the complainants, at the very moment [**61]  when they perceived that the said Canal Company, then legally constituted a body corporate, were just coming into the actual fruition of the right thus claimed and secured to them, took advantage of their want of executive organization to forestall and oust them of that right, under the naked pretext that the proprietary right and title of the lands necessary to be purchased or condemned of individuals, had not been technically vested in the company. But these respondents are well advised by counsel, that they may lawfully and of right maintain before all courts of law or equity, and in all other places whatsoever, and they do now here maintain, that independent of any prior and specific location, survey, or appropriation, of any precise site or route of the canal, there was originally vested in and guarantied to the late Potomac Company, by virtue of their charter, the exclusive privilege, use and property, of the entire stream, bed and channel, of the river Potomac, with its branches and tributaries, and whatsoever as part, parcel, or appendage of the river, constituted any part of the public domain from tide water to the highest place practicable for navigation on the north branch [**62]  of that river; and over and above these, the prior and exclusive election, pre-emption and appropriation, by the prescribed modes of purchase or condemnation from all the adjacent lands of the individual proprietors, all along the banks, cliffs and low grounds contiguous to the river, and within the proper sphere and compass of any of the authorized operations of the company, of the proper ground for the route and site of the canal or canals, and the auxiliary works and appendages of the same, and of the materials for the same, contemplated and authorized by that charter; that this exclusive right and priority of election, pre-emption and appropriation, extended to all the lands of individuals and public domains within the precincts of any of the actual or possible operations of the said company, authorized by their said charter; and that within those precincts no other corporation in present or future existence, nor any other description or body of men whatever, collectively or individually, had or could acquire any right or title under any pretence of a right of way, road or improvement whatsoever, public or private, in any manner to restrict or confine the said Potomac Company,  [**63]  or their authorized operations under their charter, to any one among any possible number of locations or sites, or in any manner to diminish or circumscribe their free choice and election of the same; far less to exclude them from priority in the choice and election of the only, or of the most eligible, practicable, and convenient, and still less of previously elected and designed locations or sites, for the proper execution of the works authorized by their charter. That all these rights and privileges, in all their integrity, force and efficacy, have been and are duly and indefeasibly transferred to and vested in these respondents, by virtue of their said charter, and of the surrender and transfer to them from the late Potomac Company; with such extensions and modifications as the terms of this new charter and the extended and improved scheme and plan of the works thereby authorized, prescribe or require. That independent of any proprietary rights or corporate privileges and immunities specifically derived by these respondents from the late Potomac Company, all the rights, privileges and immunities herein before described or mentioned, as vested in or guarantied to the Potomac Company,  [**64]  and all the analogous rights, privileges and immunities, enlarged and modified in conformity to the scheme and provisions of the new charter of these respondents, and to the more extended and comprehensive plan of the works and improvements thereby authorized, were and are indefeasibly vested in and guarantied to these respondents by the sole force and effect of their own charter. That the charter of the said Rail Road Company does not, and of right could not, in terms, abolish or take away, or in any manner diminish or alter, in the whole or in part, either of the prior charters to the said Potomac Company, and to these respondents, or any of the corporate rights, privileges or immunities expressly granted or necessarily inferred from the said prior charters or either of them; and that neither of the said charters, nor of the franchises thereby created, can be abolished, taken away, or in any manner altered or diminished by implication; even if the legislature of Maryland were competent, which it was not, when the charter to the Rail Road Company was granted, to pass any law or grant any charter, or any right, title, privilege or authority, to be exercised under such law or charter,  [**65]  abolishing, taking away, or materially diminishing the said prior charters, or either of them, or any of the rights, privileges or immunities by them, or either of them, communicated to and vested in these respondents. That the charter granted to these respondents, as well as that to the late Potomac Company, being in the nature not only of a contract between the sovereign parties to it on the one hand, and the members of the body corporate thereby created on the other, but of a solemn and binding compact between those sovereign parties themselves, was, and is, altogether irrepealable and indefeasible, in the whole, or in any part, by either of these parties, without the concurrence of all; or by all without the assent of the corporation in which the rights, privileges and immunities granted by such charter, are vested and reside. That the said charter of the complainants, and the authority exercised, or pretended to be exercised under it, in so far as the same purport, or are, or may be construed and executed in derogation of the corporate rights, privileges or immunities granted and vested by the said prior charters, or either of them, are repugnant to the constitution of the United [**66]  States, and utterly inoperative and void; and lastly, that whatever the abstract right of prior choice and election claimed by these respondents in other possible routes or sites for their canal, and the incidental operations authorized by their charter, the ground designated for the route and site now in controversy, has been effectually elected and appropriated by these respondents to the exclusion of the complainants: of all which matters, these respondents crave all the benefit and advantage in this answer, that they might or could have had in any form of equity pleading whatever.

Of all the documents of title under which the complainants pretend a claim to the route and site in controversy for their rail road, and to the lands in controversy, as referred to, and it is presumed, filed with their said bills, these respondents or their counsel have only examined such, as were filed for enrollment in the clerk's office of Washington county, Maryland, as late as the 10th of June last, and the clerk's office of Frederick county, as late as the 11th of the same month; and the agreements with Henry and Frederick Dellinger, filed in this court with the complainants' bills against [**67]  those persons, in the same month; the documents so examined, comprehend, as these respondents are credibly and certainly informed, and verily believe, the whole of the said pass at and above the Point of Rocks, and some other of the like narrow and difficult passes on the route in controversy, and the identical route and site elected, designated and surveyed for the canal as aforesaid; and as to all the other documents of title set up and pretended by the complainants in the said bills, and therein referred to, as exhibits, such as deeds, agreements, locations, and specifications of locations, warrants for condemnation, &c. these respondents are not more particularly informed of their nature or authenticity, than what they collect from the allegations of the complainants in their said bills, and from careful inquiries in the country, into the nature and extent of the ground, covered by the claims of the complainants, in virtue of those documents, without any actual inspection of the documents themselves; and therefore, for greater certainty, they refer to the said documents, and exhibits themselves, and the authentication of the same; all of which, or office copies of such of the same [**68]  as have been duly recorded, these respondents presume, are, or ought to be filed, as the exhibits referred to, by the complainants in their said bills. The ground, which these documents import, an intent to bargain or sell, or appropriate, or in any manner to affect by location or condemnation, and which the complainants now claim in virtue thereof, for the route and site of the said rail road, throughout the whole extent of that ground upon or towards the line of the river Potomac, includes the identical route and site selected, designated and surveyed for the said canal as aforesaid, and all the slight variations of the same in the several reconnaissances, surveys, and locations made of the same as aforesaid; and every other practicable route and site for the canal and its appendages on the hither side of the river, from the Point of Rocks to Cumberland; or if there be any gap in those pretended appropriations of such ground for the rail road, where the ground designated for the route of the canal is not covered by that claimed under those documents, it would be rendered utterly useless and impracticable to these respondents, if the actual claims of the complainants were allowed,  [**69]  but whatever may be the local extent of the ground so claimed by the complainants in virtue of their said pretended locations, and appropriations of the same, the complainants, in their said bills; are understood to claim, as the fact is otherwise certain, that it comprehends the whole of the said pass at and above the Point of Rocks, and all the most difficult of the other narrow passes above described as on the route in controversy; and without the possession of which these respondents would be compelled to abandon the whole of the designated route of their canal, without having left to them any practicable route for the same on the hither side of the river.

The ground so claimed by the complainants in virtue of the several titles and documents referred to in their said bills, extends to the river Potomac itself, comprehending whatever of its margin and water may appertain to the lands, or rights of the individual proprietors; and in conducting the said rail road through several of the narrow and difficult passes above mentioned, the complainants would have to construct walls in the bed of the river, in order to get the proper breadth of their road, in like manner as these respondents [**70]  would have to do for their canal, at the same places; and these respondents have no doubt it is the plan of the said rail road, as devised and specified by the engineers of the complainants to construct such river walls.

These respondents do not know, admit or believe, that the complainants, had caused any comparative or experimental examination of what, in their said bills, they have described as the southern route for their said rail road, that is, of the route in controversy from the Point of Rocks to Cumberland, or any part of it, to be made, or that there was any recommendation of that route, founded on any preliminary examination of the same by their engineers, when they determined upon the attempt, in direct and concerted hostility to, and derogation of, the rights of these respondents, to adopt and appropriate that route to themselves, and commenced their operations in May, 1828, for the location of their road on that route, and the appropriation of the ground constituting the route and site of the canal as aforesaid; but these respondents are credibly and certainly informed, and do verily believe, that without any previous examination of that route by their direction [**71]  and authority, they suddenly despatched their agents, attorneys and engineers, sometime about or after the middle of May, 1828, (as to the precise time these respondents for greater certainty, refer to the documents of title, whether the deeds, agreements or warrants, exhibited with the said bills of the complainants,) to seize upon the said route by the means set forth in their said bills; and that, without any previous survey, or examination whatever, of the route on their part or behalf, they made their pitch at once, and in the first instance, upon the narrow and difficult passes above described on that route, "and wherever the character of the ground was such (according to the description of it by the complainants in the said bills,) as to leave but little choice in the location of the said road," and of course, no choice in that of the canal; that these measures were pursued with the most extraordinary and precipitant haste; their agents riding about and ranging the country with ceaseless activity day and night, hunting up the proprietors of the ground on the route, and soliciting from them cessions for the rail road; and with such anxious vigilance and activity, and celerity [**72]  of movement, were all their operations for the location of the site of the rail road, and for taking up and forestalling the proprietary rights in the ground, conducted by the agents of the complainants, and the officers of the United States serving them as engineers, that the party more resembled a partizan corps meditating or guarding against surprise, on the flank of an enemy, than persons engaged in the ordinary business either of contract or of civil engineering.

The engineers who were employed by the complainants on that service, were enabled to perform such of the said operations as fell to their share, (and they were not confined, as these respondents are credibly informed and believe, to operations within the ordinary sphere of engineers, either civil or military, but extended to solicitations and negotiations with the individual proprietors, for cessions of their lands,) with so much the more case and despatch, as most of them had before been attached to the said board of internal improvement, and actually engaged under the direction of that board in the reconnaissances and surveys of the route of the Chesapeake and Ohio Canal, and in making up the memoirs, topographical [**73]  descriptions, drawings, maps, and profiles of the route and plan of the canal as above stated, of which or of the geographical and topographical details and information derived from which, they made free and frequent use (as these respondents are further credibly informed and verily believed,) in their locations of the said rail road upon the said route; and these respondents have the strongest reason to think and believe, and do verily think and believe, that the complainants were urged to the instant commencement of these operations, and to the extraordinary haste and precipitancy with which they pursued them, entirely by the near prospect which they perceived of an organized board of president and directors for the efficient management of the affairs of the said Canal Company, and by a design to forestall, and defeat the expected operations of that board, to secure, by purchase or condemnation, the ground already designated and selected for the route and site of the canal.

In further confirmation of what these respondents have already averred, the full and detailed knowledge and notice of the long standing, authentic and notorious election and appropriation of the route and [**74]  site in controversy, for the canal, and of all the steps that have been taken to mark it out, and set it apart for that purpose, and how completely it had been incorporated and identified with the whole scheme and plan of the canal; with which knowledge and notice, the complainants, and their agents and engineers, commenced and carried on all their said operations to counteract and defeat these respondents, in the fulfilment of the great public and beneficial ends and objects of their institution; and in order more clearly to illustrate the inequitable use and application made of such knowledge, which, instead of serving as a protection to rights, the existence of which is communicated, was laid hold of, and used to overreach and defeat those rights; and how unscrupulously, in other respects, the very instruments and means dedicated to the advancement and execution of the scheme of the canal, have been converted into the instruments and means of the most deadly attempts against its vital interests, and the interests of the identical parties, who have provided those same instruments and means, and lent the aid of them to the complainants for a very different purpose; these respondents [**75]  say, that of the nine delegates from Baltimore to the said Canal Convention in December, 1826, eight of them were prominent and active members of the said meeting at the city of Baltimore, when the project of the said rail road was set on foot, and of the committees appointed by that meeting; and six of those eight actually attended the said convention, and took part in its deliberations and proceedings, as will more particularly and at large appear, by a reference to the above mentioned proceedings of the said Baltimore meeting and Canal Convention, one of them was appointed the president of the said Rail Road Company at their first election, and has ever since continued so; and was also appointed by the executive of Maryland, one of the commissioners to open the subscription books for the capital stock of the said Canal Company; and others of the said delegates were, it is believed, appointed directors of the said Rail Road Company; that the board of engineers, officiating for the said Rail Road Company, was always, and yet is in part composed, and their corps of field engineers was always, and yet is entirely composed of officers belonging to the several corps of engineers, and [**76]  of the army of the United States, and of the civil engineers in the service of the United States; all of whom were lent by the government of the United States to the complainants, to perform the scientific operations necessary to execute their then supposed plan of a rail road; and it is understood, the complainants enjoy the services of these engineers at public expense; that any idea of interference between the rail road and the canal, was then, and ever after, till the above mentioned intelligence reached and surprised the Secretary of the Treasury in June last, the remotest imaginable from the mind of the government, and was necessarily known to the complainants to be so: that of the various descriptions of engineers, so borrowed by the complainants from the public service, six had been before employed and actively engaged, under the above mentioned board of internal improvement, in the identical reconnaissance, surveys, &c. &c., of the route of the Chesapeake and Ohio Canal, in the years 1824, 1825 and 1826, communicated by the President to Congress, and published as above mentioned; all which will more particularly and at large appear by reference to the already recited reports [**77]  of the said board of internal improvement; and to the annexed document, certified from the War Department of the United States, containing the roll of the engineers detached from the public service, for the service of the complainants, with the orders from the chief engineer of the United States to the three principals among them; and also the roll of the various engineers in the service of the United States, constituting the said board of internal improvement, and its assistants, and the corps of engineers, of various classes actually employed, under the direction of that board in the various reconnaissances, surveys, &c., &c., of the route of the Chesapeake and Ohio Canal.

Now these respondents, as further advised by their counsel, and further answering, say, that by the pretensions set up by the complainants in their said bills, to oust and deprive these respondents of the route and site for their canal, here in controversy, and to intrude the said rail road upon the same, by the retrospective operations and effect of the rail road charter, or any other statute of Maryland, or of any other State, and in virtue of the pretended authority, which the complainants assert and exercise [**78]  under the said State, and their charter from the same, as set up and asserted in their said bills, there is now here drawn in question, the construction of the constitution of the United States, and especially of that clause of the same, whereby it is ordained and established, that no State shall pass any ex post facto law, or law impairing the obligation of contracts; and of the several statutes of the United States, to wit, the act of Congress, passed on the 30th April, 1824, appropriating thirty thousand dollars for the purpose of procuring the necessary surveys, maps, plans and estimates, upon the subject of roads and canals, &c.; the act of Congress, passed on the 3d March, 1825, confirming an act of the legislature of Virginia, incorporating the Chesapeake and Ohio Canal Company, and an act of the State of Maryland confirming the said act of Virginia, &c.; the act of Congress passed on the 23d May, 1828, to amend and explain the two last mentioned acts of Maryland and Virginia, &c.; and the two acts of Congress passed on the 24th May, 1828, the one authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company, the other enlarging the powers of the several corporations [**79]  of the District of Columbia, and for other purposes; under which said clause of the constitution of the United States, or under such other clause or clauses, and provisions of the same, as apply to, and operate on the case, and under which said statutes of the United States, or under such of them, and such parts of them, as apply to and operate on the case, these respondents, in virtue of their aforesaid charter, and of the several statutes and acts of Virginia, Maryland, and the United States, constituting such charter, or altering or amending the same, or anywise relating to the same, and in virtue of the rights and interests thereby, and by the authority of the same, vested in these respondents, do now here before this court, set up and claim their prior and preferable title, right and privilege, to construct their said canal, and its incidental works and appendages, on the precise route and site designated for them as aforesaid, and now in controversy; and to appropriate by the prescribed modes of purchase or condemnation, the lands and tenements in controversy, on, and near that route and site, and through which the said canal is intended to be conducted, and the necessary materials [**80]  found on such lands, for the construction of the said canal and its incidental works and appendages; and these respondents do now here set up, and claim before this court, under the constitution and statutes of the United States aforesaid, and in virtue of the rights, interests and authority, by force of the said statutes, and of the other laws aforesaid, vested in these respondents, an exemption of such, their prior and preferable title, right and privileges, aforesaid, from the operation and effect of the charter granted to the complainants as aforesaid, and of the pretended authority set up, asserted, and exercised under the same as aforesaid; and from all diminution and interference, under pretence of such charter or authority; and there is in like manner, now here drawn in question, the validity of the statute of Maryland incorporating the Baltimore and Ohio Rail Road Company, and of the pretended authority so set up, asserted, and exercised by the complainants under that statute, in so far as that statute, or that authority has been, is, or may be held or construed, set up, asserted, or exercised to operate any revocation, diminution, alteration or interference of, or with the [**81]  prior and preferable title, right and privilege so set up and claimed by these respondents as aforesaid, or in any manner to set up and assert any adversary title, right or privilege, or the pretence of such in the complainants; the said statute and the said authority, so set up, asserted and exercised under the same by the complainants aforesaid, being so far, and to every such intent and purpose as aforesaid, repugnant to the constitution of the United States; of all which matters these respondents crave all the benefit and advantages in this answer, that they might or could have had from any form of averment, or from any form or mode of equity pleading whatever.

The general replication was filed to the answer.

BLAND, chancellor, afterwards, on the 21st of July, 1829, with the consent of parties, ordered, that the three bills be consolidated, and that the answer filed on the 16th of May last, be received as an answer to said three bills so consolidated, subject to all just exceptions.

And on the 24th of September, 1829, on the motion to dissolve the injunction, he passed the following order.

The motion for the dissolution of the injunction heretofore granted in [**82]  this case, standing ready for hearing, the matter was opened, and the argument commenced by the solicitors of the parties, on the 21st of July last, and continued until the 6th of August following; when permission was given to add, by way of notes, some remarks upon such new matters as had not been presented in the opening, on the part of the plaintiffs. Whereupon a kind of supplemental argument in writing, was prepared on each side, which, with the pleadings and their exhibits, amounting, on the part of the defendants, to a very large mass, were submitted on the 19th of August last; since that time, I have read the proceedings, and maturely considered the whole case.

It appears that the plaintiffs, by their act of incorporation, were authorized, for the purpose of making the contemplated road, to enter upon, use and excavate, any land which might be wanted for the site of their road, or its necessary works; and to enable them to acquire a complete legal title to such land, upon making compensation for it, they were authorized to agree with the owner for the purchase of it; or if he were unwilling or incompetent to sell, or out of the county in which the property wanted, might [**83]  lie, they were authorized to obtain a warrant for having it valued and condemned to them in the mode prescribed; under these powers, they proceeded to enter upon the lands along the route they have described, as the site of their road thus located; and to procure a complete legal title to those lands, they agreed with the owners of some parts, for a legal conveyance, and had sued out warrants for the purpose of obtaining a legal title to other parts thereof, in that way. That neither the Potomac Company, (a body politic in existence at the time the plaintiffs filed their bill, and who were made defendants to it, but who have since been dissolved,) nor the present defendants, had ever, in any manner, acquired any title to the lands over which the plaintiffs had located their road; and that these defendants had, notwithstanding, attempted, and were about to obtain a legal title, in the modes authorized by their act of incorporation, for the identical same lands so entered upon, agreed for, or about to be condemned by the plaintiffs. By which means they would be enabled to interfere, very injuriously, with the rights of the plaintiffs, and involve them in great difficulties. To prevent [**84]  which, the plaintiffs prayed an injunction, which was accordingly granted.

The equity arising out of these facts, may be expressed to this effect: Where two or more are allowed, by law, to purchase and acquire a title to lands, upon certain conditions, and according to a prescribed mode of proceeding, he who does the first requisite act for that purpose, shall not be hindered in his further progress; because the law has thus held out a pledge, that no one else shall be permitted after that, so to interpose any obstacles, or to arm himself with a formal legal title, by means of which he may be, at least, enabled to litigate and embarrass, if not to overthrow, the right of him whose title had been thus, first begun. To refuse an injunction, in such a case, against an impertinent and wrongful intruder upon an inchoate title, which at common law is altogether defenceless, would be to stand by, and openly tolerate a race for the means and weapons of litigation and strife.

But the principles upon which this injunction rests, must be familiar to every one, at all acquainted with the origin of land titles in Maryland. A title to land may be obtained from the State through the land [**85]  office, among other modes, either under a common, or a special warrant; but when the legal title has been perfected under either, it relates back to the date of the special warrant, or the date of the certificate of survey, by which the particular parcel of land was designated, as that first act distinctly manifesting an intention to purchase that land so specified. After the taking of which first step toward a purchase, equity forbids any one else from interfering; and, if another person does attempt to intrude, he may be restrained in a summary way, by a caveat in the land office. The object of the caveat, as of the injunction, in this instance, is to prohibit the defendant from obtaining that to which he can have no just claim, and to prevent him from providing himself with the means of mischievous controversy. Upon these principles, I granted the injunction in this case; and I still feel satisfied that it was correctly granted.

The defendants, by their answer, have not denied, nor even questioned any of those facts upon which the plaintiffs' injunction reposes; those facts are all of them admitted, or not being denied, are now to be taken as true. But the defendants, taking [**86]  an extensive range, have gathered together and condensed in their answer, a great mass of facts and circumstances, showing, as they say, the notoriety of the public and early dedication of the ground in question, to the purposes of a canal; and they allege that there are numerous passes between the tide and Cumberland, where the Potomac breaks through the numerous ridges, mountains, and rocky precipices, where it is hemmed in by rocky and high banks, with a very narrow space between; which narrow passes being wholly taken up by the rail road, leaves no room for the canal to be constructed on the same side of the river, but at enormous expense, and which, in fact, produces such difficulties as to endanger their whole project. These allegations, and their whole case, as they state, are deducible from a multitude of acts, proceedings, and papers, which they have exhibited as a part of their answer; and all of which they aver to be public and authentic documents. In this manner they introduce a case, which, as they allege, is so sustained, that the court must take judicial notice of the facts of which it is composed; and those facts being so noticed, they give rise to a countervailing [**87]  equity, which avoids, displaces, and altogether overrules every equity upon which the plaintiffs can rely; and therefore they argue, that the court may with as much propriety, be called on now to dissolve the injunction in their case, so made out, as if they had shown a public act of the general assembly, the operation of which, displaced the equity, or was incompatible with the further continuance of this injunction.

There are some distinctions and principles which it will be useful to recall to our recollection, and constantly to bear in mind, in order to a more perfect understanding of this case. When speaking of a court of common law, or of its proceedings and powers, a distinction is always made between fact and law; and much is said in the books which treat of their proceedings, of this distinction; and it is shown, that in some instances, fact and law are inseparably blended. The difficulties with which those courts have to contend, as to where, and how, the line should be drawn between fact and law, arises, for the most part, from the peculiarity of their constitution. They are always constituted of two distinct branches, the judge, and the jury; to the judge alone belongs [**88]  the right to decide on the law; and the jury is only charged with the duty of finding the fact. All legal rules involve both law and fact; because the rule itself is either declared to be only applicable to a certain state of facts, or it is one which is assumed as always arising out of some particular fact. Every law is then nothing more than the incident, or consequence, annexed to a particular combination of facts, ex facto oritur jus--1 Stark. Ev. 406.  3 Atk. 36. In speaking of the proceedings in a Court of Chancery, the same distinction is made, and exists precisely in the same way, and to the same extent in all respects. The phrase is changed, and nothing more; we do not here speak of the distinction between fact and law; but of that between fact and equity; excepting only so far as a reference is made to the different constitution of the tribunals, the sense and meaning of the two expressions are exactly the same, to all intents and purposes. And if the chancellor were to have associated with him, a jury for the purpose of finding the facts, leaving him only to decide upon the equity, the same kind of difficulties would arise, and as often, in this court, as to [**89]  the proper distinction between fact and equity, as between fact and law, in a court of common law.

In the case of Salmon vs. Clagget, I endeavored to explain the principles by which this court had been, and would continue to be governed in relation to motions for dissolving injunctions. I stated that there was, or in many cases might be, a very clear distinction drawn between the facts composing the case on which the injunction rested, and those making up the whole case of the bill on which the relief was prayed; and the case presented by the answer, including as well the facts set forth in avoidance of, as those which are responsive to the bill. In a word, that as the equity arising out of each combination of facts, as its incident, must vary as the combination of facts essentially varied, it became necessary to determine what was that combination of facts to which the court must confine itself, on a motion to dissolve the injunction; and I then declared, that it must confine itself exclusively to the case, or combination of facts set forth in the bill, out of which the equity of the injunction arose, and to the answer of the defendants to those facts. Through the whole of the [**90]  explanation of this subject in that case, I took it for granted, that the distinction between fact and equity was perfectly understood, and constantly attended to; because it was a common, substantial, and elementary one. I was the more particular in the explanation of the peculiar, and often circumscribed nature of the case on which the injunction rested, because, as I there showed, the loose and general expressions of the English books upon this subject, however well adapted to the course of proceeding in that country, by no means conveyed a correct notion of the principles by which this court was governed; and because I perceived that although the New York adjudications, which are highly respected here, had in some cases, laid down the rule as it prevails here, and had declared it to be according to the reason of the thing; 1 Hopk. 276, 4 John. C. Rep. 499; yet they had in other cases, apparently deviated from it; 7 John. C. Rep. 323; and also because, the no less highly respectable decisions of Virginia, had sanctioned a course of proceedings in that State, which was wholly unlike ours, and as it seemed to me, unsuitable to the constitution of this court. 1 Hen. and Mun. 8.

In [**91]  this case much has been said about the injunction granted by the County Court of Washington. That case, as I have repeatedly declared, has no sort of necessary connection with this. The wrong complained of here, is the fact of the defendants endeavoring to purchase certain land which the plaintiffs were about to purchase, and to which they had previously begun to acquire a legal title. Now, I have not perceived from the pleadings in the case, or been able to gather from the arguments, that this matter of controversy is in any way involved in that suit, or that any judgment I can pronounce in this case, can in any manner bring this court in collision with the Washington County Court. There was, in truth, no necessity to have made the slightest allusion to the suit in that county court; but since that suit has been fully and specially referred to in this bill, I will here take occasion to remark, that this case has been thus made, to afford an example of the distinction, I endeavored to illustrate in the case of Salmon vs. Clagget, between the case on which the injunction rests, and the whole case of the bill upon which it prays relief. Here the plaintiffs state themselves to be purchasers,  [**92]  who had taken the first requisite step towards completing their purchase, and were going on to do so, when these defendants stepped in, and were attempting to take the bargain from them, or to put themselves in a condition to contest their complete title when it should be obtained. So far the facts were necessary to this injunction. The plaintiffs then introduce all the circumstances of the county court injunction and suit. Now, those facts could be of no service to them, as a basis for the injunction asked for here; but at the final hearing they might have been of use, as a reply to a charge of laches in not going on, with due diligence, to perfect the legal title they had begun, had it been alleged in the answer that they were unworthy of relief, because of any such negligence, since that county court injunction would have sufficiently accounted for the delay, and prevented its being thence inferred, that the plaintiffs had tacitly abandoned their incipient title. For that purpose, and as showing why the plaintiffs should be restored to those advantages, which they ought to have been allowed to derive from their first step toward a complete title, when that injunction, if at all,  [**93]  shall have been withdrawn, so as to allow them to proceed, are the only modes in which any thing that is said about the county court suit can have any bearing upon this case; and in this way, it furnishes an example in this suit, of the difference between the case of the injunction and that case, every part of which might have been necessary to give a sufficient foundation for the relief prayed.

In the consideration of a motion to dissolve an injunction, on the coming in of the answer, it is essentially necessary that these distinctions should be constantly borne in mind; and that we should be every way careful, not to confound the equity and merits of the case with that combination of facts of which the case is composed, and which gives rise to the equity upon which the injunction reposes. These distinctions are our chief or only guides through the mazes of the numerous and various allegations, averments, and arguments, which each one of the parties may introduce into the pleadings by which he exhibits his case to the court. In a court of common law, as regards the rights of the judge and jury, there may often be much difficulty in distinguishing between fact and law; but here,  [**94]  and in cases of this kind, the distinction between fact and equity being deduced from the pleading, is much more easily drawn. The allegations of the pleadings, so far as regards facts, are offered as by a witness giving testimony. The averments of fact in an injunction bill are sworn to, as by a witness, to cause the court to believe in their truth; and so believing in them, to perceive the incident equity arising therefrom, which will authorize the granting of an injunction. And a defendant is bound, and may be forced to make answer, on oath, to all the facts so stated in the bill; he responds, in many respects, as a witness; and his answer is evidence of facts, not of equity; consequently, if the pleadings in chancery are taken, as they certainly may be to this purpose, as the declarations of witnesses testifying to facts, the distinction between what must be regarded as facts, and what as equity, in a bill or answer, will be seen in a clear and striking point of view. A party speaking only as a witness, cannot be said to alter, or cause belief in any principles of equity, by making oath to their existence, since they are annexed to, and made incidents beyond his control, of certain [**95]  combinations of facts; and the court is bound, in the most emphatic sense, to take notice of all such principles without proof. Therefore, on a motion to dissolve an injunction, the best test of what are properly averments of fact, in a bill or answer, is, whether they are such matters as a witness might be called on to prove, or the truth of which must be established by evidence, to enable the court to act; if they are not, then they are either sheer principles of equity, or some of those public and established facts, such as the constitutionally appointed day of the meeting of the general assembly, or the like, of which the court is bound to take judicial notice without any proof whatever.

The defendants, in support of the position, that their case is substantially made up, only of such matters of which the court is bound to take notice, relied upon 1 Stark. Ev. 166. But the subject there treated of, can have no manner of relation to this case, as it now stands upon this motion. Here the position taken is, that no proof of any kind can be required; there, the inquiry is, concerning the public written instruments of evidence; the forms with which they must be clothed to entitle [**96]  them to be received as such, and of the nature of the matter, of which, they may be deemed sufficient proof. No one will question the soundness of the general principle there laid down. It amounts to no more than this, that the acts of the whole government, or any one of its departments, may be shown by giving in evidence those papers and documents which are the usual and established forms by which it exercises or manifests the powers belonging to it. In England, the king alone declares war; and therefore, a royal proclamation to that effect, is there held to be sufficient evidence of a state of war; in this country, Congress alone can declare war, and hence, here no instrument short of an act of Congress, can be deemed sufficient evidence of the United States having placed themselves in a state of war. This principle of evidence may, perhaps, be considered as alike applicable to all countries. But the showing that certain papers and proceedings may be used as evidence, for any purpose, by no means sustains the position, that the court is bound to take notice of them as public and authentic documents.  2 Camp. 44.

The general principle, as illustrated by the authority [**97]  relied on, applies only to the inquiry, what is proper and sufficient evidence of certain facts? The question here is, not as to the nature or the instruments of evidence, but whether the case, or the facts are such, of which no proof whatever is required; because of their belonging to that class of matters of which the court is bound to take notice. The position taken by the defendants, repudiates all proof; they aver, that their case is made up of that, which gives them a full dispensation from the necessity to produce proof of any description; and therefore, they invite the court so to look upon it, to sanction the truth of every part of it, and to act accordingly.

I take it to be clear, that as to all those facts and circumstances of which the court is bound to take notice, on a motion to dissolve an injunction, the parties stand before it in the same situation, as that in which, a dissolution is asked for, on the ground that the facts set forth by the bill, give rise to no equity upon which an injunction ought to be granted. It is a well established principle in equity, as well as at law, that a plaintiff can only obtain relief upon the strength of his own claim, and not [**98]  upon the weakness of that of his adversary; and therefore, if it should appear that the facts as stated in the bill, looking to it alone, gave rise to no equity, it is very certain, that the injunction would be dissolved, whether the defendants had answered or not, or however imperfectly they might have answered. Let it then be supposed, that an injunction had been granted to restrain the making of a canal, or the doing of any other act, under an impression, that the defendant had been clothed with no authority to do the act complained of, and it should be afterwards shown to the chancellor, that a public act of the general assembly, of which he was bound to take notice, had fully authorized that very act, it is certain, that he would, in such case, immediately dissolve the injunction, even without an answer, or without regard to the imperfections of the answer; consequently, if the exhibits of these defendants be in truth, as they have alleged, such public and authentic documents as the court is bound to notice, they might, by merely reading them to, or reminding the court of them, have obtained all the benefit from them which they could have had in any other way. If taken altogether [**99]  or separately, they give rise to such an equity as is incompatible with that on which the injunction rests, it must be dissolved. This might have been done by the defendants, without making any answer; but a defendant may, in general, insist on any matter, by way of answer, which he may take advantage of, by plea or demurrer; here the answer relies expressly upon that countervailing equity arising out of the combination of facts which it has set forth, in avoidance of the plaintiff's case; and therefore, if those facts are such as the court is bound to notice, their being couched in the form of an answer, cannot release the court from that obligation; nor can they be thus rendered, in any manner, less acceptable to the court, or less available to the plaintiffs, than if they had been shown in any other way.

It is laid down as clear law, that no evidence can be required to prove the existence of a fact, which must have happened according to the constant and invariable course of nature, or to prove any general law, or other public matter, of which the courts are bound to take judicial notice. An act of assembly relating to a public highway, is a public act of which they will take [**100]  notice; but of private acts they take no notice. 1 Stark. Ev. 163, 400. They take notice of the order and course of proceedings in each of the two houses of the general assembly.  1 Saund. 131; but not of their journals, or votes and proceedings; 1. Ld. Raym. 15; nor are those journals, when proved, evidence of any facts stated in the resolutions or reports of committees, which are not a part of the proceedings of the house: 1 Stark. Ev. 167. The courts of justice of the several States must take notice of all public acts of Congress, even including, (as may be admitted in this case,) those which relate exclusively to the municipal affairs of the District of Columbia; but they are not bound to notice any foreign law, or law of any other State of the Union. The acts of the other States of the Union to be admitted even as evidence, must be authenticated according to the act of Congress. The courts of justice are also bound to take notice of the civil geography of the State, as of the counties, districts, and cities, established by the State government; and also of the districts and ports which are the divisions made of it by the federal government; but they do not notice the [**101]  local situation of plains within particular counties, or the distance of counties from each other. 4 Bar. & Ald. 243. And although they will notice the extent of ports, 1 Stra. 469; yet the straightening of a port, by building too far into the water, where ships or vessels might have formerly ridden, is a matter of which they cannot take notice, but it is a question of fact to be determined by a jury upon evidence. Harg. Tr. 85. As regards the subject now under consideration, the obligation of the courts of justice to take notice of various matters and things, extends thus far, and no further. It only remains to inquire, therefore, whether those matters which the defendants have condensed into the form of an answer, and proffered to the consideration of the court, are some of those of which it is bound to take judicial notice.

The line of road to be formed by the plaintiffs, and the canal to be constructed by the defendants, are both of them, declared to be public highways; and therefore, the several acts by which they have been incorporated, are public laws of which the court is bound to take notice. The acts of Congress, and of the other States of the Union, in [**102]  relation to these two public highways, may also be noticed, on the ground, that they have been called for, recognized, or adopted by public laws of this State, which have actually taken effect; but no private act of this State, nor any legislative enactment of any other State, which has not been thus expressly invoked, and in a manner, introduced into the body of our public statute law, can be noticed by this court; and therefore, none of the acts of the legislature of Virginia, or of any other State, passed prior to, or which have not been adopted by those acts of ours, of 1826, ch. 123, and 1824, ch. 79, by which the plaintiffs and defendants had been incorporated, can be now noticed. It is also certain, that all the journals, reports of committees, and every thing else, found among the proceedings of any legislative body, must, upon the present occasion, be laid aside as matters which the court cannot now notice. As to the multitude of private papers referred to in the answer, such as proceedings of sundry meetings of respectable people, who gave themselves the name of conventions, private letters and the like, as it has not been very seriously contended, that they should be noticed,  [**103]  and considered, as public and authentic documents, in any respect so as to affect the rights of property any where, or to any extent, I may, without scruple or hesitation, throw aside the whole mass of papers of that description, at least for the present, as utterly unworthy of being judicially noticed without proof, for any purpose whatever. But the defendants in their answer, say, "that at the Point of Rocks, where the Potomac intersects the ridge of the Catoctin mountain, and where the pretended route of the said rail road is described by the complainants, in their said bills, to strike the Potomac river--there is one of those narrow passes in the actual route and site of the canal, as officially and definitively selected, surveyed, and laid down as aforesaid, which presents no choice of ground for the canal; but where for a considerable distance up the river, along the foot of the mountain and its spurs, the canal is confined by the nature of the ground, within certain primeval and immoveable barriers; as is more particularly shewn and illustrated by the topographical descriptions, maps and profiles of the engineers, herewith exhibited, and above referred to. Through the whole [**104]  of this pass, the space between the jutting and precipitous rocks on the one hand, and the river on the other, is so narrow, that in order to obtain the proper and necessary breadth for the canal and its towing path, a solid and wide wall must be constructed in the river; and if the canal be intercepted and cut off by the rail road, or otherwise, from that single route through this pass, it must be completely intercepted and cut off from the whole of its route above; and be either entirely stopped and defeated, or compelled to the precarious, dangerous, and enormously expensive, and every way inconvenient and burdensome expedient, of crossing to the opposite side of the river on an aqueduct; and then, in order to regain its route to its western terminus, of recrossing the river on another such aqueduct, at such unknown and uncertain point above, certainly not lower than Cumberland, as where it may please the complainants to allow them verge and space enough." From this the defendants argue, that by an act of Congress, which the courts of justice are all bound to notice, the president was authorized to order surveys to be made of the most suitable routes for roads and canals; that therefore,  [**105]  this court must take notice that the president did execute that law by ordering surveys to be made; that one of those surveys was made expressly for this canal, as a location of its route, and as a first step towards an absolute appropriation of the land along that route, to its use; that the maps and profiles now shown are those made to exhibit the result of that survey; and that those maps and profiles clearly show, that the canal has been either altogether intercepted and cut off, or most illegally and ruinously turned aside, from its rightful and destined route by the rail road. This is drawing consequence from consequence, and piling notice upon notice, to a great extent and height indeed. The act of Congress, as a public law, it is true, must be noticed; and because the law presumes, that every officer has properly performed his duty, until the contrary appears, it must be admitted that the president did order some surveys to be made, as required by that public law. But there is no adjudged case, or principle of law, which declares it to be the duty of the courts, to take judicial notice of the execution of any public statute whatever. If they were bound to take notice of the [**106]  manner in which this public act of Congress had been executed, then, upon the same principle, they would be bound to notice the manner in which every public statute was executed. There are many public statutes requiring acts to be performed by justices of the peace and constables; but to take judicial notice of the manner in which such officers had executed a public statute, and so to admit their ex parte proceedings to affect the rights of property, would be absurd and mischievous. The various modes in which the public statutes are carried into effect by the executive officers of government, are, in principle and in law, all proceedings of the same character; they are mere facts, and are not some among those public proceedings, of which, the courts of justice are bound to take notice; consequently, when, where, and how, those surveys were made, as authorized by the act of Congress, and the topographical maps and profiles exhibiting the results of any of them, are all matters of fact to be shown and established by proof; and even when they shall have been so established, it will remain a question how far they can be received, even as evidence, to affect the interests of any one who [**107]  was not a party to their being made, or who had not, in any way admitted their verity and correctness Abstracting then, every thing from the case of the defendants, of which the court cannot take notice, and there remains nothing left to them with which they can assail the equity of the plaintiffs, except their several acts of incorporation; but with these alone they have attempted to maintain their ground.

I have read the act incorporating the plaintiffs, and also that incorporating the defendants, and compared them with each other. These two bodies politic are entirely distinct in all respects; there is not one single sentence in the acts, by which either has been incorporated, which has the most remote allusion to the other; nor does the sense of any expression contained in either of their acts of incorporation, in the slightest degree, indicate that there probably may, or possibly can arise, any jarring between their respective franchises, or collision of their several interests, in any way whatever. From all or any thing apparent upon the face of those legislative enactments, there is no room to infer, that each one of these two corporations may not proceed in all their operations,  [**108]  without the least interference with the other. If then, upon the face, and according to every fair reading of these several acts of incorporation, all is harmonious between them, the discord can only have arisen from the manner of executing the one or the other, or both of those laws, and in no other way; and that this controversy between these parties has only originated in that way, appears to be admitted by the defendants themselves. In their answer they say, that "according to the complainants' own showing, and the facts are otherwise true and notorious, they have the choice of two or more practicable routes for their rail road, without any interference with the canal, or connection with, or even approximation to the river; the different routes only presenting some differences in the comparative labor and expense of construction; and these compensated, if they occur, with any considerable increase, on the more northern route originally proposed for the rail road, by the advantages and savings, from directness of course, and shortness of distance, as the principal and leading personages, both among the original projectors and promoters, and the present managers and proprietors of [**109]  the rail road, have repeatedly averred and publicly contended, the principle, and the operation of the lifting power of stationary steam engineers, by which the rail road overcomes ascents, and gains new levels, admit of an infinitely greater diversity and extent of application than that of the canal, circumscribed and limited as it is by water levels; and are perfectly practicable and convenient, and within the ordinary compass of that power, either to overcome all the necessary ascents on the more northern and direct route first proposed for the rail road, or if, what the complainants designate the southern and circuitous route be preferred by them, to assume, with ease and convenience, a higher level than the canal, on that route, and leave the canal ample verge and room between the rail road and the river; there is no necessary and proper connection or dependence, between the rail road and the river; either intrinsically, as regards the construction, appendages and uses of the rail road, or relatively, as regards the purposes of intercourse, trade, and commerce, which the rail road was designed to subserve; whereas the river is, as it were, the life-blood of the canal; and continual [**110]  access and frequent communication, from one to the other, are inseparable, from the very idea of the canal." Here, it is distinctly alleged by the defendants, that the injury they complain of, has arisen altogether from the location which the plaintiffs have given to their road, under their act of incorporation; that is, not from the law itself, but from the execution of the law.

The defendants insist, that by virtue of their grants and franchises, they have a priority of right to the choice and selection of the route and site of their canal, along the margin and bank of the river Potomac. They mainly, and in every way, rest upon this priority of right to a choice of routes. If it exists at all, it must be founded upon the various facts and circumstances, as shown by them, when taken in connection with the acts of the general assembly, by which they have been incorporated; or it must be based upon those acts of assembly alone. But if, as in the first supposition, its foundation is composed of those facts taken with the law; then it certainly cannot avail them, upon the present motion, because, as has been shown, those facts are none of them, of that character of which the court [**111]  can now take notice and act upon. Take the other supposition; and let their alleged right be admitted to have been expressly given by a public law, of which the court must take notice; even then they cannot avail themselves of it upon the present motion; because they have been deprived of it, as they themselves state, not by the act itself by which these plaintiffs have been incorporated, but by the manner in which that law has been executed; which mode of executing the law, is clearly a matter of fact of which this court cannot now take notice.

I do not understand, that the defendants contend for an arbitrary and whimsical right of choice, which, without regard to their own real interests, may be capriciously turned against the plaintiffs, or any others, merely for the purpose of intercepting their line of operations. They certainly cannot claim such a right, with any design to use it, for the very same evil purposes of which they themselves now complain; it must be, therefore, that the right of choice for which they contend, is one, which, in its exercise, is to be governed by fairness, justice, and equity. If this be the kind of right for which they contend, and none other [**112]  could be sanctioned by a Court of Equity, then it is evident, that the court has not, as yet been furnished with the means of forming any fair and correct judgment upon the subject. It has heard, so far, only the allegations of one side, and that that too, without any proof in support of those allegations which it can allow itself to notice, and act upon. The bill and all the allegations of the plaintiffs are perfectly silent in respect to this right of choice, as now claimed by the defendants. The claim, and every fact relating to it, make their appearance, for the first time, in the answer of the defendants. The plaintiffs could not be, nor were they expected to come prepared for a vindication of their rights, so far as they are implicated by this claim;--their case, as shown by their bill, either as necessary to an injunction or to relief, called for no such disclosures as the defendants have set forth respecting this claim of a right of choice; and consequently, every thing relating to it, is entirely new matter, advanced in avoidance of the plaintiffs case, and concerning which they have yet had no opportunity to show any thing, on their part. Justice and equity, therefore, do [**113]  most manifestly require, that the injunction heretofore granted, upon an equity which the defendants have been unable, otherwise, to controvert, should be continued until the validity and extent of the claim of the defendants can be examined, and ascertained upon surveys and evidence, which each party may be allowed to make and produce; and from which the court may be furnished with the means of determining, whether or not, these two apparently harmonious acts of incorporation, have, in reality, by the improper execution of one of them, been brought into ruinous conflict with each other.

If, upon an order of survey, authorizing these parties to lay down their respective pretensions, in the usual manner, and on the return of such topographical maps and profiles as may be specially directed, if required, the fact appears, that the location of the rail road does deprive the canal of its most suitable and advantageous route, then the question will fairly arise, and be correctly presented to the court; whether the defendants have a priority of right, to the choice and selection of the route of their canal, or not. The extent of the interference and the nature of the collision between [**114]  these two bodies politic, will then, and in that way, be clearly and properly presented, according to the showing and proofs of both parties.

Commissions to take evidence were issued, the last of which was returned on the 27th May, 1831. It is not deemed necessary to recite any part of the proof, as those portions, that bear on the question decided by this court, are adverted to, by the judge who delivered the opinion of the majority of this court.

BLAND, Chancellor, (September term, 1831.)

This case standing ready for hearing, and the solicitors of the parties having been attentively heard, the proceedings were read, and maturely considered. Whereupon it is adjudged, ordered, and decreed, that the injunction heretofore granted in this case, be, and the same is hereby confirmed, and made perpetual. And it is further adjudged, ordered, and decreed, that the defendants, The Chesapeake and Ohio Canal Company, pay unto the said plaintiffs, The Baltimore and Ohio Rail Road Company, all their costs expended by them in this suit, including all the expenses of the survey, to be taxed by the register.

From this decree the defendants appealed to the Court of Appeals.  

DISPOSITION:
DECREE [**115]  REVERSED AND BILL DISMISSED.  

HEADNOTES:

In the month of June, 1828, The Baltimore and Ohio Rail Road Company, claiming under their charter, and in pursuance of locations, surveys and purchases of a route for a contemplated rail road, filed several bills in the Court of Chancery, against the Chesapeake and Ohio Canal Company. These bills suggested, that the defendants had obtained an injunction prohibiting the complainants from obtaining a title, or right of way, to their located route, and having thus stopped the progress of the complainants' undertaking, were proceeding in their turn, upon the assumption of a prior and paramount right of choice, to acquire title to the route surveyed and adopted by the complainants. The Chancellor upon this case granted an injunction. The defendants in their answers relied upon a prior right of choice to the route in controversy, and that it was impracticable for both companies to occupy it, for the purposes of their several charters. The Chancellor, upon final hearing, granted a perpetual injunction to the complainants, from which, an appeal was taken. It appeared, that the Baltimore and Ohio Rail Road Company's charter, was granted by this State on the 28th February, 1827. It declared that as soon as 10m. shares of the capital stock should be subscribed for, the subscribers should be incorporated; and it authorized the construction of a Rail Road from the city of Baltimore to some suitable point on the Ohio river, with as many tracks as the Directors might deem necessary, with power to enter upon, use, excavate, purchase, and condemn any land which may be wanted for the site of the road, and its necessary works. On the 23d April, 1827, this company was fully organized; its surveys of, and contracts for the route, were made in May and June, 1828. The charter of the Canal Company originated with the State of Virginia, and was passed upon the 27th January, 1824. It authorized the appointment of commissioners to receive subscriptions to its stock, so soon as Maryland, Pennsylvania, Congress, and the Potomac Company, should assent to its provisions and declared that whenever one-fourth of the stock "shall have been subscribed for," then the subscribers, their heirs and assigns, should be incorporated; it also provided for the Canal Company becoming the assignee and proprietor of the rights and property of the Potomac Company, which was chartered in 1784, to cut such canals, erect such locks, and perform such other works on both sides of the river Potomac, as it shall judge necessary, for opening, improving, and extending the navigation of that river, above tide water to the highest part of its north branch to which navigation can be extended, the stockholders of that company receiving an equivalent for the transfer, in the stock of the new company. This charter was accepted, assented to, and confirmed by this State upon the 31st January, 1825; and by Congress so far as to authorize a canal to be cut in the District of Columbia, upon the 3d March, 1825; by the Potomac Company upon the 16th May, 1825; and by Pennsylvania, conditionally, upon the 9th July, 1826. On the 14th November, 1827, the stock of the Canal Company was subscribed for, and on the 20th June, 1828, it was duly organized. On the 15th August following, the Potomac Company transferred its rights to the Canal Company, and this transfer was accepted upon the 17th September, 1828. The canal charter designated the valley of the Potomac for the route of the intended canal. It was in proof that between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, (which embraced the route in controversy,) there were between 40 and 50 miles of narrow difficult passes, along which, the canal, if made without reference to the rail road, would have to be supported by embankments made in the bed of the river, many feet below the usual low water mark; that if the Rail Road Company has the choice of location, then the canal could either not be built at all, or at such an enormous cost as to render it impracticable. HELD, that the Chesapeake and Ohio Canal Company has the priority of right in the choice, or selection of ground, for the route and site of the canal in the valley of the Potomac, that the injunction should be dissolved, and the bills dismissed with costs.

Upon the true construction of the charter of the Potomac Company, (act of 1784, ch. 33) the great object in view, was the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch of that river, and the means such, as might be considered by the corporation necessary, and proper, for the accomplishment of that object, whether by sluices, dams, locks, or by canal navigation. The company was not restricted to improvements in the navigation of the bed of the river, nor to an election between different modes of improvement.

Under this construction of that charter, the valley of the Potomac, from tide water to the highest practicable point of navigation on the north branch, was specifically appropriated to the object contemplated; and at the time the Company was formed, or became incorporated, it acquired a vested right (not the actual legal title to the land) to acquire land by purchase or condemnation along the shores of that river, to be exerted, wheresoever and whensoever, it should be thought necessary and proper, for the purposes of the charter.

The charter of the Potomac Company was a contract between the States of Maryland, and Virginia, and that Company, the obligations of which could not, without the assent of the corporation, be impaired by any act of the legislature of either of the States, nor by the concurrent acts of both, consistently with that section of the constitution of the United States, which declares that "no State shall pass any law impairing the obligation of contracts."

The charter of the Baltimore and Ohio Rail Road Company (1826, ch. 123,) could not diminish the prior and paramount right of the Potomac Company to select or appropriate, by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper along the borders of the river, either in terms, or by any construction of it, that would have authorized the Rail Road Company, without the assent of the Potomac Company, to occupy for the route and site of the road any place along the river, in such a manner, as either to exclude that Company from a priority in a choice of a site or sites, for the construction of the works authorized by its charter, or in any manner to restrict and circumscribe it in the exercise of its prior right of election.

The Chesapeake and Ohio Canal Company, as the assignee of the Potomac Company, stands in its place, is invested with its prior and paramount rights, by express legislation of this State, and transfer from the Potomac Company, and is entitled to all its privileges and exemptions.

Neither Maryland, nor Virginia, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of the Potomac Company, nor have received or authorized the surrender of it, and its works, to another company. The canal was declared to be, when completed, a public highway through the territories of the sovereign powers which created the Potomac Company, in which the United States were interested.

The consent of Congress to the charter of the Chesapeake and Ohio Canal Company was not given as the legislature of the District of Columbia. Congress has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of legislature of the Union, in which capacity, it assented to that charter, and no State, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress as the legislature of the Union.

The Potomac Company having surrendered its charter, and transferred all its rights and property to the Chesapeake and Ohio Canal Company, with the assent of Congress, Virginia and Maryland, in consideration of a stipulated equivalent in the stock of the Canal Company, the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company, the State of Maryland could not by subsequent legislation, impair the rights of the new Company without the consent of the parties interested.

The charter of the Chesapeake and Ohio Canal Company, clearly and specifically designates the valley of the Potomac, for the intended route of the canal it was enacted to open, from tide water to Savage Creek.

In the construction of a statute, the whole law is to be examined together, and one part construed by another, with a view to give effect and operation to the whole, if it can be done.

It is laid down in some of the books, that in construing a statute, the title (being no part of it) is not to be regarded, but we have high authority in this country for a different rule of construction. The title, however, cannot control the express words of the enacting clauses.

The preamble of a statute is a key to its construction.

Where a corporation was created to effect a particular object, as to make a river navigable which was not so before, and no particular mode of accomplishing that result was pointed out in the charter, it will be intended, that the legislature designed that the river was to be made navigable, in any of the known modes, in which the navigation of a river may be improved.

A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings, instituted for that purpose, at the instance of the government; and that no cause of forfeiture can be taken advantage of collaterally or incidentally; and the same principle applies, as well, to a question of forfeiture of a particular franchise, as of the whole.

It is not every non-user that will furnish a sufficient ground of forfeiture.

Where there are various alternative modes of exercising a franchise, authorized without limitation of time by a charter, subject each of them to be changed at the will of the corporation, no experimental trial of one of the modes, could work a forfeiture of the right to resort to either of the other modes, during the continuance of the charter.

There is no difference in principle, between a law that in terms impairs the obligation of a contract, and one that produces the same effect in the construction and practical execution of it; both are repugnant to the constitution of the United States, and void.

Where the grant of an estate in land is defeasible on the non-performance of a condition subsequent, it is not defeated upon the mere happening of the contingency upon which it is defeasible, but the law permits it to continue beyond the time when such contingency occurs, unless the grantor or his heirs take advantage of the breach of such condition.

The proceeding by the government for the breach of a condition subsequent, contained in a charter of incorporation, is by scire facias, or quo warranto.

A private corporation aggregate may be dissolved by the death of all its members; or by the loss of an integral part, whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or by a surrender to the government of its franchises; or by an act of the legislature repealing the act of incorporation with the assent of the corporation; or by a forfeiture of its charter through abuse or neglect of its franchises, as for a condition broken, there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution.

A forfeiture must be judicially inquired into, but a dissolution need not be.

Every law which is to wrest from an individual his property, without his consent, must be strictly construed.

All statutes in pari materia are construed as one law.

A State may contract with an individual, and it is equally certain, that two or more of the States may enter into a compact or agreement inter se.

A State may contract with an individual by an act of the Legislature, and two or more States may contract in that form, inter se.

No technical words are necessary to constitute a compact or contract, which are convertible terms, and neither need be used in the instrument creating it.

It is a mutual consent of the minds of the parties concerned, respecting some property or right that is the object of the stipulation, or something that is to be done or forborne, a transaction between two or more persons in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other, and any words manifesting that congregatio mentium, are sufficient to constitute a contract.

The terms "accept" and "assent to," are words of contract, and it was by virtue of such and similar terms in the constitution of the United States, that the Federal Government, when it received the sanction of the people, and the requisite number of States, became a compact between the parties to it and the Federal Government, and not a mere confederacy or league.

A charter being a grant, is an implied contract with the corporation not to reassert the rights it has granted.

The corporate right to select and acquire land for the authorized purposes of a corporation, is property. It is an incorporeal hereditament, not a legal title to the land itself, nor a mere capacity or faculty to acquire and hold land, such as every individual possesses. But in addition to such capacity, it is a right or privilege, a portion of the eminent domain, vested in the corporation to acquire the legal title to land, subjected by the grant to its will, and thus to convert the incorporeal right into a corporeal hereditament, and in the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another to the prejudice of the former grant--nor can any other legally acquire any such right of way, or title to land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise.

In ordinary cases the State may repeal or modify at pleasure any act of incorporation granted by it, before it is accepted, and when no rights have been acquired under it. Until accepted it is not a grant, nor the public faith pledged not to impair it.

But in relation to the Chesapeake and Ohio Canal Company, although it was not actually incorporated, and had not accepted its charter before the Baltimore and Ohio Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation came into existence, on the ground of the compact and agreement of Congress, and the States of Virginia and Maryland, inter se, and between them and the Potomac Company, arising from the reciprocal and concurrent acts of the three former, and the assent of the latter, the consummation of which, was the consent of the Potomac Company, given anterior to the date of the Rail Road Charter, and under the Constitution of the United States, cannot be impaired by any thing contained in that charter.

An abridgement of the right of choice in selecting the route, impairs the obligation of the contract.

As between the holders of general or common land warrants, there is no priority of right to locate; this warrant, is a mere authority to the Surveyor or proper officer to make the survey, and the certificate is the inception of title, to which, the patent, when issued, relates. The title remains in the State until the warrant is located, and will pass under a junior warrant, if first executed.

But it is not so with an act of incorporation, which when accepted, amounts to a grant, and the right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other. It is a prior right to which all subsequent grants must yield.

A chartered company may lose its prior right by acquiescing in other works, inconsistent with such rights.

Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the statute, or from foreign circumstances, and when discovered ought to be followed, though such construction may seem to be contrary to the letter of the statute.

If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand; and when two laws only so far disagree or differ, as that by any other construction they may both stand together, the rule, that subsequent laws abrogate prior and contrariant laws, does not apply, and the last law is no repeal of the former.

Repeals of statutes by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable.

When it is manifestly the intention of the Legislature that a subsequent act shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former act.

Upon the motion to dissolve an injunction, the Chancellor confines himself exclusively to the consideration of the case, or combination of facts set forth in the bill, out of which the equity of the injunction arose, and to the answer of the defendant to those facts. PER BLAND, CHANCELLOR.

The best test of what are properly averments of facts in a bill or answer, is, whether they are such matters as a witness may be called upon to prove, or the truth of which must be established by evidence, to enable a court to act; if they are not, then such averments are either, mere principles of equity, or some of those public and established facts, of which, the court is bound to take judicial notice without any proof. IB.

As to all those facts and circumstances of which a court is bound to take notice, on a motion to dissolve an injunction the parties stand before it in the same situation, as that, in which a dissolution is asked for, on the ground that the facts set forth in the bill give rise to no equity, on which an injunction ought to be granted. IB.

If it appears that the facts as stated in a bill, looking to it only, give rise to no equity, it is very certain that the injunction would be dissolved, whether the defendant had answered or not, or however imperfectly he might have answered. IB.

No evidence can be required to prove the existence of a fact which must have happened according to the constant and invariable course of nature, or to prove any general law, or other public matter which the courts are bound to notice. IB.

It is not the duty of the courts to take judicial notice of the execution of a public statute. The various modes in which public statutes are carried into effect, by the executive officers of government are mere facts, and must be proved as facts. If relied upon to avoid an equity upon which an injunction was rightfully granted, upon the motion to dissolve, the court cannot notice them. IB.  

COUNSEL:
Walter Jones, and A. C. Magruder, for the appellants.

Daniel Webster, and Reverdy Johnson, for the appellees.  

JUDGES:
The cause came on to be argued before BUCHANAN, Ch. J., EARLE, STEPHEN, ARCHER, and DORSEY, J. EARLE, and STEPHEN, J. concurred. ARCHER, J., DORSEY, J., dissenting.  

OPINIONBY:
BUCHANAN 

OPINION:

 [*72]  BUCHANAN, Ch. J., delivered the opinion of the court.
The charter of the Potomac Company, was created by the mutual and concurrent legislative acts of Maryland and Virginia, in the year 1784, to which there are many supplements.
The act for incorporating the Chesapeake and Ohio Canal Company, was passed by the legislature of Virginia on the 27th of January, 1824. The 1st section of which has this provision, "that so soon as the legislatures of Maryland and Pennsylvania, and the Congress of the United States, shall assent to the provisions of this act, and the Potomac Company shall have signified their assent to the same, by their corporate act, a copy whereof shall be delivered to the executives of the several States aforesaid, and to the Secretary of the Treasury of the United States, there [**116]  shall be appointed by the said executives, and President of the United States, three commissioners on the part of each State, and the government of the United States," for the purpose among other things, of causing books to be opened under the management of "persons to be by them appointed for receiving subscriptions to the capital stock of the company," &c. And by the 22d section it is enacted, "that this act or so much thereof as respects the canal and works designed to be constructed in the District of Columbia, and the states of Virginia and Maryland, shall take effect, with such necessary modification in the construction thereof, as shall fit it for such limited application or use, upon the assent of the Congress of the United States, and the legislature of Maryland being given thereto; and upon its receiving the further assent of the legislature of Pennsylvania, the whole and every section, and part thereof, shall be valid and in full force and operation."
In an act of the legislature of the state of Maryland, passed on the 31st day of January, 1825, at the December session, 1824, entitled, "an act to confirm an act of the general [**117]  assembly of the state of Virginia," entitled, "an act incorporating the Chesapeake and Ohio Canal Company," after  [*73]  reciting that act, the assent of the legislature is given to it in these words, "that the said act of the general assembly of Virginia be, and the same is hereby accepted, assented to, and confirmed."
In an act of the Congress of the United States, passed on the 3d of March, 1825, entitled, "an act confirming an act of the legislature of Virginia," entitled, "an act incorporating the Chesapeake and Ohio Canal Company," and an act of the State of Maryland confirming the same, the assent of Congress is given in these words, "that the act of the legislature of the State of Virginia, entitled, 'an act incorporating the Chesapeake and Ohio Canal Company,' be, and the same is hereby ratified and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed by the authority of the said act of incorporation, to carry into effect the provisions thereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no further." And on 16th of May,  [**118]  1825, the full and unqualified assent of the Potomac Company was declared and signified by a corporate act, in the manner required; with authority to the president and directors of that company, to surrender its charter, and convey all the property, rights and privileges, owned, possessed, and enjoyed under it, to the Chesapeake and Ohio Canal Company, agreeably to the provisions of the 13th section of the act incorporating the latter company; which surrender and transfer, the same section empowers the Chesapeake and Ohio Canal Company to accept. So that on the 16th of May, 1825, the act incorporating the Chesapeake and Ohio Canal Company, or so much thereof, as respects the canal and works designed to be constructed in the District of Columbia, and the States of Virginia and Maryland, in the language of the 22d section of that act "took effect," the assent of the Congress of the United States, and of the legislature of Maryland having been before given to it; and the assent of the legislature of Pennsylvania being by the same section dispensed with, so far as respects those portions  [*74]  of the contemplated canal, and only [**119]  required in relation to the part proposed to be made in that State. Still the assent of the legislature of Pennsylvania, on certain conditions not material in the examination of this case, which relate only to a portion of the canal designed to be constructed in this State, was given by an act of the 7th of February, 1826--and commissioners were appointed as authorized by the charter, by the President of the United States, and the executives of Virginia and Maryland, for receiving subscriptions to the capital stock of the company, &c.
On the 3d of December, 1823, the President of the United States, adverting in his message to Congress, to the proceedings of a convention, called the Chesapeake and Ohio Canal Convention, (which had sat at the city of Washington in the preceding month of November,) in relation to the scheme of the Chesapeake and Ohio Canal, recommended the authorizing by an adequate appropriation, the employment of a suitable number of the officers of the corps of engineers, to examine the ground, and report their opinion thereon. On the 30th of April, 1824, an act of Congress was passed in pursuance thereof, appropriating $ 30,000 [**120]  for the purpose of procuring the necessary surveys, plans and estimates, upon the subject of roads and canals. In the month of May, 1824, the President appointed a board of internal improvement, who were, on the 31st of the same month, instructed to "proceed to make an immediate reconnaissance of the country between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, &c." "for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable route for the same, and of forming plans and estimates in detail, of the expense of execution, and to use every possible exertion to have their report prepared in time, to be submitted to Congress at their next session. On the 2d of February, 1825, the board of engineers for internal improvement, made a report of their proceedings,  [*75]  accompanied by surveys, maps and profiles, but without any estimate of the probable cost of the projected work, which was communicated to Congress by the President, on the 14th of the same month. At this time, neither the assent of Congress, nor of the Potomac Company, had been given to the act [**121]  of incorporation. That report which was immediately printed and published, by order of Congress, asserts the entire practicability of a communication between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, by a continuous canal, which, in the report, surveys and maps, is called the Chesapeake and Ohio Canal; and that portion of it extending from the tide waters of the Potomac, to the mouth of Savage river, on the north branch of the Potomac, is designated as the eastern section, which, in the report is described in these words; "this section ascends the valley of the Potomac, as the several ridges which that river traverses and breaks through, oblige to follow its course without any deviation, the side on which it should ascend along the river, is the only choice left to the engineer."
The route of that section throughout its whole course, as surveyed and laid down by the board of engineers for internal improvement, is in the valley of the Potomac, along the shores of the river; particular places being marked, as suitable points for crossing the river from shore to shore, should it be found necessary,  [**122]  but a preference being given to the north or left side. Thus, they say in one part of the report, "this short analysis is sufficient to show, that the northern side of the valley offers the best ground for receiving the bed of the canal." And after describing the valley, they say, "such are the local features of the valley through which this section of the canal, east of the Alleghany must be directed."
On the 6th March, 1826, the legislature of Maryland passed a law for the promotion of internal improvement, incorporating a company to be called, "The Maryland Canal Company," to make a canal "from some convenient point  [*76]  on the Potomac River, intersecting or continuing The Chesapeake and Ohio Canal to the city of Baltimore;" authorizing a subscription by the treasurer, for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company owned by the State, and of the debt due to the State by that company; and also authorizing the treasurer to subscribe for 5000 shares of the stock of the Chesapeake and Ohio Canal Company, on condition among other things, that the Congress of the  [**123]  United States should by law, authorize a subscription for not less than ten thousand shares of the capital stock of the eastern section of that canal, with a proviso, that the executive of the State, "shall previously be satisfied, that the residue of the sum of money estimated by the United States' board of engineers, to be adequate to the completion of the eastern section of the Chesapeake and Ohio Canal, after deducting the amount of the subscriptions of the State of Maryland and of the United States, therein provided to be made, hath been actually subscribed by bona fide and competent subscribers." Thus recognizing the board of engineers for internal improvement, and sanctioning the survey and location, they had made of the route of the eastern section of the Chesapeake and Ohio Canal, through the valley and along the shore of the river Potomac, which was the basis of the estimate to be made by them of the amount necessary to the completion of the canal. On the 8th March, 1826, permission was given to the State of Pennsylvania, by an act of the legislature of Maryland, to make any canal or rail way, "to connect with the Chesapeake  [**124]   and Ohio Canal."
On the 23d October, 1826, the board of engineers for internal improvement made a report exhibiting a plan, and estimate of the cost of constructing the canal; which report was communicated to Congress on the 7th December, 1826, and printed and published by order of Congress. The estimated cost of the eastern section from Cumberland to Georgetown, 186 miles, is $ 8,177,081 05, which estimate is  [*77]  made upon the basis of the survey, before made and reported by them on the 2d February, 1825, confining the route of that section to the valley of the Potomac; and upon the construction of the canal, upon, and along the Maryland shore throughout. The engineers in their report, say, "after due investigations upon this subject, we remain convinced, that it is more expedient, less expensive, and liable to less accidents, to keep without deviation, on the same side of the valley; and the Maryland side has received the preference, for the following reasons, &c." Their estimate of the cost of the whole canal to the Ohio is $ 22,375,427 69.
These estimates not being satisfactory, and differing essentially from estimates made by the [**125]  Chesapeake and Ohio Canal Convention, and no aid being given by Congress during that session, to the Chesapeake and Ohio Canal Company; on the 3d March, 1827, a number of the members of Congress, requested of the President, that they might be submitted during the recess, to the revision of practical civil engineers, and James Geddes and Nathan S. Roberts were appointed to re-examine the route of the canal, as it had been surveyed and laid down by the board of engineers for internal improvement, and to report on the expense of constructing it.
On the 5th February, 1827, at the December session, 1826, the legislature of Maryland passed a law to amend the "act incorporating the Chesapeake and Ohio Canal Company;" the first section of which in terms requires, "that it shall receive the assent of the necessary parties thereto," and the last section provides, "that it shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company." This act authorizes the termination of "the eastern section of the canal, at or near the town [**126]  of Cumberland, on the river Potomac," and the substitution of inclined planes and rail ways in crossing the ridge, which separates the eastern from the western waters; and provides "that the company  [*78]  shall have the power to extend a branch of the canal to the coal banks, at or above the mouth of Savage," in the event, that, the western section shall leave the valley of the Potomac river, at any point below the coal banks." This act received the assent of the legislature of Virginia on the 26th February, 1827, of the Congress of the United States on the 23d May, 1828, and of the Potomac Company on the 10th July, 1828.
At the December session, 1826, on the 10th March, 1827 the legislature of Maryland passed a supplement to the act for the promotion of internal improvement, repealing certain provisos in the act to which it is a supplement, upon which, a subscription for five thousand shares of the stock of the Chesapeake and Ohio Canal Company was made to depend; and also repealing, so much of the act to incorporate the Susquehanna and Patapsco Canal Company, as should be found to be inconsistent with the provisions of [**127]  the act, to incorporate the Pennsylvania and Maryland Canal Company.
On the 20th August, 1827, due notice was given by the commissioners, that books would be opened on the 1st October following, for receiving subscriptions to the stock of the company; the books were opened accordingly, and on the 14th November, 1827, the amount of stock subscribed for unconditionally, exceeded $ 1,500,000, exclusive of subscriptions payable in the stock and debts of the Potomac Company.
At the December session, 1827, on the 2d January, 1828, the legislature of Maryland passed an act further to amend the act incorporating the Chesapeake and Ohio Canal Company; by which the stock is declared to be personal property, and aliens are authorized to subscribe for, and hold it; to commence and be in force, as soon as it should receive the assent of Congress, the legislature of Virginia, the Potomac Company, and the stockholders of the Chesapeake and Ohio Canal Company. To which, the legislature of Virginia assented on the 26th February, 1828, the Congress of  [*79]  the United States on the 23d May, 1828, The Chesapeake and Ohio Canal Company on the 3d July,  [**128]  1828, and the Potomac Company on the 10th July, 1828.
At the same session, on the 3d March, 1828, the legislature of Maryland passed a further supplement to the act for the promotion of internal improvement, reciting one of the conditions, upon which the treasurer of the State, had, by a former act been authorized to subscribe for five thousand shares of the stock of the Chesapeake and Ohio Canal Company; and the importance it was of, to the State, that the grant already made by her to that company, should be made dependent upon such other conditions and restrictions, as would effectually secure the completion of the work, if ever commenced, &c.; and authorizing the treasurer to subscribe for the said five thousand shares, on the condition of stock to the amount of $ 2,500,000 being subscribed for, by bona fide purchasers, with sufficient security to ensure a faithful compliance on the part of such subscribers; with other conditions requiring the agreement thereto of the president and directors of the company, and repealing any act or acts, repugnant to, or inconsistent therewith, the conditions of which act, were assented to by the company on the 23d June, 1828.  [**129]  
On the 5th March, 1828, the commissioners for receiving subscriptions to the stock, called a meeting of the stockholders on the 7th April following, for the purpose of electing a president and directors.
On the 10th March, 1828, the Secretary of War, transmitted to Congress, in obedience to a resolution of the house of representatives of the 26th of the preceding month, the report of James Geddes and Nathan S. Roberts, (the civil engineers appointed for that purpose,) of the survey and location made by them of the route of the eastern section of the Chesapeake and Ohio Canal, from a little below Cumberland, through the valley of the Potomac to the tide water at Georgetown, and along the Maryland shore of the  [*80]  river; accompanied by estimates of the cost of construction, amounting for a sixty feet canal, to $ 4,479,346 93.
On the 4th of April, 1828, the meeting of the stockholders which had been called on the 5th of March preceding, was deferred, for the reasons assigned by the commissioners in their publication of the postponement, that the government of the United States, and the State of Maryland, might participate in the [**130]  organization of the company, when Congress should have definitively acted on the memorials of the district corporations, and of the central committee of the Chesapeake and Ohio convention, and the commissioners; which were for a subscription to the stock of the company, and for which a bill was then depending in Congress.
The act of Congress of the 23d of May, 1828, among other things recognizes the assent given by the United States, to the charter of the Chesapeake and Ohio Canal Company, by the act of 3d of March, 1825. By an act of Congress of the 24th of May, 1828, the Secretary of the Treasury is authorized to subscribe for ten thousand shares of the stock of the Chesapeake and Ohio Canal Company, the report, survey and estimate, of Geddes and Roberts, having then been received and acted upon. And by another act of the same day, authority was given to the corporations of Washington, Georgetown, and Alexandria, to subscribe for stock, and the subscriptions before made by them, were declared to be valid and binding.
On the 26th of May, 1828, Congress having then authorized a subscription for ten thousand shares of stock, [**131]  and declared the subscriptions before made by the district corporations, to be valid and binding, a meeting of the stockholders on the 20th of June, 1828, was regularly called by the commissioners, where president and directors were elected, and the company duly organized.
On the 26th of June, 1828, the route and site surveyed by the United States' board of engineers, for internal improvement, and by Messrs. Geddes and Roberts, and communicated  [*81]  to Congress, were adopted (so far as they corresponded,) by the president and directors, as the line of the Chesapeake and Ohio Canal below Cumberland.
On the 10th of July, 1828, the Potomac Company assented to all the acts of Congress, and of the legislatures of Virginia and Maryland, affecting the charter of the Chesapeake and Ohio Canal Company, so far as such assent might be deemed necessary to their validity.
On the 4th of August, 1828, the Potomac Company instructed the president and directors, forthwith to surrender their charter, and convey all their rights and interests to the Chesapeake and Ohio Canal Company. On the 15th of the same month, the surrender and conveyance [**132]  were made, and on the 17th of September following, accepted by the Chesapeake and Ohio Canal Company.
Whilst these legislative and other proceedings were in progress, meetings were held in Baltimore, by a number of citizens of that place, on the 12th and 19th February, 1827, in whose printed proceedings, the advantages likely to accrue to Baltimore, from connecting her trade with the western states, by intersecting the contemplated Chesapeake and Ohio Canal within the District of Columbia, according to the route surveyed and reported by the board of engineers for internal improvement, and by a direct rail road from Baltimore, to some eligible point on the Ohio river, are contrasted, and the saving of distance by such a direct road, stated to be 140 miles; which proceedings formed the basis of an application (or memorial) which was preferred to the legislature, for an act to incorporate the Baltimore and Ohio Rail Road Company, by a committee appointed for that purpose. And on the 28th of the same month, February, 1827, the charter was passed. On the 8th of March, 1827, a law was passed by the legislature of Virginia, giving permission to the  [**133]  Rail Road Company, to extend their road through that State, but prohibiting its striking the Ohio, at a point lower than the mouth of the Little Kenawha, on the Ohio; and on the 2d day of March, 1831, permission was  [*82]  given them by an act of Congress, to extend a lateral road into, and within the District of Columbia.
On the 31st of March, 1827, the whole of the rail road stock was subscribed; and on the 23d of April, 1827, the company was organized by the election of its officers.
On the 20th of June, 1827, a reconnaissance of the country between Baltimore and the Ohio river, was commenced by engineers in the service of the Rail Road Company, with a view to the location of the road.
On the 28th of February, 1828, the legislature of Pennsylvania passed a law, authorizing the Rail Road Company, to extend their road through that State, to the Ohio river.
On the 3d of March, 1828, the legislature of Maryland, in a supplement to the act for the promotion of internal improvement, authorized a subscription for five thousand shares of the stock of the Rail Road Company, on condition that the company should agree to locate [**134]  it, so as that it should go to, or strike the Potomac river at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it should go into Frederick, Washington, and Alleghany counties.
On the 5th of April, 1828, the engineers who had commenced their reconnaissances on the 20th of June, 1827, made a report recommending a route for the road from Baltimore by the Point of Rocks, and up the valley of the Potomac. Being the very route by the Point of Rocks, which had before been surveyed with a view to the location of the canal, by the United States' board of engineers for internal improvement; and again by Messrs. Geddes and Roberts, civil engineers, appointed by the general government for that purpose, whose report and estimates of the 7th of February, 1828, had then been made public.
The board of engineers in the service of the Rail Road Company, after examining the ground on horse-back, and without instruments, approved the report of the engineers of the 5th April, 1828, and their decision in favor of a route for the rail road by the Point of Rocks, and through  [*83]  the valley of the Potomac [**135]  to Williamsport, in a report of the 5th May, 1828; upon which report, the route by the Point of Rocks, and the valley of the Potomac was adopted by the company. Up to that time, no survey had been made in the valley of the Potomac, above and from the Point of Rocks, at the instance, or for the use of the Rail Road Company; and a bill was then depending in Congress for an appropriation to the Chesapeake and Ohio Canal, by a subscription to the stock of the company.
On the 12th of May, 1828, engineers were deputed by the president and directors of the Rail Road Company, to pass along the route thus adopted from the Point of Rocks to Cumberland; and wherever the character of the ground was such, as to leave but little choice as to the location of the road, or to present but one passage, to make an actual location of the same at once over such ground; in order that the actual locations so made, might serve as regulating points, for its subsequent locations over the intermediate sections, and secure the passage of the road. And at the same time, agents were deputed to take all necessary steps to procure title to, or a right of way over, the lands [**136]  upon which such actual locations should be made. In pursuance of which instructions, the engineers proceeded to make surveys for the site of the road, at the places indicated, and as actual, partial, locations of it, from the Point of Rocks along the Maryland shore of the Potomac to Cumberland. And the agents employed for that purpose, entered into contracts with some of the proprietors, for the title to, or right of way over, their lands so surveyed, and commenced process of condemnation of other parcels of land, actually surveyed for the site of the road, with the owners of which, they were unable to make contracts for the title to, or right of way over.
In this state of things, the Chesapeake and Ohio Canal Company claiming to be then duly incorporated, and the Potomac Company (not having at that time surrendered its charter and transferred its interest to the Canal Company,)  [*84]  filed a bill on the equity side of the Washington County Court, on the 10th June, 1828, against the Baltimore and Ohio Rail Road Company, denying the right of that company to construct its road on the route it had adopted, and just caused to be partially surveyed,  [**137]  and laid down in the valley of the Potomac from the Point of Rocks to Cumberland, upon the Maryland shore; and asserting a prior and paramount right to the choice of a route for the canal, in and along the valley of the Potomac--and obtained an injunction, granted by one of the associate judges of that court, prohibiting and enjoining the Rail Road Company, its agents and attorneys, and all persons acting by its authority, from making any contracts or agreements with, or receiving any deed or conveyance from any person or persons whatsoever, for any lands or tenements lying within the bounds already so marked out, and surveyed for the said road; and also the justices of the peace, and sheriffs of the counties of Frederick, Washington, and Alleghany, from issuing or executing any warrants, for the condemnation of any such lands, until a reasonable time should have been allowed the Canal Company, for completing the actual surveys and definitive locations of the canal, and the further order of the court.
That bill was not answered, but on the 23d June, 1828, the Rail Road Company filed a bill in chancery, against the Canal and Potomac Companies [**138]  , referring to it, and praying an injunction, prohibiting those companies and each of them, and all persons acting under their authority, or the authority of either of them, from making any contract or agreement with, or receiving any deed, or conveyance, from any of the parties to the contracts before made with the agent of the Rail Road Company, for any lands, or any interest in any lands, owned by them, or either of them, and lying within the limits of the actual location of the rail road, as surveyed and marked out by the engineers in the service of that company; and also prohibiting the justices of the peace, and sheriffs of Frederick, Washington,  [*85]  and Alleghany counties, from issuing or executing any warrant or warrants for the condemnation of any such land, for the use of the Canal and Potomac Companies, until the claim of those companies to a priority and right of election as set forth in their bill, filed in the Washington County Court, should have been finally heard and determined upon, or until the further order of the Court of Chancery.
On the 24th June, 1828, a second bill was filed by the Rail Road Company, for an injunction to protect [**139]  rights, that it was supposed to have acquired under the proceedings that had been instituted by its agents, for the condemnation of such portions of the land surveyed for the site of the road, as they had been unable to make contracts with the owners for; and on the 25th of the same month, a third bill was filed by the same company, for an injunction to protect rights claimed to have been acquired to lands, by actual locations for the site of the rail road, but in relation to which, no contracts had been made, or proceedings for condemnation instituted--upon each of which bills an injunction was issued, according to the prayer of it.
The complainant in neither of those bills of complaint, sets up any paramount right of election or pre-emption for the route or site of the road; but founds its claim to a right to construct the road in the valley of the Potomac, along the Maryland shore, from the Point of Rocks to Cumberland, upon the actual surveys it had caused to be made on that route, as partial locations of the road; upon the contracts made by its agents, with the owners of portions of the land so surveyed, for the title to, or right of way over them, and upon the [**140]  proceedings instituted by its agents for the condemnation of other portions, in relation to which, they were unable to make any contracts with the owners. The three bills were afterwards consolidated, and on the 8th of May, 1829, the Canal Company having then received from the Potomac Company a surrender of its charter, and a transfer of all its rights and interests, put in  [*86]  its answer re-asserting a prior and paramount right to the choice of a route and site for the canal, in the valley of the Potomac, as claimed in the bill filed in the Washington County Court, to which there was a general replication. At the September term, 1825, after a previous argument, on a motion to dissolve the injunction, the injunction was continued by order of the chancellor, until final hearing; and on the final hearing at the September term, 1831, it was, by a decree of the chancellor, made perpetual. From which decree the case was brought by appeal to this court.
It appears that there are, between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, between forty and fifty miles of narrow, difficult passes, along which the [**141]  canal, if made independently, and without reference to a rail road, will, from the character of the difficulties presented, have to be supported by embankments, constructed in the bed of the river, many feet beyond the usual low water mark; that should the Rail Road Company prevail in establishing a choice of location on that route, if it would not be impossible to construct the canal along those passes, after the most eligible ground had been occupied by the rail road, it could only be done with such difficulty, and at such an expense, as that no practical engineer would recommend it, and that the expense of constructing the canal, if taken out of the valley of the Potomac, would be so enormous, as in the language of one of the engineers, to render such an undertaking, "a canal impracticability."
The question then presented for the consideration of this court is, whether the Chesapeake and Ohio Canal Company, has a priority of right, in the choice or selection of ground for the route and site of the canal in the valley of the Potomac. The decision of which question is approached, with a due sense of the extent, diversity, and magnitude of the interests involved,  [**142]  (reaching far beyond the confines of this State,) and the possible consequences both to the immediate parties and the community at large. Should the decision of this cause, have the effect to arrest the progress  [*87]  of the great work, commenced by the party against whose claim it is pronounced, it will be a matter of regret. But it is the business of a judge to endeavor in every case that is brought before him, to arrive at a correct conclusion; and that done, to the conviction at least of his own mind, his duty, though sometimes an unpleasant, is a very plain one, and admits of no hesitating in the discharge of it.
Proceeding then to the discharge of an obvious duty, as this case mainly depends upon the construction proper to be given to the several charters, under which, the rights asserted by the respective parties are claimed; and as the Canal Company claims to be entitled to all the rights and privileges originally granted to, and vested in the Potomac Company, it is necessary to inquire into the character and object of the charter of that company, and to ascertain what the rights and privileges granted were, (so far as concerns this controversy,) and how, and [**143]  for what cause to be divested, and that charter being also the first in order in point of date, it will be first examined; a correct understanding of which, will essentially aid in the construction of the charter of the Canal Company. One construction given to the charter of the Potomac Company, by the counsel for the Rail Road Company, and insisted on in argument, is, that the Potomac Company was not authorized to make a continuous canal, but was restricted to the improvement of the navigation of the bed of the river, with no power to make canals, except at the Great and Little Falls; and for that construction, the phraseology of the title, and of the 9th, 10th, and 17th sections, is principally relied upon. But that construction, it is believed cannot prevail, if the whole of the charter is examined together, and one part construed by another, (as every statute should be,) with a view to give effect and operation to the whole, if it can be done. In pursuance of which principle of construction, it is proposed to collate the title, with the preamble and the different provisions of the charter, having any relation to this point.
 [*88]  The charter itself [**144]  is, "an act for establishing a company for opening and extending the navigation of the river Potomac," and the preamble states, "that the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility;" and that "it may be necessary to cut canals, and erect locks, and other works, on both sides of the river."
The 4th section authorizes the president and directors "to agree with any person or persons, on behalf of the company, to cut such canals, and erect such locks, and perform such other works as they shall judge necessary for opening, improving and extending the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they shall think fit."
The 9th section provides, that "in consideration of the expenses the said proprietors will be at, not only in cutting the said canals, erecting locks, and other works for opening the different falls of the  [**145]   said river, and in improving and extending the navigation thereof, but in maintaining and keeping the same in repair," &c., the president and directors shall have a right, "at all times forever," to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Payne's falls, and at or above the Great Falls of the river, &c.
The 10th section declares, "that the river and the works to be erected thereon, when completed, shall forever thereafter be esteemed and taken to be navigable, as a public highway."
The 17th section is in these words, "that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot  [*89]  water, from the place on the north branch, &c., to and through the place which may be fixed on below the mouth of the south branch, for receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland [**146]  , to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls herein before allowed to be demanded, and received at or near Payne's falls, are granted, and shall be payable, on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection near the mouth of the south branch, to and through Payne's falls aforesaid; that the tolls herein before allowed to be demanded and received at the Great Falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne's falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at on near the Great Falls, make or cut a canal, twenty-five feet wide, and four feet deep, with sufficient locks if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall [**147]  make, at or near the Little Falls, such canal, and locks if necessary, as will be sufficient and proper, to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course."
And by the 18th section it is enacted, "that, in case the said company shall not begin the said work within one year after the company shall be formed, or if the navigation shall not be made and improved between the Great Falls and Cumberland, in the manner herein before mentioned, within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through and from  [*90]  the Great Falls to tide water as aforesaid, within ten years after the company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, through and from the Great Falls to tide water, be forfeited and cease."
It is very certain, that there is nothing in this charter, requiring of the company to make a continuous [**148]  canal, nor is it insisted upon here, that any such duty was imposed. All that is contended for, is, that no specific mode of improvement was designed by the legislatures from which the charter emanated, and that, the sphere of the operations of the company was not restricted to the bed of the river, and to the canals required at the Great and Little Falls; but that, authority to effect the proposed extension of the navigation, either by means of a continuous canal, or by improvements in the bed of the river, with such occasional canals, and at such places, as might be deemed proper, and necessary to the accomplishment of the end contemplated.
The right to improve the navigation in the bed of the river, was clearly comprehended in the powers delegated to the corporation; and that seems to have been considered as the mode of improvement, which would probably be pursued. Upon which hypothesis, it may be inferred, the obligation (to be found in the 17th section,) to make canals at the Great and Little Falls was imposed, where it was believed, that no safe and adequate improvements could be made in the bed of the river. But the question is not, what it was supposed,  [**149]  would be the mode of improvement resorted to, but whether the operations of the corporation were limited to the bed of the river, or whether it had a right, in the practical exertion of its powers, to adopt any other plan, as it became instructed by experience, and aided by the light of science.
It is laid down in some of the books, that in construing a statute, the title (being no part of it,) is not to be regarded, but we have high authority in this country for a different rule of construction--the opinions of the judges of the  [*91]  Supreme Court, as expressed in the United States vs. Fisher, 2 Cranch 358. It is no where pretended, that the title can control the express words of the enacting clauses. Without stopping, therefore, to inquire how far the title of a statute may be regarded in the construction of it, but yielding to the title in this case, all the influence that can be claimed for it, it will be found not sufficient to sustain the construction of the charter contended for by the counsel for the Rail Road Company.
It is described in the title, to be an act "for opening and extending the navigation of the river Potomac," and whatever might [**150]  be the ordinary understanding of the terms, "the navigation of the river Potomac," if considered independently and alone, the preamble which more fully discloses the object contemplated, and which is deemed to occupy so important an office in a statute, as to be called a key to its construction, explains the sense in which these terms were intended to be used, by the recital "that it may be necessary to cut canals, and erect locks and other works on both sides of the river," and clearly shows, that the navigation proposed to be opened and extended was not intended to be restricted to the channel or bed of the river; but that by "the navigation of the river Potomac," was meant a communication by the waters of the river, whether in the natural course, or by means of occasional canals, or both, as it might be found necessary--since the canals spoken of on both sides of the river, could only be necessary for the purposes of navigation out of the bed of the river; and are specified as works, that might become necessary, not for the purposes of canal navigation, as distinguished from the navigation of the river, but as necessary for opening and extending the navigation [**151]  of the river itself.
It was no doubt expected, that improvements in the bed of the river, would be resorted to; but it was also apprehended, if not foreseen, that the object could not be effected throughout, in that way; and canals were suggested, as means that might become necessary, to the accomplishment of the  [*92]  scheme of opening and extending the navigation of the river.
If then the construction of the charter rested upon the title and preamble alone, with no other guide to the intention of the makers, there would be no difficulty in ascertaining what that intention was, if there were ambiguous expressions in the enacting clauses, requiring the aid of the preamble to explain them. Not only, however, does the preamble sufficiently explain the sense, in which the words "the navigation of the river Potomac," were intended to be used; but the 4th section conferred the express and unlimited power, "to cut such canals, and erect such locks, and perform such other works," as should be judged necessary by the corporation, "for opening, improving, and extending the navigation of the river," from tide water to the highest practicable point on the north branch, and [**152]  "carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they should think fit."
Here then was distinctly granted the power to make canals, &c., for the purpose of "opening, improving, and extending the navigation of the river"--with no restriction, either as to the number, or kind of canals, locks, or other works, authorized to be made and performed, but such as might be prescribed by the judgment of the corporation, and the places, times, and manner of conducting the improvement were committed to its will, "for carrying on the same, from place to place, and from time to time, in such manner as they shall think fit." Thus manifestly showing, that to make the water of the river navigable by means of a canal, or canals, would be to make the river navigable, in the sense in which the words were used--and showing also, that the manner of effecting that object, was referred to the judgment and discretion of the corporation.
The makers of the charter very well knew, that there were various modes of improving the navigation of a river, and that canalling was one; but not being possessed of the means of determining [**153]  which of the different modes was  [*93]  best adapted to the situation and character of the Potomac, prudently forbore to describe any specific mode, but committed the whole subject to the judgment of the corporation, regardless of the mode, provided the object was accomplished.
Under the authority thus conferred, looking to the 4th section alone, or in connection with the preamble, can it be doubted, that the corporation might have adopted any plan of improvement, which in its judgment, was best adapted to the end proposed? The language of that section is as broad as it could well have been; without a word to restrict the operations of the corporation to the bed of the river, or to confine it to any particular mode of improvement. It might have resorted to improvements of the navigation in the bed of the river by sluices; or to dams and locks. Both of which kinds of improvements, are comprehended in the terms "such other works." Or it might have adopted the plan of opening the bed of the river, with occasional canals, under the authority to "cut canals, &c." and having the power to "cut such canals as it might judge necessary" for improving the navigation of the river, and [**154]  to carry on the improvement "from place to place, and from time to time, and is such manner as it should think fit," why might not a continuous canal have been made? If at one time, it had made a canal to a particular point, and afterwards had "thought fit" to make another, from that point to another point, joining the two together, in other words, elongating the first; and so on, from time to time, and from place to place, as it had "judged necessary" or "thought fit," throughout the whole geographical extent of the charter, it would have been a continuous canal.
And could such a work have been deemed to be unwarranted by the charter? It would have been an improvement within the letter of it: such as the corporation "judged necessary," and "carried on from place to place, and from time to time," in the "manner it thought fit." Or suppose the corporation, "judging it necessary, and thinking fit" to  [*94]  do so, had made a number of canals at different places, between the two termini of the proposed extension of the navigation; and afterwards from experience, "judging it necessary" to make other canals in the intermediate spaces, have "thought fit" to do so, and to unite them [**155]  with those that were before made, it would have been a continuous canal, and what would there have been opposed to the legality of it. The corporation had an unlimited discretion as to the number of canals, and the time, places and manner of making them; no number was specified, no time was limited, no place or places designated, nor manner directed, and having the right to make as many as it should "judge necessary," and at such places as it should "think fit," the having made some at some places, did not prevent its making others, at other places, and at other times; one place being as much within its discretion as another, and the making them from one to another of those that had been before made, being the making of them "from place to place:" and the joining them together being within the authority to make them in "such manner as it should think fit;" there being not one word denying the right to do so; and surely, there can be no difference in principle between the right to make a continuous canal, by constructing one piece at one time, and another at another time, and in different places, as the necessity for it is discovered, and in such a manner, as ultimately to unite [**156]  all the different parts, and to adopt at once, the plan of a continuous canal. They are in effect the same, each being referred to, and made dependent upon the judgment and will of the corporation, by the unlimited terms in which its powers are expressed.
It is not enough to say, that the state of knowledge on the subject of canals, was not such at the date of the charter, as to justify the supposition that a continuous canal was thought of at the time, and therefore as has been suggested, that the respective legislatures could not have intended to confer the power to make such a canal. The state of knowledge certainly was not then, what it is now; experience and the  [*95]  advance of science have shed much additional light upon the subject. But continuous canals were not unknown; they were in practical operation elsewhere, and had been long before, though the extent of their superiority over other modes of improving the navigation of rivers, was not probably well understood; which was perhaps the very reason why such a canal was not expressly designated; and may account for the unlimited discretion given by the charter; the makers and procurers of it, being unwilling for [**157]  want of better information than was then generally possessed, to confine the corporation to any specific mode of improvement. Nor can any inference against a grant of power to make a continuous canal, be drawn from the limited amount of the capital, provided by the second section, as is supposed, since the sixteenth section authorizes an indefinite extension of it, at the discretion of the corporation.
The 9th section contains nothing, adverse to the power to make a continuous canal. The right to demand and receive tolls was given, in consideration of the expenses the corporation would be at, "in cutting the said canals, &c." What said canals? Not at the Great or Little Falls, or any other particular falls, but the canals before authorized by the 4th section, without reference to any falls; such as the corporation "should judge necessary for opening and improving the navigation of the river," to be made and "carried on from place to place, and from time to time, and in such manner as it should think fit." That is one of the enumerated probable subjects of expense, in consideration of which the tolls were allowed; and the "erecting locks and other works, for opening [**158]  the different falls of the river," are others. Showing indeed that it was supposed, that different modes of improvement might be resorted to; but precluding neither, and excluding the idea, that the improvements were to be confined to the bed of the river; and entitling the corporation to tolls, on the accomplishment of the object, the extension and completion of the navigation of the  [*96]  river, in either of the known modes, or by a combination of any of them.
The 10th section, in making "the river, and the works to be erected thereon, when completed, a public highway," proceeds upon the same idea, that the navigation of the river, might be opened by a resort to different modes of improvement, and provides for the event of its being done in the bed, and by occasional works out of the river, by declaring both the river and such works, to be a public highway, which would equally cover the case, of its being done in either of the different modes. If it had been effected by improvements confined to the bed of the river, the river, under that provision, would have become a public highway, though there were no works on the out side of it; and so, if it had been accomplished [**159]  by a canal, altogether out of the river, with no improvements in the bed, that canal would have been a public highway. It could not have been intended, that to constitute the proposed channel of communication a public highway, there should be improvements both in the bed of the river, and upon the margin; and if either exclusively, would have been sufficient, so would the other. It was the channel of communication when completed, that was to be a public highway, no matter by which of the different modes.
But it is supposed, there is something in the 17th section, indicating the intention to have been, to restrict the corporation in its improvements, to the bed of the river, with the exception only of the points at the Great and Little Falls. There is no such express restriction to be found in that section. The most that could be gathered from it, is by a remote inference from general and ambiguous words construed alone; which would be a departure from the acknowledged rule, that in construing a statute, all the parts should be taken together.
The words of the 17th section which are relied upon, as proving the intention to have been to confine the improvements to the [**160]  bed of the river, are, "that the tolls, &c. are  [*97]  granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable to being navigated in dry seasons, by vessels drawing one foot water, "from Cumberland, to and through a place below the mouth of the south branch, from thence to and through Payne's Falls, from thence to the Great Falls, and from the Great Falls to tide water; the expressions, "shall make the river well capable of being navigated," being considered as meaning, according to the ordinary acceptation of the terms, that the river should be made navigable in its bed or natural course. But would that be the ordinary acceptation of the terms?
When we speak of navigating a river, without reference to the state or condition of it, ordinarily the navigating it, in its natural course is meant. But when the making a river navigable, (which was not so before,) is spoken of in general terms, without a designation of any particular mode of doing it, no particular mode is understood to be intended; the making it navigable in its natural course, no more than the making it navigable in any other way, there [**161]  being various modes of making a river navigable; and indeed, to say that such a river is made navigable, or may be made navigable by means of a canal, is a common mode of expression. It is therefore by no means clear, that the words of the 17th section, if standing alone, with nothing to explain the sense, in which they were used, should be understood, as requiring the river to be made navigable in its bed or natural course; but when taken in connection with the whole context, it seems to be very plain, that they were used in no such restricted sense; and that by requiring the river to be made navigable, was meant the making it navigable, in any of the known modes, in which the navigation of a river may be improved, and not exclusively in its bed or natural channel. It is stated in the preamble, that "it may be necessary to cut canals, and erect locks, and other works," for extending the navigation of Potomac river; which shows the understanding of the respective legislatures to have been, that the  [*98]  extension of the navigation might be effected by making canals.
By the 4th section, the corporation was invested with power "to cut such canals,  [**162]   and erect such locks, &c." as it should judge necessary, for opening, improving, and extending the navigation of the river, "from place to place, and in such manner as it should think fit;" and by the 11th section, authority was given to purchase or condemn lands, for the purpose of making such canals, &c. Here then is an express authority to open, improve, and extend the navigation of the river, by means of canals, locks, and other works; embracing the variety of modes, in which rivers are capable of being made navigable, and exclusively confined to neither.
With this explicit legislative exposition of the sense, in which the terms opening, improving, and extending, the navigation of the river, were used, fixing the meaning imparted to that language, by the makers of the charter, to have been, that to make a navigable canal fed by the waters of the Potomac, would be to make the river navigable; how can it be said, that the 17th section in requiring the river "to be made capable of being navigated," meant exclusively that the bed of the river should be made navigable? Besides, under the 4th section, the corporation had [**163]  an unlimited discretion, co-extensive with the geographical limits of the charter, to make canals, "from place to place," for opening, improving, and extending the navigation of the river; there was not a spot from one terminus to the other, to which the exercise of that discretion was confined, nor from which it was excluded. But it had an express right to make canals, wherever it should think fit, and "from place to place," along the whole route; which is utterly at war with the construction claimed to be put upon the 17th section, and both cannot stand. For it will be observed, that the terms of the 17th section, cover the entire space between Cumberland and tide water; and if the construction contended for, of that section, could be sustained, if by requiring that "the river  [*99]  should be made capable of being navigated," was meant that the bed of the river alone should be made navigable, to the exclusion of every other mode of improvement, except at the Great and Little Falls, where canals are required to be made, there would not be a spot left to the corporation throughout that whole distance, for the exercise of its discretionary power,  [**164]  to make such canals, &c. as it might judge necessary for opening, extending, and improving the navigation of the river," and "from place to place, as it should think fit"--which would be a virtual repeal of so much of the 4th section. It would be to alter and narrow down the positive and express enumeration of powers contained in that section, by mere implication from ambiguous expressions to be found in the 17th. But when the two sections are examined together, and the language of the 17th, taken in the sense in which the 4th shows it to have been used, construing one by the other, as must be done, the intention is plainly seen to have been, that the river should be made capable of being navigated in any of the modes authorized by the 4th section. By which construction both will stand, and full effect and operation be given to every word of each. But without the aid of the 4th section, the conclusion of the 17th clearly explains the sense in which the preceding expressions were used. The words are these, "and shall make at or near the Little Falls, such canal, and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid into tide water, [**165]  or render the said river navigable in the natural course," one or the other. Thus presenting the alternative of making the river navigable by a canal, or of making it navigable in its natural course--and distinctly indicating, that to make navigable canals fed by the water of the river, would be, to make the river navigable, in the sense of the charter. And the language of the 18th section is, that "in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, then, &c." What was here intended? Was it, that the river should  [*100]  be made navigable in its natural course, through, and over the Great Falls? Certainly not; but that the navigation of the river should be completed by means of a canal, at or near the Great Falls," as directed by the 17th section--otherwise the 18th section would have had the effect to abrogate so much of the 17th, as provides for the improvement of the navigation of the river at the Great Falls, by a canal out of the natural course. The same may be said of expressions contained in some of the supplements, which have been [**166]  called in aid of a different construction; such, for instance, as the proviso in the 6th section of the act of this State of 1790 ch. 35, relative to the application of the tolls, &c. to the improvement of the navigation of the branches of the river; "that no such application shall be made, until the main river from tide water, is cleared to Fort Cumberland." The main river, how cleared? certainly not exclusively in its bed or natural course; because the 17th section of the original charter, expressly provides for the clearing or improving of the navigation, by canals at the Great and Little Falls--and the 4th section as explicitly authorizes the doing so, from place to place throughout the whole distance from one terminus to the other. But cleared, in the sense of the original charter, that is, in either of the modes therein recognized, for the improvement and extension of the navigation; and in reference to which, those expressions must be understood as having been used. And so of similar expressions contained in other supplements, all of which must be construed with reference to the original act. Nor can any adverse argument be drawn from the preamble [**167]  to the act of 1802, ch. 84, reciting, that the object of the charter had been accomplished; notwithstanding it appears, that no continuous canal had, at that time, been made. It does not profess to state, that the corporation was restricted to any specific mode of accomplishing it, or in what way it had been done; and whether effected by means of a canal or canals, or by improvements in the bed of the river, the object would equally have been accomplished.
 [*101]  But the act of November session 1811, ch. 208, which gave to the corporation "the same power" to make canals on the branches of the river, that was given by the 4th section of the original act, to make canals on the river itself, plainly shows the understanding of the legislature of this State to have been, not that the corporation was confined in its improvements to the bed of the river, or that its power to make canals was limited to the points of the Great and Little Falls, as has been supposed in argument, but that it had a right to make them wherever it "should think fit," without restriction. Otherwise the grant of power, to make canals on the branches of the river, was perfectly [**168]  nugatory; since if the power given by the 4th section of the original act, was limited to the making canals at the Great and Little Falls, which are points of difficulty in the main river, "the same power" could not be exercised on the branches.
So that the legislature, in giving to the corporation by the act of 1811, "the same power" to make canals in relation to the branches, that was given by the 4th section of the original act, in relation to the river itself, must have intended the same power "as expressed in that section;" that is, the power to make canals, wherever it should be deemed necessary. Considering the power there expressed, to be the power given, according to the unrestricted sense of the language used; and not altered or diminished by the 17th section, so as to reduce it to the power of making canals at the Great and Little Falls only.
Taking the charter then altogether, and construing one part by another, if there had been a canal or canals made along the shore of the Potomac, fed by the waters of the river, and capable of being navigated in dry seasons, by vessels drawing one foot water, the river would have been made navigable [**169]  for vessels of that description, in the obvious sense, in which the language adopted by the respective legislatures was used; although not a drop of water was left to flow in the natural channel, not being required to be  [*102]  kept there. The great object in view was, the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch; and the means, such as might be considered by the corporation, necessary, and proper for the accomplishment of that object, whether by sluices, by dams and locks, or by canal navigation, which is apparent in the preamble, and is carried out into the enacting clauses. There is nothing in the charter, to restrict the operations of the corporation to the bed of the river, and thus to alter or narrow the powers, expressly enumerated and granted in the 4th section; but the whole matter was committed to its judgment; and so that the end was accomplished, it was immaterial, by which of the means that were subject to its discretion. If this is the true construction of the charter, the Valley of the Potomac, from tide water to the highest practicable point of navigation in [**170]  the north branch, was specifically appropriated, to the object contemplated,--and at the time the company was formed, or became incorporated, it acquired a vested right, (not the actual legal title to the land,) but a vested right to acquire land by purchase or condemnation, along the shores of the river, to be exerted wheresoever and whensoever it should be thought necessary and proper for the purposes of the charter. The object being an extension of the navigation of the river, by such means as should be found best suited to the purpose, corresponding powers were given to the corporation.
It is apparent throughout the charter, that it was supposed the bed of the river would, or might be occasionally adhered to; and it was as clearly intended, that any canal or canals, that it might be thought necessary and proper to resort to, should be made along the shore or shores of the river--thus plainly designating the Valley of the Potomac, for the route of the contemplated improvement, and dedicating the river and its shores to that object. This is manifested by the preamble reciting that, "the extension of the  [*103]  navigation of the Potomac river will [**171]  be of great public utility," and that "it may be necessary to cut canals, &c. on both sides of the river," which could only be done in connection with the river, by making the canals in the valley; by the 4th section, giving the power to make canals and any other improvements (in, or out of the bed of the river,) wherever it should be thought necessary and proper, for opening and extending the navigation, from tide water to the highest practicable point on the north branch. Thus by confining each end of the proposed extension of the navigation, to a point upon the river, one at tide water, and the other on the north branch, requiring, that in whatever way effected, it should begin and terminate upon the river; and pointing to the valley of the river, from one extremity to the other of the intended improvement, for the location of the canals authorized to be made; as the river itself, if any where resorted to for the purpose of being navigated in its natural course, could not in the nature of things, be used in connection with any canal or canals, not constructed upon its borders, or within the valley.
By the 9th section, which in consideration of the expense [**172]  of cutting canals, erecting locks, and other works "for "opening the different falls of the river," and of improving and extending the navigation thereof, vests such canals and works in the proprietors of stock and their heirs, and entitles the corporation "to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Paynes' Falls, and at or above the great falls of the river Potomac for all commodities transported through either of these places;" thereby plainly indicating the valley of the river, for the construction of the canals and others works--works for opening the falls of the river, being evidently works to be erected in the valley of the river; and the places designated for the demand and receipt of tolls upon commodities passing through them, being points upon the river.
 [*104]  By the 10th section, declaring "that the said river, and the works to be erected thereon, when completed, shall forever thereafter, be esteemed, and taken to be navigable as a public highway." The works to be erected upon the river, and on the supposition, that the bed of the river would be occasionally used, the river [**173]  and the works to be one continual highway; which could not be, unless the works were to be constructed in the valley, so as to admit of a connected navigation with the river.
By the 12th section, giving authority to the corporation to acquire land by purchase or condemnation, at the different places before designated on the river, for the demand and receipt of tolls, for the purpose of erecting toll houses; the very purpose and object of which, would require them to be built on the line of the projected extension of the navigation; and the authorizing them to be built at certain points upon the river, indicating the valley as the route of that line, whether accomplished by improvements in the bed of the river, or by canals, &c. along the river, or by both; and by the 17th and 18th sections, the former requiring as a condition precedent to the right, to demand and receive tolls, that the river should be made navigable from the upper terminus, to and through a place below the mouth of the south branch, thence to and through Payne's Falls, thence to the Great Falls, (the several places on the river before designated for the receipt of tolls, and the erection of toll [**174]  houses,) and from the Great Falls to tide water, the other terminus; and requiring a canal to be made at the Great Falls, and also a canal at the Little Falls, or the river to be rendered navigable in the natural course; and the latter providing that, if not done within the respective periods therein prescribed, in the manner, and from and to the places specified in the 17th section, the corporation "should not be entitled to any benefit, privilege or advantage under the charter, and that "all its interests, &c." should "be forfeited and cease." Thus, by requiring the proposed improvement, (by whatever means accomplished,) to be  [*105]  made throughout its whole course, from one point upon the river to another, and requiring also canals to be made at specified points upon the river, (the Great and Little Falls,) distinctly confining it to the valley of the Potomac, and designating and appropriating that region, as its route. The 13th and 19th sections might also (if necessary,) be resorted to, for the purpose of showing the intention, that any canal or canals, which it might be thought necessary to make, should be constructed along the river [**175]  , and of course in the valley. And the supplemental act of this State, passed at the November session, 1785, speaking of the canals to be made at the Great and Little Falls, "supplied by the current of the river," and "communicating again with the river by locks, if necessary," and the further supplementary act, passed at the November session, 1811, giving to the corporation, the same powers to acquire and condemn lands, for the purpose of making canals, upon the branches of the river Potomac, as those conferred by the 4th, 11th, and 13th sections of the original act, for "making canals on that river," explicitly show, what was the understanding of the legislature of Maryland, in relation to the location of the contemplated works.
The valley of the Potomac being thus marked out for the sphere of the operations of the Potomac Company, without restriction to any particular mode of improvement, the corporation had a right to select in the first instance, either of the various modes of improving the navigation of the river, and if that failed, or proved insufficient, to resort to another, and so on, until the object of its incorporation was effected. It was [**176]  not put to an election between the different modes of improvement; nor concluded by any selection it might make, from having recourse to another, if that should fail. Such a construction of the charter would be too narrow for the great object in view. It cannot be believed, that the respective legislatures intended to limit the powers of the corporation, to any experiment it might make, in the prosecution of a work of such great and acknowledged public  [*106]  utility, the means of accomplishing which, were then but little understood in this country; and to deny to it, the right of completing it in any other way, if such experiment should fail; and thus to defeat the whole project, after heavy expenses had been incurred, in an honest, but unsuccessful effort to accomplish it, and at a time too, when a knowledge of the best and most effectual mode of doing it, could only have been acquired from lessons of experience; the scheme itself being but an experiment, and that a hazardous one to the undertakers.
It is believed, that no company could have been found, with such an understanding of the charter, and that there is nothing to be found in it, to sustain such a construction.  [**177]  But on the contrary, that the whole subject was committed to the judgment, discretion, and experience of the corporation; with power to execute the work, in such of the various modes, as might in its progress be found to be most expedient; and that this is fully proved by the express provisions of the 4th section, authorizing the corporation to "cut such canals, and erect such locks, and perform such other works, as it should judge necessary for opening, improving, and extending the navigation," "from place to place, and from time to time," "and in such manner as it should think fit." Thereby embracing all the different modes of improvement, and empowering the corporation, not merely to elect one particular mode, but to resort to any of the various modes, at such places, and at such times, as from experience, aided by the advance of science, as should be found necessary in the prosecution of the work, though begun on a different plan.
More than forty years having elapsed from the date of the charter of the Potomac Company, to the time of its surrender to the Chesapeake and Ohio Canal Company, it has been suggested, but not seriously pressed in argument, (as it [**178]  could not well have been) that, if the Potomac Company had originally the right to make a continuous canal, and to procure the condemnation of lands for that purpose, that  [*107]  right, as well as any other right to condemn lands, and make canals, which was never exercised, had become lost and forfeited by non-user for so long a period. A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings instituted for that purpose, at the instance of the government, and that no cause of forfeiture can be taken advantage of, collaterally or incidentally; and the same principle applies, as well to a question of forfeiture of a particular franchise, as of the whole. Nor is it every non-user, that will furnish a sufficient ground for a judgment of forfeiture. Here, there is no pretence for the assertion of such a cause. The right to improve and extend the navigation of the river, was a franchise granted; the manner of doing it, a mode of exercising that franchise. And there being various alternative modes authorized by the charter, subject, each of them, to be changed [**179]  at the will of the corporation, no experimental trial of one of those modes, could work a forfeiture of the right to resort to either of the others, during the continuance of the charter. So long as the charter remained in force, there could be no forfeiture of the right to exert the franchise, in either of the authorized modes, which still remained to be tried; but all the rights and powers it conferred, continued in like manner, and so far from there being any ground for a forfeiture of the charter, by non-user, the very employment of some of the authorized modes of improvement, was a practical exercise of the franchise. But considering the right to make a canal or canals, and to condemn lands for that purpose, as a particular franchise, and not a means only of executing the general power to improve the navigation of the river; the not having resorted to that mode of improvement, did not amount to a cause of forfeiture on the ground of non-user, the power given to the corporation by the 4th section of the charter, to make canals," from place to place, and from time to time, and in such manner as it should think fit," being altogether indefinite both as to [**180]  place and time,  [*108]  and leaving it expressly and entirely in the discretion of the corporation, to make such canal or canals as it should judge necessary, wheresoever and whensoever it should think proper. And the fact, that other expedients were in the first instance resorted to, and for a long time persevered in, cannot be tortured into an abandonment, or any thing equivalent to a surrender of the right to make a canal or canals, whenever such expedients should be found inadequate to the purpose intended, and a canal or canals should be thought necessary to the accomplishment of the object.
If then, the powers originally imparted to the Potomac Company by the 4th section of the charter remained unimpaired, that corporation, under the authority "to make such canals as it should judge necessary from place to place, and from time to time," had a right, at any time it should think proper, during the continuance of its charter, to make a canal or canals along any, or all of the difficult passes upon the river, which form the subject of this litigation; or at any other place or places in the valley, and to purchase or condemn lands for that purpose. And its charter, [**181]  according to the decision of the Supreme Court in the case of the Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518, being a contract between the states of Maryland, Virginia, and the Potomac Company, the obligation of which could not, without the assent of the corporation, be impaired by any act of the legislature of either of the States, nor the concurrent acts of both, consistently with the constitution of the United States, declaring that, no State shall pass any "law impairing the obligation of contracts;" the charter of the Rail Road Company, could not, without impairing the obligation of that contract, abolish, take away, or diminish the prior and paramount right of the Potomac Company, to select and appropriate by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper, along the borders of the river, either in terms, or by any construction of it, that would have authorized the Rail  [*109]  Road Company, without the assent of the Potomac Company, to occupy any of the difficult passes, or other places along the river, for the [**182]  route and site of the road, in such a manner, as either to exclude that company from a priority in the choice of a site or sites for the construction of the works authorized by its charter, or in any manner to restrict and circumscribe it, in the exercise of its prior right of election. But such an occupation by the Rail Road Company of the valley of the Potomac, would have been a violation of the vested corporate rights and privileges of the Potomac Company, and the charter of the Rail Road Company, in so far as it purports to be, or may be construed in derogation of those rights and privileges, is repugnant to the constitution of the United States, and void; there being no difference in principle, between a law, that in terms impairs the obligation of a contract, and one that produces the same effect, in the construction and practical execution of it. And the Canal Company, as the assignee of the Potomac Company, stands in its place, and is invested with the same prior and paramount right, that was originally granted, and vested in the Potomac Company; the 13th section of the charter of the Canal Company, authorizing a surrender by the Potomac  [**183]   Company of its charter, and a transfer to the Canal Company of all its property, rights, and privileges, &c. expressly providing, that "thereupon (that is upon such surrender and transfer, and acceptance by the Canal Company,) the charter of the Potomac Company shall be, and the same is hereby vacated and annulled, and all the rights and powers thereby granted to the Potomac Company shall be vested in the company hereby incorporated," of which it can no more be divested by any operation or construction of the rail road charter, than could the Potomac Company have been at the time of the surrender and transfer; but it took them, and holds them, in all their integrity and force, as they were held by the Potomac Company, unimpaired by the rail road charter. Which upon the hypothesis, that the rights and powers  [*110]  specified in the 4th section of the charter of the Potomac Company, had not been altered or restricted, nor lost by that company, is not understood as being denied.
But it is contended, that if the Potomac Company did originally possess the power to construct a continuous canal, it had lost that power, and had no right to [**184]  make any canal or canals, or to acquire any lands for that purpose, by purchase, agreement, or condemnation, at the time of the surrender of its charter, by the deed to the Canal Company of the 15th August, 1828, or at the date of the rail road charter; and therefore, that the Rail Road Company, either as concerns the Potomac Company, or the Canal Company, in its character of assignee of the Potomac Company, has a right according to the true construction of its charter, to occupy the ground in controversy for the route of the road. Which is asserted upon the assumption, either that the whole of the work authorized to be done, must be taken to have been accomplished, within the times limited by the 18th section of the charter, and extended by the several supplementary laws of Maryland to the 1st January, 1813, and of Virginia to the 1st January, 1820, and the power to have been thereby fully executed and at an end; or that, if it was not accomplished within the times limited, the franchise of the Potomac Company to make canals, and to acquire lands by condemnation for that purpose was forfeited, or had expired by lapse of time--and being gone from [**185]  the Potomac Company, could not, upon the surrender of its charter, vest in the Canal Company, which is very plausible, and would be a full answer to the claim of the Canal Company, in the character of assignee of the Potomac Company, if the whole of the work authorized to be done, was in fact accomplished: for then, it must be conceded, the power would have been fully executed and at an end, or if the Potomac Company was, by lapse of time alone, and without the intervention of judicial proceedings, divested of the power to make canals, and to condemn lands for that purpose.
 [*111]  But was there, or could there have been such a divestiture consistently with the principles applicable to questions relating to vested corporate rights? Or was the whole of the work in fact completed, that was authorized to be done, and the entire object of the charter accomplished?
The provisions relied upon in the 18th section, are, that "if the navigation shall not be made and improved between the Great Falls and Fort Cumberland, in the manner herein before mentioned, (that is for vessels drawing one foot water in dry seasons, as specified in the 17th section,) within [**186]  three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through, and from the great falls, to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, at, through, and from the great falls, to tide water, be forfeited and cease."
And it is supposed, that the object of the charter was limited to the improvement of the navigation of the river, (whether by canals or otherwise,) only so far as to render it capable of being navigated in dry seasons, by vessels drawing one foot water; that the powers of the company were restricted to that degree of improvement, and that, whenever that object should be accomplished, the powers of the company would be spent--which is a proposition that must be maintained on the part of the Rail Road Company, to support the argument, that the powers of the Potomac Company had been exhausted, by a compliance with the condition contained [**187]  in the 18th section, by reference to the 17th section, which is, "that the river shall be made well capable of being navigated in dry seasons, by vessels draw-one foot water," within the times specified--otherwise supposing that object to have been effected, or condition complied with, within the time limited, there still remained in that company under the 4th section, a discretionary power  [*112]  to extend the improvement of the navigation by a canal or canals.
But is that the true construction of the charter? The extension of the navigation of the river Potomac, is asserted in the preamble, to be a work of great public utility, and the legislatures of Virginia and Maryland, are declared to be impressed with the importance of the object, and to be desirous of encouraging so useful an undertaking. The grand object, was a connection between the Atlantic States, and the country west of the Allegany mountains, to be effected in part, by an extension of the navigation of the Potomac river; a work not merely of local, but of great national importance, and one which, from its character, and supposed magnitude, drew into exertion the combined [**188]  action of the states of Maryland and Virginia. With such an object in view, is it to be supposed, that the legislatures of those states, intended to restrict the powers of the company they were incorporating, to the making the river navigable for vessels drawing one foot water only, an improvement so entirely inadequate to the end contemplated? Was that the encouragement proposed to be given to so useful an undertaking? It cannot be believed, and it is but to propound the question, to find the answer. There was no motive, no imaginable necessity for such a restriction, and if intended to be imposed, those legislatures must have been but slightly impressed with the importance of the object. Construing the 18th section alone, without regard to any other part of the charter, and construing it most rigidly, it might possibly be tortured into such a meaning. But though the Potomac Company was a private corporation, the charter was a public act, granted professedly pro bono publico, and should be construed in such a manner, as to attain, as far as possible, the end proposed. Pierce vs. Hopper, Strange 253, 258.  New River Company vs. Graves, 2 Vern. 431. [**189]  It would not be doing justice to the makers of the charter, in searching for their intentions, to look to the 18th section alone, for the narrowest possible construction of it; but that  [*113]  section must be construed together with the 4th, by which the general power of improvement was given, in order to arrive at the intention of the makers, and that both may stand, if consistently they can.
Looking then to the unqualified terms of the 4th section, that the president and directors shall have power, &c. "to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending the navigation, and carrying on the same from place to place, and from time to time, and in such manner, as they shall think fit," it is clearly seen, that the right was expressly given to the corporation, by that section standing alone, to improve the navigation by any means, and to any extent in its power, that the river and the region through which it passes would admit of, without limitation either as to manner, extent or time. With that unrestricted power, it might have contented itself, with making the river navigable in its natural  [**190]   course, or by means of a canal, or canals, for vessels drawing one foot water; or if from experience, that was found to be inadequate to the demands of an increasing commerce, it might have deepened the bed of the river, or any canal or canals that had been made; or if none were originally made, it might have extended the improvement, by a resort to canals, from place to place, and from time to time, as in its judgment, occasion should require, which would seem to have been the very object of the power, to make canals "from place to place, and from time to time;" or it might in the first instance, have resorted to the temporary expedient of making the river navigable in its natural course, for the immediate public accommodation, by vessels of small draft, and at the same time, have adopted the more extended plan of improvement, by a canal or canals; all which it is believed must be conceded, looking to the 4th section alone--and it is not perceived, that there is any thing in the provisions of the 18th section, declaring, that if the river was not made navigable within the respective periods therein mentioned, for  [*114]  vessels drawing one foot water, between the Great  [**191]   Falls and Fort Cumberland, and from the Great Falls to tide water, the corporation should not be entitled to any benefit, privilege, or advantage under the act, and that all the interest, &c. of the corporation should be forfeited and cease, which so abridged the general power specified in the 4th section, to make such canals as the corporation should judge necessary, and at such places and times as it should think fit, as to reduce and limit it to the mere power to make the river navigable for vessels drawing one foot water, and to terminate whenever that should be effected, without any express words of restriction; instead of the more extended power to make such canals, as might be found better suited to the purposes of useful and efficient navigation; and at such times, as the progressive improvement of the country, and consequent increase of internal commerce and intercourse between the two great sections of the United States, which it was the object of the charter to bind more closely together in interest and affection, might indicate a necessity for further improvements, and aid in supplying the means of carrying them on. If that was the effect of the 18th section,  [**192]  it took away by implication, the whole of the discretionary and more beneficial power given by the 4th, and virtually annulled that section. Such a construction and effect, could only be given to the 18th section, by rejecting the 4th from consideration, in violation of the rule, that every statute should be so construed, that no clause, sentence or word, shall be superfluous, void, or insignificant, if it can be prevented; which is too well known and established, to render any reference to authorities in support of it, necessary.
Nor is there any necessity for such a rejection of the 4th section, in order to give effect to the 18th section, but both may well stand. The requiring that to be done, which the corporation had before the undoubted right and power to do, the making the river navigable for vessels drawing one foot water, was by no means inconsistent with, or repugnant to the power to make further and more important improvements.  [*115]  It was only saying, that, that at least should be done, leaving the corporation in possession of the power given it by the 4th section, to do as much more as it pleased, but not less: and accommodating the navigation afterwards, to [**193]  vessels of greater draft, (by whatever means effected,) would not have rendered it less "capable of being navigated by vessels drawing one foot water." If it could have done so by deepening the bed of the river, or canals already made, (which cannot be doubted,) it might also have done it by making additional canals, where none had been made, there being no restriction perceived in the law itself, of one mode more than the other, but the general power, extending equally and without distinction to all; and for us to make such a distinction, would be to legislate, and not to expound the law as it is given to us. The idea advanced, that to draw off the water from the river, after it was made navigable for vessels drawing one foot water, into a canal of greater depth, would have been a violation of the charter, rests upon the supposition, that the operations of the corporation, except at the Great and Little Falls, were restricted to the bed of the river, and that it was bound, to entitle it to tolls, to make and keep the river navigable in its natural course alone: which we have already endeavored to show, is not consistent with the proper construction of the charter, [**194]  but that the corporation had a right to make the river navigable, by means of a canal or canals, and to demand and receive tolls, although no water should be left to flow in the natural course.
Taking then the 4th and 18th sections together, it appears to be very plain, that the intention was not, by the provisions of the 18th section, to abridge the general power, explicitly given in the 4th, to improve the navigation to the utmost extent within the means of the corporation, and in any mode, and at any time, and to limit it to the right only to make the river navigable for vessels drawing one foot water; but merely to enjoin as a positive duty, under pain of forfeiture, and to insure an early use of the river, though  [*116]  upon a limited scale, that it should at least be made navigable to the extent therein required, within the respective times specified; leaving the general discretionary power of further improvement unimpaired, in regard both to extent and mode, and to be executed at any time; or in the language of the 4th section, "from time to time, as the corporation should think fit;" aided by the tolls permitted to be received, and by the 4th section expressly authorized [**195]  to be applied to that purpose, in these words, "and out of the money arising from the subscriptions, and the tolls, &c., to pay for the same, and to repair and keep in order the said canals, locks, and other works necessary thereto, and to defray all incidental charges." Which of itself, abundantly shows the intention that the canals, locks, and other works so authorized, might be made and carried on, after the river should be rendered navigable from Cumberland to tide water, for vessels drawing one foot water; since that was, by the 17th section, expressly made a condition precedent, to the right to demand or receive any tolls; the canals, locks, and other works, and incidental charges, that were intended "to be paid for, and defrayed," in part, "out of the money arising from the tolls," could only have been such, as should be made, and occur after tolls were authorized to be charged, which was not until after the river had been made navigable for vessels drawing one foot water. To say it was intended, that the whole of the work authorized should be first completed, and afterwards paid for, with all the incidental charges, out of such tolls as might possibly be received, without [**196]  a word in the law to that effect, would be a most strained construction. It could not have been known that a sufficient amount of tolls with the subscriptions, would ever be received to discharge the principal and interest of the sum expended upon the work, or that the corporation would be able to borrow money for carrying it on, about which, nothing is said in the charter. It is not therefore to be supposed, that any such speculation was indulged in; but the evident intention was, that the corporation  [*117]  might carry on the canals and other works from time to time, as it should be deemed necessary, and as its pecuniary means, arising from the subscriptions, and the receipt of the tolls, should enable it to do so.
The great and general ultimate object was the improvement of the navigation of the river, to the utmost, extent commensurate with the means of the corporation, as they should accrue, and to which it should at any time choose to push it; with no motive for limiting the degree of improvement, which could not have been too extensive for the purposes contemplated. The special, and more immediate object, was a partial improvement, not committed to the discretion [**197]  of the corporation; but required under pain of forfeiture, to be completed as a positive duty within the times specified, upon the execution of which alone, without doing any thing more, the corporation was to be entitled to demand and receive tolls, and to all the benefits, privileges and advantages, proffered by the charter. If the river was not made navigable for vessels drawing one foot water, the corporation was to have no "benefit, privilege or advantage, under the charter;" in other words, the charter was to be forfeited; but if that was done within the time limited, then the whole of the charter was to remain in full force; none of the franchises were to be forfeited, and the corporation was to have the benefit of demanding and receiving tolls; and the privilege, if it chose to exercise it, of making any further improvements in its power, according to any mode, and at any time it should think proper.
In this view of the subject, there was no inconsistency, or repugnancy, between the 4th and 18th section; no clause, sentence or word of either, was superfluous, void, or insignificant, but each section had its full effect and operation. Under the 18th section, the corporation [**198]  was bound to make the river navigable from Cumberland to tide water, for vessels drawing one foot water at least, within the times limited, and it might have contented itself, with the discharge of that duty; and under the 4th section, it was not bound,  [*118]  but had authority to make any further improvements, in any mode or plan, and at any time, it might have executed that authority. But according to the interpretation of the charter on the part of the Rail Road Company, the 4th section, in regard to all discretionary power of improvement, whether in relation to, extent, mode, or time, was abrogated by the 18th section, when both might well have stood together, which is not sanctioned by any acknowledged rule of construction.
It is said to be "inconceivable, that the legislature could have intended to give to the company the power, after the navigation was completed in one way according to the requisitions of the charter, to complete it in another." That might have been unnecessary legislation, if the charter is to be so understood, though not for that reason void. But it was not the meaning of the charter, that the [**199]  navigation would then be complete, when the river should be made navigable for vessels drawing one foot water only, as it clearly would not. The intention of the makers was, to secure to the public the benefit of a partial use of the river in a reasonable time, by requiring under pain of forfeiture, an improvement to that limited extent at least, within the prescribed periods; leaving it to the corporation, and clothing it with sufficient power and authority for that purpose, to make at any time, what further improvements it could; the more extensive and complete the better; but not exacting as a duty, to entitle it to tolls, what it might be unable to accomplish, and what subsequent events have proved, it was not able to effect.--Nor is there any thing very astonishing, or calculated to excite surprise in this. It was exactly what a wise and prudent legislature would have done, not to restrict the powers of the corporation, to the smallest possible improvement suited to any useful purpose, which would have been inconsistent with the great end in view; nor to jeopard the whole enterprize, by requiring the work to be completed under pain of forfeiture, on [**200]  the most approved plan,  [*119]  and to the utmost extent, within a period that might prove too limited, for the means and capacity of the corporation; nor to leave too much in the discretion of the corporation, by omitting to require any thing to be done within a time limited; which discretion might have been abused by the corporation to the prejudice of the public. And, borrowed as it would seem, from that charter, the same policy of securing to the public, the benefit of a limited use of the river for the purposes of navigation, during the progress of a more extended plan of improvement, has been carried into the charter of the Chesapeake and Ohio Canal Company; the 13th section of which has this provision, "and it shall be the duty of the said last mentioned company, (the Canal Company) until every section of the contemplated canal shall be completed, so as to be used and enjoyed for the purposes of navigation, to keep the corresponding part of the river, in a proper state for navigation, and in good order as the same now is; and in default thereof, they shall be in all things responsible, in the same manner, as the Potomac Company is now responsible."
The different [**201]  supplementary acts of this State and Virginia, to the charter of the Potomac Company, giving further time to that company, could only have been intended, (and cannot be otherwise construed,) to extend the time for completing that, which by the 18th section of the original act, was required to be done within the respective times therein limited. And that was, the making "the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from Cumberland to tide water," and nothing more. There was no limitation of time for the exertion of the powers given by the charter, except that prescribed by the 18th section; of necessity therefore, the supplements extending the time, had reference to that section, and to the particular work expressly required by it, to be done within the times limited.
The preamble of the act of this State, of 1802, ch. 84, reciting "that the object contemplated by the act of assembly  [*120]  for establishing a company for opening and extending the navigation of the river Potomac, has been accomplished," has been much relied on, to show the understanding of the legislature of Maryland to have been,  [**202]  that the object for which the Potomac Company was originally incorporated, was the making the river navigable in its natural course, for vessels drawing one foot water, except where canals were expressly required; no continuous canal having then been made. But, however that preamble might have been understood, taken alone, it is perfectly clear, when construed with the enacting clause, that, that was not the meaning of the legislature. The language of the enacting clause, immediately following the preamble is, "that the proprietors of shares in the said Potomac Company, their heirs and assigns, shall, and may demand, take, and receive tolls, at the several and respective places heretofore fixed by law, for the payment, and receipt thereof;" thus manifestly showing, that by the object stated in the preamble to have been accomplished, was merely meant, the performance of the condition imposed by the 17th section of the original act, precedent to the right to demand and receive tolls; that is, the making the river navigable for vessels drawing one foot water. And the particular object, required by the 18th section to be accomplished within the times specified, on pain [**203]  of forfeiture of all "benefit, privilege and advantage under the act;" with no reference whatever, to the general authority to make canals, &c. given by the 4th section, without any limitation of time. And the conclusion of the same enacting clause of the act of 1802, ch. 84, is in these words, "and that all and every of the rights, interests, privileges and immunities heretofore granted to, or vested in, the said proprietors and Potomac Company, are hereby confirmed and established to them, their heirs, &c." including the right and privilege to make a canal or canals, at any time; thus asserting and confirming the existence of that right, upon the assumption that the river had been made navigable for vessels drawing one foot water.
 [*121]  The charter was not limited in its duration, but expressly made perpetual by its terms, defeasible only, on failure by the corporation, to accomplish within the time limited, what was required to be done by the 18th section. Which was a condition subsequent engrafted upon it, in defeasance of a vested franchise, on breach of which, if in point of fact, there was any act of forfeiture committed by [**204]  the corporation, it might have been avoided, or forfeited, by scire facias, or a quo warranto, if the states that granted it, had chosen to take advantage of the non-performance of the condition. But not having done so, the franchise endured, notwithstanding the breach of the condition. And it is like the grant of an estate in land, defeasible on the non-performance of a condition subsequent, strictly speaking, as if an estate be granted expressly upon condition to be void on the happening of a certain event. In such case, it is perfectly clear, that the estate is not defeated by the mere happening of the event, but that the law permits it to continue, beyond the time when such contingency happens, unless the grantor or his heirs, take advantage of the breach of the condition by entry, &c. which cannot be done by a stranger. The proceeding by the government (the grantor,) for the breach of a condition subsequent, contained in a charter of incorporation, is by scire facias, or quo warranto; by an individual grantor (or his heirs,) of land, by entry.
A private corporation aggregate may be dissolved, by the death of all its members, or by the loss of an integral part,  [**205]  whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or a corporation may be dissolved by a surrender to the government of its franchise, or by an act of the legislature repealing the act of incorporation, with the assent of the corporation; or it may be dissolved by a forfeiture of its charter, through abuse or neglect of its franchises, as for condition broken; there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution.  [*122]  But such forfeiture must be judicially ascertained and declared, upon direct proceedings against the corporation for that purpose, in order that it might not be condemned unheard, for an imputed delinquency. Where there is no corporate body in existence, as where it has been dissolved by the loss of an integral part, or by surrender, &c. it would be not only useless, but absurd, to go into a court of law, to obtain a judgment of dissolution. But where there is an existing corporation capable of acting, but which has been guilty of an abuse, or neglect of its franchises, or the powers committed to its trust, amounting to a cause of forfeiture, such [**206]  cause of forfeiture can only be enforced by scire facias, or a quo warranto, issued at the instance of the government creating the corporation, and cannot be taken advantage of incidentally, or in any other way, or by any individual; since the government, with which alone the contract arising out of the charter is made, may waive the breach of any condition of that contract, and cannot be made to enforce the forfeiture, whether it will or no, and when it may have sufficient reason for not choosing to do so. Until it does, and that by judicial action, and not by legislation, no individual or other corporation, can treat it as a forfeited franchise. This is the doctrine taught by the authorities--among which are, The King vs. Amery, 2 Term. R. 515. The King vs. Pasmore, 3 Term. R. 199. Terrett vs. Taylor, 9 Cranch 43. Dartmouth College vs. Woodward, 4 Wheat. 518. Slee vs. Bloom, 5 Johns. Ch. 366. Slee v. Bloom, 19 Johns. 456. The Trustees of Vernon Society vs. Hill, 6 Cow. 23. McLaren vs. Pennington, 1 Paige Ch. 102, and Angell and Ames on  [**207]   Corporations.
The opinion of that distinguished jurist Judge Marshall, which was used in argument, would be entitled to, and would receive the highest consideration, if the question upon which it was given, arose in this cause. The substance of it is, that as the 11th section of the charter only authorized  [*123]  the condemnation of land, through which a canal was intended to pass, the condemnation must of course be before the canal was made; and therefore, that if after the canal had actually been made, and the making of it no longer rested in intention, there could be no condemnation of land on the sides of it; upon the principle asserted, that every law, which is to wrest from an individual his property without his consent, must be strictly construed. The utmost extent to which that opinion could be used, would be to show, that wherever the power of the company to make a canal, had been exerted, it was expended and gone, and could not again be exercised by a further condemnation of land, at the same place. But the question presented here, is not whether the power of the Potomac Company to make canals, had, by being exerted, been executed, and was at an [**208]  end; but whether that corporation retained the power to condemn land, and make canals, where none had before been made.
The penalty annexed to the breach of the condition in the first clause of the 18th section, was, that "the company should not be entitled to any benefit, privilege, or advantage under the act;" and in the last, that "all the interest, &c. of the company should be forfeited and cease." Now, to lose all benefit, privilege, and advantage; or for all interest to be forfeited and cease, would be to lose the charter itself. To take away every thing a charter gives, is to take away the charter--and to have taken away all benefit, privilege, advantage, and interest, would have been, to take away every thing that this charter gave. A forfeiture therefore of the entire charter, together with the particular franchise to condemn lands and make canals, was the penalty prescribed.
The analogy between this, and the case cited of Agnew vs. The Bank of Gettysburg, 2 H. & G. 478, is not perceived. That was the case of a bank charter, of limited duration, which had expired by its own limitation, and with it, the corporation ipso facto  [**209]   dissolved; it wholly ceased to exist for any purpose; no corporate powers remained,  [*124]  no originally vested franchise to be divested, for none were given beyond the term of duration; and no act was necessary to be done, in order to avoid the charter, or dissolve the corporation. But this was a corporation in full life, with vested franchises, unlimited in their duration, and liable only to be divested, through failure to exert them to a limited extent, within a specified time--and although by matter in pais, it might perhaps stricti juris, have had no right to exert them; yet none could have questioned the right, but the States that granted the franchises, and with which the contract was made, and which alone could have resumed them, for breach of the condition, on a judgment of seizure--until which was done, the corporation continuing to exist, the power to exert the franchises granted, remained.
Suppose for any cause, the rail road, or canal, should not be completed within the time prescribed by its charter; would it be contended that the charter was ipso facto forfeited, and the corporation dissolved without any judicial proceedings being instituted [**210]  for that purpose, and that the State could thereupon grant the same franchises to another company? It is however conceded, that at the date of the surrender and transfer to the Canal Company, this was a subsisting corporation, with corporate rights, and the power to exercise them; and it is said, it must now be taken, that the river had then been made navigable for vessels drawing one foot water. If so, every benefit, privilege, and advantage, under the act, remained; and among them, the privilege of condemning land, and making a canal or canals, at any time; which the corporation was free to exert, where and when, and how it "should think fit," within the designated region. The expressions, benefit, privilege, advantage and interest, used in the 18th section, applied as well to the right to demand and receive tolls, and to make the river navigable in the natural course, as to the right to condemn lands for a canal or canals. The terms equally embraced  [*125]  all the rights and powers of the corporation; if one was to be forfeited, all were to be forfeited; if a term was prescribed for the duration of one, the same term was prescribed for the duration [**211]  of each. There was no distinction, no exception of one, more than another from the operation of that section. And evidence of their understanding of the 18th section, is furnished by the acts of the legislatures that granted the charter; which show, that they did not consider the franchise as one that was to expire by its own limitation, but viewed and treated it, as a question of forfeiture altogether. Not as a grant of the right or franchise for a limited time, to condemn lands and make canals, but as a grant of the franchise for an indefinite time, subject to a defeasance, and that the object of the different acts passed for the extension of the time limited by the 18th section, was to guard the corporation against the liability to a forfeiture for a breach of the condition.
The 2d section of the act of Virginia, passed in November, 1793, for extending the time limited by the 18th section of the charter, has this provision, "and that no privilege or advantage granted by law, shall be forfeited or lost, in case the navigation aforesaid shall be finished within the time hereby limited." The 3d section of the act of this State, passed at the November session, [**212]  1794, ch. 29, for the like purpose, has the same provision, and the provision of the 4th section of the act of this State, passed at the November session, 1797, ch. 93, is in the same words.
The act of 1814 of this State, ch. 75, giving to the company the power to acquire land, by purchase, compromise, or exchange only, which is relied on to show, that the power before granted to acquire land for constructing canals, was considered by the legislature as gone, and extinguished, does not seem to have been correctly attended to. It declares that the company "shall be, and they are hereby authorized and empowered, to use and dispose of the land and water rights, now held by the said company, or which they may hereafter acquire in this State, in the erection of  [*126]  mills," &c., "and shall be authorized and empowered to acquire lands and other property, contiguous to the land, canals, and locks on said river, by purchase, compromise, or exchange, &c. No authority had before been given to the corporation to acquire land in any way, except for the purpose of constructing canals and building toll houses; and the authority given by this last act to acquire land,  [**213]  was not for the purpose either of constructing canals, or building toll houses; but it was an authority to acquire lands contiguous to the canals and locks on the river, for the purposes, as it would seem, of the mills, or other water works, which the same act authorized the corporation to erect. It was therefore an entirely new power, not given, because the power before imparted had departed from the corporation; but for a purpose, foreign from that, for which the power to condemn land had before been given. It was therefore a necessary power, for the purpose for which it was conferred, though the former power to acquire land by purchase or condemnation remained in full force; since under that former power, no lands could have been condemned contiguous to canals already made, for the purposes of mills or other water works; and it affords no inference that the former power, was considered as having ceased. But as it speaks of water rights thereafter to be acquired, it would seem to imply, that the right to make canals still existed, which was a means of acquiring water rights, and that, after the expiration of the time last limited by the acts of this State.
On the 29th of [**214]  January, 1821, the legislature of Virginia passed an act authorizing the appointment of commissioners, to ascertain among other things, whether the terms and conditions of the charter had been complied with; and if not, to advise and consult with commissioners to be appointed on the part of this State, as to the measures best to be recommended to, and conjointly adopted by the two States, either for giving aid to the company in the further prosecution of the work, or for the institution of a prosecution  [*127]  against it, for the purpose of annulling and vacating the charter--and in the course of the same session, the legislature of Maryland passed a resolution for the appointment of commissioners to make the same joint inquiry; substituting only, for the measure of instituting a prosecution, the alternative of adopting measures for the more effectual improvement of the navigation by some other means. Thus we have the sense of the States that granted the charter, clearly expressed by the concurrent acts of their respective legislatures, after the expiration of the last extension of the time limited by the 18th section, that if the condition [**215]  (calling it and treating it as a condition, and not a limitation,) had not been complied with, not that the franchises had therefore expired, and that the corporation was dissolved, but that it continued to exist, in the possession of the corporate powers originally given to it, and that until it was dissolved by judicial action, it might, with sufficient pecuniary aid, go on to do the work originally authorized; with the opinion of the legislature of Virginia plainly indicated, that the breach of the condition could only be taken advantage of by direct proceedings at law, instituted for that purpose, and the unwillingness of Maryland to adopt so harsh a measure.
And finally, the two States upon whose pleasure alone, the continuance of the corporation, and of its franchises depended, (both of them interested as stockholders, and Maryland largely as a creditor,) and which had a right to waive the breach, by any non-feasance or mal-feasance of any implied or expressed condition contained in the charter, having virtually waived the breach of the condition by the corporation in failing to exert its franchises, by the act to incorporate the Canal  [**216]   Company conclusively remitted to the Potomac Company any abuse, or neglect of its franchises, or any of them; and recognized and treated it as a subsisting corporation, in the full possession of all its original powers, in requiring its assent to the charter of the Canal Company, in  [*128]  order to give it validity; and by declaring in the 13th section of that charter, that upon the surrender and transfer by the Potomac Company to the Canal Company of its charter, all the rights and powers thereby granted to the Potomac Company, should be vested in the Canal Company, which included the right and power to condemn land for canals. Not the rights and powers, then held by the Potomac Company, but all that had been granted, and which must have been considered as then subsisting, otherwise they could not so pass and vest. Which shows the intention and meaning of the 18th section; and it is not denied, (as it cannot be,) that in construing a statute, a subsequent law upon the same subject, may be resorted to, for the purpose of ascertaining the intention, which when discovered, must prevail; all statutes in pari materia being [**217]  construed as one law. But whether this view of the subject is correct or not, and independent of any corporate rights and privileges derived from the Potomac Company, a priority of right in the choice of a route for the canal in the valley of the Potomac, is claimed on the part of the Canal Company, by the force and effect of its own charter, viewed as a compact between the States of Virginia and Maryland, and the Congress of the United States, and between those sovereign parties and the Potomac Company. Which leads to an inquiry into the character and effect of that instrument.
A State may contract with an individual; and it is equally certain, that two or more of the States, may enter into a compact or agreement inter se; and the only question upon that subject is, whether that has been done in this case--which involves the further question, (if a question it can be at this day,) whether a State can contract by an act of its legislature. That it can so contract with an individual, is settled beyond all controversy by the decisions of the Supreme Court, in Fletcher vs. Peck, 6 Cranch 87. The State of New Jersey vs. Wilson, 7 Cranch 164. [**218]  Terrett vs. Taylor, 9 Cranch 43. The Town of Pawlet vs. Clark and others, 9 Cranch 292; and Dartmouth College vs. [*129]  Woodward, 4 Wheat. 518; and that two or more of the States may contract in that form inter se, is settled by the same court in Green vs. Biddle, 8 Wheat. 1, which was the case of a law of Virginia, relating to the separation of the district of Kentucky from Virginia, and the erecting that district into a separate State, containing this clause, "that all private rights, and interests of lands within the said district, (Kentucky) derived from the laws of Virginia prior to such a separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State." Which being afterwards ratified by a convention of the people of Kentucky, and made an article of the constitution of that State, it was held to be a compact between those States, the obligation of which, Kentucky could pass no law to impair. How then does this case stand? Virginia, impressed with the importance of that subject, but knowing [**219]  that the object could not be accomplished by any act of its own legislature alone, nor by its sole authority, passed the act for the incorporation of the Canal Company, in January, 1824, requiring in terms, the assent of the legislature of Maryland, of the Congress of the United States, and of the Potomac Company, to its provisions, to give it effect and validity so far as concerns the eastern section of it, to which only, this suit relates. Maryland, treating it as a proposal offered for acceptance, assent, and confirmation, by an act of its legislature, passed on the 31st January, 1825, declared it to be "accepted, assented to, and confirmed." The Congress of the United States, by the act of the 3d March, 1825, declared it to be "ratified and confirmed," and on the 16th May, 1825, the Potomac Company, by a corporate act, signified and declared its "assent" to it, and to all its provisions.
There are no technical words necessary to constitute a compact, or contract, which are convertible terms; and neither need be used, and seldom is, in the instrument creating it. It is a mutual consent of the minds of the parties  [*130]  concerned,  [**220]  respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne; "a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other," and any words manifesting that congregatio mentium, are sufficient to constitute a contract. Here we have the very language of contract, in the terms "accept," and "assent to." It is the language used by the parties to a compact of the most solemn and imposing character. The 7th article of the constitution of the United States, provides, that "the ratification of the conventions of nine States, shall be sufficient for the establishment of the constitution between the States so ratifying the same; and the language used by the conventions in their acts of ratification, is, "assent to and ratify," "assent to, ratify, and adopt," "agree to, ratify, and confirm," "approve, assent to, ratify and confirm," and the amendments proposed by Congress in 1789, were ratified by acts of the legislatures of the respective States, using the language, "ratify," "assent to,  [**221]  and ratify," "confirm and ratify," "assent to, ratify, and confirm," &c.
The constitution to which validity and effect, to which vitality was imparted, by those expressions of assent, became not a mere confederacy, or league, but a compact, in the language of the constitution, "between the States so ratifying the same," as soon as it was so ratified by the number required by the 7th article; by which, they were reciprocally bound, that there should be such a government of the Union for the benefit of the whole, with the assent of the people, and proceeding from them, as that, provided by the constitution. And when the federal government was organized and brought into existence, which is a creature of the constitution, possessed of the rights and powers it confers, and subject to the duties it prescribes and enjoins, it became also a compact between the parties to it, and the federal government.
 [*131]  In this case, there were mutual interests in the subject matter of the reciprocal acts of the two States and of Congress, with an acknowledged authority to contract; and the legislature of neither of the States, could have performed by any separate act of legislation, what [**222]  was proposed to be accomplished by the concurrent acts of all. One terminus of the canal is proposed to be in the District of Columbia, and the other in the State of Maryland; and Virginia could not of its own authority, by any separate act, authorize a canal to be made through Maryland, nor could Maryland authorize a canal to be made through Virginia, without its consent, nor could either or both of them, authorize one to be made in the District of Columbia, without the consent of Congress; Maryland and Virginia were interested in the Potomac Company; both, as stockholders, and Maryland largely as creditor, and both of them, and also the United States were interested in the river, and the works erected by the Potomac Company, as a public highway. Neither of the States therefore, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of that company, nor have received, or authorized the surrender of it, and of the works, to another company. Neither State could have authorized the condemnation of land, nor the imposition and collection of tolls within the territory [**223]  of the other, without the consent of that other; nor could either or both of them, have authorized either to be done within the District of Columbia without the consent of Congress. The 14th section, declares "that the said canal, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway." Not, that the part in Virginia, shall be a highway there, nor the part in Maryland, a highway in Maryland; but the entire canal shall be one continued connected highway, through the respective territories of the three sovereigns; and neither of the two States could have made a public highway through the territory of the other, without the consent  [*132]  of the other; nor neither or both of them, through the District of Columbia, without the consent of Congress. Yet all this, wearing the features of a conventional arrangement, has been done by the reciprocal and concurrent acts of the three sovereigns; with other stipulations and reservations of rights, impressing upon those acts the qualities of a compact.
The 9th section declares, that the canal and other works "shall [**224]  be forever exempt from the payment of any tax, imposition, or assessment whatsoever." Now ordinarily, Congress and each State has a right to impose taxes within its own jurisdiction, and neither has the power to deny it to the other. What then, is that renunciation of the right to impose taxes, but a stipulation or agreement between them, that neither will exercise that right? And the 14th section provides, that no other toll or tax for the use of the canal and works, except those authorized by that act, "shall at any time be imposed, but by consent of the said States, and of the United States." Is not that an agreement or stipulation, that neither will authorize the imposition of any further toll or tax, even within its own territory for the use of the canal, without the consent of the others? There is a stipulation in the first section, that Congress and each of the States shall appoint commissioners for taking subscriptions to the stock, and carrying the act into operation. Not to act separately, as if it were a separate law of Congress, and of each of the States; but to act conjointly for carrying it into effect, as the united act of all--and the stipulation for [**225]  the appointment of commissioners, could only have been an agreement between themselves, as the corporation was not then in existence, and was only to be brought into existence by the agency of their joint commissioners, as a creature of their joint creation. In the 20th section, there is a provision for reserving to each State, the right to charter another company, in case the western section of the canal, should not be completed within the time limited. And in the 21st section, there is a reservation to each of the States, of the  [*133]  right to make lateral canals, to be fed by the waters of the Potomac; and to the government of the United States, to extend the principal canal through the District of Columbia, with a provision that before the act should take effect, Congress should authorize the two States, or either of them, to take and continue a canal from any point of the principal canal, through the District of Columbia, &c. (which was done by Congress in the act of March, 1825, and the unnecessary explanatory section of the act of 23d May, 1828.) There is also in the 21st section the further provision, "that in taking or extending such lateral canal [**226]  or canals through the District of Columbia, by either of the States, no impediment or injury be done to the navigation of the Chesapeake and Ohio Canal." And are not those reservations and provisions, mutual stipulations or agreements, that each shall have and enjoy the rights and powers reserved and conceded, and that neither of the States, shall make any lateral canal or canals to the prejudice of the navigation of the principal canal? We have moreover the understanding of the parties themselves, of the character of this act of incorporation.
The 1st section of the act of December session, 1826, which is an act for the amendment of the act of incorporation, after reciting, that it had received the assent of Maryland, Congress, and the Potomac Company, declares that it shall be amended, &c. "on condition that this act receive in like manner, the assent of the necessary parties thereto." And the 4th section, "that this act shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company," showing them to be the parties alluded to as the necessary [**227]  parties. It did receive their assent, and became a part of the charter. It does not in terms call that act, or the original act, a contract, but it uses equivalent expressions, "receive in like manner, the assent of the necessary parties;" parties to what? not to that act, as a separate, and independent act of  [*134]  the legislature of Maryland: that could not be; neither of them could be a party to it, as a mere law of Maryland. It was only in the character of a compact, that they could become parties to it; and being parties to the original charter, which that act proposed to amend, they were necessary parties to that act, and the assent to that act, by all the parties named, was a recognition of the necessity for their concurrence as parties to it; in order to give it the effect to alter, or in any manner modify the original act--and the same may be said of the act of the December session, 1827.
There were mutual interests, advantages, and rights, reciprocally conceded and compensated, by the concurrent acts of Virginia, Maryland, and Congress, constituting the original charter, which by any fair test that can be applied, is believed to be a compact [**228]  between the two States and Congress, a reciprocal pledge of public faith, that there should be a corporation, the creature of that compact; created, not merely for its own benefit and advantage, but to effect a great national object, in which all were concerned, for the common benefit and advantage of all, and for the public good; and that whenever the corporation should be brought into existence, it should be invested with all the privileges, rights and powers, provided by the charter, for the accomplishment of the end contemplated, without any diminution or alteration of the franchises as therein expressed. There is no acknowledged necessity, for any stronger, or more technical terms, to constitute a compact between two or more states, than between a state and an individual; and the terms here used, would be quite sufficient to constitute a contract between a state and an individual. Indeed this very charter being a grant, is an implied contract with the corporation, not to re-assert the rights it has granted.
It has been intimated, rather than seriously argued, that under the provision of the constitution, "that no state shall, without the consent of Congress, enter into [**229]  any agreement or compact with any other state," this charter is inoperative  [*135]  as a compact between the two states, for want of the constitutional assent of Congress.
The assent of Congress to the provisions of the charter, is required by the 23d section, to be given "as the legislature of the District of Columbia." The consent of Congress could not have been given as the legislature of the District of Columbia. It has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of the legislature of the Union, (in which capacity its assent was given to this charter,) and no state, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress to it, as the legislature of the Union.
There is no particular form, in which the assent of Congress is required to be given, and it is not material in what form it is given, provided it is done. Here is an act, proposing to create a corporation, with all the necessary rights and faculties for making a canal, to terminate in the District of Columbia, to which the assent of Congress [**230]  , a party in interest is required to give it validity, and Congress ratifies and confirms it, so far as may be necessary, for enabling any company formed by the authority of that act of incorporation, to carry into effect its provisions, in the District of Columbia; and is not an assent to the provisions of the act being carried into effect in the District of Columbia, by a company to be formed under the authority of the act, an acknowledgment of its authority, an assent to the act itself, and to the creation of a company, with all the powers proposed to be given to that company, for executing its provisions? The act does not provide for the making a separate canal in the District of Columbia, nor did Congress intend so to restrict the company; but to authorize an extension into the district of the canal indicated by the provisions of the act, and by the means the act prescribes; and the assent to the extension of the canal into the district, was a recognition of, and an assent to the whole scheme of the canal itself, and of the provisions for making it. And thus Congress,  [*136]  by the very act of becoming a party to the whole scheme of [**231]  the canal, in acceding to it, to the extent of its territorial interest, gave to the compact or agreement, such an assent as was sufficient to gratify the constitution. But it is unnecessary to dwell longer on this part of the case. In Green vs. Biddle it was decided, that no particular form, for the assent of Congress to a compact between states, was required, and it was held that the consent of Congress in terms, "to the erecting the district of Kentucky into a separate and independent state, and its reception into the Union," upon a certain day, was a sufficient consent under the constitution, to the compact in detail between Virginia and Kentucky, for that purpose; though no part of the compact, except that which related to the erection of Kentucky into a separate state, was adverted to in the act giving the consent of Congress; and the act of Congress of 23d May, 1828, assenting to the acts of this State, for changing the route of canal above Cumberland, and substituting railways, &c. for a canal through the Alleghany mountains, declares "that the assent already given by the United States to the charter of the Chesapeake  [**232]   and Ohio Canal Company, shall not be impaired by any such change, &c." which plainly shows that Congress understood the assent before given, to extend to the whole charter a compact, and all its provisions--otherwise, the provision that a change in the route of the canal above Cumberland, should not impair that assent, would have been unnecessary, as no change of the route above Cumberland, could in any way affect that assent, unless it extended to that part of the route. Besides, it speaks of the assent before given to the charter, in terms which embraces all its provisions.
The Potomac Company, which was also the creature of a compact between this State and the State of Virginia, was at the time the original act was passed for incorporating the Canal Company, a subsisting corporation, and its charter could not have been repealed or annulled, nor any of its corporate rights diminished or infringed, without its concurrence.  [*137]  Its assent therefore, to the scheme of a new corporation in its place being necessary, it was expressly made a condition precedent to the consummation of the canal charter, and to the vesting of any rights under it; to [**233]  be signified by its corporate act registered among the archives of the two States, and of the United States, which was regularly done.
Upon its assent so given in consideration of a stipulated equivalent, the canal charter was to take effect, and not otherwise. It was not to be evidenced, as has been supposed, by a surrender of its charter, and transfer of its property and rights to the Canal Company; which was only authorized to be done by the 13th section, after its assent had been declared, as required by the 1st section, and after the Canal Company had been formed; and could not have been done before the company was formed, and in a condition to receive such surrender--and it was only after the assent that the company could be formed, as without it, there would have been no authority for its formation, no act of incorporation.
What the Potomac Company was required to yield, was its charter, with all its rights and property held under it--and the proposed equivalent, was the benefit to that company, of the privilege of stock in another company, possessed of all the rights and advantages proposed to be granted to the Canal Company, being paid for in [**234]  the debts of the Potomac Company, and in certificates of its stock at the par or nominal value.
It was plainly a proposal made to the Potomac Company, for its acceptance, in the form of legislative enactments, to this effect; if you will consent to the provisions of this act, for incorporating the Chesapeake and Ohio Canal Company in your place, you shall, on the formation of that company, be authorized to surrender and transfer to it, your charter, with all your corporate rights and privileges; as an equivalent for which, and in consideration of your assent, the Chesapeake and Ohio Canal Company shall be invested  [*138]  with all the rights and privileges that the provisions of the act impart, and subscriptions for stock in that company shall be payable in claims against you, and in certificates of your stock at par; such a transaction between individuals, in relation to any matter about which they were competent to contract, would clearly be a contract, the obligation of which the State could pass no law to impair. And it is conceded that, that legislative proposal, agreed to by the solemn corporate act of the Potomac Company, amounted to a contract between [**235]  the two States and Congress on one side, and the Potomac Company on the other, to the same extent, and of the same obligatory force and effect, as the compact of Congress and the two States inter se. Not awaiting the formation of the Canal Company, nor the surrender and transfer to it by the Potomac Company, of its charter and property; but eo instanti that the assent of the Potomac Company was given, it became a compact, and by virtue and force of that very compact, a law; the concurrence of the parties to the compact being a condition precedent to its becoming a law, which compact and law, it was not competent to the Potomac Company afterwards to defeat or annul, nor by any act to rescind its assent.
And it is a mistake to suppose, that its becoming a compact, depended upon the coming into existence of the Canal Company, and its acceptance of the offered terms as a necessary party. The coming into existence of the Canal Company, depended upon the prior formation of the compact, of which it was to be the creature, and without which it could have had no existence. When the Canal Company did come into existence, and accept the [**236]  charter, in the only way it could, by the very act of coming into existence, the subscriptions to the stock, the charter became a grant, from which, there then resulted a contract between the two States and Congress, and the Canal Company; but distinct from the compacts of the two States and Congress inter se, and between them and the Potomac Company. They were contracts, that there should  [*139]  be such a corporation, with all the rights and privileges provided by the charter. The contract of the two States and Congress with the Canal Company is, that they will not re-assert the rights they have granted.
Upon the faith of the canal charter, the Potomac Company surrendered and transferred its charter, and all the rights and property it enjoyed and held under it, in consideration of a stipulated equivalent; the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company. For of what value would the privilege of paying for stock of the Canal Company, in the debts, and certificates of stock of the Potomac Company be, if the stock of the Canal Company should be made worthless by an act of the legislature?  [**237]  and would not the faith of the States be violated by impairing that equivalent in any way, without the consent of the Potomac Company?
But if there is any ambiguity in the original act for incorporating the Canal Company, or doubt arising upon that act alone, as to the intention of the respective legislatures, the understanding of Congress, and of the two States, that it was a compact, to which they and the Potomac Company were parties, and could not therefore be in any manner altered or modified, without the consent of that company as a necessary party to such alteration; and that they acted upon that understanding, is demonstrated by the act of this State, of the December session, 1826, assented to by Virginia and by Congress, for amending the charter; which requires as a condition precedent to its becoming a law, that it shall receive the assent of Virginia, Congress, and the Potomac Company, as necessary parties thereto, in like manner as they had assented to the original act--and also by the act of the December session, 1827, for further amending the charter, which required and received the same assent. And these acts are particularly [**238]  worthy of notice, as showing the presence of a contract to which the Potomac Company was a party in interest; since, if it had no interest in the conservation of the canal charter, and of the rights  [*140]  and privileges it professes to confer, there was no necessity for requiring its assent to any change in the route of the canal. But the recital in the preamble, that "it is represented to this general assembly, that the Potomac Company are willing and desirous that a charter shall be granted to a new company, upon the terms and conditions hereinafter expressed, and that the charter of the present company shall cease and determine," furnishes evidence of a conventional arrangement with that company, and would seem to be conclusive of the question of contract.
As to the sphere of the operations of the proposed corporation, looking to the various documents accompanying the answer, there would be no difficulty in ascertaining through what region it was intended the canal should pass; but it is unnecessary to resort to those documents generally, or to inquire how far recourse may be had to them for that, or any other purpose; the charter itself sufficiently and clearly designates [**239]  the valley of the Potomac for the intended route of the canal.
The preamble states the object to be the construction of "a navigable canal from the tide water of the river Potomac in the District of Columbia, to the mouth of Savage Creek," &c. "to be fed through its course on the east side of the mountain, by the river Potomac and the streams which empty therein." Here then, is a canal to begin, and end upon the river, and to be fed throughout its course, by the waters of the river, from one terminus to the other. Could there have been a clearer manifestation of the intention of the makers, that the canal should pursue the course of the river? The right to make a canal, necessarily drawing to it, (if there was nothing more to indicate the valley as the intended route,) the right to make it where it could be supplied with the water, the vital stream by which it was intended to be fed.
The two termini being thus fixed, the laws of nature point to the course of the river, as the route of the canal.--The recital too in the preamble, that the Potomac Company  [*141]  were willing and desirous that a charter should be granted to a new company [**240]  , upon the terms and conditions thereafter expressed, shows it was intended as a substitution of the Canal Company for the Potomac Company, and to take its place in all things, and it has been seen, that the operations of the Potomac Company were confined to the valley of the Potomac.
The enacting clauses are in perfect accordance with the preamble, and provide for carrying it into effect. The 4th section authorizes and empowers the corporation to cut canals, erect dams, open feeders, construct locks, and perform such other works, as it shall judge necessary or expedient for completing the canal before mentioned and described; that is, the canal described in the preamble, to be made from tide water to the mouth of Savage Creek, and fed by the Potomac.
The 15th section, after reciting that, "it is necessary for the making of the said canal, &c. that a provision should be made for condemning a quantity of land for the purpose," authorizes the acquisition by condemnation, of any land through which the said canal is intended to pass, (still referring to the canal described in the preamble,) and declares, that on the payment of the valuation [**241]  of the land so condemned, the title shall vest in the corporation; and the 19th section authorizes the corporation, during the pendency of any proceedings, to subject any land to the purposes of the act, to enter upon the land and go on with the work. The 20th section declares, "that the eastern section of the canal shall begin at the District of Columbia on tide water, and terminate at or near the bank of Savage river or creek, which enters into the north branch of the Potomac, at the base of the Alleghany mountains," and the 13th provides, for the establishing a rate of tolls, on the different parts of the canal, as they shall be finished, "until the eastern section shall be finished, up to the mouth of Savage river or creek." The 11th directs the appropriation of the surplus tolls, "to the accommodation of the inhabitants of the shores  [*142]  of the river Potomac, by affording to them, in the best practicable mode, a safe and easy access to the canal, from the surface of the main river." Now, how are the inhabitants of the shores of the river to be accommodated with a safe and easy access to the canal from the surface of the river, unless the canal [**242]  is constructed upon the shore, or in the valley of the river? The 13th section makes it the duty of the corporation, when any part of the canal shall not be finished, "to keep the corresponding part of the river in a proper state for navigation." What corresponding part of the river can there be, if the canal is not made along the river? And the same section annuls the charter of the Potomac Company, upon its surrender and transfer to the Canal Company, and grants to the Canal Company all the rights and powers, that had been granted to the Potomac Company; which included the original power of the Potomac Company to make canals along the borders of the river. The 2d section of the act of December session, 1826, for amending the charter, assented to by Congress, Virginia, and the Potomac Company, authorizes the termination of the eastern section of the canal, "at or near the town of Cumberland on the river Potomac," (which is situated on the Maryland side of the river,) instead of the mouth of Savage creek and the commencement of the western section at that point, and has also this provision, "and in the event, that the western [**243]  section of the Chesapeake and Ohio Canal shall leave the valley of the Potomac river, at any point below the coal banks, at or near the mouth of Savage, &c." showing the intention of all the parties, that the route of the eastern section of the canal should be in the valley of the Potomac, and designating the town of Cumberland as a point in the valley of the Potomac, on the left or Maryland shore of the river to which it should go. The board of engineers for internal improvement, acting under the authority of the general government, in their report, made before either Congress or the Potomac Company had assented to the act of incorporation, explicitly state, that the  [*143]  eastern section of the canal must pass through the valley of the Potomac, and follow the course of the river without any deviation, and that the side on which it should go, is the only choice left, but giving a preference to the left or Maryland side--and they base their estimate of the cost upon a construction of it on the Maryland shore--which survey and report were recognized and adopted, as designating the route of the canal, by the legislature of  [**244]  Maryland, in the act of the 6th March, 1826, for the promotion of internal improvement, in the proviso to the subscription to the stock of the Canal Company, that the executive should be satisfied that the residue of the sum estimated by the United States' board of engineers to be adequate to the completion of the eastern section of the canal, had been subscribed by bona fide and competent subscribers; which act also provides for a canal to be made by the Maryland Canal Company, "from some convenient point on the Potomac river, continuing the Chesapeake and Ohio Canal to the city of Baltimore"--and the assent of Congress and of the Potomac Company having been given to the original charter, after that survey and report were made, they may be considered as having received their sanction also--and the survey and estimate of the cost of the same route, by the civil engineers, Geddes and Roberts, may likewise be considered as the basis of the subscription by Congress, of a million of dollars (which was made afterwards,) to the stock of the Canal Company.
With all this before us, is it not perfectly manifest, can it for a moment [**245]  be doubted, that the valley of the Potomac was intended, and specifically designated for the route of the contemplated canal? If indeed the sanction given by this State to the proceedings of the board of engineers for internal improvement, by making their survey the basis of a subscription of half a million of dollars, to the stock of the Canal Company; and the assent of Congress, and of the Potomac Company to the original act, after that survey had been made; and the subscription by Congress of a million  [*144]  of dollars, consequent upon the survey, and estimate of cost of the same route by the civil engineers, Geddes and Roberts appointed for that purpose, may not be taken as an actual appropriation of the land surveyed for the route and site of the canal. If the Canal Company had come into existence immediately, and before the rail road charter was granted, it would have taken a vested right to choose a route for the site of the canal, in the valley of the Potomac, along either bank of the river, except at the upper terminus, which, whether at the mouth of Savage creek according to the original charter, or at Cumberland [**246]  according to the amendatory act of the December session, 1826, is confined to the Maryland shore, both of those places being on that shore, and specifically designated for the upper termination of the eastern section of the canal, a right created by the charter, and existing independent of any survey, or act of location or of condemnation, which would be but an exertion of that right. And if the Rail Road Company had afterwards been chartered and organized, before any exercise of that vested right by the Canal Company, it could not, by any act of location or appropriation, have defeated or overreached it. The prior grant that gave, would have preserved the prior right. It would have been a corporate right, a vested franchise, to select the most suitable ground for the construction of the canal within the assigned sphere of action, which neither of the sovereign grantors alone, nor all together, could by any direct legislative act, have taken away or repealed; and much less could it be taken away, or disturbed by the act of any other corporation. This franchise, this corporate right, to select and acquire land for the authorized purposes of a corporation, is property;  [**247]  it is an incorporeal hereditament, not a legal title to the land itself, not a mere capacity or faculty to acquire and hold land, such as every individual possesses; but in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation, to acquire the legal title to land subjected by the grant to its will, and  [*145]  thus to convert the incorporeal into a corporeal hereditament, and after the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire, any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise. And although the Canal Company was not actually incorporated, and had not accepted the charter, before the Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation [**248]  came into existence. It is not like the common case of an act of incorporation, passed by an individual State, which ordinarily, the State may repeal or modify at pleasure, at any time before it is accepted, and when no rights are acquired under it, and if it is accepted after any alterations are made, the corporation takes it subject to such modification; because, until accepted, it is not a grant, and there is no contract between the State and the corporation, no pledge of public faith, to be violated by any alteration of the charter. And is it not on the ground of an original contract with the Canal Company, by Congress and the two States, at the date of this charter, that on this point of the case, the corporation is considered as having taken the charter, and holding it according to the then state of things with all its provisions inviolate; for it is admitted, that the three sovereign grantors, with the consent of the Potomac Company, might have repealed, or modified the charter, (as they did in more instances than one,) or have granted the same franchises to any other company, at any time before acceptance by the Canal Company, or any act done, or right acquired [**249]  under it; as until then, it had not assumed the character of a contract with that company, and therefore might have been altered or annulled by the united action of the parties, from  [*146]  whose concurrence it derived its existence. Though neither, acting alone and independently of the others, had the ability to do it, according to their own understanding of its charter and obligations; as is conclusively shown by the several amendatory acts of this State, of the December sessions 1826 and 1827, expressly requiring, and receiving the concurrence of all, in order to give them validity; and the former in terms styling them necessary parties. But it is on the ground of the compact and agreement of Congress and the two States inter se, and between them and the Potomac Company, arising from the reciprocal and concurrent acts of the three former, and the assent of the latter; the consummation of which, was on the 16th May, 1825, the day on which the assent of the Potomac Company was given, anterior to the date of the rail road charter; and under the protection of the constitution of the United States, cannot be impaired or affected by any thing contained in [**250]  that charter.
It is conclusively settled by the Supreme Court of the United States, in Fletcher vs. Peck, Terrett vs. Taylor, The Town of Pawlett vs. Clark, Dartmouth College vs. Woodward, and in Green vs. Biddle, that contracts between States and individuals, and also contracts between two or more States, are within the protection of the provision of the constitution, "that no State shall pass any law impairing the obligation of contracts," and that no State can constitutionally pass any law, impairing the obligation of its own contract, whether with an individual, or with another State. The contract here was, that there should be a corporation, which, whenever it should be organized, should, by virtue of the charter, have the right to make a canal from the tide water of the river Potomac, in the District of Columbia, through the valley, and pursuing the course of the river, to the mouth of Savage creek, (a point on the left or Maryland side of the Potomac,) with permission afterwards given, to stop at the town of Cumberland, upon the river, (also a point designated on the Maryland side,) with  [*147]  power to acquire by purchase or condemnation,  [**251]  any land that should be found necessary for that purpose; which of necessity included the right to choose the route of the canal within the designated region, as the mere right to condemn land would have been of no value, and the canal could never have been made, without the additional right to select such land for condemnation, as should be thought best suited to the purpose; no specific part of the valley being appropriated. That right of choice then, in addition to the right to condemn, which is dependent upon the exercise of the right to choose, is a franchise, a portion of the eminent domain, which the sovereign grantors contracted should vest in the Canal Company, whenever it should be formed. It was a right residing in those sovereigns respectively, distinct from the exercise of it, which they had the power to exercise themselves, or to contract for the exercise of, by a company to come into future existence, and that, they did; not that the company should, on being incorporated, have the legal title to any lands held by individuals, but the franchise only to choose the route of the canal, and to acquire by purchase or condemnation, the legal title to the land selected for [**252]  its site. It was to have also, all the rights and privileges that had been granted to the Potomac Company. That contract has not been rescinded; was in full force at the time the rail road charter was granted, and has been constantly recognized, by all the contracting parties, and the charter treated as subsisting in all its integrity, capable only of being altered, by the consent of all the parties, even for the purpose of enlarging the authority of the company. By Maryland, in its various acts, both before and after the date of the rail road charter, relative to large subscriptions to the stock, and authorizing the intersection of it by other similar works, according to its provisions; by Congress, in subscribing to its stock; and by all the parties in the amendatory acts of 1826, and 1827, the 3d section of the first of which, (passed at the same session that the rail road charter  [*148]  was passed,) provides, that nothing in that act shall discharge the company from a compliance with each and every of the conditions of the original act, except as therein altered. The contract is, that the canal company shall take and hold the charter, with all its provisions, all [**253]  the rights and privileges it professes to impart. The right to make the canal in the valley of the Potomac, is not more distinctly stipulated, than the right to choose or select the route of the canal within that valley: and one stipulation can no more be violated, than the other. To exclude the canal from the valley of the Potomac altogether, would be no more a violation of the contract, than to obstruct or restrict the exercise of the right, to choose the most eligible ground for the construction of it. The right to choose the route, is not restricted by the contract, to either side of the river, except at the points designated for the termination of the eastern section; but is submitted to the judgment of the company, as it should have been. It is, by the contract, to have a choice between the two shores; authorize another company to occupy one of the shores, and that choice, that alternative is gone; it must take the other or none; and the contract, that it should have the right of choice, is violated. Besides, if Maryland has a right to authorize the occupation of the shore on the Maryland side of the river by another company, Virginia has the same right, and [**254]  between them, though only two of the contracting parties, the power to make the canal at all, might be destroyed, and the charter virtually annulled. Let it be pronounced that the Rail Road Company has the right to take possession of the Maryland side of the river, and what is there to prevent it from the taking like possession of the Virginia shore, wherever it may be found convenient? In which event the charter of the Canal Company would become as blank paper; for if it would have the right to go out of the valley with the canal, it would want the physical power, the proof being in the language of one of the witnesses, (an engineer,) that to make it out of the valley, would be a canal impracticability--and the  [*149]  further proof is, that if the claim of the Rail Road Company should be established, the canal could only be made on the Maryland shore, with such difficulty, and at such an expense, that no practical engineer would recommend it. In which case, the canal, if it went on at all, would have to cross the river, where it might be met by the same, or another company; for if to infringe the right of choice in this State, would not be to impair the [**255]  obligation of the contract by the sovereign contractors inter se, neither would a similar infringement in Virginia, impair the obligation of the contract between the grantors and the Canal Company. The same law equally applies to both contracts. But if it were otherwise, the fact that both companies have chosen the same shore, and the same route, is sufficient to show that, that is the best route; and the occupation of it by the Rail Road Company, even if there should be another, would equally impair the obligation of the contract, since it would obstruct the exercise of the right of choice; and the nature or degree of the hindrance, the extent to which the obligation of a contract is impaired, be it great or small, is not material in the view of the constitution. If therefore, under the proper construction of the rail road charter, or the practical application of it, that company would be enabled so to locate and construct the road, as to interfere with, and restrict the action of the Canal Company in the choice of the route of the canal in the valley of the Potomac, or in the exercise of any of the rights and privileges granted to the Potomac Company, [**256]  in so far, it is contrary to the constitution of the United States and void; and no rights to land, or of way, acquired by the Rail Road Company, can be set up against the paramount rights and privileges of the Canal Company, which stand as if the rail road charter had not been granted. The analogy insisted on in argument between this, and the case of two general or common land warrants, is not admitted; as between the holders of general warrants, there is no priority of right to locate. The warrant is in truth, nothing more than a mere authority to  [*150]  the surveyor or proper officer, to make the survey, and the certificate is the inception of title, to which the patent when issued, relates. The State may issue as many general land warrants as it pleases; the issuing of one, does not preclude its issuing another or more; and he who can get his warrant first executed, though the junior warrant secures the land, notwithstanding all may be laid upon the same land, because the warrant confers no right, and it is from the act of location alone, that the right arises, and the title to the land remaining in the State, may, until the warrant is located, be granted to [**257]  any other. But not so with an act of incorporation, which when accepted, amounts to a grant, and the right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other; it is therefore a prior right, to which all subsequent grants must yield. Here there was a consummated contract or pledge of public faith, anterior to the rail road charter, against the effect and operation of which, it is protected by the constitution of the United States, and to the prior right of choice so secured by that contract or pledge, the rail road charter must give place. If there is any analogy, it is to a special land warrant, arising from the peculiar and special designation of the valley of the Potomac, for the route of the canal.
If there was any thing unwise, in not having limited a time for the formation of the Canal Company under the charter, that was a question for the sovereign grantors themselves, and cannot affect the rights of those claiming under it. But there is no want of wisdom perceived: it was a subject of great difficulty, and some doubt as to the practicability of the scheme; one company had [**258]  already been in operation more than forty years, without being able to effect the desired object, and it could not well have been supposed, that others would embark their funds in such an enterprise, very hastily, and without having first taken proper measures to ascertain the probable cost of accomplishing it, if upon examination it was found to be practicable--and if  [*151]  there had been any unreasonable delay in forming the company, (as there was not,) they who made the charter could easily have revoked it, before any rights were acquired; and if, after being formed, it had lain by, and suffered the rail road to be made, without interposing any claim to the route on which the road was constructed, such acquiescence would have amounted to a waiver of its rights, which it would not afterwards be permitted to resume, to the destruction of the road. No argument therefore can be drawn ab inconvenienti, against the right claimed by the Canal Company.
To the objection rather suggested than urged, that the Canal Company was not a party to the contract between the two States and Congress, it is enough to say, that it is the creature of that compact; was brought into [**259]  existence by it, and claims, and holds all its rights under it; as well those which had been granted to the Potomac Company, (in place of which it is substituted,) as others more extended; the whole of which depend upon the inviolate conservation of that compact or pledge of public faith. In Green vs. Biddle, 8 Wheat. 1, the suit was not between parties to the compact. The compact was between the States of Virginia and Kentucky; and the suit was between individuals, one party claiming under a law of Kentucky, and the other setting up the compact, to show the law to be unconstitutional and void, and succeeded in doing so. But if the canal charter could be treated as the separate and independent act of Maryland alone, and which the legislature had therefore the power to repeal at any time before it was accepted, or any rights acquired under it; should the rail road charter be so construed, as to deny to the Canal Company the prior right to choose a route for the canal in the valley of the Potomac, and to give to the Rail Road Company the right asserted in the bill, to construct the road in the same valley, before the Canal Company [**260]  shall have selected the route of the canal?
 [*152]  Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.--Plow. 205, 232. 11th Coke Rep. 73. 19th Vin. Abr. 519. 6th Bac. Abr. 384. That, therefore, which is within the letter of a statute, is sometimes not within the statute, not being within the intention of the makers. "If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand;" and where two laws only so far disagree, or differ, as that by any other construction they may both stand together, the rule that Leges posteriores, priores contrarias abrogant, does not apply, and the latter is no repeal of the former. Roll. Rep. 90, 91. 2d Co. Rep. 5, 6. 11th Coke Rep. 63, 64. 19th Vin. Abr. 519, 525. It is laid down as an established rule, in 19 Vin. Abr. 525, [**261]  Pl. 132, that "repeals by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable; for these repeals carry along with them, a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another; and such repeals have ever been interpreted, so as to repeal as little of the preceding law as is possible;" and in 6th Bac. Abr. 385, 385, that "where it is manifestly the intention of the legislature, that a subsequent act of parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it taken strictly and grammatically, would repeal the former act." These principles have been recognized and adopted by courts, from the time of Roll, Plowden, and Coke, to the present day. In Williams vs. Pritchard, 4 Term. R. 2, where the question was, whether a house built on land  [*153]  recovered from the river Thames, which by the Statute 7th, Geo. 3, was exempted "from all taxes and assessments whatever," was liable to be assessed [**262]  to the general land tax, imposed by the 27 Geo. 3. Lord Kenyon in delivering the opinion of the court of King's Bench, said it could not be contended, that a subsequent act of parliament would not control the provisions of a prior statute, if it were intended to have that operation. But decided in that case, that though the words of the general land tax act of the 27th Geo. 3, were sufficiently large to subject the land to the payment of the tax in question, yet that the statute of 7th Geo. 3, exempting it from taxes, was not thereby repealed, on the ground, that it was not considered to have been the intention of the legislature to repeal it.
In Preston vs. Browder, 1 Wheat. 115. The Supreme Court of the United States, in construing an act of assembly of North Carolina, had recourse to the history and situation of the State, and treaties made by that State with the Indians, in order to ascertain the intention of the legislature, and thereby to arrive at the meaning of the act, and decided, that it did not embrace the land in question, though the words of it were sufficiently broad and extensive; on the ground, that it [**263]  did not appear to have been the intention of the legislature; and in McCartee vs. the Orphan Asylum Society, 9 Cow. 437, it was decided, that although the word purchase comprehends the acquisition of an estate, as well by devise, as by the party's own act, yet that the act of the legislature of New York, incorporating the Orphans' Asylum Society, which enacts that, that institution, "shall be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of the said corporation," did not so far operate as a repeal of the statute of wills, of that State, which prohibits a devise of real estate to bodies politic and corporate. Thus limiting and restricting by construction, the acknowledged legal import of the term purchase, and confining it to such other modes of acquiring real estates, as do not include a devise, on the ground,  [*154]  that it was only the intention of the legislature, to grant to that corporation the right to purchase, subject to other existing statutes, and not to confer a right to purchase without restraint, and therefore, that the term purchase, ought not to be construed [**264]  in its most comprehensive sense, since by doing so, it would have the effect to repeal the express words of a prior statute; but in a more restricted sense, so as to leave the former act unimpaired, and that both might stand together. Keeping in view the principles before stated, and upon which the decisions referred to were made, with many others quite as strong that might be mentioned, let us for a moment examine, whether it was the intention of the legislature of Maryland, when granting the rail road charter, in any manner to limit or restrict the provisions of the act to incorporate the Canal Company, or to alter or abridge any of the rights or powers originally intended to be given by that act, or to repeal any part of it; and if not, whether the rail road charter must be so construed as to operate that effect. It has been seen, that the valley of the Potomac is specially and clearly designated by the charter, for the route of the canal from one terminus to the other, the upper terminus being required to be at a point on the Maryland shore of the river; and that it was considered as a work of great national, as well as local importance. And it is undeniable,  [**265]  that independent of any interference by the rail road charter, the Canal Company would be entitled to select a route for the canal, in that designated region. On the other hand, the rail road charter is general and affirmative in its terms, with no route prescribed, no particular region or district of country designated for the location of the road, nor any thing relative in its character, requiring it to be constructed, (as in the case of the canal,) in the valley of the Potomac. A general power only being given to the company to enter upon, use, and excavate, and to acquire by purchase or condemnation, any land which may be wanted for the site and construction of the road. There is no reference to the canal charter,  [*155]  (which is not mentioned) nor to any of its provisions, or the particular region within which the canal is required to pass, and must be made, if at all; but upon the face of it, it is perfectly compatible with the canal charter, and it is only by the practical application of it, under the construction contended for, that any interference is produced.
On the 16th of May, 1825, the day on which the Potomac Company gave its assent to it, the [**266]  act to incorporate the Canal Company became a public law of the State, though not at that time operating as a grant, not being then accepted. The act of the 6th March, 1826, ch. 180, for the promotion of internal improvement, in which a company called The Maryland Canal Company is incorporated, to make a canal "from some convenient point on the Potomac river, intersecting or continuing the Chesapeake and Ohio Canal to the city of Baltimore," gives authority to the treasurer, to subscribe for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company held by the State, and of the debt due to the State by that company, and of half a million of dollars besides.
Thus recognizing the act to incorporate that company as a subsisting law in all its integrity, vesting her capital to a large amount in its stock, and treating it as part of a more extended scheme of internal improvement--and by the provision for a canal to be made by the Maryland Canal Company, "from some convenient point on the Potomac river, intersecting, or continuing the Chesapeake and Ohio Canal to the city of Baltimore [**267]  ," plainly indicating the understanding and intention, that the Chesapeake and Ohio Canal should be made on the Maryland side of the river: otherwise it could not be intersected or continued to Baltimore, by the Maryland canal. The act of the 8th of March, 1826, ch. 200, giving permission to the State of Pennsylvania, to connect a canal or rail way with the Chesapeake and Ohio Canal, again recognizes it, as a subsisting law. The act of the 5th February, 1827, ch. 78, to amend the act, to incorporate the Canal Company, requiring by the 4th section,  [*156]  in order to give it validity, that it should receive the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, styling them in the first section necessary parties; and declaring in the 3d section, that nothing in that act, shall be held to discharge the company from a compliance with each and every of the conditions of the original act, except so far as they are expressly altered by the provisions of that act, which only relates to a part of the canal above Cumberland, not only treats it as a law in full force, but as [**268]  a favorite measure of the State, and exacts from the company whenever it should come into existence, a rigid compliance with all its provisions; and on the 28th of February, 1827, the rail road charter was passed. Now is it to be believed, that on the 28th of February, 1827, the legislature intended by the rail road charter, to repeal any part of the canal law, which had been up to that time, so recognized and fostered by the State, and to the stock of which, considerably more than half a million of the State's capital funds had been authorized to be subscribed; or in any manner to abrogate, alter, limit, or restrict, or to authorize any interference with any of its provisions? On the contrary, is it not manifest, that the legislature had no such intention? Can it be, not only that the legislature, but the same body of individuals, who, on the 5th of February, 1827, had, in the act to amend the canal law, declared that it could not be done without the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, as necessary parties, even for the purpose of enlarging the powers of the contemplated company, and had also required [**269]  a strict and full compliance with all the provisions of the law except as therein altered, intended on the 28th of the same month, only twenty-three days afterwards and at the same session, by its own separate and independent act, proprio jure, to repeal any part of that law, or to limit or restrict any of its provisions, or authorize any obstruction to the exercise of any of the rights or powers originally intended to be conferred by it, whereby the canal  [*157]  might either be arrested altogether in its progress, or driven from the State: which, so far as Maryland is concerned, would amount to a virtual repeal of the law; and that too, in favor of an institution, the relative value of which, was not then well understood? If the question could now be put to the members of the legislature who passed the rail road charter, whether they had, or not, any such intention, it cannot be doubted what the answer would be; and that, is not an inapt test of the intention. It was certainly not the interest of the State, to do any thing to obstruct the canal in its progress, or to force it from the State; nor does it appear that any interference with it, was in the contemplation at [**270]  the time, of the projectors of the rail road. But there are other subsequent legislative acts upon the subject, showing the understanding and intention of the legislature.
On the 10th March, 1827, at the same session, and only ten days after the rail road charter was passed, the canal law, with all its provisions, was again recognized by the legislature, in the supplement to the act for the promotion of internal improvement, chap. 211, modifying, by the first section of it, the condition on which half a million of dollars had before been authorized to be subscribed to its stock, and continuing the authority to subscribe that amount; which would hardly have been done, if the legislature had understood that only ten days before, they had by the rail road charter, authorized such an interference with the location of the canal, as might have the effect to force it from the State of Maryland, or destroy it altogether. The act of the 2d January, 1828, further to amend the canal law, requiring the assent of Congress, of the legislature of Virginia, &c. was not only a further recognition and affirmance of all its provisions, except as thereby intended to be altered; but by [**271]  requiring the concurrence of Virginia, Congress, &c. whenever it was intended directly to alter the law in any particular, furnishes strong evidence, that they did not intend when passing the rail road charter, indirectly  [*158]  to alter or repeal any part of the canal law. On the 3d March, 1828, by a supplement to the act for the promotion of internal improvement, ch. 104, authority was given to the treasurer, to subscribe for five thousand shares of stock in the Baltimore and Ohio Rail Road Company; and on the same day, and immediately following, authority was given to the treasurer, by a further supplement to the same act, chap. 105, to subscribe for the same number of shares of the stock of the Canal Company, reciting the importance it was of to the State, effectually to secure the completion of the work, if ever commenced. What work? Surely the canal, as provided for by the terms of the law. Thus, two supplements passed on the same day, treating the two contemplated works, as branches of the same general system for the promotion of internal improvement, and giving a preference to neither; but extending the same aid to each, by subscribing equally,  [**272]  to the stock of both. Those various, precedent, concomitant, and subsequent acts, demonstrate the intention of the legislature to have been, not that the rail road charter should repeal the canal law, or any part of it, or that the rail road should displace the canal; but that the law to incorporate the Canal Company, and all its provisions should remain in full force. With this manifest intention of the legislature, in the absence of any express, or necessarily implied repeal of the express provisions of a prior law, and with no plain and unavoidable repugnancy between the two laws, the rail road charter ought to be so construed if it can be done, as that both may stand, and the intention of the legislature be gratified--and not so, as by the practical application of it, to defeat the intention of the legislature, if by a reasonable construction it can be avoided. A construction of the rail road charter, that would have the effect to obstruct the route of the canal along the valley of the Potomac, on the Maryland side of the river, would be a virtual repeal of the Maryland law; since if it cannot be enforced here, it can be enforced nowhere--which was clearly not intended [**273]  by the legislature, but would be the effect of construing  [*159]  the words any land, used in the rail road charter, according to their most comprehensive and extended sense, as contended for on the part of the Rail Road Company; as any land, would embrace any land in the State, whether in the valley of the Potomac or elsewhere, and under any circumstances. But if construed in a more limited sense, and so as to entitle the Rail Road Company to occupy with the road, any land not required for the practical operation of the prior law, both may stand according to the intention of the legislature, made evident by the general and uninterrupted course of legislation, in relation to them, at every session from the date of the canal charter, to the time of the institution of this suit; and especially, in their avoiding to make any amendment of the canal charter, without the assent of Congress, the legislature of Virginia, &c. (and much less therefore, would they have intentionally repealed it,) and in authorizing subscriptions for an equal amount of stock in both, and constituting them independent branches of a great system of internal improvement. And that [**274]  construction should be given to the rail road charter, the construction of the road in the valley of the Potomac, not appearing to be necessary, to the full execution of the charter; and the road not being required by the charter to be made in that region--whereas the canal is not only required to be made in the valley of the Potomac, but according to the proof in the cause, can be made nowhere else, and if not made on the Maryland side of the valley, cannot be made at all under the Maryland law, viewed as a mere separate and independent charter of this State, without reference to the law of Virginia: which as such, could not authorize the construction of it, any where but in Maryland. And as the validity of the Virginia law, is made by its terms to depend upon the concurrence of Maryland, if the canal charter, as a law of Maryland, was repealed by the rail road charter, and the assent of the State to the Virginia law thus withdrawn, the whole charter thereby became inoperative and void. But by construing the words of the rail road charter,  [*160]  in the sense suggested, full effect will be given to both charters, and the [**275]  faith of the State preserved unimpaired, which it was never the intention of the legislature to violate, and if no other construction could be put upon the words of the rail road charter, than that contended for on the part of that company, the use of those terms, would clearly have been a mistake on the part of the legislature.
It would be doing injustice to the legislature, to suppose that they intended to start those two great companies on a race, for the ground best suited to their respective purposes, with a stake of half a million of dollars on each, by which the State might lose a large amount; in the event of one, being obstructed in its progress by the other, with no prospect of gain, instead of sending them forth, each to pursue its own independent course, without any interference or conflict with the other. It has been urged in argument, that the proviso in the supplement to the act for the promotion of internal improvement, to the subscription authorized to be made to the stock of the Rail Road Company, that the company "shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, [**276]  and the town of Cumberland, and that it shall go into Frederick, Washington, and Alleghany counties," shows the intention of the legislature to to have been, to authorize the Rail Road Company to make the road in the valley of the Potomac, notwithstanding the provisions of the canal charter, if they could first appropriate ground in that region for the route of the road. But it will be remarked, that, that proviso is no part of the charter of the Rail Road Company, and was only a condition, upon which the stock of that company was authorized to be subscribed for, on behalf of the State, and whatever might have been the object of the legislature, in annexing that condition, it cannot have the effect to show, what was the original intention of the legislature at the time of passing the rail road charter, and to overthrow all the legislative evidence, that is exhibited, of a different intention. Nor ought a  [*161]  mere condition, on which the legislature thought fit to subscribe for stock of the Rail Road Company, with nothing more, to have the effect to repeal the canal charter. And the requiring as a part of the condition, that the road should "go into [**277]  Frederick, Washington, and Alleghany counties," was not to require that it should pursue the course of the river: since it might go into all those counties, without pursuing the course of the river, even after going to it; and with more advantage to those counties, (which it would seem to have been the intention of the legislature to benefit by the condition,) as a road passing through their interior, would necessarily diffuse more general benefit and convenience, than one, merely running along their borders. It is possible, that the legislature did entertain doubts whether the canal would ever be commenced; no company having then been formed; and that under the influence of such doubts, they annexed to the subscription to the stock of the Rail Road Company, the condition that the road should go to the river; not for the benefit of the company, but in order to diffuse as widely as might be, the advantages to the community of that institution. But with no intention to prevent either the commencement, or completion of the canal, by requiring the road to be constructed along the borders of the river, to the exclusion of the canal. And that is not the meaning of the condition,  [**278]  as is sufficiently shown, by the recital in the immediately following supplement to the same act, of the importance to the State, of "effectually securing the completion of the canal, if ever commenced;" which conclusively evinces the determination of the legislature, that the canal, if ever commenced, should be completed according to the provisions of the charter, without hinderance by any other institution. Moreover, exclusive of subscriptions, payable in the stock and debts of the Potomac Company, there had been on the 14th November, 1827, more than a million and a half of dollars subscribed to the stock of the Canal Company, by individuals and the district corporations, and the amount required  [*162]  by the charter, paid on each share at the time of subscription, whereby extensive interests and incipient titles had been acquired, and the public faith pledged, that each subscriber should hold and enjoy his stock upon the terms and conditions expressed in the charter, and on which he had subscribed and paid his money,--after which, it was too late, consistently with good faith, to alter the terms and conditions of subscription; or in any manner to lessen the value [**279]  of the stock, or vary the condition or interest of the subscribers, without their knowledge or consent. Under such circumstances, with the subscription books still open, and an invitation held out to all the world, under the authority of the State, and by the charter, to come in and subscribe for stock according to its provisions as they then stood; and there being also, then pending in Congress, a bill for a subscription to the amount of a million of dollars to the canal stock, it is not, and cannot be believed, that the legislature intended on the 3d March, 1828, by the proviso annexed to the subscription to the rail road stock, to authorize and require that company, so to locate, and construct the road to the Potomac river, and along the valley as either to arrest altogether the progress of the canal, or force it out of this State into Virginia; or in any way to limit and restrict the provisions of the canal charter; or do more, than to provide as far as it could be done, for the event of the failure of the canal scheme, which might have been apprehended; but which, the same legislature, immediately afterwards on the same day, and by a further supplement to the [**280]  same act, which together, are to be taken and construed as one law, manifested a determination to prevent, by authorizing a subscription of half a million of dollars to the canal stock, on such conditions, (in their own language,) "as would effectually secure the completion of the work, if ever commenced," which is wholly at war with any intention to repeal the canal charter, or to abrogate or restrict any of its provisions; or to require or authorize the Rail Road Company to obstruct or displace the canal, by being the first  [*163]  to acquire title, by purchase or condemnation, &c. to any land in the valley of the Potomac, deemed necessary for its route and construction.
The acts of the legislature of Maryland, passed on the 22d Feb. 1831, and of Congress, on the 2d March of the same year, have been pressed in the argument on the part of the Rail Road Company, but do not seem to have any bearing upon the question involved. The former being "an act to promote internal improvement, by the construction of a rail road from Baltimore to the city of Washington," and only authorizing the construction by the Baltimore and Ohio  [**281]   Rail Road Company, of a rail road from some convenient point on that part of the Baltimore and Ohio Rail Road, which had then been constructed, and was in use, not exceeding eight miles from the city of Baltimore, to the line of the State, adjoining the District of Columbia, in a direction towards the city of Washington. With no relation whatever, to a location of the Baltimore and Ohio Rail Road in the valley of the Potomac, which is in a different direction, and far beyond the point on that road, from which the proposed road from Baltimore to the city of Washington, is authorized to be constructed, and not in the remotest manner tending to sanction such a location of the Baltimore and Ohio Rail Road, or to show the original intention of the legislature to have been, to repeal any part of the canal charter, or to authorize the Rail Road Company so to locate that road, as to obstruct, or in any manner interfere with the passage of the canal, along the valley of the Potomac, upon the Maryland side of the river. The making the contemplated road from Baltimore to the city of Washington, not being dependent upon, and having nothing [**282]  to do with the question, whether the Rail Road Company has or not, a right to construct the Baltimore and Ohio Rail Road in the valley of the Potomac, but may be made whether that right exists or not, and without any reference to it; and even, although the rail road never should be completed to the valley of the Potomac. Just as well may  [*164]  any law, which may hereafter be passed, for making branches from any part of the rail road that is completed, be said to show the intention of the legislature to have been, to confer upon the Rail Road Company by its charter, the right to exclude the canal from the valley of the Potomac, by first occupying the ground, as can the act of this State, of the 22d February, 1831. And the act of Congress, of the 2d March, 1831, does no more than merely to authorize an extension "into and within" the District of Columbia, of the road proposed to be made by that act; without any reference whatever, to the chartered rights of either the Rail Road or Canal Company, in relation to the occupation of the valley of the Potomac, or to any sanction, express or implied, of the claim set up by the Rail Road Company [**283]  .
There were several minor questions discussed at the bar, which in the view that has been taken of the subject, it is not deemed necessary to examine. It may however, here be proper to remark, that had our minds been in a state of equipoise, the decree of the Chancellor, whose argument we regret not having seen, would have been affirmed; there being no appeal from a decree of reversal. But not entertaining that degree of doubt, which would alone justify a decree of affirmance, we should be unworthy of the trust reposed in us, if we were to shrink from the faithful discharge of our duty, only to commit the decision of the cause to another tribunal. These observations are elicited, by our having been reminded in the course of the argument, that in the event of a decision against the claim of the Rail Road Company, there could be no appeal; which we regret, but cannot honestly avoid the consequence.
The decree of the Chancellor is reversed, and the bill dismissed with costs.
EARLE, and STEPHEN, J. concurred.  

DISSENTBY:
ARCHER; DORSEY 

DISSENT:

ARCHER, J., dissented, and delivered the following opinion:
 [*165]  A collision having arisen between the Rail Road and Canal Companies [**284]  , in the designation of a route for their improvements, a removal of the difficulty is sought in the judgment of this court, in the exercise of its appellate, equitable jurisdiction.
The solution of these difficulties will be found in the determination of the legal priority, which one company may have over the other, and in the examination of their respective equities.
The canal claims priority over its rival company upon the ground, first, of her derivative rights arising by assignment from the Potomac Company, and secondly, from her original rights springing from the law which created her. These pretensions shall be severally examined. In their investigation, the comparative rights of the Rail Road Company will be necessarily reviewed.
1st. The derivative rights of the Canal Company will be first examined.
Without any particular reference to the laws in relation to the canal, it may be generally stated, that these gave to the Canal Company, the right of receiving from the Potomac Company, the surrender of its charter, and an assignment of all its rights and privileges, and the right to hold, use, possess, and occupy the same, to the same extent [**285]  as the Potomac Company at the time of the surrender held them. The Potomac Company did accordingly, on the 15th August, 1828, execute its deed of surrender of the charter and rights above referred to.
This charter of the Potomac Company was granted in the year 1784, long anterior to the Rail Road Company, and if it was possessed of rights and privileges, which were interfered with by the rail road charter, its assignee, the Canal Company, must be protected in their enjoyment, as it would not be competent for the legislature, to disturb by her subsequent action, rights vested in pursuance of her anterior grant.
 [*166]  An attentive examination of the charter of the Potomac Company then becomes necessary, for the purpose of ascertaining her powers, rights and privileges. If this company had originally no power of making a continuous canal, or in consequence of lapse of time, had lost the power of acquiring land on the river, to make her improvements, no rights which she possessed, or property which she enjoyed, are at all interfered with; the Rail Road Company not seeking to disturb its works heretofore erected, or to interfere with the navigation of [**286]  the river, by its locations, but desiring only to pursue its unoccupied margin.
If it were legitimate to look beyond the laws creating this corporation, to discover the designs of the legislative body, in its creation, they would be observed in a light too glaring to escape the dimmest vision. Previous to December, 22, 1784, commissioners had been appointed by the States of Maryland and Virginia, to confer together on the subject of opening and improving the navigation of the Potomac river, and, on that day, they proceeded to consider the subject referred to them, and came to a variety of resolutions recommendatory to their respective principals. Some of these will be adverted to.
"That it is the opinion of this conference, that the removing the obstructions in the river Potomac, and the making the same capable of navigation, from tide water, as far up the north branch as practicable, will increase the commerce of Virginia and Maryland."
"That it is the opinion of the conference, that the proposal to establish a company for opening the river Potomac, merits the approbation of the two States."
"That it is a general opinion that the navigation  [**287]   on the Potomac may be extended to the mouth of Stony Run."
"That the States appoint skilful persons to view, and accurately examine and survey Potomac, from Fort Cumberland to the mouth of Stony river, and the river Cheat, from about the Dunker bottom to the present navigable part thereof, and if they judge the navigation can be extended  [*167]  to a convenient distance above Fort Cumberland, that they may from thence survey, lay off, and mark a road to Cheat river, or continue the same to the navigation, as they may think will most effectually establish the communication, between the said eastern and western waters."
The object and intent of this conference was manifestly not to Canal the river, but to render its bed navigable, for it speaks constantly of making the river navigable--how? by canalling? no, but by removing obstructions in it. The great object was, to produce a communication with the western country, not by a canal, but by the conjoint means of the river itself, whose navigation was to be made passable by clearing its obstructions, and by roads across the ridges of the Alleghanies, to certain designated [**288]  navigable waters of the west. Out of the results of this joint commission, grew the charters granted by the respective States to the Potomac Company, passed immediately after the labors of the commission had closed, and it is remarkable how closely the States pursued the recommendation of their commissioners. The great agent which each created, for effecting this object, so strongly recommended, of improving the navigation of the river, was the Potomac Company.
But if we cannot look at the anterior proceedings of the States, to fix their designs in the creation of the charter of the Potomac Company, even where the charter is not inconsistent with the intent thus indicated, and it may be well assumed, that the charter is the only legitimate index of the legislative intent--then, it is just as clear, that the design of the charter, is identical with the designs as expressed previously by the commissioners, with this exception, that the States foresaw, that there existed impracticalities in the removal of obstructions, in particular places or passes of the river, arising from falls, which might render occasional canalling necessary.
Let us examine, with some minuteness,  [**289]  the provisions of this grant, that we may be enabled, the more clearly to discern its character.
 [*168]  Both the charters of Maryland and Virginia, as regards this question are identical.
The title explains the whole scope and object of the law. What is it? "An act for opening and extending the navigation of the Potomac river."
Now let us refer to the recital--"Whereas the extension of the navigation of Potomac river from tide water to the highest point practicable on the north branch, will be of great public utility, and many persons are willing to subscribe large sums of money to effect so laudable and beneficial a work; and it is just and proper that they, their heirs and assigns, should be empowered to receive reasonable tolls, forever, in satisfaction for the money advanced by them in carrying the work into execution, and the risk they run."
Thus we perceive, that the preamble, like the title, looks constantly to the river, whose navigation is to be improved--and the opening of its navigation, as the work which is to be accomplished. But the preamble proceeds: "And whereas it may be necessary to cut canals and erect locks" ( [**290]  not a continuous canal, but canals) and other works on both sides of the river, and the States, impressed with the importance of the object, are desirous of encouraging so useful an undertaking: Therefore, &c." Now, what undertaking is here referred to? Is it not that which had been previously referred to--the opening of the navigation of the river? and can the word canals be tortured to mean one continual canal? On the contrary, does it not obviously pre-suppose that the river, in some places, may be innavigable even by art, and that hence, in such places there may exist a necessity, in order to preserve a continuity of navigation, that such barriers should be avoided by canals, otherwise the great work of opening and improving the navigation of the river might have been defeated.
The 9th section more clearly specifies this power of cutting canals, and in express terms defines and declares the object of such a grant. The following is the language,  [*169]  "That for and in consideration of the expenses the proprietors will be at, not only, in cutting the said canals for opening the different falls of the said river, and in improving and extending [**291]  the navigation thereof, the canals and profits are vested in the proprietors in fee, it is deemed real estate exempt from taxation, and they declared to be entitled to tolls." Thus the canals authorized to be cut, are declared "to be canals round the falls of the river," and the legislature here distinctly recognize two objects within the grant. 1. The cutting of canals round the falls; and 2dly, the improving and extending the navigation of the river itself. For this section, as we have seen, says the company will be at expense in cutting canals round the falls, and in improving and extending the navigation of that river: thus all idea of one continuous canal is not only impliedly repudiated, but is without the express terms of the grant--for a river navigation is looked to where not impeded by falls, and where falls interfere, canals.
The 10th, 17th, and 19th sections, are in furtherance of the same construction, and will justify no other.
The 10th section enacts, "that the said river, and the works to be erected thereon, in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation [**292]  of all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act." Now, if it was designed, that the Potomac Company should make one continuous canal, and abandon the improvement of the bed of the river, it is inconceivable that the company should have been permitted to retain the right of collecting tolls, for the transportation of produce down the channel of the river. Because, instead of improving its navigation, so as justly to render those who passed down it liable to a toll, it had abandoned the river, by making a continuous canal, and had, by abstracting thereby so large a quantity of water from its current, in all probability lessened the value of the stream itself to the public, as a navigable river. Instead of a continuous canal  [*170]  having been in contemplation, this section clearly shows, that the improvement of the river and canals as before, were contemplated, because tolls are imposed on produce passing down the river and the works thereon, and the river and the works thereon are declared to be a public highway.
The 17th section is also perfectly explicit, where it declares, that "the Potomac Company shall make [**293]  the river well capable of being navigated in dry seasons, by vessels drawing one foot water." Now a continuous canal would have a tendency, by lessening the quantity of water in the river, to defeat this express requisition--that of making the river navigable in dry seasons. And the 19th, pursues the same object, and is illustrative of the same design. "Be it enacted, that all the commodities which may be transported on the canals and river, may be landed and sold, subject only to such impositions as the like goods are liable to, in the state where landed." Here the transportation of goods down the river is spoken of, and also through the canals. What canals? Why the canals spoken of in the 9th section; "the canals round the falls."
Thus the title, preamble, the whole scope and object of the grant, all the sections adverted to, refer distinctly and explicitly to the improvement of the bed of the river, unless where that is rendered impracticable by falls, and then, they were to canal. Thus their powers are clearly limited and defined, and they would have possessed no power to make a continuous canal, and consequently were destitute of all power to condemn land [**294]  for any such purpose.
All the sections of the charter having any reference to this branch of the subject, have been adverted to, except the fourth section, and having thus ascertained the general scope and object of the legislature, and what it is, that this company was incorporated for, I shall advert to that section. "The company shall have power and authority to agree with any person, or persons, to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending  [*171]  the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same from place to place, and from time to time, and upon such terms, and in such manner as they shall think fit." It is upon this section, that the Canal Company insists, that powers were imparted to the Potomac Company, to make a continuous canal. Now, whatever power this provision might, if it stood alone, be supposed to grant, it must be admitted, that its phraseology is capable of being controlled by the scope and object of the law, to be deduced from its provisions generally.  [**295]  Thus, when it is said, they may perform these works from time to time, this would seem to give them an unlimited range. But the words from time to time must be controlled, and governed, by the limitation assigned in their charter, for the completion of their work. Again, when it is said, these canals, locks, and other works, are to be done in such manner as the company shall think fit; this generality of expression must be restricted to canals and locks, of such size and dimensions, as might be prescribed in other sections of the law; and so when the general power is given to make such canals as they may deem necessary, it means such canals as are spoken of in the 9th section, "canals for opening the falls of the river." It is not my intention to assert, that they were confined in their power to make canals, to the Great and Little Falls, but had a general power to make a canal around any falls of the river, which impeded its navigation. But in the exercise of their judgment, of what canals were necessary, they were restricted to the making of them only where falls existed; and it would have been a perversion and evasion of the law, to have made either a continuous [**296]  canal, or a canal where no falls existed, or no impediment existed in the navigation of the river by its natural course. It is no answer to this, to say, that a continuous canal would better have subserved the public interests, and better have gratified the wishes of the legislature, by giving certainly and safety to the transportation of  [*172]  produce from the north branch to tide water; for the legislature have not chosen to say so, they desire alternate river and canal navigation; they desire the river to be opened and improved, and the difficulties interposed by falls, surmounted by canals. And having intelligibly impressed these dispositions on their grant, a court of justice should give it efficacy as they find it; and has no power to do any thing else. They must expound the grant, and not frame one, because they might perchance think, that a grant thus judicially framed, would better subserve the public welfare.
The same construction which is above given to the Potomac charter, has from its very organization, been given to it by the parties interested, by the States of Virginia, Maryland, and the Potomac Company herself. At November session, 1797, that [**297]  company stated, that they had removed most of the obstructions in the Potomac river, from Savage river to tide water, that they had erected locks at the Little Falls, and made a canal at the Great Falls, but had not completed the locks thereat; whereupon the legislature authorized that company to receive tolls, conceiving that their great scheme of improvement, as contemplated by the charter, had been so far advanced, as to justify the grant of liberty to take tolls. And the legislatures of the two States, go on from time to time, Maryland, for the period of twenty-nine years, in extending time to the Potomac Company to complete the navigation of the Potomac river; thereby recognizing the mode of improvement pursued, as the proper mode, and the construction put upon the law as the true one; and Virginia has even gone farther, and has extended the time for thirty-six years, from the passage of the law. And as if to give greater efficacy to what has been done, and to confirm, if it wanted confirmation, that the construction was strictly according to the charter, Maryland, by her law of 1802, ch. 84, declared "that the object contemplated by the act  [**298]   of Assembly, for establishing a company for opening and extending the navigation of the  [*173]  river Potomac, had been accomplished." Again, in the act of 1786, extending the time to the company, for completing the navigation, the legislature declare that their reason for the enactment of the law was, "that the two last summers had been so unfavorable to the work of making and improving the navigation above the Great Falls, in the Potomac river." We may easily imagine, how much the occurrence of freshets in the river, would interfere with the works of a company which had to make the river navigable in dry seasons, by clearing out obstructions; but if their business and duty had been to make a continuous canal, there must have been the occurrence of two very unusual and extraordinary summers, to have been pronounced by legislature so very unfavorable to the digging and construction of a canal. The act of 1790, ch. 35, which authorized the company to apply the tolls, received for the improvement of the branches of the river above Seneca, contains this provision, "Provided that no such application shall be made until the main river, from tide water, is cleared  [**299]   to Fort Cumberland." Here the main river is spoken of. It is to be made navigable not by a continuous canal, but by being itself cleared. And by an act passed in the year 1814, being a supplement to the charter, power was given to the Potomac Company to acquire lands, contiguous to the canals and locks on the river, by purchase, compromise, and exchange, but with the proviso, "that the said company shall not, at any time, hold more than one thousand acres of land in this State." Notwithstanding the general power to purchase land contiguous to their canals, all the land they are to hold, both that which is occupied by their canals, and such as they should purchase contiguous to them, was not to exceed one thousand acres. With this express limitation, who will or can say, that it ever was intended to grant any power, to make a continuous canal from tide water to the highest practicable point on the north branch, a distance of from one hundred and twenty to one hundred and fifty miles, and considerably more,  [*174]  following the sinuosities of the river. A moment's calculation will show, that instead of being able to purchase any land contiguous to their canals [**300]  and locks, one thousand acres, the extent of their power to hold, would have been exhausted, before they could have reached half the distance from tide water westwardly, with a continuous canal.
Thus, whether we look to the charter itself, or to the practice, acts, and understandings of the parties under it, its exposition is freed from all doubt; and clearly, there was at no time power to make a continuous canal, and it was never so thought, or understood, by the parties or either of them.
The right of the Potomac Company to condemn lands, has long since ceased, not by any forfeiture of its charter, but by limitation of time. In speaking of this limitation, it is only meant to refer to the right of condemnation, along the disputed and contested territory. It may still possess the right to condemn land, from the town of Cumberland to the highest place to which navigation is practicable, on the north branch of the river, unless the company accepted some of the amendments of the charter; for between those two designated points, there seems to have been no limitation of time in the original law, with regard to its powers in this respect. But from the town of Cumberland to [**301]  tide water, Maryland had bound her to complete her works by the 1st January, 1813, from Great Falls to the town of Cumberland, under the following penalty, "that it should not be entitled to any benefit, privilege, or advantage under her charter, and from the Great Falls to tide water, under the penalty of a forfeiture of all her rights to tolls, and all her preferences to a navigation of the river." And it was under the same obligations, and liable to the same penalties under the Virginia charter, except that, by that, and its supplements, it had the time extended until the 1st January, 1820. Now it so happens, that the very portion of the river, and its contiguous country, now in litigation, from the town of Cumberland to the Great Falls, is the subject of this limitation. Whether the right to condemnation still continued  [*175]  in the company, higher up than Fort Cumberland, we are consequently not concerned to inquire.
The continuation of the company, notwithstanding the limitation of time, for the exercise of its ordinary franchises, even if it had not completed its object, there never having been any process in a legal tribunal for vacating [**302]  its charter, is not the question presented for consideration; but the question is this, could that company, after the time limited, exercise its extraordinary power of condemning land, whether its works were or not completed.
The power of condemning land, and appropriating it for the use of the company, was a high attribute of sovereignty, was in derogation of the rights of the citizens, and ought to be construed rigidly, and made subject, in the strictest degree, to all the limitations imposed upon it by the sovereign power; and denying to it this power, when the question comes collaterally, or incidentally into litigation, in a court of justice, in no manner affects the common and ordinary franchises of the corporation, but leaves them all subsisting, to be exercised in their accustomed mode, until there shall be a regular judicial forfeiture, while at the same time, every citizen has it in his power to guard himself against the illegal seizure and appropriation of his land, and is not called upon to solicit the intervention of the sovereign power to establish the fact of a forfeiture of franchises, before he could hope for a vindication of his rights.
We accordingly see the [**303]  parties to this grant, constantly acting upon this principle. The Potomac Company never seeking the passage of laws denying the right to have their charter forfeited, but asking time to extend their works in the mode pointed out by the laws, and neither the company, nor the legislature, ever looking back to periods of time which had elapsed, not covered by any of the laws extending the time, but always forward to the exercise of those powers conferred by their charter, which would be necessary to enable them to complete the work they had undertaken.
 [*176]  If the company failed to complete her works from the Great Falls to Cumberland, in the language of the 17th section, she was no longer entitled to her privileges, one of which was, the purchase and condemnation of land within those limits; and a title, either by the one mode or the other, would have been just as unavailable, as it would have been, had the charter declared, that the title acquired at such a time, and under such circumstances, should be void, and the company might at all times have been restrained by a court of equitable jurisdiction, from the acquisition of title by such means, after the [**304]  time limited by the law, had elapsed.
And if she had on the contrary, completed all the objects in the contemplation of the legislature by that charter, within those designated points, it cannot be contested, with success, that they nevertheless still retained the power of condemning lands.
That these works had been completed in view of all parties, is not to be disputed against a clear, legislative, declaration to that effect. The original charter only authorized the exaction of tolls, upon their completing the extension of the navigation from Cumberland to the Great Falls, and from those falls to tide water. In 1802, ch. 84, the legislature of Maryland passed a law with the following preamble:--"whereas the object contemplated by the act of assembly, for establishing a company for opening and extending the navigation of the river Potomac, has been accomplished,"--and then enacted, that she should take the tolls as originally prescribed, thereby recognizing in the fullest and clearest manner, the entire completion of the work, at least within the designated points. To fulfil its engagements then to the public, the Potomac Company had nothing further to do,  [**305]  for she had the declaration of the highest functionaries of the State, that she had performed them. The act of 1809, further extending the time, furnishes no argument against this view, because, although the company had completed her work, she may have desired the re-establishment of her former powers, which are by this law  [*177]  admitted to have expired, for the purpose of rendering more perfect her works, for her own profit and advantage.
If then, she had completed all the works assigned her by the charter to perform, for what purpose should the law repose in her, for an indefinite period, the power to condemn lands, or why should she retain those powers for a moment beyond the period assigned?
For what purpose was the power to condemn, granted? The 11th section informs us--"And whereas it is necessary for the making the said canals, locks, and other works, that a provision should be made for condemning a quantity of land for the purpose"--therefore the power is given.
Now, if all the canals, locks, and other works, are made and completed, and we have the legislative declaration that this was done, where the necessity for the existence of the power, and did it not, by the [**306]  terms of the grant expire with the accomplishment of that, which it was intended to effect? Argument cannot make this proposition plainer, or carry greater conviction to the mind of its truth, than its mere statement.
But it is said, the company had a right to adopt one mode of improvement, then abandon it, and commence, and prosecute another. That she might make canals where none were made before--let this be admitted. Still she must execute all these powers within the limited time prescribed by the charter, otherwise, she is transcending the powers granted.
It therefore appears, that the Potomac Company, having no powers at the date of her assignment, to make a continuous canal, or to condemn land, could confer no rights or privileges to the Canal Company, its assignee, which could give it a priority over the rail road, or any right against that company, which only takes the unoccupied margin of the river.
The Canal Company, possessing no derivative rights to priority over the Rail Road Company, as we have seen,  [*178]  plants herself upon her own original charter, and claims, that it gives her a precedence.
This brings us to the consideration of the original  [**307]   rights of the company.
This claim, it is said, is fully supported, whether the Canal Company be considered as obtaining her grant from the State of Maryland alone, or from the United States, Virginia, and Maryland.
These claims will be separately examined.
Let us first suppose the grant to be from Maryland alone, unaffected by any compact with other States.
At what time did the law of Maryland go into operation? At what time was the Canal Company incorporated? To what period had it relation?
After having severally examined these questions, for the purpose of fixing a day, on which the rights of the Canal Company came into being, it is proposed, to examine the course of Maryland legislation, anterior to the date which shall be thus ascertained, and to determine its character and validity, as affecting the rights and interests of the parties.
1. At what time did the law of Maryland go into operation?
The State of Virginia, in her first law, by its 21st section, had reserved to the States, the right within their respective territories, of tapping the canal by any canal they might think proper to construct; and had made her whole act [**308]  to depend upon the following proviso: "Provided that before this act shall take effect, the Congress of the United States, shall authorize the States of Maryland and Virginia, or either of them, to take and continue a canal from any point of the above named canal, or the termination thereof, through the territory of the District of Columbia, or any part thereof, to the territory of the said States, or either of them, in any direction they may deem proper, upon the same terms and conditions, and with all the rights, privileges, and powers of every kind whatsoever, that the company have, to make the Chesapeake and Ohio Canal," with  [*179]  this additional proviso: "that in taking or extending such lateral canals through the District of Columbia, no impediment or injury should be done to the navigation of the Chesapeake and Ohio Canal;" and the State of Maryland, in conforming and assenting to the act of the State of Virginia, added this express condition to her law, "that the act of Congress, contemplated by the 21st section of the Virginia act, shall provide some safe and practicable mode, whereby, such lateral canals may be [**309]  secured to the State of Maryland, and whereby, also, it may be determined whether such lateral canals will injure the said Chesapeake and Ohio Canal, within the meaning and intention of the 21st section of the Virginia act." On the 3d of March, 1828, Congress assented to the act of Virginia, and enacted as follows: "should the State of Maryland or Virginia desire, at any time, to avail itself of the right secured to it by the 21st section of the act aforesaid, to take and continue a canal from any point of the Chesapeake and Ohio Canal, to any other point within the territory of the District of Columbia, or through the same, on application to the President of the United States by the executive of the State, the President is authorized, and empowered, to depute three skilful commissioners of the United States' corps of engineers, to survey and examine so much of the route of such canal as may affect, in any manner, the navigation of the Chesapeake and Ohio Canal. The said commissioners shall ascertain, as far as practicable, whether the canal proposed to be constructed, will injure or impede the navigation of the Chesapeake and Ohio  [**310]   Canal, and report to the President, the facts and reasons upon which they may ground their judgment thereupon, which report shall be submitted to Congress at the session next ensuing the date thereof, for their decision thereon; and if Congress shall be of opinion, that the said Canal may be cut in the manner proposed, as aforesaid, without impeding or injuring the navigation of the Chesapeake and Ohio Canal, the same shall be conclusive thereon."
 [*180]  It is perfectly apparent, that the condition above required by Maryland, was not fulfilled by this act of Congress, for, although, she had generally, given her assent to the law of Virginia, she had coupled that assent with a provision, which, at all times, left it in the power of either branch of Congress, or the executive, to prevent either Maryland, or Virginia, from conducting a canal through the District of Columbia; for whether it was at any time to be made, was to depend upon the fact, whether in the judgment of Congress the contemplated canal would injure or impede the navigation of the main canal; which, in other words, was an entire reservation to herself, of [**311]  granting, or refusing, at any future time, the liberty demanded by the States of Maryland and Virginia, which, instead of being a compliance with the condition demanded by Maryland, that the right to make this lateral canal through the District, should be secured to her, was a direct negation of it. For, how could that right be said, in any manner, to be secured, which was to depend upon the judgment of one of the parties. Maryland, certainly never meant to submit her right, to tap the canal in the District, to either branch of the government, but expressly desired that Congress should secure it. How secure it? Why place it beyond the power of any one branch of the United States' government to impede, obstruct, or prevent her right? It is apparent, that Maryland did not consider the act of March, 1825, passed by Congress, as a fulfilment of her prescribed condition, for upwards of a year after the act of Congress was passed, that State incorporated a company by the name of the Maryland Canal Company, with powers to make a canal through the District, from the Chesapeake and Ohio Canal to Baltimore, and by the same [**312]  law, authorized the subscription of 5,000 shares in the Chesapeake and Ohio Canal Company, but she made that subscription dependent upon the following condition: "that Congress should enact a law expressly securing to the State of Maryland, and to any company incorporated  [*181]  by her, the right to take and continue a canal from any point of the Chesapeake and Ohio Canal, through the territory of Columbia, or any other part thereof;" thereby declaring in express terms, that Congress had never theretofore complied with the condition, which she had demanded, of securing to her, the fulfillment of the condition upon which her assent to the act of Virginia had been given; (act of 1826, ch. 211, sec. 21, an act for internal improvement) and insisting on an express recognition of it before her subscription to the Canal Company should be valid. It is true, that at the same session, December, 1826, at which the above demand was made by Maryland, she passed a supplement to the canal charter, which in its first section, recited that the act of Virginia, had been assented to by Maryland, and by Congress. And it is attempted [**313]  to be shown from this, that Maryland had recognized the fulfillment, by Congress, of all the requisitions of her charter. But it is impossible to give such a construction to the words "has been assented to by Congress," when we look at the character of the condition which Maryland prescribed; at the character of its attempted fulfillment by Congress; and the explicit declaration made by Maryland at the same session, that she demanded an express fulfilment of her condition. The words above adverted to, have no reference, by any just construction, to the fulfilment of the condition, but only refer to the general assent given by Congress to the act of Virginia, without in any manner alluding to the compliance of Congress, with the conditions which she had prescribed. And in confirmation of this idea, we find that Congress, looking to the demand made by Maryland, on the 23d day of May, 1828, and not until then, passed a law expressly securing to Maryland, the right which she had demanded, and complying with the condition which Maryland had imposed on the validity of her charter. Neither the condition prescribed by Maryland, nor [**314]  Virginia, had been complied with until that period, for both States required more than the consent of Congress to their acts; they required action on the part of that  [*182]  body; Virginia demanded that she should be authorized by that body to make a canal through the District, possessing all the powers and privileges of the Chesapeake and Ohio Canal Company; and Maryland not only demanded this, but insisted, as an express condition of her law, that Congress should secure the right. Yet instead of doing this, although she had in general terms assented to the law of Virginia, her consent became qualified, and remained qualified until 24th May, 1828, with such stipulations in regard to the exercise of the right as to confer no authority, except one, dependent upon the judgment and opinion of a future Congress, and absolutely secured nothing to Maryland.
The general assent given by the act of Congress, of 3d March, 1825, by no means gratified the conditions of Virginia. She desired a law to be passed by Congress, to enable her to make a lateral canal, from the main canal, through the District, to her limits. Was this done? Let [**315]  the first section of the law of Congress answer this question. "Be it enacted, that the act of Virginia entitled, an act incorporating the Chesapeake and Ohio Canal Company, be, and the same is hereby ratified, and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed, by the authority of the said act of incorporation, to carry into effect the provisions hereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no farther." Now, this assent is expressly limited to the right of the Chesapeake and Ohio Canal Company, to construct a canal. Not a word is said or intimated as to the right of Virginia, to make a lateral canal through the District. Indeed this section was not intended by Congress, at all, to have any reference to the proposed lateral canal, but the second section exclusively referred to it, and we have seen, that it was no law authorizing a lateral canal, but a law pointing out a mode by which some future Congress, possibly might see fit to authorize it.
 [*183]  The conditions then prescribed by the States of Virginia and Maryland, [**316]  upon which they had chosen to make their legislation dependent, were never complied with on the part of the United States, until the 23d May, 1828, and consequently, on that day, her law had validity for the first time.
2. At what time was the Canal Company incorporated?
The 3d section of the charter declares, "that whenever one-fourth, or a greater part of the capital stock of 6,000,000 of dollars, shall have been subscribed, then the subscribers, their heirs and assigns, shall be, and are hereby incorporated into a company, by the name of the Chesapeake and Ohio Canal Company."
It becomes then important, for the purpose of fixing the date of the incorporation, to ascertain at what period $ 1,500,000 of the capital stock was subscribed, for it could not, by the express terms of the grant, until that time, have any life and being, for any purpose whatever. On the 14th November, 1827, on the supposition, that the conditions prescribed by Virginia and Maryland had been complied with by the United States, and that the law of Maryland, had consequently gone into operation, books were opened by commissioners, and the sum of $ 416,900, was only obtained of [**317]  valid subscriptions; and upon the 24th day of May, 1828, only $ 562,700, were subscribed by persons, or corporate bodies, having any authority whatever, to subscribe. It is true, that in addition to those sums, the corporations of Washington, Alexandria, and Georgetown, had subscribed $ 1,500,000, but those subscriptions were entirely invalid, not having been authorized by either of their charters, and within the meaning of the act, which certainly looks solely to an effective subscription, were, until some curative law was passed, absolute nullities. Such a law was passed by Congress, but not until the 24th day of May, 1828, at which period of time, and not before, the amount of subscribed stock, necessary within the charter, to bring the company into being, was obtained. The 24th day of May, 1828, constitutes  [*184]  the day, then, of the actual incorporation. If it be said, that the act of Congress, of that day, had retroactive operation, and gave validity to the subscriptions, from the 14th November, 1827, the day on which they were made, so as to give a being to the corporation on that day, the answer is obvious, and is of a two-fold character. 1st. There [**318]  could be no subscriptions which could give life to a corporation, until the law existed creating the corporation, and we have just seen, that no law existed on the 14th November, 1827, nor at any period before the 23d May, 1828, for it was on that day, that the Maryland and Virginia acts went into operation. Congress then, for the first time, having complied with the conditions, upon which those States had thought proper to make their laws dependent. And 2dly. If the law of Maryland, on the 14th November, 1827, had been an effective law, the act of Congress validating the subscriptions, could have no other retroactive operation, than as against the municipal corporations, which it would bind from that day; but it could not operate retroactively, against the rights of third persons, or bodies corporate, which had come into existence, and been vested, in the intermediate time, between the date of the subscription, and the date of its validation, which we shall hereafter see, would be the effect of such retrospective action, upon the interests and vested rights of the Rail Road Company, and its effect upon the legislative power of Maryland, would of itself,  [**319]  conclusively show that such a doctrine could not exist. The charter of Maryland, may be considered as a mere offer to incorporate, and until the offer is accepted, according to her intent in making the offer, she may recall or repeal her offer. Thus, she offers to incorporate, if a sufficient prescribed number of subscribers accept. No valid subscribers within the intent of the law do accept; she then retains the power to recall the offered grant. Would it be within the power of Congress, by validating those invalid subscriptions, to render null and void all intermediate acts of Maryland? By what provision of her law, has she  [*185]  thus stripped herself of power? It is to be found no where, and to give retroactive operation to the law of Congress, would clearly defeat the intent of Maryland, in the enactment of her law. If this validation is to have this effect, it must be sanctioned by Maryland law. A foreign legislative body can give no efficacy, to that, which the domestic law condemns. If this is thought to be correct, and it is not believed to be susceptible of a successful denial, the Canal Company had no corporate existence until the 24th day [**320]  of May, 1828.
3d. To what period had the charter of the Canal Company relation?
Does it date its right and powers from the 23d May, 1828, the day on which, we have seen the charter was enacted? from the day on which the stock was subscribed, according to the requirements of the charter? or from the date of the Maryland act?
The course of Maryland legislation, from the period of the passage of her law, on the 31st January, 1825, until the Canal Company became incorporated by the required subscriptions, and by the entire fulfilment of the conditions upon which she had made her laws dependent, are not meant particularly to be adverted to here. They will be particularized, and commented on, hereafter. It will be sufficient, to bear in mind that Maryland had incorporated the Rail Road Company, and that the company had, anterior to the 23d May, 1828, adopted the contested route, and appropriated considerable portions of it, by actual surveys and locations.
The legislature of Maryland, upon the passage of her law, did not profess to give, or grant any thing. She merely declared, that she would grant a charter to make a canal, on certain conditions, whenever [**321]  they should be complied with, and not before. It was a mere offer then, on her part, to the public, which only became obligatory when it should be accepted, and nothing more.
 [*186]  Relation, in its legal application to deeds, stands on intelligible principles, and is meant to carry into effect the intention of parties, by giving efficacy to such instruments, when they would be, otherwise, without the intended operation. Apply it here, and quite a different result is produced; the intention of the parties is perverted; what was only intended as an offer, is converted into a contract; that which was intended, and by express terms, to take effect at some distant period, when the terms of the act should be complied with, is made to operate against intention, immediately upon the passage of the law. The doctrine of relation, it is believed, has never been held to subserve such a purpose. It is founded always on a principle of equity, and is a fiction of law, introduced for the attainment of justice, and to prevent circuity of action. Courts of law have applied it to uphold an equitable claim, against a subsequent legal title. As in the case of certificates, and payment of composition [**322]  money, the grant is made to relate back to the date of the certificate, and dates the transmission of the legal estate from its birth, so as to override, and defeat all intermediate grants. In this, there is the greatest justice and reason, for what could be more unjust or unreasonable, than to permit the highest and clearest equity--an equity arising from the payment of the purchase money, to be defeated by a subsequent grant, merely because it happened to be clothed with legal solemnities. But in the case before the court, no equity grew up with the enactment of the law, to be protected by relation. No effective act was done under the statute, until the Rail Road Company had obtained a legal existence, and had given to itself a locality. Not only was no effective act done, until this event took place, but nothing of any kind was done by any one, through which he could, by any possibility, sustain any injury. For what purpose then, it may be emphatically asked, should the doctrine of relation be called in? If its aid is sought, it would here subvert all the rules upon which that salutary fiction of law has been established; it would defeat legal  [*187]  rights, not for the [**323]  purpose of supporting an anterior equity, but to give a subsequent legal right the preference.
It would be difficult, nay impossible, if the doctrine of relation does exist, and is applicable in the case of offered corporations, to say what would be the limitation to it. Twenty years could be no bar, for although that furnishes the ordinary presumption against a right, yet in the case of an offered corporation, there are no persons in esse, against whom the presumption could operate. The right only begins to exist, when a sufficient quantum of stock is subscribed, and that may be for an indefinite period. In short, the only possible limitation which could exist, would be the arrival of a period, when the inexecution of the law might give rise to the idea, that it had become obsolete, which would in truth extend it to an indefinite period; for courts of justice, it is believed, would hesitate in pronouncing, that from lapse of time alone, a law existing in the statute book, though dormant, and unexecuted through the whole period, had become a dead letter.
In this view of the subject, what would be the result of the application of the doctrine of relation to a subject of [**324]  the character now before the court? An example will illustrate its evil consequences. A law passes, authorizing the formation of an incorporated company, to make a canal from the sources of the Potomac to its mouth. It is to date its charter from the time its capital is subscribed, and it has imparted to it the eminent domain of the States of Virginia, Maryland, and the United States, over the whole country watered by it, or its tributary streams--a district, of at least two hundred and fifty miles square, extending from the Chesapeake to the Alleghany, and from the highest sources of the Shenandoah to the head of the Monocacy. Nothing is done to bring this corporation into existence for half a century. Then it unexpectedly springs into life. What are to be the results? Is it to overreach and defeat all intermediately formed canals, rail roads, and turnpikes; or are all these improvements to be absolutely terminated, and this entire region thus  [*188]  condemned, to forego the advantages of the useful progress of legislation, enlightened by the advancement of science--and for what purpose? to gratify this notion of relation, which was never, even in [**325]  the dreams of its framers, considered as applying, or at all referring to such a subject. Besides, its deleterious consequences to a whole region of country, its effects upon legislative action, would be novel and extraordinary.
It would deny to the legislature, in the absence too of all contract, its ordinary power, that of enacting and repealing laws, and under the same circumstances, would confide to one legislative body, the power of binding its successors to abstain from all beneficial and wholesome legislation. No principle which could operate this result, can be tenable.
In order to carry back the rights of the Canal Company to the date of the law, without regard to the time when the subscriptions were obtained, resort is had to abeyance, differing from relation, not in its consequences, but in the mode only of effecting them.
This doctrine of abeyance, like relation, is a fiction of law instituted to subserve the purposes of justice, and to carry into effect the wishes and intentions of the grantor; and has hitherto, only been applied to estates of inheritance, for the purpose of passing over the reversion or remainder to the person designed to take it; as in the [**326]  case of a grant to A, remainder to the heirs of B, B being still living--or of preventing the falling in of such an estate, and its re-investment in the crown; as in the case of the grant of a dignity, when by death of the crown's beneficiary, there exists no representative, capable, by the grant, of taking it; the right is held in abeyance, until some one is in esse, capable of taking it by succession, according to the terms of the original grant. Wherever it has been applied, it has been of necessity. It is said in 3 Cruise Dig. 232, to be a doctrine which the law abhors, and a very distinguished writer on real law, as regards such estates, argues against its existence or necessity, altogether. Fearne, 361. Admitting  [*189]  its existence, it is said, in 1 Cru. Dig. 71, that in modern times, abeyance is not favored, because it is in restraint of alienation; and in the case of Perin and Blake, it was declared, that abeyance ought not to be extended, because, it prejudices the public, it ties up property, and leads to perpetuity. Harg. Law Tracts.
The application of the doctrine in this case, would be within none of the principles which gave rise to it.  [**327]  It must be remembered, that it is applied only in cases of necessity. Where a donor selects, as the object of his bounty, a person not in esse, having parted with his estate, there exists a necessity, that it should exist, to vest in the donee, when he comes into being to receive it; there, without either supposing the fee to remain in the donor to gratify his objects, which would be against the grant, or that it is in nubibus, the intentions of the donor must be defeated, and the donee could never take. But here the sovereign power is the grantor, which can impress upon the grant any powers of operation which it pleases: and can mould and modify it against all technical rules, whenever she shall please to do so. She might have pronounced, that the franchise should bear date from the law, without soliciting the aid of judicial fictions, to establish and give efficacy to her intentions.
We have seen that abeyance was introduced to give efficacy to estates, according to the intent of the grantor; this characteristic demonstrates its inapplicability here. The State never thought she had parted with any thing. Unlike the grantor or donor, who, by the words of the grant or gift,  [**328]  manifests a present intention to part with his estate, the State grants nothing, and means at the instant of her grant, to pass no right. She merely declares, that on the happening of some contingency in future, she will grant. She holds her law up, as an offer merely, and declares, that when any portion of her people shall accept that offer, they shall have certain powers imparted to them, and meant to place herself in no different condition, than an individual would  [*190]  be placed in, who would offer to contract with another, and who, without any reservation of right, possesses at all times before acceptance, the right and power to withdraw the offer.  4 Wheat. 225. Now, if the doctrine of abeyance is applied, the State is held to her offer against her clear intent; a different rule is meted out to her, from that which would be applied to individual contracts, or offers to contract, and there would thus be an utter perversion of the whole doctrine.
This fiction, like all other legal fictions, originated in that watchful anxiety which the law always manifests to establish justice. Yet it would be made to accomplish injustice, if it could bind the [**329]  legislature against its clear intent, by giving efficacy to its law, as a grant from its first offer, when according to its express terms, it was only to take place in futuro, and that on a possible contingency.
We have seen, that the doctrine of abeyance has, even in its appropriate sphere, met with the disfavor of courts of justice in modern times, as tending to perpetuities, and as prejudicing the public. If in its application to estates of inheritance, it has this obnoxious tendency, how much greater would be its evils, when applied to legislative power? The indelible, constitutional land-mark of legislative power, is, that it shall pass no law impairing the obligation of contracts. Yet this doctrine of abeyance breaks up these constitutional land-marks, by contracting them within much narrower limits. And it says, although you make no contract, yet if you offer to contract, you shall make no law rescinding the offer. Can a technical principle of law, work this change in the fundamental law?
We have seen, that abeyance is a doctrine not favored, and which ought not to be extended, as it prejudices the public. Shall we apply it to a class of cases new in their [**330]  character? To cases of offered corporations, when its consequences are such, that it would, manifestly, greatly impair the public interests. The manner in which this injury may be thus inflicted, we have seen in examining the  [*191]  effects of relation, and shall not again advert to them, except to remark, that its establishment in such cases, must infallibly lead to a change in the legislative course which has been adopted since the revolution. The public interest would demand it. For offers of incorporation, although never accepted, would be a negative on the power of making any future, actual grant, in relation to, or interfering with, the offer made.
But it is supposed, that judge Story, in the case of the Dartmouth College vs. Woodward, 4 Wheat. 518, has recognized this doctrine of abeyance, with all its incidents and appendages, as applicable to corporations, such as the one under consideration, and the following language of that learned judge is relied upon for this purpose: "When the corporation is to be brought into existence by some future act of the corporators, the franchises remain in abeyance until such acts are done, and when the corporation [**331]  is brought into life, the franchises instantly attach to it." If the word abeyance, in the above extract, was used in its technical sense, it must be admitted, that the authority of the dictum goes to the whole extent for which it has been cited; but it is apparent from all the reasoning of that officer, that he used the word "abeyance," not in its technical, but in its popular sense, and as synonymous with "suspension." Taken in this sense, it is entirely legitimate, and consistent with reason and authority, and that he does mean so to use it, will appear by what follows in the same paragraph of his opinion. He was endeavoring to establish the principle, "that there might be future springing contracts in respect to persons not now in esse," or in other words, that the legislature might offer to contract, and that at some future time, when the offer was accepted, it would become an indissoluble contract, clothed with constitutional inviolability: His reasoning, which goes to illustrate his meaning, is as follows: "If the legislature were voluntarily to grant land in fee, to the first child of A, to be born thereafter; as soon as such child should be born, the [**332]  estate would vest in it.  [*192]  Would it be contended that such grant, when it took effect, was revocable, and not an executed contract upon the acceptance of the estate? Take the case of a bank incorporated for a limited period, upon the express condition, that it shall pay out of its corporate funds, a certain sum as the consideration of the charter, and after the corporation is organized, a payment is duly made of the sum out of the corporate funds; will it be contended, that there is not a subsisting contract between the government and the corporation, by the matters thus arising ex post facto, that the charter shall not be revoked during the stipulated period? Suppose an act, declaring that all persons who should thereafter pay into the public treasury a stipulated sum, should be tenant in common of certain lands belonging to the State, in certain proportions. If a person afterwards born, pays the stipulated sum into the treasury, is it less a contract with him, than it would be with a person in esse at the time the act passed?" Now from this quotation from the opinion of the learned judge, it will be perceived, that in every case by him cited, he impliedly [**333]  admits the legislative power to modify or repeal the proposed grant, or contract, until some right has vested under it, or until something has been done, manifesting the grantee's consent, and he selects such a period, as the one which places what the legislature have done, beyond recall. This he could not have done, if he meant any thing else by the use of the word "abeyance," than suspension; for had he used it in its technical sense, he could not have so explicitly admitted, that they were liable to recall before they were vested or accepted. Indeed, if he had used the term abeyance in its technical sense, they would have been liable to recall or repeal at no time after the enactment; but the offer would have been invested with all the sanctity of an actual grant.
That in the case of grants to pious uses, or of grants in the nature of a dedication to public uses, the doctrine of abeyance is permitted, does not aid the case of the Canal Company. The grant is neither for the one purpose nor  [*193]  the other. But is a mere offer to grant to a joint stock company, when it shall be formed, certain privileges, with the right to take tolls, as a source of emolument [**334]  to the company. Who enjoy the profits of this company? Its emoluments are to be forever secured to the stockholders. But the canal when completed, is declared to be a public highway, it is still, however, subject to the right of exacting tolls for the benefit of the individual corporators, which strips it of the character ascribed to it, that of a dedication to public uses. The preamble of the charter cannot relieve it from the difficulty. "Whereas the completion of the work will be of great advantage to the people of this, and the neighboring States, may tend to produce a connected navigation between the eastern and western waters, may extend internal commerce and personal intercourse, between the two great sections of the Union, and may tend to consolidate and perpetuate the vital principles of the Union." These are certainly public objects of great importance. But individuals in the pursuit of private emolument and gain, may accomplish works of great benefit to the public; yet it would be scarcely allowable to say, that they had, therefore, dedicated their services to the public. The same thing may be effected by corporations, and from the same motives, and yet where they are [**335]  stimulated by tolls to accomplish these results, who would say, that therefore, their franchises were granted as a dedication to public uses? In the year 1810, a bank was incorporated in the town of Elkton, with the following preamble: "Whereas it is the opinion of this general assembly, that the agricultural, commercial and manufacturing interests of this State, will be promoted by the establishment of a bank, &c." Now here are great public objects developed, and yet, will it be pretended that the bank thus established, was a dedication to public uses? Yet if the preamble operates this result in the canal charter, it must also do it in the case of the bank. But reasoning upon this subject, is unnecessary. The canal charter is no grant, it is a mere offer; and if a case can be found any  [*194]  where, where rights were decided to be held in abeyance, upon a mere offer, then it will be time enough to enter into a more minute examination of this alleged dedication to public uses.
The case of the Town of Pawlet vs. Clark, 9 Cranch 292, was no offer to grant, but a grant which professed upon the face of it, to pass from the crown six miles square of land,  [**336]   and all its right and title thereto; and in Lade vs. Shepherd, 2 Strange 1049, the street was actually laid out and dedicated as a public highway, and in all the cases, where this fiction of abeyance has been applied, the grantor has clearly manifested his intention, to part with his interest in the thing granted. He had not merely proposed, or offered to do so, but had actually, by apt terms granted it, and the grant would have been prevented from its intended operation, but for the interposition of this principle.
But apart from all the above considerations, this fiction is incapable, in the nature of things, of application to the franchises of a corporation, not in existence. By the franchises of a corporation are meant, those rights which are in separably incident to it when created, or such rights of eminent domain as the sovereign power may impart to it. The corporation is the principal, the franchises are incidents. The one is the substance, the other the shadow; the latter cannot be without the former. As well might it be said, that a court baron could exist without a manor. The corporation, in the case of the Canal Company [**337]  was not to come into existence until a fourth of its stock was subscribed, nor until all the conditions of the charter should have been complied with; as it was not in being, it could have no incident; there could not be any incidents to be in abeyance, when there was no principal. Existing rights may, by law, be placed in abeyance, but non-entities cannot be in that condition. It would require the famed omnipotence of an English Parliament to give life to incidents or franchises, and put them in abeyance, before the principal or corporation was created--when the inheritance is in  [*195]  abeyance, although intangible, it exists. When dignities are in abeyance, the right has in legal contemplation an existence. The doctrine would be perfectly comprehensible, if it could be maintained, that the corporation was itself in abeyance, for then its incidents might also be in the same condition; but when the law passes, it is admitted, that it is not in existence, so that it could be put in abeyance; but it is to spring into life after the law, not by the law itself, but by the conjoint effect of the law, and of acts, aliunde. To avoid this difficulty, it is supposed, that after [**338]  the franchises vest de facto by the creation of the corporation, by a kind of legal magic, or subtle metaphysics, there is a coalescence of the legislative act, which creates the corporation and its franchises, with the corporate act, which produces a party capable of taking the benefit of the grant; and that the franchise relates back to the original grant. But it cannot be perceived, that in order to give efficacy to this grant, it is necessary to resort to this ingenious system of reasoning. It must be conceded, that there may be future springing contracts with persons or bodies not in esse--is it necessary to give them validity, to say, that they must relate to the first proposition, or offer for the date of their creation? By no means. They take their date from the time of their acceptance; because, until then, it is no contract.  4 Wheat. 225. This is the case in ordinary contracts, and must be so in corporations; for charters are compacts between the government and those who assume to act under them. Nor is it necessary to resort to this ingenious refinement, to account for the modus operandi of the offered grant. The offer takes date from its acceptance,  [**339]  and the franchises remain in the grantor until such acceptance, at which period of time they are divested by the offered terms of the law, and vested in the corporate body; and thus remaining in the grantor, at all times before the offer is accepted, they are liable to be actually granted to others.
If there be any truth in the above reasoning, neither the doctrines of relation or abeyance, apply to this grant, and  [*196]  consequently, it must look for the first existence of its powers to the date of its incorporation, which period is to be ascertained, in the words of the law, "when one-fourth of its capital shall have been subscribed," which we have seen never did take place, until the 24th day of May, 1828.
3. It is now proposed to examine the course of Maryland legislation, in matters which may affect this company, from the date of her first law in relation to it; and to determine its character and validity, as affecting the rights and interests of the parties to this controversy. In doing this, it may become necessary occasionally to advert to some proceedings under these laws.
On the 28th February, 1827, a charter was offered to the Rail Road Company. On the 31st [**340]  March, 1827, it became incorporated; the quantity of stock demanded by the charter, as preliminary to her incorporation, having been subscribed. Thus, the Rail Road Company was an actual incorporated body, nearly eight months before even an effort was made by the Canal Company to become incorporated, by obtaining subscribers to one-fourth of her capital; for it was not until the 14th November, 1827, that the latter company made any attempt to give existence to her charter, and then we have seen, that the attempt was unavailing, the subscribers to the extent demanded by the law, having no authority to subscribe. And a period of nearly fourteen months elapsed, from the time of the incorporation of the rail road, before the Canal Company was incorporated; which never took place, as we have seen, until the 24th of May, 1828. Anterior to this period, the Rail Road Company was not only incorporated, but had selected the very route in controversy, and had appropriated the greater part of it, by obtaining conveyances for some portions, and agreements for the transfers of other parts, and actually causing locations and surveys to be made. On the 3d of March, 1828, Maryland [**341]  , by a supplement to the act for the promotion of internal improvement, passed the following enactment: "Be it enacted that the treasurer of the Western  [*197]  Shore, be, and he is hereby authorized and directed to subscribe for, and on behalf of the State of Maryland, for five thousand shares of stock," with the following proviso: "Provided, that the said company shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of Monocacy river and the town of Cumberland, in Alleghany, and that it shall go into Washington, Frederick, and Alleghany counties." Which provision we have heretofore seen, the Rail Road Company adopted, by causing her route to strike the river Potomac, at the Point of Rocks above the mouth of the Monocacy, and designating her route towards the town of Cumberland, on the margin of the Potomac river, through the counties of Washington, Frederick, and Alleghany. All these laws were enacted, and these proceedings had, before the Canal Company was incorporated; and when it was not known, and could not be known, whether she ever would be incorporated. For then [**342]  it was uncertain, whether the necessary quantity of stock would be taken by valid subscribers, and whether the act of Maryland would ever go into operation, by a compliance by the United States, with the conditions upon which Maryland had made her act dependent, that is authorizing Maryland to make a lateral canal through the District of Columbia, and directing some safe mode by which the right should be secured to her.
Now, if the view already taken be correct, that the company was not incorporated until the 24th May, 1828, and that the Maryland law by its express conditions, never became an operative law until the 23d May, 1828; it is undeniably certain, that the grant to the Rail Road Company, not only in its general terms, was a valid grant, but would have been equally valid, had the general assembly of Maryland, in the charter of the Rail Road Company itself, designated the very route in controversy, and that all the acts of the Rail Road Company designating and selecting this contested ground, are entitled to protection, as prior vested rights under her grant, which in this view would be anterior  [*198]  to the rights of the Canal  [**343]   Company, and therefore entitled to priority and protection. These positions are asserted on the hypothesis, that until the grant of the Canal Company was perfected by acceptance, it was always within the competency of the legislature, to repeal or modify her offered charter, or to grant rights and franchises inconsistent with the offered grants, remaining unaccepted, or which may become so in their ordinary and legitimate exercise.
All grants offered merely to existing or non-existing bodies, or to persons in esse or not esse, are liable to be resumed at the will of the power or sovereign offering the grant, at any time before acceptance, and to be re granted to other and different individuals. I do not, it is perceived, here speak of those cases where there exists a present intention to grant, and where the instrument purports on its face to be a grant to pious or public uses; and where such instruments are upheld against the general rule of law, that there must be a grantee, as well as a grantor, or a corpus to be granted, and which are held an extinguishment of the grantor's right in the thing granted, and constitute exceptions to the general rule, but [**344]  as will be perceived, of mere offers to grant--such offers (and all charters like the canal charter are offers merely,) are not contracts which cannot be violated or impaired by any kind of legislation. Any body of men, therefore, who shall become corporations under such offer, take and accept it, subject to the known power of the legislature, by any act anterior to such acceptance, to modify it, and can only hold it subject to such modification; or if the offer have been repealed, the acceptance is a nullity, and confers no rights. Such is the settled and undoubted law in private contracts, and the reasons which demands its application to grants from the public, are of a much more weighty and imperious character, as we have heretofore seen. That there may be future springing contracts, which do not take effect instanter, but grow up, and become binding upon the happening of  [*199]  some future event or contingency, is not attempted to be denied, or the principle at all impaired. But until that event or contingency does happen, (I speak of cases where no interest has or could vest,) it is insisted, that the proffered contract is liable to a partial or total recall. It could [**345]  not, for example, be denied, that a grant to the unborn son of A, might at any time before the grant had vested by the birth of the grantee, be entirely abrogated. Nor could it be doubted, that the grant of lands by the legislature to any citizens of the State, who should do certain acts, could be resumed before any citizen had actually entered into a contract with the State, by the performance of the act. It is equally clear, that all the rights proposed to be granted by the canal charter, were liable to the like resumption, at any time before that charter went into legal operation according to its terms. And these rights were all resumed and re-granted by the State; or at least rights and franchises were granted by the State to the Rail Road Company of so general and comprehensive a character,--the power to construct a road in any direction, from Baltimore to the Ohio, that in their rightful exercise they became inconsistent with the offered rights, proposed to be granted to the Canal Company. And these rights had actually vested by grant and selection, before the Canal Company had come into being, nor would the principle be at all altered, by so construing the [**346]  offered grant to the Canal Company, as to give it a special and designated location along the valley of the Potomac, or to make it still stronger, along the left bank of the Potomac; for the grant is still, but an offered, unaccepted grant, and the anterior accepted grant to the rail road, being general, broad, and comprehensive, without exception, or limitation, to make a road any where between the designated points mentioned in her charter, clothes her with the right to take any route, not before actually granted.
The intention of the legislature, to make this grant to the rail road, without any limitation or reservation of any rights offered to be granted to the Canal Company, is not susceptible  [*200]  of successful contestation. The terms are as comprehensive as our language could make them; the grant is without any express reservation or exception, and without any words from which might be implied, any intention to make any exception. The construction then, admits of no ambiguity, and becomes imperative. We can nowhere look for legislative intention out of the grant, but must confine ourselves in the ascertainment of intention, to the terms used by the [**347]  contracting parties, in the instrument or charter by which they stipulate. Are we to construe this grant, general in its terms, as if it had contained an express exception of the offered rights, to the Canal Company? If it were capable of a double construction, one limited, and the other general, it may be conceded, that we should take that which would be limited, for the purpose of upholding the anterior law. But we cannot give it a construction to produce this effect, because its phraseology is unambiguous, and should, by so doing, limit that which is unlimited, and meant to be so, if language is any just interpreter of intention.
But the legislative intention is manifested if possible, in more direct and specific terms, by the law of 3d March, 1828. By the charter of the Rail Road Company, in 1827, she had contracted, as we have seen, in general terms. By her subsequent law, she enters into a new contract with the Rail Road Company. She agreed to subscribe for $ 500,000 worth of the stock of that company, on condition that the Rail Road Company would locate her route, so as to strike the river Potomac, above the mouth of the Monocacy, and afterwards go through [**348]  the counties of Washington, Frederick, and Alleghany. This proposition is acceded to; the rail road receives the money; the State becomes stockholders; and the company lay down their road, so as to go to, or strike the Potomac, and in pursuance of their contract, locate their road onward, through the counties of Washington, Frederick, and Alleghany, by the margin of the river. Here is a contract, as explicit and as binding as the  [*201]  original charter, and is in truth a modification, by a subsequent agreement of the original contract; for the grant in the original charter gave an umlimited and undefined range, at the will of the company, to select her route where she pleased; but this new contract restricted her to one designated and particular route; she must strike the Potomac, and go through Washington, Frederick, and Alleghany. Now, if the Canal Company had no route designated in her law, it must be admitted, that so far as this law fixes the route of the rail road, the Canal Company's right, however general before the selection, would be gone as to this particular course; and if it was actually located by the law to follow [**349]  the valley of the Potomac, on its left margin, so far as this route interfered with that, it would pro tanto be a repeal of the law creating the Canal Company. And what was the route to which she was confined by this new contract with the Rail Road Company? The rail road must "strike the Potomac." Now if this must be done, in the point of contact with the river, there is a direct and unequivocal interference with the route of the canal, and an equally clear interference throughout the whole controverted ground. Can it be believed that the legislature, through mere caprice and frivolity, would order this company to strike the river, and then go through the counties of Washington, Frederick, and Alleghany, without meaning that they should then take the margin? For what purpose are they brought to the river, and made to strike it? Was it merely that they might have their hopes of the most eligible route up the margin of the river defeated? Did they mean to invite them there merely to look at the route, then the more cruelly to frustrate their excited expectations; order them to retrace their steps; pass with immense cost and difficulty the elevated ridges [**350]  of the Catoctin mountain, and its parallel ranges in their progress to the western country? Such an imputation, would I am sure, be doing great injustice to the intention of the legislature. Indeed the intention that they should take the margin, is apparent from  [*202]  the history of the proceedings of the Rail Road Company, in evidence in this cause. Engineers had been appointed 20th June, 1827, who proceeded to examine the routes proper for the rail road, and all the routes had been examined (among the rest, this,) before the passage of the law compelling the company to strike the river; for the engineers report, in a month afterwards, this route by the Potomac. It is fair to presume, that it was as well known to the legislature, as to the company, that two or more routes were in contemplation. The one by the margin of the river, and the other in a different direction through the three counties. Knowing this, the legislature invite them to the Potomac; they must strike it, and go through the counties of Washington, Frederick, and Alleghany. The legislature were anxious that they should not cross the river, but that they should keep on the Maryland [**351]  side the whole way--they must go through the three Maryland counties. It is therefore conceived, that the canal charter was modified to the whole extent of the route designated by the Rail Road Company, in consequence of the contract made by this law with it. The subscription of $ 500,000, by Maryland to the Canal Company, furnishes no argument against the views which have been taken of the intention of the legislature. If indeed it was contended, that the rail road charter had actually repealed the whole charter of the Canal Company, this subscription might well be resorted to, for the purpose of showing, that the State never meant to annihilate it, and of demonstrating her intention, not only, that it should continue to have life and being, but that it should go on and prosper. But no repeal is attempted to be shown; a modification and limitation of its range of choice, is all that is urged, as growing out of the rail road laws. Notwithstanding the limitation thus imposed, she had a right under her charter from Maryland and Virginia, to have taken the Virginia shore of the Potomac, from the mouth of Savage river to tide, and under the operation [**352]  of the combined charters from Maryland and Virginia, she might have pursued  [*203]  the Virginia shores, until she arrived at a point opposite the Monocacy, or opposite any point which the Rail Road Company might select on the Potomac, as the point at which she would strike the river, then cross, and take the Maryland shore the whole distance to tide water. There is nothing unreasonable in the supposition, that Maryland thus intended to limit the Canal Company, to the one or the other of these routes, either of which, would have left the company in the possession of her chartered rights, subject to no other limitation, except what had been carved out and granted to the Rail Road Company. The canal practicability of either of the above routes is not capable of denial. The Maryland side throughout may have been more advantageous, but this will not in the least advance the argument on the other side; the practicability of other routes was foreseen; and all the State says, by her agreement with the Rail Road Company, is this, we choose to constitute you a favorite company, by giving you this route; we insist on your striking the  [**353]  Potomac; the Canal Company has other routes, let her pursue one of them. Maryland may have even thought it probable, that she might not materially interfere with the Canal Company, and she would not, if that company had fallen upon either of the other routes spoken of. Pennsylvania in her act of 9th of February, 1826, looked to this probability, when she demands the consent of Virginia to certain provisions of her act, provided the Chesapeake and Ohio Canal should be located on the south side of the Potomac. Maryland may have done the same; but whether she did or did not, it was sufficient for her to know, that it was perfectly practicable for the canal, to take one of her other routes, and it is apparent by thus interfering with her offered grant to that company, she did mean to throw the Canal Company upon such routes.
The assent of the Potomac Company did not at all interfere with Maryland legislation. Her assent was asked, because the Maryland offer of a charter would be in vain, unless she consented to the offer. If she professed a willingness  [*204]  to waive her rights, then, and not until then, could it have been of any utility [**354]  to have opened the subscription. But her assent subjected her to no inconvenience, nor bound her to any legal consequence. She could have withdrawn it at any time she pleased, anterior to the vesting of any legal rights. The whole charter was in fieri until the conditions which the law demanded, were complied with. And she could, and had a right at any moment before the 23d May, 1828, to have rescinded her assent, for it was not until that period of time, that the charter became valid. The anterior subscriptions on the 14th of November, 1827, were of no consequence, for they were not justified by the charter. It had not become a law, and not being such, they were null and void, and bound no one. The Potomac Company was, therefore, in every respect, in statu quo, as long as the grants of Maryland and Virginia stood as offers, and had not become binding, operative grants. She was precisely in the situation of either of these Staets; she could rescind her assent, as they could repeal their laws. It strikes me, that it would be a proposition entirely untenable, to say, that her assent placed her in the same attitude, as if she had actually surrendered her charter. The [**355]  States had made no contract with the company. She had made none with them, for they had not even a potential existence--nor had she entered into any contract any where, incurred any obligation, forfeited any rights, or done any act, which by possibility could affect her, unless it was her subscription, and that we have seen, was utterly void.
The legislature then, had the power to modify her offered grant to the Canal Company, has so modified it, and spoken her intention in this respect, in language too intelligible to be misunderstood, and by such modification and partial resumption, and re-granting of a portion of her eminent domain, has given a perfect right and priority to the Rail Road Company in what she demands.
We have been hitherto examining the foundation of the claims of the Canal Company, standing alone, on the basis  [*205]  of Maryland law. But the same conclusions result, and the rights of the parties, as ascertained, remain fixed and undisturbed, even although a compact existed between the various grantors of the canal charter. If a compact exists, it is certainly only binding and effectual from the period when such compact was consummated. It cannot [**356]  ante-date its power to the time when negotiations between the parties commenced, and so derive a capacity to avoid and annul all acts done by the parties, or either of them, in the intermediate time between the first offer by either, and the acceptance of it by all. Each party was bound to know, that neither, by her mere offer, was stripped of her constitutional powers of legislation, and if she accepted such offer after legislative interferences, she must necessarily make her acceptance subject to all resulting consequences, and all intermediate grants. If this be true, (and it is not perceived how it can be denied,) and if it be also true, as has been attempted to be shown, that the conditions imposed by Virginia and Maryland, were never, in their letter or spirit complied with until the 23d of May, 1828, then it follows, ex consequenti, that the compact, if any, was never until that day formed by the contracting parties; and Maryland having in the mean time, granted certain rights and franchises to the rail road, which had become vested and valid contracts, such compact, when formed, was necessarily subject to the due and legal operation of such grant and contract;  [**357]  and became obligatory in every other respect according to its terms.
Whether Maryland, in this intermediate grant, acted in perfect good faith, might not perhaps be the subject of judicial inquiry. But in this, as in all other portions of her political history, her character stands unblemished, and is susceptible of entire vindication, even considering the grant in the light of a compact, and her first offer as intended to bring about mutual and binding stipulations. Her first law was passed on the 31st January, 1825, and her conditions were never complied with, until 23d May, 1828,--a period  [*206]  of three years and four months. In the mean time we find her complaining of the inefficient character of the first act of Congress, and in effect demanding the just and entire fulfilment of her conditions, by her law of 6th March, 1826, entitled, an act for the promotion of internal improvements; and even after this, upwards of two years are suffered to expire, before the United States complies. In the mean time, all efforts to organize the company, legitimately, had failed, and she herself had, by her law of December session, 1827, entitled, "a further supplement to the [**358]  act entitled, an act for the promotion of internal improvement," expressed her doubts, whether the work would ever commence. Indeed it must be admitted, that the whole work was entirely contingent on the possible subscription by the United States of $ 1,000,000. And when the uncertainty of such an event was looked to, it must have been doubted by all, even the most sanguine, whether it ever could progress. Under such discouraging circumstances, from the combined causes above adverted to, can it be said that there could be any breach of faith in the State undertaking to make her grants to the Rail Road Company, as she has done, and of interfering with her previous offer to the extent which she did do by that grant? How long was she to wait for the fulfilment of her conditions? She had in effect twice reiterated to Congress, the necessity of complying with her conditions by the act of 1826, above adverted to, and by a further supplement to the same law, passed the next year; a deaf ear was turned to these solicitations, and the case of the Canal Company was utterly hopeless. She was not bound to wait for ever, and a just respect for the rights and interests of her people,  [**359]  demanded of her, that she should not longer be restrained in the march of improvement. She had waited as long as reason and propriety demanded, and nothing further could be sought by the most scrupulous adherent of good faith.
If it be urged, that the relations of Maryland with the Potomac Company should have prevented her modifying  [*207]  the canal charter, the answer is in substance found in the previous part of these views. Her complaint against Maryland would probably be, that she had assented, and that she had become a subscriber to the stock of this company, and that she ought to have been in good faith consulted. But such a complaint would obviously have no just foundation. She assented to the law, as Maryland made her offer. Her assent was not binding; it could at any time have been withdrawn, and such being the law, it will be intended that the parties so understood these transactions. There was nothing therefore, to prevent her, after the enactment of the rail road charter, from withdrawing her approbation; and not having done so, it is fair to consider her as yielding to any modification which Maryland had made in the canal charter; at all events,  [**360]  after the modification her assent, became subject to it. As to the subscriptions of the Potomac Company, they were utterly void, there being at that time no law to justify them, and of course the Potomac Company was under no obligations.
The above views of the whole case would entirely relieve me from the necessity of examining the question, whether any compact did, at all, exist between the State of Virginia, Maryland, the United States, and the Potomac Company, in relation to the Canal Company. But I will proceed to present my views upon that subject.
1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.
2. Was there any compact between the United States, Virginia, Maryland, and the Potomac Company, in the formation of the charter of the Canal Company.
In the exposition of grants, as we have seen, the grant itself is the only index of the thing granted, and that matters aliunde cannot be resorted to, for the purpose of limiting or enlarging the express terms of the grant. But where the enactment of two States is resorted to, for the purpose, not of showing an express compact, [**361]  but of raising one by implication, a resort to some matters aliunde, may be governed  [*208]  by different considerations. In such case, the supposed compact rests only on inference and intendment, and the acts, usage and practice of the States, it may not be unfair to bring into review, to show the character which the parties meant to impress upon their laws. With these remarks the above questions will be separately examined.
1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.
Anterior to the passage of the laws by which the Potomac Company was chartered, conferees, as we have heretofore seen, were appointed by the legislatures of the respective States, for the purpose of inquiring into the proper mode of improving the navigation of the Potomac river. This conference resulted, not in any compact, nor in any recommendations that any compact should be formed by the States, but merely in recommendations that a similar law should be passed by each State to establish a company for opening the river, and similar laws of incorporation were passed by each State, chartering the Potomac Company [**362]  , for the purpose of promoting an object no doubt greatly beneficial to both. The law of Virginia does not appear to have been of a dependent character, but the charter of Maryland rested on the condition, not that Virginia should enter into any agreement with her in relation thereto, but that she would pass a similar law, granting the same company the like privileges, and authorized a subscription for fifty shares of its stock, on condition that Virginia would subscribe the same. With these exceptions the charters of the two States were identical.
Besides the provision above adverted to, as contained in the Maryland law, each charter contained the two following sections, which are the only ones which have any relation to this subject:
"SEC. 10. And be it enacted, That the said river, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation of  [*209]  all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act; and no other toll or tax whatsoever, for the use of the water of the said river, and the [**363]  works thereon erected, shall at any time hereafter, be imposed by both, or either of the said States; subject, nevertheless, to such regulations as the legislatures of the said States may concur in, to prevent the importation of prohibited goods, or to prevent fraud in evading the payment of duties imposed in both, or either of the said States, on goods imported into either of them.
"SEC. 19. And be it enacted, That all commodities of the produce of either of the said States, or of the western country, which may be carried or transported through the said locks, canals, and river, may be landed, sold, or otherwise disposed of, free from any other duties, impositions, regulations, or restrictions of any kind, than the like commodities of the produce of the State in which the same may happen to be so landed, sold, shipped, or disposed of."
By these references to the charters, it is insisted by the appellant, that a compact grows out of one, or all of the following circumstances.
1. The dependent character of the Maryland charter.
2. That the river and canals were declared highways.
3. The prohibition on both States to impose the tolls.
4. The concurrent character of all [**364]  laws to be passed, to prevent the evasion of the revenue laws of the respective States.
5. The exemption of all produce from any tax, other than what is imposed on the like produce, by the State where it shall be sold or shipped.
1. From the dependent character of the Maryland law, it must be obvious, that no idea of a compact can arise. A State may affix any condition to her law, which she may think proper, however arbitrary, or seemingly destitute of reason it may be, as to make any law affecting the rights of her citizens, dependent upon a law of a similar character being passed by a foreign State, operating upon her citizens,  [*210]  as a trespass law--a law regulating replevins, or any other law; yet who could say that if such foreign State complied with the condition, that there would exist an irrevocable, or any other contract between the two States, neither to repeal their law without the consent of the other? Whether the condition arises from caprice, or from high motives of interest or state policy, cannot alter the question.
Maryland had in truth high objects to gratify, by her enactment that her law should be inoperative, till Virginia passed a similar [**365]  law. The Potomac river was a border stream; each State had great interest in the improvement of its navigation. She proposed to establish a company, and also to aid it with her funds; but why should she do this unless Virginia would do the same? Why should she exhaust her resources, if Virginia would not lend a helping hand. She therefore chose to make her charter dependent. Her objects by doing so were, as she anticipated, all accomplished. Virginia was by this dependent system of legislation, stimulated to grant a charter, and also to subscribe her funds. These were the sole motives and objects of the legislature, in pursuing this peculiar course and manner of legislation.
Before proceeding to the examination of the other clauses in the charter, which have been relied upon, as creating a compact, it may be assumed, that a court of justice would in no case be justified in deducing inferentially, a contract, or compact, between sovereign States, from their mutual enactments, unless the existence of such compact would be necessary to give efficacy to their laws, and this assumption is founded on a reason so obvious, as that it need only be stated, to receive assent. [**366]  By making concurrent laws, compacts, the sovereign power of the States would, most generally, be restrained in their accustomed power of legislation, over the subject matter of such laws, for in every case, each would be obliged to seek the assent of the other, to make valid any repeal or amendments. Such consequences ought therefore only to flow from clear expressions, and  [*211]  unequivocal indications of intention. Now when we are able distinctly to ascertain, that no motive could exist for a compact producing such results, and that the whole object which each State had in view, was effectually brought about without supposing such a compact, by a separate course of legislation, unfettered by any State agreement, there is no ground left for the inference of an intention to make an agreement. With these views, let us ascertain whether those clauses, which are considered as compacts, are not as effectually secured to the States without, as with a compact, and by the separate laws which they have enacted.
2, 3, 5. The charters declare that the river and canals shall be highways. The object of this provision was effectually established by the creation of a charter to the company [**367]  in each State, and could never thereafter be violated, either by the company, or by the company and one of the States combined, or by both States acting together, without the consent of the company, or by either State acting separately, and alone. The company could not violate it, because such a course would violate her charter. Neither State acting separately, nor both acting together, could violate it, because it would be in breach of their respective grants to the company; nor could one of the States, acting with the assent of the company, repeal this provision of the charter, because it would be in direct violation of the charter granted by the other to the company, and would work a forfeiture of the grant in that State; and such a consequence, from the very character of the work, would utterly destroy the value of the subsisting charter; and would just as effectually guard one of the States, against such an injurious combination between the other State and the company, as any compact could possibly do. The same course of reasoning applies to the prohibition on each State, to impose other tolls, and to the clause exempting all produce from any tax other than what is imposed on [**368]  the like produce, by the State where it shall be sold or shipped.
 [*212]  4. No deduction favorable to the idea of a compact, can justifiably be drawn from that clause, in each charter, which demands concurrent legislation, in all laws passed to prevent the evasion of the revenue laws of the respective States. Each State agrees with the company, that it will pass no such law by force of its own legislation, but that it shall at all times, be contingent upon the concurrence of the other. This is the contract with the company, for its security. And can it be doubted but that she has a perfect capacity to make such a contract, and that she never could violate it, if there was no compact?
A fact in the history of these States will be adverted to, for the purpose of showing the entire improbability, that in the grants to this company, any compact was ever contemplated by the States to be made with each other. At the very sessions of the legislatures of Maryland and Virginia, at which these charters were passed, commissioners of these States were holding their sessions at Mount Vernon, negotiating a compact in relation to the navigation of this river. It was concluded in [**369]  March, 1785, and in March, 1786, it was formally ratified as an irrevocable compact between the two States. Two of the articles are, that the river should forever be a highway for the commerce of the two States, and that all laws creating any obstructions, in, or to, the navigation of the river, were prohibited to each State, without the consent of the other. No clause in it, is found having relation to the Potomac Company, or to any previous compact having ever existed between them in relation to this subject, although they were engaged in making agreements in relation to the very subject to which the Potomac Company applied. If the charters were compacts, it is astonishing they should not have been adverted to in any way; and if they were compacts, it is not to be credited, that they would in the short space of three months, have again negotiated about the subject of making the river a highway, and should have shortly after ratified that compact, when they had but just previously made one in relation to the very  [*213]  subject. The truth is, the States never dreamed that in chartering the Potomac Company, they had made any compact. This idea has been a modern discovery [**370]  by the appellants.
This is clearly proved by their practice. Emendation after emendation has been made by the respective States, in the charter of this company, in great and important particulars, without asking the consent of the other. Is it probable this would have been done, had the assemblies of the States, or the company, believed, or thought, that any agreement had been made between the States, in relation to the subject?
2. Has any compact been formed between the United States, the States of Virginia and Maryland, and the Potomac Company? This compact between the States is supposed to grow out of the following provisions.
1. The extra-territorial character of the legislation.
2. Its dependent character.
3. That the canal shall be a highway, &c.
4. That water rights are reserved to the respective States.
5. That each State has reserved the right to make a lateral canal in the District of Columbia.
1. The extra-territorial character of the laws. This can have no bearing on the question. Virginia could not legislate for Maryland or its territory, and certainly did not mean to do so, even with the consent of Maryland. She must have contemplated [**371]  the entire re-enactment of her law in Maryland, to give it efficacy, and her wishes, in this respect, were carried into effect. It was foreseen, that the object to be created by her law, might at one time occupy her own territory, and again the territory of her neighbor, and would lie along the borders of each, hence this law assumed this character. She too, passed the first law, and it properly assumed the shape of one perfect and entire grant, as a fundamental law for the company, which, when by a re-enactment in the several States, it became a valid  [*214]  law, all might appeal to it where it could be seen at one view, instead of being obliged to look for disjointed fragments of the grant, in the statute books of four States.
2. The dependent character of the laws chartering the Canal Company. Most of the reasons urged for the shape which the Potomac charter assumed, in this respect, will apply to the one now under consideration. But in addition to the fact of the canal running into both States, and so requiring legislation on the part of Maryland, to give full efficacy to all the objects and views of Virginia, neither Virginia, Maryland, nor the  [**372]  United States, could have acted in this matter for their own peculiar territories, without obtaining the assent of the other. Their anterior history shows, they had lost all absolute powers of legislation in relation to the river, and could only again resume them, with the consent of the other. A reference to the compact between Virginia and Maryland, agreed upon in 1785, and finally settled in 1786, will show that it had been stipulated, that the river was forever to be a common highway for the citizens of those States, that neither State could obstruct, in any manner its navigation, and that all laws to be enacted by either, upon this subject, were to be invalid, unless assented to by the other. This ancient compact, satisfactorily accounts for Virginia demanding the assent of the two other powers, even if her law had been entirely in its form extra-territorial. For she was enacting a law, the consequence of which, in abstracting so large a quantity of water from the bed of the river, might in dry, nay in ordinary seasons, have had a tendency, by rendering the river less navigable, to have materially interfered with its value, as a public highway for the commerce of [**373]  the two States, and interfered with the spirit of that agreement, which prohibited either State from obstructing the navigation of the river. The same considerations which induced the demand of the assent of Maryland, occasioned the same requisition on the United States, and the Potomac Company. The former had, by the session of the District, succeeded to all the rights of Maryland on the left  [*215]  bank of the river, so far as the same was within her territory, whether those rights grew out of the territorial sovereignty of Maryland, or by treaties, or compacts with other States: and the Potomac Company's assent was also necessary to be asked, before the Virginia law could be operative, for the grant to her gave her rights over the river, and preferences in its navigation, which the new law materially interfered with. The demand of this "assent" on the part of Virginia, is then put upon the sound and proper principles, when it is placed on the combined facts, that the canal might be extra-territorial, and that consent to any legislation was a direct compliance with anterior stipulations; Maryland and the United States yield their consent.  [**374]  The form in which this has been done, has been seized upon by the solicitors for the appellant, as indicating a contract by appropriate terms. Maryland spreads on her statute book, the whole Virginia charter, and then declares that it is "accepted, ratified, and confirmed." The United States refer to the act, and say "it is ratified and confirmed so far as to enable the company to make their canal in the District." Now if it has been shown, that Virginia, by her proposition never meant to make the offer of a contract, but merely to ask consent, as she was bound to do, to give efficacy to her law; then it is immaterial what were the intentions of Maryland, and the United States; they could not by any terms, make that a contract, which was never, by the State offering, intended to be such. There must, in every contract, be an aggregatio mentium--both must agree to contract, or there can be no contract; and here I might permit this branch of the subject to rest; but neither Maryland nor the United States believed they were entering into any compact, instead of re-enacting the whole Virginia law, section by section, and causing it to appear [**375]  as an ordinary statute, as was done by the States in the organization of the Potomac Company, they ratify, confirm and accept the Virginia law, as their law. A difference is only created in the mode of legislation, none in its consequences. It is  [*216]  still a Maryland law; and as far as the United States and Virginia, or the Potomac Company were concerned, was liable like all her other statutes, to repeal, or modification, until the grant proposed to be made, had actually sprung into a contract, by the organization and acceptance of the company proposed to be created.
3. That the canal to be constructed shall be a common highway, and no other toll shall be imposed, &c. This branch of the subject has been fully examined, when inquiring into the character of the grant to the Potomac Company, and having shown that it constituted no compact, no further observation need be made in relation to it.
And 5. That water rights are reserved to the respective States for the canal, both in the States of Maryland, Virginia, and the District of Columbia. These reservations are so clearly restrictive of the general grant to the company, and a maintenance [**376]  of the power of each State over the subject matter of the grant, that it is difficult to perceive how a compact is created; they are but conditions annexed to the grant, which run with it. Liberties reserved out of the grant, which the grantor could not defeat, nor could either State; for such attempted defeat would work a forfeiture of the grant, and neither State could do any act, or exercise any power, which would annul an actually vested grant. We have heretofore seen, that every judicial tribunal is impelled by the highest considerations, not to make a compact of acts which are entirely susceptible of accomplishment without, nor to call in the aid of a compact, unless there is (if I may be permitted to use the phrase,) a "dignus vindice nodus." The right of the States to tap this canal, any and every where, according to the charter, will forever exist without a compact, in virtue of the mere grant. For, let us suppose that one State attempts to interfere, to prevent the other from making a lateral canal, is not the whole charter forfeited in such other State? Certainly; for it is the condition of the grant, that this liberty shall exist, and the very fact that a forfeiture [**377]  would thus  [*217]  take place, secures the observance of this branch of the charter. But a State could not thus act, for it would be a violation of the grant to the company: she adopts and sanctions her grant, seeing and knowing all the conditions and reservations attached to it, and by thus sanctioning it, all the conditions are adopted, and the company could hold such State to a strict compliance with them.
Instead of there being any just foundation for the supposition of a compact, the inferences are all the other way.
These States were never known to leave their compacts, to inference from equivocal acts, but frame them with the precision which all governments do, when they enter into solemn treaties or compacts with each other. Is such the habit of the United States? Look at her compact with Georgia for the cession of her western lands. Look at all her compacts with the new States, when admitted into the Union, in relation to the public domain, within the limits of such new State. Every thing is framed with certainty and precision, and the only doubt which could possibly arise would be, not whether a contract existed, but perhaps on the construction of the contract.  [**378]  What has been the course of Maryland and Virginia? The only instance in which they ever framed a compact, we find that it was regularly negotiated by commissioners, and formally sanctioned by legislative enactments. It is not intended to be asserted, that these governments might not have made a pact, by a less solemn mode of proceeding; but their practice is resorted to, to rebut the inference of a contract in this case.
Their legislation too, in this particular instance, one would suppose, was guarded with some caution, for the very purpose of avoiding the possibility, that a compact should be supposed to exist. If Virginia had supposed she was about entering into a contract with Maryland, she would have contended herself with a simple, unqualified, demand of assent, which as the legislature of the nation, Congress was empowered by the constitution to give. But she evidently  [*218]  never looked to this kind of assent. She says expressly, "I only want your assent in virtue of your authority to legislate over the District." Virginia looked to the local and peculiar powers of Congress, as a mere territorial legislature, and not to her great constitutional [**379]  powers, to overlook and guard agreements made by the sovereign States of the Union, with each other. If such was not the object of the provision, what was expected to be obtained by it? Why thus limit her assent? Her assent in the form in which it was asked, was indispensably necessary, as we have seen, not only to gratify her objects in granting the charter, but in the fulfilment of her obligations, and it was not necessary to go beyond this, as she contemplated no compact, to which her general constitutional power of assent was necessary, thereby leaving nothing to inference, but clearly demonstrating that she proposed nothing else, than separate legislation on the part of each government; making the offered grant dependent only on similar grants, by other powers. But it is said by the appellants' solicitors, ex cathedra, that this peculiar phraseology of the Virginia law, grew out of a desire on the part of that State, to exclude the conclusion, that by asking the consent of Congress in general terms, she would admit the powers of that body, constitutionally to legislate on subjects of internal improvement. If this were indeed her intention, there must have been an extraordinary [**380]  portion of metaphysical subtlety engaged in the structure of her law; for who could ever dream, that a State in asking the assent of Congress to a compact between States, by the most distant implication, admitted the existence of power in Congress, to legislate over the subject matter of the compact? But the ascription of such intention to her, does not in the least degree, prove, it was the desire of Virginia to have the consent of Congress to a compact, but she asks it, that by virtue of legislation on the part of Congress, the canal might be extended through the District, by a similar grant to the same company, and that thereby the objects of her grant might be effectuated.
 [*219]  Again, is no inference to to be drawn against the idea of a compact, from the fact, that no visitorial power has been created over this corporation? Is it to be conceived that sovereigns entering into a contract, to give birth to a perpetual corporation, would have provided no common tribunal to guard the sanctity of its grant; or who might be enabled, when the corporation was transcending its limits, or from mis-user or non-user, had failed to gratify the objects of those [**381]  who gave it life, to restore to them the repossession of their imparted sovereignty? Yet, here is a corporation without a visitor. They could not have left this matter to future stipulation; and it is unreasonable to suppose, that so grave and important a matter, had escaped the observation of the contracting parties. There being no provision on this subject, it is not unfair to conclude, that the States never thought of a compact, but looking solely to their acts, as separate grants of independent sovereignties, its legal supervision was supposed to be where that of every other corporation is, in the courts of the State creating it.
But who is it that complains of this violation of compact? If there be a compact, it must be admitted that it is with parties always vigilant of their rights, and ever ready to maintain them. Has the history of the country furnished us with any evidence of remonstrances on the part of Virginia, or the United States, of an infraction of her contract by Maryland? Not a murmur has been heard; on the contrary, the Rail Road Company have grants, from both Virginia, and the United States. Is no deduction to be made from this, of what [**382]  were the intentions of the governments? Is not the inference satisfactory, that they never supposed any compact had been made to be violated, and that Maryland had done nothing, except what she had a right to do.
Having thus shown, that the Chesapeake and Ohio Canal Company had no derivative rights, which over-reached the Ohio Rail Road Company, acquired from the Potomac  [*220]  Company, and that the Rail Road Company has in the adoption of her route, done nothing which could interfere with the rights of that company if it were yet in being, and consequently with the right of the Chesapeake and Ohio Canal Company derived by assignment from it.
Having shown, that the Chesapeake and Ohio Canal Company could only date its charter from the 23d May, 1828, when Congress complied with the provisions and conditions upon which the States had made their charter legislation to depend, and that it must date its incorporation from the day when the subscriptions of the corporations of the District were confirmed by Congress, both of which periods were subsequent to the charter of the rail road, and its adoption of a route.
Having shown, that the  [**383]  Rail Road Company could not be over-reached by any supposed relation or abeyance of the rights of the Canal Company, and that there existed nothing to prevent the State of Maryland, at any period anterior to the vesting of any rights under her offer of a grant to the Canal Company, from either repealing it in toto, or modifying it, whether its charter be considered either as the offering of Maryland law, or growing out of her concurrent legislation with other States.
Having shown, that the State of Maryland has restricted the Canal Company in her choice of her route, and fixed the route of the Rail Road Company therein, that the law is constitutional, and gives the latter company a priority.
And finally, having shown that there exists no compact between Maryland and Virginia, in relation to the Potomac Company, or between the United States, Virginia, Maryland, and the Potomac Company, in the creation of the Canal Company, which could prevent the legislation of Maryland, or interfere with the rights of the Rail Road Company, acquired under such legislation.
I shall proceed in conclusion, to make some observations [**384]  on the comparative equities of the respective parties.
 [*221]  It is objected against the equity of the complainants, that they hastily fastened themselves upon their route on the left bank of the Potomac, during a period of time when the Canal Company was unable, from a want of organization, to select that route, and their conduct in this respect, has been assimilated to one who takes advantage of the inability, or minority of a feme covert or infant, by seizing upon, and appropriating their property; and it is emphatically asked, whether equity in such a case would not interfere?
But it is not perceived, that this haste emanated from a desire to oust the canal of its rights or privileges, but to appropriate that which she believed she had a right to occupy; and if she had the right to occupy it, it would be difficult to impute to it, the want of equity in its proceedings, in endeavoring to gain possession of the right, whatever knowledge she might have of the movements of her antagonist. But let us trace the history of this matter a little farther, and its developments will show the futility of the argument. On the 7th December, 1826, General Bernard had reported [**385]  to Congress, that the proposed canal would cost 22,000,000 of dollars. Maryland, at the session of its legislature of that year, had expressed her doubts, whether the canal would ever go into operation. Maryland had made her subscription to depend on the subscription by Congress, of a million of dollars, and it must be admitted that when the magnitude of its cost was taken into consideration, together with the uncertainty that Congress would ever give her aid, that the circumstances which surrounded the proposed corporation, were such as to make the most sanguine doubt of its success. In this state of things, the project of a rail road was started, as one the most likely to accomplish the object in view; and the history of all the legislation in relation to it, as well as all its proceedings from its organization, manifest that there was no tardiness or delay at any time. The same expedition existed in the commencement of the undertaking, as at the period when the conduct of the company is considered so objectionable. A brief  [*222]  reference to these laws and proceedings, will show the activity of all concerned, and at a period too, when that company could [**386]  have anticipated no collision with the Canal Company. On the 28th February, 1827, the rail road was incorporated by Maryland. On the 8th March, 1827, it was incorporated by Virginia. On the 31st March, 1827, the whole amount of stock was subscribed. On the 23d April, 1827, the company was organized. On the 20th June, 1827, engineers commenced their surveys to the Ohio from Baltimore. On the 5th April, 1828, the engineers report the route by the Potomac. On the 5th May, the board of engineers adopt the above report. On the 9th May, 1828, advice of counsel is asked, as to the mode of acquiring title to the adopted route. On the 12th May, 1828, the board of engineers were directed to proceed on the adopted route, preparatory to construction; and on the 14th May, 1828, agents were despatched to obtain title to the adopted route.
Thus, we perceive that this company moved with celerity from the very beginning. Even at a period of time when no one would have dreamed of any collision, only ten days was suffered to elapse after the passage of the Maryland charter, before one was also procured from Virginia, and in less than six weeks thereafter, notices had [**387]  been given of the meetings of commissioners to take stock. The stock had been subscribed, and the company duly organized. No greater expedition was used afterwards than before. If there had been any alteration in the conduct of the company, if from being dilatory, it had become active and energetic, there would have been greater force in the argument. But where its character has been marked with energy and dispatch throughout, it would be difficult to impute that dispatch at any given period to inequitable motives, when, at one period at least, it would have been impossible to ascribe such considerations to the same actions.
But this conduct of the Rail Road Company is susceptible of other views, which make the course they pursued entirely justifiable, On the 3d of March, 1828, Maryland  [*223]  had subscribed $ 500,000 to the company, on the condition that she would go to the Potomac--or in other words, the State, as we have seen, not only gave her liberty to take that course, but invited it by the strongest considerations, and having thus manifested her wishes, and conditionally fixed her route, could there be a want of equity in pursuing that course, and appropriating [**388]  it to herself? Her creator, and that of the Canal Company, the fountain of law and justice within the territories of Maryland, its legislature, had invited it to this course, and in obeying so high a manifestation of the public will, the charge of inequity against her, would seem to be entirely destitute of any just foundation.
But let us look at the picture on the other side, and we shall find that imputations of a want of equity are made upon much more solid foundations. While the charter of the Canal Company was yet in fieri, its stock, as we have seen, not subscribed for within its charter, and of course its route not designated, the State of Maryland, by a supplement to the very law, subscribing $ 500,000 to the Canal Company, subscribed the same sum to the Rail Road Company, on condition that she went to the Potomac river, and through the counties of Washington, Frederick and Alleghany. Notwithstanding this appropriation of the Potomac route by the legislature of Maryland to the Rail Road Company, the Canal Company take the subscription of Maryland, and still insist upon having the very route, thus otherwise appropriated,  [**389]  under the supplement of the law, which gives her the money. Had the Canal Company acted with perfect good faith to the State of Maryland, after taking her money, she ought to have considered herself, whatever were her absolute rights, as having waived her right to take that course which Maryland had appropriated to the Rail Road Company. It is true, Maryland had in fact only assumed the character of a stockholder in both these companies; but it is impossible to lose sight of the idea, that she never looked to her own emoluments as a stockholder, in  [*224]  making these subscriptions, but acted the part of a generous patron to those works, both of which she was, no doubt, anxious to see accomplished, and that for this purpose she generously and liberally advanced the public funds. Was it just and equitable therefore, in the Canal Company accepting this bounty, thus munificently bestowed, with full notice of the wishes and views of her creator and benefactor, to frustrate and defeat the only object the State had in view in extending her aid to the rival company, by declaring that she would have the very route, upon the selection of which alone the State had [**390]  declared, she would bestow her bounty on the Rail Road Company? Her course was too plain to admit of hesitation. She ought either to have refunded the money, or have abandoned the route.
Before closing this opinion, I beg leave to subjoin a few remarks in relation to the derivative rights of this company, which were neglected to be made under the appropriate head.
If the Canal Company, as the assignee of the Potomac Company, still possesses the power of condemnation, it is not a power in aid of the Chesapeake and Ohio Canal, but in furtherance of the objects of the Potomac Company. If land is condemned under her powers, derived as assignee, these lands must be applied to the objects designed by the charter of the Potomac Company, and not to the objects designed by the Canal Company. In other words, she has no right to condemn under one charter, for the benefit of the other. Now the Canal Company have adopted the left margin of the Potomac for the canal, and can have authority to condemn for such a purpose, under that charter, and for that only. As long as she adheres to her route, her rights of condemnation, under her Potomac charter, are gone.  [**391]  So far from intimating a desire to abandon such route, she is insisting upon it here. It is clear, that all her condemnations must be made under her canal charter, or they cannot subserve her purposes; for she cannot use them for her canal, if they are condemned under the Potomac Company's charter.  [*225]  She presents herself to the court in the attitude of an entire abandonment of the Potomac charter--Why? Because she has adopted the route of one continuous canal from tide to the mouth of Savage river, under her new charter, and so far at least as the left bank of the river is concerned, looks entirely to the new, and not to the old Potomac charter. If she means to exercise rights under the Potomac charter, they must now be in the bed of the river or on the Virginia shore. In this point of view, her rights from the assignment would be of no consequence to her in this controversy.
From all these views, it appears to me, that in point of law and equity, the Rail Road Company is entitled to the route she has selected, and I am therefore for affirming the decree of the Chancellor.
DORSEY, J., also dissented, and delivered the following opinion:  [**392]  
In forming an opinion on the various questions presented for determination, by the argument in this case, I shall endeavor to divest my mind of every impression, which may have been made by the eloquent and forcible appeal, preferred to the patriotism and sympathies of this court, by the appellant, to induce them to urge on the argument of this case against the consent of the appellees, out of its regular order. And this, I am the more easily enabled to do, by finding, on a careful examination of the record, that the harsh and uncharitable remarks made on the conduct of the President and Directors of the Baltimore and Ohio Rail Road Company, according to my view of the subject, are wholly unwarranted by any unprejudiced consideration of the facts in the case; and that the appeal made to stimulate the patriotic energies of the court, to an unwonted expedition, for the avowed purpose of removing the alleged "only obstacle" to the speedy completion of the greatest of national objects, the consolidation and perpetuation of the vital principles of the Union, and  [*226]  the establishment of a connected navigation between the eastern and western waters, cannot be followed by the [**393]  contemplated result; as the counsel for the Canal Company, in his concluding argument, has distinctly announced to us, that this company has not been chartered by Pennsylvania; not having agreed to accept the act of assembly of that State, by reason of the numerous conditions on which it was granted. That under present circumstances, more favorable terms could be obtained by them, is an event, in my estimation, not to be anticipated. So that this magnificent and stupendous enterprise is disrobed of its national character, and consequently, high prerogatives, and sinks into a mere "local" canal, whose extension is limited by the confines of Maryland. I shall also view this case, unprejudiced by the assertion, that the canal being a public highway, its charter should be most liberally and favorably construed; whereas, that of the rail road establishing "a close," "odious," and "enormous monopoly," should be visited with a most rigorous interpretation. Because, I regard a rail road, practically and beneficially, as great a convenience to the community, as any public highway; and those features of monopoly, so much complained of, are the inseparable attributes of that mode [**394]  of internal improvement, deprived of which, it would lose all its value, and could no longer be esteemed as of public utility.
The first inquiry, which I shall examine, is that, most elaborately and ably discussed on both sides: at what time did the rights of the Chesapeake and Ohio Canal Company accrue? Are they to relate to the date of their charter, or to the period at which, by the terms of that charter, they became a body corporate? As to the Rail Road Company, in this respect, there has been no controversy. Whether the accrual of their franchises be carried back to the time of the adoption of their charter, or to the time of their organization under it, is immaterial, as far as this first inquiry is concerned. The time, at which they assumed their corporate charter, were duly organized, and made the location  [*227]  of their rail road, being conceded. With respect to the Chesapeake and Ohio Canal Company, a preliminary question is presented: at what time, agreeably to the provisions of their charter, was the amount of stock subscribed for, requisite to give them a corporate existence? By the 3d section of that law, it is enacted, "that whenever one-fourth, or [**395]  a greater part of the said stock, shall have been subscribed, in the manner aforesaid, then the subscribers, their heirs and assigns, shall be, and are hereby declared to be, incorporated into a company, by the name of the "Chesapeake and Ohio Canal Company." The object of the legislature, in imposing this condition precedent, to my mind is most manifest; they designed that the powers and privileges created by their charter, never should vest, until the number of subscribers was such, as to afford a guaranty, or strong probability of the completion of the work, of which the company were to assume the execution. Nothing but a subscription by bona fide, competent subscribers, could gratify this postulate of the canal charter. If for a proposition, so undeniable, an authority were required, one, of the most conclusive character, may be found, in the case of the Salem Mill Dam Corporation vs. Joseph Ropes, 9 Pick. 187.
One-fourth part of the capital stock of the Chesapeake and Ohio Canal Company, is $ 1,500,000. In November, 1827, the whole amount of subscription, for the canal stock, by competent subscribers, was $ 416,900. In January, 1828, it was $ 562,700.  [**396]  In these estimates are excluded the subscriptions of $ 100,000 by the corporation of the city of Washington; of $ 250,000 by the corporation of Georgetown; and the like sum by the corporation of Alexandria; because, by reference to the charters of those cities, it will be seen, that they were incompetent to make such subscriptions: their powers being all of a strictly limited, municipal character; and by no possibility of construction, could they be made to convey an authority to bind those cities for the amounts which had been subscribed. They  [*228]  could levy money on the property within their respective jurisdictions, only to a very small amount; and such levies, they were enjoined, to apply to defraying the expenditures, incident to the execution of the specially enumerated powers with which they were invested by their charters. The subscriptions of stock, by the corporations of Georgetown, Washington and Alexandria, as before stated, formed therefore, no part of that subscription, which was required by the charter of the Chesapeake and Ohio Canal Company, to give that company a legal entity. And, that such was the admitted fact, anterior to the present [**397]  controversy, is demonstrated by the act of the Congress of the United States, passed May 24th, 1828, entitled "An act to enlarge the powers of the several corporations of the District of Coiumbia, and for other purposes:" by which it is enacted "that the corporation of Washington, the corporation of Georgetown, and the corporation of Alexandria, within the District of Columbia, shall, severally, have full power and authority to subscribe and pay for shares of the stock of the Chesapeake and Ohio Canal Company; and all such subscriptions as shall have been already made, by either of the said corporations, shall, and the same are hereby declared to be valid, and binding on the said corporations respectively." If these corporations, anterior to May, 1828, possessed the power of subscribing for canal stock, why the necessity for an act of Congress expressly creating this power, and declaring valid and binding on the said corporations respectively, subscriptions, by them, antecedently made?
But it is contended, that conceding the invalidity of these subscriptions, prior to the passage of the act of Congress, to constitute the amount of stock, requisite [**398]  to the existence of the contemplated corporation; yet, that by the act of Congress, they were rendered valid, to all intents and purposes, in the same manner, as if this act of Congress had simultaneously passed. There is nothing in the act of Congress itself, in the principles of justice or the analogies  [*229]  of the law, to sustain this position. There are no words, in the act of Congress to favor such a construction. The terms used, are as precise, unequivocal, and comprehensive, for the purpose designed, as language could make them--the subscriptions were to be valid and binding, on the said corporations, respectively; and on them only. Not as is now insisted, to be "valid and binding" to the destruction of rights, legally and intermediately invested in third persons. Retrospective laws, upon every principle of sound interpretation, are to be construed strictly, and not extended beyond their obvious, natural import. Upon what grounds, then, can it be seriously urged, that the meaning of Congress, in this case, is, not only to be carried to the fullest extent, which the import of the terms used will bear; but that you are to add to the enacting clause,  [**399]  without one word or circumstance indicating such a legislative design, "that those subscriptions should be as valid and binding upon all persons whatsoever, as if those corporations, at the time of subscribing, possessed the power then given them by this act of Congress?" To have passed such a law, to operate in a contest like the present, was not within the powers of Congress, had they designed to exercise such a right. Even though it should be conceded that they could have made the subscriptions, from their date, valid and binding on the State of Maryland, which I deny; yet they could not have made them so, on the Baltimore and Ohio Rail Road Company, whose intermediate rights were lawfully acquired from the State of Maryland. Such an attempt would, not only have been inconsistent with the plainest dictates of justice, but subversive of the fundamental principles of civil government; and in spirit, a violation of that principle of the constitution, which forbids the passage of laws impairing the obligation of contracts. To impute to Congress, such an outrage, from an act of legislation, like that now before us, would be, to say the least of it, so uncourteous [**400]  an extension of judicial  [*230]  power, that no court of judicature entertaining a just respect for themselves, would ever sanction it.
That a statute, affecting a corporation in esse, is only operative thereon from the time of its acceptance, is abundantly shown, by the authorities cited on the part of the appellees; if authorities for such a proposition could be deemed necessary. It is an assumption which needs no authorities, that the organization of a company under such a law, as that constituting the Chesapeake and Ohio Canal Company, is per se its acceptance. If then the rights of this corporation accrue at the instant they accept their charter, or in other words become a corporate body, it follows that the accrual of their rights did not occur prior to the 24th of May, 1828, and that, as far as mere priority is concerned, they must yield precedence to the Rail Road Company. But to evade the force of this sound, natural, and common sense inference; it is contended that as soon as the Chesapeake and Ohio Canal Company springs into being, they are invested with all the rights and powers designed to be conferred on them, not from the date of their actual [**401]  existence and investiture, but from the date of their charter. And this doctrine has been insisted on, upon two grounds; on one or the other of which it is said to be clearly sustainable. First, it is contended that from the nature of the franchises, about to be erected, they must be regarded from the date of the charter, as "rights sui generis, with a latent and indefeasible capacity of future attachment," &c. To sustain the legal recognition of this class of "rights," unintelligible, to minds not perverted by the most subtle refinements of legal technicalities, it was to have been expected, that at least some adjudication would have been adduced. In this expectation however, I have been disappointed. And being, in accordance with the spirit of the times, opposed to innovations on the common law not resting on reason and justice, but the offspring of abstruse refinement and incomprehensible subtilties, I cannot prevail on myself, without stronger reasons  [*231]  than exist for it in the present case, to admit the existence of this novel species of rights.
The ground which was next relied on in support of the principle of relation, was, that from the date of the charter [**402]  of the Chesapeake and Ohio Canal Company, all the rights with which it was intended to invest them, passed out of the States of Maryland and Virginia, and remained in abeyance, until the company was formed in whom they might legally vest: and that among these rights, passed that of eminent domain, over the whole section of country, watered by the Potomac and its tributaries, above tide water: comprehending perhaps a territory of two or three hundred thousand square miles. That the grant by Maryland, therefore, of any portion of this right to the Rail Road Company, was inoperative and void--she possessing no such power, could not communicate it to others. To support this doctrine, so astounding in its enunciation, nothing like an express adjudication has been produced; but it has been argued so much at length, and with so much earnestness on both sides, that it might from that circumstance, be well imagined to be a question of great difficulty and doubt, on the decision of which the whole merits of the controversy depended. It was attempted to be sustained upon principles of reason and justice, of policy, of intention in the legislature, of dedication to pious [**403]  and public uses, and as being clearly within the principle of abeyance. This state of abeyance, it did appear to me when the idea was started, in the argument, and subsequent reflection has confirmed my first impressions, was so wholly irrelevant and inapplicable to the circumstances of this case, that I regarded the invocation of its aid, as the last effort of extreme ingenuity, contending with difficulties insurmountable, by which it was threatened to be overwhelmed. This "absurd and unintelligible fiction," as it is denominated by one of the most profoundly learned and able jurists, that has ever written upon the laws of England, is always odious and never tolerated, but from necessity. From necessity, because, without its admission  [*232]  the grant must fail to take effect; upon no other legal principles could it be sustained: without it, the intention of the grantor would be wholly defeated. 4 Kent Com. 252. Is this the condition of the grant made to the Chesapeake and Ohio Canal Company. Can no company be organized, under the law, unless you adopt this wild notion of abeyance? Might not every letter, word and object of the legislature have been gratified, and [**404]  yet the right of eminent domain have remained in the State of Maryland until the Chesapeake and Ohio Canal Company were in being, and competent to exert it. If so, and it is impossible to deny it, the essential ingredient, that which is inseparable from the doctrine of abeyance, the necessity of resorting to it, as the only means of effectuating the grant, is wanting; and the principle is therefore wholly inapplicable to the case. This necessity does not depend on subsequent contingencies; it must exist at the instant the grant is made, or it can never exist at all. If the States of Maryland and Virginia had, in express terms of present grant, given to the Chesapeake and Ohio Canal Company the power of eminent domain, as now claimed; thus evincing a determination immediately to divest themselves of that right, there might have been some apology, for resorting to this far-fetched absurdity called abeyance. Because, the States having in express terms, parted with this right, and the Chesapeake and Ohio Canal Company, not being competent to take it, there is some pretext for saying, according to the fictions of abeyance, that it passed into the clouds, there to [**405]  remain until the Chesapeake and Ohio Canal Company should spring into life, when it would descend upon them. But have Maryland and Virginia attempted the commission of such an act of rashness and folly, conceding to them the right to do so? which however, I deny. Nothing bearing to it the most remote resemblance is to be found in their law. The 15th section, is the only one to be found on the subject. That simply declares that, "whereas it is necessary for the making of the  [*233]  said canal, locks, dams, ponds, feeders and other works, that provision should be made for condemning a quantity of land for the purpose; "be it enacted, that it shall and may be lawful for the said president and directors, or a majority of them, to agree with the owners of any land, through which the said canal is intended to pass, for the purchase or use and occupation thereof; and in case of disagreement, or in case the owner thereof shall be a feme-covert, under age, non compos, or out of the State or county, on application to a justice of the peace of the county in which such land shall lie, &c. he shall issue his warrant to the sheriff, to summon a jury to value such lands,  [**406]  and upon payment of the valuation, the Canal Company are to be invested with the title thereto." It is the intention of the legislature, to be collected from what they have said, that must control the construction of their act; so far as they have disclosed an intention to bind themselves, or part with their privileges, and no farther, can we hold them bound. There is nothing in the language of the act of assembly; or the subject matter to which it applies; or the nature of the corporation or franchises, which it was designed to create, tending to give a momentary countenance to the intent imputed to the general assembly, or to the interpolation of this extraordinary principle of abeyance. On the contrary, every clause and sentence of this act of assembly is in accordance with the common sense, sound legal axiom of the law, that those rights which pass not to the grantees, remain in the grantors. What motive could have induced the legislature, in this case, to have acted in reference to a different rule? If their object were, as no doubt it was, to expedite the formation of the Canal Company, would it have been, with most certainty effected, by the measures imputed to them?  [**407]  Would any individual have more willingly subscribed for stock, because the rights, which he thereby acquired, passed to him, not by immediate transition from the State, but in a way, which none but minds strongly imbued with legal subtleties, not to say absurdities, could  [*234]  comprehend? Would it not have had a tendency to delay the filling of the subscription list, when those who were peculiarly interested in the subject, saw there was no motive for haste, that they might await their own convenience; as all power of revoking or impairing the grant, or creating a rival enterprise, had passed from the hands of the State. There was then no motive for inconvenient dispatch; they might with safety wait, and speculate on events. Had the legislature designed to seal up their powers, in this incomprehensible mysterious abeyance, would they not have limited some period, at the expiration of which, they should be restored to them, in case the contemplated corporation should never be in a capacity to exert them? It cannot be said, that their omission to do so was the result of an entire confidence, that such a contingency could not occur. The reverse is the truth, as is demonstrated [**408]  by their legislating for such an emergency, and declaring, that if the requisite amount of stock were not subscribed, the subscribers should be released from their engagements: thus sedulously providing for the protection of the interests of all parties concerned, but of themselves and their constituents. Is it fair to impute to our public functionaries such unpardonable negligence, or intentional violation of their duties? Should we not in candor presume, that the legislature never intended to divest themselves, to our injury, of those powers which were confided to them for our benefit, until that corporation came into esse, by which they were to be beneficially exercised--that until then, their sovereign power of legislation remained unimpaired, and needed no statutory reservation to preserve it? If such were the conceptions and designs of the legislature, and the language they have used, as it is, be in accordance with them, is there any stern, unbending rule of law, by which, in a case like the present, the manifest intention is to be frustrated, and sovereignty disrobed of its characteristic and noblest attribute, by the seal of abeyance being stamped on its powers? If in [**409]  the constitutional code of laws of any civilized nation, the application  [*235]  of such a principle be tolerated, it should not find its way into the free and enlightened institutions of this country, by judicial legislation. From its introduction through any other source we have nothing to fear.
The right of eminent domain is only vested in the State, and can only be exercised by it, for the promotion of the public welfare. No transfer, or disposition can be made of it, for any other purpose. It is a power which is of the essence of sovereign government: and must always remain in a state, capable of being exerted for the public good. Such is the inherent, inviolable condition of its tenure. The State can pass no law, either utterly annulling the right, or suspending its exertion for an indefinite period, which could in anywise control subsequent legislation; until the right vests elsewhere, to be used for the public benefit, it always remains in the State. And even where the power to exercise it, is confided to others, they are not to be regarded in the character of its owners or possessors, but the instruments or agents, through whom its execution is effected by the State.  [**410]  Upon these grounds, the right depends, according to the fundamental principles of our government; and the interests of the community are deeply concerned in their inviolate preservation. In conformity thereto, should all legislative enactments on the subject, be presumed to have been made, unless such presumption be conclusively rebutted, by the terms of the laws themselves. The provisions of the charter of the Canal Company are in strict unison with such a construction; and are only made to violate it by an unnatural, wild, and strained interpretation; or rather by ingrafting on the act, an entirely new provision, unnecessary, impolitic, and improper in its operation, and which never entered into the imagination of the general assembly. And for what purpose are we urged to do this? That we may give to the Canal Company powers and priorities with which the law has not invested them; and convict a subsequent legislature of a breach of faith, and of duty, and of a violation of the constitution of the United  [*236]  States, which they had sworn to support. The rail road charter does impair, or designs to impair, the rights secured to the Canal Company, if any of the [**411]  positions of the appellants be sustained, except that which relates to the true construction of the rail road charter itself. The rule is and should be, omnia rite acta fuisse praesumuntur." It applies, more strongly, to the acts of co-ordinate branches of the government, than to those of courts of judicature. The power of courts of justice, of declaring an act of the legislature unconstitutional, in this State is drawn from necessity: and whilst I admit its existence, I am firm in the conviction, that it should never be exercised, but in a clear case, where the usurpation of authority stands free from doubt. If this high and delicate power be lightly or wantonly exerted, or in any other than cases where the mind harbors no reasonable doubts, as to the infringement of constitutional principles, it will lead to consequences, more ruinous to the public interests, than would attend its non-existence.
But where the necessity of introducing into this case, the magical term "abeyance?" Its introduction, in construing the act of the legislature relative to the Canal Company, serves but to perplex and confound what is otherwise simple and unambiguous. The cases, referred to in support [**412]  of it, are those of present grant, not where a mere mode of creating a franchise or right, is provided for by law. They are cases where the grant must operate in presenti or never. Here there is no absolute, or immediate grant of a franchise, which must take effect instanter or never: nor is it a grant on a condition precedent or subsequent, by which irrevocable rights instantly pass from the grantors. But it is, as it were the mere offer of a bargain, a naked authority, which, until accepted in the mode prescribed, is revocable at the discretion of the party from whom it emanates. This, surely, would be its condition, if this charter were the act of a private individual. Can a reason be assigned, why a different construction should be placed upon it, when regarded as the act of a legislative body? What is a statute, or order  [*237]  of assembly, but the mere expression of the will of the legislature?
The adoption of the notion of abeyance makes the legislature to do, what is inconsistent with their duty, and irreconcilable with the attributes of sovereign legislative power: and imposes on them this absurdity, without motive or object; whereas their duty [**413]  to their constituents, the interests of the community, and all sound legislative policy should have prompted them to a course of conduct, the reverse of that which is ascribed to them. They would be binding themselves for a period indefinite, when no equivalent obligation was imposed on the party with whom they designed ultimately to form a contract. No time was limited for the organization of the Chesapeake and Ohio Canal Company; none prescribed, when the important prerogative of legislating for the public good, according to the exigencies of the times, and the improved lights of science, might descend from the clouds, and light again on the sovereign legislature of the State. No human foresight could with certainty predict such a reinvestment of power. It could not be effected by limitations or length of time, until there be a party in esse, whose right might be impaired by such a positive or presumptive bar. If, therefore, a thousand years were to elapse, before any company were formed under the canal charter, the State, though enjoying none of the contemplated advantages, which formed the consideration for the cession of their rights, would still be hung up in this state [**414]  of abeyance. It could not in any part of the territory, watered by the Potomac and its tributaries, open a public highway; authorize the construction of a turnpike road; condemn, as is usual, the site of a town, or sanction any other internal improvement; not even grant to the United States or to itself, the land necessary to erect a fort or arsenal, no matter how urgent a necessity therefor, may have been produced by a state of war. Can a court of justice, unless impelled by a force of language which leaves no alternative, which admits of no other rational  [*238]  construction, be induced for a moment to countenance such a theory. According to my view of the subject, without violating the plainest principles of reason, justice, policy, the express words of the law, and the manifest intent of its framers, it is impossible to do so. What motive could have prompted the legislature to such a suicidal act? May not every rational design, which can be imputed to them, be as effectually accomplished by their retaining the power, till it vested elsewhere in a capacity to be exerted.
And this state of abeyance, if once endured, must be interminable, unless, per chance, a Chesapeake  [**415]   and Ohio Canal Company should spring into existence: and consequently presents this strange incongruity; if no body corporate comes into being, in whom, by the terms of the grant, they can vest, the rights of the State are irrecoverably gone; by no possibility can they be re-acquired; but, if those rights vest in the grantees, there is some hope for the State. It may be restored to its lost inheritance, which it sold for less than a pot of porridge, by purchase, by forfeiture, or by the Chesapeake and Ohio Canal Company ceasing to have further occasion for its use. Such an absurdity has no analogy in the law to sustain it: no reason, resting on expediency or necessity. It was suggested, that such a construction was necessary, in order to protect the Canal Company from the effects of conflicting, unjust, and inconsistent legislation. Has the constitution made any provision against such acts? If not, can a court of justice do so? Can they mould laws and constitutions as suits their pleasure? And for what purpose are they now asked to do so? To prevent the legislature from exercising their inherent rights, lest according to the court's notions on the subject, they may exert [**416]  them unwisely, unnecessarily, or inconsistently. Of their conduct, in this respect, they are themselves the sole, the exclusive judges. The constitution has imposed on them no such interdict: it is neither our province, nor within our powers to prescribe it. To interpret their acts, or adjudicate on such a presumption, would be an indignity  [*239]  to the legislature, that this court could not permit themselves to offer. Were we to do so, it would be but a consistent extension of the same principle, to determine, that the general assembly having once legislated, their power of future legislation on the same subject, was in abeyance, lest they should act unwisely, unjustly, or inconsistently.
As respects the right of eminent domain, the same power has always been given to the turnpike road companies, that is conferred on the Chesapeake and Ohio Canal Company. Was it ever before suggested, that until the location of those roads were made, the right of eminent domain over the whole section of country in which their location was authorized, had passed out the State; and that no public highway could be laid out through it, until those turnpike roads were definitively located. On [**417]  the contrary, have not the legislature, under such circumstances, been in the constant habit of opening public roads, as if no restriction had been laid on their powers: thus giving a legislative interpretation to their acts, and announcing their intention to be, the reverse of that which it is now insisted to have been.
According to this doctrine of abeyance too, if, immediately after the passage of the canal charter, and the assent to it by the Potomac Company, and before one share of stock had been subscribed, Virginia, Maryland, Congress, and the Potomac Company, had for reasons the most cogent, determined that the charter of the Chesapeake and Ohio Canal Company should be annulled; and in pursuance of such determination, the Potomac Company had revoked their assent, and Maryland, Virginia, and Congress, had repealed their laws, yet it was competent to have proceeded and organized the Chesapeake and Ohio Canal Company; and when organized, they would have been clothed with the same powers and immunities, as if those repeals and revocation had never taken place: and this without the aid of any constitutional provision. Does this appear to be either [**418]  reasonable or just? is it such an intention as ought to be imputed to the parties to this charter? Unless restrained  [*240]  by some constitutional or fundamental principle of civil government, what one legislature enacts, the same, or its succeeding legislature, may modify or repeal, either in whole or in part. Until the corporate franchise was acquired in the mode pointed out by the canal charter; Congress and the legislatures of Maryland and Virginia, or either of them, as far as their respective interests were concerned, might at discretion have exerted this power. The right appears to me incontrovertible: the only question could have been the expediency of its exercise; and of this the legislature are the uncontrolled, exclusive judges. To restrain the legislative power, in the manner here attempted, is to fetter it with a restriction which no principle of constitutional law, of civil government, of reason, or of public policy, either authorizes or requires. It is essential to our well being and prosperity, as a nation, that they who legislate for our benefit, should be left free to act, as their wisdom, prudence, and sense of justice, may dictate. And that in [**419]  their sphere of action, in providing for the public weal, no restraints should be imposed on their powers, which are not to be found in our constitutional code, or in those fundamental principles which are the basis of all civil society. If, from misrepresentation, or ignorance of facts, or misconception of our rights or interests, they are led into error; they should be permitted to retrace their steps, to correct their mistakes. The existence of such a privilege is of the essence of legislative power: to withhold it would be productive of ruinous consequences. What is there in the charter of the Chesapeake and Ohio Canal Company to make it an exception to this general rule? Considered in its proper light, it is nothing more than the offer of a bargain by three States, which, upon its acceptance, forms the contracting party on one side; the grantors. Until such acceptance, either of those States might revoke or alter its proposals at pleasure. It is in no wise distinguishable from a similar offer made by a private individual in reference to his own domain. And the same right of amendment, modification,  [*241]  or revocation of such offer would exist in the one case, as the [**420]  other. With as much propriety may you apply this doctrine of abeyance, to the common cases of unaccepted contracts between individuals. As if A proposed to B to go to Washington, or pay me £  10, and you shall have my horse, although B make no engagement to do either; yet A's right to his horse is put in abeyance, and he cannot be restored to his right of property, by withdrawing his proposition.
The argument is, "that when the corporation comes into life, the franchise which existed before de jure, then vests de facto, and relates back to the date of the charter, having the same operation as if the Canal Company had then been in existence." If this position can be sustained, there could be no such thing, as seniority in grants of land in Maryland, issued under the same order of the Lord Proprietary, or of the Governor and Council, or of the same act of the General Assembly of Maryland. And if by a subsequent order, a particular manor were granted, and afterwards a part thereof granted under a survey, authorized by the prior orders, the junior grant would have priority over the senior: contrary to the repeated decisions of all the courts in Maryland [**421]  upon that subject. Indeed it would follow, that after the acts of assembly, or orders of the executive council, have, upon the terms and conditions therein specified, authorized the citizens of the United States to acquire title to all, or any of the vacant lands in the State, that those acts of assembly, or the orders of council, could not subsequently be changed or repealed; the rights of the State having been thereby, put in abeyance. And yet such repeals and modifications have uniformly been made, and it never entered into the imagination of man, to question their legality, or to carry back a title, beyond the period at which the grantee acquired an equitable title, by locating his land warrant.
Under our act of assembly, entitled "an act to incorporate certain persons in every Christian church or congregation  [*242]  in this State," every religious denomination may become incorporated, by complying with the prescribed requisitions. By this notion, of relation to the date of the law authorizing an incorporation, all of those corporate bodies come into existence at the same instant of time: there is no such thing as seniority amongst them; although, in point of fact,  [**422]  some of those Christian congregations had been duly incorporated, twenty years before others ever existed, or were known as a religious sect, or denomination of Christians. And if 500 years had intervened, it would not vary the principle. Should the State, for the encouragement of religion, direct its treasurer to divide $ 10,000 on the 1st January, 1833, amongst all the religious societies, incorporated under that act; a christian congregation, conforming to the provisions of the law, fifty years afterwards, might, by this retrospective operation, claim its distribution of that, of which it was never designed to be a participant.
If the Chesapeake and Ohio Canal Company, by this doctrine of abeyance and relation, is, upon its being ushered into life, to be considered as clothed with the rights of the State from the date of its charter; upon the same principle, the proposition is incontrovertible, that they are invested with all the rights and property of the Potomac Company, from the time of their assent to the canal charter: which assent was given, as it was designed to be, soon after the passage of the act of assembly under which it was made. They could no longer collect [**423]  tolls, or do any other act authorized by their charter. Was such the design of the legislature? Could they have intended, to prompt the Potomac Company to such an act of folly, and ruinous injustice to themselves? That all their dearly bought rights and privileges should be suspended; the public deprived of the enjoyment of the canals and locks constructed for their benefit, to gratify an absurd, unnecessary, technical fiction, which in truth, has no application to such a subject. If the States are to be held as having made this wanton, useless sacrifice of their rights, human ingenuity cannot  [*243]  suggest a ground, on which, the Potomac Company can be rescued from a similar fate. Abeyance is equally applicable; if it does not more strongly apply to acts of individuals and corporations, than to those of a sovereign State.
If, then, fifty or a hundred years had elapsed (as it well might and probably would, but for the subscription of $ 1,000,000 obtained from the United States, at a moment the most auspicious,) before the Chesapeake and Ohio Canal Company had been warmed into life, and during that interval, the profits received by the Potomac Company, if [**424]  any they could receive, had been millions; the whole of it would have vested in the Chesapeake and Ohio Canal Company: and no interest would be allowed the Potomac Company on their capital during this period. Would this be justice? Could it have been the intention of the legislature, or the understanding of the Potomac Company, when their assent was given? Had the Canal Company been immediately organized by the terms of their charter, the stockholders in the Potomac Company, at the par, or nominal value of their stock, were to be adopted as stockholders in the Canal Company. In this situation of the parties, the proposed substitution administered justice to both sides; but can it be conceived, that either the legislature or Potomac Company intended, that if the organization of the Canal Company were delayed for a century, and during this period, the profits of the Potomac Company were four times the amount of its stock, yet it all became the property of the Canal Company. Such glaring injustice finds no support in the express words of the law, upon no principle of construction or implication does it receive the slightest sanction. Of the use [**425]  and profits of their stock, the Potomac Company remained in the enjoyment, until they were substituted to an equivalent, by the organization of the Canal Company. So, upon the most extended idea of the transfer of the right of eminent domain, which can be insisted on with the semblance of plausibility, to support  [*244]  it, the State continued in possession of it, until it vested in a being, in esse, competent to exert it for the purpose for which it exists. As was before remarked, the power of eminent domain is the inseparable attribute of sovereignty; and is held as a high and sacred trust, delegated exclusively, and to be exerted only for the public good. It is a right, in its nature unalienable, except to those, who, exercising it in consummation of the designs for which it was granted, are regarded, pro hac vice, as the agents or instruments of government. It cannot be granted to those who are incompetent to exert it: neither can the sovereign power disrobe itself of this, its noblest prerogative, nor place it in abeyance, or in any condition in which it is incapable of being exercised, where the interests of the public demand its exertion. These are implied [**426]  conditions inherent in the nature of the power, and indissolubly attendant on its possession.
By the act of the general assembly of Maryland, passed in 1704, the vestry of every parish in the State, are empowered, upon the same principles that the Canal Company are authorized to exercise a similar right, to condemn two acres of land, for the building of a church or chapel of ease. And by an act passed in 1719, for the encouragement of iron manufacture, any person or persons were authorized, in like manner, to procure the condemnation of sites for forge mills, and iron works, each condemnation to embrace 100 acres of land. If the doctrines of the appellants be sustained, it follows, that, by these acts of assembly, the right of eminent domain over all the lands in the State was put in abeyance, until every suitable site for such a purpose should be improved, which will not be the case, in all probability, for centuries to come. The State, therefore, after the year 1719, had no more power to pass any right of eminent domain to the Chesapeake and Ohio Canal Company, than after the passage of the charter of that company, it could communicate it to the Baltimore and Ohio  [**427]   Rail Road Company. Their argument proves too  [*245]  much; it annihilates their own rights, whilst it destroys those of the rail road; it involves both companies in one common ruin. The same remarks are applicable to the act of assembly passed in 1704, to encourage the building of water mills, by condemning ten acres of land for each site. And, notwithstanding these acts of assembly, that banished to the clouds or the moon, the right of eminent domain, which only returned to earth, as the exigencies under those laws demanded its re-appearance, yet, at every session of the general assembly, from the year 1704, to the present time, that power had been exerted in opening public highways, &c.; and such, the exercise of this power, had produced at various times before the legislature, in court and out of court, controversies of the most important and warmly contested character; yet, wonderful to tell, neither the legislature by whom the laws were enacted, nor the lawyers, nor the judges by whom they were scrutinized and sustained, until the present trial, ever dreamed of the discovery, now made: that all their proceedings were erroneous, being founded on the right of eminent domain,  [**428]  which did not exist in the State, having taken its flight from Maryland in 1704.
The appellants say, it is comparatively unimportant "when and how the company was organized as a body corporate, and acquired a capacity to be fully invested with their corporate franchises; whether in November, 1827, when the required quota of stock was subscribed; or in May, 1828, when the subscriptions of the district corporations were confirmed by Congress;" their rights take date not from that period, but from the day of the passage of the charter of incorporation; and are, to all intents and purposes, the same, as if the corporation had been brought into immediate existence, by the charter itself. This is extending the principle of "relation," in utter disregard of the reasons on which it is founded; and to an extent which is authorized by no previous adjudication. The cases to which it is applicable, as I have always understood the rule; are where  [*246]  clear equitable rights are acquired, which cannot be defeated by him, in whom the legal title remains, but by an act of fraud or injustice; there a junior grant, in conformity to such prior equities, shall exclude or postpone a [**429]  prior intermediate grant. To illustrate the principle, by the case of common occurrence in Maryland: A locates his warrant on Black Acre; returns his certificate; pays his composition money; but omits to consummate his title, by obtaining his patent. B afterwards executes his warrant on the same land; and, having complied with all the requisitions of the land office, receives his grant. A patent subsequently issues to A on his certificate. In contesting their rights, standing alone upon their patents, B has the prior and better title: but the court, looking to the anterior equities of A, regard his patent as coeval therewith; and to prevent fraud or injustice upon the principle of equitable "relation," the prior equity and junior grant have precedence of the junior equity and senior grant. But what equities had the appellants, simply on the passage of their charter? What fraud or injustice, would they have suffered by a repeal of the law, or any such modification of it, as the legislature might have seen fit to adopt? None. No rights, either legal or equitable, were conferred on the appellants, but by the requisite acts done in conformity to the act of assembly. Then their [**430]  equities first arose; and to no more remote period, upon any principle of relation, can they possibly be carried. The appellants seek to apply a new doctrine of "relation," never heretofore recognized, which needs no prior equity to support it: thus dispensing with that which has always heretofore been of the very essence, the fundamental basis, of the rule. And what injustice, inconvenience, and confusion would result from such an innovation, may readily be imagined, by its application to the case before us, under a probable variation of its circumstances, which would not in any wise change the principle. Suppose the Chesapeake and Ohio Canal Company not to be in existence until ten years hence and  [*247]  that during that period, under the faith of their charter, the Rail Road Company had completed their entire enterprise to the banks of the Ohio. What, upon this new and extraordinary doctrine of relation, would be their predicament? Why, the Canal Company, then, for the first moment, coming into being, might locate their works upon the identical ground occupied by the rail road, from Parr's Spring Ridge to the waters of the Ohio, and not allow the  [**431]  Rail Road Company one dollar, for the millions expended in the execution of their work. If such be the doctrine of relation, founded on equity, I am at a loss to conceive, what would be termed "relation," founded on iniquity.
But if "relation" be admitted into the case, to what period are the rights of the Canal Company to be translated? Is it to 1823, when Virginia passed the law, or to 1824, when Maryland adopted it, or to the date when Congress sanctioned it, or to the time when any of its supplements were passed? The difficulties and absurdities attending an affirmative answer to either of these questions, unequivocally show, that, to neither of those periods can it be carried: but, that you must go back to the common sense of the case, and fix the time of their acceptance of their charter, as the origin of their rights. The legal subscription of the requisite amount of stock being such acceptance.
It is contended, also, that this charter making the canal a public highway, forms an exception to the general rule applicable to such subjects; and must be regarded as a dedication to public uses: and therefore, effects the immediate transit of the powers of the [**432]  State. The answer to this suggestion is the same, that was given to the alleged operation of the principle of abeyance. The doctrine of the dedication to public uses is founded on the same necessity, which must exist to support abeyance. It is only resorted to, where the thing granted was intended to pass immediately from the grantor; where its remaining in him, was utterly inconsistent with the grant. Is that the case before us? Was any thing more designed by the legislature, than  [*248]  an eventual grant; a transfer of rights upon the formation of the corporation? Until that event occurred, nothing passed; neither the operation of the grant, in the fullest extent of its terms, and expressions, nor the intention of the grantors, nor any principle of law, require that it should. But would this discriminating feature, if admitted, be of service to the appellants? Concede, that so far as the public are concerned, the rights of the State vest in them. Does that exclude the power of future legislation on the subject? Nay, is it not the very circumstance that gives to the legislature full power and control over it? It is a concessum in all the cases of this character, where the [**433]  power of the legislature has been drawn in question, that over a grant affecting public rights and privileges, the right of future legislation is undeniable, and uncontrolled. The constitutional prohibition, as to impairing the obligation of contracts, has no application to such a grant. It is only to private, not rights in their nature public, that this salutary safeguard was designed as a protection. If then, for these public purposes, the rights of the State passed into immediate dedication, at the date of the act of assembly, there being no intervention of private vested rights to prevent it; the legislature might at any time resume its powers, or pass any law upon the subject, which its discretion might suggest. Until such private rights intervene, this dedication to public purposes, which is but the creature of the legislative will, exists but at its pleasure. Suppose, by act of assembly commissioners were appointed, to condemn and open a designated road, and hold the same for ever after, as a highway, for the use of the public. Could not the legislature, by any subsequent law, limit, change, or repeal their powers? It cannot be denied.
I have been insensibly drawn into unnecessary [**434]  prolixity and detail, in the examination of this part of the case, because it appeared to me from the efforts made upon it by both parties, that it was considered the prominent point in  [*249]  the cause. The other questions, I shall treat with more brevity.
Assuming, that I am right in the views I have thus far taken of this case; the pretensions of the appellant are attempted to be sustained on the ground, that Maryland, Virginia, and the United States, entered into a contract, and were bound to each other, that the Chesapeake and Ohio Canal might be made upon the terms stipulated in its charter; and that any attempt, therefore, by either of those contracting parties, separately to repeal, change, or modify, any of its provisions, was unconstitutional and void, as impairing the obligation of a contract. If in truth, there be such a breach of faith on the part of Maryland, as is complained of, it might, with some show of reason, be said that it is Virginia only, which has a right to complain. The Chesapeake and Ohio Canal Company having accepted their charter, with a knowledge of its qualification, as made by Maryland, stands not with a good grace [**435]  before a court of equity, as the voluntary asserter of Virginia's rights: who for ought that appears, acquiesces in those acts, which form the subject of complaint. Nay, she has actually assented to them, by passing the rail road charter. Having accepted the charter in the condition in which they found it, they have no equities, by which they can be subrogated to the rights of Virginia, if she had any. The United States not having complied with the conditions, on which alone Maryland consented to be bound, until after the alleged violation of the contract, there would be but little equity on their part, to which the Canal Company could fall heir.
But where is the evidence, that such a contract was ever made by these sovereign States? It is, say the learned counsel, the necessary inference to be drawn from their acts of legislation. This is not the mode in which independent governments make compacts. Their engagements with each other, are not entered into in the same loose, unauthentic manner, in which the ordinary transactions of mankind are conducted, where much rests on parol, and depends  [*250]  on inference and conjecture. But all their contracts are matters [**436]  of express stipulation, formally drawn up by learned and skilful agents, fully disclosing the character of their agreements; and for the most part, preserved in their public archives, as matters of record. Whether there be a contract between them, is never a question depending on remote inference, or vague implication; but is ever a subject of express declaration. Where then is the evidence, of the negotiation on which this alleged compact is founded? It is not even insinuated that it exists any where, unless it appears on the face of their acts of legislation. Does it so appear; let me ask? Is there a word or syllable in any of those laws, which intimates such an agreement? Does the preamble recite it? Do any of the enactments affirm it? Or is there, in their numerous statutes relating to this canal, a word or sentence, which does not receive its full and natural import upon the assumed fact, that there was no such compact? And are not all their enactments in relation to the canal, with their various forms and qualifications, consistent and natural, as the regular offspring or result of spontaneous, concurrent legislation, modified by the peculiar circumstances, and combination of [**437]  interests, in which the parties were situated, independently of all compact on the subject? But stamp on their acts the character of contract, and how stand the legislatures of Virginia and Maryland? Convicted of a wanton and wilful violation of the constitution of the United States, which they had sworn to support. They not only, do not ask the assent of the United States to their compact, as it is now called, but expressly declared that Congress shall not assent to their act upon any other authority, than "as the legislature of the District of Columbia." And the Congress of the United States, represented as one of the three sovereign parties to this unconstitutional compact, and consequently, alike cognizant of its nature and unconstitutionality, in violation of their duty and their oaths," as the legislature for the District of Columbia, sanction and affirm it. Can more conclusive evidence be  [*251]  desired, that there never existed such a contract as is alleged, between the three governments, than the bare statement of the consequences, which would follow such an unnatural presumption? Could any thing short of the most irrefragable proof of [**438]  the fact, induce any court of justice, much less this grave and reflecting tribunal, to cast such an imputation, not only on their own legislature, the high and predominating co-ordinate branch of their own government; but upon the legislature of the Union, and also upon that of one of the most enlightened States in it?
It has heretofore been a maxim, as well of ethics as of law, that presumptions are to be raised in favor of innocency of intention. But in this case, it does appear to me, that we are called on, in favor of the Canal Company, to invert the order of every thing which stands in the way of the accomplishment of their designs.
It is urged, that it must be the contract of the sovereign States, because each State legislates for the canal, through its whole extent: as well on subjects within its own limits and jurisdiction, as those in other States through which it passes. But is this conclusion warranted by the charter? Did Maryland intend, in virtue of her legislation, to give title to the Chesapeake and Ohio Canal Company, to lands or other property in Virginia, or vice versa? Where the necessity? What the object of the States in mutually delegating,  [**439]  or exercising such an anomalous, if not incommunicable power: even upon the supposition, of the canal charter, being a compact between them? None can be suggested. The common sense, the legal interpretation of their acts, is, that the legislation of each State should operate to the extent of its limits, and no farther, as regards the rights and powers transferred to the Canal Company. But that each State, as they well might do, (independently of all authority, interchangeably communicated,) did impose restrictions, by way of condition, extending beyond its territorial limits. As for example; that no higher toll should be exacted on any part of the canal, than that specified in the  [*252]  law. With as much propriety, may it be said, that the rail road charter is a compact between the States, through which it must pass; the 4th section, enacting, "that the president and directors of said company shall be, and are hereby invested with all the rights and powers necessary to the construction and repair of a road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined;" the 15th section, authorizing the acquisition of title to the site,  [**440]  &c. of the road, by agreement or condemnation, through the entire route; and the 18th section, containing a similar restriction, as to tolls; and providing, that the capital stock of this company "shall be exempt from the imposition of any tax or burden by the States, assenting to this law." Thus continuing the similitude by showing, that the assent to it, was to be given by other States than Maryland. And Virginia did assent to this law. Yet I believe the idea never entered the imagination of man, that a compact was thus formed between Maryland and Virginia.
So far from the restriction in the canal charter, as to tolls, indicating a contract between the States, because each, in passing the law, thus undertakes to establish a rate of tolls, beyond its proper territorial jurisdiction, it shows the reverse. If the charter was a compact between the States, then the limitation in its 10th section, that the tariff of tolls shall not exceed "an average of two cents per ton per mile;" was all sufficient to prevent its ever exceeding that limit: and bound, and protected all the parties. No further provision on the subject was necessary: because, it being the contract of the [**441]  three sovereigns, the assent of all was indispensable to any change or modification of its terms. And had it been attempted, under the legislative sanction of either of the States, the article of the constitution of the United States, forbidding the State to pass a law impairing the obligation of the contracts, would at once have checked such unconstitutional exercise of power. But not having entered, nor designing to enter into any such compact; and  [*253]  knowing, therefore, that without some further enactment, the company could by consent of any of the States, within their respective limits, raise or alter the tolls, in any way they pleased, they wisely added the following prohibition, to the 14th section; "and no other toll or tax whatsoever, for the use of the said canal, and the works thereon erected, shall at any time hereafter be imposed, but by consent of the said States, and of the United States." Construe this a compact between the States, and this sage addition to their law becomes superfluous, unmeaning tautology. Can you, under circumstances like the present, upon any rule of construction ever heretofore adopted, cause it to be so regarded? The compact in [**442]  this section, and throughout the charter, is not between the States themselves, but between the Chesapeake and Ohio Canal Company, when it shall spring into life, as the one contracting party, and the three several States or sovereignties, as the other. If a compact between the States themselves had been intended, the application for the assent of Congress, agreeably to the requisition of the constitution of the United States, would have followed as a matter of course. For the necessity of such assent, authorities need not be cited. If such assent be necessary to a cession of part of its territory, by one State to another, as has been adjudicated, and is admitted; it is equally necessary, when two States enter into a contract, by which they bind themselves to each other, to cede to a corporation, highly important streams of navigable water within their limits, and authorize the cutting of canals, &c. in either State: and for that purpose, to exercise the right of eminent domain in both States.
Suppose A, B, and C to be proprietors of three contiguous farms, through which D is about to construct a turnpike road, or any other improvement, that if completed throughout, would [**443]  be highly beneficial to all; but, if not so completed, so far from being a benefit, it would be injurious to those through whose lands it might be made; and might be the means of defeating the accomplishment of some similar  [*254]  work, which would otherwise have been ultimately effected. D first applies to A, for permission to make the road, who grants it on condition, that no greater toll than one cent per mile be demanded: and further, that B and C assent to the making of the road through their farms on the same terms. B and C on being separately applied to, give such assent. Between A, B and C, no communication on the subject, of any nature or description ever passes. Before the work commenced, A by the consent of D, or under circumstances in which D's rights were not violated, withdraws his permission. Can he not lawfully do so? Has B or C any right to complain, that he has broken any contract, made with them? Unquestionably not. Can the human mind, aided by all the discriminating acumen and subtlety of the profession, draw a distinction in principle, between the case supposed, and that we are now called on to decide, except that the latter is much the stronger case? What [**444]  A, B and C did, Virginia, Maryland, and the United States have done; and nothing more. The decision in both cases, must be the same. In confirmation of this idea of a contract between the three sovereigns, it may be asked; if after the completion of the said canal, Congress had repealed their law, assenting that a lateral canal be made by Maryland through the District of Columbia, could not Maryland have proceeded to make such lateral canal, in despite of such repealing law, on the ground that it was a nullity, being a law impairing the obligation of a contract? Unquestionably it might. But what contract did it impair? Not any contract between Congress and the State of Maryland; for none such existed; but the contract between Congress and the Canal Company. And the State of Maryland having the right to make such lateral canal, by their contract with the Canal Company, and Congress having been bound by their contract with the Canal Company, to permit Maryland to make such lateral canal, in contemplation of a court of equity, to prevent circuity of action, Maryland is subrogated to all the rights of the Canal Company [**445]   [*255]  on this subject, and standing in the stead thereof, may assert the unconstitutionality of the repealing law of Congress. Or may, in such character, to the extent of their injury, prosecute in a Court of Chancery, any other remedy for the breach of such contract, which the Canal Company could there maintain. This is so familiar a principle of a court of equity, that to sustain it by further illustration or authorities, cannot be necessary. But Maryland could be relieved against this repealing law, either in a court of law or equity, on the ground of fraud, (which would avoid it,) independently of any contract between Congress and Maryland. Congress had by contract with the Canal Company, agreed that Maryland should exercise the power. Upon this assent the conditional contract of Maryland with the Canal Company became absolute; the Canal Company, as they were authorized to do, finished the canal. A subsequent revocation of this power by Congress, independently of all idea of their contracting with Maryland, would be a rampant fraud, which no court of law or equity would tolerate. Let us imagine, that in the preceding hypothetical [**446]  case of A, B, C and D, there was not only no contract between A, B and C, but they severally refused to hold any intercourse or contract in any shape, with each other yet, after the road was finished through the farms of A and B, that C refused to permit D to progress with the road through his farm, to the great injury of A and B. Can it be doubted, that A and B, independently of contract between them and C, but upon the several contracts by A, B and C, with D, might obtain an injunction against C, to prevent his obstructing D in the completion of the road. It is a proposition that admits not of denial. So if, under the repealing law of Congress, any of their agents, or those who were bound by their legislation, prevented the opening of the lateral canal, in the mode prescribed by the repealed acts of Congress, a similar injunction would issue against them.
In confirmation of the remarks I have made, as to the clear and unambiguous language used by sovereign States,  [*256]  in contracting with each other, or in consummating a contract by legislation, look to the act of assembly of Maryland, passed at November session, 1785, ch. 1; and, comparing it with the charter [**447]  of the Chesapeake and Ohio Canal Company, see whether the evidence of compact, on the face of both laws, be in character the same. As to the canal charter, the inference of compact is reached by a forced unnatural construction, not deducible from the objects of the law, or the circumstances under which it passed, nor necessary to gratify one word or expression in it; and involving consequences, which every principle of courtesy, candor, and sound judicial interpretation, prompt us to avoid, by the rejection of such an inference. But turn to the former law, and the compact is so conclusively demonstrated by its title, its preamble, the terms and expressions of its enactments, that nothing is left for inference or conjecture. This is the mode in which sovereign States treat, or form compacts with each other. The title expressly announces "the compact;" the preamble most minutely recites it; and the enacting clause ratifies and confirms it, and declares that, "as soon as the said compact shall be approved, confirmed and ratified, by the general assembly of the commonwealth of Virginia, thereupon, and immediately thereafter, every article, clause, matter and thing, in the said [**448]  compact contained, shall be obligatory on this State, and the citizens thereof, and shall be forever, faithfully and inviolably observed, and kept by this government and all its citizens, according to the true intent and meaning of the said compact; and the faith and honor of this State is hereby solemnly pledged and engaged to the general assembly of the commonwealth of Virginia, and the government and citizens thereof, that this law shall never be repealed or altered by the legislature of this government, without the consent of the government of Virginia." If the same inference of compact is drawn from these two acts of assembly, so utterly dissimilar, in that respect, in every feature and provision, the old legal axiom, "et sic de  [*257]  similibus," should be changed, and it should now be "et sic de insimilibus."
The appellants have also insisted, that their charter, upon the assent to be given, in the mode prescribed by the Potomac Company, was a contract between the Potomac Company and the States, of which the charter of the Baltimore and Ohio Rail Road Company was a violation. How many contracts, this charter, so prolific of contracts and litigation,  [**449]  may be alleged to contain, when passing through the ordeal of such professional ingenuity as has been applied to it, on the present trial, I am at a loss to conjecture. But, it appears to me, that the same arguments which have been urged against a compact between the States, for the most part, apply with equal force, against any such implication with the Potomac Company. The assent of that company, in reason and justice, can be regarded in no other light, than as an offer of a bargain to the Chesapeake and Ohio Canal Company, which, like all similar propositions, until accepted, was revocable, at the pleasure of the Potomac Company. To construe it otherwise, would be an act of unexampled, cruel injustice to that company. The Chesapeake and Ohio Canal Company could not be formed, until the Potomac Company had given their assent; they might not have been organized for a hundred years afterwards. Yet during all this period, the Potomac Company were to go on, expending their money in removing obstructions in the river, and improving its navigation by locks and canals; and, when, perhaps by dint of these expenditures to facilitate transportation, they are about to [**450]  be reimbursed, without the power of extricating themselves from their dilemma, they are to be divested of all the fruits of such their labors and disbursements, and for which no reimbursement or indemnity in any shape, is allowed. And what equivalent are they to receive for this? A mere possibility; remote and improbable, as to any beneficial result; the chance, that after all other stockholders receive ten per cent., there may be  [*258]  something left for them. Some possible dividend may be made on their capital stock, but nothing on such their disbursements. It may be said, that they ought not (their assent being given) to have continued such expenditures. But what was their alternative? Why, to forfeit their charter, and all that had theretofore been expended. Draw from such their assent, the inference of contract, and they cannot escape the consequences I have mentioned. Should a court of equity, as we now are, be astute and technical, in seeking out a construction fraught with such injustice?
It has also been insisted, that, a subscription to the stock of the Chesapeake and Ohio Canal Company having been commenced, no matter to what amount such subscribers had acquired [**451]  rights, which could not be impaired by any act of the legislature of Maryland, affecting the terms and conditions on which such subscription was made. This is true, so far as regards the coercion of the subscribers, to comply with the obligations assumed by subscription, but no further. There is no contract, under the charter of that company, between the State and the subscribers, qua, individual subscribers. The only contract that could arise, was between the State and the Chesapeake and Ohio Canal Company, when brought into being by the subscription of the requisite amount of stock. Before that took place, every thing was in fieri. Then, and not till then, are the legislative powers of the State suspended by the constitutional interdiction; then, and not before, does it impliedly contract, not to revoke, or impair the rights and privileges it has granted. To this extent, and no further, have the Supreme Court gone in the Dartmouth College, and other cases on the subject. The acts, done at the time of subscribing for stock, are, of themselves, nothing more than a compliance with the mode, by which the assent, to become members of the corporation, is given; and [**452]  never were designed to create a contract between the State and the individual subscribers. With as much propriety, may it be said, that, if any article of property  [*259]  were offered at public auction, and by the terms of sale, no bid were to be received, unless he who made it, in assurance of his punctuality, should deposit with the auctioneer, one dollar,--that upon such bid being made, and payment of the dollar, the owner could not decline proceeding with the sale, or offering it upon new, or different conditions.
It has been said, that "the charter of the Chesapeake and Ohio Canal Company, was granted upon individual application; that individuals had spent their time and money, in procuring the information, upon which the legislature acted, in granting it: and that this expenditure was a consideration, which was sufficient to make the contract binding on the State, from the date of the charter; that these individuals were, in fact, the parties interested, and not the persons who subsequently subscribed, and became corporators under the law." This argument is, I believe, at least entitled to the merit of novelty; but, it passes no encomium upon the strength of a cause,  [**453]  which, in a court of last resort, finds it necessary to invoke it to its aid. If the State be thus bound to these persons, then, have they, under the canal charter, rights above all others: and consequently, a prior right of subscription? Yet no such priority exists. Or if so entitled, the contract, I presume, is mutually obligatory, and they are bound to become members of the corporation. Can they be compelled to become so? And how? Is it possible, that this court, on grounds like these, would venture to declare an act of the general assembly of Maryland, unconstitutional?
But it has been alleged, that although the appellants should fail on all the other grounds, on which they have attempted to sustain their asserted priorities; yet, that they are clearly sustainable, under the powers long since granted to the Potomac Company, and to which they have been substituted. Before I enter on the examination of this question, let it be premised, that what I say on this subject, relates not to the rights of the Potomac Company, or  [*260]  their successors; to the bed of the river, or to any canals or works which they have constructed. The location of the rail road, as I understand [**454]  it, interfering with no such rights. The preliminary inquiry arises, what was the character and design of the Potomac Company's charter? What were the powers granted? And for what purpose given? On these heads a glance at the act of assembly would satisfy any reasonable mind: but to obtain demonstration on these subjects, all that is necessary, is to compare it with that of the charter of the Chesapeake and Ohio Canal Company. The preamble to the charter of the Potomac Company gives us the design of its authors, in the following words: "Whereas the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility: And whereas it may be necessary to cut canals, and erect locks and other works on both sides of the river," &c. That a continuous canal between the termini of this navigation, was not designed by the legislature: that a delegation of the powers necessary to its construction, was never intended, is to my mind a proposition so manifest, that I can hardly prevail on myself to believe, that arguments are necessary to throw light, as to this subject, on the mind of the [**455]  most superficial interpreter of the law. The preamble declares, "it may be necessary to cut canals." For what? "The extension of the navigation of the Potomac river." And in conformity herewith, the 4th section of the law transfers to the company the authority "to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary for opening, improving, and extending the navigation of the said river." The 10th section enacts, that the said river, and the works to be erected thereon, in virtue of this act, when completed, shall forever thereafter be esteemed and taken as a public highway, on payment of the tolls imposed by this act. The 17th section declares, "that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted,  [*261]  and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, at which a road shall set off to the Cheat river, agreeably to the determination of the general [**456]  assemblies of Virginia and Maryland, to and through the place which may be fixed on, below the mouth of the south branch, for the receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls hereafter allowed to be demanded and received at or near Payne's falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the said river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection, near the mouth of the south branch, to and through Payne's falls aforesaid; that the tolls hereinafter allowed to be demanded and received, at the Great Falls are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne's falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at or near the Great  [**457]   Falls, make a cut or canal, twenty-five feet wide, and four deep, with sufficient locks, if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make at or near the Little Falls, such canal and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid, into tide water, or render the said river navigable in the natural course." And the 18th section provides, "that in case the said company shall not begin the said work, within one year after the company shall be formed, or if the navigation shall not be made and improved between he Great Falls and Fort Cumbertand, in the manner herein  [*262]  before mentioned, within three years after the said company shall be formed, that then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of said company, and all preference in their favor,  [**458]  as to the navigation and tolls at, through, and from the Great Falls to tide water, be forever forfeited." Adverting to the language of this charter, that the thing to be made navigable and a public highway forever, was the river of one foot depth: to the time within which the work was to be completed, viz: in three years, from the Great Falls to Cumberland; and ten years, from the Great Falls to tide water; (thus giving where one or more canals were to be cut, more than thrice the time that was allowed to complete the residue of the work, where no cannalling of any moment was required or anticipated, but where the distance was ten times as great, and the labor and expense necessary to the completion of a continuous canal, tenfold greater,) and adverting to the power given to cut canals, which was of such only, as were "necessary" to render the "river" navigable; to the original subscription $ 220,000, (by which it was contemplated to accomplish the object, for which the company was organized,) an amount insufficient to construct the canal for three miles, at many of the difficult passes between the Great Falls and Cumberland. Can it be believed that [**459]  the design of the legislature was, that a continuous canal should be made throughout the whole course of the navigation to be improved? Or that they gave such a power, when they authorized the cutting of "such canals" as were "necessary" to make the "Potomac river," a navigable public highway. When such power is given, the language of the legislature discloses their intention. As in the preamble to the Chesapeake and Ohio Canal Company's charter, the first words of which are, "whereas a navigable canal, from the tide water of the river  [*263]  Potomac, in the District of Columbia, to the mouth of Savage creek, on the north branch of said river," &c. "will be a work of great profit and advantage," &c. Not a work throughout the law, about the extension or improvement of the navigation of the "river." The cutting the continuous canal, and erecting its appurtenant works, were objects for which the legislature designed to provide: and for their accomplishment, ample powers were given.
By the 13th section of the charter of the Chesapeake and Ohio Canal Company, that company are invested with all the property, rights and privileges of the Potomac  [**460]   Company, "in the same manner and to the same effect as the said Potomac Company now hold, possess, and occupy the same by law." In no other way, for no other "effect," or purpose, can the Canal Company exercise the "rights and privileges" of the Potomac Company, but for the effects and purposes, contemplated by the charter of the Potomac Company. The same interests and powers, and nothing more, accrue to the Canal Company, exerting the "rights and privileges of the Potomac Company" in cutting an occasional canal, or making any improvement in the navigation of the river, as would, before the charter of the Canal Company, have accrued to the Potomac Company, performing the same work. Although the property of the Potomac Company passes to the Canal Company, to be used as they see fit, taking care that their rights are not forfeited under the provisions of the Potomac charter; yet they have no right under that charter to cut a canal, not necessary to improve the navigation of the river as there provided for, but with a view of using it as the canal authorized by the charter of the Chesapeake and Ohio Canal Company. Such a fraudulent device [**461]  to over-reach the prior rights of the appellees; such deceitful trickery, would not for a moment be tolerated by a court of equity. If, after completion of the Chesapeake and Ohio Canal, or pending the execution of the work, the Canal Company keeping the "river Potomac" navigable, as required by the Potomac charter, were to  [*264]  collect the tolls authorized thereby; their right to do so could not be the subject of a doubt. If, to effectuate such navigability, it should be necessary to cut a canal at any difficult pass of the river, (putting out of view, the time limited for the completion of their work,) their power to do so could not be brought in question. But what tolls could be demanded for the use of such a canal? None other than those specified in the Potomac charter. Was it the intention of the Chesapeake and Ohio Canal Company to collect, for the use of that part of the canal they were locating, in collision with the location of the Baltimore and Ohio Rail Road Company, no other tolls than those sanctioned by the Potomac charter? Was it their design, merely to cut a canal, necessary to make navigable the "river," in the mode contemplated [**462]  by the canal charter? If so, then, it may, in fairness be said, they were acting under the powers, possessed by the Potomac Company. But would the candor of their counsel permit them to throw out such an insinuation? Would the Canal Company for a moment, entertain the idea of making the canal from the Point of Rocks to Cumberland, (the battle ground) on such a condition? Nobody can believe it. Suppose the Canal Company, to draw the whole trade of the river into the canal, (after its completion) or for any other motive, were to suffer obstructions to accumulate in the river, until it ceased to be navigable, as provided for in the Potomac charter, and that charter, in consequence thereof, by judgment of a court of law, were forfeited; would the Canal Company, thereby, lose all title to that part of the canal, between the Point of Rocks and Cumberland. If it were made under the powers given by that charter, the consequence is inevitable; it must be conceded. Do the Canal Company admit it? They would hesitate long, before they did so. The undeniable fact is, that the Canal Company were locating that grand canal, provided for by the Chesapeake  [**463]   and Ohio Canal charter, and not any canal, contemplated by the charter of the Potomac Company.  [*265]  How then can they be regarded as acting, under the powers delegated by the Potomac Company's charter? In my humble apprehension, it is impossible to sustain them, under this, their last expedient to defeat the well established rights of the Baltimore and Ohio Rail Road Company. To do so, would be to strain, beyond all reason, the letter of the statute, for the purpose of violating its spirit and obvious import: to give countenance; nay, encouragement, to fraudulent contrivances and ingenious deceits, which they have never yet received in any tribunal of equity.
The inquiry on this point, the answer to which, settles this question, is most simple. Were the acts of the Canal Company, against which the injunction issued in this case, done in execution of the enterprise contemplated by the Potomac charter? or in execution of the great work, provided for by the charter of the Chesapeake and Ohio Canal Company? If the former, then the Potomac Company being first legally constituted, it may be contended, that they are entitled to priority in the selection [**464]  and appropriation of the route; and the injunction granted to the Rail Road Company should be dissolved. But, on the other hand, if the acts of the Chesapeake and Ohio Canal Company, complained of, were done, not in completion of the works provided for by the charter of the Potomac Canal, but in execution of that stupendous canal, alone contemplated, and authorized by the charter of the Chesapeake and Ohio Canal Company, then the Rail Road Company, being the senior corporation, and having first made their location, are clearly entitled to all the priorities they claim; and the injunction of the Chancellor should be made perpetual.
But, suppose the Potomac Company had, as insisted, originally, under their charter, a power either to have made a continuous canal, or to have improved the navigation of the river by occasional canals, or wholly by sluice navigation. Having once made their selection of the mode, and exercised, as they have done, the right of eminent domain,  [*266]  in cutting occasional canals, that power cannot be again exerted, in the making of a continuous canal. The desired improvement being made in one mode, this transcendent power cannot [**465]  afterwards be exerted in affecting it in another; otherwise, a continuous, and an occasional canal, might both be cut through the lands of the same individual: an invasion of private rights, a wanton oppression, which the public exigencies at that time, did not require, and which, the framers of the Potomac charter never designed to give to that company.
Feeling entire confidence in this view of the subject, that no such power was derived from the Potomac Company, as that which brought the Chesapeake and Ohio Canal and Baltimore and Ohio Rail Road Companies in collision, I deem it unnecessary to examine the much vexed question, whether, if the Potomac Company originally possessed such a power, it could be exerted after the time limited by the 18th section of their charter, for the completion of the improvement of the navigation of the river.
On the part of the appellants, it has been further urged, that the acts of the general assembly of Maryland, in relation to the route of the rail road, conferring a general power of location, uncontrolled by localities, are to be so restricted, in their interpretation, as to exclude the right of interfering with the site of [**466]  the canal; which, by its charter, is specifically located, on the eastern bank of the Potomac. But this position is untenable, because it is wholly unfounded, in fact. It is not true, that in the Chesapeake and Ohio Canal charter, there is any specific location given to the canal, confining it to the eastern or western bank of the Potomac, or to either of the banks of that river. The 19th section of the law, which alone defines the route and termini of the canal, declares, "that the first, or eastern section, shall begin at the District of Columbia, on tide water, and terminate at, or near the bank of Savage river or creek, which empties into the north branch of the Potomac, at the base of the Alleghany mountain."  [*267]  Can human ingenuity torture this into any more definite location of this section of the canal, (which only, is involved in the present controversy,) than as fixing its termini? Can it be possible, judicially to determine, that the true import of these expressions, is, that the canal shall commence at tide water, in the District of Columbia, and thence follow the ravine of the Potomac to the bank of Savage creek?  [**467]  Is there any think in the law, or the reason of the law, that could thus fetter its construction? Suppose it had been ascertained, by actual surveys and calculations, made by experienced engineers, aided by the superior and extended lights of science of the present day, as applied to the art of canalling; that, after receiving into the canal the waters of the Potomac, at the Great Falls, instead of following the sinuosities of that river, by means of its tributaries, and through the interior of the country, on its eastern shore, the canal could be conducted to the bank of Savage river, by one-half the distance--at one-third of the expense of labor and money--and in a way to give transportation to three times the quantity of produce, that it would otherwise have borne; could the power of the company, so to construct it, be the subject of a momentary doubt? Admit this power, as you must do, and all this notion of a specific location of the canal, by its charter, of which we have heard so much, vanishes in a moment. For, if the canal be located by its charter, the company possesses no discretion to depart from it. Nor does the preamble, as was supposed by the argument, sustain,  [**468]  in the slightest degree, this doctrine of specific location. Every letter of it is complied with, in exercising the discretion used in the suppositive case, I have suggested.
But it is alleged, that this specific location of the canal by its charter, is demonstrated, by reference to that mass of surveys, reports, dissertations, resolutions, &c. with which the record has been loaded. Or, in other words, that we are to collect the meaning of the legislature, not from the terms used by them, which are explicit, unambiguous, and  [*268]  full in a pre-eminent degree; but by imputing to them a knowledge of facts, of which there is no evidence, (nor indeed could there be,) that they ever possessed, or if they did, upon what part of it they acted; we are to infer they meant the very reverse of what they have said. This would be stretching the power of judicial legislation, rather farther than the most zealous admirers of the maxim, "est boni judicis ampliare jurisdictionem," has ever yet extended it. It would be enacting, not expounding the law. Conceding, however, that we possess the power to do so; and, that upon these voluminous documents, we are now about to declare, the legislature [**469]  to have done, what, according to our opinion, they ought to have done; and what is that? Why, to give to the Canal Company that discretion which they ought to possess, of locating the canal where the lights of improved science, expediency, the great interests of the community, and the successful accomplishment of the enterprize, would dictate: and not tie them down to a location recommended by resolutions passed by conventions, less interested and enlightened, perhaps, than themselves: or recommended by surveys made ten, twenty, or fifty years before. This is the course, pursued by the legislature in this instance; and according to my view of it, is the only action on the subject, which an independent, and enlightened legislative body could have adopted. Indeed, from these documents, no certain, and specific location of the canal could well have been made, as scarcely any two of them agree in that respect. Some confining the canal, on one side of the river Potomac; some on another; some crossing the river often; some seldom; and perhaps some in one place, and some in another. Had a definite location been given to the canal, it would have been of a piece, with the practice so [**470]  generally complained of, in locating turnpikes, and great public highways, with calls for all the little towns or villages, in the vicinity of which, they might probably pass. Had the legislature intended to make a peremptory location of the canal, they would have used apt words for  [*269]  that purpose; as they did, in providing for the second or western section, (in the clause immediately following that before recited;) which say they, "shall commence at the said termination, and extending along the valley of Savage creek, so far as the same," &c. In not doing so as to the first, and doing so as to second, they distinctly announce the discrimination they designed to make, in the locations of the two sections. The utter silence of the law, as to any designated site, of the first section of the canal; its omission to select or adopt any of the numerous surveys, that had been made; is conclusive of the fact, that the Canal Company were left, as they should have been, to an unlimited freedom of choice. In which, they might be influenced by every circumstance, tending to control their choice: whether it related to the obstructions to be removed; the time and expense, necessary [**471]  to be consumed in doing so; the length of the route; the commercial or transporting facilities to be afforded; their pecuniary ability to accomplish the object, or any like consideration.
But it is insisted, that, although, this court should be of opinion, there is by the charter of the Canal Company, no precise location of the canal, confining it to the margin of the river Potomac, yet that it is specifically located in the territory, watered by the Potomac, and attaches upon all the lands within such territory, and so continues, until the actual location of the canal. To recognize the principle of abeyance, as asserted, would be mercy to the landholders of that immense section of country; when we advert to their condition under the notion of this immense canal: whose location occupies the space for a sea, instead of a canal. The effect of abeyance of the power of eminent domain, would be to prevent the laying out of public highways, or the condemnation of land, for any improvement whatever: in the individual improvement and enjoyment of their lands, the owners were left unrestricted as heretofore. But, the effect of this sort of legislative location of a canal, which [**472]  is to spread over a section of country of perhaps two hundred  [*270]  miles in length, and more than one hundred in breadth, to the exclusion of all acquirements of intermediate rights, is to me a proposition so new and incomprehensible in its character; so appalling in its consequences, that I can with difficulty persuade myself, that it was "put forth in sober earnest." If it be sustainable, not only is the State bound by it, but no landholder within the sequestered district, could lawfully do any act by which this franchise of the Canal Company could be changed or impaired. To the whole extent of country then, watered by the Potomac and its tributaries, containing two or three hundred thousand square miles, this right of the Canal Company so attaches, that after the date of their charter, no proprietor of land can build a dwelling house, or mill, or erect any building or improvement upon his property, without incurring the risk of having his buildings and improvements razed to the ground, without any compensation or indemnity, other than what he would have been entitled to, had his property remained in the condition in which it was at the time the act of assembly [**473]  passed. And where is he to look for indemnity for this suspension of his proprietary rights? The law does not provide it. The contemplated corporation might not have been formed for a hundred years, after the date of its charter, and although during all that time, his hands are tied, he is deprived of the beneficial use and enjoyment of his property; yet for this sacrifice no remuneration is allowed him. But even after the organization of the corporation, and the accomplishment of the object for which they were incorporated; who are compensated? All whose rights have been ruinously suspended? No. Not one in ten thousand. Perhaps the property of not one, in a still greater number, would be touched by the canal or its appendages; and for those only is any indemnity provided.
Have the legislature of Maryland a power to pass such a law, had they so designed? Certainly not. They can divest no man, agreeably to our constitutional safeguards, of  [*271]  the beneficial enjoyment of his property; but upon making adequate compensation therefor.
If, however, it were shown that the canal, by its charter was specifically located, or in any way located, the rail road charter with the acts [**474]  done thereunder, is a repeal of it, so far as their locations interfere, above the mouth of the Monocacy; the rights of the Rail Road Company having been conferred on them by the legislature of Maryland, whilst their powers over the canal charter, were unrestricted by any constitutional prohibition. The Canal Company, not being then in existence, could be invested with no rights, nor be a party to any contract, which the legislature of Maryland could impair, or violate. The selection of the route for the rail road, had been adopted before the Canal Company had been ushered into being.
Nor is it true, as has been assumed in the argument for the appellants, that there is no power given to the Baltimore and Ohio Rail Road Company, so to locate their road, as to interfere with the location, now claimed by the Canal Company. The charter of the Rail Road Company, passed at December session, 1826, gives to the company the power of locating the road, in terms as unlimited as could be devised. They are "invested with all the rights and powers necessary to the construction and repair of a rail road, from the city of Baltimore to some suitable point on [**475]  the Ohio river, to be by them determined: and they, their agents, and those with whom they may contract for making any part of the same, or their agents may enter upon, use, and excavate any land, which may be wanted for the site of said road." If a power of location without restriction or exception of place, were designed to be given; expressions more comprehensive for that purpose, could not have been selected. But it is not alone upon these broad and general expressions, that the rights of the Rail Road Company rests. By the 2d section of the act of 1826, the State of Maryland reserved the privilege of taking stock in the Rail Road Company, to the amount of 10,000 shares.  [*272]  By the 3d section of the act of 1827, passed the 3d March, 1828, the general assembly direct their treasurer to subscribe in their behalf, for 5000 shares of this reserved rail road stock, on condition, that the president and directors of the Rail Road Company "shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland in Alleghany; and that it shall go into [**476]  Frederick, Washington and Alleghany counties." To this condition, the president, directors and company of the rail road, assent: the stock is accordingly subscribed for, the money of the State received, and the rail road located accordingly. Yet, it is said under these circumstances, that the location of the rail road, "to go to, or strike" the Potomac in the manner aforesaid, was a power not designed to be given to the Rail Road Company. It is impossible to go to, or strike the river, without interfering with the route claimed by the Canal Company. Having reached the river, the continuing the rail road up the same, is the natural, practically speaking, the necessary consequence, in order to comply with the requisition of the act of assembly, that the rail road should pass through Frederick, Washington, and Alleghany counties. If there could be any doubt, as to the operation of the act of 1826, when construed alone; it appears to me, that the legislative interpretation thereof, by the act of 1827, when no conflicting rights were in esse, to be affected by it, must forever remove such doubt. The act of 1827, acknowledges the power in question, to be in [**477]  the Rail Road Company, by the act of 1826. These acts of the same legislature, in pari materia, are "to be construed together as one system." In this view of the subject, can there be a question as to their construction on this point? But let it be conceded for the moment, that there were no words in the act of 1826, by which this power could be transferred. I hold it a matter, too clear for argument or illustration, that this power is fully delegated by the act of 1827. At the time of its passage, the legislature were fully  [*273]  authorized to have granted this power. They agree to pay $ 500,000, on condition of its exercise by the Rail Road Company. Is not the inference irresistible, the implication of necessity, that they authorized the Rail Road Company to exert it? To give to this act of assembly any other construction, would be to convict the legislature of Maryland, of an act of absurdity, prodigality and folly, which is without a parallel in the annals of rational men; they intended this, and could have intended nothing else. As well might it be said that if A pay to B $ 500, on condition that he would cut down, and haul off all the timber from fifty [**478]  acres of A's wood-land, that A gave to B no powers under such contract, but that he could sue B as a trespasser or wrong doer, and recover of him damages for every tree he should cut or haul off.
Having by the views already expressed, disposed of the material points in this case, so far as is necessary, to the final decision thereof, I forbear to express any opinion on the point so elaborately, I was about to say unanswerably, argued by the counsel for the appellees, that conceding to the Canal Company, seniority of corporate existence, that their charter per se gave to them no priority of right, in any particular route for their canal. That such superiority of right, rested entirely on priority of selection, and that therefore the rights of the Rail Road Company were paramount. I am therefore of opinion that the decree of the Chancellor, making the injunction perpetual, ought to be affirmed.
DECREE REVERSED AND BILL DISMISSED.  

29 of 37 DOCUMENTS 

COOMES, et al. VS. CLEMENTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 H. & J. 480; 1819 Md. LEXIS 9 

June, 1819, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from a decree of the Orphans Court of Anne-Arundel County. The case was this:--Francis T. Clements, (the husband of the appellee,) by his will dated in 1817, disposed of the whole of his estate, both real and personal. A part of the real estate he devised to his wife, but bequeathed no portion of his personal estate to her. She renounced the will, and by her petition to the orphans court, claimed one half of the personal estate, the testator having died leaving no child or descendant. The orphans court decreed in her favour. From that decree the appellants, claiming as legatees under the will, appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

F T C, by his will dated in 1817, bequeathed the whole of his personal estate away from his wife, but devised to her a part of his real estate, and died leaving no child or descendant. The wife renounced the will. Held, that she was entitled to one half of his personal estate, after the payment of his debts.  

COUNSEL:
Winder, Chapman and Marriott, for the Appellants. They contended, 1. That by the common law of England, at the time of the colonization of Maryland, a man had a right to dispose of the whole of his personal estate, by will, to the exclusion of his wife, if he thought fit to do so. They cited Register of Writs, 142. 4 Coke's Inst. 32. Somner on Gavelkind, 91. 1 Swinb. 300. 4 Reeves' Hist. E L. 82. Reeves' Dom. Rel. 1, 37. 2 Blk. Com. 495. 3 Bac. Ab. tit. Executors, &c. (F) 53, 54, (E) 35, (H 5) 67, (I) 71.

2. That it was the common law [**2]  of England, and not the customs of particular places, which our ancestors brought with them at the time of their emigration and colonization; and which has been since used and practised under.

3. That the common law, with respect to the right of the husband to deprive his wife of any share in his personal estate, by his will, has never been changed by any act of assembly, either of the province or of the state. They referred, among others, to the acts of 1699, ch. 14; 1704. ch. 20; and 1715, ch. 39.

4. That if originally the common law secured to the wife a portion of her husband's personal estate, that law was changed before the colonization of the province. 2 Blk. Com. 491.

Pinkney, Taney, Magruder, and Stephen, for the Appellee. They contended, 1. That a widow was entitled to a certain share of the personal estate, independent of the will of her husband--to what the law terms her reasonable part. Such was the common law at the time of the colonization of Maryland. They cited Glanvil, 51, 52. (in the reign of Hen. II.) Magna Charta, ch. 18, (9 Hen. III.) Bracton, 60, 61, (Hen. III.) Fleta, 123, 124. (Edw. I.) Fitz. N. B. 284. (Hen VIII.) Finch, 175, (Car. I.) 2 Blk.  [**3]  Com. 493, 516. 4 Burn's E. L. 323, 324, 326, 327; and Griffith vs. Griffith's Ex'rs. 4 Harr. & M'Hen. 101. The question, they insisted, was conclusively established in the last case. The dictum of Lord Coke is at war with the authorities on which he relies. Somner is not authority. With respect to the cases referred to, which goes to show that the executor was entitled to the residuum, and if no executor, the administrator, will be of no aid to the appellants. Residuum of what? Of all that could pass by the will, after payment of debts and legacies. But the widow's part could not pass by the will; it was therefore no portion of that residuum to which the executor or administrator was entitled. 2 Blk. Com. 494. Toller, 79. This right of the widow, it has been contended, where it prevailed, was founded on special custom, but was at war with the common or general law of the realm. Now if this was the case, the authorities would tell us in what parts of the kingdom the common law prevailed. A special custom is an exception to the general rule, confined to some small portion of the kingdom. Here all the authorities cited on either side, show that this law, by whatever name you call it,  [**4]  general or special, prevailed in divers and very many parts of the kingdom, and none of them state a single county or place in which a different law prevailed. If it be founded on special custom, why should it have prevailed so extensively? If the common or general law was otherwise, why can none of us discover any part of the kingdom in which this common or general law existed as the law of the kingdom? In Griffith vs. Griffith, the widow's claim was founded on the common law. It was not pretended that she claimed under any act of assembly; and there is no reason why that decision should now be reversed.

2. To show that the acts of assembly are a clear recognition of the common law, and the right of the widow to a portion of her husband's estate, independent of his will, they referred to the various acts of assembly in regard to the subject of widow's rights. That the strong analogy between the acts of 1704, ch. 20, and 1715, ch. 39, s. 4, 5, and the customs of England, proves that those acts were taken from and founded upon those customs. Swinb. 204 to 219. If the decision of the court in Griffith vs. Griffith was correct, or is not now to be disturbed, it necessarily follows [**5]  that the appellee in this case is entitled to one half, there being no child. This has been the law of Maryland while a province, and since. It appears by the acts of 1704 and 1715, that a part of the common law was introduced. These acts stated that widows claimed not only what was left them by their husbands, but their shares under the law besides. This was the practice from the first settlement of the province until 1699, when the legislature said the widow must make her election, and should not take both. The widow had no right to make such a claim, unless the common law gave it to her. Her right was acknowledged by the legislature, and yet it had no foundation, unless it was a part of the common law. The legislature always admitted the widow's right; though there are acts of assembly, passed at different times, varying the quantum of her interest. Sometimes she is considered entitled to one half in addition to the provision made for her by her husband; sometimes is forbidden to claim both, and sometimes, instead of one half, she is to receive only one third. But her right was never denied or repealed; and there existed, at the death of Mr. Clements, no act of assembly to alter [**6]  the quantum of his widow's interest, unless the act of 1798, ch. 101, can be shown to have that effect. This case is not within the letter or spirit of that act. It says, (sub ch. 13,) that every devise or bequest to the wife shall be construed to be intended in bar of her dower in lands, or share in the personal estate, unless it be otherwise expressed in the will, unless she renounce, and by renouncing she shall be entitled to one third of the personal estate, and no more. This embraces the single case of a bequest renounced by the widow. Here there was no bequest, and could be no renunciation. The subsequent clause of that sub chapter, proves that her right was not to be impaired except in the single case of a renunciation of a valid bequest.  

JUDGES:
The cause was argued before CHASE, Ch. J. and JOHNSON, MARTIN, and DORSEY, J. MARTIN, J. concurred.  

OPINIONBY:
CHASE; JOHNSON; DORSEY 

OPINION:

 [*482]  The Judges delivered their opinions seriatim.
CHASE, Ch. J. The common law of England is the common law of this state, excepting such changes as have been made by the acts of the legislature. The common law pervaded the whole realm of England, and was co-extensive with its limits.  [**7]  Some peculiar local customs prevailed within the realm in certain cities, places and districts, in derogation of the common law, and were considered as privileges appertaining to each city or district, and were of no validity elsewhere. The origin of these customs cannot be  [*483]  well ascertained, but were claimed and pertinaciously adhered to as the law of each respective city or district.
I consider it established by the decision in the case of Griffith vs. Griffith's Ex'rs. 4 H. & McH. 101, that it was the common law of England, at the colonization of Maryland, or the grant of the charter to Maryland, and long antecedent to that time, that a widow was entitled to her reasonable part of the goods of her husband, his debts and funeral expenses having been first deducted; and that that reasonable part was one third, or one half, according to the predicament in which she stood at the time of the death of her husband; that this reasonable part was not subject to the dominion or control of her husband; that her right was paramount his power, and that he could not, by his will, deprive her of it.
Although the common law did undergo some change in  [**8]  England, by imperceptible degrees, as to the reasonable part of the children, yet the time and manner of such change cannot be defined with any precision, or in a satisfactory way. It is certain, beyond a doubt, that no change ever took place in the common law, as to the reasonable part of the widow, before the colonization of Maryland. The right of the widow stands on the immutable principles of justice, and has been repeatedly sanctioned by the various acts of the legislature, modifying the right at some times without making any essential alteration.
As soon as the marriage is solemnized, all the personal property of the wife, by operation of law, is vested absolutely in the husband, no longer subject to her control or disposition. She cannot dispose of any part by her will, not even to her child, friend, or dearest relation, without the assent of her husband. This is the fair, the good consideration on which the right of the wife is founded. She who, with a liberal hand, and generous heart, gives all, is well entitled, when her husband can enjoy it no longer, to a third or one half.
The several acts of assembly relating to the right of the wife to a part of the personal [**9]  estate of her deceased husband, commencing with the act of 1699, down to the act of 1798, contain a clear, unequivocal, and explicit recognition of that principle of the common law, which allows to the wife a reasonable part of the personal estate of her deceased husband. The following deductions are plainly inferable from those acts. If the deceased dies intestate, leaving a wife, and without a child, the widow shall have one half of the personal estate. If the deceased makes a will, and makes no bequest of any part of his personal estate to his wife, or an invalid or inoperative bequest to her, and dies, leaving a wife and no child, she shall have one half of the personal estate; because, as respects his wife, he dies intestate; and this is in accordance with the decision in the case of Griffith vs. Griffith's executors, and is the just and sound exposition of the act of 1798, which declares, that it is consonant to justice that a widow accepting or  [*484]  abiding by a devise, in lieu of her legal right, shall be considered as a purchaser with a fair consideration, if the devise proves invalid or inoperative. A purchaser of what? Her share or legal right, because that [**10]  which was intended as an equivalent has proved to be of no value, and he dies intestate of his personal estate as to his wife. Her share, or legal right, depends on the predicament in which she stands at the time of the death of her husband, which will be one half, or one third; one half if he died leaving no child, and of that she is declared to be a purchaser with a fair consideration.
I am of opinion; that the decree of the orphans court ought to be affirmed.
JOHNSON. J. By the decision in the case of Griffith vs. Griffith's Executors, as reported in 4 H. & McH. 101, the common law of England, as it existed on the settlement of Maryland, was adjudged to give to the widow a portion of the personal estate, whether the husband did or did not leave a will.
The various acts of assembly passed in Maryland recognize the right of the widow; the extent of the interest in certain instances has been ascertained; and where a case presents itself, coming within those specified cases, the widow's interest must be governed by them.
The act of 1798, ch. 101, passed before the will in question was made, restricts the widow's interest, whether children or not,  [**11]  to one third in the cases to which the restriction applies. The case before the court does not come within the restricted exception mentioned in the act; and as the testator died without leaving children, or their representatives, I am of the opinion the decision of the orphans court, giving her one half, was correct.
MARTIN, J. concurred.
DORSEY, J. I consider the case of Griffith vs. Griffith's Executors, as establishing principles by which the controversy in this case must be settled. If the point had been res nova, I should have pondered before I decided that the common law of England, at the time of the settlement of Maryland, gave to a widow a part of the personal estate of her husband, in opposition to his will, but as that, and other points directly bearing on the question now before the court, have been settled in the case referred to, I must bow to its authority. I am therefore of opinion that the decree of the orphans court ought to be affirmed.
DECREE AFFIRMED.  

30 of 37 DOCUMENTS 

MAHONEY vs. ASHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 295; 1799 Md. LEXIS 8 

May, 1799, Decided 

PRIOR HISTORY:
 [**1]   PETITION for freedom, the petitioner claiming to be descended from a free woman named Ann Joice.

BILLS OF EXCEPTIONS.

1. The petitioner, at the trial of the issue, by his counsel, produced and offered to read in evidence to the jury the deposition of Ann Hurdle, taken by consent on the 28th of May 1797. But the defendant, by his counsel, objected to the following part of the said deposition being read in evidence to the jury, to wit: "That she [Mary Hurdle, the mother of the deponent's husband,] said just so they served Ann Joice's family; that by all accounts they are in confinement now, and they ought to have been free long ago;" as containing the declaration of opinions as to a right, and not a declaration as to any fact; and therefore improper and inadmissible to go to the jury.

CHASE, Ch. J. a The Court are of opinion that the part of the deposition objected to is admissible to be read in evidence to the jury, the same being general reputation of the fact that Ann Joice's family were free. The defendant excepted to this opinion, &c.

a Done, J. concurring Duvall, J. having been counsel for the petitioner did not sit.

2. The petitioner also offered [**2]  to read in evidence to the jury, the following part of the deposition of Ann Hurdle, taken on the 28th of May 1797, by consent, to wit: "That she has also heard the Tuckers and Lovejoys, who were old people, and who are now dead, talk about it, but cannot recollect what they said, more than they censured those who kept them." To which the defendant by his counsel, objected.

CHASE, Ch. J. The court are of opinion that the part of the deposition objected to is not evidence, and cannot be permitted to be read in evidence to the jury. The petitioner excepted to this opinion.

3. The petitioner also offered to read in evidence to the jury, the special verdict which had been found by the jury, sworn to try the issue in this cause, at October term 1797, b and which had been heretofore set aside by the court on account of the same being adjudged defective, the fact that Ann Joice was in England not being expressly found. To which the defendant, by his counsel, objected, because the petitioner had the same testimony now to support his issue which was offered to the former jury.

b Vide ante pages 63 and 210.

CHASE, Ch. J. The court are of opinion that the special verdict [**3]  may be read in evidence to the jury. The defendant excepted to this opinion.

4. The petitioner, by his counsel, prayed the following direction of the court to the jury: "That if, from the evidence, the jury are of opinion that the woman Joice, from whom the petitioner is descended, was in England, and came from thence, they must find a verdict for the petitioner." 

DISPOSITION:
JUDGMENT REVERSED, and procedendo awarded.  

COUNSEL:
Ridgely, for the petitioner. If Joice was a slave before (which we do not admit) the moment she set her foot upon the soil of England, she became free, no matter where she was born or whence she came. If she was once free, we contend she could not afterwards become a slave by any change of her residence, nor could any agreement between Lord Baltimore, and her former master, affect her, or impair this right in the slightest degree.

Slavery is incompatible with every principle of religion and morality. It is unnatural, and contrary to the maxims of political law more especially in this country, where "we hold these truths to be self evident, that all men are created equal;" and that liberty is an "unalienable right." These doctrines are supported by the writers on [**4]  natural law. 1 Rutherf. Inst. ch. 20, s. 3--"Though it may be possible for a man to be a slave from his birth, yet no man is naturally a slave. They who are slaves from their birth must have been made such by some accident which happened before they were born; slavery is by no means their natural condition." And it is also said, (1 Ruth. Inst. ch. 10, s. 4,) "No man can absolutely and without reserve renounce his liberty." By the common law of England no person can have a property in another as a slave; and slavery can only be established by municipal regulations.

In deciding this question, the court are not to be guided or governed by any principles of law which have been recognized as to villeins in England. There is no analogy between villenage and slavery in this country, and so the court of appeals decided in the case of Butler vs. Boarman. a Indeed the dissimilarity is so evident as to preclude argument. Villeins were either regardant, that is, annexed to the manor or land, or else they were in gross, that is annexed to the person of the lord, and transferable by deed from one owner to another. If a niefe took a freeman to her husband, their issue was free. A man might become [**5]  a villein by confession in a court of record. If a niefe had a bastard, he was free. In case of marriage the issue followed the condition of the father, the children of a free woman becoming villeins, and of a niefe becoming free, where a freeman married a niefe, or a free woman married a villein--Co. Litt. s. 185, 186, 187. These and many other rules of law adopted as to villeins, plainly mark the line of difference between slavery in this country, and villenage in England, and prove the correctness of the decision in the case of Butler vs. Boarman. In the reign of Edward VI. vagabonds in England were by statute made slaves for two years upon conviction before two justices--4 Reeves Eng. Law 451, 452, 453; but this statute was soon repealed, (1 Blk. Com. 424,) and the punishment of slavery abolished, although vagrancy had become an excessive grievance, and the statutes against it were highly penal. This is an evidence of the abhorrence with which slavery was regarded at that day, (1547,) in England. The Portuguese in 1455 commenced the slave trade. They were followed by the Spaniards and Dutch. The African company was established in England in 1672, (Charles II) and in 1689 they entered [**6]  into an agreement to supply the Spaniards with slaves. In 9 and 10 William III. (1698,) an act passed relative to the slave trade; and also in 1726, (13 Geo. I ch. 8,) and in 1749, (23 Geo. II. ch. 31.) None of these acts countenance a slave trade to England. If we revert to the condition of these persons in Africa, we find that they were captives who had been taken in their wars, and were sold to the traders as slaves. The first act of the legislature of Maryland which notices slaves, was passed in 1663, ch. 30. The practice and usage of trade before that act never extended to persons who went to or came from England. The trade from Africa to America was direct; and as the slave trade was contrary to the policy of the common law and of England, no person was held as a slave, unless he came through that course or medium of trade established by act of parliament. "This spirit of liberty," (1 Blk. Com. 127, 424, 425) "is so deeply implanted in our constitution, and rooted even in our soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his services may possibly still continue.  [**7]  " "The law of England abhors and will not endure the existence of slavery within this nation." The law of England did not dissolve a civil obligation between the master and servant as to his perpetual service; but this could not extend to the issue of the servant, and reduce them to slavery. In the case of Smith vs. Brown & Cooper, (Salk. 666,) decided in 13 Will. III. Lord Holt, Ch. J. said, "as soon as a negro comes into England he is free; one may be a villein in England, but not a slave;" and in this case it was determined, that indebitatus assumpsit would not lie for the price of a negro sold in England, and that the plaintiff ought to have averred that the sale was in Virginia, and by the laws of that country negroes are saleable.--S. C. Holt, 495. In the succeeding reign, (4 Ann.) it was determined that trover would not lie for a negro, Smith vs. Gould, (Salk. 666, 667, S. C. 2 Ld. Raym. 1274.) In this case, (in Lord Raymond,) per totam curiam. "This action does not lie for a negro, no more than for any other man; for the common law takes no notice of negroes being different from other men. By the common law no man can have property in another." "There is no such thing as a slave [**8]  by the law of England;" and the court denied the opinion in the case of Butts vs. Penny, (2 Lev. 201. S. C. 3 Keb. 785,) and per Holt, Ch. J. (1 Lord Ray. 146.) Trover will not lie for a negro. In the year 1753, the legislature of Virginia, persuaded of the correctness of the doctrine we contend for, passed a law to prevent slaves getting free by going to England. Our act of assembly, (1663, ch. 30,) does not relate to negroes who came from England; this must be inferred from the words of the act, which says, "that all negroes, and other slaves, IMPORTED," &c. The term imported does not allude to any who may come from Great Britain; it must be applied to those brought here from Africa, with which country the slave trade was then sanctioned. The act does not say all negroes brought into Maryland shall be slaves.--The words of the law are, "that all negroes, or other slaves, already within the province, and all negroes and other slaves to be hereafter imported into the province, shall serve durante vita; and all children born of any negro or other slave, shall be slaves as their father's were, for the term of their lives." b--Lib. C. & W. H. fol. 153. This act is highly penal and therefore [**9]  by the general rule ought to be construed strictly, and not extended beyond the letter of the law.

a 1 Harr. & M'Hen. 371. 2 Harr. & M'Hen. 214.

b See 1 Harr. & M'Hen. 371.

With all these cases and principles in our favour, we contend that the act of Joice's landing in England, operated as an emancipation of her from the bonds of slavery, even if she were a slave before. If this be the law of England, our courts will notice that law; for the rule is undoubted, that courts of justice will notice the laws of other countries, and enforce them, where a principle like the present is agitated, if they are not repugnant to justice or to our own civil institutions. Then Joice's issue, born in England, could not be slaves, or held as such. We will for illustration suppose, that a writ of Habeas Corpus had been issued for Joice, and she had been discharged, she never could have been claimed afterwards as a slave. Again, suppose a petition had been filed by her in Maryland, and judgment given against her, and upon an appeal to the king in council that judgment had been reversed, would not she and her issue be free? This case must now be considered as it would have been at that [**10]  time. Even now, if we advert to the laws of a sister state, Pennsylvania, if a person from this state carries a slave into that state, and keeps him there six months, the slave becomes free and emancipated, and could not be held in slavery if he returned again to this state. So it was with Joice, and her issue, after she went to England.

He concluded his argument by observing, that he was confident the court would decide fairly and without bias between these parties, thus evincing to the world, that what Mr. Solicitor General Norton, in the case of Wilkes vs. Wood, (Lofft's Rep. 9) had said as to freedom in England, was equally applicable here, "that there is no man so high that he is out of the reach of the law, nor any man so low, that he is beneath the protection of it."

Jenings, on the same side. This question is to be decided upon the principles and maxims of the law of England. As a preliminary we must see what the writers upon English law have defined slavery to be. Grotius L. 2, ch. 5, s 27, calls it an obligation to give all our labour for a supply of the bare necessaries of life. Rutherforth, in his institutes, B. 1. ch. 20, thus defines it; "Perfect despotism seems [**11]  therefore to be an alienable right to direct all the actions of another; and consequently perfect slavery is an obligation to submit to be thus directed." Neither of these definitions are satisfactory. The master may have a right to his servant's perpetual service; he may have a right to administer correction; but he has no right over life or limb. Slavery cannot be justified on any principles whatever, and it is reprobated by every writer upon the subject. The great foundation upon which it rests is captivity--Puff. B. 6, ch. 5, s. 10, ch. 3, s. 6. Grotius B. 3, ch. 7, s. 7. Rynk. Lib. 1, tit. 3, Mont. B. 15, ch. 3. 2 Ruth. 573. 1 Ruth. 478. Amongst many other causes or reasons given for slavery, the most reasonable one is assigned by Ruther-forth in his institutes, Vol. 1. B. 1, ch. 20. s. 4.--"Thirdly, slavery may arise from damages done where the person who did it has no other way of making reparation." And again, Vol. 1. B. 1. ch. 9. s. 17. "The law of nature will allow those who are prisoners to be made slaves by the nation who takes them, to repair the damages that gave occasion to a just war, or that are done in it, and to make satisfaction for the expenses in carrying it on,  [**12]  so that their labour, or the price for which they are sold, may discharge these demands." To the same effect is Grotius, L. 3. ch. 7. s. 5--This is the reason assigned by every nation, Greeks, Romans, Jews, Germans, &c. Tucitus, ch. 24, 25. Cesar's Com. 13. But none of these reasons exist as to the natives of Africa. And in vain shall we recur to these principles for arguments to justify slavery, so utterly subversive and contrary as it is, and as all the decisions go to prove it to be, to the very spirit and genius of the laws of England. To prove the abhorrence with which the slave trade was viewed, he called the attention of the court to an extract from a very celebrated work, which would evince how soon was its decline in Europe--1 Robertson's History of America, B. 3, pa. 320, ch. 5--"One of the first advantages which the Portuguese had derived from their discoveries in Africa, arose from the trade in slaves. Various circumstances concurred in reviving this odious commerce, which had been long abolished in Europe, and which is no less repugnant to the feelings of humanity than to the principles of religion." And in England the most effectual remedies have from time to time been [**13]  adopted for the suppression of slavery. No where can we find in the history of its jurisprudence, or in the writings of the various authors who have commented upon its constitution and laws, a single passage which justifies slavery, as it is thus defined, or speaks of it as existing there. In 1580, slavery commenced by the importation of them to America. No species of bondage ever existed in England excepting villenage. Villeins were either by blood or tenure; their services were uncertain and indeterminate; they were liable to punishment, but no lord could kill or maim them. A freeman might be a viliein, for the rule was "villenagium sive servitium nihil detrahit libertate." And again "tenementum non mutat statum liberi non magis quam servi; poterit enim liber homo tenere purum villenagium, faciendo quicquid ad villanum pertinebit, et nihilominus liber writ"--Co. Litt: 116. Term de Ley, tit. Villenage. Villenage descended to the issue where the father and mother were villeins--Co. Litt. sect. 181. But if a freeman married a niefe their issue was free--Co. Litt. 123, a. Wilkins, 7, 8. Tenure in villenage is of an ancient date. Before the conquest there were villeins in England--1 Hume's [**14]  Hist. Eng. 181--This was 500 years before the nation engaged in the slave trade. The courts have always discouraged this tenure, widely differing in many essential respects from slavery; and in every case they have invariably acted upon the principle of always presuming in favour of liberty--Co. Litt. sect. 202, to 209. Fitzh. N. B. 78. 2 Roll. Ab. 735, 736, 737. In the reign of Elizabeth, villenage was at an end; it was abolished. The last case to be found upon the subject of villenage is in Dyer. 266, pl. 11. 283, pl. 32. Cro. Ent. 406. a. Yelx. 2. Noy. Rep. 202. Hugh. Ab. tit. Villenage. Villenage ceased to exist as early as the reign of Edward VI. (2 Blk. Com. 99,) excepting in a few cases where they were held by the clergy. Whether this gradual decay was owing to deaths or manumission, actual or implied, it matters not. The tenure was virtually abolished by the statute 12 Car. II. ch. 24. Charles, Lord Baltimore, who claimed Joice as a slave, left England in 1681. He had been in the province presiding in person in the assembly in 1676, and was again presiding in person in the assembly in September 1681, and continued so presiding at each session until and during December 1688.--Bacon's [**15]  Laws of Maryland. In 1689 there were negroes in America--2 Lev. 201. Villenage had ceased in England before Lord Baltimore left there. If he brought Joice from thence with him, she was a free woman, and his thus taking her among slaves could not alter her condition. Or, on the other hand, if he, or any other person, finding her a slave in this country, carried her to England, she then became free; for not even villenage at that day existed there, having ceased before 1661. That villenage did not exist after 1574, is to be presumed from what is said by Barrington in his observations on the statutes, page 238. If therefore villenage did not exist when Joice was in England, surely slavery could not. No matter what may have been the condition of Joice previous to her being in Fngland, the moment she arrived there she was free; at least she was so far so that her issue born afterwards were in no degree bound to the service of her master.--1 Lord Ray. 146, 147. 5 Mod. 186. Judelinus, 6. Venius. 32. Denewey, 5. It may, as to this case be granted, that the master had still a right to the service of the former slave durante vita. A case is mentioned in 1 Lord Ray. 146, 147, between Gelly and [**16]  Cleve, in which it was said the court determined that trover would lie for a negro boy. This decision is stated to have been in the common pleas before Lord Raymond commenced his reports. If that court ever did make such a decision, it must have been without argument. The case is only cited from memory, and it has been since repeatedly overruled. After weighing these several authorities, even if it be granted that Lord Baltimore had at any time previously been entitled to Joice as a slave, yet this right was divested on her going to England; and being once thus divested, it never could again attach so as to affect her issue. Much may be said as to the injustice of this case, and the hardship of it; there is no injustice in making the decision, contended for on the part of the petitioner; it was a voluntary act in Joice's owner who carried her to England. Let us suppose the case of a ship from Africa, loaded with these human victims to an infamous traffic, being stranded on the coast of England, there would be no injustice in freeing them from a bondage which fraud, violence and rapine, had forced upon them; although their being thus cast upon a friendly shore would be an act of God,  [**17]  which their owners could not avert. And the counsel on the other side cannot contend that the cargo of slaves would not be free. If there is any injustice, any hardship in this case, the petitioner, and his ancestors, have suffered it; they have been held in thraldom when they were entitled to their freedom; they have been the victims; they have been the only sufferers.

Martin, (Attorney-General,) for the defendant, [See his argument in the court of appeals, Post.]

Johnson, for the petitioner, was about to reply, but was stopped by the court.

CHASE, Ch. J. delivered the following opinion of the court.

Every villein is by-prescription or confession in a court of record--Co. Litt. 117. b. The last confession of villeinage extant is in the 19 Hen. VI. (1441.)--Lofft. 17, Lord Mansfield's opinion. In the time of Edward VI, (who was crowned in 1547,) there was not a villein in gross in England--2 Blk. 96. Charles was crowned in 1625--the charter of Maryland was in the 8th Chas. (1633.) The laws relating to villeins do not respect this case, nor can they have any influence in deciding it. Joice, the ancestor of the petitioner, was emancipated as soon as she was brought [**18]  into England, and her condition was changed from that of slavery into servitude for life; and when she was brought into Maryland by Lord Baltimore, she was only a servant, and the laws concerning slaves did not attach on her, and slavery was not resumed by her coming here, and consequently her issue are free. The numerous acts of parliament respecting the African trade being founded on policy, and having in view the transportation of negroes from Africa to the West Indies and the plantations, never contemplated the bringing slaves to England; and however inconsistent the parliament might be in sanctioning and promoting that inhuman and iniquitous commerce, and not protecting and securing the rights and property acquired under them in their fullest extent; they did not, they could not operate to change the common law of England, and to tolerate slavery in that country. In 2 Salkeld, 666, the decision by Lord Holt, chief justice, is full in point--it is not a mere dictum, but a determination of the question before the court. Holt held, that as soon as a negro comes into England, he becomes free. One may be a villein in England but not a slave. He directed the counsel to amend the declaration,  [**19]  and to declare that the negro was in Virginia at the time of the sale; and that by the laws of Virginia negroes were saleable as chattels. If they had been considered as property and saleable by the laws of England, the sale would have been valid if made there. In 2 Salk. 667, (Smith vs. Gould,) per curiam--men may be the owners, but cannot be the subject of property by the law of England. 1 Blk. Com. 424--The laws of England will not endure slavery within the nation. He then refers to the decision by Holt in Salkeld--a slave, or negro, the instant he lands in England becomes a freeman, and the law will protect him in the enjoyment of his person and property, and the master retains a right to his perpetual service. In 1 Ld. Raym. 146, it is adjudged that trespass will not lie for a negro; and it is said by Holt that trover will not lie for a negro. In 2 Ld. Ray. 1274--It was decided that an action of trover would not lie for a negro. By the common law no man can have a property in another. Although the judgment was by default, the question came before the court on the writ of inquiry, whether the damages should be assessed for the negro; and the court decided as above. The case of [**20]  Butts & Penny, in 2 Lev. 201, denied to be law. Lofft, 17, 19--Lord Mansfield decided, that a slave was free by coming to England; the slave could not have been discharged on any other ground. If Somerset was the slave or property of Stewart, Stewart had a right to send him to Jamaica for sale, or to any other place. His dominion or power over him as a chattel would have been complete; but the court discharged him because he was free. The court in this case had all the law before them, and after full consideration of it, and after paying due attention to the opinions of Sir Philip Yorke, and chief justice Talbot, they discharged Somerset on the ground that he was emancipated by being in England.

The court, in forming their opinion on the question before them, to make use of the language of Lord Mansfield, have not regarded the inconvenience, hardship or loss, of the master on the one side, nor suffered their judgment to be influenced by compassion on the other. The law of England upon which this question must depend, is the rule which has guided their decision, and if they should err they will derive consolation from the reflection that there is a superior court to correct their [**21]  mistake. This question, in the apprehension of the court, depends on the common law of England. The common law of England is founded on principles of natural justice, and rests on immemorial usage and custom as its foundation. The common law must prevail in England until changed by act of parliament. The decisions of the courts of justice, contained in our books of reports and the treatises of learned sages of the profession, are the monuments and evidences of what the common law is. Slavery is not tolerated by the common law, and according to that law a slave becomes free as soon as he lands on English ground. His condition is changed from that of slavery to servitude for life. The relationship of master and servant subsists in some degree, and in all respects, not incompatible with the common law of England. The master has an interest in him, and a right to his services for life. The master retains the power of moderate correction, and a power of confining him for the purpose of compelling him to render that service the master has a right to. The rights and power of the master may be assimilated to those which exist in the case of apprentices and of servants for years or life. An [**22]  action will lie for the taking of a negro with a per quod servitium amisit. A right to the perpetual service of the negro is not incompatible with the right of the negro to the protection of the laws and the enjoyment of property. A servant for years or for life is entitled to the protection of the laws, and is capable of taking and holding property. He might acquire property by gift or devise, and the master would have no power over it. A slave is incapable of taking or holding property. The acquirements of the slave belong to the master, and the issue are slaves. The courts have decided that every negro held in slavery or as a slave, was presumed to be a slave, and that the onus probandi lay on the negro petitioning or claiming freedom. This opinion is founded on the acts of 1663, ch. 30, and 1715, ch. 44, declaring that all negroes and other slaves imported, or to be imported, should be slaves durante vita. The courts have not decided that these words operate to make all negroes slaves who were free at the time of passing the above acts; a presumption was created thereby, that all negroes held as slaves were such, and the onus probandi was cast on the negro who petitioned for his [**23]  freedom, which, like all other presumptions, was liable to be combated and repelled by proof.

The court gave the direction to the jury as prayed by the petitioner. The defendant excepted to this opinion.

5. The defendant, by his counsel, prayed the direction of the court to the jury, "that if from the evidence in this cause they are of opinion that a woman called Joice, the ancestor of the petitioner, was a negro woman carried with her owner, claiming her as a slave, from the island of Barbadoes to England, and afterwards brought into this country by Lord Baltimore, claiming her as a slave, between the years 1678 and 1681, and that she, during her life was held, used and treated, as a slave, and that her issue have been held as slaves ever since, that then they must find a verdict for the defendant."

Shaaff, for the appellant. As to the first bill of exceptions--The question here is, as to the admissibility of a certain part of the deposition of Ann Hurdle, wherein she states, "that she (the mother of the deponent's husband) said just so they served Ann Joice's family; that by all accounts they are in confinement now, and they ought to have been free long ago." This [**24]  evidence was admitted by the general court, upon the ground of its being hearsay, and that it is evidence of subjects of general reputation. It is very questionable whether the fact of being free is a subject of general reputation, which may be proved by hearsay. Yet granting it to be the case, here the evidence adduced, and allowed by the court to be read to the jury, did not go to the fact, but to the right to be free. Certain facts may be proved by hearsay, but rights cannot; as in this case, hearsay may be evidence of the party's having acted as a free person; but it cannot be admitted to prove a right of freedom. What does this part of the deposition amount to? It is only an expression of Mary Hurdle's opinion of the right of the Joice's to their freedom. No facts are stated upon which this opinion was founded. If those facts were disclosed, it might be found that this opinion of Mary Hurdle was erroneous. Many instances might be put of mistaken opinions; to instance some, she might have heard that they were set free by will; that they were the descendants of a free white woman; and numberless other causes which report might have assigned, and which, if they had been given as [**25]  the grounds of her opinion, might have proved either to have been unfounded in fact, or if true, not sufficient in law to warrant the conclusion her illiterate mind drew from them. There is no instance, not a case can be produced, in which hearsay has been admitted as evidence of a right. If this doctrine is to prevail, in future times an opinion may prevail, that all negroes have a right to freedom; this may in the course of years come to be a general report; and according to the doctrine of the general court, will then be admissible as evidence to go to the jury.

Second bill of exceptions. This exception was taken by the petitioner, and as he has not appealed from the judgment of the general court, the court of appeals will not, it is presumed, give any opinion as to the correctness of the decision contained in it.

Third bill of exceptions. This exception is to the opinion of the general court, admitting the special verdict, taken in a former trial between the same parties, and set aside by that court as being defective, to be read in evidence at the last trial in this case. The special verdict was set aside for insufficiency; no judgment was rendered thereon; yet notwithstanding,  [**26]  it was admitted to be read in evidence at a future trial, although the petitioner had the same evidence in his power to produce, which he had when the special verdict was found.

To support the opinion of the general court, the counsel for the appellee will, it is presumed, cite Gilb. L. E. 37. 3 Com. Dig. 279. 1 Roll. Rep. 46. But we contend that these cases do not justify the decision which has been given. When a verdict is set aside, it seems clearly that it is void, and is of no more force or effect than if it had never been given. That a verdict cannot be given in evidence without the judgment upon it, cites Bull. N. P. 234. 1 Morg. Ess. 94, 99, 100. Lofft's Gilb. 38. 1 Stra. 162. 3 Com. Dig. 279. Hardres 118.

Fourth bill of exceptions. That if Ann Joice, the ancestor of the petitioner, was in England, and came from thence, the petitioner is free.

Upon this exception three questions arise, viz.

1st. Whether a negro slave carried to England is there free?

2d. Whether if he there becomes free he is not again a slave when brought to Maryland?

3d. Whether the exception is not so worded as to exclude these questions, and must not be reversed on another [**27]  ground?

1st. It is not necessary to prove the property of slavery; that it does in fact legally exist is sufficient. The property in the slave is very different from that which a master has in a servant. A slave has no rights--Even the murder or maiming one is only an offence against government. The master has not only a right to his services, but to his person. Ann Joice went a slave to England, and as the law protects property, she was not a subject for the law to operate on. The Magna Charter relates to freemen. Every man shall enjoy those rights which the law does not take from him; and of coarse the master had a right to the property in his slave, and neither the common nor statute law took it from him. That trover will lie for a negro, &c. he cited 2 Lev. 201. (2 Car. II. in 1677.) 3 Keb. 785, (2 Car. II. in 1677.) 3 Lev. 336, (4 Ann, 1702,) see 1 Blk. Com. 129. 451. 2 Blk. Com. 406. Gelly vs. Cleve, 1 Lord Ray. 147. That trover will not lie for a negro, will be cited 2 Lord Ray. 1274, (5 Ann, 1706,) Salk. 666. 1 Lord Ray. 147. 1 Lofft, 17. The Somerset case, 1 Lofft, 17, is not conclusive. It only determines that slaves cannot be held in England.

2d. On this part there [**28]  can be no authorities. The law of England will not destroy a man's right of property; and although the slave could not be held in England, yet when brought here he may--1 Blk. Com. 129, 451, 452. There is no reason why a negro brought from England, or any other place, should not be a slave. What is the nature of the slave trade? It is not founded on positive law, but it is founded in custom. In the years 1585 and 1588, charters were granted by Queen Elizabeth encouraging the slave trade. This was long before the charter of Maryland was granted. The trade was not confined to any place; it extended to many African islands, Madagascar, &c. It was of no consequence where a negro was brought from; when here he was a subject of property. Hence I conclude, that if a negro was brought from England he might be sold here as a slave. The first acts of assembly of Maryland upon the subject, are 1663, ch 30, and 1681, ch. 4. By these acts, and by the act of 1715, ch. 44, all negroes, and other slaves, imported, or to be imported, are declared slaves during life. If Ann Joice was in this country at the time of passing these laws, and if they have the power, they have enacted that she is a slave.  [**29]  The operation of these laws are important for another purpose; they have declared all negroes to be brought into this state shall be slaves. If Ann Joice was brought after the operation of these laws, she comes clearly within them, and is made a slave. These laws make no distinction as to the place from whence a negro comes. They cannot be said to be retrospective. It is the same case with every negro brought into the state from Africa; they are made slaves by the law of this state, either by positive law, or by custom recognized as law.

3d. The form of the exception will exclude these questions. The court have directed the jury, that if Ann Joice had been in England, and came from thence to Maryland, the petitioner was free. This is not law in the generality; because it is clear, that Joice might have been in England, and yet her issue not entitled to freedom. For example--Suppose she had run off and went to England; or if the Guinea ship, in which she was, had been wrecked and obliged to put into some English port; or suppose her issue had bound themselves as servants, &c.

Fifth bill of exceptions. This exception will depend upon the fourth exception. It is the converse [**30]  of that exception; and if a negro, having been in England, does not make him free, the court ought to have given the direction which the defendant prayed for.

Harper, on the same side. [The first part of the notes of his argument have been mislaid.] In Somerset's case, 1 Lofft, 17, Lord Mansfield does not say the negro becomes free, but that the right of the master cannot be enforced in England. The question of freedom was not before the court. It was, whether the right of service could be enforced. Lord Mansfield recognizes the opinions of Hardwicke and York. 2 Ld. Ray. 1274, recognizes the right, but differs as to the mode of enforcing it. Lord Holt meant that the right to the negro was only suspended, not divested.

Fourth question (on the fifth bill of exception,) as to the generality of the opinion of the general court.

No right can originate in a wrong. He refers to the case of salvage, decided in the supreme court of the United States, (1 Cranch, 1.) where to support a demand for salvage, the capture must be lawful, and a meritorious service must be rendered. Apply the above maxim--if the slave had runaway and gone to England, or had done an unlawful act, yet,  [**31]  by the opinion given by the general court, she was set free. Suppose she had consented to have been stolen, and carried to England, she, by that opinion, would have been free.

Cooke, Key, and Mason, on the same side. [The notes of their argument have also been mislaid.]

Johnson, for the appellee. First question (on the first bill of exceptions.) The court are not bound to determine on the bill of exceptions alone, they may decide on the whole of the case, and if it appears to them that the petitioner is entitled to his freedom, they may affirm the judgment. Whether or not the petitioner is entitled to his freedom, is a fact; and in all cases of petitions for freedom hearsay evidence has been admitted in evidence to prove the petitioner entitled to freedom; for instance, in the cases of the Savoys, the Shorters, the Thomas's, the Queens, the Bostons, and the Toogoods, (all tried and determined in the general court, and most of them decided on in this court;) the reputation of the neighbourhood, as to the fact of freedom, was admitted in evidence.

Second question, (on the third bill of exceptions.) The special verdict was properly admitted in evidence to the jury. In [**32]  Gilb. L. E. 32, it is stated, that if a verdict be had on the same point, and between the same parties, it may be given in evidence. The reason given why a verdict may be given in evidence is, because the parties have a right to cross examine; which reason applies, as well to a verdict where no judgment has been entered thereon, as it does to one where a judgment is given.--Morg. Ess. 92. So a verdict in another action for the same cause shall be allowed in evidence between the same parties, though the judgment was afterwards arrested for want of form. Morg. Ess. 93. 3 Com. Dig. 281. 2 Roll. Ab. 46. The case in Bull. N. P. 234, is a nisi prius decision, and not high authority; it is the same case referred to in Lofft's Gilb. 38. So if the jury are agreed, and afterwards discharged, before verdict given and recorded, it shall be allowed in evidence that the jury were agreed.--1 Morg. Ess. 94. 2 Roll. 680. The case in Hardres's Rep. 118, does not apply to the present question. The case in 3 Mod. 141, shews that the case referred to by the elementary writers does not support the position contended for on the other side. And the case in 1 Stra. 162, proves that the verdict may be admitted [**33]  in evidence for some purpose, to prove a trial was had between the same parties.

He distinguishes between a special verdict, and a verdict where the judgment is arrested.

Third question, (on the fourth bill of exceptions.) The moment a slave arrives in England he is as free as if he had been legally manumitted by deed. Joice having been in England, she was, and her issue are, free; and no contract made between Lord Baltimore and her master, is valid, because she did not consent. Having been once free, she and her issue always remained free, and no subsequent event could effect a change in their condition. No person is naturally a slave, and by the common law of England no person could have a property in another.--1 Ruther. 149, 474. There is no analogy between villenage and slavery--Co. Litt. sect. 185, &c. There are two kinds of villeins; regardant and in gross. Villeins regardant are annexed to the manor or land. Villeins in gross are annexed to the person of the lord, and transferable by deed from one owner to another.--2 Blk. Com. 93. Co. Litt. s. 181. If they ranaway, or were purloined, they might be claimed and recovered by action, like beasts or other chattels. The [**34]  law protected the persons of villeins against atrocious injuries of the lord; for he might not kill or maim his villein, though he might beat him with impunity.--2 Blk. Com. 94. The condition of villeins regardant meliorated by degrees, and they at last were considered as having a right to hold the land on performance of the accustomed services, and the lord could not determine their estate at his will and pleasure; and in process of time they were called tenants by copy of court roll, and their tenure itself a copyhold--2 Blk. Com. 95. When tenure in villenage was virtually abolished by the statute of Charles the II. there was hardly a pure villein left in the nation--2 Blk. Com. 96. There was an attempt by law to make vagabonds slaves, but it was rejected by the nation.--2 Blk. Com. 91, 92. Slavery originated with the Portuguese in 1543. The Spaniards and Dutch soon followed. In 1562 England followed before the navigation act. In 1672 the royal African company was established; and in 1689 England's first assiento-contract with Spain to supply their West Indies with negro slaves from Jamaica. A slave touching in England became free like contraband goods. They must come in the direct [**35]  route from Africa to this country, or they came voluntary, and are free. In 2 Lev. 201, (29 Car. II. 1676,) it was held, that trover would lie for negroes as they were usually bought and sold among merchants as merchandize. But in 2 Lord. Raym. 1274, it was decided, that trover would not lie for a negro. By the common law no man can have property in another, but in special cases, as in a villein. There is no such thing as a slave by the law of England. If a man's servant is taken from him, he may maintain an action for taking him, if it is laid with per quod servitium amisit. The court denied the opinion in the case of Butts and Penny,--2 Lev. 201. The spirit of liberty is so deeply implanted in the English constitution, that a slave or negro, as soon as he lands in England, falls under the protection of the laws, and becomes a freeman; though the master's right to his service may continue--1 Blk. Com. 127. The law of England abhors and will not endure the existence of slavery within the nation--1 Blk. Com. 424. The relation between master and slave is not abolished or dissolved by the slave's going into England; it still subsists in some degree; the right of property is divested;  [**36]  trover will not lie; neither will trespass lie. 1 Ld. Raym. 146.--A right to the services of the slave still exists, and an action will lie for the taking a negro with a per quod servitium amisit. The master may maintain an action against any one who employs him after notice of the relationship subsisting between the master and him, and recover damages equivalent to the loss sustained thereby. Every right and remedy, not incompatible with the laws of England, may be exercised by the master. If a man is hired for a year or term of years, and deserts the service of his master before the expiration of the time he contracted to serve, an action will lie, and damages may be recovered. Men may be the owners, and therefore cannot be the subject of property--Salk. 666. As soon as a negro comes into England he becomes free--Holt's Rep. 495. In the great case of Somerset, (Lofft's Rep. 9.) it was finally ascertained and declared to be the law of the land, that as soon as ever any slave set his foot upon English territory he became free.

Ridgely, on the same side. [See his argument in the general court, ante.]

Martin, (Attorney General,) in reply. This was an action tried in the general [**37]  court, before a jury, on matter of fact, and not before the court, as was formerly the course of trying petitions for freedom. The court only decided the law arising in the case. This court can therefore take notice only of such parts of the depositions as are inserted in the bills of exceptions taken at the trial. The record transmitted contains the whole of the written testimony offered at the trial; but there was parol evidence offered; which forms no part of the record before the court. And if this court were to decide on the evidence as it appears before them, they would act upon a very inconsiderable part of what was before the jury. The question must depend on those parts of the depositions upon which the general court decided, and to which bills of exceptions were taken by the defendant in that court.

The first question arises upon the first bill of exceptions, as to the evidence of opinions as to a right, and not of facts whereon such opinions were grounded. General reputation may be given in evidence of facts in certain cases, but not the legal inference deducible from facts. A witness has no right to give an opinion to the jury of a right; he must relate facts, and [**38]  the jury are to form their opinion from those facts. Whether a person exercises the right of freedom is a fact; but his right to freedom is not a fact. Persons are frequently declaring that all negroes are entitled to freedom--Forty years hence this will be reputation, and be brought forward to prove they are entitled to freedom. Our courts have determined that general reputation, that such persons are descended from white women, or that they have exercised the right of freedom, is evidence to the jury. It is giving the power to ignorant persons to judge of rights. In the case of the Butler's, reputation was given in evidence that they were descended from a white woman; so also in the case of the Toogood's. In the case of the Queen's, that they were descended from a native Indian of South America. In all these, and in many other similar cases, hundreds of negroes have been let loose upon community by the hearsay testimony of an obscure illiterate individual.

Second question, (on the third bill of exceptions,) whether or not a special verdict, set aside for defects, can be given in evidence in a subsequent trial between the same parties. The same evidence, it is admitted, was in [**39]  the power of the party at the last trial which he had at the time when the special verdict was found. What one jury finds is not to bind the consciences of another. Whenever a verdict is allowed to be given in evidence, the introductory evidence is not read to the jury; it is only evidence that there had been a trial between the same parties in order to introduce an account of what the witnesses swore at the trial. No case has been produced where a special verdict, upon which no judgment had been given, has been read in evidence at a subsequent trial. A verdict will not be admitted in evidence without likewise producing a copy of the judgment founded upon it; but the rule does not hold good in the case of a verdict on an issue directed out of chancery, because it is not usual to enter up judgment in such case; but the decree of the court of chancery must be produced.--Buller's N. P. 234. Theory of Evid. 21. The bare producing the postea is no evidence of the verdict, without shewing a copy of the final judgment; for it might have happened that the judgment was arrested, or a new trial granted.--Esp. 750. 1 Stra. 162. In Com. Dig. tit. Evidence, it is said, a verdict may be given in [**40]  evidence, although the judgment was arrested for want of form--(Cites 2 Roll. Ab. 46.) But in the same book contra, (cites the case in 1 Stra. 162,) and also, "If a verdict be offered in evidence it ought to be proved by an exemplification of the verdict and judgment upon it." The cases in 2 Roll. Ab. 46, 680, do not support the position contended for by the opposite counsel. Lofft's Gilb. 35, when abridging from Gilbert, leaves out that part which says if judgment given in evidence, &c.

Third question (on the fourth bill of exceptions) is, whether or not if Joice, the ancestor of the petitioner, was in England, and came from thence to Maryland, she and her issue are free? If Joice was a slave, and was sold as such, she did not by the mere act of going to England become free and enfranchised. There the law recognizes the doctrine, that a person may have property in a negro. But supposing she was entitled to her freedom, if there was no adjudication in her favour in England, the right of her master was not divested, and upon her being brought into this country she was placed in the same situation as to her master, in which she was before she went to England. It has been said that [**41]  there is no analogy between villenage and slavery. I contend that a slave and a villein mean the same thing; that villeins are slaves; cites Co. Litt. 116. a. 117. b. 123. sect. 187. Chamber's Dict. verbo. villein Cowel Inter. tit. Villein. Sullivan's Lectures, 64, 307, 308. Dalrymple's Feuds, 28, Finche's Law. 159. Bracton, B. 1, ch. 6, 9. Fleta, p. 1, c. 1. Mirror, 109, 110, 112. Spetman on Feuds, ch. 7, p. 15. 2 Blk. Com. 93. Villeins might be recovered by action like other chattels. The conclusion is, that by the common law, men were slaves, and that slavery did and can exist in England. A negro in America is in the same state that a villein in gross was in England, subject to the will of his master, labouring under every incapacity as to the rights of property, and liable at any and every moment to be sold. It is urged against this, that his lord had no power over the life or limb of a villein--neither here has the master of a slave any such right. A villein might be confined by his lord; so can a slave be confined by his master. It has also been said, as evincing the distinction between slavery and villenage, that one villein could sue another. This is a mere difference between [**42]  the legal institutions of the two countries. If a villein did sue another, whatever he recovered went to his lord; but with us the form of remedy given to the master is different; for he must sue in his own name, and not in that of his slave, who can have no rights but those of personal protection from being cruelly and wantonly maimed or murdered, a right which they derive from the mere circumstance of their being human beings, and of course, as well as ourselves, under the protection of the divine laws. Neither did, as has been contended, the statute of Charles II. relate to villeins in gross. It affected only villeins regardant. The law as to the former is still unrepealed, although there are now in England no objects for it to operate upon. A negro is not within the contemplation of the laws of England. Magna Charta was a compact with the freeman, and extends not to villeins, ch. 4. vide also Barrington on statutes, 8. Much has been said about the rights of villeins in England; the history of their jurisprudence by no means shews that they were regarded in a favourable light, but indeed in quite a contrary one. The laws about villeins were most severe, and highly penal, as for [**43]  instance the statute 25 Edw. III. ch. 18. By another statute, if they departed from the service of their master, and went into another county, they might be reclaimed and punished with burning in the forehead. It is true a villein might have a writ of habeas corpus if unjustly or without cause detained in prison; but disobedience to his lord, or refusing to obey his lawful commands, were adjudged sufficient causes. 33 Edw. III.--"Villein detained in confinement for refusing to drive his lord's cattle, and remanded on habeas corpus." Even the celebrated petition of right, (3 Car. I. ch. 1,) in 1628, speaks only of freemen. In the 5th clause, after reciting in the previous ones the privileges of the freemen, the grievance complained of is, that the king's subjects had been detained and imprisoned without cause shewn; and when for their deliverance they were brought before justice by writs of habeas corpus, no cause was certified by their keepers, "but that they were detained by the king's special command, signified by the lords of the privy council." And in clause 10, the request of the parliament is, "that no freeman in any such manner as is before mentioned, be imprisoned or detained"--5 [**44]  Hume's Hist. Eng. ch. 51. Note [B. B.] In the habeas corpus act, (31 Car. II. ch. 2, s. 12,) there is a provision to prevent imprisonment beyond seas; but this act is confined to the subjects of Great Britain--Villenage was at that time literally worn out; hence is the reason why the term freemen is not used. I contend that this act never was intended to be applied to negroes, of whom there were none at that time subjects of the realm. The history of the slave trade has been adverted to--no person can properly advocate slavery, but the emancipation of slaves at this time would be productive of incalculable evils. I am not an advocate for slavery; neither has the morality or immorality of the practice any thing to do with this case. The only question before the court is this, what is the law upon the subject? To determine this question it may not be improper to advert to the history of the slave trade, and view its rise and progress. The discovery of America first gave rise to it; and we find the Portuguese were the first who engaged in it in the year 1443. The Dutch soon followed their example. The English did not engage in this trade until 1562, and slaves were first brought into [**45]  Virginia in 1620, long after the patent of Queen Elizabeth to an African company, in the year 1585. It may here be remarked, that the trade to Africa was carried on under the sanction of the British government; and this will rebut the arguments which have been so much pressed as to the abhorrence of the laws of that nation to slavery. In 1592 another patent was granted, under which this trade to the coast of Africa was prosecuted until 1618, when a new charter was granted by James I. In 1631 Charles I. granted another charter; and in 1651 the Rump Parliament granted a similar one. These, or at least some of them, were after 1620, when slaves were first brought into Virginia.

After the restoration, we find that Charles II. in 1662, incorporated his own brother, the Duke of York, and many others, into a company, which contracted to supply the plantations, as we were then called, with slaves. About this time a war broke out between England and Holland, and this charter either expired or was revoked. But again in 1672 the Royal African Company was incorporated, and the sum of 111,000l. sterling was subscribed as a capital. It is in vain that we recur to these acts of the government [**46]  itself for evidence of its abhorrence of the slave trade; they prove quite the contrary of the doctrine advanced by the counsel on the other side. This last company supplied the American plantations with slaves, and also the Spaniards, as we find in the reign of William & Mary; in 1688 they entered into a contract with Spain for supplying their West-Indian possessions with slaves. Until 1698 the slave trade was carried on under the auspices of the English government, and was a monopoly until that time, when a law was passed (9 and 10 W. III. ch. 26,) granting liberty to all the king's subjects to trade on paying 10 per cent. to support and repair the forts and castles on the African coast. In 1709, 1711, and 1712, the parliament declared that this trade should be open to all the subjects of the realm. In the treaty of Utrecht in 1713, there is an express stipulation, that 4800 slaves should be annually supplied to the Spaniards. In 1726, (13 Geo. I ch. 8,) the trade to Madagascar was opened to the South Sea Company, with the consent of the East India Company; their ships were not prohibited by this act from coming to Great Britain with slaves, though the act rendered it unnecessary [**47]  that they should touch there. This trade in the year 1748, was found to be an extremely beneficial one, and in that year the Royal African Company relinquished their charter. The trade to the coast of Africa was afterwards, in 1750, opened to all the subjects of the realm, by the act of 23 Geo. II ch. 31; and two years after this act, the Royal African Company were divested of all their forts, castles, &c. by the statute of 25 Geo. II. ch. 60. and compensation was made to them for any loss which they sustained. In estimating this loss, all the negroes which belonged to the company were considered in the same light in which their other property was viewed, and therefore as transferable from one person to another. In 1765 the parliament passed another statute, (5 Geo. III.) vesting in the crown the property in all the forts, castles, &c. upon the coast of Africa, and repealing all the former statutes upon that subject; yet by this law the slave trade was still left open and free to all the subjects of Great Britain, who might choose to engage in it. Again in 1766 another statute, (5 Geo. III. ch. 49. s. 5, 12,) passed, laying duties on the exportation and importation of slaves from and [**48]  into the British West India Islands, and the American Plantations. Thus we find, that this trade has not only been sanctioned, but encouraged by the parliament of Great Britain, from the year 1585 down to the present time. By the statute 5 George II. ch. 7. s. 4, negroes are made liable for the payment of debts. They are viewed in the same light as other property liable to execution, and always to be valued and considered as assets in the hands of an executor or administrator. Before the year 1663 we had negro slaves in this country. This is evident from the act of assembly of that year, ch. 30, speaking of negroes and other slaves, already imported, &c. and these negroes, being slaves, were deemed as property, and transferable from one owner to another. This right to them too, is not considered by the law as depending on contract or consent, more than the right which any man has to his horse, or to any other description of property which he may possess. Slavery originated ex jure gentium by reason of captivity.--Hob. 99. That it has existed almost universally, and in all ages, I refer to the Mosaic law. In adverting to the decisions in Great Britain upon the subject of slavery, or [**49]  the holding of negroes as property, the first case I will notice is that of Butts vs Penny, (2 Lev. 201, S. C. 3 Keb. 785.)--Here the court decided, that trover will lie for negroes. This decision was in 29 Car.II. in B. R. (1677,) and upon the ground that they were bought and sold as merchandise. In 3 Lev. 336, Chambers vs. Warkhouse, in C. B. 4 W. & M. (1702,) this decision is recognized. The court did not distinguish, and could not, between negroes and other goods or chattels. The special verdict found that they were bought and sold as merchandise. In Barrington on Statutes, 240, (notes) in his observations on the Statute of 1 Rich. II. (1377,) says, "it is laid down that trover will lie for a negro in 2 Lev. 201, and it seems to be agreed by two cases in Salkeld's Rep. 666, that some kind of action will lie for a negro, though not an action of trover. I cannot say indeed that these cases are well reported. The term slave is certainly not unknown to our law, as by 1 Edw. VI. ch. 3, a vagabond and idle servant is to become a slave to his master, and the expression is frequently repeated in that statute." In the case cited in 1 Ld. Raym. 147, (Gelly vs. Cleve,) we must suppose there [**50]  was a special verdict finding the negro boy an African and a heathen. This decision was in 1693, (5 W. & M.) In 1749, Lord Hardwicke, sitting as chancellor, recognizes the doctrine that trover would lie for a negro slave. And we find that it was the opinion of Sir Philip Yorke, and lord chief justice Talbot, in 1729, that if a negro did go over from any of the plantations, he was not emancipated thereby, Lofft, 19. The case in Carthew, 396, Chamberlain vs. Harvey, (1695,) is cited to prove that trespass will not lie. This case is reported in 5 Mod. 182, and the special verdict set forth, wherein it is declared, that by a law of Barbadoes, negroes should be considered as real estate, and descendible as such, after purchased by the planters. Upon this special verdict it was correctly determined, that trespass would not lie for taking real property. This case does not support the principle of a negro slave becoming free on landing in England. This special verdict was taken for the purpose of making the decision according to the lex loci. In 15 Viner, tit. Negro, 549, S. C. Held, that trespass did not lie for a negro, because not a chattel. 1 Ld. Raym. 146, S. C. held that trespass did [**51]  not lie for taking a negro slave in England, unless with a per quod servitium amisit; and the same reason is given. What is stated to have been said by Lord Holt was extra judicial--a mere dictum of his own, and is no authority; for it is laid down that an extra judicial opinion is not to be taken as authority; that an opinion not necessary to be given in deciding a cause is a mere dictum, and is not obligatory--Vaugh. 382. The case of Smith vs. Brown in 2 Salk. 666, S. C. Holt's Rep. 495, is also relied on by the opposite counsel. This was the mere dictum of Lord Holt in 1704, and as before shewn, is not entitled to the weight of authority more than as the opinion of a single judge; and we see that afterwards, in 1749, it is expressly contrary to the opinions of Sir Philip Yorke, Lord Ch. J. Talbot, and Lord Chancellor Hardwicke. But the decision, to call it one, does not contradict former ones. It is not stated in the case that the negro was sold as merchandise. The declaration states no right on common law principles, and the laws of a foreign country could not be noticed unless set forth. According to common law principles, an action could not be brought for a man; and therefore [**52]  indebitatus assumpsit would not lie for the price of one; yet it is undeniably a principle of that law, that "all rights acquired shall be supported." And if the declaration had stated the law of Virginia, the action would have been sustained. Upon examination, the case of Smith vs. Gould, in 2 Salk. 666, 667, also relied upon, does not sustain the principle now contended for. This case is most accurately reported in 2 Ld. Raym. 1274. The judgment was by default, and there was no verdict as is stated in Salkeld. Nothing was stated in the declaration but that the man was a negro; whereas it ought to have appeared that negroes were bought and sold as merchandise by the usage of merchants, and according to the laws of the plantations. The case went off upon the same ground as that of Smith vs. Brown, for defect in the declaration in not setting forth how the right to the negro was acquired, thus to avoid the operation of the maxim of the common law that an action will not lie for a man. That trover will lie for a negro slave will be seen in 1 Freeman, 452, and 1 Vernon, 450, where Kelyne, Vaughan, and Ch. J. North, all recognize the principle of trover lying for a negro slave. The law [**53]  of nature is the law of God, impressed on the heart of man; and Lord Holt, in the case of Smith vs. Brown, admits that a certain sale of a negro would have been a good consideration; if so, then it is not against the law of nature and of God. Every case which has been cited maintains the position, that the master has an interest in the negro, and is entitled to his services; that property once acquired cannot be divested unless by the misconduct of the owner; and that he has a right to the perpetual service of his negro.--1 Blk. Com. 127, 424, 2 Blk. Com. 402. This is all that we insist upon in the present case. But it is said, (1 Blk. Com. 424,) "the law will protect a slave in his person and his property; yet with regard to any right which the master may have lawfully acquired to the perpetual service of the slave, this will remain exactly in the same state as before." This is absurd. How can a slave acquire and hold property? How can the law protect what was not to be protected? By Magna Charta, ch. 30, all merchants are allowed free ingress and egress, and their property is guaranteed to them, whilst they remain in the realm. "And thus the protection of foreign merchants, (says [**54]  Montesquieu) is an article of their national liberty." The same principle is recognized by 14 Edw. III. In 1381, (5 Rich. II. ch. 2,) all merchants and strangers were permitted to come to England to merchandise, and their goods and chattels are protected. This is the undisputed rule or principle of law in Great-Britain now, and ever has been since Magna Charta.--1 Blk. Com. 135. Negroes, we contend, are property, and merchandise, and are sold as such. By the statute 5 George II. ch. 7, they are considered as property, and made answerable for British debts. Goods under an act of parliament are permitted to be exchanged in Africa for slaves; the transfer there to the buyer is complete, and he acquires his slaves as merchandise; and as such, under every principle of law, justice and common honesty, his property thus obtained, is and ought to be protected.

A case has been put of the wreck of a ship on the coast of England, and another of slaves escaping and getting to England. In either case, as the property vested in the owner under the sanction of acts of parliament, it would be protected as much as any other species of goods or chattels, or any other kind of merchandise whatever.  [**55]  In Somerset's case, (Lofft's Reports, 9,) it is very evident that Lord Mansfield waivered much and was very undecided in his opinion. He observes, "much consideration is necessary; the court must consider the great detriment to proprietors. The statutes of the realm have interfered for the maintenance of the trade in slaves, and the transferring of slavery." "A right of compulsion there must be, or the master must be under the ridiculous necessity of staying here to have their service, or must be quite deprived of those slaves he has been obliged to bring over." In giving his opinion, (page 17,) his Lordship said, that he advised an accommodation; and he still shewed great hesitation and indecision. This case therefore should not be suffered to shake the principles recognized in other decisions, and fairly deduced from acts of parliament, and maxims of law coeval with the existence of the common law. The case of Somerset was decided upon the return of a writ of habeas corpus. Suppose a soldier were to desert, and he was seized without application to the government, he would on a habeas corpus be released. We admit that the decision of Lord Mansfield divested the master's right; yet [**56]  we contend that the moment the master and slave left England, the master's right revived. Suppose a man has a right to kill his child in China; if he goes to England he cannot exercise the right there; but if he returns to China, the right revives to him. To prove that slavery may cease for a time and again be revived, cited Sullivan's Lectures, 317. If a villein becomes a monk, he is free; if he is deprived of his order and turned out of the convent, the master's right returns--1b. 318. So if a niefe marries a freeman, she thereby becomes free; if her husband dies, or she is divorced, her master's right to her service revives--Ib. 318. If a villein gets into the demesnes of the king, the master loses his right, but when he is caught out of the demesne, he is again in the power of his master--Ib. 319. So here, when the master of Joice returned with her to Maryland, or got her out of England, the right he had as master could be exercised, and she became his slave. The laws of England will not take notice of our municipal laws; shall we then enforce those of England? Suppose there is a law in England preventing wheat being imported into that country from America, and an American carries [**57]  wheat there, and lands it; by the law of England it is liable to forfeiture--But suppose he gets it on board of his vessel again, and carries it to France, has he not a right to his wheat? The court here are called upon to enforce British municipal regulations, and to disregard our own. The common law, at the time Joice was in England, was that trover would lie for a negro slave; and the case of Somerset was afterwards, and therefore is not applicable. Lord Mansfield may be charged with bending to the policy of the times--Wilks and Liberty; of which the young heated brain of Hargraves, who argued the case, was full; and Lord Holt, when he made the dictum spoken of, had a revolutionary ebullition of liberty in his brain. If subsequent decisions were to have a retrospect operation, it would create great uncertainty in property. And as to the impropriety of changing the law, and making different decisions, cites 1 P. Wms. 399, 452. It is better to stick to the known general rule; for it is dangerous to alter old established forms.--Ca. Temp. Tal. 26, 27, 195. The British air is supposed to electrify the flesh--putting a foot on the island, the nature is instantly changed, and if a slave [**58]  before, becomes thereby free. Suppose Joice was born before she was in England, or the African vessel in which she was, had stranded on the British coast, or she had run away; would all or any of these circumstances entitle the issue to freedom, being afterwards brought here and in the possession of their master claiming their services? Certainly not, we think. The acts of assembly of Maryland of 1663 and 1715, speak generally, that all negroes, and other slaves, imported into the province, without any restriction as to the place whence they are brought, and their issue, should be slaves for life. There was no emigration of free negroes from Africa at that time. Under those acts negroes might be imported from Great-Britain as slaves. Before the year 1663 there was the same commercial intercourse with respect to negroes as there was with respect to merchandise; and being a mere article of commerce, slaves could be smuggled and held in the same manner as any other goods or merchandise could be. The penal laws of one country cannot be enforced in another. Suppose a negro is stolen or kidnapped and brought to this country, could he not be sold and held as a slave? The act of assembly of [**59]  Virginia, passed in 1753, ch. 2. was not binding in Great-Britain; that act was made to prevent the slave from claiming his freedom in case of his return to Virginia. Lord Baltimore in loco of the seller of Joice, and he would have the same right as if she had been brought to this country by her first master. Her children born in England, if any, would be slaves. Property cannot be changed without there has been an adjudication, and the lex loci of one government cannot be enforced in another, without there has been an adjudication in the courts of that government. In this case there has been no adjudication produced, whereby Joice was declared in England to be free by any of the courts of that country. Shall the lex loci of another government be enforced in preference to our own? If a person carries his slave from this state to Pennsylvania, and remains there more than six months, and returns with his slave, the slave, it has been decided, shall not be free unless the courts of Pennsylvania set him free; although by the laws of that state such a residence entitles the slave to his freedom.

Fourth question, (on the fifth bill of exceptions.) By the act of 1663, ch. 30, all negroes,  [**60]  and other slaves, then imported, or which thereafter should be imported into Maryland, and their issue, are declared to be slaves durante vita. If Joice was here when this law was made, or if she was brought here since, she was a slave under this law, and her issue are now so.

It has been shewn, 1st. That evidence of a right was admitted improperly by the general court as evidence of a fact.

2d. That a special verdict has been admitted in evidence, when no judgment had been entered on it, and therefore not legal.

3d. That Joice, the ancestor of the petitioner, was not free by going to England; and if she was free there, when she left England she became a slave again.

4th. That the decision of the general court, as stated in the fifth bill of exceptions, is upon too broad a basis; for under the act of 1663 Joice and her issue were slaves.  

JUDGES:
CHASE, Ch. J., Rumsey, Ch. J., Mackall, Jones, Potts and Dennis, J.  

OPINIONBY:
CHASE; Rumsey; Mackall; Jones; Potts; Dennis 

OPINION:

 [*306]  CHASE, Ch. J. The court are of opinion, that they ought not to give the direction as prayed by the defendant's counsel: and do therefore refuse to give the said direction to the jury. The defendant [**61]  excepted to this opinion. The verdict and judgment being for the petitioner, the defendant appealed to the court of appeals. The case was argued in that court at June term 1802.
 [*322]  THE COURT OF APPEALS, [Rumsey, Ch. J. Mackall, Jones, Potts and Dennis, J.] gave the following opinion, viz. "The court disagree with the general court in their opinion in the third bill of exceptions. The court are of opinion, that the general court ought not to have permitted the special verdict, found on the first trial, which was set aside, (because a fact was not sufficiently found,) to be read in evidence on the second trial. They consider it a good rule, that on a second trial, no advantage or use shall be made by either of the parties of the first finding, or of the opinion of the court in setting aside that verdict, but that such second trial shall, as far as possible, be conducted as if no prior trial had taken place. The record before the court proves the propriety of the rule. On the first trial an objection was made by the defendant below to a deposition offered by the plaintiff, the general court overruled the objection, the deposition was read, and the [**62]  defendant's counsel then took an exception to their opinion. By granting a new trial, and admitting the verdict in evidence, the defendant there is deprived of the benefit of his exception, and he is liable to be affected by the verdict that may possibly in some measure have been influenced by the evidence excepted to.
 [*323]  As to the fourth bill of exceptions, the court are of opinion that the general court were right in their direction to the jury. It is merely stated that Ann Joice was in England, and came from thence, without shewing her condition previous to the period alluded to, whereby it doth not appear that she was ever held or claimed as a slave at any time, and it might be that she was a white woman, or native of England; presumption, when admitted, being in favour of freedom. In deciding this exception, the court do not think themselves at liberty to travel out of the exception, or notice any fact not therein stated.
Upon the fifth bill of exceptions this court disagree with the general court. It is in that exception stated "that Ann Joice, a negro woman, was carried with her owner, Lord Baltimore, claiming her as a slave, from the Island of [**63]  Barbadoes to England, and afterwards brought into this country by him, claiming her as a slave, between the years 1678 and 1681; and that she, during her life, was held and treated as a slave, and that her issue have been held as slaves ever since." It is not stated that her case was ever before a British or any other tribunal, or had received a judicial decision.
Great industry hath been used, and great ability displayed by the counsel, in the argument of this cause. The decision, involving on the one hand the question of freedom or slavery to the plaintiff below, and on the other great pecuniary interests to persons claiming negroes under similar circumstances, demanded it.
The court have felt the importance of the subject, and given it their most serious consideration. If this case was before a British court, it would seem, that the question should be decided according to the British law, as it stood between the years 1678 and 1681, and not by the law as it may have been modified or altered subsequent to that period. No adjudged case in the British books hath been cited, nor have the court been able to find one coming up to the case in the exception. Opposing cases as well as [**64]  opinions of particular judges and law writers, have been cited as applicable to the case. About the period of Ann Joice's being in England, a diversity of opinions prevailed on that subject. At one period it was held by a judge, that a slave, by being brought to England thereby became free. Sometimes it hath been held that trover would lie, at other times that it would not; that the sale of a negro was a sufficient consideration to support assumpsit to pay the price; that a master, deprived of his slave, might support an action per quod servitium amisit. By British charters, and British acts of parliament, the slave trade hath been authorized and  [*324]  encouraged, and slaves have been considered there as merchandise, as chattels, as property, and have, by a British statute operating in this state, been subjected to be sold and disposed of as other property for the payment of debts. Lord Chief Justice Talbot, and Sir Philip Yorke, in 1729, expressly declare, that a slave coming from the West-Indies, with or without his master, to Great-Britain or Ireland, doth not become free, and that his master's property or right in him is not thereby determined or varied, &c.  [**65]  And that his master may legally compel him to return. This opinion is recognized by Hardwicke, acting as chancellor, in 1749, and that trover would lie for a negro. Judge Blackstone in his Commentaries, in 1765, (11 edition, vol. 1, page 127,) says, that a slave or negro the moment he lands in England falls under the protection of the laws, and so far becomes a freeman; though the master's right to his service may probably still continue. And in page 424, repeats the same, and adds, that the law will protect him in the enjoyment of his person and property; but yet with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same subjection for life, which every apprentice submits to for the space of seven years or more, &c.
In the British books slaves are sometimes called slaves or servants; and it is said by Lord Mansfield in Somerset's case, that there may be a villein in gross by confession. In the case of Somerset in 1772, Lord Mansfield mentioned the opinions of Sir Philip Yorke, and Lord Chief Justice  [**66]  Talbot, in 1729, and recognized by Lord Hardwicke in 1749, and calls them two of the greatest men of their own or any times, and says he pays all due attention to their opinions. Lord Mansfield puts several questions as to the law with respect to their settlements, their wages, actions for any slight coercion by their masters. In Somerset's case the court declined deciding the question, whether by being carried to England he thereby became free; but say, that they would judge upon the return of the habeas corpus, and according to their own laws, which did not admit of so high an act of dominion as in that case had been exercised by the master over his slave, and therefore that Somerset must be discharged. Lord Mansfield, in Somerset's case, says, that the state of slavery is so odious that nothing can be suffered to support it but positive law.
In this collision of individual opinions, and opposing decisions, in the British books, this court will not say what would have been the decision of a British tribunal  [*325]  on the question stated in the exception; and acting as a court of an independent country, unfettered by any political stipulations [**67]  on subjects of this nature, and bound to decide according to the laws of this state, they do not consider themselves at liberty to adopt an opinion that might possibly prevail in a foreign tribunal.
By a positive law of this state in 1715, then the province of Maryland, the relation of master and slave is recognized as then existing, and all negro and other slaves, then imported, or thereafter to be imported into this province, and all children then born, or thereafter to be born, of such negroes or slaves, are declared to be slaves during their natural lives.
This case, being brought before the court by original proceeding, we are of opinion that it must be governed by the law of this state; and that in this case, however the laws of Great Britain in such instances operating upon such persons there, might interpose so as to prevent the exercise of certain acts by the master, not permitted, as in the case of Somerset; yet upon the bringing Ann Joice into this state, then the Province of Maryland, the relation of master and slave continued in its extent as authorized by the laws of this state; and therefore that the judgment of the general court must be reversed. As to the [**68]  other bill of exceptions, (the first) this court concur with the general court.
The second bill of exceptions not being before the court, no opinion was given thereon.
JUDGMENT REVERSED, and procedendo awarded.  

31 of 37 DOCUMENTS 

GRIFFITH vs. GRIFFITH'S Executors.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

4 H. & McH. 101; 1798 Md. LEXIS 1 

May, 1798, Decided 

PRIOR HISTORY:
 [**1]   ACTION of replevin, removed by certiorari from Harford county court.

The case stated for the opinion of the court, admitted that Samuel Griffith, on the 12th of January 1794, made and published in writing, his last will and testament, agreeably to law, containing amongst others, the following devise: "Fourthly. I desire my wife Martha Griffith, should have the use and benefit of my farm on Swan Creek during her widowhood; provided she claims no thirds of my land in Rumney Neck, and that she commits no waste of timber, which will be left to the discretion of my executors and trustees hereafter named; and after which period the aforesaid farm to be sold, and the money equally divided between my eight children," &c.

There was no other devise, or any bequest to his wife. His estate, real and personal, he devised and bequeathed to his children; and the residue of his estate, not particularly devised, he directed to be equally divided between his three daughters.

It was also admitted, that the said Samuel Griffith departed this life in the month of March, in the year 1794; and that on the 24th of June 1794, the said will was proved in due form of law, before the register [**2]  of wills for Harford county, and letters testamentary were thereupon committed to the defendants, who took upon themselves the execution of the office of executors thereof.

It was also admitted, that the plaintiff was the widow of the said Samuel Griffith, and did not make any renunciation of the said will; and the property in the writ and declaration in this cause mentioned, was delivered to the plaintiff by the defendants, as executors aforesaid, and was part of the personal property of the said Samuel Griffith, which came to their hands as his executors, and was delivered to the plaintiff by the defendants, to be held by the plaintiff as part of her thirds of her husband's personal estate, if by law she was entitled to the same.

And if upon the whole matter the court shall be of opinion, that the plaintiff, as widow of the testator Samuel Griffith, and against his will aforesaid, is entitled to one third part of the said testator's personal estate, after payment of debts, then judgment to be entered for the plaintiff for the property in the declaration mentioned, and one shilling current money damages, and costs; but if the court should be of a different opinion, then [**3]  judgment to be entered for the defendants for a return, &c.  

DISPOSITION:
Affirmed.  

COUNSEL:
Winchester for the plaintiff.--In this case the testator, by his will, devised to his widow, (the plaintiff) a part of his real estate, expressing that such devise should be in lieu of her dower in certain other part of his real estate. He did not bequeath to her any portion of his personal estate, but bequeathed the whole of it to his children; nor did he express that the devise to his widow was in lieu of her third part of his personal estate; nor has the widow renounced the will; and the question for the consideration of the court is, Whether or not the widow is entitled to one-third part of the personal estate?

Upon an examination of the various acts of assembly which have been passed upon the subject of the estate of deceased persons, it appears, by the act of Feb. 1638, ch. 20, that the widow of a deceased intestate was entitled to one moiety of the personal estate, after payment of debts, &c. if the deceased left a child or children; but if he left no child or children, the widow was entitled to the whole. The act of 1642, ch. 16, contains a similar provision if there be but one child of the deceased [**4]  intestate; but if more than one child, then the widow should be entitled to one-third. By the act of 1671, ch. 27, the widow of the intestate is allowed one third part of the personal estate, after debts, &c. are paid, and the rest to be divided amongst the children of the deceased. The act of 1681, ch. 2, contains a similar provision; and so do the acts of 1692, ch. 3, and 1699, ch. 41. In the last mentioned act of 1699, ch. 41, it is enacted, "That it shall be at the election of such widow's having devises as aforesaid, a to take and receive the same in full satisfaction of all claims and rights to both real and personal estate, and to be thereby barred for ever from all claims to the same; or to refuse such legacies and devises as aforesaid, and take their third part of the personal estate, as widows whose husbands die intestate in this province." The act of 1704, ch. 20, and 1715, ch. 39, s. 4 & 6, contain precisely the same provisions, whereby the widow is allowed one-third part of the intestate's personal estate, after payment of debts, &c. if there be a child or children; but if there be no child or children, then she is entitled to one half; and by the acts of 1719, ch. 14,  [**5]  s. 4, & 1729, ch. 24, s. 19, if there be no children, nor descendants of such children, nor a brother or sister of the intestate, nor children of such brother and sister, then the widow shall be entitled to the whole. By the acts of 1704, ch. 20, & 1715, ch. 39, s. 35, it is stated. "And whereas many men have bequeathed and devised, or hereafter may bequeath or devise, to their wives, by their last wills, a considerable part of their personal estates, intending, no doubt, but not expressing that such bequest or devise should be in full of such wives part, portion, or third part of the said testator's estate; and yet such wives, widows and relicts, have not only claimed such bequest and devise as legacies, but have further claimed their part of the remaining estate of their deceased husbands;" it was therefore enacted, "that in such case, where the testator bequeaths or devises a considerable part of his personal estate to his wife, and it appears not in any part of his will or codicil that he intended the said devise as a legacy to his wife only, and that she might nevertheless have a third part of his remaining estate, that it shall be at the election of such wife, widow or relict,  [**6]  within forty days after the probate of such will, to make her election before the judge for probate of wills, or the respective deputy commissaries in each respective county, whether she will be content with such devise, or will have her thirds, and release the devise. And if she make choice to have what is so bequeathed or devised to her, then, by that choice, she shall be forever barred from claiming her third part aforesaid; and if she renounce what is so bequeathed and devised, she shall then have her third part aforesaid, and be barred of her devise, but shall not claim or have both; but in case such widow shall neglect to make such election within the time aforesaid, she shall then be concluded by having a full third part of clear personal estate of her deceased husband, besides her dower of his real estate, in full of all such devises or legacies; provided always, that such part of the personal estate be liable to pay the debts of the deceased as other part of the estate is, or ought to be." But by the act of 1729, ch. 24, s. 10, it is enacted, "that if the widow neglect making such election within the forty days, she shall then be concluded by the bequest, and shall not have [**7]  or claim any more of the personal estate than shall be so bequeathed." By the acts of 1704, ch. 20, and 1715, ch. 39, s. 36, it is also provided, that where any part of the real estate is devised to the widow, she shall make her election within forty days, whether she will accept the devise or her dower; or she shall be concluded by the devise and barred of her dower.

a It is not mentioned in the act what devises are meant.

By the act of 1638, ch. 16, "a widow, immediately after the death of her husband, (if she hath no jointure) shall be admitted tenant during her life to one third part of all the land whereof her husband was seised at any time during the coverture, except in cases where she hath acknowledged a fine, or joined with her husband in making of leases; and she shall tarry in the chief house of her husband during her widowhood." And by the act of 1642, ch. 17, "the widow shall succeed to the thirds of the lands, and to the mansion-house, to hold it during her widowhood, as her husband was seised of at any time during the coverture, in such manner as she may by the law of England."

The act of 1641, ch. 3, enacted, "that the lieutenant-general, &c. shall [**8]  prove wills, and grant administrations, and exercise all temporal jurisdiction to testamentary causes appertaining, and shall do, or cause to be done, right to all persons in all such causes, according to the law of the province, and in defect thereof, according to the law or laudable usage of England, in the same or like cases; and where the same is silent, according to equity and good conscience." By the act of 1642, ch. 4, right and just, in all civil causes, to be determined according to the law, or most general usage of the province since its plantation, or former precedents of the same, or the like nature. In defect of such law, usage or precedent, then according to equity and good conscience; not neglecting (so far as the judges shall be informed thereof, and shall find no inconvenience in the application to this province,) the rules by which right and just useth and ought to be determined in England in the same or the like cases. By the act of 1662, ch. 3. in all cases where the law of this province is silent, justice to be administered according to the laws and statutes of England, if pleaded and produced, and all courts to judge of the right pleading and inconsistency of [**9]  said laws, with the good of this province, according to the best of their judgment, skill and cunning. The act of 1663, ch. 4, is to the same effect; it was repealed by the act of 1676, ch. 2, but was revived by the act of 1678, ch. 15, and continued until 1684, excepting the clause so far as the court shall judge them not inconsistent with the condition of the province. In the acts of 1681, ch. 2, and 1692, ch. 3, it is stated, that "forasmuch as certainty is the mother of repose, and that our dependence upon England obligeth us to make all our laws as near as may be consonant to the laws of England," it was enacted, "that the judge for probate of wills, and granting administration, within this province, in all causes relating to probate of wills, and granting administration, shall proceed according to the laws of England now in force, and hereafter to be in force, within 12 months after such laws shall be published in the kingdom of England, if pleaded before him here; saving in such cases as shall in this act be limited, or shall hereafter be limited, by act of assembly of this province, as utterly impracticable in this province."

Thus the court are put in possession of the [**10]  several acts of assembly of the province having any bearing upon the subject before the court.

It has always been supposed that the wife was entitled to a third part of her husband's personal estate against his will, and reason and justice are in favour of her claim. The general law of England, and the custom of particular places, allowed the wife a third of the personal estate, if the deceased left children. In the acts of 1704 and 1715, is recognised the common usage of allowing to the widow a third part of her husband's personal estate.

In treating of this subject, Blackstone says, "that by the common law, as it stood in the reign of Henry II. a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children the wife was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts;  [**11]  and the writ de rationabili parte bonorum was given to recover them. This continued to be the law of the land at the time of Magna Charta, (9 Hen. III. A. D. 1225,) ch. 18, which secured to the wife her reasonable part, after the king's debts were paid. In the reign of Edward III. this right of the wife and children was still held to be the universal or common law, though frequently pleaded as the local custom of particular countries; and Sir Henry Finch lays it down expressly in the reign of Charles I. to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed, Sir Edward Coke (2 Inst. 33,) is of opinion, that this never was the general law, but only obtained in particular places by special custom; and to establish that doctrine he relies on a passage in Bracton, which in truth, when compared with the context, makes directly against his opinion. For Bracton lays down the doctrine of the reasonable part to be the common law, but mentions that as a particular exception, which Coke has hastily cited for [**12]  the general rule. And Glanvil, Magna Charta, Fleta, The Year Books, Fitzherbert and Finch, all agree with Bracton, that this right to the pars rationabilis was by the common law, which continues to be the general law of Scotland. To which may be added, that whatever may have been the custom of later years in many parts of England, or however it was introduced in derogation of the old common law, the ancient method continued in use in York, Wales, and in London, till very modern times; when in order to favour the power of bequeathing, and to reduce the whole king dom to the same standard, three statutes have been provided, 4 and 5 W. & M. ch. 2, explained by 2 & 3 Ann. ch. 5, for York; 7 & 8 W. III. ch. 38, for Wales; and 11 Geo. I. ch. 18, for London; whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part [**13]  or moiety."--2. Black. Com. 493.

The right of the wife to a third part of the personal estate of her deceased husband, is a common law right, and the action of rationabili parte bonorum lies for her against the executors of her husband--18 Viner, 158.

In different parts of England particular customs prevailed, which controuled the general law of intestacy. Of all these customs, that which gave a third to the wife, another to the children, and a third to the deceased, and in case of only a wife, or only children, the half, was most frequently met with. Indeed this claim of the wife and children, where it prevailed, had been carried still further. It had been construed to be such an inherent right in them, as to restrain the power of disappointing them of this reasonable part of the goods by will; the possessor, it was contended, having a power of disposing by will of nothing but his portion, or dead man's part. The question had all along been, whether this was a common law right, or one supported only by the special custom of different places; and the last determination, in the 40th year of the reign of Edward III. seems to countenance the latter opinion. Conformably with [**14]  those decisions, we find an action in the 28th year of the reign of Henry VI. and another in the 7th Edward IV. against an executor for a reasonable part, where a special custom of a county is alleged. There is an instance of one action, which was grounded upon the usage generally, without stating it to be of the realm, of any county or place--30th Henry VI. If we look a little further on in the judicial history of England, we find it laid down positively, by Fitzherbert and others, in the reign of Henry VIII, that this claim of the wife and children was by the common law that prevailed through the whole realm; and that the action de rationabili parte might be maintained against the executors; so that the power of making a will was, in case of leaving a wife or children, confined to the dead man's part. This opinion seems to be strenuously maintained by Brooke, some time after the reign of Henry VIII. 4 Reeves Hist. Eng. Law, 82, 83. Brooke Rationabili pars. 7.

The right of the wife to a third part of her husband's personal estate, under a general or particular custom, was never disputed. That right was extended to Maryland as the common law, and has been invariably adhered to [**15]  as such. If such right was not the common law at the time of the colonization of the province, the acts of 1704 and 1715 recognize the usage, and they are to be considered as a recognition and restoration of the common law.

In the case of Worthington and wife, and Hood, vs. Hood's executor, in the court of chancery April 1795, Chancellor Hanson, in giving his opinion on one of the points "which did not to him appear involved in any doubt or difficulty, declares, that in his opinion Elizabeth Hood, the relict of John Hood, was entitled to one third part of his personal estate, supposing the matters stated in the bill and answer to be true; that is to say, if a testator devises or bequeaths nothing to his wife, there is no necessity for her to renounce his will, in order that she may be entitled to one third part of his personal estate absolutely, and of his real estate during her life. In such a case the widow has nothing to renounce; her husband having as to her, died intestate."

The devise of the part of the real estate to the plaintiff cannot conclude her as to the personal estate. The act of assembly has an express relation, as well to the real as to the personal estate,  [**16]  and requires a disposition of part of each to her to divest her right to both. The widow in this case not having renounced the will, is concluded as to the real estate devised to her; but there being no devise to her of any part of the personal estate in her husband's will, there was no necessity for making an election as to the personal estate, nothing being given; and therefore she is entitled to one third part of the personal estate clear of debts. This right is fully recognized in the acts of assembly of 1715 and 1729, and is only to be defeated where the husband devises to his wife a part of the personal estate, and she does not make her election within the time prescribed by law.

Martin, (Attorney General,) for the defendants, contended, that the wife gains no part of her husband's property during his life; but upon his death intestate, she is entitled to one third part of his personal property which remains after payment of debts, if he left issue; but if he left no issue, she is entitled to one half. But the husband, if he thinks proper, may devise such estate from her. This right of the wife is founded upon the statute of distributions. By the death of the husband the [**17]  wife becomes entitled, during her life, to one third part of the real estate of which the husband was seised during the coverture. This estate is termed dower; of this the husband cannot deprive her by will; nor can be by any conveyance, unless her consent is given by joining with him in the conveyance, and acknowledging it on a private examination. But it is different with respect to personal property; for he can dispose of that in his life-time without the consent of the wife; and if so, there is no reason why he cannot do that by will which he might do in his life-time by gift or sale without her consent, and prevent her from receiving any portion of it.

The right of the wife to the third part of the personal property of her husband must depend on the common law, or on the acts of assembly. The acts of assembly, it is admitted, do not apply to the case. The common law of England is the common law of Maryland. It has no other common law, and is not entitled to any of the local customs of England. The common law is founded on statutes, is known by the writers on the law, and by the decisions of the courts of justice. Customs to prevail, must be from time immemorial, and then [**18]  they become laws. The common law of England was adopted in Maryland as it stood at the formation of our government, and it never did deprive the husband of the right to dispose of his personal estate.

The writ de rationabili parte bonorum lies by the wife against the executors of her husband, where she cannot have the third part of her husband's goods after the debts are paid, and funeral expenses performed; and Fitzherbert 284, observing on this writ, says, that it seems by Magna Charta ch. 18, that this was by the common law; yet (he observes) the writs in the register rehearse the customs of the counties, and cites authorities, to shew the writ was founded on the customs of particular counties.

Heirs, says Glanville, were bound to observe the testaments of their fathers, and to pay all their debts. For every freeman, not incumbered with debts beyond the amount of his effects, might make a reasonable division of his property, by will, so as he complied with the customs of the place where he lived; one of which was, first, to remember his lord by the best and principal chattel; then the church; and after these, he might dispose of the remainder as he pleased. However the [**19]  customs of particular places might lay this restriction upon wills, no person was bound, by the general law of the kingdom, to leave any thing by will to any particular person, but was at liberty to act as he pleased; it being a rule of law, that ultima voluntas esset libera. But Glanville thought it would be a proper testimony of affection and tenderness for a husband to give to his wife rationabilem divisam, that is a third part of his effects, this being what she would be entitled to, if she had survived him; and it seems that it was not unfrequent to give a sort of property to their wives in this third part, even during the coverture. But Glanville, after having expressly laid down, that, by the general law of the kingdom, no person was bound to leave any thing by will to any particular person, and that the third part left to the wife was dictated rather by a moral than legal obligation, he goes on in the following remarkable words: "When a person is about to make his will, if he has more than enough to pay his debts, then all his moveables shall be divided into three equal parts; of which one shall go to the heir, another to the wife, the third be reserved to himself, over which [**20]  he has the power of disposal as he pleases; if he dies without leaving a wife, a half is to be reserved to the testator."--1 Reeves Hist. Eng. Law, 111, 112. By Magna Charta, ch. 18, after the king's debts are satisfied, the residue is to remain to the executors, to perform the will of the deceased; if nothing is due to the king, then all the chattels are to go to use of the defunct, (that is, to his executors or administrators,) saving, says the statute, to the wife and children their reasonable parts; the latter part of which provision does not seem to remove any of the difficulties which were before noticed in the text of Glanville--1 Reeves 243, 244. 2 Inst. 32, 33.

In the first year of the reign of Edward II. a writ de rationabili parte was brought by a son against his father's executors, for ten marks of the property of the deceased, who died worth thirty; alleging, that, because par usage de pais. the third part ought to go to the deceased, a third to his widow, and a third to the children unmarried, therefore he, as son, demanded his third. To this it was pleaded, that he had been advanced by a lease of lands from his father of such value, and therefore the action would [**21]  not lie. The plaintiff admitted this in his replication, but said the land was worth only so much, and therefore he ought to maintain his action. However, it was decided against him, as the action was grounded wholly upon usage and want of advancement. So that this writ, notwithstanding what was argued, as to the declaration of Magna Charta, which was contended to be general and absolute, was held by the court to be founded on the particular custom of a certain place. Again, we find in the 17th year of Edward II. a writ of detinue of chattels was brought by an infant against his father's executors, reciting, that per consucludiuem regni, the mother was to have a third, the children a third, and the executors another third, &c. To this the defendant pleaded pleinment administre. One of the justices took up the matter, and expressed a doubt whether the action would lie; for says he, the writ is founded on a custom, but we know no such custom, and the law is otherwise. And when it was urged that the custom was good, as appeared by Magna Charta in these words, salvis uxoris et pueris suis rationabilibus partibus suis, he replied, that the Great Charter only saved to the children their [**22]  own goods, which might happen to come into the hands of the father; but neither the Great Charter nor the common law restrained the father's power over his own effects, to give or devise them as he pleased. It was added by another, that he had often seen such writs, but never knew one of them maintained; so the plaintiff was nonsuit. This was the opinion in the reign of Edward II. respecting the power of bequeathing, where a wife and children were left by the testator. These two cases may be construed as a clear confirmation of the law as laid down by Glanville. The latter, which applies to the general law of the kingdom, certainly supports that author's declaration, quod ultima voluntas esset libera. The former may be thought to explain the other passage in Glanville, which qualifies, if not contradicts that general rule; and may, perhaps, serve to shew, that Glanville should there be understood to speak of certain local customs; which interpretation, however, does not seem warranted by the present state of that author's text.--2 Reeves 334, 335. These actions, notwithstanding the above decisions, continued to be brought, and were variously treated by the courts. The point upon which [**23]  this question rested, seems to have no other authority in the law books than a chapter in Magna Charta, and a passage in Glanville. The chapter of the Great Charter is not directly upon the subject of distributing the effects of deceased persons; but having ordained a surer method of levying the king's debt, it adds, as a security to the subject, that all the rest shall belong to the dead person, saving their reasonable parts to the wife and children; a saving which seems sufficiently necessary, if it were only on account of the particular customs in some counties, and other places, which required a man always to leave something to his wife and children, and which would otherwise have been abrogated by the general scope of the former provision. It does not, therefore, seem a necessary conclusion from thence, that such a distribution of the effects was the general law of the kingdom. As to the passage in Glanville, there seems in it an ambiguity, if not a contradiction. That author might be quoted as well in favour of as against the proposition, that it was the general law of the kingdom for a man's wife and children to be entitled to a proportion of his effects, notwithstanding a will.  [**24]  Upon these authorities, together with the determinations mentioned in the reign of Edward II. stood this question, when it underwent the following discussion: In the third year of Edward III. an action of detinue, brought by a husband and wife against the executors of the wife's father, for her child's portion; it was laid upon the custom of the county of Northampton, and she alleged she was not advanced by her father. The cause went off upon the issue, whether married and advanced by her father, without any question arising about the point of law. In 17 Edward III. such a writ of detinue was brought by a baron and feme, for her reasonable part of her former husband's goods, against his executors; which writ made mention of the custom of the realm; but went off upon another point. In the 30th of Edward III. there was another writ of detinue. It was objected to this writ, that it made mention of common usage through the whole realm, which could mean nothing but the common law; and if it was the common law, he might have a simple writ of detinue. That such a writ had been abated; meaning no doubt that mentioned in the 17th Edward III. It was argued, that in that case the writ was abated,  [**25]  because it purported to be founded on the Great Charter. In like manner, should a woman bring a writ of dower, and demand a moiety, if the custom was comprised in the writ, it would be bad; and therefore she should make her demand in the writ generally, and upon that should shew special matter to maintain her demand: So it might be here, and the plaintiff might count according to the case. One of the clerks having shewed a writ brought by an infant not advanced, containing all the matter of this writ, which he said, was held maintainable, the debate upon the form of the writ rested. And when the executors began to resort to other points, namely, that they were to account before the ordinary, and that this question of distribution belonged rather to the spiritual than the temporal court, they were told they were not to plead to the jurisdiction, after they had objected to the writ; so that, upon the whole, it should seem as if the writ was there approved of. The next action that appears in the books, was grounded upon the custom of the county of Sussex, which was stated as allowing a reasonable part of the intestate father's goods to go to the son; but this being upon an intestacy,  [**26]  led to no debate upon the before mentioned point; though it was said, this custom precluded the father from making a will in prejudice of his wife and children. On that occasion, it was said, that this writ, in case of intestacy, had always been admitted by the ordinary. The next is in the 40th Edward III. This is grounded upon the custom of a vill, by which the children were to have a reasonable part of their father's goods; but it does not appear whether it was brought against executors, or upon an intestacy. However the defendant set up an advancement as a plea in bar; to which the plaintiffs replied, the gift mentioned was only a reversion, and therefore no lawful advancement to bar their reasonable portion. The defendant said it was, and demanded judgment, which drew from the bench the following observations: Thorpe, one of the justices said, How can we give judgment, when you have accepted an action which is contrary to the law, and have pleaded matter in affirmance of it? And Mowbray, another justice, said, The lords in parliament would never grant that this action should be maintainable by any common custom, or law of this realm. But as the plaintiff had not pleaded to the [**27]  writ, the justices took time to advise what should be done. The writ in question being grounded on a particular custom, and it not appearing whether it was brought in the case of a will, or of an intestacy, we are left quite at a loss for the grounds on which the judges pronounced the above mentioned opinion; for though there might be arguments against such a general custom, or against alleging it in the writ, it is difficult to say that such a particular custom might not be good; though Thorpe doubted of it in the former case from Sussex, saying, it was hard to restrain a man from making a will of his own effects. Thus the law stood at the latter end of the reign of Edward III. as it did at the close of the former; and conformably with this opinion against the writ, it is not inserted in the old Natura Brevium, which has only the writ of right de rationabili parte. It is remarkable that this writ of right is omitted in Fitzherbert, and the writ of detinue now in question adopted, under the denomination of de rationabili parte bonorum. It seems strange, that a question of so extensive importance, and so frequent recurrence, as the disposition of a deceased person's effects, whether [**28]  by will or administration, should remain a doubtful case at this time. Perhaps the jurisdiction which the spiritual court had exercised over testamentary matters, tended to keep this point of law in obscurity, and undecided. After all, it is difficult at this time to account for so singular a difference in opinion--3 Reeves, 67 to 72. In 4 Reeves, 82, 83, the question was, whether the right of the wife is founded on the common law or on particular customs. In Swinb. 203, 206, the writ de rationabili parte bonorum, is stated not to lie at common law.

The opinion prevailed, that at common law the wife was not entitled to a third part of the husband's personal estate against his will; and it was resolved in parliament, that by the common law the wife was not entitled to a third part of the husband's personal estate--Co. Litt. 176, 177.--2 Blk. Com. 494, (note.) In Hutton's Reports, 109, 110, (6 Car. I.) the action was founded on a particular custom. It is an absurd notion that the common law and local customs should be the same.

As to the case in Viner's Abridgment, he only abridges the case, and it is no authority as to what the law is.

By the declaration of rights, the [**29]  inhabitants of Maryland are entitled to the common law of England, as it existed at the time of the formation of the government, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practised, by the courts of law or equity; and also to all acts of assembly in force on the 1st of June 1774, except such as may have since expired, or have been, or may be altered, &c. It was the common law, and not particular customs, which were adopted as the rule of decision for our courts. The act of 1704 is the first act we have here upon the subject. There was no usage or practice antecedent to that time, entitling the wife to a third part of the personal estate of her husband. The act of 1641, ch. 4, was respecting the rules of judicature, and was made only four years after the first session held in the province, and nine after the charter, which was granted to Lord Baltimore on the 20th of June 1632.

If it is by usage that the wife is entitled to the [**30]  third part of the personal estate of her husband, there must be some proof of such a usage. There has been no legal decision in the courts here on this question, nor is there any usage to support the opinion.

A legatee shall not take both the legacy and the surplus. A man may make a will, and die intestate as to part of his estate, and in such cases, where there had been a legacy to the wife, she took the legacy and a third part of the personal estate undisposed of, and the act of assembly was intended to prevent the wife from claiming both. The act of 1715, ch. 39, gives an option to the wife, but it did not interfere with any bequest in the will; and the remaining estate means what was undisposed of by her husband's will. The expression cannot refer to property devised away. This exposition of the act of assembly prevents any interference between the wife and the legatees; a contrary one would introduce confusion, and create suits in chancery. The utmost that can be inferred from the act of assembly is, that the legislature apprehended the wife would be entitled to a third of the personal estate of her husband; but they were mistaken in the law, which is no uncommon case.

As [**31]  to the case in the court of chancery, referred to, of Worthington and others vs. Hood, it is at most only the opinion of the chancellor, not acted upon in the superior court. As to the idea that the husband died intestate as to the widow, where he had bequeathed the whole of his estate from her, he contended that no person who has disposed of all his estate by will can die intestate as to a particular person. It is a general principle, that a person who takes by the will shall not reject it as it respects other property. "It is a tacit condition that every man who takes under a will is bound, not only not to dispute the will, but to maintain the title of all the rest, unless he give up every thing under it. No rule can be better established, than that whoever takes under a will, unless he give up the right which he derives from it, cannot dispute other provisions of it. A most reasonable rule; because a man makes his will, supposing the whole to stand."--Per. Lord Mansfield, 4 T. B. 743, (note.)

The acts of 1715, ch. 39, s. 35, and 1729, ch. 24, s. 10, are the same, except as to the wife's election. These acts were grounded on the English statutes of distributions.

Winchester,  [**32]  in reply. The common law is that body of rules generally received and held as law in England, in contradistinction to the statute or written law, and including not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws which are by custom observed only in certain courts and jurisdictions. The common law is grounded upon the general customs of the realm, and comprehends the law of nature, the law of God, and the principles and maxims of the law. It is founded upon reason, acquired by long study, observation and experience, and refined by learned men in all ages. It is justly regarded as the common birth right, which the subject has for the safe guard and defence, not only of his goods, lands and revenues, but of his wife and children, body, fame, and even life--Co. Litt. 97. 142. The common law of England is properly the common customs of the kingdom, which by length of time have obtained the force of laws. The goodness of a custom depends upon its having been used time out of mind, or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.  [**33]  This gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta of the kingdom. It is properly distinguished into three kinds--1. General customs, which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification. 2. Particular customs, which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws, which by custom are adopted and used, by some particular courts, of pretty general and extensive jurisdiction. It is called the unwritten law, not because it is only transmitted by tradition from generation to generation, but because it is not founded on any known act of the legislature. It receives its force from immemorial custom, and for the most part, derives its origin from acts of parliament enacted in the times which immediately followed the conquest, (particularly those anterior to the time of Richard the first) the originals of which are lost. The source from which the decisions of the common law are drawn, is what is called praeteritorum memoria eventorum, and is founded in the collection of judgments which have been [**34]  passed from time immemorial, and which, as well as the proceedings relative to them, are carefully preserved under the title of records. In order that the principles established by such a series of judgments may be known, reports from them have been published from time to time, which reach as far back as the reign of Edward the II. Besides these reports, there are also some ancient authors, of great authority among lawyers, such as the famous and learned Glanville, Lord Chief Justice, who wrote under the reign of Henry II; Bracton, a great lawyer, said to be Lord Chief Justice, who wrote under Henry III; the author of Fleta, and the renowned lawyer Littleton, who wrote in the time of Edward IV. Among more modern authors, is the great oracle of the law Sir Edward Coke, Lord Chief Justice under James I. who has written four books, his learned and laborious institutes of the law, and commentary on Littleton. The common law moreover comprehends some particular customs, which are fragments of the ancient Saxon laws escaped from the disaster of the conquest.

The common law was adopted, received, and recognized in Maryland, as it stood in England at the time of the charter to Lord Baltimore;  [**35]  and the principle contended for is recognized in the act of assembly.

Suppose there had been a decision restraining the testamentary disposition, and the act of assembly had been grounded on it, would it not have been a clear recognition of such a decision? The acts of assembly are the best evidence as to the customs and usages which prevailed antecedent to that time. Common usages shall prevail; and a practice recognized by acts of assembly must be considered as the common law founded on previous decisions of the court.

In answer to the case in 4 T. R. 743, he refers the court to the case of Andrews' ext'rs. vs. Hay, decided in this court at October term 1790. The case was, the plaintiff's testator devised to his daughter, the defendant's wife, a house and lot. He also bequeathed to another daughter a negro slave called Hector. The defendant entered into the house and lot under the devise, and enjoyed the same. He also claimed the slave called Hector, under a parol gift to his wife, by the testator, before the marriage, and before the making of the will. The question before the court was, whether the defendant, having entered into and held the house and lot devised to his [**36]  wife, could be admitted to controvert the will as to the validity of the bequest of Hector; and whether he was not estopped from denying that Hector was a part of the personal estate of the testator at the time of making the will? The general court gave judgment for the defendant.

Suppose under the act of 1729, there had been some trifling bequest in the will to the wife; for instance one shilling, and she does not renounce the will; she would be entitled to a third part of the remaining personal estate; for the act says the wife is only to be barred where a considerable part of the personal estate has been bequeathed to her, and it does not appear that it was intended as a legacy only.

THE OPINION of William Pinkney, Esquire, b on the will of Samuel Griffith.

b Mr. Pinkney was absent on a mission to Great Britain when this case was argued.

MR. GRIFFITH'S will bequeaths no part of his personal estate to Mrs. Griffith, but on the contrary bequeaths it all away from her, and she did not renounce the will.

It is required, whether under these circumstances she is entitled to a third part of the personal estate clear of debts. I am of opinion that she is so [**37]  entitled; and as the point is an important one, I will state my reasons at large.

It has for many years past (and I believe from the first settlement of the province but certainly ever since the act of 1715 ch. 39) been the prevailing idea in this country among lawyers, as well as others, that a husband could not devise away the whole of his personal estate from his wife. This idea has been almost (if not perfectly) universal, and it is supposed to have originated entirely from the provisions of the act of 1715. I think it did not take its rise solely from that act. But let its origin have been what it might, it has been received as settled and established law, and has in part been recognized by our testamentary tribunals. Whether it is a just idea, or otherwise, will not be discovered by a mere examination of the act of 1715; for, although in the passage of that act the general assembly evidently considered it as a rule of law, that the wife could not be debarred of her thirds by the last will of her husband, yet as there is nothing in the act which actually provides to the full extent of the rule, or establishes it in so many words beyond certain specified instances, the rule,  [**38]  as it has been since understood, could not probably have been derived from that act alone. It appears to me, that it was part of the law of Maryland before that act was in existence; for if it was not, it is inconceivable, that the fact of the general assembly having mistaken the law should have totally changed it without any legislative provision sufficiently extensive to do so. The provisions of the act of 1715 apply only to a single case, i. e. where the husband bequeathed a considerable part of his personal estate to the wife, and she renounces c within forty days. In this case she is declared to be entitled to one full third of the clear personal estate; which expressions unquestionably mean a full third, clear of debts. d But this act goes no farther. It does not enact the general rule before mentioned although it certainly acts upon it as applying to the instance for which it was making provision. The reason why it did not enact to the full extent of the general rule was evidently this, that the assembly considered that rule as being already the law of the land. Their object was rather to limit its operation, than to establish it. Their view was to prevent a consequence from [**39]  it which they considered as unjust, and not to introduce it. They believed it to have been introduced before, and to have been the undoubted law of Maryland, (VIDE the preamble of the clause.) In this belief I think they were not mistaken; but whether they were mistaken or not, it is extremely clear to me, that their opinion concurred with the received and settled doctrine and practice at that time. How that doctrine came to be received will appear from the history of some part of the English law, which I will state from the 2d vol. of Blackstone's Commentaries, pages 494, 495, 496, 497. "By the common law of England, as it stood in the reign of Henry II. a man's personal estate was to be divided in three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal," &c. "The shares of the wife and children were called their reasonable parts," which the husband could not devise away from them, and a writ was given to recover them. "This continued to be the law of the land at the time of Magna Charta. In the reign of Edward III. this right of the wife and children was held to be the universal or common law; and Sir Henry [**40]  Finch lays it down expressly in the reign of Charles the first, to be the general law of the land. But this law is at present (in England) altered by imperceptible degrees, (not by statute) and the deceased may now by will bequeath the whole of his goods and chattels; though we cannot trace out when first the alteration began." The same author remarks, that the old rule continues to be the law of Scotland to this day; and that it also continued in Wales, the province of York, and the city of London, till very modern times, when it was altered by different statutes, passed in the reigns of William and Mary, Queen Ann, and George I.

c If the widow neglects to elect within 40 days, she shall be concluded by the bequest, and shall not claim more of the personal estate than shall be so bequeathed, &c. Vide the act of 1729, ch. 24.

d Vide the whole clause (35th section of the act of 1715, ch. 39,) and the proviso about debts.

It will appear from the above statement, that in the reign of Charles the first, the widow was entitled to one third of her husband's personal estate, by the common law, and that he could not devise it away from her. The charter of Maryland bears [**41]  date in the eighth year of that king's reign; and colonization commenced about the same period. It follows, that the emigrants to this country brought the then established law along with them, and received and acted upon it here as a rule of property. From colonization to the act of 1715, the rule remained unchanged in this country, although in England it was undergoing gradual alterations--and in 1715, the provincial legislature expressly recognize it as settled law, and proceed to limit its effects in the case already mentioned. It is true indeed, that the colonists did not adopt the whole of the rule, for they do not seem to have acknowledged the right of the children; but that they adopted and practised the rule so far as respected the wife, is extremely obvious. The change of the law in England could have no influence upon it here--It was not changed by an act of parliament, or suddenly changed; it altered imperceptibly and silently. The colonists being far removed from the mother country, either did not know of this change, or did not choose to follow it; and it is clear that they were not bound to follow it; on the contrary the colonial assembly recognize the rule, and legislate [**42]  upon it; for it is impossible to think that the act of 1715 is not founded upon the admission of this rule, merely calculated to restrict its influence upon a particular case. Upon the whole, it occurs to me, that this right of the wife to a third part of the husband's personal estate, in opposition to his last will and testament, was the law of England at the time of our colonization; that colonists brought this law with them, received it, and acted upon it until 1715, when (although it needed no ratification) it was confirmed by the opinion and provisions of the legislature. The passage cited from Blackstone's Commentaries, coupled with the act of 1715, is satisfactory to my mind.

Upon what ground did the general assembly proceed if not upon that which I have stated? It cannot be supposed that they so totally mistook as to take that for law in a point of this kind which was not so received in general. They must have had some reason for thinking that the law was as they have plainly supposed; and this reason could be no other than the then established usage and settled opinion in the province. That usage, and that opinion, could have had no other probable origin than the one [**43]  before alluded to; and this origin was a legal one. It would have been a legal one even if the law of England had been changed without an act of parliament before the reign of Charles the first; for I know of no authority courts of judicature have to alter the common law. I hold, therefore, that the law of Maryland is, that a husband cannot devise away his personal estate from his wife so as to debar her of her thirds. In a case circumstanced like the present, there was no necessity for renunciation. No personal estate was bequeathed to Mrs. Griffith, and of course there was nothing to renounce. The acts of 1715 and 1729 relate to cases only where a considerable part of the personal estate was given to the wife. There was a plain reason for demanding a renunciation there, which has no existence here. The object of the law was to preclude the wife from taking both under the will, and under the rule before mentioned; and clearly that object does not embrace an instance where nothing is given, or can be taken under the will, but solely under the general rule.

I have thus far considered this case upon the footing of what I allege to have been the law of this country before the act [**44]  of 1715; but even under that act alone, and the practice since, I should be inclined to hold the same opinion. I do not think indeed that the act of 1715 reaches, in the letter of its provisions, the present case; but as it sanctions the wife's right in one instance, in opposition to the husband's bequest to other people, and as the same reason applies to the case in question, I should suppose it would be going too far at this time of day, by a strict and rigid construction, to shake the liberal interpretation that is supposed to have been given to it by the general consent and uninterrupted usages.

In one point of view this act of assembly (even admitting that it introduced the law into Maryland which I deny) will come strongly to this case. The wife's right to her thirds, in opposition to her husband's testament, was the common law of England, and if altered without authority by judges before colonization, and not introduced into Maryland before the act of 1715, that act may be considered as declaratory of the common law, and thus as justifying or rather requiring its revival. The common law had never been altered by those who were empowered to alter it; and a discontinuance [**45]  of the use of it for a time had not abolished it. This act admits its force, and brings it forward into practice as a rule of property. That rule has ever since been held as law and it cannot now be shaken. It stands on the firm foundation of the ancient common law, not repealed or abrogated. It is acknowledged, if not re-enacted, by two acts of our general assembly. It is strengthened by the uniform opinion and usage of the country; and if it is not now the law of this state, it will be difficult to shew that we have any law at all.

WM. PINKNEY.

THE OPINION of William Cooke, Esquire.

I am of opinion a husband cannot by devise of any, or all of his personal estate, prevent his wife of dower, or rather of claiming one third part thereof, if he leaves children; or of one half if he leaves none. I am also of opinion that the will of Samuel Griffith bars his wife of dower only in that part of his real estate in Rumney Neck, the use of the farm on Swan creek being given in lieu thereof; and that she is entitled to dower in his other real estate, and of one third of his personal estate after payment of debts.     W. COOKE.

MARTIN, (Attorney-General,) and HOLLINGSWORTH,  [**46]  for the appellants.

A. HALL, KEY, and WINCHESTER, for the appellee.  

JUDGES:
CHASE, J. GOLDSBOROUGH, Ch. J. and DUVALL, J., concurring.  

OPINIONBY:
CHASE 

OPINION:

 [*122]  CHASE J.--I consider the acts of assembly of 1704, 1715, & 1729, as a clear and explicit recognition of the right of the wife to one third part of the personal estate; and I consider these successive acts of the legislature, and the uniform practice conformable thereto, as the best evidence of what was the common law in the opinion and judgment of the legislature and the citizens of Maryland.
Suppose it questionable, and not well settled in England, the acts of the legislature, and the practice here, prove, beyond a doubt, that it was the general opinion the wife was entitled to a third part of the personal estate by the common law.
Magna Charta ch. 18, saves to the wife her reasonable part. Bracton, who wrote soon after this statute, lays it down as the common law, that after the payment of debts and funeral expenses, the wife was to have one third, &c.
There is no reason why the saving in Magna Charta should be limited to the customary right of the wife. Such an exposition is confined and illiberal, and [**47]  not warranted by the statute. The saving is general, and must relate to the common law right of the wife. There are no restrictive words in the statute to confine the operation of the saving to the right by custom.
At common law the wife was entitled to a third part of the personal estate, independent of the husband; and a bequest made to her by the husband, was not considered in lieu and exclusive of her dower; but she would take both.
The custom was in derogation of the common law, and abridged the right of the wife.
According to the custom of the city of London, if the husband devised a part of his personal estate to his wife, she was concluded by the bequest, and deprived of her customary right, unless it appeared by his will he intended she should have both.
Our acts of assembly are grounded on the custom of London. The acts of 1704 and 1715, give the wife an election. The act of 1729 concludes her by the bequest, unless she renounces the will.
According to our acts of assembly the wife could take the bequest and the third part also, if such appeared to be the intention of the husband.
The acts of 1704, ch. 14, and 1715, ch. 40, passed in the same years, relating to attachments,  [**48]  are allowed to be founded on the custom of London; and these acts, concerning the dower of the wife, from their analogy to the custom of London, in that respect, I presume were grounded on that custom.
It is the opinion of Judge Blackstone that the wife at common law was entitled to a third part of the personal  [*123]  estate; and this opinion is supported by great and respectable authorities, Bracton and many others; and Blackstone cites a decision of Finch, in the time of Charles I. (which was about the time our charter was granted) in support of this opinion. The advocates for the contrary doctrine adopt the opinion of Lord Coke, which I have presumed to controvert on the authority of Bracton and Judge Blackstone, and for the reasons I have assigned. Upon the whole, I am of opinion that the plaintiff in this case is entitled to one third part of the personal estate of her husband, after deducting the debts and funeral charges.
GOLDSBOROUGH, Ch. J. and DUVALL, J. concurred in this opinion.
JUDGMENT upon the case stated for the plaintiff. The defendants appealed to the court of appeals; and the judgment of the general court was affirmed in the [**49]  Court of Appeals at November term, 1801.  

32 of 37 DOCUMENTS 

Benedict Calvert's Lessee against Sir Robert Eden et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

2 H. & McH. 279; 1789 Md. LEXIS 5 

May, 1789, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for Anne Arundel Manor, in the county of Anne Arundel.

The ejectment was brought to April term, 1773, and a special verdict was found at September term, 1774. The following is an abstract, to wit.

That King Charles the 1st. granted the province of Maryland to Cecilius Calvert, his heirs and assigns, which is inserted in haec verba.

That Cecilius Calvert entered by virtue of the grant, and was seised as the law requires, and erected a Court of Chancery and Provincial Court, and that he and his successors have exercised the royal rights flowing from the said grant, and been adjudged to have them by the Courts of Law.

That the proprietors have had large bodies of land surveyed, called Manors, and certificates thereof returned and recorded in the land-office. That these lands have been generally let out for life or years by the proprietors' agents, under yearly rents, payable to the proprietors and their heirs.

That the aforesaid Cecilius Calvert directed Jerome White his surveyor-general, in 1669, to lay out Anne Arundel Manor, which was done, and a certificate returned and recorded in the land-office.

That the said Cecilius Calvert in 1675 died,  [**2]  seised of the said province and Manor, leaving Charles Calvert, afterwards Baron of Baltimore, his son and heir, who entered into the same, and was seised as the law requires.

That in 1698, Clement Hill, surveyor-general of the Western Shore, in pursuance of an order from the proprietors' agent, resurveyed the said Manor, a certificate of which was returned and recorded in the land-office.

That the said Charles Lord Baltimore, having a son named Benedict, his heir apparent, on the 31st of December, 1698, being then seised of the said province and Manor, according to the resurvey, executed an indenture between the said Charles Lord Baltimore, and his son the said Benedict, of the first part; the Earl of Litchfield, and his daughter Lady Charlotte Lee, of the second part; and the Duke of Northumberland, the Earl of Lindsay, Roger North, Sir Henry Lawson and Edmond Somerset, of the third part. This indenture specifies, that in consequence of a marriage between the said Benedict Calvert and Lady Charlotte Lee, and for other considerations therein mentioned, the Province of Maryland was settled to the use of the said Duke of Northumberland, Earl of Lindsay and Roger North, their [**3]  executors, administrators and assigns, for 99 years, upon the trusts therein mentioned, and which are since determined. Remainder to the use of Lord Charles Baltimore for life, without impeachment of waste. Remainder to the use of the said Benedict Calvert for life, without impeachment of waste. Remainder to the use of Sir Henry Lawson and Edmond Somerset and their heirs, during the life of the said Benedict Calvert, upon trust, to preserve contingent remainders. Remainder to the use of the 1st, 2d, 3d, 4th, 5th, and all other sons of the bodies of the said Benedict Calvert and Lady Charlotte Lee, in tail male; and to the use of any child Lady Charlotte should be enceinte with, &c. Remainder to the use of the Duke of Northumberland, Earl of Lindsay, Roger North, Sir Henry Lawson and Edmond Somerset, their executors, administrators and assigns, for 500 years, upon the trusts herein after expressed. Remainder to Charles Lord Baltimore, in fee.

A power is given to Lord Charles during his life, and after his death to the said Benedict Calvert, to grant lands in fee in Maryland, reserving the usual quit-rents; also to lease manors for 21 years or three lives, reserving the usual rents [**4]  in possession.

That on the 16th of January, 1699, Charles Lord Baltimore, granted parcel of the said manor in fee, to Samuel Thomas, which he and those claiming under him, have held under the great seal.

That between 1699 and 1750, divers other grants were made by the said Lord Charles, or by his grandson the late Lord Charles, similar to the above, for other parts of the manor, and a quit-rent reserved of 4s. sterling per hundred acres, and similar to these hereafter mentioned, to be made by Lord Frederick.

The Jury find not guilty as to the lands contained in the grants, antecedent to the death of the second Lord Charles.

That the first Lord Charles had issue male of his body, the said Benedict Calvert only, who died in 1714.

That the first Lord Charles died in 1715.

That Benedict Calvert left issue male of the said marriage, Charles, his son and heir, afterwards Lord Baltimore, and proprietor of Maryland, Benedict, Leonard, Edward and Cecilius, which said Benedict, Leonard, Edward and Cecilius, are since dead without issue.

That before the demise in the declaration, the trusts in the said indenture for 99 years had determined.

That Charles [**5]  Lord Baltimore, son of Benedict, entered into the said province and manor, (except the parcels granted by his grandfather and himself,) and was seised thereof as the law requires; and being so seised, on the 11th of July, 1730, executed an indenture between the said Charles Lord Baltimore of the first part; Sir Theodore Jansen and Mary Jansen his daughter of the second part; and Benedict Leonard Calvert, Cecil Calvert, Stephen Theodore Jansen, and William Jansen, of the third part, to the uses following:

To the use of the said Charles Lord Baltimore, and his assigns for life. Remainder to the trustee for his life, to preserve contingent remainders; and remainder to trustees and their heirs, in trust, that Lady Mary shall receive 800l. annually. Remainder to the use of the first and other sons of the said Charles Lord Baltimore and Mary Jansen his intended wife, successively in tail male. Remainder to the use of the said Charles Lord Baltimore, in fee.

A trust term for 1,000 years, to raise 5,000l. for each of the daughters' portions of the said marriage, to be paid at 21, or marriage.

A power for Lord Baltimore to grant lands in Maryland in fee, reserving the usual quit-rents.  [**6]  

A power to lease the manor lands for 21 years, or three lives in possession, reserving usual rents.

A power to Lord Baltimore to grant offices in Maryland.

A covenant by Lord Baltimore to levy a fine in the C. P. of the province, &c. to the uses in the indenture.

The Jury find the act for enrolment of conveyances, passed 10th May, 1692, and that the same was in force when the indenture of the 31st December, 1698, was executed; and that the same was not acknowledged nor recorded.

They find the act of 1715, c. 47. for enrolling conveyances, and the repealing law passed that session, c. 49. and that the indenture of the 11th July, 1730, was not acknowledged or recorded.

They find the act of 1719, c. 16. for declaring what laws were repealed by the act of 1715, c. 49.

That Charles Lord Baltimore had issue by Mary Jansen, an only son named Frederick, late lord proprietor, and two daughters, Louisa, born in 17--, and married to John Browning, and Caroline, born in 17--, who married Robert Eden.

That Charles Lord Baltimore, by his will, dated the 17th November, 1750, devised the province of Maryland, except, &c. in trust, to the use of his son Frederick,  [**7]  for life.

Remainder to trustees, during the life of his son Frederick, to preserve contingent remainders.

Remainder to the sons of his body successively, in tail male.

Remainder to the use of the daughters of his body in tail general, with cross remainders to a surviving or only daughter, in tail general.

Remainder to the use of his eldest daughter Louisa in fee, subject to 20,000l. for Caroline, his second daughter, payable at 21, or marriage, and if she died under 21, and without being married, the 20,000l. to sink into his estate.

That Charles Lord Baltimore had a natural son named Benedict Calvert; and being seised of the province, and Anne Arundel Manor, (except the parts granted as aforesaid,) as the law requires, on the 17th of November, 1750, by his will, devised the said manor to Benjamin Calvert, Esq. his heirs and assigns for ever.

That the said Charles Lord Baltimore died seised, as last aforesaid, on the 23d of April, 1751.

That Benjamin Calvert in the will mentioned, and Benedict Calvert, the lessor of the plaintiff, is one and the same person.

That Charles Lord Baltimore left issue, Frederick, his only son and heir, who after the [**8]  death of his father became lord proprietor, and entered into the said province, and was seised thereof as the law requires.

His marriage settlement with Lady Diana Egerton, 9th March, 1753, subjected expressly to the trusts for payment of Lady Baltimore's jointure.

That being so seised, on the 1st January, 1761, he executed an indenture between the said Frederick Lord Baltimore of the first part; Cecil Calvert his uncle, of the second part; and Thomas Bennett and William Sharpe, of the third part.

This indenture recites the articles of marriage, executed by Frederick Lord Baltimore, on the 9th March, 1753, on his marriage with Lady Diana Egerton, and that she was dead without issue.

It recites also, that for docking and extinguishing all estates-tail, and remainders, and reversions, dependent thereon of the said province of Maryland, &c. they, the said Frederick Lord Baltimore and Cecilius Calvert, sold and released to the said Thomas Bennett and William Sharpe, the said province, &c. to the uses therein mentioned.

The said deed acknowledged before a master in chancery, on the 3d February, and enrolled in the Court of Chancery of Great Britain, the 4th February,  [**9]  1761, and in 176--, entered amongst the council proceedings in Maryland.

That the people in Maryland have considered themselves, and the Courts have adjudged them, entitled to the benefit of all the statutes of England, antecedent to the settlement of the said province, so far as suited to their condition, situation and circumstances.

That the statute de donis, 13 Edw. I. also the statute of Hen. VIII. concerning uses and wills, have been adjudged by the Courts of Law, to extend to the province; also all statutes enabling and concerning devises of lands.

That Lord Baltimore being seised of the said province, and in perception of the rents thereof, and of the said Manor of Anne Arundel, executed an indenture on the 8th of April, 1767, between the said Frederick Lord Baltimore, of the one part; Bennett Allen of the said province, of the second part; and Walter Dulany, of the said province, of the third part.

This indenture recites, that Frederick Lord Baltimore being under the limitation in the marriage settlement of Benedict Leonard Calvert, his grandfather, on the 31st December, 1698, or under the marriage settlement of Charles Lord Baltimore, his father, on the [**10]  11th January, 1730, entitled either as issue male of the body of the said Benedict Leonard Calvert, or as the first and only son of his father, with remainder to Charles Calvert his late uncle, to the province of Maryland, &c. as the same was granted to his ancestor by Charles I.

Reciting also, the indenture of the 1st January, 1761, to Thomas Bennett and William Sharpe.

Recites also, that all estates-tail of the province were docked under the said deed, 1st January, 1761, there being no other established mode for barring estates-tail, upon the entirety of the province.

Recites, that with respect to the manors, being parcels of the province, and of known extent, and in particular counties and parishes, plea may and hath been usually held in the Provincial or County Courts of the province, who are possessed of a competent and adequate jurisdiction in that behalf.

Recites, that for docking the entails of the manors, and for vesting an estate in fee-simple in Frederick Lord Baltimore, and in consideration of 10s. paid by the said Bennett Allen, conveys to him Anne Arundel Manor aforesaid, and all his other manors; to the intent that he should become tenant of the same,  [**11]  that a common recovery may be suffered, wherein Frederick Lord Baltimore should be vouched.

That the said Walter Dulany was to be demandant, who might sue forth a writ of entry sur disseisin en le post, at or before the first Provincial Court next ensuing the date of the said indenture.

That the recovery to be had and perfected as aforesaid, or in any other manner or form whatever, shall enure to the use of Frederick Lord Baltimore in fee.

Nothing in this indenture to impeach any thing done under the indenture of the 1st January, 1761.

That on the said 8th of April, 1767, Frederick Lord Baltimore executed a power of attorney to Robert Goldsborough, attorney-general of Maryland, empowering him to appear on return of the said writ of entry, and appointing him his attorney, to appear before the justices of the Provincial Court, &c. upon all and every writs of entry, prosecuted by the said Walter Dulany, for demanding the said manors, and on every warranty in which the said Frederick Lord Baltimore shall be vouched over, by the said Bennett Allen; also to enter into warranty, and vouch over the common vouchee; also to demand himself, as Frederick Lord Baltimore might,  [**12]  if personally present; so that one or more recoveries may be suffered of the manors; also to do all other acts for rendering the said indenture valid.

That Bennett Allen, at the time when, &c. was in the actual possession, &c. by virtue of bargain and sale, &c.

That Bennett Allen, in virtue of the said indenture, entered into the tenements in the declaration mentioned, and was seised thereof as the law requires.

That Walter Dulany prosecuted a writ of entry returnable to the Provincial Court the third Tuesday of May, 1767, against Bennett Allen for the lands, &c. who appeared in proper person and vouched Frederick Lord Baltimore, who appeared by Robert Goldsborough his attorney, and vouched over the common vouchee.

That a writ of seisin was granted the said Walter Dulany returnable the third Tuesday in October, 1767, and returned by the sheriff of Anne Arundel county.

That it was the usage to bar common recoveries, by power of attorney, without any summons to warranty or summoners ad warrantizandum.

That the act of assembly for aiding common recoveries, passed before the said recovery was suffered. This act is the one hereinafter mentioned.

That by [**13]  the practice of the Provincial Court, where the parties have resided in the province, they have on common recoveries appeared, either in proper person, or by attorneys of the Court constituted to warrant, acknowledged before a judge of the said Court, or acknowledged before Commissioners appointed and empowered by writ of dedimus potestatem, issued out of said Court; the acknowledgment of taking of which warrants of attorney have been always certified by the Judge or Commissioners taking the same; and the same warranty, writs and captions have been filed in the said Provincial Court before passing the common recoveries suffered by virtue thereof.

That no writ of dedimus potestatem issued for taking any warrant of attorney from Frederick Lord Baltimore.

That the said Frederick Lord Baltimore did not make or acknowledge any warrant of attorney before a Judge of the said Court, for suffering the said recovery.

That there was not any usage, where tenant in tail resided out of the province, for issuing out such dedimus potestatem for taking warrants of attorney.

That the Provincial Court, held the third Tuesday of May, 1767, was by virtue of a commission from Frederick [**14]  Lord Baltimore, which commission is inserted in haec verba.

That, in July, 1732, c. 5. an not passed, entitled an "act for ascertaining the form of the oath of a Judge or Justice;" which oath is as follows, to wit: "You shall swear, that as a Justice of the Provincial Court of Maryland, in all articles of his lordship's commission to you directed, you shall do equal law and right to all the king's subjects, rich and poor, according to the laws, customs and directions of the acts of assembly in this province, so far forth as they provide, and where they are silent, according to the laws, statutes and reasonable customs of England, as used and practised within this province, and not delay any person of common right for any cause or pretence whatsoever, and in case any letters or other commandments shall come to you, contrary to law, that you do nothing by them, but cause them to be entered on record, and certify the king, the lord proprietary, or the governor, (for the time being,) of them, and proceed to execute the law notwithstanding the same letters or commandments; that you shall hold your Courts according to the acts of assembly and the directions in your commission; that [**15]  you shall do and procure the profit of the lord proprietary in all things where you may lawfully and reasonably do the same; and that you shall not debar or hinder the prosecution of justice, nor take any gift, bribe or fee, for delaying or rendering judgment, but shall behave yourself justly, honestly and faithfully, to the best of your knowledge and understanding, so long as you shall continue in the said office. So help you God."

That the said act was in force when the recovery was suffered, and is still in force; and that it is taken by all Judges, and was by the Judges of the Provincial Court, before the recovery suffered.

That the lords proprietary, either personally or by their governors, commissioned during pleasure, have administered the government of the province, and appointed all officers, civil and military.

That all acts of assembly, commissions and writs are in the name and style of the lord proprietary.

That all officers, and the Judges of the Provincial Court, have been held removable, and actually been removed, at the pleasure of the lord proprietary.

That Cecilius Calvert, mentioned in the deed of the 11th July, 1730, died in 1765 without [**16]  issue.

That Stephen Theodore Jansen, in the said deed mentioned, is living.

That Mary, wife of Lord Charles, died in 1769.

That Frederick Lord Baltimore died without issue, the 4th September, 1771.

That Louisa and Caroline, his sisters, the daughters of Lord Charles, are still living.

That the trusts in the deed of the 11th July, 1730, ceased respectively on the death of Mary Jansen, and the marriages of Louisa and Caroline, and the payment of the portions; which were paid before the death of the Lady Mary.

That after suffering the said recovery, notice was given in the Maryland Gazette, for the sale of the said manor.

In consequence whereof, the manor was sold to the highest bidders.

That from the first settlement of the province hitherto, there hath been a great seal, and all grants conveyed in fee by the proprietor, have been granted under it, and is now constantly used by them in making such grants.

The Jury find a patent to John Thomas, in 1769, of a parcel of the Manor of Anne Arundel, recorded in the land-office, who entered into the land therein mentioned, claiming an estate in fee, and was, and is seised thereof as the law requires.  [**17]  

They find several other grants to other purchasers, of Anne Arundel Manor, in the same manner as that to John Thomas, &c. and that the defendants, holding under the said grants, are not guilty as to any of the lands so granted to them, which do not lie in the said manor.

That the said grants reserve a quit-rent of 4s. per 100 acres, &c. fine for alienation, according to the conditions of plantations.

That the said parcels of land were leased by the agents of Charles Lord Baltimore, under his hand and seal, in the life-time of Charles Lord Baltimore, to divers tenants for 21 years, under the usual rents; neither of which leases expired before the 25th of March, 1755, nor until within 30 years before bringing this suit.

That Frederick Lord Baltimore, by the hands of his agents, who entered into the said manor, on his behalf, after the death of his father, took the rents reserved on the leases of the said Charles Lord Baltimore.

That Frederick Lord Baltimore never was in Maryland, nor personally entered into the said lands, nor any part thereof.

That after the expiration of the leases made by Charles Lord Baltimore, new leases for the lands (the leases whereof [**18]  had expired) were made as soon as conveniently could, by the agent of Frederick Lord Baltimore, reserving the usual rents, for terms of years respectively; and that by virtue of such demises, the tenants entered and enjoyed the same till the grant before formed.

That many of the tenants purchased and obtained grants for the lands as set forth.

That from the death of Charles Lord Baltimore to the death of Frederick Lord Baltimore, the rents of the said manor were received by his agents, by his directions, and for his use.

That during the said time no demand was made by the lessor of the plaintiff of the said rents, nor any paid to him.

That the statute of limitations, 21 James, c. 16. extends to the province.

That the lessor of the plaintiff, since the death of Charles Lord Baltimore, hath been twenty years out of possession, unless the law doth otherwise adjudge on the state of the leases herein before mentioned.

That the British statute of 11 Geo. II. for payment of rents extends here.

That on the 1st November, 1766, an act of assembly was made to aid defective common recoveries, which is inserted in the special verdict.

That in June, 1773,  [**19]  c. 1. an act of assembly was passed, entitled, "an act concerning estates-tail, and the jurisdiction of the County Courts," which is inserted in the special verdict.

That no suit has been brought against any lord proprietary, but the said common recovery; but many actions have been brought in the names of lords proprietors, as plaintiff, on bonds, bills, and other causes of personal actions.

That on ejectments against persons for lands claimed by the lords proprietors, their agents have defended the same; and that they always had agents in the province.

Nineteen other recoveries for 116,000 acres of land were suffered under the deeds of the 8th of April, 1767, and the power of attorney.

The Jury find the lease, entry, and ouster; and if upon the whole, &c. &c.  

DISPOSITION:
Affirmed.  

COUNSEL:
Cooke, for the plaintiff. The subjects of Great Britain settling in America, brought with them all the laws of the mother country, and were entitled to their beneficial influence in all cases where they could apply to their local and particular circumstances. 2 P. Wms. 75. 2 Vez. 349.

The statute de donis, of uses, and of wills, were laws of our first ancestors; but subsequent statutes [**20]  did not reach us after the granting the charter by Charles I. unless particularly named, or, as the verdict states, were received here by adoption.

Under these impressions, the first settlement of 1698, by Charles Lord Baltimore, was made, by which the province was limited to himself for life; to his son Benedict for life; to the issue of Benedict in tail; reversion to Lord Charles in fee. But these deeds were not acknowledged or recorded; and therefore the plaintiff contends they had no operation. Deed, 31st December, 1698. Act of 1692, c. 30. Act of 1715, c. 47. s. 5. The proprietary, then a private person, the government being in the hands of the crown.

If the deeds of 1698 did not operate in this province, Charles Lord Baltimore, the issue of Benedict, was seised in fee when he made the settlement in 1730, by which he conveyed to the use of himself for life. Remainder to trustees during his life, to preserve contingent remainders. Remainder to trustees and their heirs during the life of Mary his wife, in trust, to permit her to receive 800l. per annum out of the rents and profits, as a jointure, and in lieu of dower. Remainder in strict settlement to his first and other [**21]  sons in tail, subject to a term of 1,000 years, in the trustees, for the better securing his wife's jointure, and the gross sum of 1,000l. to her, and for raising by sale or mortgage daughters' portions, &c. Deed, July 11, 1730.

Lord Charles having an estate in fee, these deeds were intended to alter that estate to an estate for life in himself, to Lady Mary for life; to Lord Frederick in tail; subject to a term of 1,000 years for the better securing Lady Mary's jointure and daughters' portions. Reversion to Lord Charles in fee.

This reversion was executed in Lord Charles, or rather it was so much of the fee undisposed of, and remaining in him. If a conveyance is made and no uses declared, it results for the benefit of the feoffor. Suppose uses are declared, the moment they are spent the estate results in like manner. Co. Litt. 22. b. 4 Burr. 1960. 2 Vez. 51.

Charles Lord Baltimore having this reversion depending on an estate-tail in his son, Lord Frederick, by his will, dated 17th November, 1750, devised it to Mr. Calvert in fee, and thus the title of the lessor of the plaintiff is complete, unless it can be shown that the estate-tail has been barred, and the reversion [**22]  depending thereon destroyed. 3 Burr. 1494, 1495. 4 Burr. 1952. 1960. 1 Burr. 60. 326. 1 Salk. 232. Fern. 70, 71. 2 Vez. 339, 340. 1 Raym. 523.

Conscious of this truth, and of the difficulty of docking the entail, the late Lord Frederick, by his marriage articles on the 9th March, 1753, with Lady Diana Egerton, (and which were expressly subjected to the outstanding trusts for his mother's jointure, and payment of his sisters' portions, by the deeds of the 11th July, 1730,) covenanted that as the entail could not be barred in the Courts in Maryland, that he would procure a private act of parliament for that purpose. He made his application to parliament, but failed. His next step was executing the deeds of 1st January, 1761, which are made by the defendant's part of this verdict; supposing that no estate-tail could be created that is not barrable in some way; and reasoning in this case by analogy to the cases of entailed copyholds and descendible freeholds in England, where, in some instances from necessity, they have been barred by common conveyances.

The case of copyholds depends on custom; they are considered as tenancies at will, of which no praecipe will lie from the Courts [**23]  of Common Pleas, and in most instances they are now barred by process in the nature of a recovery in the lord's Court of the manor. If no custom to bar by such recovery, a surrender will do if there be a custom to bar by surrender. But if no custom to bar by either, Lord Hardwicke has declared it must be by recovery. 2 Vez. 601. The mode of barring descendible freeholds, if entailed, by simple alienation, was originally adopted on the principle of barring conditional fees at common law. A common recovery or fine would have been a forfeiture. 1 Atk. 525. It was afterwards extended from necessity, there being no other method of doing it, to all cases, even before issue had. But this is the case of an inheritance, and if there be any other mode of barring the entail, the necessity existing in the case of descendible freehold will not apply.

But neither in the case of descendible freeholds, copyholds, nor yet of trusts, can the entail be barred by simple alienation, if the limitations are so tied up that if the estate had been a legal estate and an inheritance, the tenant in tail could not have barred it by a common recovery. 2 Ch. Cas. 64. Cruise, 144. 2 Vern. 583.

The next [**24]  method Lord Frederick adopted to bar this estate-tail, was, by suffering a common recovery in the then Provincial Court of this province, on the third Tuesday of May, 1767. If this could be done, there is an end to his conveyance of 1761; for that extraordinary mode can only have effect in such cases where there is no possible method of doing it in any other manner.

But an estate-tail cannot be barred in any case, unless there is a good tenant to the praecipe. In this case, by the settlement of 1730, Lord Charles having interposed an estate to the trustees and their heirs, for the life of Lady Mary, prior to the estate-tail limited to Lord Frederick to secure 800l. per aunum, as a jointure to Lady Mary, Lord Frederick could make no legal tenant to the praecipe, and consequently the recovery is void. Cruise, 24. 21. 4 Burr. 2165. 3 Burr. 1686. 1 Vez. 436. 491. 2 Atk. 578. 2 Ch. Cas. 64. Cruise, 144. 2 Burr. 918. 1065. 1 Burr. 60. 116. 2 Atk. 72. 2 Vern. 584. 3 Atk. 135. Pigot. 50. 1 Salk. 568. 679. Cowp. 694. 701. 704. 2 Black. Rep. 1326. 2 Str. 798. Br. Ch. Cas. 75. Lord Frederick, an under-tenant to the trustees at the rent of 800l. per annum, for the use of Lady Mary.

There [**25]  are other material objections to this recovery. The warrant of attorney is not acknowledged either before any Judge or taken under a dedimus which is found to have been the constant usage in the province. Great frauds might be practised if it were otherwise. Cruise, 76.

The verdict, it is true, finds that Lord Frederick executed this power of attorney, but how is that fact to be proved after a number of years; or if proved, how will it appear from thence that it was not executed under duress or other improper influence? The legislature has wisely directed an acknowledgment of all conveyances; and recoveries being a mode of conveyance, there is every reason for the same preeaution with respect to them as to common deeds. It bears date before the writ of entry issued, which is error appearing upon the face of the proceedings. Cro. Eliz. 740. Regularly there ought to be a summons to warrant, and although a party may appear voluntarily without any summons; yet he cannot appear without a writ, and there can be no warrant to defend a writ before it issues. Another objection to this recovery is, that the proprietary being lord of the fee and seigniory, could not suffer a common recovery [**26]  at all. Lord Frederick thought so, for he applied to parliament upon the ground that there was no other method of barring the entail. He could not be demandant in a recovery because he could not be disseised, for all must hold of him. He could not be vouched for the same reason, because he would then stand in loco tenentis, and in judgment of law would be tenant to, and hold of, demandant.

But if the proprietor could suffer a recovery he could not do it in his own Court. The Judges were appointed by him, held their commissions in his name, and were removable at his pleasure; exercised their jurisdiction as his delegates, and the Court in every instance and sense is as much his as if he presided in person. Can such a Court be proper for trying suits in which he was either plaintiff or defendant? Is it agreeable to natural justice that a jurisdiction so partial could be established? Could it be the intention of the crown, in granting the charter, to extend his jurisdiction to causes in which he was interested? Or if such was the intention, could it be in the power of the crown, or rather was it not contrary to the fundamental principles of the English Law and Constitution to render [**27]  him in effect a Judge in his own cause? Davis, 75.

The crown might grant cognisance of pleas to proceed according to the law of the land; but not otherwise. Litt. Rep. 304. Hob. 48. Lucas, 125.

No principle can be better settled in reason, or in practice, than that no one shall be a Judge in his own cause, and the jealousy of the English law has carried this principle so far that none can be a Justice of Assise in the County where he was born. The king cannot by his writ command himself, and how could the proprietor? Litt. s. 212. Co. Litt. 141. 2 Inst. 25. 8 Co. Rep. 118. b. Salk. 186. 12 Co. 114. a. 2 Burr. 860, 861. 4 Co. 55. a.

It is said by Lord Mansfield and Lord Hardwicke both, that in all cases where the dispute respects the seigniory, the proprietor's Courts are incompetent to hold jurisdiction, and in such case from necessity the decision must be by the king in council. From the same necessity they had always appellate jurisdiction from the plantations. Then why not for the same reason in this instance have original jurisdiction? Cowp. 173. 1 Vez. 444. 447. 2 Vez. 356.

There is no distinction between a suit for the whole province and for a part of it;  [**28]  between a real action and a fictitious one, as far as regards the impropriety and illegality of allowing a jurisdiction to the Court of the proprietor in his own case.

If the recovery shall be found on consideration to have been suffered by the proprietary in his own Courts in proper form, and not subject in law to the objection last made, still it must be deemed to be void as to the subject of this controversy.

Wherever particular uses are limited, the reversion remains in the grantor as so much of his estate undisposed of. The reversion limited to Lord Baltimore and his heirs on the determination of the particular estates, was no more than what resulted by operation of law, and was so much of the original estate not disposed of. It was a legal estate remaining in Lord Charles, and devised by him to Mr. Calvert; but the estate in Lord Baltimore was never vested in possession. The fee was in the trustees, and he was cestuy que trust, and that only in remainder at the time he suffered this recovery: and a recovery suffered by cestuy que trust will not bar the remainder or reversion of a legal estate, but only the remainders of the trust estate. 2 Atk. 578. 1 Atk. 595. 4 Burr.  [**29]  2165. 1961. 1 Atk. 473. Brown's Ca. 73. 75.

If Lord Frederick was tenant in tail, and could bar it without joining the outstanding estate for life, he would destroy the provision made for his mother's jointure. He would acquire a fee and take a new estate by purchase, Pigot, 136. must apply to the Chancellor to direct trustees to join, who will then take care to see the provisions of the trust are secured. 1 P. Wms. 358. 536.

Objection 1. That there is a variance between the name in the demise by the lessor of the plaintiff and the name in the will of Lord Charles Baltimore.

Answer. The identity is sufficiently ascertained by the special verdict. It is not found that there was any other person by the name of Benjamin who could take, and therefore the intent might be explained by parol testimony. 1 Atk. 410. 1 P. Wms. 421. 425. 2 P. Wms. 141. 1 Wils. 247. 2 Vez. 216. 2 Atk. 372. Brown's Ch. Ca. 85. 2 P. Wms. 137. 1 Vez. 231. 3 Com. Dig. 17. 2 Com. Dig. 188. 2 Vern. 593. Bro. Ca. 474. 2 Atk. 240. 2 Vern. 625. Prec. in Chan. 229.

The Court on special verdict will never doubt of what the Jurors do not doubt of. 5 Co. 97. a. Cro. Eliz. 238. Cro. Jac. 64. Salk. 249.

The [**30]  Court will not admit parol evidence to raise a title or gift; but where the title or gift is raised, and there is a doubt as to the person to whom it is given, or as to the thing given, parol evidence may be admitted. Co. Litt. 3. a. Cro. Eliz. 328. 1 Lill. Abr. 874. 2 Bro. Abr. 652. Com. Dig. (Grant,) 442. Cro. Jac. 640. 558. 3 Atk. 258. Gilb. C. P. 181. 174. 3 Leon. 18.

Objection 2. That the proprietary is to be considered in loco regis, and therefore not bound by the act of 1692, not being particularly named. 5 Co. 14. 11 Co. 17. 7 Co. 32.

Answer. The king is bound by the stat. 32 Hen. VIII. c. 28. directing the mode of conveying the estates of feme coverts, though not named, and why not as to the conveying all other estates? 4 Bac. Abr. 198. 2 Inst. 681. Cruise on Fines, 87.

The proprietary either is, or is not, loco regis. If he is not, the act of 1692 operates. If he is, the deeds of 1698 are void, for the king cannot raise a use by bargain and sale to ground a release. And this is the reason why no cases occur in England as to the king's being bound by the statute of enrolments which relate to bargains and sales only. 1 Bac. Abr. 274. Gilb. Uses, 285.

He [**31]  cannot grant lands in freehold but by matter of record. But may make leases. 4 Co. 54. b. Plowd. 212, 213. 3 Bac. Abr. 305. 4 Bac. 192. 196, 197.

But these deeds could not operate because the government was in the hands of the crown, and the proprietary not in possession. n1

n1 This fact is not stated in the verdict.

Objection 3. That the province of Maryland was granted for the purposes of colonization, and therefore could not be entailed. The effect of the deed of 1698, therefore, if good, would be to convey a conditional fee, upon which there can be no remainder: and that Lord Charles having made the settlement in 1730, before he had issue, it was void. Contra, Co. Litt. 19. a. as to all claiming under him.

Answer. A conditional fee is as much against the spirit of colonization as an estate-tail. A tenant in tail might suffer a recovery immediately, but the grantee of a conditional fee could not alien before issue had. There could be no remainder on a conditional fee at common law, because it would be to limit a fee upon a fee. But there is a reverter by operation of law on the extinguishment of the conditional estate. 2 Inst. 335. Nels. Lex Test. 281.

If [**32]  the province of Maryland was not entailable, the descent of this reverter, on the death of Benedict, merged the conditional fee in Lord Charles, and made it absolute. 2 Bl. Com. 110. 177. Co. Litt. 18. a. Carth. 258. Hob. 323. 1 Salk. 338. 2 Vez. 354. 3 P. Wms. 10. Vin. Abr. (Merger,) 364. D. Plowd. 248.

But if the descent of the reversion did not merge the conditional fee, then Lord Charles, upon having issue, had an absolute power over the estate. He might have aliened immediately, and consequently he might devise; for a devise is a conveyance, and at the time this devise was made, and long before, Lord Charles had issue. 1 Bl. Com. 102. 2 Bl. Com. 294. 1 Burr. 92, 93. Shep. 1, 2. 500. Bac. Law Tracts, 147. 152. 2 Bl. Com. 373. 378. 379. 382. Cowp. 90. 1 Burr. 429.

Objection 4. A possibility of reverter is not devisable.

Answer. If the province was not entailable, the deed of 1730 conveyed the absolute fee and legal estate to the trustees, to the use of Lord Charles for life; to the trustees for the life of Lady Mary to pay her jointure; to Lord Frederick in fee on condition, with a contingent, springing, executory use, to arise out of the estate of the trustees, for [**33]  the benefit of Lord Charles and his heirs, if Frederick died without issue; and whenever there is such a use which may descend it is devisable. 1 Bl. Rep. 225. 252. 605. 8 Vin. Abr. 112. pl. 38. Lucas, 420. 2 Burr. 1131. Doug. 691. 2 Wils. 29. 1 Brown's Cas. Ch. 31. 61. Shep. Touch. (new edit.) 503. Carth. 258. shows it descendible or it could not merge. 5 Bac. Abr. 371. note. 3 Durnf. & East, 88.

If the proprietary is loco regis, the possibility may be granted; a fortiori it may be devised. 2 Vez. 180, 181. Bro. Ch. Cas. 316.

A devise of land operates as an appointment to uses. At common law lands would not pass by devise; they settled them to uses; and then by will appointed or directed those uses. There might be a use upon a use, executory, springing, or contingent at common law, and these uses were devisable. 3 Chan. Cas. 31. Fern. 77, 78. 1 Atk. 591.

A use was an interest merely in idea at common law, and yet it was devisable. These deeds created such a use as might be transmitted by devise. After the statute of uses executed the possession to the use, they were no longer devisable, and that effect produced the statute of wills. 2 Atk. 38. Harg. Co. Litt. 111. b.  [**34]  There can be no reason, therefore, why, upon principle, any use that was devisable at common law should not now be devisable under the statute of wills: and the late decisions establish this doctrine most effectually, and beyond contradiction. Reverter of copyhold entailed is devisable. 3 P. Wms. 287. 263. 2 Bl. Rep. 1046. 4 Burr. 1952. Cas. temp. Talb. 36. The reverter therefore being well devised to Mr. Calvert, Lord Frederick never having had issue, could not convey; and having died without issue, the lessor of the plaintiff is entitled to the possession. Co Litt. 13, 19.

Objection 5. The deed of 1698 is good, and Lord Charles seised of an estate-tail.

If the province was capable of being entailed, and the deed of 1698 is good, the proprietary being loco regis, and not named in the act of 1692, c. 30. then the second Charles Lord Baltimore was tenant in tail, reversion to himself and his heirs in fee.

Answer. If the conveyances of Lord Frederick in 1761, are to have the effect for which they were intended, to bar this entail, then the settlement of Lord Charles in 1730, will have the same operation. It will bar the estate-tail and create a new estate to Lord Charles [**35]  for life; to the trustees and their heirs for the life of Lady Mary; to Lord Frederick in tail. Reversion to Lord Charles in fee; in which case, the prior estate for the life of Lady Mary would prevent Lord Frederick from barring in any possible method whatever.

If the deed of 1698 is good because the proprietary is loco regis, he is so in this instance, and the king cannot bar by recovery. Pigot, 74, 75. Cruise, 102. Cro. Car. 96, 97. 10 Co. 112. 4 Bac. Abr. 191. Cruise, 80. 2 Inst. 241. Jenk. 244. Dyer, 154. b. Bro. Pr. pl. 146. Petition, pl. 1.

The king is bound by the statute de donis, and can only bar by fine of grant and render; and so might the proprietary in this instance. Cruise on Fines, 67. 124. Treat. on Fines, 26. 227.

Objection 6. A trust estate, entailed, may be barred by bargain and sale.

Answer. Trusts are governed by the same rule as legal estates. A fine, which is the highest and most solemn method of conveying a legal estate, will not bar the reversion, though it will the issue. A deed therefore of trust estates will not operate beyond what a fine will on legal estates. Cruise on Recoveries, 143, 144. 2 Chan. Cas. 64. 1 Vern. 440, 1 Atk. 591. Gilb.  [**36]  Uses, 102.

Objection 7. The proprietary is to be considered in loco regis, and not capable of devising.

Answer. The statute of wills has general words that comprehend all persons, then let the defendants show the disqualification. The king can take by devise, and why not devise. 3 Com. Dig. 12. 4 Inst. 335. 8 Rymer, 75. 1 Par. Hist. 477. Richard II. Maryland and Pennsylvania have both been the subject of family entails; have both been devised, and the government of Maryland carried on in Mr. Harford's name, under a devise, for several years. And it appears by statute, that the proprietaryship of SouthCarolina was devised and held by will. Preamble to 2 Geo. II. c. 24.

The statute of wills is expressly found to extend here, and in the construction of that statute, we must be governed by the laws of England, which know of no such distinction, or exception to the general words as are now contended for in this instance.

But if the objection had any force as to the seigniory, port duties, and such things as were not the object of the statute of wills; yet as to Anne Arundel Manor it would not apply, which was separated from the entire province by an actual admeasurement [**37]  under metes and bounds, and held in severalty; was leased under particular covenants; and held and distinguished as a separate estate, by the family deeds.

It may be contended, that as the verdict states that Frederick Lord Baltimore entered and was seised as the law requires, in 1751, after the death of his father, that more than 20 years elapsed before the bringing the ejectment, and the plaintiff is thereby barred by the act of limitations.

Answer. If Lord Charles was tenant in tail, reversion to himself in fee, his deed in 1730 would operate as far as it could legally operate on both his estates. Carth. 258. 1 Co. 48. b. 1 Salk. 338. And having charged all the estate he had, by a conveyance to trustees and their heirs in the first place to secure his wife's jointure; and afterwards by creating a long lease for payment of his daughters' portions; and still further by leases for 21 years to the tenants of Anne Arundel Manor; and it being expressly found that Lady Mary did not die till 1769, nor the daughters' portions paid till after their marriages; and it being also expressly found, that the leases to the tenants did not expire till within 20 years before the bringing [**38]  the ejectment, the devisee had no title until the expiration of the leases, and the trusts under the marriage settlement; nor ever until the death of Lord Frederick without issue in September, 1771. Cowp. 218. 1 Burr. 112. 119, 120. 2 Bl. Rep. 1326. Bull. N. P. 102. Hob. 322. 1 Roll. Abr. 659. c. 12. Receipt of rents will not bar by limitation. 2 Vez. 309.

If Lord Charles was tenant in tail under the first settlement in 1698, and consequently had no powers to make leases to bind his issue; yet the verdict states that Lord Frederick received the rents reserved after his death, and that affirmed the leases, which it is found did not expire until within 20 years of bringing the ejectment. 3 Bac. Abr. 310. Good at common law. Co. Litt. 45. b. Cowp. 473.

If Lord Charles had a conditional fee, and, it should be said, had no power to alien before he had issue, and having issue and then devising, the devise would be a conveyance, and the act run therefrom.

Answer. That the reverter descending, merged the conditional fee; and then by the deeds of 1730, a power to lease was reserved, and the devise could only operate on the reversion. He had a power to bind all claiming under [**39]  him. Co. Litt. 19. a. It is not found that the leases were made before issue. Presumed good not expiring, &c.

Memoranda. If it is said that the finding of the Jury is sufficient evidence of a good tenant to the praecipe, as the verdict states seisin and possession in Lord Frederick; and before a recovery could be offered in evidence, it must be proved there was a tenant to the praecipe. Bull. N. P. 226.

Answer. If the facts are stated, and the jury have drawn a wrong inference of law, the Court may determine from the facts. Stra. 766. 886.

If it is said that a surrender of the trustees will be presumed. Cruise, 33. 2 Burr. 1065.

Answer. The trustees are not tenants for life, but had a base fee during the life of Lady Mary, and could not surrender a fee. They were not trustees for the benefit of the tenant in tail, and shall not be presumed to have surrendered, nor are there any existing circumstances upon which to ground such a presumption. 2 Burr. 1065.

If Lord Charles had an estate-tail, reversion to himself in fee, when he made the deed in 1730, he conveyed thereby only a base fee, which was determined by the entry of his issue, Lord Frederick. Therefore,  [**40]  quaere, if the estate created for the wife's jointure was not, by such entry of Lord Frederick, defeated. 3 Burr. 1703.

Devise of an entailed copyhold will bar the issue. 2 Vern. 585.

Devise by cestuy que trust, will bar the entail. Prec. in Chan. 228.

Copyholds not within the statute de donis; yet reversion of entailed copyholds is devisable. 3 P. Wms. 287. 263. 2 Bl. Rep. 1046. 4 Burr. 1952. Cas. temp. Talb. 36.

If Lord Charles was seised in fee, and the trust for the life of Lady Mary is good, Lord Frederick was only cestuy que trust, and there could not, by his entry, &c. be a disseisin during the continuance of the trust. 1 Atk. 591.

Jenings, for the plaintiff. The province is not entailable, it being granted for the purposes of colonization, and if the inheritance could be fettered, then no grants could issue for lands in fee, and consequently the intent of the charter would be defeated.

If the province is not entailable, and the subject is of such a nature that the statute de donis does not extend to it, then what would be an entail under that statute is a fee-simple conditional at common law, and alienable after issue had; then the last Lord Charles [**41]  having issue a son, the devise of the late Lord Frederick to Mr. Calvert was good. 2 Vez. 180.

If the province was entailable under the statute de donis, yet being a seigniory with royal rights, the proprietary was in loco regis, and the entail was not barrable any more than of lands which the king holds jure corona, the inconvenience of fettered inheritances not extending to the case. If so, the devise of Lord Charles to Mr. Calvert took place on the death of all the issue in tail, and no act could be executed by the issue in tail to defeat the devise of the reversion in fee. Jenk. Cent. 250. 257. 2 Vez. 353.

If the lands were entailable, and the entail liable to be docked, yet the recovery suffered by Lord Frederick was ineffectual for the purpose. He could not suffer a recovery in any Court of the province, but should have done it in the Court of Common Pleas.

If the province was entailable, and the entail barrable by the proprietary in the Courts of Maryland, then he must be considered in the same light as any other suitor, and there was no good tenant to the praecipe, the deed not being acknowledged nor recorded, nor any dedimus to take a power of attorney.

If [**42]  the proprietary's deeds require acknowledgment and enrolment, will not the rights of his tenants of the manors for twenty-one years, or three lives, be affected? If he is considered as in loco regis to preserve these, and that he is not bound by the act of enrolments, ought he not to be considered in the same light as to his incapacity of suffering a recovery?

It is conceived the deeds of lease and release of 1761 are totally ineffectual, for they can convey nothing but what may be lawfully granted, and therefore cannot affect the reversion in fee. This would be altering the common law without an act of parliament, or any custom to support it. 4 Bac. 172. If these deeds will not dock the entail any more than a recovery, then the estate-tail cannot be barred, that is, unless the deeds are properly recorded.

If Lord Baltimore is to be considered as a common person, with regard to the suffering of a recovery, or other disposition of his property, then the settlement on the marriage of Benedict Leonard Calvert, made in 1698, ought to have been acknowledged and recorded, for want of which the province descended to Lord Charles, his son, in fee.

Under the settlement in 1698,  [**43]  Lord Charles first was tenant for life, remainder to his son Benedict for life, contingent remainders to the first, &c. son of Benedict in tail male, remainder to Lord Charles in fee. When the second Lord Charles, the son of Benedict, was born, he became seised of the vested remainder in tail, and after the death of his grandfather, the first Lord Charles, the remainder in fee descended on him. His marriage settlement could not alter this estate-tail; for if so, and he altered it to an estate for life, and created only a contingent remainder to his first son, &c. then he and the trustees under this marriage settlement, might have destroyed the contingent remainders limited by it, and by the same method any tenant in tail might defeat the issue in tail.

Lord Charles the second had, under his father's marriage settlement, in 1698, a conditional fee, or an estate-tail with reversion in fee. Whether it was the one or the other depends on the statute de donis extending to the proprietorship. If it did not, then it was a conditional fee, and Lord Charles second (after having issue) had a right to dispose of it. If the statute de donis affects the case, it was an estate-tail, and Lord [**44]  Charles had the reversion in fee, of which he might dispose. This point being established, it makes every other construction immaterial, and gives a good title to Mr. Calvert, under the will of Lord Charles second.

If the statute de donis has any force in this case, it must be by adoption. It has been adopted by the proprietary's grantees residing here, but not as it respects the proprietary himself, and the deeds of settlement may operate as well to give a conditional fee as an estate-tail.

That foreign dominions should hold of the crown of England, could not have been the object of this statute. It says the will of the donor shall in future be observed; but suppose a breach of this law, what Court in England could have taken jurisdiction of it? For example, one person insists he has the right to the province under an entail, another under the condition being performed, who could the makers of the statute de donis imagine had a right to decide it?

It is no objection to say that the different family settlements show the estate was entailed; for this depends on the statute de donis extending to the subject or not. The modification in words is the same as to an estate-tail,  [**45]  or a conditional fee; but whether it is one or the other depends on the statute's applying or not applying to the case.

If the statute de donis is construed to extend to the proprietorship, or the province in the hands of the proprietor, before any grant, then if the settlements are well executed, Lord Charles second had an estate-tail and reversion in fee; had a right to dispose of this reversion, and this disposition was valid, unless Lord Frederick, the issue in tail, has destroyed it by any subsequent act.

In considering the question under this head, it must be taken up, as supposing Lord Frederick lord proprietary of the province, or he must be considered as a private person.

If the province is to be considered as entailable under the statute de donis, yet being a seigniory with royal rights, and all Courts of Justice held in virtue of the proprietor's commission, and the process being in his name, he could not bar the entail by a recovery, any more than the king can in England. If so, the devise of Lord Charles to Mr. Calvert of the reversion of the manor took place on the death of the issue in tail in his settlement, (Lord Frederick was the last,) and no recovery [**46]  could be executed by him to defeat this reversion in fee.

First. In order to know in what manner the settlements found in the verdict may affect the case, it is necessary to consider whether the proprietary grant from the crown is affected by the statute de donis. It is conceived that this statute neither in its letter, nor meaning, can affect the province held immediately under the grant of the crown. Though it has been adopted as to subinfeudations made by the lords proprietors.

The history of the statute de donis, and the purpose of making it, compared with the purpose of granting the charter, will show that it could not extend to the province, held immediately of the crown. The statute was made to prevent the great baronies from being divided, that their joint power to oppose the king might not be weakened. Each baron was a petty prince in his own territory. His vassals attended him in war. The makers could never have in contemplation lands in a remote region. The statute does not extend to the Isle of Man. 4 Inst. 284. 2 Vez. 354.

The reasons on which the statute de donis rest, are there directly opposite to the principles on which the charter was granted. The statute [**47]  was to prevent the conveyance of property; the charter to encourage it. It is absurd to draw the same conclusions from things totally dissimilar in their principles. It is no argument to say that the statute de donis has been adopted with respect to the proprietary grant, because the settlement has words which would create an estate-tail, if the statute extended to the case; for this depends on the statute de donis extending to the subject or not, for the same words which make an estate-tail since the statute, make a conditional fee at common law; therefore, whether it is one or the other does not depend on the words of the conveyance, but on the statute's applying or not to the case.

When the Judges in the reign of Edward IV. determined that an estate-tail might be barred by common recovery, they could have had no idea that there could be any estate-tail under the statute de donis, but such as an action would lie to recover in the king's Courts. If no such action would lie, then it could not be an estate-tail.

The principle on which a common recovery was introduced, was to avoid the increase of perpetuities under the statute de donis. These perpetuities were estates-tail;  [**48]  but to say the statute extended to estates out of the realm of England, of which recoveries could not be suffered in the king's Courts, would be saying that the Judges gave a construction to the statute de donis to establish estates-tail out of the realm which could never be destroyed.

The statute de donis, says the will of the donor, shall be observed. On a dispute whether it was or was not observed, it must have been the ideas of those who made this act, that the point should be determined in the king's Courts. How could this be of lands in foreign countries? The common law, therefore, remains as to them, where the statute has not been adopted; then it becomes a rule not sua vi, but by such adoption. If it is said that the statute de donis does extend to foreign countries without adoption, then the entail may like other estates-tail be docked in the king's Courts.

Taking then the province not to be within the statute de donis, and on the supposition that all the settlements are valid, it follows that Lord Charles second had a conditional fee under the settlement in 1698, and on the birth of his son Frederick, the estate in fee was absolute, at which time, and not before,  [**49]  he had a right to dispose of it. He did dispose of it by his will, and that part of it called Ann Arundel Manor, to Mr. Calvert, who had a right to enter after the determination of the respective leases. In this view of the question the point is very short, for if the statute de donis does not affect the subject, then there is a clear title under the devise.

Second. To consider the subject on the supposition of its being affected by the statute de donis; and that this statute is to be construed as operating on the province immediately after the granting of the charter.

Lord Baltimore must be considered either as standing in loco regis, as to conveyances and acts executed by him, or he is not to be so considered. He ought not to be considered in both capacities, just as it may suit the adverse party, for this would be giving him greater privileges than the king, who cannot be considered as a private person, and a king too. If he is considered as a private person, the deed of 1698 is bad, it being neither acknowledged or recorded. If it is to be considered good in the case of the proprietor as being in loco regis, and not bound by the act, we must carry the doctrine of the [**50]  proprietor's standing in loco regis, as to conveyances, all through, and we shall hereafter see the conveyance of that doctrine. But taking the deed at present to be void for want of acknowledgment and enrolment, then the province descended to Lord Charles second.

By his settlement in 1730, he became tenant for life. Remainder to trustees and their heirs to preserve contingent remainders, and for permitting Mary Jansen to receive out of the rents and profits 800l. per annum. Then a trust for 1,000 years for the better securing of the jointure, and to raise younger daughters' portions and after the determination of said term, to the use of his first son, &c. remainder to himself in fee. From every state of our case, therefore, the freehold was in the trustees after the death of Lord Charles until the death of Mary his wife, in 1769. Then a remainder in tail was vested in Lord Frederick, at the time of his birth, which fell into possession at the death of Mary, and until that time the freehold was not in him. This death happened in 1769. Lord Charles devised the manor to Mr. Calvert, and at the time Lord Frederick attempted to dock the entail and destroy the remainder devised to [**51]  Mr. Calvert, he could not do it without joining the trustees.

There must be a freehold in the tenant to the praecipe. A person suffering a recovery must not only have an estate of freehold, but an estate of freehold in possession. If Lord Frederick, as tenant in tail after the freehold estate in the trustees, could suffer a recovery, it would destroy the jointure. Pigot, 136. For a tenant in tail suffering a recovery takes a new estate in fee by purchase; and, if the entail was limited to heirs ex parte materna, yet, after the recovery, it will descend to heirs general. Cruise, 151. The mode to be pursued is for the tenant in tail to apply to the Court of Chancery, to compel the trustees to join, which it will do on reasonable terms. In this view, as the estate-tail could not be barred by Lord Frederick, the trustees not joining, it is needless to consider the acts done by Lord Frederick to bar the entail.

Thirdly. If it is said that the deed in 1698 is good, and therefore Lord Charles being tenant in tail, with remainder in fee, could not make a jointure to encumber the estate-tail beyond his life, that then Lord Baltimore must be considered in loco regis so as not to be [**52]  bound by the act of 1692. He must be considered in loco regis as to all his other acts of conveyance, for it would be absurd and unjust to say the proprietor shall be considered as having jura regalia to support his acts against others, and also as not having jura regalia to support his acts against others. In this case, the Lord Baltimore could not suffer a common recovery in his own Courts. It could only be done before the king and council.

It would be a needless learning to consider how far the general rights and prerogatives of the lord proprietor are commensurate with those of the crown. To say that they are in all respects the same would be too large; to say he has none in any respect similar would be certainly wrong, and against the words of the charter. As to transactions in his Courts of Justice, they being similar, the commissions and process being in his name, they should have similar effects. Davis, 62.

A recovery is a matter of record, and in the nature of a feoffment on record. Every thing should be done under the authority of the Court, and being done under their authority, it becomes their act. Where the parties do not appear in person to have their appearance [**53]  recorded, then a dedimus must issue from the Court, and the acknowledgment, being taken under it, becomes their act. If a recovery can be suffered at all by the lord proprietor, it must be before the king and council.

Fourthly. It may be argued that the settlement of 1698 is good, as the act of 1692 does not bind the proprietor. Yet it does not follow that he is obliged to dock the entail by a recovery; for where an estate-tail is created, there must be some way of barring it; and therefore it may be barred by deed, as in the case of copyhokls, they may be barred by surrender, and descendible freeholds by conveyance. To this purpose may be cited 2 Vern. 184. 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259. 376. 2 Vez. 681. 3 Atk. 464. 2 Vern. 583. 2 Vez. 601. 603. 2 Vent. 603.

Answer. If Lord Frederick (being proprietor) could bar the estate-tail by deed, it follows that any former proprietor, supposing him to have an estate-tail, could do the same.

If the deed of settlement in 1698 is good, then Lord Charles took an estate-tail under it and the reversion in fee descended on him. And if a deed will bar an entail in the lord proprietor, then the deed of settlement in 1730 [**54]  executed by Lord Charles, barred this entail, and was in the nature of a recovery and a declaration of uses. By this deed he became tenant for life, remainder to trustees to preserve contingent remainders and support the wife's jointure. Remainder to his son in tail, remainder to himself in fee. He devised the manor part of this remaining fee to Mr. Calvert. The son could not dock the entail without joining the trustees, for this would destroy the wife's jointure.

This then is the general scope of the argument:

1st. The deeds of settlement of 1698, were invalid, or they were not invalid. If invalid, then Lord Charles second took an estate in fee by descent, nothing having been done to impede such descent. And if the deeds in 1730 were also invalid, then having the whole fee, he had a right to devise the manor to Mr. Calvert.

2d. Supposing the deeds in 1698 to be invalid and the deeds in 1730 to be good, then by the last deeds, Lord Charles became tenant for life; remainder to trustees and their heirs for securing his wife's jointure; contingent remainder in tail male to Lord Frederick; remainder to Lord Charles in fee. If this were the case, the recovery was improperly [**55]  suffered, there being an outstanding life-estate in the trustees or the wife, so that there was no tenant to the praecipe; nor could the proprietor suffer a recovery, therefore the devise of the second Lord Charles's remainder in fee, was not affected.

3d. Admitting the deeds in 1698 and 1730 to be good, then Lord Charles second had an estate-tail, and a power to make a jointure by the deed of 1698. He made a jointure, and therefore there was an outstanding estate for life, and consequently no tenant to the praecipe. Cruise, 42. 66. He had also the remainder in fee, and could devise it to Mr. Calvert. This devise took effect on the death of Lord Frederick, the estate not being properly docked.

4th. Suppose the deeds in 1698 to be good, then Lord Charles second became tenant in tail, and being so, could not make the settlement in 1730. He might devise the remainder in fee, provided Lord Frederick had not destroyed the estate-tail; therefore it brings it to the question, whether he did or did not bar the entail.

5th. Supposing the recovery suffered by Lord Frederick not effectual, and that his deed should be deemed so, then Lord Charles second had docked the entail by [**56]  his deed of 1730, and by this deed had given an outstanding term either to the trustees or his wife, for a jointure, then how could Lord Frederick dock it without a surrender of his life estate? If a deed will dock it, must not this deed be considered as a recovery, or will the want of a tenant to the praecipe be an objection to the conveyance, inasmuch as no praecipe is necessary.

Suppose the province not entailable, then if both the deeds of 1698 and 1730 are void, Lord Charles second had a fee-simple. And if the statute de donis does not extend, why should the statute of uses? Then none of the deeds are good. If the statute de donis does not extend, then the first deeds are good, and Lord Charles had a conditional fee, and by making the deeds in 1730, before issue had, he barred the after born issue, and the legal estate was in trustees. If the first deeds are good, then Lord Charles had a conditional fee under them, and on the death of his grandfather the reverter descended on him, which merged the conditional estate. Therefore, by his settlement in 1730, he created a life-estate to himself; then to trustees (or his wife) for the wife's jointure; then a conditional fee to [**57]  Lord Frederick, and the reverter was in Lord Charles. Lord Frederick never having had issue, did not comply with the condition, consequently he could not convey. The reverter being in Lord Charles, he devised to Mr. Calvert, and such devise is good, though a reverter is not grantable.

On the devise in Lord Charles second's will, being to Benjamin Calvert instead of Benedict Calvert.

The verdict finds that they are one and the same person, and no objection ought now to be taken to it. When a question of this kind arises, it must be at the trial,for the special verdict must stand as found. If evidence is not objected to on the trial, it ought not to be objected to after it. Lucas, 202. 203. 1 Salk. 272. 3 Burr. 1253. The only question at the trial must be, whether evidence is admissible to prove the fact contended for. When the fact is found, the Court must take it for granted that it was found on proper evidence. Upon their own argument some kind of evidence would have been proper. If so, how can the Court say that evidence was not given, or take notice of any that was. It is not the province of the Jury to find or insert evidence in a special verdict. They are only to find [**58]  facts from the evidence. They have expressly found that Benjamin and Benedict are one and the same person. This is the fact, and the Court must determine according to the fact.

Suppose it was proved that a man was called by a nickname, or was known by any other name, mentioned in a will, the devise would be good; but must the Jury find that "it being proved to us that the plaintiff having gone by the nick-name of    , therefore we find he is the person meant by the name of    , in the will." 2 Alk. 240. 5 Co. 68. If the evidence was improper, it should have been objected to at the trial; but the Court must now take it for granted there was proper evidence offered to prove the fact. If the Court had given any opinion on the evidence, and it had been a wrong opinion, the counsel might have excepted to it.

Suppose it had been proved at the trial, that the plaintiff went by the name of Benjamin, and that the testator always called him so, (this not being his proper name would have been a nick-name,) the devise, according to the cases in the books, would have been effectual. Can the Court now say no such evidence was given at the trial? If the evidence was to be inserted [**59]  in the verdict, it could answer no purpose; for even if the Court should think it not sufficient, and the Jury did, the Court must be bound by their opinions. If it is said there is not a sufficient designation personae in the will, and that is the only reason it cannot take effect; yet it must be admitted there is a sufficient one found in the verdict, and on the verdict the Court must give their opinion. A man outlawed, and taken on the capias, by the name of Steth, pleaded his name was Stethes, but being known by both names, it was held not to be a good plea. 15 Vin. 405. pl. 6. Yet judgment proceedings are more strict than where only a designation personae is required. 15 Vin. 408. pl. 3.

It is objected on the other side, 1st. That the statute de donis does not extend to the case. Then Lord Charles having issue, had a right to convey: that a will is a conveyance, and therefore having devised to Mr. Calvert, his title under this devise took place immediately on the death of Lord Charles second, and this lets in the act of limitations.

Answer. A person having a conditional fee, cannot devise after issue had. The title of the issue as well as of him in the reverter, must [**60]  take place immediately on his death. A tenant in tail cannot devise under our act of assembly; if it were so, the devise could not take effect till Lord Frederick's death, as the deeds in 1730 gave him a conditional fee. The devise was made after these deeds.

Objection 2. That if the deeds of 1698 are void, so must the leases be; and this lets in the act of limitations.

Answer. The deed of 1730, creating the conditional fee in Lord Frederick, prevents this, as Mr. Calvert's title did not accrue till his death without issue.

Objection 3. If Lord Baltimore could not suffer a recovery as being in loco regis, neither could his father devise to Mr. Calvert; therefore the plaintiff's title is bad. To this it is answered that the king may devise.

Objection 4. That the king cannot grant lands but by matter of record; therefore if Lord Baltimore is considered in loco regis, all the settlements are void, they not being by matter of record: then the whole descended to Lord Frederick, (except the manor,) admitting the devise to be good, and the act of limitations attached on the death of Charles.

Answer. There are no exchequer courts here; and whether is not the putting [**61]  a deed on record, the nearest to conveying by record that can be practised here. The deeds of 1698, are not put on record any where. If the king cannot convey but by record, it must be because his transfers ought to be known.

The reverter is devisable; what is descendible is devisable at this time by the best and most modern decisions; therefore proving the first is proving the last. That a reverter is descendible, see 8 Vin. 112. pl. 38. 3 Lev. 437. 1 Bl. Rep. 225. 252, 253. 605. Lucas, 20. Doug. 691.

The old doctrine that a reverter was not devisable, arose from the idea that it depended on a condition, and that what depended on a condition could not be transferred to prevent maintenance. Therefore a condition broken could not be assigned as debts, covenants, rights of entry for nonpayment of rents, &c. See 3 P. Wms. 262.

An estate to a man and the heirs of his body was a conditional fee at common law, and the word condition being applied to these estates, they were misled by the term, (it being an equivocal word, and they compared it to a condition broken, which gives a right of action, and as the latter could not be transferred, so they thought a reverter on a conditional [**62]  fee could not. It tends no more to maintenance to alien a reverter than a remainder. 2 Vez. 411. It is the more strange such a doctrine should have ever prevailed under the statute of wills, as the judges in Taltarum's case, Temp. Edw. IV. laid the foundation of common recoveries to prevent perpetuities, and this was strengthened by the stat. of fines in the reign of Hen. VII.

A reversion was always devisable, and the not allowing a reverter to be so, tends to a perpetuity. Judges have by degrees enlarged the power of devising. Executory devises would have been formerly rejected, and though such a remote limitation is not now good in a deed, it is in a will. They were first confined to a life in being, then extended to 21 years after.

That the descent of the reverter merged the conditional fee.

A man cannot have two fee-simples in him at one time. If he has a conditional fee, and a reverter in fee, separate, it must amount to the same thing in point of descent; therefore it is keeping them separate for no manner of purpose. Suppose he has no issue, then the reverter will descend to his right heirs and give the whole fee-simple. Suppose he has issue; it will descend in [**63]  the same manner. Before the abolition of all tenures but those in socage, the king would have been entitled to double relief for admitting the heir to these several inheritances. Suppose a person having these two fees should have a real action brought against him, which of the two fees would the demandant recover. The greater estate, therefore, must merge the less. If the reverter did not merge, but was held separate, yet the deeds of 1730 barred the issue, Lord Charles having a right to alien before issue had, to bar them, though not the donor. He himself was the donor. That he might bar the issue, Co. Litt. 19. 2 Inst. 333.

If they compare the province to such estates as may be docked by deed, as an estate per auter vie, then it may be aliened before issue had.

The lord proprietary could not suffer a common recovery.

If the king could not suffer a common recovery, neither could the proprietor; for though it is not contended that the privileges or prerogatives of the lord proprietary are commensurate with those of the king, yet in such cases, as the reasons apply on similar principles to the one as to the other, their privileges must of course be equal.

The king [**64]  is supposed to be always present in court, all process being in his name, and therefore cannot be non suit in any action in which he is sole plaintiff; but the king's attorney-general may enter a nolle prosequi, which has the effect of a nonsuit. If a recovery may be suffered against the king, there may be a default entered against him; and consequently judgment would go against him, and he would be said to depart in despite of the court, though by an established principle of law he is supposed to be always present in court. It is therefore impossible, consistent with the known principles of law, that a recovery could be suffered against the proprietor, for the king and he are in this respect in the same situation. If the king, tenant in tail, could suffer a recovery with voucher, the pracipe might also be brought against him immediately. If he comes in as vouchee, then he is made tenant to the pracipe by his own warranty, and the demandant counts against him.

A common recovery, though a fiction, is grounded on real principles of law. 2 Cruise, 11. Therefore no recovery in England can be suffered, but in the court of common pleas, that being the original court where civil suits [**65]  were brought. If a common recovery in which the proprietor is tenant or voucher can be supported, then a real recovery may be had against him; but this would lead to consequences in the highest degree absurd and totally inconsistent with the principles of law. If a praecipe would not lie against him in a real proceeding, (real is here meant in opposition to fictitious,) then a recovery by fiction could not be had against him.

The first process in a recovery is that kind of praecipe called a writ of entry, which commands the defendant that justly and without delay he render, &c. The absurdity is striking, of the lord issuing a writ in his own name directed to himself, commanding himself to do justice to another, and supposing himself to have acted unjustly in the records of his own court, and then to give judgment against himself. He would also be subject to a judgment and execution for costs which are given by the statute of Gloucester. If there is another disseisin on the demandant, by the statute of Merton he is liable to imprisonment, and in this case the writ must be issued in his own name to imprison himself. To avoid these inconveniences and absurdities it is held that the [**66]  king cannot suffer a recovery, nor can any be had against him. These absurdities were so glaring, that in all the settlements it was never attempted to suffer a recovery. The late attempt is the first. By Lord Frederick's marriage settlement it appears that the most eminent counsel thought it could only be docked by act of parliament. The Duke of Bridgwater was interested, and no doubt the matter was fully considered.

Though the proprietor's prerogatives may be thought not commensurate with those of the king, yet they ought to be deemed so in cases where the reason on which any prerogative of the king is grounded are equally applicable to both. The proprietor had the power of calling and dissolving assemblies; of vesting a power in his government to do so, as the king does to his lord lieutenant of Ireland. The proprietor had the power of pardoning in all cases, even capital ones.

The king being tenant in tail may bar the entail by a fine levied on a grant and render, but after the render made it is necessary to have letters patent to grant to the conusee by express words that he may enter into the lands; for the fine being executory upon grant and render, it may be doubted [**67]  if the conusee without such grant may enter upon the king. In this case the king must be demandant, and the mode was adopted to prevent the absurdity and irregularity of issuing his own process against himself. 7 Co. 32. b. Jenk. 307. Cruise, 44. Cro. Car. 96. If redress is sought against the king in any case, it must be by petition in chancery. On such petition there may be an issue, which is sent to the king's bench to be tried, and if found against the king, it concludes him. Finch, 238, 239. Plowd. 553.

Objection. If no real recovery could be had against the proprietor for a disseisin, then he might commit injuries for which there would be no redress.

Answer. The danger is little to be apprehended from an immediate wrong of the proprietor himself, and any acting under his command would be obnoxious to the law. If no power could be vested in any person because there was a possibility of abusing it, there could be no power ever lodged. In cases of this nature, (as I have heard,) the king and counsel used to hear complaints; but they having no power to punish by fine, or to give the party injured redress, the statute of 11 & 12 Wm. III. c. 11. was made. The proprietors are [**68]  the governors, and those appointed by them are only deputy-governors. And as the powers of government might be taken from the proprietor (as governor) on a complaint to the king in council, that alone was a sufficient guard to the subject.

Objection. To have redress only in England, would be greatly inconvenient to the subject here.

Answer. The appellate jurisdiction in all civil causes was to the king and council. It was considered as the dernier resort, and there being no remedy here against the opposition of the government, it lay there. On similar principles, the king and council had original jurisdiction respecting the boundaries of provinces. 1 Vez. 447. Further, if the remedy was to be obtained only here, the proprietor might have always stopped any proceedings by revoking his commission to the judges, as they were appointed during pleasure. He might delay issuing another till all suits were dis continued by the courts' not meeting at the stated times. He might refuse his assent to any act for reinstating such suits. These would certainly have been illegal acts, but the king and council were the proper jurisdiction for redress.

The recovery is bad for want of [**69]  a dedimus.

A recovery is a matter of record, and in the nature of a feoffment on record; every thing then should be done under the authority of the court. There is no principle of law more fixed than that where a recovery is to be suffered, and the parties do not appear in person to have their appearance recorded, then a dedimus must issue from the court, and then it is an act of the court. Cro. Eliz. 240. If the proprietor could execute a recovery, he must do it according to the common law usage for even the king cannot alter the common law. And if the proprietor is considered as in loco regis as to his courts, he cannot suffer a recovery. If he can suffer a recovery, he cannot be considered in loco regis, and then he ought to suffer it according to the usual course of proceedings, and not claim an exemption from those requisites which would be indispensably necessary in the case of every other person. If the laws relative to recoveries may be dispensed with in one instance they may in another, and it may as well be said there is no occasion for a writ of entry, or a tenant to the praecipe.

If the proprietor is to be considered as a common person, so as to enable him to [**70]  suffer a common recovery, yet in this case it could not be done, there being an outstanding life estate in the trustees, during the life of Lady Mary. It is a rule that wherever a trust is created, that trust must continue until the purposes are answered for which it was created. The trust here is inter alia for supporting contingent remainders, and for securing a jointure to Lady Mary. The trust therefore must continue until the death of Lady Mary, till which time there was a life-estate in the trustees, otherwise the jointure would be destroyed for want of an estate to support it.

No recovery could be suffered without the trustees joining. If trustees to support contingent remainders do any act to destroy them, a Court of Equity will set aside the conveyance, for the trust must continue to answer the intent of its creation. Prec. Ch. 308. 1 P. Wms. 128. 2 P. Wms. 610. Note to p. 87. There must be a good tenant to the praecipe. Cruise, 22. 42. 66. 1 Bro. Parl. Cas. 69. 1 Bro. Ch. Cas. 75. The necessity of the trust's continuing must be obvious, as otherwise the recovery would absolutely destroy the jointure. A tenant in tail suffering a recovery, takes a new estate by purchase,  [**71]  and if the entail was limited to heirs ex parte materna, yet after the recovery the land will descend to heirs general. This proves the old estate is gone, and all limitations dependent on it. Such a recovery will even destroy a debt which the tenant in tail agreed to pay as a consideration of the gift in tail. Pigot, 136. The king cannot dock the entail of his lands by deed. If the proprietor cannot dock an entail by recovery, it is because he is considered in loco regis; therefore he must be considered as in loco regis not to dock by deed.

Objection. If trustees appointed to preserve a small outstanding jointure, would prevent docking the estate-tail of a very large estate, then great inconvenience would ensue, and a tenant in tail could make no settlement on his marriage.

Answer. In this case application must be made to chancery, to compel the trustees to join in a conveyance to make a tenant to the praecipe, and the chancery may order it on equitable terms, and would take care that security was given that after the recovery, there should be a sufficient part of the estate allotted to secure the jointure. This a Court of Law cannot do; but if they were to permit the recovery [**72]  to stand good, the whole jointure must be destroyed, though to four fifths of the annual value of the estate. The Court of Chancery, upon equitable circumstances, may decree the trustees to join. 1 P. Wms. 358. 2 P. Wms. 614. 1 P. Wms. 536. 2 Vern. 583. And suppose Lord Frederick had only an equitable estate-tail, which could be barred by deed, it could only be so because the legal estate was in the trustees. Such equitable estate-tail could not affect the jointure, nor be docked in equity to hurt it, and his deed to dock an equitable estate to destroy a jointure would be bad, and he ought to apply to chancery to have it docked on equitable terms.

Objection. Though there requires a good tenant to the praecipe, in a recovery, yet the entail here may be docked by deed, and no praecipe being required, consequently there is no occasion for a tenant to the freehold.

Answer. If a deed will dock the entail, yet it must be on principles similar to a recovery, for it comes in room of a recovery. A deed or other mode of conveyance docking an entail, has exactly the same effect, and is liable to the same restrictions as a recovery. If it were otherwise, they might by this mode destroy [**73]  all outstanding life-estates and jointures. A person docking by deed must have the freehold in the same manner as a tenant to the praecipe. 2 Vin. 583. 2 Atk. 260. 2 Ch. Cas. 64.

If Lord Frederick, being tenant in tail, could dock it by deed, it follows that any former proprietor, being tenant in tail, could do the same. If the deeds of 1698 are good, then Lord Charles second had an estate-tail under this settlement, and the reversion in fee descended on him. By his deeds in 1730, he conveyed the province to trustees and their heirs, which conveyance docked the estate-tail. He declared the uses as above stated, so that the trustees had a freehold estate to preserve the jointure during the life of Lady Mary. This brings it to the same thing as if he had been seised in fee by descent. In the first case he would have had a power to create a jointure: so if he had an estate-tail, he docked it, and then interposed the jointure. No act that Lord Frederick could do, whether by recovery or deed, could dock the entail limited to him under the deeds of 1730, without joining the trustees, or if they did not join, it could not be docked till after the death of Lady Mary. He had no freehold [**74]  estate in him until Lady Mary's death; but only a remedy in equity against the trustees, for the surplus after Lady Mary's jointure was satisfied. The trustees had the fee, which did not cease till Lady Mary's death. The estate-tail in Lord Frederick was not in esse till her death, and if it was docked by the deed, he took an estate in fee and destroyed the trust and jointure.

Query. If the mode of barring by lease and release was not adopted in this case on the supposed resemblance it bears to a grant to one and his heirs during lives, which though not within the statute de donis, is entailable, and it is settled that such entail may be barred by mere alienation. 2 Vern. 184. 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259. 376. 2 Vez. 681. 3 Atk. 464. 2 Vern. 583.

What suggests this mode of alienation in these cases, probably was the mode of barring the donor, and the issue of the donee, in the case of a fee conditional at common law; for before fees conditional were converted into estate-tail by the statute de donis, the donee's alienation, after performance of the supposed condition by having issue, was effectual both against the donor and the issue of the donee.

It being [**75]  held that a descendible freehold was entailable, though not strictly within the statute de donis, the Courts were driven to some modes of barring such entail, and as a common recovery could not be suffered of a descendible freehold, without a forfeiture of the estate, and a fine in most cases not being sufficiently extensive in its operation, simple alienation seemed to be the only mode left, and was adopted with the less scruple, as having been before applied to fees conditional at common law. But, query. Whether it would not have been more conformable to the principles of the common law, if in consequence of holding descendible freeholds entailable, though not strictly within the statute de donis, the Judges had deemed them totally subject to the same consequences as conditional fees, and had declared that alienation should not be a complete bar of the entail until after having issue. Feigned recoveries are liable to the same consequences as recoveries really adverse. The former can only be prosecuted where the latter may.

Is there any instance, except in the case of the king, where the law permits any person to be judge in his own cause? The king and council are the proper [**76]  Court in this case. The appellate jurisdiction, with respect to civil causes from America, was always exercised. It arose from the necessity of the case, and there being no other Court which had a pretence for claiming such jurisdiction. The like necessity justifies an original jurisdiction: and there can be no hardship or inconvenience from an original more than an appellate jurisdiction; but the contrary, as the matter will be at once ultimately determined in the first instance. 2 And. 115. 4 Inst. 284. 20 Vin. 337. 2 Vez. 356. If there are disputes about the boundaries of provinces, the king and council have original jurisdiction. 1 Vez. 447.

Objection. There is a difference between a suit which respects the whole province, and part of the province.

Answer. Whatever differences there may be in other respects, they are the same so far as regards the impropriety and illegality of allowing a jurisdiction to the proprietor to judge in his own case. If the province can be docked by piecemeal, it amounts to the same thing as if a recovery was suffered of the whole at first. What cannot be done directly, cannot be done by circuity.

The lords proprietors are governors of [**77]  the province, and the governors appointed by them, are only deputy-governors. The governor might always revoke a commission to prevent a suit being tried against him. The statute 11 and 12 W. III. c. 11. was made for punishing governors who oppress the king's subjects abroad. Does not the making of this statute show that there was no remedy in the Courts here, else it would have been unnecessary.

How far the trustees should join in a conveyance to give effect to the recovery.

If the trustees, in a settlement to support contingent remainders, join with the tenant for life in a conveyance to destroy them, it is a breach of trust, and the Court of Chancery will set aside the conveyance. Prec. Chan. 308. 1 P. Wms. 128, 129. Where there is tenant for life, remainder to the first, &c. son, it is a contingent remainder, consequently may be destroyed, if there are no trustees to support it. 1 P. Wms. 129.

One after marriage, makes a voluntary settlement of his lands to himself for life, remainder to trustees to support contingent remainders, remainder to his first, &c. sons in tail, successively, remainder to himself in fee; he, afterwards, contracting debts, makes a conveyance [**78]  of his estate to other trustees for payment of them. The creditors brought a bill to compel the trustees for preserving contingent remainders to join in a sale to destroy them, and this being in favour of creditors, it was decreed. 1 P. Wms. 358. Unless it had been to pay debts, (though the settlement was voluntary,) yet the Court would not have interposed. 2 P. Wms. 614. The case proves that the first taker had only a life-estate, and that the son had not a vested remainder in tail, but only a contingent remainder. See the case of Winnington v. Foley, 1 P. Wms. 536. In that case, there being a son born, he had a vested remainder in tail; it shows the Court of Chancery was applied to.

In the case of Townsend v. Lawton, 2 P. Wms. 379. the bill was for trustees to join to make a tenant to the praecipe, the father being only tenant for years; there being a son born, he had a vested estate-tail in remainder, and being willing to have the recovery suffered, he might have been vouched had there been a good tenant.

Must not the trustees' estate continue in all cases as long as the purposes for which such estate was created remain? If so, how could the trust estate determine before [**79]  Lady Mary's death. 1 Bro. Ch. Cas. 75. If there was any hardship in a small outstanding jointure preventing the suffering a recovery, the Court of Chancery will relieve, by permitting a recovery to be suffered on securing the jointure.

In the case of Mansell v. Mansell, there was a devise to trustees to the use of Dorothy Loyd for life; remainder to trustees to preserve contingent remainders; remainder to the use of the first, &c. sons of Dorothy Loyd, in tail male remainder to Edward Mansell, in fee. D. L. married, and she and her husband, together with Edward Mansell, the remainder-man in fee, convey to trustees to the use of the husband and his heirs, and covenant to levy a fine to the same trustees, to the same use. The trustees to preserve contingent remainders convey to the husband in fee; a son is afterwards born; it was held, that the conveyance by the trustees destroyed the contingent remainders, and was a breach of trust. This case proves Dorothy Loyd had only a less estate, with a contingent remainder to her first son in tail; also, that the conveyance of the trustees conveyed the estate. See Cas. temp. Talb. 262. 4 Bro. Parl. Cas. 96. 264. 262. If a jointress has an [**80]  estate settled on her for life, a recovery cannot be suffered by the tenant in tail, unless she joins. 1 Bro. Parl. Cas. 69.

What is the consequence of trustees' joining, and to whom does the estate afterwards go?

Where the estate first limited is for years, and the tenant for years cannot be a tenant to the praecipe, the trustees must join. Where an estate is for life, remainder in fee, then if the contingent remainders are destroyed, they are the same as if never created. The trust is at an end, for it was to support contingent remainders, and there are none to be supported; consequently, the estate-tail must be docked, as if they had not existed. For example. Where there is a conveyance to A. for life, remainder to trustees to support contingent remainders, remainder to the first son in tail, remainder to B.; if the contingent remainders are destroyed, it is a life-estate in A. and a vested estate in B. So if the first estate is for years, the trustees making a conveyance, makes a tenant to the praecipe, and the person having the entail is vouched.

But in this case Lord Frederick being tenant in tail under his father's will, could be by his act in pais, turn this [**81]  estate-tail into an estate for life in himself, and would not this, by his deed of 1761, make the remainder to his son contingent, when the estate-tail had already vested in himself?

As to prerogative, there is a difference where the king claims in respect of his natural capacity per formam doni, as heir of the body of a subject, for there he shall be bound by an act of parliament; and where the king claims a thing in respect of his royal and politic capacity, there a general act of parliament shall not bind him, if he be not specially named, if it be not in special cases. 7 Co. 32. Fenk. 307.

A tenant in tail in possession, making a feoffment, discontinues the estate-tail. But if the king being tenant in tail, grants a patent of the land, it does not operate as a discontinuance, being a wrong, for it is a maxim that the king can do no wrong. Co. Litt. 325. Fenk. 308.

All civil jurisdiction flows from the king, hence all Judges derive their authority from his commission. 4 Bac. 171. The king can have nothing in his natural capacity, but in right of his duchy of Lancaster, or an estate-tail by the statute de donis: and the first continues separated by 1 Hen. IV. Faresly,  [**82]  78. The king is always supposed to be present in Court, therefore he cannot be nonsuit. He cannot make livery of seisin because it is inconsistent with his prerogative, therefore he shall pass lands in fee by his letters patent. Plowd. 213. If the lord proprietor has no privileges as to his land, then if he made an estate-tail, the donee in making a feoffment would discontinue it, but this is not admitted in the case of the king. Plowd. 553. Where aid is prayed of the king, the proceedings stop till the king's counsel are heard; but it must be before issue joined. Fenk. 64. A man shall have aid of the king, instead of voucher; there may then be a petition to the king to have in value. Terms de Ley. Verb. Aid of the King. Cro. Car. 97.

That the devise of a remainder in fee is good. 8 Vin. tit. Devise, 209. pl. 29. And that a devise of a reversion is good, see Fearne's Essay, 70, 71. 1 Salk. 232. 1 Ld. Raym. 523. 2 Black. 175. 2 Vez. 339, 340.

Query. If the trustees under Lord Frederick's marriage settlement ought not to have joined in the deed to make a tenant to the praecipe. This was done in the case of Lady Lanesborough v. Fox, but in that case the son had only an estate [**83]  for years. Cas. temp. Talb. 262. 4 Bro. Parl. Cas. 96. If the province was capable of being entailed, Lord Charles had a reversion in fee in him at the time of making his will. He might then devise it.

The king being tenant in tail, may bar the issues in tail, by a fine levied on a grant and render. But after the render made, it is needful to have letters patent to grant to the conusee by express words, that he may enter into the lands; for the fine being executory upon grant and render, it may be doubted if the conusee, without such grant, may enter upon the king. 7 Co. 32. In this case the king must be demandant, and the mode was adopted to prevent the irregularity of suing a praecipe against the king. Can a fine by grant and render even in the case of the king, bar the reversion as well as the issue in tail?

If the second Lord Charles was only tenant for life, in whom was the reversion; and if after his death, this reversion was in Lord Frederick, would not a fine of grant and render levied by him, effectually have barred the reversion as well as the issue in tail, inasmuch as the issue in tail would be entitled to the reversion, that is, supposing tenant in tail with [**84]  the reversion in fee in him, and he levies a fine of grant and render, will it bar the reversion? But should it be admitted that the reversion in fee was in Lord Frederick, what title could be in Mr. Calvert under the devise of the reversion by Lord Charles.

Martin, (Attorney-General,) for the defendants. None of the acts of assembly relating to the conveyance of land ever bound the lord proprietary. It was not necessary that the deed of 1698 should be valid. If one deed was good, the other was so also. The acts of assembly related only to parts of estates, and not to the province at large; to the conveyance of individuals, and not to those of the lord proprietary. The lord proprietary always granted by the great seal, and the consequence of extending the acts of assembly to the lord proprietary would be to render all his grants void. During that period, when the government was in the hands of the crown, the lands of the province passed by grant from the lord proprietary. All conveyances which by the laws of Great Britain might be used in passing property, are good to pass the province at large.

If the deed of 1698 is good, what estate had Frederick Lord Baltimore? Suppose [**85]  nothing more had been done, he would have been tenant in tail when the common recovery was suffered. The settlement of 1730 could have no effect to alter this estate, unless it could operate to bar the limitations in the deed of 1698. Admits the conveyance of 1730 had the effect to bar all the limitations of the deeds of 1698; and on the same principles any subsequent deeds made since 1730 will have the same effect. What is the effect of the settlement of 1730? Denies, 1st. That the reversion of the legal estate, remained in Lord Charles; and, 2d. That the trustees had no estate for life antecedent to the limitations in tail. The conveyance to the trustees is to them and their heirs; any uses afterwards limited were mere trusts in equity. The property is taken by the issue male after the death of Lord Charles, subject to the payment of 800l. per annum to the wife for her jointure. If Lord Frederick was cestui que trust after the death of his father, the only question is whether cestui que trust in tail has barred it. The special verdict finds that Lord Baltimore constituted Mr. Goldsborough, his attorney-general, and finds that the lord proprietary had an attorney-general. What is [**86]  necessary to constitute an attorney? 7 Hen. VIII. p. 4. pl. 22. Appearance by parol is good. Sty. 348. It is against the record to say a person is not attorney after he has been received as such. Cro. Jac. 521. Vin. tit. Attorney. Common recoveries are common assurances. 1 Wils. 73. The legislature applauded common recoveries. 1 Burr. 115. The Judges are astuti to support them. Pigot, 19. 37. 106, 107. 151. 167. If there be any error, still an erroneous recovery is good till it is reversed. Pigot, 169. 2 Vern. 131. A devise to trustees and their heirs gave the fee. 2 Atk. 131. 1 Atk. 473. 1 Eq. Abr. 382. The statute de donis does not apply to trust estates, and cestui que trust may alien by common conveyance. A conditional estate leaves at common law no reversion which the party can dispose of. Apply this to the devise of Charles Lord Baltimore. A possibility is not devisable. 1 Eq. Abr. 175. 2 Lev. 427. 16 Vin. 464. Where a person executes a conveyance and does not convey the whole, what remains is the old estate.

The seigniory is annexed to the territory. If the estates are trusts, still cestui que trust may exercise the rights of ownership over the thing. Uses may be executed [**87]  under lease and release. It is of no consequence in this case whether they be executed, or executory. The State was granted under the great seal since the statute de donis. All the qualities of the statute de donis extends to the grantees of the proprietary. How could he impart rights to them if he did not possess them himself. The right of Charles first was not an absolute fee-simple which descended on Lord Charles second, but only a reverter. It is admitted by all that Charles, by the deed of 1730, created a conditional fee. It is thus reduced to a single point, whether the reverter is devisable? It is a fixed principle that it is not, though no reason can be assigned. It might lay a foundation for suits and create lawsuits by assigning causes of action. The highest estate is a fee, and if granted under a condition, there is a possibility it may return. Where there is a feoffment on condition to go to Rome, there is the same chance of reverter as a death without issue; so in case of cscheat; but this chance is not devisable. A right of entry will descend but cannot be devised. If a person is disseised, he cannot devise his right of entry. The chance of escheat will descend. In the [**88]  case in 1 Vez. 180. the Chancellor determined it was not grantable. A possibility cannot be conveyed to a use; if it could, the will would be good. If this case is to be considered at large, we ought to decide on it as the law was deemed to be at the time. It is indifferent whether the first deed is good or not, and admits that a conveyance to trustees in fee gives them all the power of serving the different trusts as they arise. The limitation to the trustees could only be to preserve the contingent remainders, and immediately on the death of Charles, Frederick became tenant in tail, with a charge of 800l. per annum. A common recovery could not be suffered in Maryland for the whole province.

J. T. Chase, for defendants. The first settlement is good and valid. The act of assembly did not comprehend the case of the lord proprietary. What will become of the grants; will they operate by way of lease and release, feoffment, covenant to stand seised, &c.? If Lord Frederick had an estate-tail, how will his grants operate? They could not operate, unless to have the effect of barring the estate-tail. He could not give himself a power under the settlement, repugnant to the laws of the [**89]  province. If the estate for life was outstanding, the tenant for life had the seigniory. The grants made to these tenants, would of themselves bar the entail, independent of the deeds of 1761, or the recovery. Lord Frederick had a fee-simple conditional, and the interest in Lord Charles was such as could not be transferred. This trust or estate is to be considered in the same manner as it would have been antecedent to the statute de donis. A trust estate is not within the statute de donis. 2 Bl. Com. 335. What remedy had the wife to recover the rent but by a suit in chancery against the trustees? If this is not a trust estate, and trust estates are not within the statute de donis, then it is a fee conditional. 1 Bac. Abr. 68. 2 Ch. Cas. 63, 64. 1 Ch. Cas. 236. 1 Vern. 440. 1 Eq. Abr. 384. note. 5 Bac. Abr. 407. 1 Atk. 525. The interest which remained in Lord Charles could not be transferred. Pigot, 85. May be compared to an escheat. 3 Lev. 427. 1 Eq. Abr. 175.

Antecedent to the statute de donis, there could be no limitation on the conditional fee. Plowd. 248. shows the operation of the statute de donis. 2 Inst. 335. The only reason why a power of attorney requires acknowledgment [**90]  is to prevent fraud. Wherever an estate-tail is created, it is a necessary incident to it, that it should be barred in some manner or other. Common recoveries are common assurances. It is incident to an estate tail to be barred. Co. Litt. 224. Harg. Co. Litt. 223. b. note 1. 224. a. 2 Vez. 606. 1 Atk. 525. 1 Ch. Cas. 294. 1 Vern. 14. 2 Bl. Rep. 945. 1 Bac. Abr. 68. 1 Atk. 473. 2 Vern. 132, 133. Max. Eq. 56, 57. 2 Vern. 583, 584, 585. 705. If a tenant in tail of a trust suffers a recovery, it is a bar to the estate-tail, though there be no tenant to the pracipe. Gilb. Uses, 32, 33. Treat. on Fines, 209. 219. 2 Bl. Com. 360. If the patents granted by the lord proprietary did not bar the estate-tail, how do the tenants hold? If the recovery is suffered, still the widow has her claim against the recoveror. If she had an estate, who had the residue, beyond her 800l. per annum? Public notice was given, and no objection was made to the sale. An estate not subject to the power of alienation, is contrary to the object of the charter. Ch. Cas. 64. 78. 2 Vez. 606. 2 Bl. Rep. 945. Admitted that if a tenant for life is not a party, the recovery is not good.

Chase, for the defendants, cited [**91]  the following authorities. Vin. Grants, 36. pl. 3. 37. pl. 5, 6. 38. pl. 18. note. 39. pl. 25, 26, 27. Cro. Jac. 640. Cro. Eliz. 328. 2 Bl. Rep. 1250. 12 Mod. 186, 187. 2 Show. 1261. 794. Doug. 566. 2 P. Wms. 141. 2 Vern. 624. 3 Wils. 276. 2 Atk. 372.

If both the deeds are void, the plaintiff is barred by the act of limitations. The charter passing under the great seal, must be subject to the laws of England. The lord proprietor might have made any disposition of it in the same manner as any other person holding lands in England. The object of the charter was for the purpose of alienation. The settlement of 1698 is of the whole province; and if the proprietary had no other mode of conveyance than under the act of assembly, then all his grants are void. There is no reason why the deed of 1698 is not good. There was no legal nor trust estate during the life of Lady Mary. Immediately on the death of Lord Baltimore, Frederick took the estate. He exercised all the powers of government. A trust now is exactly what a use was before the statute. Agreed that by the deeds of 1730, an estate-tail was created a legal estate. But call the estate what you will, acts have been done to bar it.  [**92]  The law will invent some mode to bar all entails. A trust estate in tail may be barred by acts that would not bar a legal estate. The whole State could not be barred by any proceeding within the government.

Cooke, in reply. He recapitulated the manner of opening the case. He said it had been admitted by the gentleman who spoke last in the defence, that the lord proprietary might entail or settle this estate in any manner he thought proper, as any person holding land in England might do.

But that the counsel of the defendants seemed to have no corresponding ideas among themselves, what are the legal effects of these settlements. One seemed to contend they pass an estate-tail; another that they pass a conditional fee. Again, one gentleman contended the deed of 1698 is good; and he contended that Frederick Lord Baltimore was issue in tail under that deed, at the time of suffering the recovery in 1767, although he admitted that any mode of conveyance would bar the estate-tail; and the Attorney-General had expressly agreed before, that the deeds of 1730 destroyed all the limitations of the deed of 1678.

Mr. Cooke said, that if the proprietary could entail this province, he [**93]  might tie it up from alienation, under a strict settlement, in the same manner that any other estate might be restrained. That if any other estate restrained during a life in being would be good, so it was admitted such outstanding estate would prevent alienation in this case. He supposed the case of an executory devise. He observed that the gentlemen had offered no reason in support of the deed of 1698, but that one construction would destroy all the grants of the proprietary. Do they recollect that if they establish this to be a conditional fee, that every grant of Frederick Lord Baltimore is void| He never had issue, and therefore the sale to the defendants is void. When too they speak of the policy of the law, in promoting alienation, did they recollect that the same policy would operate against a conditional fee with much more force than against an estate tail?

He said that there appeared to be a distinction between common sales and transfers of property, and that of taking lands up under the conditions of plantations, under which this province was settled, and migrations encouraged; the case of sales is within these laws, but that of taking up vacant lands is not so. That [**94]  it was well known that patents have issued during the infancy of the patentees, and could be good on no other principle.

He supposed a bargain and sale had been executed by the proprietary. He then considered the case as a conditional fee.

To show that there was no merger of the term, he cited 1 Atk. 592.

That the trustee is to have an estate to serve all the trusts in the settlement, he cited 1 Atk. 592.

That a term is enlarged, (on a writ of error from Ireland,) after it had expired, he cited Cowp. 841.  

JUDGES:
Hanson, J.  

OPINIONBY:
Hanson 

OPINION:

 [*334]  Hanson, J. delivered the following opinion.
In my opinion the plaintiff's claim rests entirely on the devise of the second Charles Lord Baltimore in 1750, supposing nothing since done to bar his right of entry upon the death of Lord Frederick.
We are then to consider, first, whether or not Lord Charles second had any thing in Anne Arundel Manor which he  [*335]  was capable of devising, when he made the will under which the plaintiff claims.
And here the first thing to be done is to determine the validity, or nullity of the settlement in 1698. As to the deed of 1730 both parties have rightly [**95]  admitted that it had all the requisites of a deed; and they differ only as to its operation and effect.
To the deed of 1698 it is objected, that it was not acknowledged and recorded agreeably to the act of assembly, and of 1692. But although the words of that law are general, although the government of the province in the year 1698 was in the hands of the crown, I do not imagine, that, on just construction, the law extended to any kind of grants by the proprietary, whether they were grants on original surveys, or conveyances of any part of the province, before surveyed, and reserved to himself. The species of grant can make no solid distinction. Either the act of assembly comprehends all, or extends to no conveyance by the lord. And inasmuch as the patents issued during its existence, have been uniformly held good, it is now too late to call them in question. I consider then the settle-of 1698 originally good, although neither acknowledged nor recorded.
The interest of Lord Charles second in Anne Arundel Manor under that deed, I conceive, was an estate-tail with the reversion in fee. Lord Charles first by that deed had conveyed the province of Maryland, and the manors, [**96]  and certain lands in England to trustees, to the use of himself for life, remainder to his son Benedict, remainder to the issue male of Benedict and Lady Charlotte Lee, his intended wife, in tail male, remainder to himself in fee. Now as Charles first and his son Benedict, were both dead, and Charles second was the heir male of Benedict and Lady Charlotte, and the heir general of Charles first, it follows that at the time of the devise he had an estate tail in Anne Arundel Manor, with the reversion to himself in fee.
When I say this, I mean that the statute de donis extended  [*336]  to the lord proprietary's manors at least, if not to the province itself. Against this idea I have heard no argument which has the least weight in my mind. It would indeed appear extraordinary that a tract of land, or a manor in Maryland, whilst in the hands of the lord proprietary should not be subject to the statute, and that when it fell into the hands of an individual it should be subject to the statute. Whether or not the province itself might be entailed, is a question I hold not material in the cause. If it were material, I should incline to [**97]  a decision in the affirmative.
I mean likewise that Charles second had an estate in Anne Arundel Manor executed by the statute of uses. It has been said with truth, that that statute under, the decision of the Courts of Law, executes no more than the first use, where there is a limitation of a use upon a use; that where there is a limitation of a use upon a use, the second cestui que use has no remedy but in chancery, which will compel the performance of the trust, and that wherever there is a use, on which the statute does not operate, it is upon the same footing with all uses before the statute, which were never held to be subject to the statute de donis. But I am clear, that the interest of Lord Charles second was not a use upon a use. It is necessary here to distinguish a little. The true idea of a use upon a use is, where there are two uses limited upon the same estate, or the same interest in lands. As where the whole fee or an estate for life, or an estate-tail is given to A. for the use of B. in trust for the use of C., there the statute executes the possession in B., the first cestui que use, and goes no further; and the use limited [**98]  to C. is determined to be on the same footing, as it would have been before the statute. But where lands are given to A. in fee to the use first of B., for life and then of C. in tail, there the statute executes the possession in B. immediately; and upon his death, it executes the possession in C. In this case there is only one use limited on the estate for life, and one use limited on the estate-tail. In the other case there are  [*337]  two uses limited on the same estate for life, or in tail, or in fee, which the Courts of Law said was absurd, and therefore void. In short, the difference is between a use upon a use, and a use after a use. The statute will not execute a use, but it will execute any number of uses, one after another, as they arise.
Lord Charles second then at the time of making the devise to the plaintiff's lessor, being seised in tail with the reversion to himself in fee, most clearly had something which he was capable of devising; and that was the reversion, which unquestionably may well pass by a devise.
On the extinction then of the issue in tail, supposing the estate not before barred, the plaintiff's lessor became entitled [**99]  to enter. That extinction took place by the death of Lord Frederick in 1771, and the lessor was then entitled to enter, unless Lord Frederick had done something in his life to bar him.
When I say Lord Charles second was seised in tail with the reversion in himself, it must be understood, that I conceive the settlement of 1730 did not defeat the deed of 1698, because, under the deed of 1730, he would have had only an estate for life, remainder to his first, second, &c. son in tail male, reversion to himself in fee. But with respect to the operation of the devise, the plaintiff is precisely on the same footing, whether Lord Charles second was seised under the deed of 1698, or the deed of 1730. Under both or either he had the reversion in fee, and the devise was intended to give Benjamin Calvert all the devisor could give in the manor of Anne Arundel.
Having proceeded so far as to say that Lord Charles second had a reversion in fee, and that such reversion was well devised, it remains to consider whether any thing was done by Lord Frederick amounting to a legal and effectual bar.
The first thing on this head to be considered, is, by what method the proprietary's [**100]  estate-tail in a manor may be barred. In what way an estate-tail of the province itself might  [*338]  be barred, I consider as not material, although I accede most readily to the position, that every estate-tail whatever, and the reversion or remainder thereon, may be barred in some way or other. That the estate-tail in Anne Arundel Manor could not be barred by a fine or a common recovery, in the Court of Common Pleas in England, I think, has been admitted; but whether it was admitted or not, I am confident that no action in the Courts of Westminster ought ever to have affected lands in Maryland.
Supposing an estate-tail in the province itself, and an estate-tail of a manor in the lord proprietary to be on the same footing, there could, I conceive, be only four ways which could have been adopted for the purpose of barring it. 1. A common deed of conveyance, in the same manner as if the tenant in tail were tenant in fee; 2. A common recovery in the Provincial Court; 3. A fine on grant and render in the Provincial Court, in the same manner as is used by the king of England in the Common Pleas; 4. An act of assembly.
That it could not be barred by a common deed [**101]  of conveyance, as if the tenant were tenant in fee, I think must strike every disinterested person on reflection; because, if it could be barred in that way, it would be on the same footing in every respect as a fee-simple; and such a construction would give the lord proprietary a power, or a prerogative not enjoyed even by the king of England, his superior. On this subject it has been said, that if the proprietary could not bar the entail by deed, all ordinary grants by patent are on the same principle void. But I conceive from the charter of Maryland, and the object in granting it, and the manner in which it is to be enjoyed, that the person who holds the province, must for the time have the power of granting ordinary patents. So that the rights of patentees, their heirs and assigns are not at all involved in the decision of this question.
That the estate-tail (if such there could be) in the province itself might be barred by act of assembly, I suppose every one would admit. Whether a common recovery or a  [*339]  fine, would be most proper, or whether the proprietary might not choose either, for docking the entail of the province, is to be considered. I conceive that [**102]  either way would be proper, because either way was in use, and deemed right by the Court for barring entails of land held by common persons; and because it seems that where the law has not already prescribed a mode, it will recognize the mode chosen by the party, provided it be convenient for the purpose.
I cannot, however, conceive that an entail of the province, and an entail of a manor in the hands of the proprietary, are on the same footing. It is the recovery of Anne Arundel Manor with which we are concerned. Had a private person been seised in tail of this manor, there is no question that he might have suffered a common recovery. Common recoveries in Maryland were as usual as in England; and it would be vain at this time to question the propriety of that mode of barring estates-tail, reversions, and remainders.
To the recovery by Lord Frederick there are two objections. 1. That the lord proprietary being on a footing with the king of England, could not suffer a recovery in his own Courts; 2. That he did not suffer it in person; and there was not a good attorney.
As to the first objection, it has been settled that Lord Baltimore might sue in his own [**103]  Courts; and if it be not absurd for him to be plaintiff in his own Courts, it is not absurd for him to be defendant. The whole absurdity is supposed to arise from the style of the writ, and the submitting to his own Judges and officers. There might, indeed, be a very powerful objection against Lord Baltimore's being subject to his own creatures, if there had been any other mode for him to sue and be sued. That he might and did sue in his own Courts is a point well fixed and ascertained, and, in my opinion, when this point was fixed, it determined at the same time that he might be sued.
Having said that Lord Baltimore might sue and be sued in his own Courts, it does not remain to be considered, which was the best method to be adopted for barring entails,  [*340]  in a case not before provided for. The verdict states, with truth, that both fines and common recoveries had been commonly used in the province, at the time when the recovery in question was suffered; and Lord Frederick was as free to make his choice between them as any other person.
As to the second objection to the validity of the recovery, namely, the want of a good warrant of attorney, it is, I conceive, [**104]  hardly entitled to a remark. When it appears from the record, that an attorney was admitted, it is too late to say, that although he was really the attorney of Lord Frederick, he ought not to have been admitted. Perhaps the commission of attorney-general was alone sufficient. Common recoveries are common assurances; and I believe there is no instance of determining a common recovery to be void merely for want of form, when all the parties requisite to the recovery appear to have joined in it. In short, the case before the Court, I apprehend to be far more important on account of the value of the thing in contest, than difficult of decision. The ingenuity of the counsel on each side has been displayed in raising points, many of which I deem immaterial. As to the point suggested by the Court, whether or not Benedict Calvert can take by a devise to "Benjamin Calvert, Esquire," without any other designation whatever, I conceive to be the most difficult of all which have been raised, and it would have been still more difficult for the plaintiff's counsel to support, had the verdict stated the whole truth, viz. that in England, where the will was made, there were [**105]  several persons of kin to the devisor, who bore the name of Benjamin Calvert. However, as this point is immaterial for the defendants, on the supposition that the other points are in their favour, I shall give no further opinion about it. I have, indeed, ever made it a rule to determine nothing more than is absolutely necessary, and to leave those points which are foreign from, or immaterial to, the cause in hand, to be discussed in causes wherein a decision upon them may be essential.
 [*341]  The Court gave judgment on the special verdict for the defendant. And,
The Court of Appeals, at June term, 1792, affirmed the judgment of the General Court.
Francis Hargrave, Esq. the author of the Notes upon Coke Littleton, having been applied to on behalf of the lessor of the plaintiff, during the pendency of this ejectment, gave the following opinion:
My thoughts on Mr. Calvert's case, and on the proper manner of arguing for his title to the estate of Anne Arundel Manor, in Maryland, being desired immediately, I am forced to express myself with great haste, and in more general terms than I should use, if the time necessary for considering [**106]  a subject with so much importance and novelty in it had been allowed. I therefore desire to be understood, not as drawing out a regular and formal account of all the arguments and authorities incident to the case, but merely as giving a general view of my present ideas. It is probable that many new lights may occur to me in future, and if it should be required, I shall be very ready to communicate them.
The case between Mr. Calvert and the grantees of Frederick Lord Baltimore, in respect to Anne Arundel Manor, is subject to a consideration very different from that which would arise, if the title to the whole province of Maryland should ever be contested by his sisters and heirs, against his devisee; and as I think that pointing out what the difference is, will tend to give the best idea of Mr. Calvert's situation, I shall begin with so doing.
As between the devisee of Frederick Lord Baltimore and his heirs, there would be two great questions. One would be, whether the province of Maryland is entailable and devisable; the other would arise only on the supposition that the property was entailable and devisable, and it would be, whether the means made use [**107]  of by Frederick Lord Baltimore for barring the entails were effectual. If his sisters  [*342]  and heirs could succeed on either of these questions, it would be equally fatal to his devisee; though the consequences to the former would depend on the principles on which the decision against the heir should be founded. If the province should not be deemed either entailable or devisable, the two sisters of Frederick Lord Baltimore would take as general heirs of Cecil Lord Baltimore, the first grantee of the province. If it should be held that the province is entailable and devisable, but that the several entails are now subsisting for want of a sufficient bar, still the devisee of Frederick Lord Baltimore would be disappointed, because then on his death without issue, the reversion in fee of his father the second Charles Lord Baltimore, became an estate in possession, and consequently vested, according to his will, by which it is limited, on failure of his son Frederick's issue, to his own daughter, Mrs. Browning, in fee, subject to the payment of 20,000l. to her sister, Mrs. Eden. In observing that the reversion in fee of the second Charles Lord Baltimore [**108]  came into possession upon the death of his son Frederick, I take it for granted that there is not either Cecilius Calvert, the brother of the second Charles, or any other issue male of Benedict their father, living, to claim the estate in tail male, limited to Benedict's first and other sons by the marriage settlement in 1698, which appears to have been the first entail of the province. I say that I take this fact for granted, for if the property is entailable, and the several entails still remain undisturbed, and there is any issue male of Benedict still living, such issue would have a good title as well to the Anne Arundel estate as to the rest of the province, against every other claimant. Such would be the two questions as between the sisters of Frederick Lord Baltimore and his devisee, and the different consequences of a decision against the latter, according to the principle upon which the case shall be determined. But one only question can, as I conceive, arise between Mr. Calvert and the grantees of Frederick Lord Baltimore, which would be, whether either of the modes adopted by him for barring the entail  [*343]  of the Anne Arundel [**109]  estate is sufficient in law. Both Mr. Calvert and his adversaries must agree that the property is entailable and devisable. If it is not neither claimant has a title, but the estate clearly belongs to the heirs general of Cecil Lord Baltimore, the first grantee of Maryland, which heirs are Mrs. Browning and Mrs. Eden. The Anne Arundel estate being then admitted to be entailable and devisable, Mr. Calvert will be entitled, if the acts done by Frederick Lord Baltimore for barring the entail, are inefficient, because the estates-tail limited to the issue male of Benedict Calvert, by the settlement of 1698, and to the issue male of the second Charles Lord Baltimore, by the settlement of 1730, are both determined for want of objects, and the reversion in fee expectant on those estates-tail is now come into possession, and is vested in Mr. Calvert, under the will of the second Charles Lord Baltimore.
This brings me to the modes by which Frederick Lord Baltimore endeavoured to destroy the subsisting entails of Anne Arundel Manor, and to gain the fee of it. One mode was the conveyance by lease and release; and I conjecture that this [**110]  was adopted in consequence of a supposed resemblance between the property in question and another species of property of which the entail is certainly barrable by simple alienation.
If a lease is granted to one and his heirs during lives, such a descendible freehold, though not within the statute de donis, is in effect, entailable; and it is now well settled by a variety of adjudged cases, that the entail of a descendible freehold may be barred by mere alienation, whether by lease and release, or any other valid conveyance of a freehold. Why such an alienation is deemed to bar the entail of a descendible freehold, will best appear from reading the series of determinations on the subject. These, as well as I am able to collect them at present, will be found by examining the following references.  2 Vern. 184, 225. 3 P. Wms. 262. 1 Atk. 524. 2 Atk. 259, 376. 2 Ves. 681. 3 Atk. 464.
 [*344]  The shortness of the time prevents me at present from giving due attention to the cases which I refer to; but I am inclined to think, that the origin of holding alienation to be a bar of the [**111]  entail of a descendible freehold, was the mode of barring the donor and the issue of the donee in the case of a fee conditional at common law. Before fees conditional were converted into estates-tail by the statute de donis, the donee's alienation, after performance of the condition by the having of issue was effectual, both as against the donor, and the issue of the donee. This most probably was what first suggested the idea of attempting to bar the entail of a descendible freehold by lease and release, which, by force of the statute of uses, is a mode of alienation as legal as feoffment, or any other common law conveyance. At length, the validity of thus barring an entail by alienation, was brought into question in the Court of Chancery, and there it being allowed, that a descendible freehold was entailable, though not strictly within the statute de donis, the Court was driven to the necessity of acknowledging some mode of barring the entail; and as a common recovery could not be suffered of a descendible freehold without a forfeiture of the estate, and as a fine, in most cases, is not sufficiently extensive in its operation, simple alienation of the property seemed to be [**112]  the only mode left for the choice of the Court, and was with less scruple adopted, as having been already applied to the case of fees conditional at the common law. It may, however, be observed, that it would have appeared more conformable to the principles of the common law, if, in consequence of holding descendible freeholds entailable, though not strictly within the statute de donis, the Judges had deemed them totally subject to the same consideration as fees conditional, and had declared that alienation should not be a complete bar of the entail, till after the having of issue. But the doctrine is now settled otherwise, and it is only necessary, on Mr. Calvert's part, to show an essential difference between the case of a descendible freehold, and that of Anne Arundel Manor, between the  [*345]  lord proprietor and others. Feigned recoveries are liable to the same consideration as recoveries really adverse. The former can be prosecuted only where the latter may be. In England the only Courts for original suits to recover the freehold and inheritance of land, is the Court of Common Pleas. In that Court only really adverse recoveries of the freehold [**113]  and inheritance can be had; and, therefore, in that Court only, can common or feigned recoveries be suffered. The rule must be the same with respect to land in America. Whatever the Court is, in which suits for the freehold and inheritance of land in Maryland, between the lord proprietor and others ought to be prosecuted, that must be the Court for every common recovery to which he is made a party. Now, on the part of Mr. Calvert, it should be insisted, that though the Courts of Justice in Maryland are certainly, in general, the proper jurisdiction for trying the right to land in Maryland, yet they are not so in the particular case of the lord proprietor. I apprehend that the Courts of Justice in Maryland, for trying the title to land, are the Courts of the lord proprietor who happens to be in possession; that the Judges are appointed by him, and are removable at his pleasure; that they exercise their jurisdiction as his delegates; that the process of the Courts runs in his name; and, in short, that they are in every sense of the words, the Courts of the lord proprietor, as much as if he presided in them, and administered justice in his own [**114]  person. Is it possible that Courts so constituted, should be the proper jurisdiction for trying suits in which the lord proprietor is either plaintiff or defendant? Would not the allowance of such a jurisdiction, in effect, render the lord proprietor a judge in his own cause? Is it agreeable to natural justice, that a judicature so partial should be established? Could it be the intention of the crown, in granting the charter under which the Courts of the lord proprietor are erected, to extend his jurisdiction to causes in which he is a party; or if such was the intention of the crown, could it be within the power of the crown to invest him with such  [*346]  a jurisdiction; or rather was it not contrary to the fundamental principles of the English law and constitution, to make the lord proprietor a judge in his own case? Is there any instance, except the single case of the king, in which the law of England permits any person to be the judge of his own cause? The words of Lord Hardwicke, in the case between the Earl of Derby and the Duke of Athol, on the title to the Isle of Man, as reported by Mr. Vesey in his second volume, 204. are very [**115]  strong against such jurisdiction. He says, "the question here is to the title and right to the whole island, which cannot be determined in the Courts of Man, because that would be permitting the persons who claim the seigniory of the isle to judge in their own case."
But if the Courts of the lord proprietor cannot take cognisance of suits to which he is a party, it may be asked, what is the jurisdiction which must be resorted to? Some Court there must be, to prevent a failure of justice; and it seems incumbent upon those who deny the competency of the proprietary Courts, to point out another jurisdiction which is competent; and this I think may be easily done in the case in question, which is that of a suit for the freehold and inheritance of land in Maryland. There are only two Courts, exclusive of the Courts in America, which can pretend to a jurisdiction over such suits. These are the Court of Common Pleas in England, and the Court of the King in Council. Whether the jurisdiction belongs to both concurrently, or to one only; or if to one only, whether the former or the latter has the better title, is wholly immaterial to Mr. Calvert, because if either [**116]  has the jurisdiction, his purpose is answered. But it seems clear that from the nature of the Constitution, as well as from authorities of law, that the jurisdiction is vested in the King in Council only. America is out of the realm of England, but the process of the Common Pleas is confined to England, and that Court cannot issue writs for the delivery of the possession of lands in America. But the same objection will not apply to the King in Council. The appellant jurisdiction of the  [*347]  king in council, with respect to all civil causes from America, has been exercised ever since the establishment of our colonies, and is not now to be called in question. It arose at first from the necessity of the case, and because there was not any other Court which seemed to have the least pretence for claiming such a jurisdiction. The like necessity will equally justify at least the exercise of an original jurisdiction. If there are special cases of suits for land in America to which no court there is competent, and the ordinary Courts of Justice in England cannot entertain them, what jurisdiction can be resorted to, except the king in council? The title [**117]  of the king in council to an original jurisdiction in such case, would be reasonable and constitutional, even though the privy council was not already in possession of an appellant jurisdiction over causes from America; but the latter being now settled, is a fair precedent for admitting the former, wherever the reasons on which the latter was first allowed, strongly and fully apply. This kind of reasoning seems so forcible, that perhaps that, unassisted by positive and direct authorities, it might be sufficient to prove the original jurisdiction of the king in council over such suits for land in America, as, for any special reason, cannot be prosecuted in the Courts there. But authorities and precedents of law are not wanting. In the reign of Queen Elizabeth, there was a controversy about the title of the Isle of Man, between the then Earl of Derby and the daughter of the preceding Earl, and it appears by the reports which we have of the case, that the proceeding was before the king in council, and that by his command the matter of law was referred to the lord keeper of the great seal and divers of the privy council, and the two chief justices, and [**118]  the Chief baron Lee. 2 And. 115. 4 Inst. 284. The case of America is of the same kind, when there are contests between one province and another province about boundaries, or between two competitors about the title to the whole province. Accordingly, Lord Hardwicke, in the case of Penn and Baltimore, 1 Ves. 447. mentions the original  [*348]  jurisdiction of the king in council in such cases, and others of a similar kind, as a thing certain. If it should be attempted to distinguish between a suit for the whole province of Maryland, and one for a parcel of land within it, the proper answer I think is, that whatever difference there may be in other respects, they are the same so far as regards the impropriety and illegality of allowing a jurisdiction to the court of the lord proprietor in his own case. Lord Hardwicke held that reason alone to be sufficient for denying the jurisdiction of the Court of the Isle of Man, over suits for the seigniory of that isle; and where the lord proprietor of a province in America is party to a suit, the reason is as applicable to a suit for a part of the province,  [**119]  as a suit for the whole province. There may perhaps be other reasons why the Court of a province in America should not be competent to a suit for the whole province, such as are not applicable to a suit for part of the province. But if the lord proprietor's being a party, is of itself a sufficient objection to the jurisdiction of his own Courts, it becomes unnecessary, on Mr. Calvert's part, to seek for assistance from those other reasons, and he will not be affected, even though they should not extend to the Anne Arundel Manor. I have now finished the arguments against the common recovery suffered by Frederick Lord Baltimore in his own Court, and in order to give them all possible force, I recommend it to the gentlemen concerned for Mr. Calvert, in America, very carefully to peruse and consider the case of the Earl of Derby and the Duke of Athol, in 1 Ves. 202. That of Penn and Lord Baltimore, in the same book, 444.; and the case in respect to the Isle of Man, in 2 Ves. 337. From the whole of what I have written, which is much more than I expected it would have been when I began, it appears [**120]  that there are two great and general propositions proper to be insisted upon for Mr. Calvert, one is, that a common recovery was the only mode by which Mr. Calvert's reversion in fee in the Anne Arundel Manor could be barred. The other is that the recovery suffered by Frederick Lord Baltimore was not suffered  [*349]  before the proper jurisdiction, and consequently is ineffectual. If both these propositions can be supported, Mr. Calvert's title seems uncontrovertible; but if either fails, I think that he cannot succeed in the ejectment he has brought.
I have not observed any thing in respect to the mistake of Mr. Calvert's christian name in the will under which he claims, because I apprehend that there cannot be the least doubt of his right to prove the mistake by parol evidence.
FRANCIS HARGRAVE.
Lincoln's Inn, 17th January, 1774.
Continuation. If what I have written in respect to the origin of holding alienation a bar of the entail of a descendible freehold, is well founded, it is evident that it is held to be so, from the necessity of the case, and because there was not any other mode which the Judges had any pretence for allowing. But [**121]  how is the doctrine applicable to the case of the Anne Arundel Manor? In that there is an estate of inheritance, it is entailable within the statute de donis, and a common recovery may be suffered; for there must be some jurisdiction competent to the trial of suits about the inheritance of the estate, and if there is, common or feigned recoveries may be prosecuted before that Court as well as real recoveries. Alienation is a bar of the entail of a descendible freehold, because a common recovery cannot be suffered: but alienation is not a bar of the entail of Anne Arundel Manor, because a common recovery may be suffered.
It is not necessary to inquire here which is the proper Court for such a recovery. In this part of the argument it is sufficient that there must necessarily be some Court in which a recovery may be suffered.
The second mode which Frederick Lord Baltimore made use of for barring the entail of Anne Arundel Manor, was a common recovery in his own Court, as lord proprietor of Maryland. Here it should be insisted that so far as regards the kind of jurisdiction which is competent to the trial of suits for land.

 [*350]   [**122]  Notes concerning the rights to the province of Maryland, by the late Daniel Dulany, Esquire.
Lord Charles seised in fee of the province of Maryland, on the marriage of his eldest son Benedict, conveyed to trustees to the use of Lord Benedict, for life; remainder to the trustees to preserve contingent remainders; remainder to the first and every other son of Lord Benedict, in tail; remainder to his own right heirs. Lord Charles, the eldest son of Lord Benedict, became seised in tail male, and having the reversion in fee on his marriage conveyed to trustees to the use of himself for life; remainder to trustees above; remainder to his first and every son in tail male; remainder to his own right heirs. Having issue of the said marriage, Frederick, now Lord Baltimore, and two daughters, Louisa and Caroline, he devised the province of Maryland to trustees to the use of his son, Lord Frederick, for life; remainder to the trustees above; remainder to his first and every other son in tail; remainder to his eldest daughter Louisa, in fee, chargeable with 20,000l. sterling, payable to his daughter Caroline.
Note. By the settlements [**123]  above, besides the province, other rights, such as the tonnage, are conveyed to the above uses, and by the will the province only is devised.
Frederick Lord Baltimore, on his marriage settled by deeds, in 1753, by conveyance to trustees, as above mutatis mutandis. His lady being dead without issue, all the purposes of the deeds of 1753 are answered, so that he had such estate as before the deeds of 1753. In 1761, by deeds of lease and release, Lord Frederick conveyed to trustees to the use of himself, &c.; remainder to the use of Cecilius Calvert, &c.; remainder to such use as he should appoint by deed to be executed in the presence of two witnesses, or by will, and in default, to the use of the persons named in the will of Lord Charles.
It is said that Cecilius is dead without issue, though I  [*351]  well remember an intimate friend of his (Mr. Anderson of London, merchant) told me Mr. Cecilius Calvert assured him he was married, and that he had a son born in wedlock; that son is now alive, but it is said he is not legitimate. However, to proceed on supposition of the death of Cecilius Calvert without issue.
The question will [**124]  be, whether Lord Frederick can bar by any act, and whether he has, by the deed of 1761, barred the right of Louisa under the will of her father, her father having the reversion in fee, if the province is clothed with a capacity of entail.
It is said, indeed, to have been the opinions of Mr. Jardrell, Mr. Wilbraham, and others, on a case stated by Mr. Benedict Calvert, to whom Lord Charles devised Anne Arundel Manor, and also the opinions of Lords Northington, Camden and Sir E. Wilmot, on the marriage of Lord Frederick, that the devises to Louisa and Benedict Calvert, were to take effect only on the death of Lord Frederick, within age, and without issue. On perusal of the will of Lord Charles, I can find nothing to justify this construction.
Is the province entailable?
First point. Is the seigniory a subject capable of entail?
Second point. Does the statute de donis, &c. or do the rules of the common law govern?
1st. I apprehend the subject is capable of entail. It is included within the term used in the statute de donis, viz. "tenements," which comprehends all corporeal hereditaments, and incorporeal,  [**125]  which savor of the realty, which issue out of corporeal, or which concern, are annexed to, or are exercisable within the same. Co. Litt. 19, 20. Offices and dignities which concern the realty, or have relation to certain places, are entailable. 7 Co. Rep. 33.
2d. I apprehend the province is within the statute de donis, &c.
Lord Macclesfield, perhaps, went too far in saying that the law we call common law was originally introduced by statutes  [*352]  which have been lost; but probably a great deal of this law was introduced by statutes. Vide Hale's Hist. of the Common Law.
It is a general rule that nova constitutio futuris formam debet imponere non preteritis: had the charter been granted before the statute de donis, &c. then, according to the rule, 1 Inst. 9. 4 Inst. 201. 284. 2 And. 115. the common law would govern, being the law of England; but the grant has been made since, and at a time when the common law was altered by the statute, and therefore according to the rule above mentioned not being the law of England, it cannot govern the charter.
There does not appear to me to be any ground for contending, that such a limitation [**126]  as would make an entail of lands in England, will make a conditional fee when applied to the province, i. e. that the grant of the province ought to be governed by a law which did not exist in England when it passed the seal, merely because it once did exist.
If the rules respecting estates of inheritance at common law were not, according to Lord Macclesfield's doctrine, introduced by statute, yet, without doubt, considered as lex non scripta the law might be as effectually abolished by statute, as if it had certainly been lex scripta.
Put the case that the estate called fee conditional had been introduced by statute in the time of Henry VIII. and that it had been altered to an estate-tail by a statute of Edward VI. there could be no reason to say, that the charter granted by Car. I. should be governed by the statute Hen. VIII. and it seems to me that mutatis mutandis, the same reasoning applies to the case.
It is commonly said that the common law, and such statutes of a general nature suitable to their circumstances as were made before their settlement extend to the plantations. This is to be understood in reference to the rules obtaining [**127]  in the plantations, and even in this respect, it would be a strange incongruity to say that when the common law is  [*353]  abolished by statute, both the common law and that statute extend hither; that is, that estates of the same nature should be governed by opposite or different rules.
It may be inferred from the several settlements that the advisers of them were of opinion the grant was affected by the statute de donis, &c. the purposes and provisions intended to be made would not otherwise have been answered. The remainders limited after the determination of the estates limited to heirs of the body would have been void. From the charter, moreover, it may be inferred that the statute de donis was understood to extend: for parcels are thereby grantable in tail, as well as in fee, but if the entirety be not entailable, on what principle are parcels?
If the province be not entailable, neither is it devisable, i. e. if the statute of Edw. I. does not extend, neither does the statute of Hen. VIII. extend to the case.
There possibly may be another question, should a will be made according to the statute of Hen. VIII. and not according to the statute of frauds [**128]  and perjuries, the latter act having passed subsequent to the charter.
Supposing the province entailable, the next question will be, whether the estate-tail be barrable or not? It is clearly not barrable by fine or recovery, either in England or Maryland; is it then barrable any other way? By act of parliament it certainly is, and it should seem from the writings in 1753, that this method was advised as the proper one; but this cannot be called a remedy; it is not a power incident to the estate. It might be refused or granted.
The question then is brought to this, is it barrable by common deed?
It may reasonably be inferred from the settlements that it was not so understood: what security of family provision, the great object of settlements, if the estate barrable by common deed?
If thus barrable, then the tenant in tail would have a power over his estate excluded by the statute de donis: he would have a power too, that did not belong to a fee conditional  [*354]  at common law: for one having such estate could not bar, but post prolem suscitatam.
But if not barrable by common deed, then a perpetuity, which it is said the law has so great an abhorrence of, as [**129]  not to allow it in any case.
Here is the stress of the objection. The entail of a copyhold, it is now settled, is barrable one way or another by recovery, surrender, or forfeiture and regrant, and that whether there be any custom for it or not; and the very principle thereof is, that there may not be a perpetuity, which the law abhors.
Hence it is argued, that as a copyhold is barrable by surrender, &c. on account of the imbecility of the estate, so the province by common deed on account of the magnitude of it, and that the same reason applies in both cases, the avoidance of perpetuity.
It was certainly the intention of the statute de donis to create perpetuity; but policy found out a fiction by which that intention was defeated.
The same policy has at length determined all copyholds to be barrable one way or another; and it is no wonder it should, if what is said in the book called Lex Maneriorum be true, that the greater part of the estates in the kingdom are copyhold, or customary estates.
In what did the policy consist? In giving a power, by which there might be a circulation of property preventive of too great influence, and encouraging social industry; but, perhaps,  [**130]  the reason does not apply in the present case, which is of a very peculiar nature, and it might not be proper to allow a power of alienation when the purpose for which it is allowed in other cases does not occur.
By the power of alienation, in the above instances, lands were split and divided, and instead of being in the hands of one fell into the hands of many: thus too great influence was guarded against and a general encouragement to industry was given. Had there not been this effect, had lands passed entire from one to another, the end would not  [*355]  have been answered. The province is an entirety. It cannot be split and divided: the lands within it are alienable, and devisable. If there was not a power in all the settlements to grant out in parcels, perhaps, considering the nature, end, and view of the original charter, considering the express power given by it to grant parcels in fee, tail, &c. such power would always attend the propriety. If there would not be such an incidental power, at present there is no objection to the settlements on this head, because it is expressly given.
This being a peculiar case, the objection from the abhorrence of perpetuity has the less [**131]  weight, and the rule is laid down too largely, that to every estate-tail there is necessarily a power of barring it belonging to the owner.
A common recovery cannot be had of the province in Maryland; for the very instant the Judges should give judgment, they would of course determine their own commission. If Lord Baltimore had no right to the province, which the recovery would suppose, he had no right to appoint the Judges; in England there could be none, for the subject ought to be there in some county.
The peculiar situation of the subject is such that a praecipe will not lie.
Is there no case where there is an entail not barrable? Such is the case of the king. The king is bound by the statute de donis. He cannot suffer recovery because no Praecipe will lie. He cannot bar by letters patent. William v. Lord Berkley, Plowd. Comm.
In the case of a dignity entailed, it is not barrable, though within the statute de donis. The policy does not apply to it.
Perhaps it may be surrendered: but this may be refused, and therefore not in his own power.
If this may be surrendered, why not the province? In case of surrender, the issue may have a constat [**132]  out of the enrolment. Bro. Sur. pl. 51.
 [*356]  The tenure is by free and common socage by fealty only for all services, and not in capite, or by knight service.
Had there been no tenure reserved it would have been of the king in capite.  Vide 9 Co. 123. Bro. Tenures, pl. 3. 65.  6 Co. 6. b. Perk. s. 680. Bro. Tenures, 100. Dyer, 44. pl. 29. 58. pl. 6.
As the tenure is, no license is necessary: according to this idea is the statute of William III. which restrains the alienation of assignees to a foreigner without license of the crown.
Though the province or propriety be entailable, yet the tonnage clearly is not, for it is not a tenement. Lord Charles has not disposed of it by his will. With respect to this therefore Lord Frederick may dispose by will or deed. A conditional fee and reverter cannot exist at the same time in the same person, but the having the former is an extinguishment of the latter.
Lord Frederick had a power to grant out parcels, and so had his father. In all these grants, the rent has been reserved to the grantor and his heirs, without any reference to the power,  [**133]  or to the settlements. The validity of these grants will not, I hope, be questioned. The rents could only be reserved to the grantors, and their heirs; a reservation to any other would have been void.
Lands have escheated, and been granted out under rent reserved as above.
On the supposition that these grants are good, the parcels granted are severed, and the rents being reserved to the grantors and their heirs, belonged to them, and that being so, are not affected by the settlements, and, consequently, might be disposed of by deed or will; but yet this could hardly be the intention of the settlements, and especially when the restriction annexed to the power in respect to the quantum of the rent is considered.
The subject being peculiar, it is no wonder that every contingency was not provided for.
Where there is a particular estate of the seigniory and an  [*357]  escheat of the tenement, the seigniory is extinct; but who shall have the tenement? It seems reasonable that there should be such respective interests in the tenements as there were in the seigniory. In Fitzherbert's N. B. it is said that he who has the seigniory for life may enter, but not what he shall take.  [**134]  In Keilway, 114. or 141. it is said if he does not enter, he in reversion cannot, but may have his writ of escheat, and it is said it was his fault he had connection with one who neglected to enter; but if the tenement on the entry should entirely belong to the person having the particular estate, it would be improper to say that he in reversion suffered by the neglect of the other, since he would gain by it in having it in his power to recover by writ of escheat.
In the case of forfeiture of copyhold, it is said the dominus pro tempore shall have it. In the case of purchase made by a villain, one having a particular interest shall have the land entirely. Quaere hereon.
Suppose the province should devolve on the two sisters, of Lord Frederick by descent, what would be the consequence? In the case of the crown, the elder would succeed, and for a very good reason, which seems very strongly to apply to the province, though not entirely. In the case of the crown, the inconvenience of two of equal power and authority, differing in opinion, would be intolerable; there would be no superior to redress it. But not so of the province, for the sovereignty being in the king,  [**135]  the royal interposition might redress.
In the case of dignity, which is not partible, it may be conferred by the king on either of the sisters. Some hold that until the king confers, it descends to both; others that it is until then in abeyance. The earldom of Chester descended to females, the possessions partible, but not the dignity. Vide Co. Litt. Black. Comm. In the case of office, the sisters to appoint a deputy; but if the elder marry, her husband shall officiate. Vide Co. Litt.
In the case of a manor descending to females, it is partible, and each has a manor and court-baron; and in the case  [*358]  of the county palatine of Leinster, partition was made among four females, and each had a severed county palatine. Dav. Rep. 61. The idea of division, considering the nature of the subject, seems very strange.
If between two sisters, then between fourteen; so many distinct governments and legislatures; should the whole fall afterwards to one, what strange confusion|
If a female married, and having had issue by her husband, dying, he tenant by the curtesy, there would be no inconvenience in this. Suppose a proprietor leaving a wife entitled to dower, what [**136]  would be the consequence? Vide Godb. 135. Co. Litt. 30.
County palatine has jura regalia; royal jurisdiction and seigniory severed from the crown. Vide Plow. Comm. 215. b. Dyer, 321. 345. Dav. Rep. 62.
The power, king like, may pardon treasons, felonies, &c. make judges, &c. indictments, &c. and process, in their name. Vide 4 Inst. 204. 2 Lutw. 1235. The bishop of Durham in loco regis; county palatine had tam libere per gladium, prout rex Coronam. Vide 1 Bulst. 160. 2 Bulst. 227.
Though exercised here very extensively in erecting Courts of Equity and Admiralty, yet the power of erecting jurisdictions seems to be confined to the common law. The words of the charter, it is true, are very large, but it seems that the king cannot give power to erect such Courts. Vide 12 Rep. 51. Jenk. 285. pl. 18.  10 Mod. 125, 126.
By the 27th Hen. VIII. c. 24. the power of making judges and pardoning offences, and the style of indictments and process altered. Quaere. The extent of this statute, and how far the charter of Maryland affected by it.
The province of Maryland is [**137]  no part of the realm, nor of Hen. VIII.'s dominions; if, therefore, it is affected, it must be by an equitable construction: the long usage should operate against construction.
Suppose a feme covert to have the seigniory and proprietary; in whose name are laws and process to be had? In the case of the crown, as in the time of Queen Anne, married to  [*359]  Prince George of Denmark, in her name, her husband a subject.
How shall grants be made effectual to bind her and her heirs?
So much embarrassment and inconvenience on same events, may arise on account of the peculiarity of the case, that probably the government as well as of man, and as well by the letter as the spirit of the above statute of Hen. VIII. may fall into the hands of the crown.
By the statute quia emptores terrarum, the tenure should be of the king, on grants made by the proprietary. Quaere. The non obstante clause. Vide 1 W. & M. sess. 2. c. 2.
The last proviso in this act clears it up. The construction of Lord Charles's will does not seem to me maintainable. There is not a syllable of the death of Lord Frederick in his minority, and I think it would be going [**138]  much too far to supply these words by the argument, "otherwise Lord Charles meant an act of injustice to his son."
The statute de donis, &c. passed in the time of Edw. I. and before the time of Edw. III., Count was the only name of dignity and honour in England. The titles of Duke, Marquis, and Viscount, are of later times. The first Duke in the time of Edw. III., the first Marquis in Richard II., and the first Viscount in Hen. VI. The name or title of Baron is not of dignity, or addition. Dav. 60. Vide Co. Mitton's case.
5 Edw. III. 58. Fitz. Jurisdiction, 61. 1 Edw. IV. 10. 45 Edw. III. 17. 5 Edw. II. Fitz. Quare Impedet. 12 Eliz. Dy. 288.
Another opinion of Daniel Dulany, Esquire.
I must confess that I had great doubt of the power of Lord Frederick to devise the province, not because I thought it to be unalienable, or not entailable; but because I was not satisfied of his power to bar the reversion devised by his father to Mrs. Browning. What follows may serve to explain why I entertained this doubt.
 [*360]  The name of the lord proprietary is used in all process in Maryland, as the king's [**139]  is in England. Indictments charge offences to be against his peace, good rule and government. Provincial laws are enacted in his name by and with the advice, &c. The king's name is never used in Maryland, in executing or enacting any laws. Even prosecutions upon the penal statutes of England are in the name of the lord proprietary. All lands in Maryland belonging to the inhabitants are entailable, and estates-tail, remainders and reversions are barrable by common recovery in the provincial court. The charter of the province was long after the statute de donis. The charter speaks of grants in tail. It has been the usage and practice to entail lands, and bar by recovery in the provincial Court. This usage has been referred to, recognized, and confirmed by acts of assembly. Very many titles depend thereon; the statute de donis and mode of conveyance by common recovery are observed as established rules of property, and so of the statutes of uses and of wills. The oath of judges prescribed by act of assembly is to do equal right according to the laws, customs and directions of acts of assembly, so far forth as they provide; and where they are silent, according to [**140]  the laws, statutes and reasonable customs of England, as used and practised within this province.
Land is granted to the king in tail, remainder to A. B. in fee, the king cannot bar the remainder by common recovery, neither can he bar by grant. Plowd. Comm. Willion v. Lord Berkley, and the case of Altonwood in Co. Rep.
Perpetuity is odious. Many million of acres of land are contained within the boundaries of this province; but the property is principally in tenants paying a quit-rent, who have as full power to bar by recovery in the provincial court as any in England to bar in C. B. This property is most open to alienation.
If the lord proprietary could not suffer a common recovery, though every inhabitant may as above, it seems to arise from his exercising regal powers under the charter, and being  [*361]  considered in loco regis. Indeed I cannot conceive how a common recovery can be suffered by the lord proprietary of the province. The Judges derive their capacity, as such, from his appointment, and should a recovery be suffered before them of the propriety, and he thus cease to be lord proprietary, they, too, must cease to be Judges. The [**141]  existence of their judicial power would be incompatible with a judgment against the proprietary under whose commission they are Judges. As to his suffering a recovery in England, it seems to be a strange notion. It is said there are precedents of recoveries in C. B. of lands in the plantations; but if there have been under act of assembly; but there is no such act in Maryland. If Lord Baltimore could not bar by common recovery, neither can the king; and yet if Lord Baltimore might bar by lease and release, though the king cannot by grant, the following doctrine is the result.
Every person having an estate-tail in land in Maryland may bar that estate and a remainder thereon, and reversion in the same and in no other manner in the Provincial Court, that a person in England having a similar estate there, may in C. B., except the lord proprietary, because being in loco regis, a praecipe will not lie against him; but since he cannot bar by recovery, he may by lease and release, though the king cannot either by recovery or grant; such being the peculiar situation of the lord proprietary, that he is in one respect in loco regis, and to be considered [**142]  in another, in a different light, and to have a power to bar by lease and release in order to prevent the establishment of an odious perpetuity.
In the case of The Earl of Derby v. Duke of Athol, Lord Hardwicke observed, as I have been informed, that if the private act of James I. intended the like effect with the statute de donis, there was no occasion for the restrictive and prohibitory clause in the act, in respect of the estate-tail, because there could be no fine or recovery, and therefore no method to bar it. The settlements, which  [*362]  have been made on the marriages of the lords proprietaries, I supposed, were upon the advice of able counsel, who did not entertain the idea of a power to bar by lease and release, and that Mr. Booth's was not singular. But as so many eminent lawyers are now of opinion in favour of the bar by deeds of lease and release, I am to suppose that I should have had less doubt if I had had more knowledge of the subject; but I do not understand why it should be thought that the propriety of Maryland was not entailable, or that the law of England, as it stood before the statute de donis, extended to Maryland [**143]  , though it ceased to be the law of England long before the charter of Maryland, or any discovery made that such a country existed.
As to the tonnage, I apprehend it is not a tenement, nor does it partake of the realty, and therefore it is not entailable, wherefore the estate limited being a fee conditional, when Lord Charles made his will, he had only a reverter, possibility, or condition in law.
Though some very modern resolutions have gone a great way in favour of the power of devising, yet I do not know that a condition in law, or in fact, has been held to be devisable. The statute de donis divided the estate, which was before entire in the grantee subject to a condition in law; and according to the old doctrine, this possibility, or condition, was not grantable, or devisable. I do not know that this doctrine has been overruled in the point, that it has been directly held a condition in law or in fact is devisable, that there is a reasonable ground for a distinction between a condition in law and in fact, as to this matter, nor do I clearly perceive why, if after the creation of a conditional fee, the reverter or condition in law is grantable, or devisable, such [**144]  reverter or condition may not be granted at the very time of creating the conditional fee, nor why, if a condition in fact be grantable, or devisable after the creation of an estate in fee, subject to such condition, such condition may not be limited to C. upon a grant of A. to B.
The case of The Earl of Stafford v. Buckley, in 2 Ves.  [*363]  seems to me to be very strong in favour of the first point, that the tonnage is not entailable; and Lord Hardwicke in this case seems also to have allowed the old doctrine respecting conditional fees and reverters; but if the Judges were of opinion, in the case of Selwyn v. Selwyn, in 2 Burr as the reporter (and I suppose upon proper grounds) has intimated, that a voidable contingent executory use to arise out of a subsequent recovery, was devisable, the reason and principle of this opinion may be of extensive application, nor shall I venture to suggest my opinion upon the point whether the reverter or condition in law was devisable or not; but if it was not devisable, then I conceive it became extinct upon the descent of the condition to Lord Frederick, and he therefore had upon the matter an absolute [**145]  fee-simple which he might dispose of as he did. If, however, the tonnage belongs to Mrs. Browning under the devise to her of the reverter or condition in law, it is to be considered, in respect of the charge in favour of Mrs. Eden, that the charge was laid upon the whole subject, that Lord Charles intended a greater profit to his elder than to his younger daughter, and that the 20,000l. was more beneficial than half the value of the tonnage. Indeed, as to the value of the whole subject intended to be devised by Lord Charles, it is very great. The revenue for the support of government, fines, forfeitures, appointment to offices, presentations to forty-four livings, caution money for vacant lands, quitrents, fines of a year's rent upon every alienation, escheats, manors, (as they are called,) reserved lands, as well as the tonnage, constitute the subject intended to be devised to Mrs. Browning, a subject which, I think, if purchased at the price of 400,000l. sterling, would be purchased at a very moderate rate; and it would seem to carry the fiction of a recompense beyond the supposition, there being no possibility of a recompense, as there is no instance of a similar [**146]  estate or subject.
 [*364]  Letter to John Hall, Esq.
SIR,
Mr. Hamersley, in his letter of the 29th last July, received by the last post via New York, desires, in the special verdict in the cause of Calvert v. Tenants of Anne Arundel Manor, that the charter and all the subsequent settlements, and the deed of 1761, may be found in haec verba; that it may also be found that the statutes de donis, uses, wills, and limitations have been adopted and received as laws in Maryland, and that the particular circumstances of Mr. Calvert's acquiescence, and the sales and improvements, &c. be also found.
I infer from the above, that it is considered to be a point of great importance to have the adoption of the above statutes expressly found, and therefore you will be pleased to consider whether it may not also be proper to find that the titles to a considerable share of real property in Maryland are held and secured under this adoption. As the statute de donis is to be thus found, it seems necessary to have the practice of barring entails by common recovery also found.
With the above view it may be necessary to find the Judges' oath, and also [**147]  the acts of assembly relative to common recoveries, of which there are two or three, particularly the act to aid defective recoveries, and the act of the last session, concerning estates-tail, &c.
In finding the recovery suffered by the late lord of the manor, it is to be considered whether our peculiar practice should not be found; for it differs not a little from the practice in England, I mean with respect particularly to the manner of appearing under a letter of attorney for an absent vouchee; for in my practice I never knew a summons ad warrantizandum. I don't remember whether there was a  [*365]  particular power given in the case to Mr. Goldsborough, to appear for Lord Baltimore, or whether he appeared in virtue of his office as attorney-general. Whatever power he acted under it seems should be found. It seems also very proper to find the death of Lady Baltimore, on whose marriage the settlements were made, without issue, and also the death of Caecilius Calvert without issue, before any steps taken to dispose of the manor; for by these events there was an end of the trusts respecting the above persons.
The name "Manor," perhaps, may mislead,  [**148]  if not explained and shewn to be merely descriptive, as black acre or white acre.
I do not understand what Mr. Hamersley means by the expressions "the particular circumstances of Mr. Calvert's acquiescence," unless he means what is alluded to in one of his former letters to me, in respect of a letter written by Mr. Calvert to the late lord, in which it is said he seemed to give up his pretensions, and applied to his lordship's bounty. If this be the meaning, there is no legal evidence of the fact here.
It seems rather odd to find laws in a verdict, but as the cause will be finally determined in England, it may be thought proper for the information of the king and council. It seems it is the practice in other colonies, and I find many instances in which it was done here, by the note books of my father, when appeals home were expected, which were more common heretofore than of late times.
As to finding the charter in haec verba, that will hardly be practicable; for it is in abbreviated Latin, and therefore the substance of it can only be found, having particular regard to that part of it which enables the proprietary to grant in fee, in tail, &c.
Having understood [**149]  that you have undertaken to draw up the notes for a special verdict, I have taken the liberty to send you the above extract from Mr. Hamersley's letter, with  [*366]  the addition of a few other hints for your consideration, and am, sir, &c.
DANIEL DULANY.
8th October, 1773.
Opinion of John Hall, Esq.
The Baltimore family having first attempted a settlement at Avalon, in Newfoundland, and finding that country too cold and barren, came further to the southward, and early in the reign of Charles I. Caecilius, then Lord Baltimore, of the kingdom of Ireland, applied to that monarch, and obtained a grant of the fertile country now known by the name of Maryland, with very extensive privileges. The charter bears date on the 20th day of June, in the 8th year of Charles I. Anno Domini, 1633. The clauses of that charter necessary to be taken notice of at present, are the 18th and 19th sections. By the 18th section, the lord proprietary has full power and license given him from time to time, at his pleasure, to assign, alien, grant, demise or enfeoff, so many, such and proportionate parts or parcels of the premises, to any person [**150]  or persons willing to purchase the same, as he shall think convenient, to hold in fee, fee-tail, term of life, or years, under such rents and services as shall seem fit and agreeable, notwithstanding the statute of quia emptores. The 19th section gives license to the same baron of Baltimore and his heirs, to erect any parcels of land within the province aforesaid into manors, and in every of those manors to hold a Court Baron, and all things which to a Court Baron do belong, with view of frank-pledge, &c. Under the power or license given in this last section, particular tracts of land have been laid out in some way or other, probably by instructions given to the Judges of the land-office, and have been known and called by the name of manors. How they were erected does not appear to me, nor did I ever know or hear of Courts being  [*367]  held under the name of Courts Baron, or under any other name particularly for those manors. In virtue of the powers contained in these sections, however, leases have been given, from time to time, for lands, parcel of the manors, generally for term of life or years; and Anne Arundel Manor has been, I believe, almost entirely leased out.  [**151]  Whether with covenants to renew or not, does not appear to me.
The next title paper that appears to me is a family settlement of the province of Maryland, made on the 31st day of December, 1698, between Charles Lord Baltimore and his eldest son and heir apparent, Benedict, of the one part, the Earl of Lchfield and his daughter, Charlotte Lee, of the second part, and the Dukeof Northumber land and other trustees, of the third part, on the marriage of Benedict with Lady Charlotte Lee, at a time when the government was in the hands of the crown. By this settlement, the province of Maryland, amongst other things, is conveyed by the name of all the country, province, and islands in America, commonly called Maryland, to the uses following, viz. to the use of Charles Calvert during his life, without impeachment of waste; remainder to Benedict Calvert for life, in the same manner; remainder to trustees to preserve contingent remainders; remainder to the first, second, and other sons of Benedict, on the body of Lady Charlotte begotten, in tail male, with other remainders relative to jointure, &c. with proviso that it should be [**152]  lawful for Charles or Benedict Calvert to grant in fee unimproved lands; to lease manors for twenty-one years, or one, two or three lives; reversion in fee to Charles Calvert. Benedict had issue, as the fact is stated, by Lady Charlotte, four sons, Charles, Benedict, Edward and Caecilius; the three last died without issue. In 1716 the government was restored to Charles, the grandson of Charles Lord Baltimore, who appears at that time to have been in his minority. He lived to old age, (dying in the year 1751,) and was succeeded by the present Lord Baltimore.
In the year 1730, Charles, late Lord Baltimore, on his  [*368]  marriage with Mary, the youngest daughter of Sir Theodore Jansen, likewise made a settlement of the province of Maryland, amongst other things, by which the uses are limited to himself for life, without impeachment of waste; remainder to trustees to preserve contingent remainders; clauses to secure jointure; remainder to the first and every other son of the marriage in tail male; reversion to himself in fee. Charles had issue by his wife Mary, one son, Frederick, and two daughters, Louisa and [**153]  Caroline. On the 17th day of November, in the year 1750, Charles late Lord Baltimore, made his last will and testament, and amongst other devises therein contained, devised Ann Arundel Manor to Benjamin Calvert, Esq. his heirs and assigns; under which Benedict Calvert, Esq. of Prince George's county claims title.
Frederick, the present Lord Baltimore, in the year 1753, likewise entered into articles for the settlement of the province of Maryland, on his marriage with Diana Egerton, one of the daughters of Scroop Egerton, late Duke of Bridgewater, deceased, in which the said marriage is recited as a matter in prospect. The former entails are recited. The terms on which the marriage was proposed to be held are also set forth. And then it is recited, that it was apprehended no plea could be held in the Courts of Westminster concerning the said province, for that the remedial writs of our lord the king do not run into the plantations or other parts beyond the seas. And it is also apprehended that the several Courts established in the same province or territory, under the authority of the said Frederick Lord Baltimore, as [**154]  lord or proprietor of that territory, for the determining suits between the tenants or inhabitants of the said province, cannot hold plea concerning the property or ownership of the said province, in case of any controversy concerning the same, the cognisance of such questions being conceived to belong to the king's majesty, of whom, as superior lord, the said Frederick Lord Baltimore doth hold the said province as a feudatory tenant, by the rents and services expressed  [*369]  in the charter or letters patent herein before mentioned. And whereas it will be necessary that the said Frederick Lord Baltimore, to be enabled to settle, convey, and assure the said province, lordship, or territory, in the manner proposed in the course of the said treaty, should acquire to himself, and be seised of a full and indefeasible estate in fee-simple, of and in the said province, lordship, or territory of Maryland; but thought the estate and interest which he hath in the said province, is in nature of an estate of inheritance in tail male, and it is conceived to be incident and belonging to every such estate to be barrable by a common recovery, and the said Frederick Lord Baltimore [**155]  would be qualified to suffer such recovery, and thereby to bar such estate-tail, did the said territory or district of land lie in England; yet by reason that it is apprehended that there doth not exist any Court or jurisdiction before which any proceedings in nature of a common recovery for or concerning the said province or territory can be carried on or prosecuted, the said Frederick Lord Baltimore is wholly disabled to bar or dock the said estate-tail, and therefore cannot acquire the fee-simple of the said province to himself. And whereas there is great reason to expect that if the several matters aforesaid are in a dutiful manner represented to his majesty, he will be graciously pleased to give leave that an application be made to the parliament for the aid of the legislature to enable the said Frederick Lord Baltimore to execute such deed, or do some such solemn act as may be enacted, and declared to be equivalent to, and have the force of, a common recovery, and may so operate as to vest an indefeasible estate of inheritance in fee-simple, freed and discharged from all entails, and all remainders and reversions expectant, &c. Therefore proper covenants are to be [**156]  entered into, to oblige Lord Baltimore to lay a most dutiful representation upon the matter aforesaid before his majesty, to petition for leave to apply to parliament for an act to enable him to bar said entails so subsisting, and to use his utmost endeavours that such act may be obtained. Caecilius Calvert, heir in tail,  [*370]  engages to join in the application for an act of parliament. This settlement contains a great variety of other clauses not material to the point under consideration, and the less worthy of notice, because, although the marriage took effect, the Lady Baltimore is since dead without issue. Whether any application was ever made to parliament or not, does not appear to me. I find a deed of settlement amongst the council records, by lease and release, leased 30th day of January, 1761, between Frederick Lord Baltimore and his uncle Caecilius, deceased, of the one part, and the honorable Thomas Bennett, Earl of Tankerville, and William Sharpe, Esq. one of the clerks of the privy council, of the other part, for one year, in common form, to ground release on: the release dated the 31st of the same month, by way of indenture  [**157]  tripartite, between Frederick Lord Baltimore of the one part, the honourable Caecilius Calvert, uncle, &c. of the second part, and the earl of Tankerville and William Sharpe, Esq. of the third part, recites a marriage agreement in March, 1753, to secure the payment of 800l. per annum to the baroness dowager of Baltimore, ten thousand pounds for the portions of Louisa and Caroline Calvert, and two thousand a year to Lady Diana Egerton; province of Maryland to be settled and assured, &c. on Lord Baltimore for life, with divers remainders. It recites that the said marriage did take effect in pursuance of the said recited indenture, and in performance of such covenants and agreements as are now, and remain to be executed, and for docking, barring, and extinguishing all estates-tail, and all remainders and reversions, and all other estates of and in the said province, lordship, &c. called Maryland, and for settling and assuring the same to the several uses and trusts after expressed, and in consideration of ten shillings sterling, Frederick Lord Baltimore and Caecilius Calvert convey said province to the trustees aforesaid and [**158]  their heirs, to hold to the use of Frederick Lord Baltimore, during his natural life, without impeachment of waste, and with power to commit waste; remainder to trustees to preserve contingent remainders;  [*371]  remainder to the first, second, and every other son of Caecilius Calvert, in tail male; remainder to the use of such person and persons, and for such estates as Lord Baltimore, by deed executed in presence of two witnesses, or by his last will shall limit and appoint; remainder, in case of no such appointment, to the use of such persons and for such estates as the reversion of the same premises now stands limited to, and devised by, the last will and testament of Charles Lord Baltimore, deceased. Proviso, saving the power of government; right of consenting to exchange; division or partition with other governments adjacent; right of granting and leasing, as in other settlements; power to make jointures; to charge the province with a sum not exceeding twenty thousand pounds for daughters' portions; covenant for further assurance to the same uses, acknowledged before Thomas Lane, I suppose Master in Chancery, and enrolled in the High Court of Chancery,  [**159]  on the 4th of February, 1761.
What I find next is a conveyance of lease and release from Frederick Lord Baltimore to the Reverend Bennett Allen, of Ann Arundel Manor, and all other the manors within the province. The lease bears date the 7th of April, 1767, for one year, in common form. The release bears date the 18th day of the same month, tripartite between the lord proprietary of the first part, the Reverend Bennett Allen, of the second part, and the honourable Walter Dulany, Esq. of the third part, recites the former entails, 1698 and 1730; recites a former conveyance made by Lord Baltimore and Caecilius Calvert, to the honourable Thomas Bennett and William Sharpe, Esq. of the province of Maryland, dated the 30th and 31st days of January, 1761, enrolled in the chancery of England, and recorded in Maryland, but does not set out the use in said deed contained and limited; recites the instructions dated in February and November, 1766, to his excellency Horatio Sharpe, Esq. the honourable Daniel Dulany, and John Morton Jordon, Esq'rs. for selling the manors, and that they had made considerable progress [**160]  therein; recites that the former entail, subsisting  [*372]  upon the entire province, had been already effectually barred and destroyed by the deeds in 1761, and that the said Lord Baltimore had acquired an indefeasible estate in fee by the said deed, according to the usage in like cases, (there being no other established method for barring entails upon the entirety of the said province, and other the premises,) yet in regard to the subsequent limitations and dispositions, created and made by the said last recited indentures, and for facilitating the sale of the manors, &c., the scheme of the deed is to make Walter Dulany, demandant, Bennett Allen, tenant to the praecipe; the Lord Baltimore to come in either personally or by attorney, as vouchee, and to vouch over the common vouchee; the parties to stand seised to the use of the Lord Baltimore in fee, with an express proviso, that nothing in that deed should frustrate or destroy, or in any manner derogate from, or invalidate, impeach, prejudice, or affect the said recited deeds of lease and release, dated in January, 1761, but that the same should stand in full force and vigor as to the entire province [**161]  and the whole territory called Maryland, (Anne Arundel and other manors only excepted.) There is a power of attorney also, or writing purporting to be a power of attorney, from Lord Baltimore, dated the 8th of April, 1767, to the Honourable     Goldsborough, Esq. attorney-general of the said province, or any other attorney-general of the same province, to appear, and in the name and behalf of the said Lord Baltimore, to enter into warranty and vouch over common vouchee. Executed before Hugh Hamersley and Giles Hitchcock, and proved by Hitchcock before the mayor of London. In consequence of this deed to make a tenant to the praecipe, at an adjourned Provincial Court in the month of July last past, a writ of entry sur disseisin was issued out in the name of Frederick Lord Baltimore to the Sheriff of Anne Arundel county, Walter Dulany, demandant, Bennett Allen, tenant, of all that tract or parcel of land called Anne Arundel Manor, &c.; bearing date the 1st day of April, in the 17th year of the dominion. Declaration in common  [*373]  form. Walter Dulany, demandant, recovers against Bennett Allen [**162]  , he over against the lord proprietary, and the lord proprietary against William Rawlins, the common vouchee. Writ of seisin is prayed returnable to the third Tuesday in October next, and I presume has been issued, but cannot be as yet returned.
I have been thus circumstantial in stating the facts on which my opinion is founded, because every gentleman interested may have an opportunity of considering them and judging for himself. Proper allowance, I doubt not, will be made for the short time I have had to consider an affair of so great extent. The charter to the first lord proprietary gives him an estate in fee-simple with ample powers. Those that immediately relate to this matter may be seen in the 18th and 19th sections of the charter printed in Bacon's laws. The settlement made by the first Charles Lord Baltimore in 1698, is in my opinion of sufficient force and validity to work an alteration of that estate, and without saying any thing of the settlement made by the late Lord Baltimore, in 1730, I look upon it that Frederick, the present lord proprietary, at the time of his coming to the government upon the decease of his father, was seised of an estate [**163]  in tail male under the deeds made by his great grandfather. And I do not think the father of the present Lord Baltimore had power by testament to devise Anne Arundel Manor, or any other part of the province, to any person whatever, to take effect otherwise than upon the death of the present Lord Baltimore without issue male, and without exercising that power which I think he has of docking the entail. But should no other steps be taken than what have been already, I doubt much whether the entail would be barred. There are some very strong recitals in the marriage articles, with regard to the manner in which the entail ought to be docked; it appears clearly from those recitals to be the opinion of gentlemen in England, and even of Lord Baltimore himself, that the entail on the entire province could not be barred but by act of parliament. No process from the Courts of  [*374]  Westminster would reach us, and the Courts in this province are looked upon not to have competent jurisdiction so as that the lord proprietary would bar the entail on the entire province; if so, how can he be vouched for the most valuable part of it, or where must he stop? I am not clear [**164]  in this point the one way or the other. It has been the prevailing doctrine here that the lord proprietary, like the king at home, cannot be disseised, and the proceeding in common recovery is grounded upon a disseisin, and although he comes in as vouchee, yet I do not know what consequences might be deduced from this doctrine, where it appears from the deeds to lead to the uses, and from the whole complexion of the affair, that the lord proprietary is the real person concerned, and that the intention of the recovery is to gain him an estate in fee. Adversary suits are brought in the Courts of Justice within this province, where the lord proprietary is plaintiff, and every day's experience shows that such suits may be maintained; but I never knew an action where he was defendant. The common method of trying title, where the lord proprietary is concerned, is to bring ejectments against his tenants, and then the Courts hold plea. What ought to be the opinion of Judges in England, in case the dispute were carried thither by appeal, is uncertain. Recitals demonstrate what opinion has been already formed. And, therefore, I much admire no steps were ever taken to procure an act of parliament [**165]  which would have put a short end to all controversy about it, more especially as this seems to have been a matter in contemplation at the time of the marriage articles in 1753. Another objection appears to me considerable; how can it consist with the settlement in the year 1761, in which Lord Baltimore and Caecilius Calvert both joined to the Earl of Tankerville and William Sharpe, Esq. that the Lord Baltimore should have an estate sufficient to make a tenant to the praecipe without the trustees or the survivor of them joining in the deed. The settlement, though it cannot in my opinion operate so as to extinguish the estate-tail on the entire province, has certainly  [*375]  vested the legal estate in trustees to the uses therein mentioned. The lord proprietary is tenant for life with divers remainders over, one of which is to the use of such persons and for such estates as the reversion of the same premises now stands limited to and devised by the last will and testament of Charles Lord Baltimore, deceased, under which, I take it, the devise to Mr. Calvert is included. If it could be supposed not necessary for the trustees to join, what is there [**166]  to prevent Lord Baltimore from defeating that whole settlement without their consent; for if he can gain a fee in the manors without them, by the same parity of reason he may gain a fee in all the rest of the province without them, and to what purpose would be those deeds?
Another objection appears to me to have great weight, and is quite apparent to any one that knows the method of proceeding in recoveries. Where they are suffered in this province, and if we can trust to our law books, in the island of Great Britain, by power of attorney, the same must be taken by one of the Judges of the Court; or by dedimus: our practice is so, and evils might follow not easy to guard against were it otherwise. Where a Judge of the Court does not take the power of attorney, the course is to issue a writ of entry and send dedimus to take acknowledgment of deeds and powers of attorney, &c.
Upon the whole I am of opinion that it is unsafe to purchase under the title as it stands at present. It is not certain what would be the opinion of Judges in England, with regard to the Courts in this province having competent jurisdiction, were the matter carried thither by appeal. It would [**167]  have been much better that the trustees had joined in the deeds to make a tenant to the praecipe, for if this be not necessary, the consequence will follow that the whole settlement in 1761 may be defeated without their consent. If there were no doubts upon either of these points, as I do think there are, yet the power of attorney is utterly new and irregular, and ought to have been taken by dedimus. There is one thing that satisfies me how little regard is to  [*376]  be paid to some parts of the deed to make a tenant: after reciting the settlement of 1761, the deed asserts that Lord Baltimore had thereby acquired an indefeasible estate in fee according to the usage in like cases. There is no usage, I believe, that can be pointed out to bar entails by a simple deed recorded in the Chancery, and what follows just after in a parenthesis is very remarkable (there being no other established method for barring entails upon the entirety of the said province and other the premises.) These are my sentiments upon the occasion. It is with reluctance I have given any opinion. I cannot conclude without observing that many of these settlements, particularly those in 1698 and 1730,  [**168]  are entirely in the custody or power of the Baltimore family, and certainly attested copies of them ought to be sent over and recorded here for the safety of purchasers.
The lord proprietary no doubt would be bound by his warranty, but after his death the heirs would not be bound without assets in fee descended, and the whole family estate seems to be entailed. And this further inconvenience would attend the purchasers in cases of eviction: they must follow the lord proprietary or his heirs into the Courts of Justice in England, where they reside.
J. HALL.  

33 of 37 DOCUMENTS 

James Drane against Charles Hodges.  

[NO NUMBER IN ORIGINAL] 

PROVINCIAL COURT OF THE PROVINCE OF MARYLAND 

1 H. & McH. 518; 1773 Md. LEXIS 3 

September, 1773, Decided 

PRIOR HISTORY:
 [**1]   THIS was an action of trespass quare clausum fregit, commenced on the 4th day of March, 1771. By the declaration, the trespass is stated to have been committed on the 10th June, 1764, and on divers days and times between the said day and the 20th June, 1766, into a tract of land called Greenfield.

The following point was saved, viz.

"Under leave entered in the proceedings in this cause, for the defendant to give special matter in evidence upon the general issue pleaded, the defendant, by his counsel, objected against the plaintiff's recovery, for that more than three years had elapsed before the 4th of March, 1771, the day of the impetration of the writ in this cause, and it was not proved that any trespass had been committed since the month of November, 1765; and that, by virtue of the act of Assembly for limitation of suits, the plaintiff was barred of this suit. The plaintiff thereupon produced, and read in evidence, the transcript of a record from the Court of Appeals; n1 and alleged, and the same is admitted, that the cause for which that action was originally commenced in this Court, is the same cause for which the present suit is brought, and that the said former [**2]  suit was brought within three years next after the cause thereof first accrued. But whether the said former suit, verdict, judgment, recovery and reversal, in the said record mentioned, and the recent prosecution of this suit, the same being brought within one month after the said reversal, shall prevent a bar from the act of limitation or not, the Court will advise and reserve that point for further consideration; so that if a verdict should be found for the plaintiff, and the Court should be of opinion that the plaintiff is barred by the act of Assembly for limitation of actions, judgment shall, notwithstanding such verdict, be entered for the defendant, otherwise for the plaintiff.

n1 Vide the case reported ante, May term, 1668, p. 262.

F. Hall, for plaintiff,

S. Chase, for defendant."

Previous to the point being saved by the Court, S. Chase, for the defendant, contended,

That the plaintiff should not be admitted to prove the trespass at the time alleged, as it appeared by the plaintiff's own shewing that he was barred by the act of limitations. That by the act of 1715, c. 23. no person could bring an action who did not shew he was within the express [**3]  exceptions of the act. That an infant, or a feme covert, would have been bound by the act, unless excepted by express provision of law.  1 Lev. 31. where it was held that, in times of rebellion, when the Courts were not open, the statute was a good bar, because no particular exception of such a case in the statute. See Salk. 420.  10 Mod. 206. The statute is general, and must work upon all cases not exempted by exception. Where the statute of limitations once attaches, and the time once begins to run, it overruns all mesne acts.  1 Stra. 556. The statute 21 Fac. I. c. 16. makes an exception in favour of the plaintiff, where he is beyond seas; but it has been held, that where the defendant has been beyond seas, he is not within the equity of the statute. Carth. 136. And therefore it was that the statute of 4 and 5 Ann. c. 16. was made to provide for that case. The Courts of Justice, in this Province, were shut during the time the stamp act was in force; a subsequent act of Assembly was thought necessary to provide that that time should not be accounted, and run under the act of limitations. In cases of causes referred, an act of this Province provides,  [**4]  that if the arbitrators die or refuse to act, the time shall not be accounted within the act of limitations. Where an action is brought and the plaintiff dies, the act of limitation attaches, and runs against the executor. 1 Lutw. 261.  

DISPOSITION:
Verdict for the plaintiff.  

COUNSEL:
Johnson, for plaintiff, argued,

That the former judgment, obtained in the Provincial Court, was for the same trespass for which the present suit was brought, and which judgment had been reversed in the Court of Appeals, and the present suit was brought within a month thereafter. That the statute of 21 Fac. I. was enacted before the charter of Maryland was granted, and therefore was a part of the law of this country. Afterwards our own Legislature, by an act of Assembly, abridged the time limited by the statute of James, which statute has an express saving of cases where judgment has been reversed on writ of error. And to shew the savings by construction, which were not within the express words of the statute, he cited 1 Raym. 434. 12 Mod. 578. 2 Stra. 907. 719. 2 Raym. 1427. The statute of James and the act of Assembly, being both made by adequate authority, ought to be construed together as parts of one system;  [**5]  for it is a rule, that where divers statutes relate to the same thing, they ought to be all taken into consideration in construing any one of them. 4 Bac. Abr. 646. 1 Burr. 447.

Mr. Hall was about to proceed, when the Court resolved to save the point.  

OPINION:

 [*518]  Lib. D. D. No. 19. fol. 567.
 [*521]  The Jury found a verdict for the plaintiff, and the Court gave judgment on the point saved for the plaintiff.  

34 of 37 DOCUMENTS 

BROWNE, et al. Lessee, vs. KENNEDY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 H. & J. 195; 1821 Md. LEXIS 6 

June Term, 1821, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Baltimore county court. Ejectment for a tract of land called Cole's Harbour. The defendant in the court below, (now the appellee,) took defence on warrant, and plots were made. At the trial of the cause it was agreed between the parties, that on the 1st of June 1700, a tract of land called Todd's Range was granted to James Todd, for 510 acres, being a resurvey on a tract called Cole's Harbour, granted to Thomas Cole the 17th of November 1668, for 550 acres. This grant, according to its true location, included within its lines all the land described and granted in and by the two deeds hereinafter mentioned, one from Charles Carroll to William Lyon, and the other also from said Carroll to Alexander Lawson, as those deeds are located on the plots in this cause; the lines of this tract run across the stream called Jones's Falls, and included the whole of that stream for a considerable distance above and below the place where it is touched by the lines of the two above mentioned deeds. Before the 18th of April 1757, the tract called Todd's Range, by sundry mesne conveyances and devises, became vested in Charles Carroll, esquire, of the city of Annapolis, and his heirs; and [**2]  on the day last mentioned he, by deed of that date duly executed, acknowledged and recorded, conveyed a part of said tract lying on the north west side of Jones's Falls and bounding on it, to William Lyon, in fee simple; which part is described by metes and bounds, courses and distances, as follow, viz. "Beginning," &c. "and running thence N. 33 [degrees] 30', W. 5 ps. unto Jones's Falls, then bounding down and with the said Falls the twelve following courses, viz. S. &c. containing 13 and an half acres of land, more or less. On the 20th of May 1757, said Carroll, by deed of that date duly executed, acknowledged and recorded, conveyed to Alexander Lawson, and his heirs, another part of said tract, also binding on Jones's Falls on the south east side, opposite to a part of the land sold as aforesaid to William Lyon. This part is also described by metes and bounds, courses and distances, as follow, viz. "Beginning," &c. "and running thence N. 59 [degrees] E 22 ps. N. 27 [degrees] E. 12 ps. unto Jones's Falls, then bounding upon and with the said Falls the seven following courses, viz. N." &c. containing seven and an half acres of land more or less These two deeds are truly located [**3]  by the defendant on the plots; the stream called Jones's Falls, in all that part of it which ran through Todd's Range, as it ran at the time of making the patent and deeds, is also truly located on the plots by the defendant. Before the year 1745 a bridge was erected across said stream, below the place where it is touched by any of the lines of either of said deeds, and was in that year, by act of assembly, declared to be a public highway, and has ever since been continued and kept up as such till this time. At the time of the grant of Todd's Range, and until the year 1786, the ordinary or common tides flowed up Jones's Falls to the place marked C D on the plots, but never flowed as high as the upper or northernmost part of the tract called Todd's Range, which extended a considerable distance above the place marked C D, including the land on both sides. Until the year 1787, boats frequently and regularly ascended said stream to the place marked C D, but never higher up. At the time of making said patent and deeds, said stream, at the place marked F, near Gay-street bridge, on the plots, was 100 feet wide; at the place marked C, 82 feet wide; at the place marked 27, 74 feet wide; at [**4]  the place marked f, 47 feet wide; at the place marked G, in the centre of the stream, 47 feet wide; and at the place marked C D, 45 feet wide--gradually diminishing in width throughout all this part of its course. All the estate and interest of Alexander Lawson, under the deed to him, became regularly vested in Elizabeth Lawson, the original lessor of the plaintiff in this cause, before the time of bringing this action; and on her death it vested in the present lessors of the plaintiff and their heirs. Before the bringing this action all the estate and interest of William Lyon, under and by virtue of the deed to him, was vested in John Smith and Benjamin Williams, and others, and their heirs, as tenants in common, and under them the defendant claims as tenant at will. Some time in the year 1786, some of the proprietors of the lands on both sides of Jones's Falls, for their own benefit, and with the consent of the other proprietors of lands there, including Alexander Lawson, and those claiming under William Lyon, who was then dead, diverted the then course of Jones's Falls, by cutting a new channel for its waters, as represented on the plots, and there marked as the "canal of Jones's [**5]  Falls," and through that channel the waters have ever since continued to flow. After making of said canal, the old bed of the Falls, between the points where it is intersected by the canal, was gradually filled up by the washing of the adjacent lands, by the persons under whom the defendant claims, and by the improvements made in the neighborhood, and at the institution of this suit had wholly disappeared, the place being laid out and occupied as part of the several lots and streets in that part of the city of Baltimore. On the 26th of January 1795, Charles Carroll, of Carrollton, the heir at law and general devisee of said Charles Carroll, of Annapolis, duly executed to John Smith, Benjamin Williams, and others, under whom the defendant claims as aforesaid, a deed, which was regularly acknowledged and recorded, and which is truly located on the plots; by which he conveyed to said Smith, Williams, and others, in consideration of the sum of £  750 current money, "all that part of a tract of land called Cole's Harbour, or Todd's Range, lying and being in the county of Baltimore, (excepting such parts thereof as have been heretofore sold and conveyed,) which part is contained within the [**6]  following metes, bounds, courses and distances, viz. Beginning for the same at," &c. "and running," &c. "to the middle or centre of the bed of Jones's Falls, then running in the middle or centre of said Falls, N." &c. &c. "on the east side of said Falls, then running and bounding on the east side of said Falls the following courses, S." &c. "and all the estate, right, title, interest, property, claim and demand whatsoever, either in law or equity, of him the said Charles Carroll, of Carrollton, of and in the aforesaid part of a tract of land and premises herein before mentioned to be bargained and sold," &c. All that part of land which is included within the claim and pretensions of the plaintiff, and in the defence of the defendant, as both are located on the plots, is a part of the old bed of Jones's Falls as it was before the stream was diverted in the manner above mentioned, and is now in the sole and exclusive possession and occupation of the defendant, and those under whom he claims, and who, before the time of bringing this action, actually ousted said Elizabeth Lawson therefrom. Cole's Harbour and Todd's Range are one and the same tract of land. Upon these facts, the court [**7]  below, (Bland and Hanson, A. J.) a, being divided in opinion as to the plaintiff's right to recover, there was a verdict and judgment against him, and he appealed to this court. b

a These Judges gave long and learned opinions, but as they are published at length in Niles' Reg. Vol. 18, p. 225, it is unnecessary to publish them here. Judge Bland's opinion was against the plaintiff; Judge Hanson's for him. 

DISPOSITION:
REVERSED.  

HEADNOTES:

The King of England has a right to grant land covered by navigable waters, subject to the right of the public to fish and navigate them.

The former Proprietors of Maryland acquired the same right of disposing of land covered by navigable waters within the Province, subject to the like restriction, under the charter by which the Province was granted to them by the King, as the King had prior to the charter. This right is now vested in the state.

Where the lines of a grant of a tract of land include a navigable river, the soil covered by the river will pass by the grant, though it be not described as land aqua cooperta, where the grantor has himself title to such soil.

By the common law proprietors of lands, bounded by unnavigable rivers, have not only the right of fishing, but a property in the soil covered by such rivers, ad filum medium aquae. This is also the law of this state.

If one holds land bounding on a navigable river, and is also entitled to the land the river covers, and grants the former land, describing it as lying on the river, and bounding it on the river, the grantee will be entitled, as well to the soil the river covers, as to the land expressly granted.

The State is entitled to unnavigable rivers, and to the soil they occupy, and if the State grants land, lying on such a river, and calls for the river as the boundary of the grant, the grantee becomes Riparian proprietor, and entitled to the land the river covers, ad filum medium aquae.  

COUNSEL:
Harper and Taney, for the appellant. They referred to Harg. Law Tracts, 6, 22, 32, 36, 37. 1 Mod. 105. Carter vs. Murcot, 4 Burr. 2164. The Mayor and Commonalty of Oxford vs. Richardson, 4 T. R. 439. 2 Blk. Com. 39, 40, 261, 262. D. Dulany's Opinion in 1 Harr. & M'Hen, 564. 5 Bac. Ab. tit. Prerogative, (B.) 495. Cooper's Just. tit. 1, s. 22, 23; and Stevens vs. Whistler, 11 East, 51.

Pinkney, Winder, and Williams, (Assistant Attorney General,) for the appellee. They cited 5 Bac. Ab. tit. Prerogative, (B. 2,) 497. Hale de Jure Mar. 32 to 35. 2 Bac. Ab. tit. Of the Court of Admiralty, 177. 5 Com. Dig. 102. The King vs. Smith, Doug. 444. Shultz Ag. Rights, 106, 136, The Charter of Maryland, sections 4, 16. Smith and Purviance vs. The State, 2 Harr. & M'Hen.  [**8]  244. Just. Inst. lib. 2, tit. 1, s. 20, 22, 23. Dig. lib. 41, tit. 1, s. 7, 3. 1 Brown's Civil Law, 237, 238. 2 Blk. Com. 261. Bracton, lib. 2, ch. 2. Pothier on Prop. Nos. 158 to 164. The Batture Case, 27, 58, 272. Hale de Jur. Mar. 5. Carter vs. Murcot, 4 Burr. 2164. 5 Bac. Ab. tit. Piscary, 319. Co. Litt. 4, 6; and 2 Bac. Ab. tit. Grant, (J,) 396.  

JUDGES:
The cause was argued at this term before CHASE, Ch. J. BUCHANAN, EARLE, JOHNSON and MARTIN, J. a JOHNSON and MARTIN, J., concurring. EARLE, J., dissenting.

a Dorsey, J. having been counsel did not sit. 

OPINIONBY:
CHASE; BUCHANAN 

OPINION:

 [*199]  CHASE, Ch. J. I am of opinion, that the lessors of the plaintiff have a right to recover the land in question to the middle bed of Jones's Falls; that Charles Carroll having title to the lands in question, and all rights, privileges and advantages, derivable therefrom, did, by his two deeds to William Lyon and Alexander Lawson, convey the same to them, and thereby did divest himself of all right and interest in the same.
Charles Carroll, prior to the said deeds, holding the said lands on both sides of Jones's Falls, had the right, privilege, and advantage of accretion [**9]  by alluvion, or by the gradual recession of the water from the banks or shores of the Falls.
Charles Carroll, by his deed dated 18th of April 1757, to William Lyon, transferred all his right and interest to  [*200]  him in the lands lying on the north side of Jones's Falls, as described in the said deed; and by his deed to Alexander Lawson, dated the 20th May 1757, transferred all his right and interest to the said Lawson in the lands lying on the south east side of said Falls, opposite to part of the land sold to Lyon.
The grantees under the said deeds acquired a right to the accretion by alluvion, or the recession of the water from the banks or shores of Jones's Falls, within the limits of their respective deeds, ad medium filum aquae, as incident or appurtenant to those parts of the land binding on Jones's Falls, according to the principles of the common law, common right, and common justice.
As the water receded from the land, or the land was increased or added to by alluvion, the lines of the land granted to Lyon and Lawson, binding on Jones's Falls, would attach to and bind with the water until the accretion got  [**10]  ad medium filum aquae.
As to the right to accretion by the recession of the water from the banks, or by alluvion, it makes no difference whether the water is navigable or not, the owner of the land adjoining or contiguous to the water will be entitled to the benefit of accretion, as incident or appertaining to his grant, because his lines binding on Jones's Falls being the boundaries of his land, will run with and bind on the water, and so include the land made by accretion.
It is stated as part of the case, that the stream of Jones's Falls was diverted by cutting a channel with the consent of the owners of the land on Jones's Falls, in the year 1786, through which canal the waters have since flowed.
It is also stated, that until the year 1786 the common tides flowed up Jones's Falls to C D, marked on the plot, and that until 1786 boats frequently and regularly ascended Jones's Falls to C D, but never went up higher.
It is also stated, that after the making of said canal the old bed of the stream, between the points where it was intersected by the canal, was gradually filled up by the washing of the adjacent lands, by the persons under whom the defendant [**11]  claims, and by the improvements made in the neighborhood, and that the bed of the river hath wholly disappeared.
The question is now to be considered--Whether the lessors of the plaintiff, claiming under Alexander Lawson, are  [*201]  entitled to the land to the middle bed of Jones's Falls, from the lines of the land conveyed to Alexander Lawson binding on the Falls, or what part thereof?
I lay it down as a position indisputable, that Charles Carroll, by his two deeds to William Lyon and Alexander Lawson, transferred to them all his right and interest in the lands in controversy, with all the privileges and benefits appertaining to the same, and consequently nothing passed by his last deed under which the defendant claims.
The diverting the water by the canal cut in 1786, with the consent and approbation of the owners of the land on Jones's Falls, could not diminish the interest which accrued to Alexander Lawson under his deed from Charles Carroll, nor could he be thereby deprived or divested of any right or privilege derived under it.
The gradual filling up of the Falls by the washings from the adjacent lands, would benefit Lawson [**12]  by adding to his land binding on his side of the Falls.
The rights of Lawson could not be divested by the acts of those under whom the defendant claims, in filling up the Falls, such acts would operate beneficially to Lawson, and would not be allowed to interfere with his rights by alluvion.
The filling up by the washings from the improvements in the neighborhood, would be for the benefit of those holding the lands to the Falls, and must have been gradual and imperceptible, which is the precise and proper definition of accretion by alluvion.
Although Jones's Falls was not navigable higher up than C D, after the year 1786, yet the stream remained, but was gradually filling up from the time the canal was cut, by the washings from the adjacent lands, the improvements made in the neighborhood, and the acts of those under whom the defendant claims; all which causes operated for the benefit of all those who held lands on the Falls higher up than the canal, and not for the exclusive benefit of the defendant, and those under whom he claims, who had only a common right, with the other owners on Jones's Falls, to the accretion made from their respective [**13]  shores.
It is not stated in the case what were the acts of the persons, under whom the defendant claims, which contributed to the filling up of the stream, nor the extent of those acts. The filling up of the stream must have been by the washings  [*202]  from the adjacent lands, and the improvements made in the neighborhood, in which the acts of those under whom the defendant claims might be included.
If the court was warranted in presuming that the acts of those under whom the defendant claims were the depositing of earth and filth on the shore of the Falls, within the limits of the deed to William Lyon, still they could not be entitled to accretion beyond the middle bed of the stream.
From the dates of the deeds to Lyon and Lawson, anno 1757, to the year 1786, the time of cutting the canal, Lyon and Lawson were entitled to the benefit of accretion by alluvion, a space of 29 years. The canal having been cut with the consent and approbation of all the owners of the lands on Jones's Falls, that act could not, and was not intended, to operate more to the advantage of one proprietor than another, and no right previously acquired could be divested by it.  [**14]  
I am of opinion, whether the accretion was by alluvion, the recession of the water from the shores, or the depositing of earth and rubbish in Jones's Falls, by the respective owners, or others, since the canal was cut, the legal effect is the same, and the plaintiff is entitled to recover ad medium filum aquae, or to the place where it has been ascertained on the plot to be. I do not think it is necessary to go into an inquiry into the rights of the King or the Proprietary. I have no doubt the King by the charter to the Proprietary, granted all the rights he enjoyed within the limits of the charter, subject to such savings and exceptions as are contained therein, and that the Proprietary had a right to grant the land, covered by a navigable river, without interfering with or affecting the public or common right of user for the purposes of navigation and fishing, and that the grantee, the courses of whose grant bound on the river, could claim the land, and would hold it, as the water receded from the land so granted, or the land was added to by alluvion, or depositing earth and rubbish on the shore, or in the water between the shore and the middle bed of the river, by a stranger.  [**15]  I am also of opinion, that the State of Maryland is invested with all the rights within the boundaries of the charter as the King of Great Britain ever did or could enjoy.
 [*203]  BUCHANAN, J. The first question arising from the facts in this case is, Whether the property in the soil covered by the waters of public or navigable rivers, was vested in the Lord Proprietary by the charter of Maryland?
It is very certain that by the common law the right was in the King of England; and it seems equally clear to me, that he had the capacity to dispose of it sub modo. Whatever doubts are entertained on the subject, they probably have arisen from inattention to the distinction between the power of granting an exclusive privilege, in violation or restraint of a common piscarial right, or other common right, as that of navigation, and the power of granting the soil aqua cooperta, subject to the common user. The subject has, de communi jure, an interest in a navigable stream, such as a right of fishing and of navigating, which cannot be abridged or restrained by any charter or grant of the soil or fishery since magna charta at least.
But the property in the [**16]  soil may be transferred by grant --Hargrave's Law Tracts, 17, 22, 36, 37--subject, however, to the jus publicum, which cannot be prejudiced by the jus privatum acquired under the grant. This distinction runs through all the books, and wherever grants have been held not to pass the soil, it was not because the King had not the capacity or right to grant it, but because there were not apt words in the grant to effect the purpose, as in the case of the Attorney General vs. Sir Edward Farmer, in the Exch. Ch. 5 Bac. Ab. tit. Prerogative, 495. 2 Mod. 106. Sir T. Raym. 241. And it was there admitted, that the King might grant a part of his seas by express name--so a grant of incrementa maritima, will not pass lands that often happen to be relict by the sea, because that is not so properly maritimum incrementum; and besides, the soil itself under the water is actually the King's, and cannot pass from him by such an uncertain grant as maritima incrementa, but it must pass a present interest--Harg. Law Tracts, 18. But in the same page it is said, that if the King will grant land adjacent to the sea, together with a thousand acres of land [**17]  covered by the waters of the sea, as usual of the same land, &c. adjacent, such a grant as may be penned will pass the soil itself, and if there shall be a recess of the sea leaving such a quantity of land, it will belong to the grantee. And it will be found, on examination, that the right of the King to grant  [*204]  the soil sub modo, has never been denied; the question, whether the soil passed or not, being always made to depend on the construction of the grant, arising from the particular expression used.
The 4th section of the charter to Lord Baltimore, has these words--"Also we do grant, and likewise confirm, unto the said Baron of Baltimore, his heirs and assigns, all islands and islets within the limits aforesaid, and all and singular the islands and islets from the eastern shore of the aforesaid region, towards the east, which have been, or shall be, found in the sea, situate within ten marine leagues from the said shore; with all and singular the ports, harbours, bays, rivers and straights, belonging to the region or islands aforesaid, and all and singular the soil, plains, woods, mountains, marshes, lakes, rivers, bays and straights, situate or being within [**18]  the metes, bounds, and limits aforesaid, with the fishing of every kind of fish," &c. with a saving in the 16th section to the King, and his successors, and to all the subjects of the Kingdoms of England and Ireland, of the liberty of fishing for sea fish, &c. The language of the 4th section of this instrument is too plain and explicit to admit of any doubt, and is strengthened, rather than weakened, by the saving in the 16th section, and clearly passed the property in the soil, covered by any of the waters within the limits of the charter, to the Lord Proprietary; who, thus become owner of the soil, subject to the common right of fishing and of navigation, had full power and authority to dispose of it. By his grant of the 1st of June 1700, of the tract of land called Todd's Range, which appears to have been a resurvey on Cole's Harbour, all the land covered by the water of Jones's Falls, which is included within the lines of the grant, passed to James Todd, the grantee, subject to the same public easements; there being no doubt, that where the lines of a grant include a stream, the soil covered with water makes a part of the grant, and passes with the rest,  [**19]  without being described as land aqua cooperta; and was held by Charles Carroll, charged with the same jus publicum. The question remaining to be examined is, whether William Lyon, and Alexander Lawson, under their several deeds from Charles Carroll, took ad filum medium aquae, or were respectively restricted to the margin of the river, leaving the title to the bed of the stream in Charles Carroll?  [*205]  For, with great deference for the opinion of the chief judge, it seems to me, that unless the right of property in the soil, to the middle of the stream, vested in them under and in virtue of their respective deeds, there is no other ground on which they, or those claiming under them, can be entitled to it; for if it did not pass from Charles Carroll, by his deed, the right of property still remained in him. And if an island had arisen in the river, it would have belonged to him; or if the bed of the river had been left bare, by a sudden recess of the water, as the jus publicum would thereby necessarily have been destroyed, the relicted land would have remained his, and would not have appertained to those who held the adjoining lands on [**20]  either side. And upon the same principle, eo instanti that the stream was diverted from its original course in the year 1786, by digging the canal, the soil of the uncovered bed, the right of property of which he had never parted from, would have been thrown upon him, unaffected by a public right, the usufruct having ceased, and no subsequent filling up, or other change in the surface of the locus in quo, by natural and artificial means, or either, could have the effect to deprive him of his right of property in the soil. I think, therefore, that the law in relation to the right of alluvion is not applicable to the facts in this case, and that Lyon and Lawson were either entitled to the relicted soil, when the water was first diverted, or not at all.
By the common law, the proprietors of estates bounded by rivers not navigable, or, as they are often called, private rivers, not only have the right of fishing, but the property in the soil itself, ad filum medium aquae; Harg. Law Tracts, 5. 5 Bac. Ab. tit. Prerogative, 494; because, as it is said, they are presumed to have been distributed out, and appropriated as other lands. And sometimes by prescription,  [**21]  it is the same as to public rivers, as in the case of the river Severn. This is a rule of property in England, and I hold it to be equally the law of this state.
It seems to be admitted, that as the lands conveyed by Carroll to William Lyon and Alexander Lawson, are described in the deeds as bounding upon Jones's Falls, if that had been a private river, they would have been entitled to hold to the middle of the stream; and, if I am right in supposing that the property in the soil was Carroll's, subject  [*206]  only to the common user, I cannot perceive why Jones's Falls, when the bed had become private property, should not be subject, sub modo, to the same rules (as to the right to the soil,) that prevail in relation to private rivers, which are private property. In many respects the same rules do prevail. If one has an estate, through which a private river runs, and an island should arise in the river, it will belong to him; so, if he has the property in the soil of a public river, and an island springs up, it will equally belong to him. Again, if in the case of a private river, the bed is left bare by a sudden recess of the water, [**22]  the relicted land remains the property of the former owner; and so, if one had the property in the soil of a public river, and the bed is left bare by a sudden recess of the water, the relicted land will remain his; because in each case the property in the soil is in him. And for the same reason all islands, relicted land, and other increase arising in navigable rivers, belong, in England, to the King, here to the State, where the property in the soil has not been appropriated; but where it has become private property, either by grant or prescription, the same rules do or should apply to it that govern other private property of the same nature. It is subject to the same law of descents, and liable to be transferred by the same mode and form of conveyance, and is subject to none of the rules applicable to lands not granted or distributed out. If therefore, where a man having an estate through which a private river runs, conveys away his land lying on one side of the stream, and describes it as bounding on the river, the purchaser will, by operation of law, hold to the middle, it would seem, by parity of reason, that if the same man, having an estate through which a public river [**23]  runs, the soil of the bed of which makes a part of his estate, as in the case of a private river, conveys away the land lying on one side, and makes the river the boundary, the purchaser would, by the same operation of law, be entitled to hold, in respect of the right of soil, to the middle of the stream. For why in one case more than the other, should the purchaser be restricted to the margin of the stream, the river acting equally as a boundary in both cases, &c. and the public easement being in no manner disturbed. In both cases the soil is the private property of the seller, and the same reason applies as well to one as the other, whether he acquired  [*207]  his title by grant, or holds it under the fiction that it was originally distributed out to him. And if in the latter case, the purchaser would not be entitled to hold in respect of the soil to the middle of the river, neither should he be in the former. But the cases put may be more nearly assimilated, by supposing that in the case of the private river, the exclusive right of fishing had been before granted to another, so that the seller would have nothing but the property in the soil in either, subject to an exclusive [**24]  right of fishing in the one case, in another, and to a common of fishery in the other case. On what principle it is, that the riparian proprietors are held to have the property in the soil, to the middle of a private river, is not material. Whether the law assigns it as a specific limitation to their respective ownerships, because that streams, being in their nature unstable, the limits of estates depending upon them would, if confined to the margins, be unsettled; or that the river acts as a boundary between them, and that, therefore, they are carried to the ideal line that is supposed equally to divide the stream. But admit the rule, and it applies with equal reason and policy to public or navigable rivers, the beds of which have been granted out and become private property. For it cannot be imagined, that the seller when he uses the same words of description, intends in the one case more than the other, to restrict the purchaser to the margin of the stream. All the lands in this state have not been distributed or granted out to the citizens as they are supposed to have been in England; but unnavigable rivers, and lands not patented, are as much the property of the state, as [**25]  public rivers in England are the property of the King. And if the state grants a tract of land, bounding on an unnavigable river, I hold the rule before alluded to, to apply, and that the grantee will be entitled to the soil to the middle of the stream. And applying the same rule to this case, I think that Alexander Lawson, under his deed from Charles Carroll, was entitled to hold to the middle of Jones's Falls, and agree with the chief judge that the appellant is entitled to recover the land which forms the subject of this suit.
JOHNSON and MARTIN, J. concurred in this opinion.  

DISSENTBY:
EARLE 

DISSENT:

EARLE, J. By the agreement of the parties, the statement of facts in this case has undergone a considerable alteration  [*208]  since it was argued. As it is now understood by me, there is no question of alluvion to be decided by this court, there having been a complete diversion of the waters of the Falls by the cutting of the canal in the year 1786, which laid the bed of the river as effectually bare as if its waters had been suddenly withdrawn by natural means. The point then is, to whom did the soil of the river belong at the time of the desertion of its waters; or [**26]  which is the same thing, did the soil of the river pass by the deed of 1787 from Carroll to Lyon, and from Carroll to Lawson, which it is admitted did not in express terms comprise it within their lines? The Falls is conceded to have been a navigable river, and the position is not now to be disputed, that it was granted by the Lord Proprietary to Todd, under whom Carroll claimed as a part of Todd's Range, subject nevertheless to a right common to all persons to navigate and fish its waters.
It may be considered a settled rule of the common law, that private rivers, wherein the tide does not ebb and flow, and which are not navigable, belong to the owners of the adjoining lands on each side, who, as a consequence of the ownership of the soil, have the exclusive right of fishing therein, ad filum medium aquae. This principle proceeds on the ground of a legal fiction, that all the property of the Kingdom was originally in the King as universal occupant, and that the soil of such rivers has been distributed out by him among his subjects. 5 Bac. Ab. 495. It is a principle based on the soundest policy. Its purpose is to assign a particular proprietor [**27]  to every thing capable of ownership, leaving as little as may be in common, to be the source of contention and strife. 2 Blk. Com. 261. It is the common law effect of a grant of land thus situated; that is to say, land adjoining to private rivers, from one individual to another, to carry with it this right of soil and fishing; and to its complete transfer, a particular description is not necessary, nor even the mention of the right. Like other common law rights, it is, however, liable to be controlled by special custom or grant. Harg. Law Tracts, s. 5. The soil of the bed of a private river may belong to one person, and the adjoining lands to another; and it is not perceived why they may not exist as separate rights at the same time in the same person; why the owner by special custom of the soil of a private river, may not become the owner of the  [*209]  adjacent lands, without his special right becoming extinct, and merging in the riparian right? The utmost diligence of research has not discovered to me a single case in which such separate rights have become thus united.
How far this common law doctrine in relation to private rivers, is applicable to unnavigable waters, [**28]  or fresh water streams, in this state, has never been decided by our courts of justice; yet I am not at all disposed at present to question its applicability. Certain it is, that neither in Great Britain nor here, can the principle be applied to arms of the sea, or navigable rivers, in which the tide flows and reflows, and in which a right exists of fishing and navigating common to all, so long as the King, or the public, have a property in those rivers. De communi jure, the right of navigable rivers, and arms of the sea, belongs to the King, and he hath the property in the soil thereof, having never distributed them out to his subjects, and his subjects can never have any claim thereon except by alluvion; and as to waters of this description in this state, the Lord Proprietary is to be considered, under the charter of Maryland, to have been in the place of the King. This right of property in navigable rivers, and arms of the sea, exists in the King, and existed here in the Lord Proprietary, without any reference to the ownership of the adjoining lands; and no person can doubt, that a grant by the one, or the other, of lands bordering on navigable rivers, would not have [**29]  had the effect to carry with it any part of the soil covered by its waters-- And the reason is plain; because the common law principle, of which I have been speaking, has no application to rivers that are navigable, and such as of common right, as easements, belong to all; and because such operation of the grant would have been in derogation of two known rules of the common law, which are, that the soil of a public or navigable river can never be presumed to be in a private person; and the King can never grant a part of his seas without positive and appropriate expressions to pass the right.
If the Lord Proprietary had then granted to Todd the tract called Todd's Range, describing a part of it to lay on the north side of the Falls, and part of it on the south side of that water, and binding the same on the margin on each side, the bed of the river would not have been conveyed to him by the grant, it not being a private river, and the rule  [*210]  of the common law, so often mentioned, not applying to the subject. Had this been the manner of the grant, the soil of the river would have been retained by the Proprietary, and in 1786, when it was forsaken by its waters, [**30]  the Falls would have been the property of the public. But the patent of Todd's Range was not so worded, and was made to include within its lines the bed of the river, as well as the land on its banks, and the grantee took the same in virtue of the concessions of the grant, and so holding the right, transmitted it to Carroll. What then was Carroll's rights in 1757, when he conveyed to Lyon and Lawson? For such as were then attached to the land conveyed, he transferred to them, and he could transfer none other. He occupied exactly the place of the Lord Proprietary, before he granted to Todd; and if the Proprietary would have retained the bed of the river by limiting the lines of the grant to run with its margin on each side, which I have before endeavoured to demonstrate, the deeds in question have precisely the same operation, and consequently the soil of the river was not passed away by Carroll in the year 1757. His right to the bed of this navigable river was derived to him by grant, and not being a right derived to him from his ownership of the adjoining lands, which is admitted, where it applies, to be a substantial rule of property, it could not [**31]  have been the common law effect of his deeds, to transfer the soil of the river covered with water, by conveying away the adjoining lands on each side of it. Having no riparian right to the bed of the river, he could not impliedly convey such to Lyon and Lawson, and in consequence the soil of the river appears to me to have been retained by him, and to have been as much his, as, if subsequently to the year 1757, he had obtained his first grant of it from the Proprietary. In my judgment Carroll had the same right, after the deeds of 1757, to the soil of the river, as he would have had to the middle tract of three adjoining tracts of land, after he had conveyed away the tract on each side of it, binding the lines of the conveyances on the middle tract. The argument urged by the appellant's counsel, that the soil of the river passed as an appurtenant to the lands conveyed by the deeds, has no weight with me. I cannot think, that the grant in fee of one soil, can carry with it, as a mere appurtenant, an estate of inheritance in another soil adjoining to it.
 [*211]  Such are the views I have taken of this subject, and so strongly am I impressed with the propriety of them,  [**32]  that I cannot concur in the opinion of the court pronounced in this case. It appears to me the appellant has no title to the land for which he has prosecuted this ejectment in the court below, and therefore I think that the judgment of the subordinate tribunal ought to be affirmed.
JUDGMENT REVERSED, &c.  

35 of 37 DOCUMENTS 

THE STATE vs. BUCHANAN, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 H. & J. 317; 1821 Md. LEXIS 20 

December Term, 1821, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Harford county court. In this case an indictment was found in Baltimore city court against the defendants in error; and on their suggestion, supported by affidavits, that a fair and impartial trial could not be had, &c. the proceedings were removed to Harford county court for trial. The indictment is as follows, viz. "State of Maryland, city of Baltimore, to wit: The jurors for the state of Maryland for the body of the city of Baltimore, on their oath present, that by an act of congress of the United States, passed on the tenth day of April, in the year of our Lord one thousand eight hundred and sixteen, at the city of Washington, entitled, "An act to incorporate the subscribers to the Bank of the United States" a bank was established and chartered as a corporation and body politic, by the name and style of The President, Directors and Company, of the Bank of the United States, with authority, power and capacity, among other things, to have, purchase, receive, possess, enjoy and retain, to them and their successors, lands, rents, tenements, hereditaments, goods, chattels and effects, of whatsoever kind, nature and quality, to an amount not exceeding in the whole, fifty-five [**2]  millions of dollars, to deal and trade in bills of exchange, gold and silver bullion, and to take at the rate of six per centum per annum for or upon its loans or discounts, and to issue bills or notes signed by the president, and countersigned by the principal cashier or treasurer thereof, promising the payment of money to any person or persons, his, her, or their order, or to bearer. And that under and by virtue of the power and authority given to the said directors by the said act of congress, an office of discount and deposit of the said corporation was, at the time hereinafter mentioned, regularly and duly established in pursuance of the power contained in the said act, at the city of Baltimore, in the state of Maryland aforesaid, and that George Williams, late of the city of Baltimore, merchant, was at the time hereinafter mentioned, and before and afterwards, one of the directors of the said bank of the United States at Philadelphia, to wit, at the city of Baltimore aforesaid, and that James A. Buchanan, late of the city of Baltimore, merchant, was at the time hereinafter mentioned, and before and since, president of the said office of discount and deposit of the said Bank of [**3]  the United States in the city of Baltimore, and James W. M'Culloh, late of the city of Baltimore, gentleman, was at the time hereinafter mentioned, and before and afterwards, cashier of the said office of discount and deposit of the said Bank of the United States in the city of Baltimore, to wit, at the city of Baltimore aforesaid. And that the said George Williams, so being one of the directors of the said Bank of the United States, and the said James A. Buchanan, so being president of the said office of discount and deposit of the said bank in the city of Baltimore, and the said James W. M'Culloh, so being cashier of the said office of discount and deposit of the said bank in the city of Baltimore, being evil disposed and dishonest persons, and wickedly devising, contriving, and intending, falsely, unlawfully, fraudulently, craftily and unjustly, and by indirect means, to cheat and impoverish the said president, directors and company, of the Bank of the United States, and to defraud them of their monies, funds, and promissory notes for the payment of money, commonly called bank notes, and of their honest and fair gains to be derived under and pursuant to the said act of congress [**4]  from the use of their said monies, funds, and promissory notes for the payment of money, commonly called bank notes, on the eighth day of May, in the year of our Lord one thousand eight hundred and nineteen, at the city of Baltimore aforesaid, with force and arms, &c. did wickedly, falsely, fraudulently and unlawfully conspire, combine, confederate and agree together, by wrongful and indirect means, to cheat, defraud and impoverish, the said president, directors and company of the Bank of the United States, and by subtle, fraudulent, and indirect means, and divers artful, unlawful and dishonest devices and practices, to obtain and embezzle a large amount of money, and promissory notes for the payment of money, commonly called bank notes, to wit, of the amount and value of fifteen hundred thousand dollars current money of the United States, the same being then and there the property, and part of the proper funds of the said president, directors and company, of the Bank of the United States, from and out of the said office of discount and deposit of the said bank in the city of Baltimore, without the knowledge, privity or consent of the said president, directors and company, of the Bank [**5]  of the United States, and also without the privity, consent or knowledge of the directors of the said office of discount and deposit of the said bank in the city of Baltimore, for the purpose of having and enjoying the use thereof for a long space of time, to wit, for the space of two months, without paying any interest, discount or equivalent, for the use thereof, and without securing the repayment thereof to the said corporation. And the more effectually and securely to perpetrate and conceal the same, that the said James W. M'Culloh should, from time to time, falsely and fraudulently state, allege and represent, to the said directors of the said office of discount and deposit in the city of Baltimore, that such monies and promissory notes, so agreed to be obtained and embezzled as aforesaid, were loaned on good, sufficient and ample security, in capital stock of the said bank, pledged and deposited therefor; and also should from time to time make and fabricate false statements and vouchers respecting the same, and other property and funds of the said corporation, to be laid before and exhibited to the said directors of the said office of discount and deposit of the said bank in [**6]  the city of Baltimore. And that the said George Williams, James A. Buchanan, and James W. M'Culloh, being such officers of the said corporation as aforesaid, did then and there, in pursuance of and according to the said unlawful, false, and wicked conspiracy and confederacy, combination and agreement aforesaid, by indirect, subtle, wrongful, fraudulent and unlawful means, and by divers artful and dishonest devices and practices, and without the knowledge, privity or consent of the said president, directors and company, of the Bank of the United States, and without the privity, knowledge or consent of the directors of the said office of discount and deposit of the said bank in the city of Baltimore, obtain and embezzle a large amount of monies, and of promissory notes for the payment of money, commonly called bank notes, the same being the property and part of the proper funds of the said corporation, from and out of their said office of discount and deposit in the city of Baltimore, to wit, of the amount and value of fifteen hundred thousand dollars current money of the United States, for the purpose of having and enjoying the use thereof, and did have and enjoy the use thereof, for [**7]  a long space of time, to wit, for the space of two months, without paying any interest, discount or equivalent therefor, and without securing the repayment of the said monies, and the said promissory notes for the payment of money commonly called bank notes; and did then and there falsely, craftily, deceitfully, fraudulently, wrongfully and unlawfully, keep and convert the same to their own use and benefit, without the knowledge, privity or consent of the said corporation, and without the knowledge, privity or consent of the directors of the said office of discount and deposit in the city of Baltimore; and did then and there, the more effectually to perpetrate and conceal the said conspiracy, confederacy, fraud and embezzlement, cause and procure false and fraudulent representations, allegations, statements and vouchers, to be made and fabricated, and the same to be exhibited to and laid before the directors of the said office of discount and deposit in the city of Baltimore, by the said James W. M'Culloh, as cashier of the said office of discount and deposit, respecting the said monies, and the said promissory notes for the payment of money, so obtained and embezzled as aforesaid,  [**8]  in which said representations, allegations, statements and vouchers, it was then and there falsely and fraudulently represented, alleged and exhibited, that the said monies, and promissory notes for the payment of money, were loaned on good, sufficient, and ample security, in capital stock of the said bank, pledged and deposited therefor, when in truth and in fact no capital stock of the said bank, and no other security, was pledged or deposited therefor, as the said George Williams, James A. Buchanan, and James W. M'Culloh, then and there well knew. And that the said false, wicked, unlawful, and fraudulent conspiracy, confederacy and agreement, above mentioned, and the said false, wicked, unlawful, and fraudulent acts, done in pursuance thereof above set forth, were then and there made, done and perpetrated, by the said George Williams, James A. Buchanan, and James W. M'Culloh, in abuse and violation of their duty, and the trust reposed in them, and the oaths taken and lawfully sworn by them respectively as such officers of the said corporation as aforesaid. And that the said George Williams, James A. Buchanan, and James W. M'Culloh, did then and there thereby falsely, wickedly, fraudulently,  [**9]  wrongfully and unlawfully, impoverish, cheat and defraud, the said president, directors and company, of the Bank of the United States, to the great damage of the said president, directors and company, to the evil example of all others in like manner offending, and against the peace, government and dignity of the state of Maryland, &c.

And the jurors aforesaid, on their oath aforesaid, do further present, that the said George Williams, so being one of the directors of the said Bank of the United States at Philadelphia, to wit, at Baltimore aforesaid, and the said James A. Buchanan, so being president of the said office of discount and deposit of the said bank in the city of Baltimore, and the said James W. M'Culloh, so being cashier of the said office of discount and deposit of the said bank in the city of Baltimore, being evil disposed and dishonest persons, and wickedly devising, and contriving, and intending, falsely, unlawfully, fraudulently, craftily and unjustly, and by indirect means, to cheat and impoverish the said president, directors and company of the Bank of the United States, and to defraud them of their monies, funds, and promissory notes for the payment of money [**10]  commonly called bank notes, and of their honest and fair gains to be derived under and pursuant to the said act of congress, from the use of their said monies, funds, and promissory notes for the payment of money, commonly called bank notes, afterwards, to wit, on the eighth day of May, in the year of our Lord one thousand eight hundred and nineteen, at the city of Baltimore aforesaid, with force and arms, &c. did wickedly, falsely, fraudulently, and unlawfully conspire, combine, confederate and agree together, by wrongful and indirect means, to cheat, defraud and impoverish, the said president, directors and company of the Bank of the United States, and by subtle, fraudulent, and indirect means, and divers artful, unlawful, and dishonest devices and practices, to obtain and embezzle a large amount of money, and of promissory notes for the payment of money, commonly called bank notes, to wit, of the amount and value of fifteen hundred thousand dollars current money of the United States, the same being then and there the property and part of the proper funds of the said president, directors and company, of the Bank of the United States, of and out of the said office of discount and [**11]  deposit of the said bank in the city of Baltimore, without the knowledge, privity or consent, of the said president, directors and company of the Bank of the United States, and also without the privity, consent or knowledge, of the directors of the said office of discount and deposit of the said bank in the city of Baltimore, for the purpose of having and enjoying the use thereof for a long space of time, to wit, for the space of two months, without paying any interest, discount or equivalent for the use thereof, and without securing the repayment thereof to the said corporation. And that the said false, wicked, unlawful, and fraudulent conspiracy, confederacy and agreement, above mentioned, were then and there made, done and perpetrated, by the said George Williams, James A. Buchanan, and James W. M'Culloh, in abuse and violation of their duty, and the trust reposed in them, and the oaths taken and lawfully sworn by them respectively as such officers of the said corporation as aforesaid, to the great damage of the said president, directors and company, to the evil example of all others in like manner offending, and against the peace, government and dignity, of the state of Maryland,  [**12]  &c.

Luther Martin, Attorney General of Maryland, and District Attorney of Baltimore City Court.

To which indictment there was the following special demurrer, viz. "And the said James A. Buchanan, James W. M'Culloh, and George Williams, protesting, not confessing the truth of the matters and things in said indictment contained, come and defend the force, &c. when, &c. and say that the said indictment, in manner and form aforesaid above made, and the matter therein contained, are not sufficient in law for the said state to have and maintain its said prosecution against them, to which said indictment they have no need, nor are obliged by the law of the land to answer; and this they are ready to verify: Wherefore, for want of a sufficient indictment in this behalf, the said James A. Buchanan, James W. M'Culloh, and George Williams, pray judgment, if the said state ought to have or maintain its said prosecution against them. And for causes of demurrer in law in this behalf, the said James A. Buchanan, James W. M'Culloh, and George Williams, according to the form of the statute in such cases lately made and provided, shew to the court here these causes following; that is to say,  [**13]  for this, that the matters and things charged in said indictment, in manner and form as therein charged, do not import or contain any charge of crime in law; and also that said indictment is vague, contradictory, inconsistent, and wholly insufficient in law; and also that the matters and things in said indictment contained, in manner and form as therein charged, are not cognizable by nor within the jurisdiction of this court, but are exclusively cognizable under the authority of the United States." The District Attorney, on the part of the state, joined in demurrer.

The County Court, [Hanson and Ward, A. J. a. ] ruled the demurrer good, and discharged the defendants. The present writ of error was brought on the part of the state.

a Dorsey Ch. J. dissented. The opinion of the court, and of the chief judge, are published at length in a book called "A Report of the Conspiracy Cases." 

DISPOSITION:
REVERSED.  

HEADNOTES:

A writ of error lies at the instance of the state in a criminal prosecution.

A transcript of the record, certified under the hand of the clerk and seal of the court, with the writ of error annexed, is a legal and sufficient return to such writ of error.

The offence of conspiracy is of common law origin, and not restricted or abridged by the statute 33 Edward I.

A conspiracy to do any act that is criminal per se, is an indictable offence at common law.

An indictment will lie at common law, 1. For a conspiracy to do an act not illegal, nor punishable if done by an individual, but immoral only. 2. For a conspiracy to do an act neither illegal nor immoral in an individual, but to effect a purpose which has a tendency to prejudice the public. 3. For a conspiracy to extort money from another, or to injure his reputation by means not indictable if practised by an individual, as by verbal defamation, and that whether it be to charge him with an indictable offence or not. 4. For a conspiracy to cheat and defraud a third person, accomplished by means of an act which would not in law amount to an indictable cheat, if effected by an individual. 5. For a malicious conspiracy to impoverish or rain a third person in his trade or profession. 6. For a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person he thereby injured. 7. For a bare conspiracy to cheat or defraud a third person, though the means of effecting it should not be determined on at the time. 8. A conspiracy is a substantive offence, and punishable at common law, though nothing be done in execution of it.

In a prosecution for a conspiracy, it is sufficient to state in the indictment, the conspiracy and the object of it; and the means by which it was intended to be accomplished need not be set out.

Every conspiracy to do an unlawful act, or to do a lawful act for an illegal, fraudulent, malicious, or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general, is at common law an indictable offence, though nothing be done in execution of it, and no matter by what means the conspiracy was intended to be effected; which may be perfectly indifferent, and makes no ingredient of the crime, and therefore need not be stated in the indictment.

Our ancestors brought with them the laws of the mother country, so far at least as they were applicable to their situation, and the condition of an infant colony. They were in the predicament of a people discovering and planting an uninhabited country. And if they brought with them the common law of conspiracy, they brought it as it is now settled and known in England. It is to judicial decisions that we are to look for the evidences of the common law.

The third section of the Bill of Rights has reference to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at that time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions; and it cannot be inconsistent with, or repugnant to the spirit and principles of our institution, to correct the morals and protect the reputation, rights and property of individuals, by punishing corrupt combinations falsely to rob another of his reputation, maliciously to rain him in his business, or fraudulently to cheat him of his property.

An indictment having two counts, the first charging the defendants with an executed conspiracy, falsely, fraudulently and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish the President, Directors and Company of the Bank of the United States; and the second charging them with a conspiracy only, falsely, fraudulently and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish the President. Directors and Company of the Bank of the United States; --where one of the defendants was the president of the office of discount and deposit of the mother bank, another the cashier of that office, and the other a director of the mother bank--Held, that the matter charged in each count in the indictment constitutes a punishable conspiracy at common law, and that that portion of the common law is in force in this state.

Under the constitution of the United States the courts of this state have jurisdiction of the offence charged in the above indictment.

On the reversal of a judgment rendered in favour of the traversers in a criminal prosecution, a procedendo was awarded directing a new trial.  

COUNSEL:
Murray, (District Attorney of the sixth judicial district by substitution of Williams, the assistant Attorney General, with the approbation of the court,) assisted by Wirt, (Attorney General of U. S.) Harper and Mitchell, on the part of the state, stated, that the questions [**14]  which would be presented to the consideration of the court were--

1. Whether a writ of error would lie at the instance of the state, in a criminal prosecution?

2. And if the writ of error has been properly sued out, whether the record returned in pursuance of the writ of error has been legally certified?

3. Whether the facts charged in the indictment amount to a criminal offence?

4. And if so, whether this case is cognizable in the courts of this state?

On the first point, they contended, that a writ of error would lie at the instance of the state in a criminal prosecution, and they referred to The King vs. Murquis of Winchester, Sir Wm. Jones, 407. Cro. Car. 504, S. C. 2 Bac. Ab. tit. Error, 453. 5 Vin. Ab. tit. Error, 479. Cooke vs. Lainday, Cro. Jac. 210. The State vs. Messersmith & Askew. The State vs. Forney. The State vs. Brown; and The State vs. Durham; all in the general court, and reversed at May Term, 1793. The State vs. Spence at June Term, 1817. 1 Chitty's C. L. 664, 747, (514,) 752. Wilks's Case, 4 Burr. 2250. 4 Blk. Com. 393, 398, 399. 2 Hale's P. C. 210, 247, 248, 393. 2 Com. Dig. tit. Certiorari, (A 1) 188. The King vs. Hedgecock in Provincial [**15]  Court in 1701. Jac. L. D. tit. Certiorari, 412. Fitz. N. B. 557, (H.) 1 Vern. 170, 175.

On the second point, they contended, that under the law, and the usage and practice of our courts, the record had been formally and legally certified. They referred to Burke vs. The State, in this court at June term, 1809. 2 Harr. Ent. 58, 226, 240, 221, 227, 263. 1 Chitty's C. L. 662, 749. 2 Tidd's Pr. 1088, 1089, 1090. Jacob's L. D. tit. Certificate. Ibid, tit. Clerk. The act of 1713, ch. 4, s. 4, 5. The State vs. Messersmith, and others, before referred to. Cumming vs. The State, 1 Harr. & Johns. 340. Martin vs. The State, Ibid 721. Wood vs. Lide, 4 Cranch, 180.

On the third point--Whether the matters charged in the indictment amounted to an offence which could be prosecuted as a crime? they contended, that conspiracy was an offence at common law; that the statute de conspiratoribus, passed in the 33d year of the reign of Edward I. did not introduce a new rule, but was merely in affirmance of the common law; that the gravamen of the offence consisted in the unlawful combination or confederacy to injure a third person, and not in the actual execution of that unlawful or wrongful purpose.  [**16]  In support of their argument they cited 1 Hawk. P. C. ch. 72, s. 2, p. 189. 3 Chitty's C. L. 1139. Staunf. P. C. 173, 174. 1 Burn's Just. 389. 2 Jacob's L. D. tit. Conspiracy, 30. Termes de Ley, tit. Covin. Plow. 46, 54. Co. Litt. 357. The King vs. Edwards and others, 8 Mod. 320. 1 Stra. 707, S. C. cited in 1 East's C. L. 462. 4 Blk. Com. 137, (Christian's Note.) 3 Wils. Lect. 118. 2 Recves Hist. C. L. 239, 240, 275, 357. 3 Reeves, 122. Cowel's Inst. 215, 282. 1 Inst. 143. 2 Inst. 283, 383, 384, 561, 562. Smith Crashaw, Sir W. Jones, 93. 3 Inst. 143. Book of Assizes, 138, pl. 44, art. 5, 6, 19; 102, pl. 77; 131, pl. 62; 134, pl. 12; 137, pl. 33, 34; 141, pl. 59; 144, pl. 72, 73, 74; 146, pl. 12; 166, pl. 43, 49; 177, pl. 21; 238, pl. 12, 19. Britton, tit. Larcen, 24. Fitz. N. B. 114, 134, 135, 216. 2 Coke Litt. 264, 265. Latch, 202. 2 Roll. Ab. 77, 78. Rex vs. Breerton & Townsend, Noy's Rep. 103, cited in 2 East's C. L. 823. Lord Gray's Case, Moore 788. Scrog's vs. Peck & Gray, Ibid 562. The Poulterer's Case, Ibid 814. 9 Coke, 56, S. C. 1 Hawk. P. C. 348, 349. Timberly & Childe, 1 Siderfin, 68. 1 Lev 62, S. C. Childe vs. North & Timberly, 1 Keble, 203. The King vs. Timberly, Ibid 254,  [**17]  675. The King vs. Skirrett and others, 1 Siderfin, 312, cited in 2 East's C. L. 823. The King vs. Armstrong and others, 1 Vent. 304. The King vs. Parris and others, 1 Sid. 431. 1 Vent. 49, S. C. cited in 2 East's C. L. 823. The Queen vs. Best and others, 6 Mod. 185. 1 Salk. 174, S. C. 2 Ld. Raym. 1167, S. C. Holt, 151, S. C. The King vs. Commings and others, 5 Mod. 180. The Queen vs. Orbell, 6 Mod. 42, cited in 2 East's C. L. 823. The Queen vs. Macarty and others, 6 Mod. 302. 2 Ld. Raym. 1179, S. C. 3 Ld. Raym. 487, S. C. cited in 2 East's C. L. 823. The Queen vs. Daniel, 6 Mod. 99. 2 Ld. Raym. 1116, S. C. The Queen vs. Glanvil, Holt Rep. 354. The Queen vs. Parry and others, 2 Ld. Raym. 865. The King vs. Venables, 8 Mod. 378. The King vs. O'Brian, 13 Vin. Ab. 460, cited in 2 East's C. L. 825. The King vs. Grimes & Thompson, 3 Mod. 220. The King vs. The Journeyman Tailors, 8 & 9 Mod. 11. The King vs. Starling, (The Tubwomen's case,) 1 Sid. 174. 1 Lev. 125, S. C. 1 Keble, 650, 655, 672, 682, S. C. Seele's and others case, Cro. Car. 557. The Queen vs. Blacket & Robinson, 7 Mod. 39. The King vs. Rispal, 3 Burr. 1320. 1 W. Blk. Rep. 368, S. C. The King vs. Parsons, 1 W. Blk. Rep. 392. The [**18]  King vs. Benfield & Saunders, 2 Burr. 980. The King vs. March, Ibid 999. The King vs. Spragge and others, Ibid 993. The King vs. Wheatly, Ibid 1127. 1 W. Blk. Rep. 275, S. C. The Queen vs. Bryan, 2 Stra. 866, cited in 2 East's C. L. 825. The King vs. Govers, Sayer's Rep. 206. The King vs. Cope and others, 1 Stra. 144. The King vs. Kinnersley & Moore, Ibid 193. The King vs. Ward, 2 Stra. 747, cited in 2 East's C. L. 825. The King vs. Lord Grey and others, 3 State Trials, 519, cited in 1 East's C. L. 460. The King vs. Delaval, 3 Burr. 1434, 1439. 1 W. Blk. Rep 410, 439, S. C. The King vs. Bower, Cowp. 323. The King vs. Croke, Ibid 28. The King vs. Robinson & Taylor, 1 Leach, C. L. 38, 44. 2 East's C. L. 1010. Waites's case, 1 Leach, 33. 2 East's C. L. 570. Bazeley's case, 2 Leach, 973. 2 East's C. L. 571. Eccles case, 1 Leach, 276. Macklin's case, 2 Chitty, C. L. 495. Hevey's case, 2 East's C L. 856, 1010. 1 Leach, 268. 2 Leach, 790. 2 East's C. L. 823, 832, 837, 853, 862, 863, 973, 1004. Vertue vs. Ld. Clive, 4 Burr. 2472. The King vs. Wilkes, Ibid 2549. The King vs. Mason, 2 T. R. 581. The King vs. Mawbey and others, 6 T. R. 628, 636. The King vs. Lara. Ibid 565. Clifford vs. Brandon,  [**19]  2 Campb. 358, 372, (note.) The King vs. Philips, 6 East's Rep. 466. The King vs. De Berenger, 3 Maule & Selw. 68. The King vs. Gill & Henry, 2 Barnw. & Alder. 204. The King vs. Turner and others, 13 East's Rep. 228. Tomlin's case, Godbolt, 444. Nelson's Just. 171. Rex vs. Turner and others, 1 Tremaine, 83. Rex vs. Crisp and others, Ibid 84. Rex vs. Record and others, Ibid 86. Rex vs. Wilcox, Ibid 91. Rex vs. Taydler and others, Ibid 96. Rex vs. Alebone and others, Ibid 97. Rex vs. Montague, Ibid 209. 4 Went. Plead. 79 to 113. Crown C. C. tit. Deceit. Ibid. tit. Conspiracy. 3 Chitty's C. L. 1145, to 1193. The Commonwealth vs. Ward and others, 1 Mass. Rep. 473. The same vs. Judd and others, 2 Mass. Rep. 329. The same vs. Tibbert sr. & jr. Ibid 536. The Journeymen Cordwainer's cases in New-York, Philadelphia & Baltimore. They also contended that our ancestors, when they settled the colony, brought the common law with them as part of their birth right, and that the law of conspiracy, being a part of the common law, was in as fall force here as in England, and that the decisions of the English courts since, as well as before the revolution, were evidence of what the law of conspiracy is [**20]  in this state--and that, according to those decisions, there could be no doubt but that all confederacies and agreements to injure third persons in their persons, their property, or their character, were indictable conspiracies in this state. They referred to Calvin's case, 7 Coke 1. 1 Blk. Com. 107. Griffith vs. Griffith, 4 Harr. & M Hen. 101. Coomes vs. Clements, in this court June term, 1819. 5 Com. Dig. tit. Navigation, (G 1.) 4 Com. Dig. tit. Lais. Blanket vs. Gordon, 2 P. Wms. 74, 75. Jackson vs. Gilchrist, 15 Johns. Rep. 103, 140. Sir John Randolph's opinion in Smith's Hist. N. Y. Charter of Maryland, sect. 10. 5 Jacob's L. D. tit. Plantation. The act of 1649, ch. 4. Decl. of Rights, sect. 3.

On the fourth point, whether this case was cognizable by the courts of this state? they cited The Const. U. S. art. 3, s. 2. Amend. 9, 10. The Federalist, 2 vol. 227, 230, 234. Ibid 3 vol. 264. 5 vol. L. U.S. 262, 263. The United States vs. Worrell, 2 Dall. Rep. 394. The Commonwealth vs. Shaver, 4 Dall. Rep. 28. The United States vs. Hudson & Goodwin, 7 Cranch, 32. The United States vs. Cooledge, 1 Wheat. 415. Martin vs. Hunter's Lessee, Ibid 323. Sturgis vs. Crowingshield, 4 Wheat.  [**21]  122, 193, 195, 196, 199. M'Culloh vs. Maryland, Ibid 410. Livingston vs. Van Ingen, 9 Johns. Rep. 574. Houston vs. Moore, 5 Wheat. 33, 34, 49. Cohens vs. Virginia, 6 Wheat. 399.

Pinkney, Winder and Raymond, for the defendants in error, contended, 1. That the state could not have a writ of error in a criminal case; that no authority for such a proceeding had been or could be shown. 2. That if the state could bring a writ of error in a criminal case, the record returned with the writ had not been certified in the manner directed by law for certifying a record in a criminal case. 3. That if the writ of error was rightfully brought, and the record legally certified, still there was no error in the judgment of the court below. (Authorities supra.) That the statute 33 Edw. I, was the origin of the law of conspiracy, and that statute did not include conspiracies to cheat. That cheating itself, with one or two exceptions, such as cheating with false weights, false measures, false dice, &c. was not an offence punishable at common law; and it would therefore be an absurdity to punish an agreement to cheat. Wail's & Bazeley's cases, 2 East's C. L. 571, 573. Lara's case, 6 T. R. 565. Wheatley's [**22]  case 2 Burr. 1127. That if cheating was no offence, surely an agreement to cheat could be no offence. That the authorities relied on by the counsel for the state were most of them cases of conspiracy to do acts which were indictable. That the few cases of a different character were of doubtful authority, and ought not to be held sufficient to establish an absurd principle of law. They also contended, that if our ancestors brought with them the common law of England, or any part of it, it was that common law which had been established by judicial precedents at the time of their emigration, and not that which had since been expanded in England by judicial decisions. That a conspiracy must be to do some act in itself indictable. 3 Inst. 143. 9 Coke, 56. 4 Blk. Com. 137. The King vs. Edwards and others, 1 Stra. 707. The King vs. Turner and others, 13 East's Rep. 238. 4. That admitting a naked agreement to be an indictable offence in this state, still it must be an agreement to cheat some person or being, known to the laws of the state; but that the Bank of the United States was a being created by a foreign government, and was wholly unknown to the laws of this state. That an agreement [**23]  to cheat the Bank of the United States could no more be an offence against the laws of this state, than an agreement to cheat the Bank of England would be. That if the matters therefore charged in the indictment be an offence punishable as a crime, the courts of this state have no jurisdiction in this case--the same, if at all, being cognizable in the courts of the United States. They referred to the Const. of U. S. art. 3, s. 1, 2. The act of congress, 1789, ch. 20, s. 9, 11. Martin vs. Hunter's Lessee, 1 Wheat. 304, 323, 352. Robinson vs. Campbell, 3 Wheat. 212, 221. Houston vs. Moore, 5 Wheat. 1, 22, 24, 68, 72, 74.  

JUDGES:
The case was argued in this court before CHASE, Ch. J. BUCHANAN, EARLE, and MARTIN, J.  

OPINIONBY:
BUCHANAN; CHASE 

OPINION:

 [*329]  BUCHANAN, J. delivered the opinion of the court. This case was brought up by a writ of error directed to the judges of Harford county court; and it has been strongly urged, that a writ of error will not lie at the instance of the state, in a criminal prosecution, and therefore that the writ in this case was improvidently sued out, and ought to be quashed. But it is said in 2 Hale's P. C. 247, the authority of which it is difficult to [**24]  question, and indeed we require none higher, "that if A be indicted of murder, or other felony, and plead non cul, and a special verdict found, and the court do erroneously adjudge it to be no felony; yet so long as that judgment stands unreversed by writ of error, if the prisoner be indicted de novo, he may plead auterfoits acquit, and shall be discharged; but if the judgment be reversed, the party may be indicted de novo." And this is not a loose dictum, but it is laid down and repeated as text law; for in page 248 it is stated, that "in the case of the special verdict above, where an erroneous judgment of acquittal is given, yet it is conclusive to the King till it be reversed by error." So in page 394, speaking of the ancient form of a judgment of acquittal, he says "and if the entry were such, I do not think the prisoner could ever be arraigned again, notwithstanding the insufficiency of the indictment, till that judgment of acquittal were reversed." And again in page 395 of the same book, "and if in Vaux's case the judgment had been so entered (that is, quod eat inde quietus,) he could never again have been indicted for the same offence, notwithstanding [**25]  the defect of the indictment, till that judgment reversed by writ of error." Hence it is manifest that, in the opinion of Lord Hale, the King might have a writ of error in a criminal case; since it would be absurd to say that a man who had obtained a judgment of acquittal for a defect in the indictment, or on a special verdict, could never again be indicted for the same offence,  [*330]  until that judgment was reversed by writ of error, if a writ of error would not lie. Fortified by such authority alone, in the absence of any legislative provision in this state on the subject, we think we might safely say, without further inquiry, that the writ of error in this case was properly sued out. But instances are not wanting of writs of error being prosecuted by this state, in criminal cases; as in The State vs. Messersmith & Askew, The State vs. Forney, The State vs. Brown, and The State vs. Durham, in the court of oyer and terminer &c. for Baltimore county. In each of those cases there was a demurrer to the indictment, and judgment on the demurrer for the defendant, in the court below. They were all taken to the late general court on writs of error by the state, Luther  [**26]   Martin, attorney general; and in each case the judgment was reversed. And there is no sufficient reason why the state should not be entitled to a writ of error in a criminal case. It is perhaps a right that should be seldom exercised, and never for the purpose of oppression, or without necessity; which can rarely, and it is supposed would never happen, and would not be tolerated by public feeling. But as the state has no interest in the punishment of an offender, except for the purpose of general justice connected with the public welfare, no such abuse is to be apprehended; and as the power of revision is calculated to produce a uniformity of decision, it is right and proper that the writ should lie for the state, in the same proportion as it is essential to the due administration of justice, that the criminal law of the land should be certain and known, as well for the government of courts and information to the people, as for a guide to juries; who though (by the laws and practice of the state) they have a right to judge both of the law and of the fact, in criminal prosecutions, should, and usually do, respect the opinions and advice of judges, on questions of law, and would seldom [**27]  be found to put themselves in opposition to the decisions of the supreme judicial tribunal of the state.
It has also been contended, that the return of the writ of error in this case, supposing the writ to have been properly sued out, is defective in this, that it is not under the hand and seal of the chief judge, but that there is only a transcript of the record sent up, under the hand of the clerk and the seal of the court, with the writ of error annexed.  [*331]  But there is nothing in the objection. By the fifth section of the act of 1713, ch. 4, "for regulating writs of error, and granting appeals from and to the courts of common law within this province," it is enacted, "that the method and rule of the prosecution of appeals and writs of error, shall for the future be in manner and form as is hereinafter mentioned and expressed; that is to say, the party appealing or suing out such writ of error as aforesaid, shall procure a transcript of the full proceedings of the said court, from which such appeals shall be made, or against whose judgment the writ of error shall be brought as aforesaid, under the hand of the clerk of the said court and seal thereof, and shall [**28]  cause the same to be transmitted to the court before whom such appeal or writ of error is or ought to be heard, tried and determined," &c. The preamble sets out that "forasmuch as the liberty of appeals and writs of error, from the judgment of the provincial and county courts of this province, is found to be of great use and benefit to the good of the people thereof;" and the second section provides under what circumstances alone, an appeal or writ of error shall operate as a supersedeas. The act is silent on the subject of the return of the writ of error, and only directs that the transcript of the proceedings shall be under the hand of the clerk and seal of the court, without dispensing with the signature of the judge to the return of the writ; yet from that time to the present, the uniform practice under that act has been, for the clerk to send up the transcript of the proceedings under his hand only, and the seal of the court, together with the writ of error, as is done in this case, unaccompanied by the signature of the judge to the return of the writ. And if it should be admitted that it originated in error, it is now too late to shake a practice so long settled.  [**29]  It may perhaps be doubted whether that act of the general assembly ought not to be understood as being applicable to writs of error in civil causes only; and it has been urged, that no practice growing out of it in relation to such cases, can be brought in aid of a defective return in a criminal case. But whatever may have been the construction originally given to it in that particular, whether it was held to extend as well to criminal as to civil cases, or whether the returning of writs of error in the same manner in criminal as in civil cases, had its birth in the circumstance, that the mandate of the writ  [*332]  being the same in each, no good reason could be perceived why the manner of the return should be different; or from whatever other cause it may have arisen, the practice is found on examination to have been the same. That was the form of the return in the cases of The State vs. Messersmith & Askew,--The State vs. Forney,--The State vs. Brown,--and The State vs. Durham; the cases before alluded to for a different purpose. The same return was made in Burk's case, an indictment for a Rape, which was tried before me in Washington county court in the year [**30]  1809, and was brought up by writ of error to this court, by the present attorney general, (Luther Martin,) who defended him with great zeal and ability in the court below, and it is presumed looked well into the subject. And so in every criminal case removed by writ of error, that is to be found among the records of the late general court, of which there are many. The return therefore in this case has the sanction of the same authority on which a similar return in a civil case would rest--the authority of a settled practice for more than an hundred years, with which we are content without seeking to support it on any other; nor is it pretended that such a return would be insufficient in a civil case; and there is no sensible difference between a criminal and a civil case in that respect, or any sound reason why the return should not be the same in one as in the other. But there is no uniform rule for the return of writs of error; and if the object of the writ, which is that a true and perfect transcript of the proceedings shall be brought up, is substantially gratified, it is all that courts do or need look to. If a writ of error be brought in parliament on a judgment in the court [**31]  of King's Bench, the chief justice goes in person to the House of Lords, with the record itself, and a transcript, which is examined and left there, and then the record is brought back again into the King's Bench. 2 Tidd's Practice, 1092. In the court of common pleas the practice is different. There on a writ of error returnable in the King's Bench, it is usual for the chief justice to sign the return. Ibid, (note.) But that is not absolutely necessary, for the court of King's Bench will not stay the proceedings for want of his signature; and tho' the writ of error requires the record to be sent sub sigillo, yet this is never practised. Blackwood vs. The South Sea Company, 2 Strange 1063. And if the seal can be  [*333]  dispensed with, why may not the signature also? Since the omission of either, is equally a departure from the mandate of the writ, and both are dispensed with in the case of a writ of error returnable from the King's Bench to the House of Lords. Besides, in England, a writ of error must be directed to him, who has the custody of the record wherein any judgment is given; and for that reason it is, that a writ of error brought on [**32]  a judgment in the court of common pleas, for instance, is always directed to the chief justice of that court, who has the custody of the record. But in this state, tho' the form of the writ as used in England, and introduced here at a very early period, is still retained, yet the clerk of the court in which the judgment is rendered, has a much greater control over the record than in England, and hence probably arose the practice, that appears to have prevailed here at least from the year 1718, for the clerk to send up a full transcript of the proceedings under his hand only, and the seal of the court, with the writ of error annexed, which sufficiently gratifies the object of the writ; as much so as the practice in the Court of King's Bench on a writ of error brought in parliament; and affords as much certainty of a full and perfect transcript of the proceedings, as a return of the writ under the signature of the chief justice--the course usually pursued in the Court of Common Pleas, in relation to writs of error returnable in the King's Bench.
These preliminary questions being thus disposed of, the next presented for consideration, is whether the facts stated in the [**33]  indictment, amount to an offence punishable by the laws of Maryland. This is denied on the part of the defendants in error, and much reliance is placed on the statute 33 Edward I. de conspiratoribus, on the supposition that the offence of conspiracy, was originally created by that statute; or if it was a common law offence, that the statute either contained a definition of all the conspiracies that were before indictable at common law, or annulled the common law, and rendered dispunishable all conspiracies but such as it defines. And if either position be correct there is an end to this prosecution, since the matter charged in the indictment is clearly not embraced by the statute; and if it was, the statute being considered as not in force here, the case would not be helped; and there would be no law in this state, for the punishment of conspiracies  [*334]  of any description, there being no legislative provision on the subject. But neither branch of the proposition, will on examination be found to be true. The statute is in these words: "Conspirators be they that do confider or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear [**34]  the other falsely and maliciously to indite, or cause to indite, or falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees to maintain their malicious enterprises; and this extendeth as well to the takers, as to the givers. And stewards and bailiffs of great lords, which by their seignory, office, or power, undertake to bear or maintain quarrels, pleas, or debates, that concern other parties than such as touch the estate of their lords or themselves."
Without looking beyond the statute itself, there may be found sufficient evidence on the face of it, to show that conspiracies were known to the law before. "Conspirators be they," &c. Now why should they have been declared to be conspirators, who should confederate for any of the purposes mentioned in the statute, if they were not liable to be punishment for such combinations? And if they were, it was for the conspiracy that they were so liable to be punished; as without the offence of conspiracy, there could have been no punishable conspirators. The statute does not prohibit conspiracies [**35]  or combinations of any kind, it does not declare combinations or conspiracies of any description to be unlawful, nor does it impose a penalty, or inflict any punishment upon conspirators. And if combinations for any of the purposes mentioned in the statute, were punishable at all, it could only have been on the ground, that both the offence of conspiracy (eo nomine), and the punishment, were known to the law anterior to the enactment of the statute; and that the declaring those to be conspirators, who should be engaged in certain combinations, subjected them to the law of conspiracy as it then existed. And it has never been pretended, that the combinations enumerated in the statute were not indictable conspiracies. The statute, therefore, which had for its object the prevention of the combinations it enumerates, carries with it internal evidence, that conspiracy was an indictable offence before. But the question, whether conspiracies were indictable or not at common law, anterior to the statute 33 Edward I.  [*335]  does not depend alone upon the construction of that statute. In 3 Coke's Institutes 143, and 1 Hawk P.C. 193. ch. 72, sec. 9, it is [**36]  said, that the villenous judgment is given by the common law, and not by any statute, against those convicted of a conspiracy. Now this judgment, called the villenous judgment, which was known only to the common law, could never have been given, unless conspiracy was an offence punishable at common law. In the 20th year of the reign of Edward I, a civil remedy was provided against conspirators, &c. by the writ of conspiracy; and the statute 28 Edward I, ch. 10, entitled, "The remedy against conspirators, false informers and embracers of juries," makes this further provision: "In right of conspirators, false informers, and evil procurers of dozens, assises and juries, the king hath provided remedy for the plaintiffs by writ out of the chancery; notwithstanding, he willeth that his justices of the one bench and of the other, and justices assigned to take assises, when they come into the country to do their office, shall upon every plaint made unto them, award inquests thereupon without writ, and shall do right unto the plaintiffs without delay." It must be the provision in the 20th of Edward I, for the writ of conspiracy, to which the first clause of this statute has [**37]  reference, as there does not appear to be any other, and which according to 2 Institutes 562, was but in affirmance of the common law; and these provisions for private remedies against conspirators, clearly demonstrate the existence of the offence of conspiracy. It is equally clear, that the statute does not embrace all the ground covered by the common law. Who doubts, or was it ever questioned, that a conspiracy to commit any felony is an indictable offence; as to rob or murder, to commit a rape, burglary or arson, &c. or a misdemeanor, as to cheat by false public tokens, &c? Indeed this has been conceded throughout the whole of the argument in this case, and the ground mainly relied upon, on the part of the defendants in error is, that the object of the conspiracy charged in the indictment, is not of itself an indictable offence. Yet such cases of conspiracy are not made punishable by any statute, and are only indictable at common law; which could not be, if the statute 33 Edward I, either furnished a definition of all the conspiracies indictable at common law, or restricted and abridged the latter, by rendering dispunishable, all  [*336]  such as it does not define. This [**38]  statute is not prohibitory, nor is the existence of other punishable conspiracies, than those which it enumerates, at all repugnant to, or inconsistent with any of its provisions; and according to any known rule of construction, the common law of conspiracy such as it was before, may well stand together with the statute; for surely the merely declaring one act to be an offence, which act as well as others, was so before in contemplation of law, cannot render those others dispunishable: nor will one act, which in law amounts to a particular offence, cease to be so, because another act is merely declared by statute (without any negative words) to amount to the same offence. The statute, therefore, must be considered either as declaratory of the common law only, so far as it goes, for the purpose of removing doubts and difficulties which may have existed in relation to the conspiracies it enumerates, by giving to them a particular and definite description; or as superadding them to other classes of conspiracy already known to the law, leaving the common law, in possession of all the ground it occupied beyond the provisions of the statute. And so it has been uniformly understood in  [**39]  England, from the earliest down to the latest decision that is to be found on the subject; otherwise the judges could not have sustained a great proportion of the prosecutions for conspiracy, with which the books are crowded; in some of which, the objection, that the matter charged was not within the statute 33 Edward I, was made and overruled, as will be hereafter shown. In the Book of Assises, 27 Edward III, ch. 44, it is said, that "inquiry shall be made concerning conspirators and confederates, who bind themselves by oath, covenant or other agreement, that each will support the enterprises of the other, whether true or false;" and in the same book we find this notice of a criminal prosecution: "and note that two were indicted for a confederacy, each of them to maintain the other, whether the matter was true or false; and notwithstanding, that nothing was alleged to have been actually done, the parties were put to answer, because it was a thing forbidden by law." If this falls within either of the provisions of the statute 33 Edward I, it can only be that, which relates to the moving and maintaining pleas, and that does not embrace it; for if the indictment [**40]  had been under the statute, for a confederacy "falsely to move  [*337]  and maintain pleas," which can only have reference to proceedings in courts of justice, it is very clear that the parties must have been acquitted, as the conspiracy was not to do that specific act, otherwise they might have been punished for what they did not contemplate, since nothing being alleged to have been done, non constat, that they had any intention to move and maintain pleas within the purview of the statute; and the intention enters into the essence of every offence. The indictment, however, was not under the statute, for either of the specific acts mentioned in it, but at common law for the conspiracy, which was considered per se a substantive offence, no act in furtherance of it being alleged, and this after, and notwithstanding the statute. The position, that "a confederacy each to maintain the other, whether the matter be true or false," is a common law offence, is distinctly adopted in 1 Hawk P.C. 190, ch. 72, and 9 Coke's Rep. (the Poulterer's case) 56; and the principle of the case noted in the Book of Assises, to wit, that conspiracies are punishable at [**41]  common law, though nothing be put in execution, is fully recognized in the Poulterer's case, in which that book is referred to; and this further principle also laid down, that the law punishes the conspiracy, "to the end to prevent the unlawful act;" and in the same case, speaking of another, article 19, also in the Book of Assises, 138, relative to combinations among merchants to regulate the price of wool, it is said, "and in these cases, the conspiracy or confederacy (not the false conspiracy or confederacy) is punishable, although the conspiracy or confederacy be not executed." Hence it is manifest, that the "nota" at the end of the case, which seems to be relied on to show, that both malice and falsehood are indispensable ingredients of a punishable conspiracy, and must be united in the same case, was not intended by Lord Coke as applicable to all confederacies, but to such false conspiracies only, as are of the character of those, of which he had treated immediately preceding the nota; for he does not speak of the case of a conspiracy between merchants to fix the price of wool, as a false conspiracy, nor does either falsehood or malice, necessarily enter into [**42]  such a combination. And these combinations among merchants, (which are not within the statute 33 Edward I.) were, and remained punishable at common law, and were not first  [*338]  made so by the statute staple, 27 Edward III. ch. 9, as has been supposed in argument. That statute does indeed prohibit the exportation of wool under a very severe penalty, but neither creates, nor provides a punishment for, the offence by merchants, of combining to fix a price beyond which they would not go. All that is said in relation to the purchasing of that article is, that "all merchants, as well subjects as foreigners, may purchase woolfolk, &c. throughout the whole of our kingdom and territories, without covin or collusion to lower the price of the said merchandise, so nevertheless as they bring them to the staple;" from which it would seem that all covin and collusion to lower the price of merchandize was before unlawful, and that the statute meant to leave the law as it was. In the Poulterer's case, it was clearly considered as an offence at common law; and in 4 Blk. Com. 154, the exportation of wool, which, as has been before observed, was prohibited by the statute staple,  [**43]  under a very heavy penalty, is said to have been forbidden at common law, but more particularly by that statute; and if that, which it was the principal object of the statute to prevent and to punish, was before, an offence at common law, it may readily be supposed, that no new offence was intended to be created; but that a conspiracy to fix the price of wool, was an offence at common law. Moreover, the words of the statute are "without covin or collusion to lower the price," &c. and a combination to "fix a price, beyond which they would not go," might not necessarily be to "lower" the price. On an information against Breerton, Townsend and others, Noy's Rep. 103, for the suppression of a will, to the prejudice of Egerton, the relator, whose wife was thereby disinherited, all the defendants but one were convicted and fined. This was a case of fraud effected by a confederacy, and the injury was to an individual; the suppression of a will by one was not an indictable offence, though a fraud highly injurious to the party affected by it. It was the confederacy alone which rendered it criminal, and therefore, the information was against the offenders conjointly. In Timberly  [**44]   and Childe, Siderfin 68, the indictment was for a conspiracy to charge one with being the father of a bastard child, with intent to extort money from him; and on motion to quash the indictment, it was held by the court to be good. In Child vs. North and Timberly,  [*339]  1 Keble 203, the indictment was for a conspiracy to deprive the prosecutor of his fame, and to extort money from him, by falsely charging him with being the father of a bastard child. There was a motion to quash the indictment, because the conspiracy as laid, was to charge the prosecutor with matter that the court had no cognizance of; which was overruled, on the ground that it might be a loss to the prosecutor; and it was held that the conspiracy was punishable, though the court had no cognizance of the matter of it. And in the same case in 1 Keble 254, it was moved after verdict in arrest of judgment, that the indictment only charged the parties with a conspiracy to deprive the prosecutor of his fame, and to extort money from him, and not with a conspiracy to charge him before any tribunal having cognizance of the matter of bastardy. But the motion was overruled, and judgment rendered for the king,  [**45]  on the two grounds distinctly taken, that it was a conspiracy for lucre and gain, to charge and disgrace a man with having a bastard, and that the crime was the conspiracy, which whether it was to defame or disgrace a man, or to charge him with heresy, was punishable at common law. In The Queen vs. Armstrong, Harrison and others, 1 Vent. 304, the defendants were indicted for conspiring to charge (or burden) one with the keeping of a bastard child, and thereby to bring him to disgrace. After verdict there was a motion in arrest of judgment, on the ground that it did not appear that the party was actually burdened with the keeping of a child; but on the contrary that it was alleged to be only a pretended child; and also, that the party was not stated to have been brought before a justice of the peace on that account; but only that the defendants went and affirmed it to himself, intending to obtain money from him, that it might be no further disclosed; and that a bare unexecuted conspiracy was not a subject of indictment. The objection was overruled and the parties were punished by fine. The principle of this case cannot well be misunderstood. It was a conspiracy [**46]  to extort money from an individual, by going to him, and affirming that he was the father of a bastard child, with a view of inducing him to pay them to say no more about it. And it was decided on the ground (expressly taken by the court) that it was a contrivance by conspiracy, to defame the person, and cheat him of his money,  [*340]  which was an indictable crime of a very heinous nature. In The Queen vs. Best and others, 2 Ld. Raym. 1167, the indictment was for a conspiracy, falsely to charge the prosecutor with being the father of a bastard child, with which one Elizabeth Carter was pretended to be ensient, in order to defraud him of his money, and destroy his reputation. On demurrer it was among other things objected to the indictment, that it was not alleged that the child was likely to become chargeable to the parish, and that it did not appear, that the prosecutor was by the accusation put in danger of being subjected to any penalty; but that it amounted only to a charge, that the defendants conspired to tell the prosecutor that he was the father of the child the woman was big with, and that a bare conspiracy to do an ill act, was [**47]  not indictable. But the demurrer was overruled, on the principle broadly laid down by the court, that the defendants being charged at least with a conspiracy, to charge the prosecutor with fornication, though that was only a spiritual defamation, yet the conspiracy was the gist of the indictment, and was a temporal offence, and punishable as such. The King vs. Kinnersly & Moore, 1 Strange 193, was a case of conspiracy to extort money from Lord Sunderland, by charging him with an attempt to commit sodomy with one of the defendants. It was not charged as a conspiracy to accuse him in a course of justice, but only in pais. The object was to extort money, by means of a verbal slander, for which the party injured had his civil remedy, and the mere verbal slander by one only, would not have been indictable. And in The King vs. Martham Bryan, 2 Strange 866, the court in speaking with reference to The King vs. Armstrong & Harrison, say, "there the conspiracy was the crime; and an indictment will lie for that, though it be to do a lawful act." In this class of conspiracies, the meditated end was not accomplished in either of the [**48]  cases. The object in each was to defame and extort money from an individual; and the indirect or wrongful means, by which that object was intended to be effected, was verbal slander--a combination to do that, which if actually done by one alone, would not be the subject of an indictment; for if one verbally defames another, or extorts money from him, not under color of office, it is not an indictable offence. The conspiracy therefore for a corrupt purpose, was the offence for which they  [*341]  were punished; and there is no pretence for supposing, as has been urged in argument, that the prosecutions in the bastardy cases were sustained on the ground, that the conspirators contemplated an abuse of judicial authority, by falsely accusing, or causing the parties to be accused, of having bastard children, before justices of the peace having cognizance of such matters. A conspiracy of that character, would there is no doubt have been an indictable offence, having for its object, the subjecting the party accused, to the provisions of the statutes in relation to bastardy. But that is not the nature of the conspiracy charged in either of the cases referred to. In every case the defendants [**49]  were indicted for a conspiracy to defame and extort money from the prosecutor, by charging him with being the father of a bastard child, not before justices of the peace, but the charge is laid as having been made in pais; and in The King vs. Timberly & North, one of the objections to the indictment was, that it did not lay the conspiracy to be, to charge the prosecutor before any that had jurisdiction of the matter; and in The Queen vs. Armstrong, Harrison, and others, the same objection was raised, and also, that the defendants only went and affirmed it to the prosecutor himself; and so in The Queen vs. Best, and others, which with the exception also taken in The King vs. Timberly & North, that it was not within the statute 33 Edward I. was disregarded by the judges. "Every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offence, and the party be put upon his trial for another, without any authority." 1 Chitty's Criminal Law, 169. And "the charge must be sufficiently explicit [**50]  to explain itself, for no latitude of intention can be allowed, to include any thing more than is expressed."--Ibid 172. The King vs. Wheatly, 2 Burr 1127. And the accused is put upon his trial only for that, with which he is charged, and against which alone he is called on to defend himself. The prosecutions therefore in the cases referred to, could not have been supported on the ground, that the defendants contemplated an abuse of judicial power, by falsely accusing the prosecutors before justices of the peace; for no matter what they contemplated, that was not what they were charged with, and if they were  [*342]  only punishable on that ground, as the judges could not by intendment, have supplied what was not expressed, the indictments must have been quashed, or the judgments arrested for want of sufficient matter in law, (which was brought fully under the consideration of the courts,) otherwise it would have been, to punish the defendants for what they were not convicted of, for they could only have been convicted of what was alleged against them in the indictments. And thus the singular picture would have been exhibited in criminal jurisprudence, of men [**51]  convicted of what was no offence in law, and punished for what they were neither convicted nor accused of, and for any thing appearing might never have contemplated; but such a stain is not to be found on any page of juridical history. These remarks equally apply to the case of The King vs. Kinnersly & Moore; and it is not possible that in either of the cases, the judges went on the ground, that the defendants had accused, or meditated the accusation of the prosecutor before those who had jurisdiction of the matter; on the contrary the idea is expressly negatived by the proceedings themselves. The absence of the allegation was urged in each case, as an objection to the indictment, and the court decided, not that it might be inferred from what was alleged, but that it was not necessary, and that the conspiracy alone to defame and extort money from an individual, without any abuse, or meditated abuse of judicial power, was per se an indictable offence at common law. If they had not stated the grounds on which they acted, then indeed any legal principle that could be extracted from the cases, might, in support of the decisions, properly be assumed as the ground on which [**52]  they were given. But the ground that is here attempted to be assumed, as that on which the conspirators were punishable, is not only different from that, on which the judges expressly place their decisions, but is an illegal ground, and one on which the indictments could not have been supported. Illegal, not because a conspiracy to accuse a man of being the father of a bastard child, or of an attempt to commit sodomy, before those who had cognizance of such matters, was not an indictable offence, but because it was, what was not charged in the indictments, and could not legally be inferred from what was expressed. To say therefore, that those conspiracies were indictable, or that the prosecutions were sustained  [*343]  only on the ground, that the conspirators meditated the abuse of judicial power, by falsely accusing the prosecutors before a tribunal having cognizance of such offences, would be to overturn altogether the authority of the cases, which has not been attempted; on the contrary their authority seems to be admitted, and their application only to the case under consideration is resisted, on the hypothesis, that they were decided on grounds not appearing in the indictments, [**53]  and entirely different from those on which the judges professed to act. But the fallacy of the argument becomes obvious, when it is seen, that without a violation of the principle, that "every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted," the indictments in those cases could not have been sustained upon the grounds on which the decisions are attempted to be placed. Those cases therefore must stand or fall on the grounds upon which they are placed by the judges who decided them, not the reasoning of the judges, but the principles on which their decisions are made to rest. The King vs. Parsons, and others, 1 Blk. 392, was a conspiracy to take away the character of an individual, and accuse him of murder, by means of a mere phantom, which could have no reality--pretended communications with a ghost; and the actual fact of conspiring, was left to the jury to be collected from all the circumstances. The only object of the conspiracy in that case, was to injure the man's reputation. And in The King vs. Rispal, 1 Blk. 368, 3 Burr 1320, which was a [**54]  prosecution for a conspiracy to extort money from an individual, by charging him generally with having taken a quantity of human hair out of a bag; on the objection being raised to the indictment, that the defendants were not charged with having conspired to fix any crime on the party, but only generally with taking the hair, which might be lawful, it was said by Lord Mansfield, the other judges concurring, "the crime laid, is an unlawful conspiracy; this, whether it be to charge a man with criminal acts, or such only as may affect his reputation, is fully sufficient." That case, if received as authority, settles this principle, that a conspiracy to defraud another by verbal scandal is equally indictable, whether it be to charge the party with a crime, or only to injure his standing in society, and is a full answer to the argument  [*344]  that the principle of the cases last referred to, is not applicable to this, because they are of conspiracies to fix punishable offences upon the parties. In The King vs. Skirret, and others, 1 Siderfin 312, the defendants were prosecuted for reading a release to an illiterate man, in other words than those in which it was written,  [**55]  by which he was induced to sign it. It does not appear by the short report of the case, what the form of the indictment was, but as it was against them conjointly, they must have been charged either with conspiracy or combination. The fraud was practised upon an individual, and if it had been perpetrated by one only, would not have been an indictable cheat. It was the combination therefore alone which made it criminal, and that too is a case not within the statute 33 Edward I. In The Queen vs. Mackarty and Fordenbourgh, 2 Ld. Raym. 1179, 2 East's C. L. 823, the defendants were conjointly indicted, for falsely and deceitfully bargaining and exchanging with another, a quantity of pretended wine, alleging it to be good new Lisbon wine, for a certain quantity of hats, which were exchanged and delivered by the party practised upon, on the faith of their false representations, when in fact the pretended Lisbon wine, was not Lisbon wine. The indictment in this case was not under the statute 33 Henry VIII. ch. 1, which prohibits cheating by "means of false privy tokens, and counterfeit letters in other men's names;" nor the statute 30 Geo. II.  [**56]   ch. 24, which provides, under heavy penalties, against cheating by "false pretences," (and which was passed long afterwards,) but was for a cheat at common law, and though it did not charge the defendants with a conspiracy co nomine, yet it charged, that they together did the act imputed to them; and as there were no false public tokens, which were necessary at common law, to constitute a cheat effected by one, an indictable offence, it was the combination alone on which the prosecution could have been sustained. A cheat perpetrated by the use of false public tokens, such as false weights and measures, is an indictable crime at common law, only because they are means calculated to deceive, and are such, as common care and prudence are not sufficient to guard against; and so as ordinary care and prudence are no safeguard against the machinations of conspirators, cheats effected by conspiracy are punishable at common law, for "pari ratione, eadem est lex."  [*345]  And in The King vs. Wheatly, 2 Burr 1127, cheats effected by conspiracy, are expressly placed on the same footing with cheats effected by false weights and measures. In The Queen vs. Orbell, 6 Mod. 42, [**57]  the indictment was for a combination to cheat one J. S. of his money, by getting him to bet a certain sum on a foot race, and prevailing on the party to run booty; and the court sustained the indictment on the ground as they said, that "being a cheat, though it was private in the particular, yet it was public in its consequence." That was a case emphatically of individual injury, and as little connected with any public concernment, as any private transaction could well be, and it was the combination alone on which the prosecution rested; for such a cheat practised by one was clearly not an indictable offence. In The King vs. Edwards and others, 8 Mod. 320, the parties were indicted for giving money to a man, to marry a poor helpless woman who was an inhabitant of the parish of B, and incapable of marriage, on purpose to gain a settlement for her in the parish of A, where the man was settled. In that case there was a motion to quash the indictment, on the ground that it was not unlawful to marry a woman and give her a portion. But the object of the conspiracy, being to impose a pauper on a parish to which she did not belong, it was held by the court to be an indictable [**58]  offence at common law; for that a bare conspiracy to do a lawful act to an unlawful end, was a crime, though no act should be done in consequence thereof. The conspirators certainly meditated a fraud on the inhabitants of a particular parish, by burdening them with the support of a pauper belonging to a different parish, and so far perhaps it may be viewed as a case of contemplated private fraud, as the inhabitants of a parish are not the community at large. But whether the principle laid down by the court, was on the point of meditated individual injury or violation of public police, does not appear from the report of the case. In 3 Chitty on Criminal Law, it is treated as a conspiracy to violate public police; but the principle equally applies to both. In The King vs. Cope and others, 1 Strange 144, the prosecution was for a conspiracy to ruin the trade of the prosecutor, who was a cardmaker to the king, by bribing his apprentices to put grease into the paste, by which the cards were spoiled. The putting grease into the paste, and thereby spoiling the  [*346]  cards, if done by one, would have been no crime in law, but a private injury,  [**59]  for which the party would have been left to his civil remedy: and it was the conspiracy alone which constituted the offence. And in The King vs. Eccles, 1 Leach's Crown Cases 274, the indictment was for a conspiracy, by wrongful and indirect means, to impoverish one Booth, a tailor, and to deprive and hinder him from following and exercising his trade. In the first count in the indictment, the object of the conspirators was alleged to have been accomplished, and in the second count the conspiracy only, was charged. It was not denied that the conspiracy was an indictable offence, and the only objection on the part of the defendant was, that the acts done to impoverish Booth, ought to have been set out in the indictment. But it was decided by the whole court, that it was sufficient to allege the conspiracy and the object of it, the illegal combination being the gist of the offence; and that it was not necessary to state the means, by which the intended mischief was effected; for that the offence did not consist in doing the acts by which the end was accomplished, (for they might be perfectly indifferent,) but in the conspiring with a view to effect the intended [**60]  mischief by any means; and by Buller, justice, that "the means were only matters of evidence to prove the charge, and not the crime itself." It has been contended that these last cases were conspiracies to injure public trade; the distinguished judges before whom they were tried have not said so, nor could they have so considered them. They were not so laid in the indictments, but were distinctly cases, in which the meditated injuries were levelled against particular individuals, unconnected with any matter of public concernment, and do not fall within the principles of any of the enumerated offences against public trade, which are offences committed by traders or dealers themselves, such as cheating, forestalling, regrating, &c. So in The King vs. Leigh and others, (Macklin's case,) 2 Macklin's Life 217, in which it was held, that an indictment would lie for a conspiracy to impoverish an actor, by driving or hissing him off the stage: and in Clifford vs. Brandon, 2 Camp. 358, it was said by Sir James Mansfield, that "though the audience had a right to express by applause or hisses their sensations at the moment, yet if a body of men were to go [**61]  to the theatre,  [*347]  with a settled intention of hissing an actor, or even of damning a piece, there could be no doubt that such a deliberate preconcerted scheme would amount to a conspiracy, and that the persons concerned in it might be brought to punishment." There the preconcerted scheme alone, the unexecuted conspiracy, was held to be indictable; but if put into execution, according to circumstances, it would be a riot. In The King vs. Robinson and Taylor, 1 Leach's Crown Cases 37, the defendants were indicted for a conspiracy to raise a specious title in Mary Robinson to the estate of Richard Holland, by marrying Taylor, under the assumed name of Richard Holland. The only evidence in the case was of the marriage, and that she lived with Holland as a kind of servant. It was distinctly admitted, that a conspiracy to do an injury to the person or estate of another was an indictable offence, and so held by the court, Willes, Foster and Reynolds, presiding; and it was also ruled, there being no positive proof of an intention to injure Holland, that it was not necessary to prove any direct or immediate injury, or even to show [**62]  any specific overt act of conspiracy, but that it was the province of the jury to collect from all the circumstances of the case, whether there was not an intention or design in the parties to do a future injury to Holland. And that case would seem to cover all the ground necessary to support this prosecution. The conspiracy was levelled at the property or estate of another, and the object was to defraud an individual, but the act by which the fraud was intended to be accomplished, (a marriage under an assumed name) was not in itself unlawful. It has been ingeniously argued here, but not ventured on by those who conducted the defence of Robinson and Taylor, that they meditated a perversion of the course of justice, as her right to Holland's estate could only have been established by judicial proceedings. It was not so charged in the indictment, and without it, the prosecution must have failed, if it had been deemed at all necessary to constitute the offence; for "no latitude of intention can be allowed to include any thing more than is expressed in an indictment," as has been before observed on the authority of Lord Mansfield, in the case of The King vs. Wheatly, 2 Burr 1127, and 1 [**63]  Chitty's Criminal Law, 172. In The King vs. Lara, 6 Term. R. 565, it was admitted by counsel in argument, that a fraud upon  [*348]  an individual by conspiracy was indictable, and the doctrine laid down by the judges in The King vs. Wheatly, was fully recognized and adopted by Lord Kenyon; that is, that a cheat effected by a conspiracy, was an indictable offence. The case of The King vs. Berenger, 3 M. & S. 68, as it is understood by the court, is a very strong one. The indictment was for a conspiracy by false rumors to raise the price of the public government funds, with intent to injure such of the King's subjects as should purchase on a particular day. It was broadly admitted in argument, that if the indictment had stated, "that the defendants conspired to raise the price of the funds in order to cheat or prejudice particular individuals by name, or to benefit themselves at their expense, or that the public were concerned in the purchases of that day, and the defendants conspired, &c. to the prejudice of the public, it would have exhibited a complete offence." But it was contended, that the allegation, that it was with intent [**64]  to injure "such of the King's subjects as should purchase on that day," was too general, and for that reason only, the indictment was objected to. But the objection was overruled by the court, not on the ground, as supposed in argument, that to constitute an indictable conspiracy, it should be levelled either at the public in its aggregate capacity, or at a class or portion of the subjects, as distinguished from an individual, and that the case fell within one of those classes of conspiracies; for it was treated throughout as perfectly clear, that if it had been laid with intent to prejudice or defraud either the public, or an individual or individuals by name, it would have been good; and the only difficulty on that part of the case was, whether, being laid with intent to injure those who might become purchasers, and not either an individual by name, or the public in its aggregate capacity, the generality of the charge did not vitiate the indictment. But they sustained the indictment ex necessitate rei, on the ground, that as it was impossible the defendants could have known who would be the purchasers on that day, the charge could not have been more specific. And [**65]  though it was conceded, that to raise or lower the price of the public funds, was not per se a crime, yet it was held to be an offence for a number of persons to conspire to raise them by false rumors; and that the crime was not in raising the funds, but in the act of conspiracy and combination to do so, and would be complete, though  [*349]  It should not be pursued to its consequences. It was clearly therefore on the point of individual injury that the court went. And so in The King vs. Gill & Henry, 2 Barn. & Ald. 204, the defendants were indicted and convicted of a conspiracy by divers false pretences, and subtle means and devices, to cheat several individuals by name. The prosecution in that case could not have been sustained, on the ground, as has been supposed, that it was for a conspiracy to commit an offence, indictable of itself under the statute 30 George II, against cheating by false pretences; for it is well settled, that in an indictment framed upon that statute, it is not enough to allege generally, that the cheat was effected by divers false pretences, &c. but the particular false pretences must be stated, that the party may know against [**66]  what he is to defend himself, and that the court may see that there is an indictable offence charged, as there are some pretences which are not within the statute. 2 T. R. 586. East's Crown Law, 837. So in an indictment at common law for cheating by false public tokens, and so also in an indictment on the statute 33 Henry VIII, against cheating by false privy tokens, &c. 3 Chitty's Criminal Law, 999. 2 Strange 1127. If then the conspiracy in that case was only indictable, because it was to commit the statutory offence of cheating by false pretences, as they would form the principal ingredient of the offence, it would have been necessary to set out the particular false pretences by which the cheat was intended to be effected, in order to show that it was the statutory offence which the conspirators intended to commit--on the acknowledged principle, that every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted. But it was there ruled by the court, that when several persons have once agreed to cheat a particular individual of his money, although they may [**67]  not at the time have fixed on any particular means for that purpose, the offence of conspiracy is complete, and that it was sufficient to state the conspiracy and the object of it in the indictment, without setting out the means by which it was intended to be accomplished; and per Lord Mansfield, in the case of The King vs. Eccles, "they may be perfectly indifferent." It is evident therefore that the indictment was not supported on the ground,  [*350]  that it was a conspiracy to commit an indictable offence; for if it had not been for a conspiracy to cheat, but against an individual, for the actual commission of the offence, it would have been bad for the generality of the allegations; and the principles of that case embrace every thing that is necessary to the support of the indictment against these defendants. The case of The King vs. Mawbry and others, 6 Term. R. 619, was a conspiracy to pervert the course of justice, which is of itself an indictable offence. That case has no other bearing on the present, than as it shows that all indictable conspiracies are not embraced by the statute 33 Edward I, but that at common law a conspiracy to do [**68]  any thing which the law forbids is indictable. In The King vs. The Journeymen Tailors of Cambridge, 8 Mod. 10, recognized in The King vs. Mawbry and others, 6 Term. R. 636, the defendants were indicted at common law, and not on the statute of George, for a conspiracy to raise their wages; and it was held, that the conspiracy was indictable at common law, though it would have been lawful for either of them to raise his wages if he could. So in The King vs. Delaval, 3 Burr 1434, which was a conspiracy to place a girl by her own consent in the hands of Delaval for the purpose of prostitution. The act of seduction was not of itself an indictable offence, but it was the end, the immoral object of the conspiracy, which gave it its criminal character. And the case of The King vs. Lord Grey, is of a similar description. In 1 Hawk P.C. 190, ch. 72, it is said, "there can be no doubt, that all combinations whatsoever, wrongfully to prejudice a third person, are highly criminal at common law." This is literally adopted and transcribed into 1 Burn's Justice 378, and 3 Wilson's Works 118. Chitty [**69]  in his 3 Vol. on Criminal Law, 1139, says, "in a word all confederacies wrongfully to prejudice another, are misdemeanors at common law, whether the intention is to injure his property, his person or his character;" and in 4 Blk. Com. 137, (Christian's note 4,) "every confederacy to injure individuals, or to do acts which are unlawful, or prejudicial to the community, is a conspiracy." The concurring testimony of these writers, that, all conspiracies wrongfully to injure a third person are indictable offences, is not lightly to be received, though the positions laid down are not assumed as full and definite descriptions of the crime of conspiracy; yet they go quite  [*351]  far enough for all the purposes of this prosecution. Indeed the four first were only treating of conspiracies levelled against individuals. And such is the character of conspiracy, so ramified is it in its nature, the object and tendency of it being that, from which it derives its criminality, that it would be exceedingly difficult to give a single specific definition of the offence. But by a course of decisions running through a space of more than four hundred years, from the reign of Edward  [**70]   III, to the 59 of George III, without a single conflicting adjudication, these points are clearly settled:--
1st. That the offence of conspiracy is of common law origin, and not restricted or abridged by the statute 33 Edward I.
2d. That a conspiracy to do any act that is criminal per se, is an indictable offence at common law, for which it can scarcely be necessary to offer any authority.
3d. That an indictment will lie at common law--1st. For a conspiracy to do an act not illegal, nor punishable if done by an individual, but immoral only--as in The King vs. Lord Grey and others, and the case of Sir Francis Blake Delaval. 2d. For a conspiracy to do an act neither illegal nor immoral in an individual, but to effect a purpose, which has a tendency to prejudice the public--as in The King vs The Journeymen Tailors of Cambridge, for a conspiracy to raise their wages, either of whom might legally have done so, and The King vs. Edwards and others. 3d. For a conspiracy to extort money from another, or to injure his reputation by means not indictable if practised by an individual, as by verbal defamation, and that, whether it be to charge him with an indictable [**71]  offence or not--as in Timberly and Childe; Child vs. North & Timberly; The Queen vs. Armstrong, Harrison and others; The Queen vs. Best and others; The King vs. Kinnersly & Moore; The Queen vs. Martham Brian; The King vs. Parsons and others, and The King vs. Rispal. 4th. For a conspiracy to cheat and defraud a third person, accomplished by means of an act which would not in law amount to an indictable cheat, if effected by an individual--as in Breerton & Townsend; The King vs Skirrett and others; The Queen vs. Macarty & Fordenbourgh; The Queen vs. Orbell; The King vs. Wheatly, and The King vs. Lara. 5th. For a malicious conspiracy, to impoverish or ruin a third person in his  [*352]  trade or profession--as in The King vs. Cope and others; The King vs. Eccles; The King vs. Leigh and others, (Macklin's case,) and the case of Clifford vs. Brandon. 6th. For a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person be thereby injured--as in The King vs. Robinson & Taylor; The King vs. Berenger and other, and The King vs. Edwards and others. 7th. For a bare conspiracy to cheat [**72]  or defraud a third person, though the means of effecting it should not be determined on at the time--as in The King vs. Gill & Henry. 8th. That a conspiracy is a substantive offence and punishable at common law, though nothing be done in execution of it--as in the Book of Assises, ch. 44; the Poulterer's case; The King vs. Edwards and others; The King vs. Eccles; The King vs. Berenger and others, and The King vs. Gill & Henry; and all the authorities that the conspiracy is the gist of the offence. And 9th. That in a prosecution for a conspiracy, it is sufficient to state in the indictment, the conspiracy and the object of it; and that the means by which it was intended to be accomplished need not be set out, being only matters of evidence to prove the charge, and not the crime itself, and may be perfectly indifferent--as in The King vs. Eccles, and The King vs. Gill & Henry.
From all which it results, that every conspiracy to do an unlawful act, or to do a lawful act for an illegal, fraudulent, malicious or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general, is at common law an indictable offence, though nothing [**73]  be done in execution of it, and no matter by what means the conspiracy was intended to be effected; which may be perfectly indifferent, and makes no ingredient of the crime, and therefore need not be stated in the indictment. In 1 Tremaine's P. C. 82, 33, there is an information against Turner and others, for a conspiracy to destroy the reputation of one George Green, and falsely to charge him with adultery with the wife of one of the conspirators, for the purpose of extorting money from him. In 86, against Record and others, for a cheat practised on Lady Dorothea Seymour, in prevailing on her by means of a falsehood to advance large sums of money to them. In 91, against Wilcox and others, for cheating by conspiracy one John Dutton of a quantity of cloth, under pretence of buying  [*353]  them. In 94, against Taydler and others, for a cheat by conspiracy, in drawing an absolute conveyance to themselves of the estates of two women, and persuading them to execute it, pretending it was only in trust for the women, &c. And in 97, against Allibone and others for cheating by conspiracy one Hilliard, in obtaining divers bonds from him for the payment [**74]  of money to themselves and others, as a consideration for procuring a marriage between him and an indigent woman, whom they represented as being rich. In neither of those cases, could an indictment have been sustained for the same injury practised by an individual, without the aid of conspiracy or combination; and as Tremaine gives the terms, the reigns, and the names of the respective parties, there can be little doubt, that they are precedents of informations in adjudicated cases, and that they were held to be good; and they go far to show how the common law was understood in England in the reigns of Charles and James II. And the law of conspiracy, as settled by the uniform tenor of the decisions of the courts in England, has been recognized and adopted as the common law, by the courts of several of the sister states; as in The Commonwealth vs. Ward and others, 1 Mass. 473. The Commonwealth vs. Judd and others, 2 Mass. 329; and The Commonwealth vs. Tibbetts & Tibbetts, 2 Mass. 536; and the cases of The Journeymen Cordwainers in New-York and Pennsylvania; and also in a similar case in this state, by [**75]  the court of oyer and terminer, &c. for Baltimore county, which has it is believed been entirely acquiesced in. In 2 East's C. L. title Cheat--cheats by conspiracy are treated of, as being on the same footing with cheats effected by the use of false public tokens, as false weights and measures. Chitty in his 3 vol. title Conspiracy, after speaking of indictable conspiracies levelled at individuals, says, "but the object of conspiracy, is not confined to an immediate wrong to particular individuals, it may be to injure public trade, to affect public health, to violate public police, to insult public justice, or to do any act in itself illegal." Thus taking a clear distinction between indictable combinations to injure individuals, and such as have for their object an injury to the public at large, or the commission of acts which are in themselves illegal. And in page 1140 he says, "that to constitute a conspiracy,  [*354]  it is not necessary that the act intended should be in itself illegal, or even immoral; that it should affect the public at large; or that it should be accomplished by false pretences." Conspiracies are odious in law, and are always taken [**76]  mala parte, and properly. In The King vs. Rispal, it was said by Lord Mansfield in delivering the opinion of the court, that "they tended to a breach of the peace, as much as cheats or libels." That is the only reason assigned in the books why libels are punishable by indictment; and whether they have in fact a more direct tendency to a breach of the peace, than verbal slanders, which are not per se so punishable, it is now too late to inquire--the law is settled, whether the reason be good or bad. There is however a greater malignity of spirit displayed, and a deeper and more lasting mischief contemplated by a deliberately written libel, than by a mere verbal slander, which is often repented of almost as soon as it is uttered. Libels therefore furnish evidence of a disposition, more dangerous to the social order, than verbal slanders, against the effect of which, the law has interposed itself, as a necessary safeguard. So at common law, a cheat effected by false public tokens, as "false weights and measures," is punished criminaliter, not because the party cheated is more injured in that way, than by a mere private cheat accomplished by an individual in any other [**77]  manner, which is not indictable; but because it is that, against which ordinary care and prudence are not sufficient to guard, and the use of which evinces a disposition to practice upon the whole community. And for the same reason fraudulent, false or malicious conspiracies, to cheat or otherwise injure a third person, are indictable offences; for that ordinary care and prudence, which would be a sufficient guard against the evil designs of an individual, furnish no protection against the machinations of a band of conspirators. The King vs. Turner and others, 13 East 228, has been much relied upon by the counsel for the defendants in error, but the case itself is not at all in hostility with this principle, or with any of the adjudications to which we have had occasion to advert. It was an agreement only, (in the words of Lord Ellenborough by whom it was decided) "to go and sport upon another's ground;" not tinctured either with malice, falsehood or fraud. And an agreement  [*355]  to commit a civil trespass, (for every unauthorized entry upon the possessions of another, though it only be for the purpose of innocent amusement, is in law a trespass) may not, according [**78]  to circumstances, amount to an indictable offence. But fraud, falsehood and malice, strike at the very root of the social order, as the well being of a community greatly depends on the honesty, truth, and properly regulated passions of those who compose it; and therefore it is necessary that the law should punish them whenever they assume a shape, against the effect of which ordinary care and prudence are not sufficient to guard.
There is nothing in the objection that to punish a conspiracy where the end is not accomplished, would be to punish a mere unexecuted intention. It is not the bare intention that the law punishes, but the act of conspiring, which is made a substantive offence, by the nature of the object intended to be effected. And in that respect, conspiracies are analogous to unlawful assemblies. An unlawful assembly, is the assembling of three or more together to do an unlawful act, as to pull down enclosures, and departing without doing it, or making any motion towards it. In that case it is not the bare unexecuted intention which the law punishes, but it is the act of meeting, connected with the object of that meeting, which constitutes the offence;  [**79]  and for that act of meeting alone, though it should be to do, what if actually done by one, (as the pulling down of another's enclosures,) would be but a civil trespass, the parties are liable to be punished by fine and imprisonment. And why should the law favour the act of conspiring together, falsely to injure the reputation of another, maliciously to ruin him in his occupation, or fraudulently to cheat him of his property, (no matter by what means,) and yet punish the act of meeting together to pull down another's fence, without making any motion towards it?
But it is contended, that if our ancestors brought with them the common law of the mother country, or any part of it, it was the common law so far only as it had been established by judicial precedents, at the time of their emigration, and not as it has since been expanded in England by judicial decisions. That our ancestors did bring with them the laws of the mother country, so far at least as they  [*356]  were applicable to their situation, and the condition of an infant colony, cannot be seriously questioned. The rule that "in conquered or ceded countries that have laws of their own, those laws continue [**80]  in force, until actually altered," &c. is for the benefit and convenience of the conquered, who submit to the government of the conquerors, or in the case of cession, for the benefit of the people, who by treaty submit to the government of those to whom their country is ceded, and was not applicable to the condition of our ancestors, as the Indians did not submit to their government, but withdrew themselves from the territory they acquired. They were therefore in the predicament of a people discovering and planting an uninhabited country; and as they brought with them all the rights and privileges of native Englishmen, they consequently brought with them also, as their birthright, all the laws of England, which were necessary to the preservation and protection of those rights and privileges. And it would be difficult to show, that the law of conspiracy was not, at the time of their emigration, quite as necessary to them here in their new and colonial condition as it was in England, unless it can also be shown, that there was less necessity here, than there, for the preservation of life, liberty, reputation and property, or protection against falsehood, malice and [**81]  fraud. If then they did bring with them the common law of conspiracy, which is assumed as undeniable, (though it may have existed potentially only,) they brought it as it is now settled and known in England, for what it is now, it was then, if any reliance can be had on ancient authorities; and it is to judicial decisions, that we are to look, not for the common law itself, which is no where to be found, but for the evidences of it. It appears, as has been seen by a note of a case in the Book of Assizes, 27 Edward III, that an indictment was sustained at common law for a conspiracy, though nothing was done in execution of it. The same principle is recognized and adopted in 9 Coke's Rep, 56, (The Poulterer's case,) in its fullest extent; and that is the great principle running through the cases so much objected to in argument, that conspiracies are substantive punishable offences, though they be not executed; and the rest, that it is sufficient to state in the indictment the conspiracy and the object of it, that the means by which it was intended  [*357]  to be effected, are but matters of evidence to prove the charge, and no part of the crime itself, and may [**82]  be perfectly indifferent, and need not therefore be set out, are but consequences. And in the case of Breerton & Townsend, Noy's Rep. 103, (12 James I,) an indictment was held to lie, as has been seen, for a conspiracy to defraud another by means of an act, which if it had been effected by an individual, would not have been indictable. The case in Noy, in which the parties were punished by fine, also shows, that the villenous judgment was not given in all cases of conspiracy, but that there were at common law, different degrees of punishment, and consequently of crime; and in 1 Hawk P.C. 193, ch. 72, s. 9, it is said, that it has never been settled to be the proper judgment upon any conviction of conspiracy, except such as threatened the life of the party, which obviates any argument drawn from the villenous judgment, against there being any other conspiracies at common law than those enumerated in the statute 33 Edward I. These cases were before the colonization, the charter being in the eighth year of the reign of Charles I, and they furnish the leading principles of the doctrine of conspiracy, of which the subsequent decisions are but [**83]  practical applications, and must be received as expositions of the law as it before existed, and not as creating a new law, or altering the old one, which could only be done by legislative enactment; and cannot be assimilated to occasional alterations, or changes in the practice of courts, in relation to the forms of proceeding, which are only creatures of courts, and often go on mere fiction. And it is a mistake to suppose, that they are expansions of the common law, which is a system of principles not capable of expansion, but always existing, and attaching to whatever particular matter or circumstances may arise and come within the one or the other of them; not that this or that combination, is by the common law in terms declared to be an indictable conspiracy, but that it falls within those principles of the common law, which have for their object the preservation of the social order, in the punishing such combinations as are calculated to threaten its well being. Precedents therefore do not constitute the common law, but serve only to illustrate principles. And if there were no other adjudications on the subject to be found, the judicial  [*358]  decisions since the colonization,  [**84]  furnish conclusive evidence, not only of what is now understood to be the law of conspiracy in England, so far as those decisions go, but of what were always the principles on which that law rests. And if the political connection between this and the mother country had never been dissolved, the expression of a doubt would not now be hazarded on the question, whether the same law was in force here. And unlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for conspiracy, no argument can be drawn from the non user for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offences, and consequently no judicial adoption of either of those branches of the common law, could it therefore be contended, that there was now no law in the state for the punishment of such offences? The third section [**85]  of the Bill of Rights, which declares "that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practised by the courts of law or equity," has no reference to adjudications in England anterior to the colonization, or to judicial adoptions here, of any part of the common law, during the continuance of the colonial government, but to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions. And surely it cannot be inconsistent with, or repugnant to the spirit and principles of republican institutions, whose strength lies in the virtue and integrity of the citizen, to correct the morals [**86]  and protect the reputation, rights and property of individuals, by punishing corrupt  [*359]  combinations, falsely to rob another of his reputation, maliciously to ruin him in his business, or fraudulently to cheat him of his property. If it is, the law of libel, and for punishing cheats effected by false public tokens, should also be rejected; for the one is not more inconsistent with the personal liberty of the citizen than the other, or at all more necessary to the preservation of the social order, and they all rest upon the same principle. And that clause in the third section of the Bill of Rights, which declares the inhabitants of Maryland to be entitled to the benefit of such British statutes made since the emigration, as had been introduced, used and practised by the courts of law or equity, and thus virtually inhibits the use of all such as had not been so introduced, furnishes a clear exposition of the whole section, and shows, that it was not the intention of the framers of that instrument to exclude any part of the common law, merely because it had not been introduced and used in the courts here, and strongly implies, that there were portions of that [**87]  valuable system which had not been actually practised upon. And the judicial proceedings of our courts furnish no evidence of any prosecution before the revolution, for a cheat effected by false public tokens; and yet it is not pretended, that from the non user, it is not now an indictable offence.
It is not necessary, as has been contended on the part of the defendants in error, that every one should in fact know what the law is, before he can be punished for what the law forbids. Such a doctrine would be fraught with the most mischievous consequences to society: it is enough that the offence was known to the law before, and if it be malum in se, there is an inward monitor, always present, to warn, advise and instruct. Nor is it any argument against the law of conspiracy, as contended for on the part of the prosecution, that under the English decisions, the act of conspiring is not required to be proved by positive testimony, but may be inferred by the jury from all the circumstances of the cases. It has nothing to do with the question of what is, or is not an indictable conspiracy; and if it be an objection at all, it is one that arises upon the law of evidence,  [**88]  and is equally applicable to every description of conspiracy. But we cannot perceive what there is in it to quarrel with. It is not confined to the offence of conspiracy--Murder, which reaches  [*360]  the life of the offender, and various other crimes, may be proved by circumstantial evidence; and there does not seem to be any thing in the crime of conspiracy, that should exempt it from being proved by the same species of evidence. On the contrary, as conspiracies from their very nature, are usually entered into in secret, and are consequently difficult to be reached by positive testimony, it would appear to be peculiarly necessary and proper to permit them to be inferred from circumstances, otherwise the most dangerous and injurious conspiracies would often go unpunished.
I have endeavoured to avoid bringing any thing into this case, which does not strictly belong to it, or assuming any principle that is not well settled. The indictment has two counts, the first charges the defendants with an executed conspiracy, falsely, fraudulently and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish The President, Directors and Company of the Bank of the  [**89]   United States; and the second, charges them with a conspiracy only, falsely, fraudulently, and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish The President, Directors and Company of the Bank of the United States. James A. Buchanan, one of the defendants, was the President of the office of discount and deposit of the mother bank, duly established in Baltimore; James W. M'Culloh, another of the defendants, was the Cashier of that office, and George Williams, the other defendant, was a Director of the mother bank in the city of Philadelphia; and it has been contended, that as an improper use, or embezzlement of the funds of the bank, by either the President or Cashier of the office, would in law be only a breach of trust, a combination to effect the same purpose cannot amount to an indictable offence. But however ingeniously urged, there does not appear to be any thing in the argument, when stripped of the dazzling attire in which it was clothed. Seeing, as has been shown, that to constitute an indictable conspiracy, it is not necessary that the act conspired to be done, should, if effected by an individual, be such, as would  [**90]  per se amount to an indictable offence. It seems therefore to be perfectly clear, both on principle and authority, that the matter charged in each count in the indictment, constitutes a punishable conspiracy at common law, and that that portion of the common law is in force in this state.
 [*361]  The only question remaining to be examined, that is, whether under the constitution and laws of the United States, the county court of Harford had jurisdiction of the offence in this particular case, (the Bank of the United States being chartered by an act of congress,) requires but little to be said, and will be disposed of in a few words. A conspiracy to cheat or defraud the bank, is not declared to be an offence against the United States by any act of congress, and in the case of The United States vs. Hudson & Goodwin, 7 Cranch 32, it was decided by the supreme court, that the courts of the United States had no common law jurisdiction in criminal cases. The authority of which case is recognized in the case of The United States vs. Coolidge and others, 1 Wheat. 415, and until it shall be overruled by the same tribunal, the principle [**91]  must be considered as settled. The matter therefore charged in the indictment is not an offence against the United States, nor cognizable in any of their courts; but a common law offence against the state of Maryland--the act of congress creating the bank, and the establishment of the office of discount and deposit in the city of Baltimore within the territorial jurisdiction of the state, furnishing only the occasion for the offence, by bringing into existence the thing, upon which the fraud is charged to have been committed. And as the previously vested jurisdiction of the state, cannot be supposed to be taken away, by the mere potential right of congress (supposing it to exist) to make a conspiracy to cheat the bank, an offence against the United States, and to give exclusive jurisdiction thereof to the United States courts, without any exercise of that right, the original common law jurisdiction of the courts of the state, in relation to this subject, remains as it was before the adoption of the federal constitution, and will so continue to remain, until that right shall be exercised by congress to its exclusion. Whether a concurrent jurisdiction would be denied [**92]  to the courts of the state, if congress had in fact vested jurisdiction of this matter in the courts of the United States, it is not now necessary to inquire, the exclusive jurisdiction being in the courts of the state. It will be time enough to examine that question when it shall be regularly presented to us.
It has been urged on the part of the defendants in error, as an objection to the jurisdiction of the courts of the  [*362]  state, in such a case as this, that the principle would be dangerous to the well being of the bank, as it might lead to the passing of laws by the state legislature, calculated to destroy the institution, under pretence of protecting its interests. It may be admitted, that the legislature of the state has no right to pass laws calculated to control or impede the operations of the bank. But it is difficult to imagine, how a general power in the judicial tribunals of the state, to punish an offence against the State, can be considered as an unconstitutional interference with the concerns of the Bank of the United States, or as in any manner endangering its security, only because its officers happen to be the objects of the prosecution, and [**93]  the offence is charged to be, to the prejudice of that institution; which for the purpose of the prosecution is considered as an individual.
CHASE, Ch. J. a. In this case four questions have been submitted to the court for their consideration--
1. Whether the state has the right to issue a writ of error in this case?
2. Whether the record has been legally and properly transmitted?
3. Whether the court has jurisdiction over this case?
4. Whether the facts charged in the indictment constitute the offence of conspiracy at the common law?

a. Owing to indisposition the Chief Judge did not attend when the opinion of the court was delivered in this case.

1. As to the first. This is a question which arises on demurrer to the indictment, and is solely and exclusively a question for the court to decide on the legal sufficiency of the indictment.
If the facts charged constitute the crime of conspiracy at the common law, it is a misdemeanor, and is punishable by fine and imprisonment. Supposing, for argument sake,  [**94]  the court below had determined the indictment was sufficient, and the offence a conspiracy at the common law, there cannot be a question but that the defendants would have had a right to a writ of error, to have the judgment of the court below reviewed, and the law settled. Where the offence is a misdemeanor, it is the right of the party to have a writ of error ex debito justitia--the allowance of the attorney general in England is a matter of course, and never refused. In this state the allowance of the attorney-general is not necessary, and never applied for. What good reason can be assigned why the state should not have  [*363]  a writ of error? The right ought to be reciprocal, at least in the case of a misdemeanor. In the Marquis of Winchester's case, reported in Sir William Jones and Croke Charles, the right of the king to a writ of error was not questioned. The right of the party accused to bring a writ of error was taken away by the words of the statute of James I, ch. 3; but the right of the king remained--the king not being named in the statute. The offence charged, was recusancy and a misdemeanor, which subjected the party to a fine. This case [**95]  unequivocally establishes the right of the King to bring a writ of error in the case of a misdemeanor; the court of King's Bench acted on the record returned under it, and pronounced a judgment of reversal. The defect in the judgment in the court below, was the want of the ideo capiatur. The motives which induced the king, or the attorney-general, to issue the writ of error, could not have been a subject of inquiry in the superior court.
2. As to the question whether the record has been legally and properly transmitted?
I am of opinion that the record has been legally transmitted, and is properly before the court. The act of 1713, ch. 4, provides fully for the transmission of records in all cases civil and criminal, and the mode prescribed by that act has been fully and strictly pursued. The fourth section of that act directs, that the party appealing, or suing out such writ of error, shall procure a transcript of the full proceedings of the said court, &c. under the hand of the clerk of the said court, and the seal thereof, and shall cause the same to be transmitted to the court, &c. upon which transcript the said court shall proceed to give judgment. The transmission [**96]  of the record in this case has been made pursuant to the fourth section of the act of 1713, ch. 4, and in strict conformity to it, and the previous order of the court below is by no means necessary.
3. As to the third question, whether the courts of Maryland have jurisdiction over this case?
It is the duty of this court to refrain from, and restrain the inferior courts of this state from the exercise of any jurisdiction and power which exclusively belong to the tribunals of the United States. In considering this question, it will be necessary to ascertain the power and jurisdiction of the courts of the United States, and to fix, with precision,  [*364]  the line of division between them and the state courts.
By the third article, and first section of the constitution of the general government, the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. By the second section, the judicial power shall extend to all cases in law and equity, arising under the said constitution, the laws of the United States, &c. These sections of the  [**97]  third article comprehend all the powers vested in the judiciary of the United States, so far as respects the question under the consideration of the court.
This is not a question or case arising under the constitution of the United States, nor under the laws of the United States. The law of the United States, establishing the Bank of the United States, does not create any offence against the United States; and it has been determined by the supreme court, that the common law of England is not a part of the laws of the United States; and that decision has been since recognized and sanctioned, although some of the judges expressed a willingness to hear an argument on the question.
It is a position, not to be controverted, I think, that all power not granted by the constitution to the general government, is still resident in the states, or the people, and is to be exercised in the manner and way the constitutions and laws of the several states respectively prescribe. If the offence charged had been committed prior to the establishment of the constitution of the general government, and during the existence of the first bank of the United States, [**98]  there cannot be a doubt but what it would have been cognizable by the courts of the state in which the offence was committed, and punishable according to the laws of such state. I therefore am of opinion, that the courts of this state have jurisdiction over the offence charged in the indictment.
4. Having disposed of the preliminary questions, and all impediments being removed which were supposed to prevent the consideration of the fourth and last question, I shall now endeavour to express my opinion upon it, and shall do it in as concise and plain a manner as possible, consistent with perspicuity.
The question is important as it concerns the state, and  [*365]  the individuals accused, and has undergone a very full and elaborate discussion and nothing has been omitted which splendid talents could urge, or ingenuity invent, to elucidate the subject, and place the question in every view of which it is susceptible; but as it appears to me, it lies within a small compass.
The indictment, after stating the establishment of the Bank of the United States by an act of congress, and the relative situation of the accused to the bank and the stockholders thereof, charges "that," &c.  [**99]  [Here the Chief Judge stated the indictment as herein before set forth.]
To this indictment there is a general demurrer, by which the facts set forth in the indictment are confessed and admitted by the accused to be true, for the purpose of submitting the question to the decision of the court, whether the facts charged constitute any offence indictable and punishable according to the common law of England?
In order to determine this question, it becomes necessary to consider what is the common law of England as respects this case, and whether the common law of England is the law of this state?
The common law of England is derived from immemorial usage and custom, originating from acts of parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the courts of justice of England.
The people of Maryland have not only recognized the common law of England as the law of the [**100]  state, but by the declaration of rights made by them in convention in 1776, claimed and asserted a right to the common law of England as it was then understood in Maryland, and had been transmitted to us by the reports of adjudged cases decided by the courts of England, and understood by learned men of the profession, who had written on that subject. The common law of England was adopted by the people of Maryland, as it was understood at the time of the declaration of rights, without restraint or modification. Whether particular parts of the common law are applicable to our local circumstances and situation, and our  [*366]  general code of laws and jurisprudence, is a question that comes within the province of the courts of justice, and is to be decided by them. The common law, like our acts of assembly, are subject to the control and modification of the legislature, and may be abrogated or changed as the general assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state,  [**101]  and what part has become obsolete from non user or other cause.
I think it may be assumed as a position which cannot be controverted, and is free from doubt, that the common law of England, as it was understood at the time of the declaration of rights, was the law of Maryland; and I think the position is equally clear, that it must be ascertained by the writings of learned men of the profession, by the judicial records and adjudged cases of the courts of England.
The questions now occur, Do the facts contained in the indictment constitute the crime or offence of conspiracy? And is conspiracy an offence at common law, indictable and punishable as such.
Sergeant Hawkins, in his Pleas of the Crown, ch. 72, in defining conspiracy at common law, makes use of strong and explicit language, and says there can be no doubt but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law; as where divers persons confederate together by indirect means to impoverish a third person. This definition is corroborated and supported by adjudged cases in the courts in England, and especially in the courts of King's [**102]  Bench.
In 1 Lev. 125, 1 Burn's Justice 355, The King vs. Sterling and others, Brewers of London--Information for unlawfully conspiring to impoverish the excisemen by making orders that no small beer, called gallon beer, should be made for a certain time, &c. The whole court concurred in the opinion, and gave judgment for the King.
The statute 33 Edw. I, de conspiratoribus, was made in affirmance of the common law, and is a final definition of the instances or cases of conspiracy mentioned in it; but certainly it does not comprehend all the cases of conspiracy at the common law, which is most apparent from the adjudged cases of the courts of England on that subject.
 [*367]  I consider the adjudications of the courts of England, prior to the era of the independence of America, as authority to show that the common law of England was in the opinion of the judges of the tribunals of that country, and since that time, to be respected as the opinions of enlightened judges of the jurisprudence of England.
The better opinion appears to be, that a conspiracy to do an unlawful act is an indictable offence, although the object of the conspiracy [**103]  is not executed. In this case the conspiracy to cheat, defraud and impoverish, the Bank of the United States, by appropriating the monies, promissory notes, and funds of the bank, to the use of the accused, has been proved by the admission and confession of the defendants, and a consummation of all the overt acts has been fully established.
The Poulterer's case, 9 Coke, 56, 57--The falsa alligantia is a false binding, each to the other, by bond or promise to execute some unlawful act. Before the unlawful act executed, the law punishes the coadjunction, confederacy or false alliance, to the end to prevent the unlawful act--quia quando aliquid prohibetur, prohibetur et id per quod pervenitur ad illud. Et effectus punitur licet non sequatur effectus; and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it. The defendants were punished by fine and imprisonment.
I think it is established by the decisions of the courts of England, that a conspiracy to cheat is an offence indictable and punishable at common law--Rex vs. Wheatly, 2 Burr 1125. A cheat or [**104]  imposition by one person only is not indictable at common law, but a conspiracy to cheat by two or more is indictable at common law, because ordinary care and caution is no guard against it. Indictment against Macarty and others, for a combination to wheat in imposing on the prosecutor stale beer mixed with vinegar, for port wine--6 Mod. 301. Indictment against Cope and others, for a conspiracy to ruin the trade of the prosecutor by bribing his apprentices to put grease into the paste which had spoiled his cards--1 Strange 144. Indictment against Kinnersley and Moore, for a conspiracy to charge Lord Sunderland with endeavouring to commit sodomy with said Moore, in order to extort money from Lord Sunderland. The whole court gave judgment  [*368]  in support of the indictment, and punished Kinnersley by fine, imprisonment, &c. and sentenced Moore to stand in the pillory, suffer a year's imprisonment, and to give security for his good behavior--1 Strange 193, 196. Indictment against Rispal, 3 Burr 1320--The indictment sets forth, that Rispal, and two others, did wickedly and unlawfully [**105]  conspire among themselves, falsely to accuse John Chilton with having taken a quantity of human hair out of a bag, &c. for the purpose of exacting and extorting money from the said John Chilton. The court were of opinion, that the indictment was well laid, and that the gist of the offence is the unlawful conspiring to injure Chilton by this false charge.
A combination among labourers or mechanics to raise their wages, is a conspiracy at common law, and indictable (8 Mod. 10), although lawful for each separately to raise his wages.
I consider the doctrine so firmly established by the decisions of the courts of England, prior to the era of our independence, that a combination or confederacy to do an unlawful act, is a conspiracy indictable and punishable at common law, that I have deemed it unnecessary to refer to all the cases relative to this question, and therefore have contended myself with citing some of those which appear to me most apposite.
The opinion of Lord Ellenborough in The King vs. Turner and others, 13 East 230, does not impugn, but strongly sanctions and confirms this doctrine. He says the cases of conspiracy have gone [**106]  far enough, he should be sorry to push them still further. The charge in the indictment was for committing a civil trespass. He also says, all the cases in conspiracy proceed on the ground that the object of the conspiracy is to be effected by some falsity.
I am of opinion that the judgment be reversed, and the demurrer overruled.
JUDGMENT REVERSED.
The counsel on the part of the state moved the court for a writ of procedendo to Harford county court, directing that court to proceed to a new trial of the prosecution. This was resisted by the counsel of the defendants in error; but THE COURT awarded a writ of procedendo.  

36 of 37 DOCUMENTS 

RUSSELL'S Lessee vs. BAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT, EASTERN SHORE 

1 H. & J. 71; 1800 Md. LEXIS 13 

September Term, 1800, Decided 

PRIOR HISTORY:
 [**1]   EJECTMENT for a tract of land called Clayfall, lying in Cecil county. Defence was taken upon plots made and returned in the cause.

1. The plaintiff, at the trial, offered in evidence to the jury, a lease from the Lord Proprietary to Samuel Thomas, junior a, dated the 24th of December 1748, for 540 acres of land, part of his Lordship's manor of Susquehanna, alias New Connought, lying in Cecil county, for and during three lives, viz. the life of the said Thomas, and of Richard and John Thomas, at a certain annual rent. That the said Samuel Thomas died in July 1784, having by his will devised the lands in the said lease mentioned to his daughter, Anne Russell, the lessor of the plaintiff. That John Thomas mentioned in the said lease is yet living. The plaintiff also gave in evidence a grant from the Lord Proprietary to Francis Wright, dated the 19th of September 1659, for 500 acres of land called Clayfall, "lying at the head of Chesapeake Bay, on the N. side of the said bay, &c. formerly laid out for Francis Clay, but for nonperformance of conditions, again fallen into our hands." And that the land therein mentioned is the same land as is contained in the said lease, and that the [**2]  said land is truly located on the plots returned in this cause. The plaintiff also offered in evidence, the will of the said Francis Wright, dated the 25th of July 1666, whereby he devised unto his brother Raphael Wright, of Covill, in the parish of St. Andrew's in Glamorganshire, in Wales, his house and lands known by the name of Clayfall, in the county of Baltimore, with all things thereunto belonging; and that when his said brother should arrive in the country, that he cause the land and house, and all the negroes, &c. to be appraised, &c. and the one half of the amount so ascertained, he gave by his said will unto Jacob Clawson de Young, late of this province, &c. and the will also provided, that in case his said brother Raphael should die before he came to enjoy the said land, &c. that then the said premises as he gave them to his brother Raphael, should go unto his brother Thomas Wright, and to his heirs, for ever, &c. The will was proved on the 20th of March 1667, by the two witnesses who attested the execution thereof. The plaintiff also gave in evidence, that the said Francis Wright died in the year 1667, without heirs, and that thereby the whole, or a moiety of the said land [**3]  granted to the said Wright, escheated to the Lord Proprietary; and to prove the same, the plaintiff read in evidence to the jury, a record of the proceedings in an action of ejectment brought in the late provincial court by Samuel Thomas's Lessee against John Hamilton, for his Lordship's manor of Susquehannah, or New Connought, lying in Cecil county, and judgment rendered therein at April term, 1752; [see 1 Harr. & M'Hen. 190,] wherein it is stated in the bill of exceptions taken at that trial, "that the said Francis Wright in the year 1667, died seised of the premises in the declaration, without heirs, whereby the land escheated to the Lord Proprietary." The plaintiff further gave in evidence, that the said John Hamilton, (the defendant in the said action of ejectment in the record aforesaid mentioned,) was rector of the parish of St. Mary Ann, to the vestry of which said parish a deed had been executed by a certain John Currier, and Meliscent his wife, on the 7th of June 1748, "for a part or moiety of a certain tract of land called Poplar Neck, being part of a tract called Clayfall," containing 100 acres, and that the said John Currier held the said part of Clayfall, and claimed [**4]  the same under a deed from Jacob and John Young, dated the 7th of May 1748. The plaintiff then gave in evidence two grants from the Lord Proprietary to George Talbot, one for the manor of Susquehannah, containing 32,000 acres, lying in Cecil county, and dated the 11th of June 1680, and the other a grant of confirmation for the said land called Susquehannah Manor, alias New Connought Manor, containing 32,000 acres, and dated the 22d of March 1683. The plaintiff also gave in evidence a deed from the said George Talbot to Jacob Young, the devisee in the will of the said Francis Wright, dated the 10th of June 1687, reciting that Francis Wright died possessed of 250 acres of land in a tract called Clayfall, and leaving no lawful heirs after him, nor having made any written testament before his decease, the same became escheatable to the Lord Proprietary, and that the Lord Proprietary by patent dated the 11th of June 1680, and also by a patent of confirmation of the 21st of March 1683, granted to the said Talbot all that tract of land called Susquehannah, alias New Connought Manor, saving to all persons who had former patents of any land within the natural bounds of the said manor the full [**5]  benefit of their respective patents, they paying to the said Talbot the rent of, &c. by which grant the escheat of the said 250 acres in Clayfall aforesaid, became the right of the said Talbot; and that the said Talbot, in consideration of, &c. granted, &c. to the said Jacob Young, his heirs and assigns, for ever, all his right, &c. in and to the said 250 acres of land, and the escheat thereof, upon account of the want of heirs or assigns deriving title to the same from the said Francis Wright, deceased. The plaintiff then gave in evidence a record of the conviction of the said George Talbot, which states, that the said Talbot had been convicted, and a judgment rendered against him in the general court of the then colony of Virginia, on the 20th of April 1686, for stabbing, contrary to the statute in such case made and provided, a certain Christopher Rousby, in the year 1684, on board of his Majesty's ketch the Quaker, riding in the capes of Virginia; the record also states, that the said Talbot, on the 20th of April 1687, presented his majesty's most gracious pardon, which was received. The plaintiff also gave in evidence, that the Lord Proprietary left the then province of Maryland,  [**6]  and went to Europe, some time in the year 1688; that about that time a civil war took place in Maryland, and an armed force took possession of the colony of Maryland in favour of King William and Queen Mary, and that a convention appointed thereby assumed the powers of government in the said colony; that the government of the said colony was exercised by the Kings and Queens of Great Britain until the year 1716, when it was again restored to the Proprietary: and that the said Proprietary did not return to the colony until some time in the year 1732. That the said Lord Proprietary claimed the said lands leased to the said Samuel Thomas, as part of the manor of Susquehannah or New Connought, which he claimed as vested in him by the conviction and attainder of the said Talbot. That the record of the said conviction was not transmitted to the colony of Maryland, and made a record of that colony, until in the year 1717.

a See the lease mentioned in the case of Thomas' Lessee vs. Hamilton, 1 Harr. & M'Hen. 190.

The defendant then offered in evidence the will of the said Jacob Young, dated the 22d of February 1696, whereby he devised to his son Joseph, the plantation which he [**7]  then lived on, &c. and also the will of the said Joseph Young, dated the 10th of April 1727, whereby he devised to his sons Samuel and William, and their heirs, for ever, all that plantation he then lived upon; and to his sons Jacob and John, and their heirs, for ever, all that plantation which was commonly called Poplar Neck, then in his possession; and to his son Joseph, and his heirs, for ever, all that plantation called Hanleys, &c. The will also provided that his said sons should not give, sell nor dispose of the said lands, except to each other, or to their children. The defendant further gave in evidence, that the said Joseph Young, the testator, died leaving five sons, to wit, Samuel, the eldest; Joseph the second; John, the third; Jacob, the fourth; and William, the fifth and youngest. That Samuel died leaving two daughters, Mary or Polly, and Prudence, and a widow; that the widow intermarried with one Fogg; that Mary intermarried with one Douglass, and Prudence with one Clark or Jones; that John died intestate, and without issue, leaving a widow, who afterwards intermarried with one Foster; and that Jacob and John Young executed to John Currier, the deed before mentioned;  [**8]  and also gave in evidence the before mentioned deed from John Currier to the Vestry of St. Mary Ann's Parish; and also gave in evidence, that he, the defendant, claimed the said land called Clayfall, under the title of the devisees of the said Joseph Young, and under the deed to the said Vestry; and that the said Jacob Young was in possession of a moiety of Clayfall aforesaid, at the time of the conviction and attainder of the said Talbot; and that after the said deed from the said Talbot to the said Jacob Young, he the said Jacob did possess the said tract of land, claiming a right to the whole thereof, until his death; and that the said Joseph, his son, after the death of Jacob, and in virtue of the said will, entered upon, and was in possession of the said tract, claiming the whole thereof until his death; and that the said sons of the said Joseph, in virtue of his will, respectively entered upon and were in possession of the parts devised to them of the said tract called Clayfall, after the death of the said Joseph, by themselves and their alienees, claiming the whole of the said tract, until the year 1780. The defendant further offered in evidence, copies or extracts from the [**9]  debt books of Cecil county, and the rent rolls, remaining in the land office, duly authenticated. By the rent roll, in 1737, it is stated, that Clayfall, 500 acres, was surveyed for Francis Clay, and possessed by Samuel Young. By the debt books in 1737, it is stated, that part of Clayfall, 250 acres, was charged to Jacob Young, and another part, 250 acres, charged to Joseph Young. In 1739 the whole is charged to Samuel Young. In 1749, 100 acres were charged to the Vestry of St. Mary Ann's Parish; 200 acres to Amos Fogg; 100 acres to Thomas Foster, and 100 acres to Joseph Young. In 1754 and 1755 the same charges. In 1758, the same, except that Henry Baker was charged with the parts before charged to Fogg and Foster. In 1761, 100 acres charged to Henry Baker; 300 acres to Amos Fogg. John Douglass, and John Clarke, and 100 acres to the Vestry of St. Mary Ann's Parish. In 1767, the same charges. In a book, without date, 400 acres were charged to Jeremiah Baker, and 100 acres to the Vestry, &c.

Whereupon, the defendant by his counsel prayed the court for their opinion and direction to the jury, that the Lord Proprietary, and Jacob Young, on and after the conviction of the said George [**10]  Talbot in 1686, were tenants in common of the tract of land called Clayfall; and if the jury find that the Lord Proprietary was in the then province (now state) of Maryland, at the time of the said conviction, and for two years thereafter, and at the time of the deed from the said Talbot to Young in 1687; and if they are of opinion that Jacob Young entered upon and claimed the whole of the said land adverse to the right of the Lord Proprietary, until his death in 1696, and that he devised the said land to his son Joseph, and that his son Joseph, in virtue of the said will, entered on the said land, claiming the whole thereof adverse to his co-tenant, the Lord Proprietary, and continued such possession until his death in 1732; and if they further find, that the said Joseph died in possession of the said land, claiming the whole, and devising the whole as his own proper estate to his five sons, and that his said five sons, in virtue of his said devise, entered upon and possessed the said land, claiming the whole thereof adverse to the title of the Lord Proprietary, and as their own proper estate, and continued the said possession by themselves, or their alienees, claiming the same adverse [**11]  to the title of the Lord Proprietary, and as their own proper estate, and continued the possession thereof down to the year 1780, notwithstanding the lease to Samuel Thomas; and if they further find that the said Lord Proprietary, by his agents and officers, accepted from the devisees and alienees of the said Joseph Young, and his sons, quit-rents for the whole of the said land, from the year 1733 until the year 1767, and that Jacob Young and Joseph Young, and those claiming under them, had the uninterrupted possession of the said land, and the receipt of the rents and profits thereof, claiming the whole of the same as their own, from the year 1687 to the year 1780, that then the plaintiff is not entitled to recover.

CHASE, Ch. J. b. The court are of opinion, and direct the jury, that in case they find the facts stated by the defendant to be true, that then the plaintiff hath not made out title to the land for which this ejectment is brought, nor to any part thereof, although they should find the facts stated by the plaintiff to be true. The plaintiff excepted.

b Duvall and Done J. concurring.

2. The plaintiff, by his counsel, then prayed the court for their opinion [**12]  and direction to the jury, (upon the statement aforesaid,) that although the Lord Proprietary and Jacob Young, on and after the conviction of the said Talbot in 1686, were tenants in common of the tract of land called Clayfall; and although the jury should find that the Lord Proprietary was within the province (now state) of Maryland, at the time of the said conviction, and for two years thereafter, and at the time of the deed from Talbot to Young in 1687, and that Jacob Young entered upon and claimed the whole of the said land adverse to the right of the Lord Proprietary, until his death, and that he devised the said land to his son Joseph, and that his son Joseph, in virtue of the said will, entered on the said land, claiming the whole thereof adverse to his co-tenant, the Lord Proprietary, and continued such possession until his death; and although they should further find that the said Joseph died in possession of the said land, claiming the whole, and devising the whole, as his own proper estate, to his five sons, and that his said five sons, in virtue of his said devise, entered upon and possessed the said land, claiming the whole thereof adverse to the title of the Lord Proprietary,  [**13]  and as their own proper estate, and continued the said possession by themselves, or their alienees, until the time when the said lease was made by the said Lord Proprietary to the said Samuel Thomas; and although they should further find that the said Lord Proprietary, by his agents and officers, accepted from the devisees and alienees of the said Joseph Young, and his sons, quit-rents for the whole of the said land, from the year 1733 until the time of the execution of the said lease to the said Thomas, and that Jacob Young and Joseph Young, and those claiming under them, had the uninterrupted possession of the said land, and the receipt of the rents and profits thereof, claiming the whole of the same as their own from the year 1687 to the time of making the said lease to the said Thomas, that then notwithstanding, the lease of the said land by the Lord Proprietary's agent to the said Samuel Thomas was operative to pass an estate in the said lands, the said Lord Proprietary only claiming the same as part of the said manor.

CHASE, Ch. J. The Court are of opinion, that the lease from the Proprietary to Samuel Thomas is not operative to pass the land called Clayfall, nor any part [**14]  thereof, to the said Samuel Thomas; and that the plaintiff has failed to make out title to the land for which this ejectment is brought. The plaintiff excepted. Verdict for the defendant, and judgment thereon. The plaintiff appealed to the court of appeals; and the case came on for argument in that court at November term, 1803.  

DISPOSITION:
Affirmed.  

HEADNOTES:

The Lord Proprietary had not the royal rights of the King of G. B. and he might be barred by the act of limitations and adverse possession of lands, which he claimed by escheat. &c.

Where the Lord Proprietary, and J. Y. were tenants in common of a tract of land in 1686, at the time when the Proprietary was in Maryland, where he remained for two years thereafter, and J. Y. entered upon and claimed the whole tract adverse to the right of the Proprietary, &c and where J. Y. and those claiming under him, had the uninterrupted possession of the land, claiming the whole from the year 1637 to 1780--Held, that the Lord Proprietary was barred by the adversary possession of J. Y. and those claiming under him.

The Proprietary being barred of his right to escheat land by limitations--his lease inoperative to pass the same, &c.

Where D, is in possession of vacant land, which the Proprietary afterwards grands to P. who enters, but is ousted and continued out of possession at the time of making his will and death--Held that the possession of D. was an intrusion, and that P, was not disseised, but that the land passed by his will to his devisee.  

COUNSEL:
Martin, (Attorney General,) for the appellant. In this case two prayers were made to the general court, the first by the defendant, and the other by the plaintiff; and the opinions given by that court upon both prayers were, that the plaintiff was barred by limitations from recovering. The opinion in the first bill of exceptions is, that the lessor of the plaintiff was barred; and in the second, that at the time of the lease by the Lord Proprietary to Thomas, the Lord Proprietary was barred.

1. The first point was, whether or not the Lord Proprietary could be barred by limitations?

2. The second, Whether or not the Lord Proprietary could be barred by the possession of the persons mentioned in the bill of exceptions, so as to preclude his making the lease to Thomas? And

3. The third, Whether or not the Lord Proprietary, having [**15]  no interest in the land at the time, could make the lease to Thomas?

The general court considered, that the case of Kelly's Lessee vs. Greenfield, (2 Harr. & M'Hen. 121,) decided the questions in this cause. It was therefore adjudged without argument. The case of Kelly vs. Greenfield however, has never been acted upon by the court of appeals, nor has any point been decided in this court which will preclude an investigation of the questions arising in this cause; neither was any opinion given in the case of Kelly vs. Greenfield by the general court, by which this case can be affected. The opinion which has gone forth as the opinion of the general court in that case, was a mere dictum of the then Chief Justice Harrison. and had nothing to do with the case before the court. It was one in which the other judges did not concur, as will appear by a statement of one of them, (the present chancellor Hanson,) in 2 Harr. & M'Hen. 140. The decision there turned upon the point of relation, and the judgment given was a correct one. But as the court decided that the patent offered in evidence by the defendant should relate to the certificate, and that therefore the plaintiff could not recover,  [**16]  there was no necessity for them to determine whether or not the Lord Proprietary was barred by limitations, since that question could only arise from their having decided that the patent should not have such relation. If the Proprietary grants land, though not under the proper warrant, yet so long as the grant is unrepealed, it is good. He had a right to dispense with the rules of his land office, and grant land which was liable to escheat to any person who might take it up under a common warrant. He might have repealed the grant on account of deception, if there had been any used; but until the grant was repealed, he was bound by it, and could not grant the same land to any other person. The opinions of Chief Justice Harrison are entitled to very great respect. He was a gentleman of great legal information and moral worth. Certain points decided by him in the case referred to, are certainly correct, such as the five first points; all of which go completely to decide the case in favour of the defendant. But the decision upon the sixth point was on matter dehors the record, and was not demanded by the case before him. The opinion upon the seventh point may be proved an incorrect opinion,  [**17]  and there is no authority in support of the decision upon the eighth point. Opinions, which have no relation to the case to be decided, or are not necessary to be given, are to be considered as mere dicta of the judge, and not as judicial determinations. Vaugh. Rep. 382. On its being suggested that the general court had, in the case of Kelly vs. Greenfield, decided that the Lord Proprietary was barred by the statute of limitations, Chancellor Hanson thought fit to protest against such a suggestion, and pronounce it unfounded. We admit that all the points which are stated to have been decided in the case of Kelly vs. Greenfield, were raised by the counsel. But it is wholly immaterial how many points were raised, if it was unnecessary to decide on all of them.

[The Court of Appeals stopped the attorney general, and Potts, J. said that the opinion stated to have been delivered in the case of Kelly vs. Greenfield is to be considered as the deliberate opinion of the general court as delivered by Ch. J. Harrison.]

Let us now inquire, what were the rights of the Lord Proprietary? He was invested by the charter of Maryland with all the rights which the king had; "with all and singular [**18]  such, and as ample rights jurisdictions, privileges, prerogatives, royalties, liberties, immunities, and royal rights, and temporal franchises whatsoever, as well by sea as by land, within the region, islands, islets and limits aforesaid, to be had, exercised, used and enjoyed, as any Bishop of Durham, within the bishoprick or county palatine of Durham, in our kingdom of England, ever heretofore hath had, held, used or enjoyed, or of right could or ought to have, hold, use or enjoy." 4th clause of the Charter of Maryland. It becomes necessary then to investigate what royal rights were ever granted to the Bishop of Durham, in order to find out what have been granted to the Lord Proprietary of Maryland.

Before the statute 27 Hen. VIII. ch. 24, the Bishop of Durham was as a king, and might pardon all matters, and had jura regalia, but that statute took away part of his privileges. 6 Vin. Ab. 574, 575. That statute however did not affect the Lord Proprietary of Maryland, because he was vested, under the charter, with all the rights which any Bishop of Durham ever had. With respect to royal rights and prerogatives, he cited Cro. Jac. 512, 513. Cowper, 108, 175, 213, 520, 521, 4 Inst.  [**19]  204, Davis's Rep. 62. Jacob's Law Dict. tit. Regalia. The Lord Proprietary of Maryland might have been aptly styled a king, for he had right to make war and conclude peace. He had more power than the state of Maryland now has. 12th clause of the Charter. "Counties palatine, (1 Blk. Com. 118,) are so called a palatio, because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, had in those counties jura regalia, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton (1. 3, c. 8, §  4,) expresses it. They might pardon treasons, murders and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis." 4 Inst. 204. 6 Vin. Ab. 575. The Lord Proprietary had a right to grant titles of nobility. He was the fountain of all honours, and had the same powers in Maryland as the king had in Great Britain, and was always considered in Maryland as standing in the same situation which the king held in Great Britain a. All laws, writs and [**20]  commissions, were in his name, and the Calverts, who governed the province, were as careful and as attentive to the interests of the subjects here, as the king was in Great Britain, and the people of the province were as happy under the reign of the Calverts, as the people over were under the reign of any of the kings of England. As to titles in pais, limitations were never considered as extending to the Lord Proprietary, and there is no instance of his being barred, except it was expressly provided for by act of assembly. This is the well known principle in all criminal prosecutions; and with respect to landed interest, there never was a notion entertained, that the title of the Proprietary was barred by limitations, or adverse possession. This court must decide now, in the manner the case would have been decided before the revolution. It was never thought that the Proprietary was obliged to bring a writ of escheat; and no instance can be shewn, where a writ of escheat was brought; but the universal practice and understanding has been, that if land escheated to the Proprietary, the right immediately accrued to him without any act on his part. He adopted certain rules in his land office,  [**21]  by which escheat and other lands belonging to him, were to be granted; and it was never supposed that improved ungranted lands, no matter how long possessed by any person, could not be taken up as vacant; nor that to grant escheat lands there was first a necessity for an office found. In the case of Thomas's Lessee vs. Hamilton, (1 Harr. & M'Hen. 190,) it was determined, that the grant operated so as to convey the escheat land. No person could obtain possession by entering upon the lands of the Proprietary, so as to bar his right, no matter for what length of time such possession continued. It was an intrusion, and not a legal possession. This point was decided in the case of Lux's Lessee vs. Pellett, et al. b in the general court at May term 1791, where it was determined that the possession of the defendants of lands, not granted, did not bar the Proprietary, nor those claiming under his grant. The Proprietary could never be disseised--no act of an individual could disseise him in contemplation of law. He was the original proprietor, and no one could be seised but under him. To show that the king could not be disseised, cited 4 Bac. Ab. 200, and as applicable to the Lord Proprietary,  [**22]  4 Bac. ab. 198. On an escheat for the want of heirs, the law gives the possession to the king without office found. Plow. 229, 230. A grant is to be taken most strongly against the grantor, and in favor of the grantee. The king may grant a chose in action. Plow. 243, 249. Nobody can disseise the king. He may be wrongfully dispossessed, but the intruder's injurious possession is sine aliquo vestimento, and called an intrusion. 1 Eurr. 109. So if lands belong to the king by attainder, or other title, though they are concealed, &c. the king may, when discovered, grant them to another; for no time runs against the king. 4 Com. Dig. tit. Prerogative, 414, (D. 65,) 415, 417, 460. 3 Co. 10, b. The king, as well as a common person, may make a grant of all lands, &c. which are vested in him. He may grant land coming to him by descent or escheat, without office found, for the freehold is cast upon him by law. 3 Com. Dig. tit. Grant, (G.) 450, 451. Cro. Eliz. 508. 10 Vin. Ab. 145. Sav. 1, 8, 7. 9 Co. 95. b. 4 Co. 58, a. In the seventh point, said to be decided in the case of Kelly vs. Greenfield, the court only determined that the Proprietary did not acquire the same rights with respect to Maryland,  [**23]  which the king of Great Britain had in England. They determined negatively upon the rights acquired under the fifth section of the charter. The Proprietary certainly had the same, and more powers than any Bishop of Durham ever had. The fourth section of the charter gave him the same rights, and other sections gave him others, and more extensive powers. He had a right to enact laws, which the Bishop of Durham had not.

a The special verdict in the case of Brerewood's Lessee vs. Jenifer, Agent of the Lord Proprietary, states, that the Lords Proprietary of the Province always claimed and exercised royal rights in the province, flowing from the charter, and that the courts of law adjudged them to have such rights. So also in Calvert's Lessee vs. Eden et al. 2 Harr. & M'Hen. 279.

b Lux's Lessee vs. Pellet et. al. General Court May Term 1791. Ejectment for a tract of land called Bell Hatch, lying in Baltimore county. Defence was taken upon warrant, and plots were made. Verdict for the plaintiff as to part and for the defendant as to the residue, at September term 1774. The following point was saved for the opinion of the court thereon, viz. The plaintiff, to make out his title, shewed in evidence the certificate of survey and grant for the land mentioned in the declaration in this cause; and also shewed in evidence the will of Nicholas Ruxton Gay, the grantee of the said land, whereby the said land is devised, or mentioned to be devised to the lessor of the plaintiff.

The defendants gave in evidence, that they were before and at the time of the date of the said certificate of survey, in the actual occupation of the said land mentioned in the said certificate and grant; and that after the date of the said certificate, and before the date of the said grant, to wit, in the year 1765, several persons, by the command, and as the servants of the said N. R. Gay, entered on the said land, in houses thereon then being, and therein resided as under the right or title of the said N. R. Gay, for the space of ten weeks or two months, and not longer; and that Francis Philips, as servant and agent of the defendants, ousted the said servants of the said N. R. Gay; and that the defendants have always since continued in the occupation of the said land, claiming the same as their right and property. It was not proved that the said N. R. Gay, or any other person, ever made any other entry on the defendants, or disturbed their said occupation of the said land.

The defendants thereupon objected, that the devise to the lessor of the plaintiff is void, because, as they allege, the said N. R. Gay was, by the acts aforesaid, disseised of the said land, and was continued disseised at the time of his making his will aforesaid, and at the time of his death, which was in the year 1770. The consideration of which point is reserved for the opinion of the court, &c.

S. Chase, for the Plaintiff.

Martin, (Attorney General,) for the Defendants.

THE GENERAL COURT, [Gold borough & J. T. Chase, J. (a)] gave judgment on the point saved, nuncr pro tunc for the Plaintiff.

See also 2 Harr. & M'Hen. 145, per Hanson, J.

(a) Johnson Ch. J. had been counsel for the plaintiff. [**24]  

Key and Harper, for the Appellee. It is said that by the charter of Maryland the Lord Proprietary had all the rights of a Bishop of Durham; and it is contended that the Bishop of Durham had regalia potestas in omnibus, and therefore, that the Proprietary of Maryland had. No Bishop of Durham ever had jura regalia more than to a certain extent. He had certain royal rights, and so had the Proprietary. It was inconsistent with the liberties of the people, that extensive powers should be vested in the Proprietaries. There could not be kings under kings. Whether the king himself could, in a case like the present, have the right of escheat without office found; and whether the Proprietary, upon the conviction and attainder of Talbot was entitled, under a prerogative right, to the moiety of the land for which the ejectment is brought, are questions for the consideration of this court. In the case of Burgess vs. Wheate, 1 W. Blk. Rep. 123, Lord Mansfield said, that an escheat is a reversion which takes effect in the lord by the failure of heirs. Escheat is one of the fruits and consequences of feudal tenure, whereby the land naturally results back, by a kind of reversion, to the original [**25]  grantor or lord of the fee; but in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the land so escheated, or suing out a writ of escheat. It is in some respect a title acquired by his own act, as well as by act of law. The right by escheat is distinguishable from a prerogative right. 2 Blk. Com. 247. Upon an attainder, by prerogative, the king is to have all the lands, &c. For petty treason the lands go to the lord of whom they are holden, and the lord is in by escheat. 4 Bac. Ab. tit. Prerogative, 155. The right by escheat is a feudal, and not a prerogative right. A prerogative right is for the benefit of the people, and not for the king. When a right in escheat attached to the Lord Proprietary, he claimed it in a different manner from the rights which he acquired under the charter. In the year 1686, Talbot was convicted and attainted, and eo instanti the right of escheat, (if at all,) accrued to the Proprietary in the same manner as if Talbot had died without heirs. His Lordship being then in the Province, and not leaving it until 1688, the right vested in him at a time when he was present and capable of asserting it;  [**26]  not having done so, the statute of limitations commenced to run against him, and having once commenced, it never stops, but is a complete bar at the end of twenty years. So by analogy, possession held adverse for twenty years is a bar. The Proprietary, on rights acquired in pais, stands on the same ground as all other citizens. No lapse of time can bar one tenant in common, as against his co-tenant, so as to prevent his suing out his writ of partition, unless the possession of such co-tenant has been adverse and exclusive, or unless the right of entry of such tenant is tolled by descent cast under the statute of 32 Hen. VIII. ch. 33. Lloyd vs. Gordon, et ux. (2 Harr. & M'Hen. 254.) Circumstances may occur when one co-tenant may be barred by limitations. Cowper, 218. The Lord Proprietary was never considered a monarch. He held the province as a subject of the crown of Great Britain. There could not be two kings governing the same subjects at one and the same time. The foundation of prerogative rights in the Proprietary is said to flow from the charter. There are no such rights vested in him by the charter, even admitting the king could have vested any such in one of his subjects. The [**27]  same rights were given as had been vested in any Bishop of Durham, and no Bishop of Durham ever had a right to make laws, or to declare war or conclude peace. They never had jura regalia. The king could vest no such rights in a subject. There was no oath of allegiance taken to the Bishop of Durham, nor to the Proprietary of Maryland; nor had the Bishop of Durham, or the Proprietary, authority to forbid subjects departing the country. The king might restrain their departure, that being one of his prerogative rights. The press was under the control of the king, but not of the Bishop of Durham, nor the Proprietary of Maryland. It would have been destructive to the interest of the mother country if the power of declaring war, or concluding peace, had been vested in any one but the king. The attorney general, however, has contended that the proprietary had these powers under the twelfth section of the charter, which gives him "as full and unrestrained power, as any captain general of an army ever hath had." But it does not follow under this grant of power that he had a right to declare war or make peace; for there is no instance of a captain general of an army having the power, as captain [**28]  general, to do either. The powers, granted under this section of the charter were granted to guard against and repel the predatory incursions of the Indians, &c. and to prevent and to suppress insurrections, &c. The Bishop of Durham had no right to coin money, nor had the Proprietary. The Proprietary might sanction a law authorising the emission of a paper currency. There are a number of other essential rights which the crown has that were not granted to the Proprietary by the charter. The counties palatine were erected for the purpose of repelling invasions; and courts were established therein that suitors and witnesses might not be obliged to go to Westminster, but remain at home to repel invasions, &c. The Bishops of Durham had certain seigneurial rights, such as wards, marriage, escheat, &c. Powers were granted to them to secure to the subjects more extensive liberties. The Bishop of Durham might have these rights without possessing a foot of land. The attorney general has cited 6 Vin. Ab. 575, to show that the Bishop of Durham had royal jurisdiction and seigniory, and the same royal escheats which the king has. Escheat is a feudal right, and is derived from the feudal system.  [**29]  They may be called royal escheats, and so the King's coat may be called a royal coat. But this is only on account of the dignity of the person of the king. He being royal all his rights must be royal. The Bishop of Durham and the Lord Proprietary of Maryland, were both as much subjects of the King of Great Britain as any subject in England or Maryland was. The remote situation of Maryland from England was the reason why certain extraordinary powers were granted to the Proprietary which were not granted to the Bishop of Durham; but none of the powers given to the Proprietary made him a king, or vested in him prerogative rights. The powers of legislation, which were delegated to the Proprietary, and not to the Bishop of Durham, were for the benefit of the people of the province, and were conferred because of their remote situation from the mother country. It was not in the power of the king to confer the right to declare war. The province was granted to the Proprietary as an asylum to himself and a number of wealthy Roman Catholic subjects, who in the mother country were persecuted on account of their religious principles, but they were to continue subjects of the king notwithstanding [**30]  such grant. "The reign of the Calverts" is a new term, never heard of till introduced into this cause by the attorney general. One of the first acts of the Proprietary was the establishment of a land office for the purpose of tenanting out his lands, which could not be done without such an office, and whenever there was an escheat he took the land under the feudal system, being a right acquired under that system. He had no seignorial rights, and nullum tempus, being a prerogative maxim, did not apply to him. The king's revenue is derived, in part, from the rents of his lands and for services performed. The Proprietary of Maryland was never personally engaged in legislation, nor in his courts. He could govern by deputation, and he cannot be supposed to stand in the situation of the king. The common law maxim "that the king can do no wrong," could not be applicable to the Proprietary, nor could the common law be applicable to the charter granted to him. There is no case wherein the courts before the revolution, or since, decided that the Proprietary was not barred by the statute of limitations. All the great officers of the province were dependent upon him for their offices, and particularly [**31]  those of the court of the dernier resort; and this might be the reason the question was never determined either way. But if the question has been so decided, it does not follow that it should be so adjudged now, since our courts have made several decisions directly contrary to some made before the revolution. The right of escheat in this case, which accrued in 1686, was a right in pais, and Judge Blackstone says the right of escheat is not a prerogative right, but is a feudal incident entirely derived from the feudal system, and belonging to every petty feudatory who created subfeuds, and is not a royal right. The Bishop of Durham had certain limited royal rights, and so had the Proprietary, but they had not all the royal rights of the king. 6 Vin. Ab. 575. Davis, 62. They were subjects of Great Britain, owing allegiance to the king, as did those over whom they presided. The parliament could create penalties and annex forfeitures, taking away property, and vesting it in the crown. 4 Inst. 204. 6 Vin. Ab. 575. This shows that neither the Bishop of Durham, nor the Proprietary, were sovereigns. The powers of sovereignty are incommunicable by the crown. Two in the same government, having [**32]  equal power of war and peace, cannot exist. No power can be delegated to the lesser which goes to destroy the greater. If co-equal and co-ordinate powers cannot exist together, one must be superior. The crown is superior, and no powers are delegated but such as may be exercised with safety to the people, and security of the crown. The reason for establishing counties palatine, was different from that which occasioned the grant of the charter to the Proprietary. The king, it is admitted, has privileges, but to say that the Proprietary had them is a petitio principii. Nullum tempus, or exemption from limitations, is not a jura regalia. It is simply an incident to the situation of the crown, occasioned by the king's duties, and it was given him for the benefit of the people, that his revenues should not be diminished. His revenues were originally in rents, specifics and lands; and while he was at the head of his armies, or in the exercise of his royal functions, it was proper that his interests should be protected. It was a salutary and convenient maxim, when applied to the crown; and the attorney general would make the Proprietary a king, in order that it should be equally applicable [**33]  to him. But the situation of the Proprietary did not demand the extension of this maxim to him. Original rights and escheat rights, as to the Proprietary, are different. The law is silent as to nullum tempus being applicable to the Bishop of Durham. The reason is, that it did not apply to him. He could not pardon under the statute of treasons.

There is however another view of this case. The murder of Rousby by Talbot was not an offence against the laws of Maryland; neither the indictment, nor any part of the proceedings, state it to have been a violation of those laws; and consequently there was no forfeiture of his lands in Maryland. Why forfeiture occurs, see 4 Blk. Com. 381. Whether this court can take notice of the conviction and attainder of Talbot, for an offence not committed within the province, but on a trial and conviction in Virginia, is a question for the consideration of the court. Even if the court can notice the record of the proceedings which took place in Virginia, yet, as the Bishop of Durham was not entitled to forfeitures created by statute enacted after the grant, (4 Inst. 205, 216,) neither was the Proprietary entitled to those created by statute enacted [**34]  after the charter. If the Proprietary did not claim under the forfeiture on the attaint of Talbot, as proprietor, and as one of his rights derived under the charter as count palatine, but merely as a feudatory lord of the fee, then he stood upon the same ground with any other lord of the fee, as a mere private individual, and in that capacity he might be barred by the statute of limitations. It does not appear that there was any act done by the Proprietary for a period of 100 years, to acquire a right under the escheat in this case.

Martin, (Attorney General,) in reply. It is of no consequence whether the title to the land in question fell to the Proprietary as chief of the Province, or in his political capacity of count palatine. "The reign of the Calverts" is a correct expression. It is no matter what a person is called, if he has powers; nor is there any thing uncommon that there should be more sovereigns than one governing in the same country. None but sovereigns have jura regalia. It is true the Proprietary may not have had them to the extent of the king from whom he derived them, yet he had them for all the purposes for which we contend. The state of Maryland has not the [**35]  powers of war and peace, nor has it the same powers which were granted by the charter to the Proprietary. It has not the power to restrain the press, nor the power of ne exeat to prevent the departure of citizens, except in cases of debt. The proprietary always issued the writ of ne exeat, when necessary, and he had the right to wage war as captain general of the province; and the people owed to him the same allegiance which he owed to the king, and the same which the people of Maryland now owe to the state. There may be two allegiances, as is the case of the citizens of Maryland, who owe allegiance to the state, and to the United States. So also formerly the subjects of the province owed allegiance to the Proprietary and to the king of Great Britain. The lands in the province were held by fealty from the Proprietary, and the same fealty which he owed to the king, did the people owe to him. The king could not direct any subject of the province to take up arms, or to pay any thing towards the wars which he carried on in Europe. It was under the power of the Proprietary, and his government alone, that money was raised to support any such wars. It is a strange doctrine that the king could [**36]  annul the charter, or pass laws to govern the people of the province. It was his attempt to do so that caused us to declare ourselves independent. The counties palatine, it is true, were created on the frontier to repel invasion, and for that purpose powers were given to the Bishop of Durham; and if so, it was the more necessary that such powers, and greater, should be given to the person who was to rule and govern this country. The Proprietary, under the seventh section of the charter, had a right to make laws with the assent of the delegates, &c. and to cause those laws to be enforced. He had a negative upon all laws enacted by the assembly. All lands were held from him as being the original holder, and all titles thereto emanated from him. Under his authority treason was tried and criminals condemned. He had the right to pardon, and so had the counts palatine. Every power which was necessary for a petty prince to enjoy, the Proprietary did possess and enjoy in the province. That he did possess all the royal rights which had ever been granted to any Bishop of Durham, and more, the fourth section of the charter evidently shows. He was entitled to all escheats, and so were the counts [**37]  palatine, and that they did enjoy jura regalia as fully as the king does, is manifest from all the authorities which have been cited. They could hold courts of justice, &c. and had all the royal rights of seigniory which the king had. The right to declare war and conclude peace, did not endanger the rights of the subjects; nor was there any power given or right conferred on the Bishop of Durham, or the Proprietary, which abridged the right of the subjects, or endangered the authority of the king. The additional powers given to the Proprietary, under the seventh section of the charter, to make laws, &c. were not necessary for the counts palatine to possess. The king's writ did not run in the counties palatine, except writs of error; but the laws of the realm operated therein, and were applicable to the situation of that part of the kingdom. The twenty-second section of the charter directs that courts shall construe the sense and meaning of every word, clause, or sentence thereof, most favourably and beneficially for the Proprietary.

The question upon the subject of the conviction of Talbot, was decided in the case of Thomas's Lessee vs. Hamilton, (1 Harr. & M'Hen. 190,) and this [**38]  court is bound by that decision. It has been stated that the offence was not committed in Maryland, and that the trial and conviction took place in Virginia. There was no necessity that either the offence or the conviction should have been in Maryland. It was only necessary that the person attainted should have property here. The offence of mortally stabbing another is punished as murder. 4 Blk. Com. 193. And in an indictment for stabbing it need not be laid that the offence was committed contrary to the form of the statute. It is an indictment at common law, and need only be laid within the statute. If an offence was committed in any part of England, by a person having land in a county palatine, the land was forfeited to the Bishop of Durham. All the land which Talbot held was forfeited upon his conviction and attainder, no matter where it lay, if it was within any of his Majesty's dominions. Whenever a British subject is convicted and attainted, the benefit of the forfeiture went to the person who made the grant. It was of no consequence where the party died, if he left no heirs, his lands in Maryland escheated to the Proprietary. A subject of Great Britain, if convicted and attainted,  [**39]  forfeits his real estate, because his blood is corrupted, (unless particular laws provide against it,) and it escheats and falls back to the lord of the fee. The trial and conviction in Virginia will as effectually cause a forfeiture of all lands held by Talbot in Maryland, as if they had taken place in Maryland; for the British laws extended as well to Virginia as they did to Maryland. If the statute of 1 Jac. I. ch. 8, respecting stabbing, had existed during the time of the Bishops of Durham, they would have been entitled to all forfeitures which might have accrued under that statute, of lands lying within the counties palatine. It may be admitted, that the land for which this ejectment was brought fell to the Proprietary by escheat. There are two kinds of seigniories, one a royal, and the other an inferior or feudal seigniory. The first appertains to the king, and the latter to a subject holding under or deriving his title from the king. The counts palatine had royal seigniory as well as the king. Talbot held under the Proprietary by fealty only, and upon his conviction and attainder, his lands went to the Proprietary by escheat, and he held it, as Proprietary, in the same manner [**40]  as if it had never been granted. The king claims escheat under his royal seigniory, and so did the Proprietary. He could not be disseised, and it is strange and absurd to suppose that he could. All the lands were held under him, and all right to the soil was derived from him. The holders were his tenants, and if they were turned out, the dispossessor only substituted himself in the place of the tenants. If a tenant is turned out, and the party dispossessing him renders the same rent, and it is accepted, the Lord acknowledges him as his tenant. It is not the Lord who is disseised; it is the tenant. It cannot be said that the Proprietary could be disseised; and unless a tenant could be substituted in the place of the Proprietary, to hold the province under the king, there could be no disseisin. There was no more necessity for the Proprietary, or his officers, to enter upon the land escheated, than there was to enter upon any land which he had never granted; nor was there any occasion for the surveyor, under the escheat warrant, to survey the land, for the escheat grant would have the effect to grant the original tract by the same metes, and bounds, and quantity. In the case of Greaves [**41]  vs. Dempsey, (1 Harr. & M'Hen. 65,) the special verdict expressly finds that there was no inquisition or office found of the escheat, and yet the person under the escheat grant from the Proprietary, recovered. The lease from the Proprietary to Thomas, it is true, was not made until the year 1748, and the escheat had fallen in 1684, when the offence was committed by Talbot; and as the Proprietary had no knowledge of the conviction and attainder of Talbot, until 1717, the statute of limitations, if it had the effect to bar, did not begin its operation until then, if the Proprietary was in the Province; but it is in proof, and so stated in the record, that he was absent from the Province, beyond the seas, from the year 1688 until 1732, during which time, or a greater part of it, the government of the Province was in the hands of other persons who had taken possession of it by force. The Proprietary therefore, when he made the lease in 1748, could not have been barred by limitations, admitting, for a moment, the principle that he could be so barred at all; for he was not bound to know of the conviction and attainder of Talbot, until a record thereof was made in the Province in 1717, and [**42]  at that time he was beyond the seas, and therefore was then within the saving of the statute. Nullum tempus occurrit regi, is a maxim which the British laws have always recognised, and it is a privilege always given to the ruling power. If the Proprietary had held lands in Virginia, he would have stood in the same situation as a private individual; and so the king, if he holds land in France, or in any other country not governed by him, he holds it merely as a citizen of France, or the country in which such land is situated. If the king, before Wales and Scotland were governed by him, was not bound by the statute of limitations when he held but little property therein, how much more ought the chief of a large wilderness of country, as this state was at that time of day, to be entitled to the same privilege. In England the statute of limitations is not pleaded in bar to a debt on bond; but the jury may presume, if the bond be of long standing, that it has been paid and satisfied, or otherwise extinguished. By the extension of the statute of James to this country, it does not necessarily follow that its provisions were extended so as to affect the ruling power of this country. It can [**43]  never be said that the ruling power is to be barred or affected by a statute, unless there be a special provision for that purpose. It has been decided in suits upon sheriffs bonds, (which are limited by the act of July 1729, c. 25, § . 3, to five years,) that the Proprietary, not being named in that act, could not be bound by it. This case should now be decided as it would have been before the revolution, otherwise revolutions would be curses instead of blessings. The counsel in the case of Kelly vs. Greenfield, never thought that the Proprietary stood in the same situation as a private individual; nor did they so contend. They argued upon the ground of the escheat fallen, and contended that it had never been the rule for an escheat patent to relate back to the original certificate, so as to overreach mesne grants; that it only had such relation, where there had been no intermediate grants to others, for the same land; and that after the lapse of sixty years, the court of chancery would not interfere to repeal the grant on account of fraud or deception in obtaining it of the proprietary; so that relief could be procured only at law. If the court in that case considered themselves [**44]  bound to decide on all the points raised in the cause by counsel, whether material or not to its final decision, why was one of the points or questions unanswered, which from the opinion we have, appears to have been the case? The Proprietary, it has been said, ought to be barred, because he never busied himself in the affairs of the province, but acted by his officers. It is precisely the same case with the king, who conducts his affairs by his officers. But with respect to the Proprietary, we have record evidence, that Charles, Lord Baltimore, then the Proprietary, presided in person in the assembly, and in the courts in the years 1676, and from 1681 to 1688. (4 Harr. & M'Hen. 477, and Bacon's Laws of Maryland.)

If the general court were right upon the first bill of exceptions in this case, it was needless for the plaintiff to go into any other evidence. But should this court consider the opinion expressed in that exception to be erroneous, then the judgment must be reversed, and the cause remitted for a new trial. It is therefore unnecessary to take up the time of the court in arguing the second bill of exceptions.

Harper. The judgment ought not to be reversed if the opinion [**45]  in the second bill of exceptions is correct. If this court is of opinion that the lessee is barred after the year 1748, the judgment cannot be reversed; or if the opinion expressed in either of the bills of exceptions is correct, the judgment cannot be reversed; for there is no possession located on the plots so as to clear it of limitations. The plaintiff, if he can shew possession, may bring a new ejectment, and the decision in this case cannot affect him. He might have moved for leave to withdraw a juror, so as to lay down his possessions.

In the case of the Proprietary vs. Bond, (1 Harr. & M'Hen. 210,) it was decided, that the Proprietary was barred by limitations, not having brought the action, being on a sheriff's bond, within five years. The action was to recover money due to the public for ordinary licenses received by the sheriff.

Martin, (Attorney General.) He knew the judges of general court held themselves bound by the supposed decision in the case of Kelly vs. Greenfield. He therefore deemed it needless to instruct his client to have his possessions located on the plots. In the case of Tasker vs. Whittington, (1 Harr. & M'Hen. 151,) the provincial court decided,  [**46]  that the Proprietary was not barred by adverse possession. Similar decisions, he is satisfied, often took place in the courts of the province, if the question was raised. See Lord Baltimore's Ex'x. vs. Huett, 4 Harr. & M'Hen. 482.  

OPINION:

 [*98]  THE COURT OF APPEALS, at June term 1804, affirmed the judgment of the general court, concurring with that court in the opinions expressed in both of the bills of exceptions.  

37 of 37 DOCUMENTS 

MARTIN vs. THE STATE. CLAYPOLE vs. MARTIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND, GENERAL COURT 

1 H. & J. 721; 1805 Md. LEXIS 12 

June Term, 1805, Decided 

PRIOR HISTORY:
 [**1]   THE first of these cases was a writ of error to the general court. It was for the removal of a judgment rendered in that court, on an indictment found at September 1783, against the plaintiff in error, for receiving a fee as attorney-general on an attachment of contempt issued out of said court against a juror for nonattendance at its September term 1778. There was a general demurrer to the indictment, and a joinder in demurrer. The general court, at April term 1788, overruled the demurrer, and fined the attorney-general £  5 current money, and costs; and to reverse that judgment this writ of error was brought.

The other case was an appeal from the general court. It was an action of assumpsit for 151l 5s Od current money, for money paid, laid out and expended, brought in that court by the appellant against the appellee, and the case was submitted to the court on a statement of facts, viz. That the defendant, (Martin,) had been presented in Dorchester county court in 101 cases for assaults and batteries. That the deputy attorney of the state drew indictments on all and each of the presentments, and true bills were found. That the defendant appeared and confessed the charges, and [**2]  submitted to the court, on each of the indictments, and was fined in each case, and ordered to give security for the fines and fees. That the plaintiff, (Claypole,) became security therefor, and paid the fees claimed thereon to the said deputy attorney of the state, to wit, twenty-five shillings on each indictment so found. The question submitted to the general court was, whether the deputy attorney of the state was entitled to receive 200lbs. of tobacco, or 25 shillings, for his fee on each of said indictments? And if so, judgment to be entered for the sum of 151l 5s Od current money damages, and costs; if not, non pross to be entered. The general court, at September term 1802, gave judgment for the defendant, and the plaintiff appealed to this court.  

DISPOSITION:
Affirmed.  

HEADNOTES:

An attachment of contempt against a juror for non attendance, is not an action for which the attorney-general can receive a fee for appearing on behalf of the state.

Where an indictment is found on a presentment in a criminal case, and the party presented and indicted submits the case to the court, the attorney general is not entitled to a fee of 200lbs. of tobacco or 25s.  

COUNSEL:
Martin, (Attorney General,) the plaintiff in error, and for the Appellant. The object of the first proceeding is to ascertain whether or not the attorney-general is entitled to a fee upon an attachment of contempt. He never did receive a fee on all kinds of attachments, but only in certain cases where the party had refused or neglected to attend the court as a juror, and which is considered as a criminal process. In [**3]  cases where the attachment is used in the nature of a civil process, such as to compel the attendance of a witness, the attorney-general never did consider that he was entitled to receive a fee. And as this question is connected with that raised in the other case, which has been stated, for the purpose of getting the opinion of the court on a subject affecting the attorney-general, and his deputies, as to their fees in criminal prosecutions, where indictments are found, and parties submit their cases to the court, he wishes them to be considered conjunctively.

1. He will take up the last case first, and endeavour to satisfy this court, that the judgment of the general court is erroneous, and ought to be reversed. In order to form a correct judgment in the case, it is necessary to attend to the act of assembly of 1715, ch. 48. This is not the act by which attorneys were originally entitled to receive fees. It is merely a restrictive act. Attorneys under that act are entitled to a fee of 400lbs. of tobacco in the general court, and 600lbs. of tobacco in the court of chancery and court of appeals, for prosecuting or defending any suit or action in either of those courts. The title [**4]  of the act is "for rectifying the ill-practices of attorneys of this province, and ascertaining fees to the attorney-general, clerk of indictments, attorneys and practitioners of the law in the courts of this province, and for levying the same by way of execution." It is an established rule of law, that the title of an act cannot be taken into view in the construction of the act. The preamble may be resorted to for the purpose of clearing doubts in parts of the act which may be doubtful. The 1st section of the act of 1715, ch. 48, is relative to the issuing of criminal process. By this section, if there is no presentment, process is not to issue without an order of council or of the court. The 2d section prohibits the clerk of indictments, (meaning the deputy attorney of the state,) from issuing criminal process, where there is no presentment found, without an order of council or of the county court. The 3d section prohibits the clerk of the provincial court, or clerks of the county courts, from issuing criminal process, without an order from an attorney, &c. The attorney, to direct the process, must have an order of council or of the court. The 4th and 5th sections go to rectify certain [**5]  abuses which had taken place in suing navigation bonds--Also that public bonds, when sued by an individual, must be endorsed for whose use suit is brought, &c. The 6th section contains that part of the law upon which this case is supposed to turn. By this section it is provided, with respect to prosecutions in the county courts, that "if the party presented confess his or her crime, and submit to the court, then the clerk of indictments, (meaning the deputy attorney of the state,) shall have 100lbs. of tobacco for his fee, and no more; but if the clerk of indictments draws a bill of indictment upon the said presentment, and the party therein presented traverses such presentment or bill of indictment, and puts himself upon the country for trial thereof, then the clerk of indictments shall have 200lbs. of tobacco for his fee, and no more." It is well known that the party presented cannot be compelled to answer to a presentment without an indictment is found. He may submit on a presentment. The general court, in the case now under consideration, under this section of the law decided, that as the party did submit, though an indictment was drawn, the attorney was entitled only to 100lbs.  [**6]  of tobacco for his fee. If this construction is correct, there are a variety of cases where the attorney is not entitled to a fee at all. If we go upon the strict letter of the law, the court ought to have decided that the attorney was not entitled to any fee; for there is no provision in the law for any fee to the attorney, if there is an indictment drawn, and the party submits to the court The law only gives a fee of 200lbs. of tobacco if there is an indictment drawn, and the party traverses the indictment, or a fee of 100 lbs. of tobacco if there is only a presentment, and the party confesses the charge, and submits to the court. It is contended that 200lbs. of tobacco is the fee in all cases in the county courts, unless particularly restricted by this act. By this section of the act there are only two cases noticed, viz. If the party submits on presentment, or where an indictment is drawn, and the party traverses and puts himself upon the country. Suppose the party demurs to the indictment. This is not a case within the letter of the law; and the attorney is not entitled to a fee, if the construction which the general court has given to the act is correct. Suppose the person presented [**7]  or indicted obtains a nolle prosequi. There is no fee allowed by the law--and yet the attorney has had all the trouble of drawing the indictment, &c. He never doubted but the attorney is entitled to his fee in such cases; and also in cases where, after indictments, the party dies or runs off. The state has always allowed to the attorney-general a fee of 400lbs. of tobacco in all such cases in the general court--and yet by the law, if the strict letter is to be pursued, he is not entitled to any fee. The object of the attorney-general is to have a fair investigation of the subject. He is not more interested than other gentlemen of the bar. The 7th section provides for fees in civil cases--"that there shall be paid to any attorney, or other person, practising the law in any of the county courts of this province, for bringing, prosecuting or defending, any action, of what nature or quality soever, to final judgment, &c. the sum of 100lbs. of tobacco, unless the principal debt and damages, or balance of any debt and damages sued for and recovered, do exceed the sum of 2000lbs. of tobacco, or £  10 sterling, that then the said attorney shall have 200lbs. of tobacco, and no more; and to [**8]  any attorney, or other person practising the law in the provincial court, high court of chancery, commissary's court, court of vice admiralty, or for prosecuting or defending any appeals, writs of error, or any other matter or thing whatsoever, before his excellency the governor and council, the several sums hereafter expressed and set down; that is to say, for prosecuting or defending any cause, plaint, or action of what nature soever, in the provincial, (now general) court, to final judgment, &c. the sum of 400lbs. of tobacco, and no more; for any fee in the high court of chancery, and court of vice admiralty, 600lbs. tobacco, &c. for any fee upon any writ of error, or appeal, which shall be before his excellency the governor and council, (now court of appeals,) 600lbs. of tobacco, and no more; and to his majesty's attorney-general for any action in the provincial (now general) court, at the suit of his majesty, indictment, presentment or information, the sum of 400lbs. of tobacco, and no more." It is a question whether this section relates to actions of trover, detinue, assault and battery, slander, replevin, trespass vi et armis, trespass quare clausum fregit, ejectment, dower [**9]  and partition; for in some of the said actions the specific property may be recovered, and only one penny damages given--in some of the cases no damages at all; and although property may be recovered to a considerable value, yet if the damages do not exceed £  10, the attorney, under the act, is only entitled to 100lbs. tobacco in suits in the county court. Suppose a suit is brought where there is £  1000 due, but the debt is paid in full, or a sum less than £  10 is due when the case is ended--what fee is the attorney entitled to? It has always been the practice in this state for attorneys to send their fees out immediately, not waiting until the suit is ended--and this practice has been sanctioned by the courts; yet if this law is to have a rigid construction, the practice is incorrect. To show the absurdity of the act--suppose the defendant's attorney, by his great abilities, gets his client clear upon payment of a sum less than £  10, for his trouble he gets a fee of 100lbs. tobacco; but if he combines with the attorney of the plaintiff, and suffers a judgment for above £  10, then he gets a fee of 200lbs. of tobacco. The true meaning of the law is, that the attorney is entitled [**10]  only to 100lbs. of tobacco, where the debt due, or damages liquidated, does not exceed £  10 sterling, or 2000lbs. tobacco. There can be no balance of damages in assault and battery, slander, &c. for wrongs and injuries done; and in all other cases than those of debt, or damages liquidated, less than £  10 sterling, the attorney is entitled to a fee of 200lbs. of tobacco. The second section of the act of 1763, ch. 21, and the first section of the act of 1791, ch. 68, show that damages means liquidated damages in the nature of a debt; for it never was intended that justices of the peace should try cases of assaults and batteries &c. The obvious meaning of the act of 1715 is, that the attorney is only to claim a fee of 100lbs. of tobacco, where the party by his suit only claims a debt or sum of money less than £  10 sterling, or 2000lbs. of tobacco. The construction, if you tie it down to the letter of the law, says the sum recovered. But if that is the case, it often occurs that neither the plaintiff nor defendant's attorney are entitled to a cent; for it often happens that cases are entered agreed, on payment of costs. He holds it to be correct, that attorneys in the county courts [**11]  are entitled to a fee of 200lbs. of tobacco in all cases, unless it is evident by the plaintiff's demand he only claims a sum not exceeding £  10 sterling, or 2000lbs. of tobacco. By the act of 1763, ch. 23, s. 12, "an attorney being concerned for either plaintiff or defendant in any case of equity to be heard before the county courts, shall have and receive 100lbs. of tobacco where the debt doth not exceed £  10 sterling, or 2500lbs. of tobacco; and where the debt doth exceed £  10 sterling, or 2500lbs. of tobacco, the attorney shall receive 200lbs. of tobacco." Where the party files his bill in the county court acting as a court of equity, he states in his bill the sum due to him, and if it does not exceed £  10 sterling, or 2500lbs. of tobacco, the attorney is to receive only 100lbs. of tobacco for his fee--This act going upon the same principles as the act of 1715, in common law cases. By the act of 1715 there is no provision for any fee but where suits are brought for debt, or liquidated damages--Leaving the fee as it stood before that act in all other actions. The act of 1715 goes on, as we have seen in the 7th section, to give "to any attorney, or other person practising the [**12]  law in the provincial court," 400lbs. of tobacco for his fee, "in any cause, plaint or action, of what nature soever." If the attorney-general had not been named in the section, he would be considered under the general words of "other person practising the law," &c. to be entitled to 400lbs. of tobacco for his fee, in all state suits prosecuted or defended in the general court. The words referring to the attorney-general--"and to his majesty's attorney general, for any action in the provincial court, at the suit of his majesty, indictment, presentment or information, the sum of 400lbs. of tobacco," are not restrictive, though indictment, presentment, &c. are used; for the section is clear enough without these words, for it is said, "other person practising the law," &c. is entitled to the fee of 400lbs. of tobacco, in "any cause, plaint or action, of what nature soever." The practice ever has been for the attorney-general to receive the fee of 600lbs. of tobacco for prosecuting or defending cases in the court of appeals and court of chancery, where the state was a party, and yet there is no provision in the law that he shall have a fee in those courts, unless the general words of "other [**13]  person practising the law," &c. authorise him to receive the fee. It was not the policy of the law to restrict the attorney-general, for he could receive no other fee than the tobacco pittance The law has not been drawn with very great precision or accuracy. The very first section shows that it has not--For it is said "no process for any criminal matter, or other misdemeanor, shall issue," &c. He knows of no misdemeanor for which a party can be indicted, which is not a criminal matter. The general principle which the act of 1715 had in view, was, that for prosecutions in the county courts, where the prosecutor had not the trouble of drawing an indictment, he should receive no larger fee than 100lbs. of tobacco. So in civil cases, where the suits were for petty sums, it was supposed, as the debt or damages were liquidated, the attorney would have but little trouble, a less fee was given than in other cases. But in all other cases the fee was to remain the same as it stood before the act of 1715. Antecedent to this law the fee was 200lbs. of tobacco in all cases in the county courts, and the object of this law was to restrict the fee in the particular cases therein mentioned.

2.  [**14]  He will now take up the first case. Every attorney, practising the law in the general court, is entitled, in every suit he prosecutes or defends, to a fee of 400lbs. of tobacco. And an attachment which issues out of that court to bring in a person for a breach of the law, is as much a suit as any case for debt upon a bond or any other case. The act of 1715, ch. 37, s. 3, directs that every person returned as a juror, and shall not appear, but make default, shall be fined by the provincial court, &c. It will not be contended that a person summoned to serve as a juror, and who does not attend, may not be presented and indicted. But this being one of those cases punishable as a contempt, may be proceeded on by attachment in a summary way, or the party may be presented and indicted. A summary proceeding is as much an action or suit as a formal proceeding, and the attorney-general is as much bound to attend to the one as to the other. On a petition for freedom, the proceeding may be in a formal manner by homine replegiando, or action of trespass and false imprisonment, for holding, &c. or in a summary way, by petition, without the intervention of a jury. In such cases a fee has always been [**15]  taxed--for before the year 1793, hundreds of petitions were tried in this summary way by the general court, and it has uniformly been the practice in such cases, as well as in all cases of summary proceedings, to allow a fee to the attorney. And in the present case, the attorney-general is as much entitled to a fee as in any other case; and to satisfy the court that he is, he will proceed to show--

1. What is meant by an action and its definition.

Actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur. 2 Inst. 40. Bracton, Lib. 3. c. 1, fol. 17. Action is the form of a suit given by law for recovery of that which is one's due. Actions are either civil or criminal. Jacob's Law Dict. tit. Action. The instruments by which this remedy is obtained, are a variety of suits or actions which are defined by the mirror, the lawful demand of one's right. 3 Blk. Com. 116. An application to a court of justice for redress, is an action. 1 Bac. Ab. 26. Wherever any thing is to be recovered, or the party is to be restored to any thing, it is an action. 2 Bac. Ab. 26. A writ of error, where any thing is to be recovered, is an action, and may be released by that name. Co.  [**16]  Litt. 288, b. 209. Actions, are divided into civil and criminal. Criminal are either to have judgment of death, as appeals of death, &c. or only to have judgment of damages to the party, fine to the king, imprisonment, &c. 1 Bac. Ab. 26. Co. Litt. 209. Suit in law, the same as an action. Jacob's Law Dic. tit. Suit. Criminal cause, the same as criminal action. Wood's Inst. 637, 638. When therefore the state hath any thing due to it--where it has a right--when any law hath been violated, or any grievance been sustained which ought to be redressed by punishment of death, imprisonment, &c. or by fine--for the obtaining which due--for recovering which right--or for the procuring which redress, the state is obliged to have recourse to a court of justice--it is by action at the suit of the state.

2. That all crimes, offences, affronts to the power and infractions of the rights of the community, are to be punished and redressed at the suit of the state.

The king is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence. 4 Blk. Com. 2. In all criminal [**17]  proceedings or prosecutions for offences, the king is prosecutor. All affronts to the power and breaches of the rights of the community, are immediately offences against him. 1 Blk. Com. 278. Hence it follows, that all crimes and offences are considered as immediately against the state; and that the same are punished by actions at the suit of the state: That in proceedings for their punishment, the state is prosecutor, and one of the parties.

3. That for a juror not to serve when summoned, is a crime or offence punishable at common law, discretionally as a contempt--and by our act of assembly by a certain fine.

A crime or misdemeanor is an act committed or omitted in violation of a public law, either forbidding or commanding it. 4 Blk. Com. 5. Wood's Inst. 356, 344. The offence of a juryman not attending, is the omission of a duty to which he is bound by the summons both by common law, and the act of assembly. One species of crimes, contempts against the king's prerogatives--disobedience to the king's writs, is a contempt of the king's prerogative. 4 Blk. Com. 122. 1 Hawk. ch. 22, s. 4. For which the party may be fined and imprisoned. 4 Blk. Com. 123. Hawkins, in his divisions [**18]  of crimes, states among others, contempts against the king's courts and against the king's prerogative. Hawk. ch. 21, s. 22. Offences more immediately against the king, not capital, come generally under the titles of premunire, misprision and contempts, 1 Hawk. ch. 19, and punishable in the same manner as assaults and batteries. A contempt is a criminal matter examinable by way of attachment. Holt's Rep. 136. The different courts where offenders may be prosecuted to punishment. 4 Blk. Com. 258. The court of king's bench takes notice of all criminal causes, (the same as criminal actions,) from high treason to the most trivial misdemeanor. 4 Blk. Com. 265. In the courts of quarter sessions many offences ought to be prosecuted--in this court some are proceeded in by indictment, others in a summary way. 4 Blk. Com. 272. The proceedings in the courts of criminal jurisdiction, in order to the punishment of offences, are divisible into two kinds; summary and regular. Summary, without a jury; regular by a jury. 4 Blk. Com. 280. The common law is a stranger to summary proceedings, unless in the case of contempts. To the head of summary proceedings may be referred the method of punishing contempts [**19]  by the superior courts of justice by attachment. The offence so punished--Those committed by jurymen in collateral matters relating to the discharge of their office; such as making default when summoned. 4 Blk. Com. 283, 284. Though they may be proceeded against in a summary way, they may also be proceeded against at common law by presentment and indictment.

4. That an attachment is a process. An attachment is process to bring in the offender. Wood's Inst. 642. It is a writ to answer to the king of the contempt shown to the counsel of the king. Bro. Ab. tit. Contempt, 8, 13. Vin. tit. Contempt. (A. 2.) An attachment is process awarded in discretion of the judges. Hawk. 141. Attachment: An apprehension of a man by his body to answer, &c. Cowell. Attachment: An apprehension of a man, to bring him to answer an action. Johnson's Dict.

5. What is meant by process? Process, largely taken, signifies the whole proceedings in an action, civil, or criminal. That by which a person is called into court to answer unto. Wood's Inst. 638. Jacob's L. D. tit. Process.

6. The manner of proceeding on attachment. The process of attachment, is merely meant to bring the party into court;  [**20]  when there, he must either stand committed, or put in bail, to answer on oath such interrogatories as shall be administered for the better information of the court. These interrogatories are in the nature of a charge. The accusation must be exhibited in four days; if any of the interrogatories are improper, the defendant may refuse to answer, and move the court to have them struck out. If he confesses, the court punishes. If he can clear himself upon oath he is discharged; but, if perjured, may be prosecuted for perjury, 4 Blk. Com. 287. It is as much a trial as any other suit, and partakes of all the circumstances as other cases. The mode of trial is a singular one. The defendant answers on oath to a criminal charge. If offences be done by persons not in court, and complained of by affidavit, the court may grant an attachment--may commit him to answer interrogatories. The court may, the party first giving notice to the prosecutor of his design, recognize him to answer interrogatories, &c. 2 Hawk. 141. Defendant--is the person sued in a personal action. Trial--The examination of a cause whether civil or criminal. Jacob's L. D. tit. Trial. Trial, is the examination of some matter in [**21]  question between two or more parties, according to the law of the land. 5 Bac. Ab. 217. In capital cases, appeals and attachments, the party must not appear by attorney. 1 Bac. Ab. 185. Meaning, he must be in court himself; but he may employ counsel to assist him. In process of contempt the party has no day to answer until the attachment. Bro. Ab. tit. Jours, 22. Vin. tit. Contempt, c. 4, p. 5.

He will soon show that attachments are considered as suits.

Contempt of the court, and an attachment issued. The person came in and recognized to answer interrogatories. Salk. 84. Upon attachment, the person only to answer interrogatories--If he swear off the contempt, he is discharged. 12 Mod. 348. An attachment advocated by counsel--2 Barnd. 219. In this case counsel appeared and argued the case just in the same manner as other cases. Motion to quash the writ of attachment and argued by counsel on each side. Comyns, 547. In Thomas Jones, 178, the party was discharged on paying a small fine, and costs to the prosecutor. The case was conducted as other suits, and the party called defendant. Though the attachment is prayed for at the instance of a party, and when issued it is put on [**22]  the part of the crown, and considered a criminal proceeding. In 1 Stra. 185, the case is stated as the suit or action of The King against Jones. In the case of The King vs. Barber, Stra. 444, interrogatories settled by counsel. The court struck out what was improper. This prosecution went no further, the act of grace intervening. In Bunberry, 14--Contempt discharged by act of pardon--Shows that the attachment was considered as a criminal case, and that a pardon put an end to it. The case in 1 Sir W. Blk. 637, shows that an attachment is is a mesne process--is bailable, and may be advocated by counsel. The party here submitted on his clerk becoming answerable for fine and costs. There is a difference between an attachment for nonpayment of costs, and an attachment to answer a criminal charge. Cowp. 136. 4 Blk. Com. 285. By consent the party may appear to an attachment by counsel, without being himself in court. But he cannot so appear without consent. The case of King vs. Hall, 2 Sir W. Blk. 1110, shows that an attachment of contempt is a criminal case, and solemnly determined. King vs. Beardmore, 2 Burr. 792. This was an attachment for a contempt, prosecuted entirely by government,  [**23]  and brought by the attorney-general--and the court thanked him for his attention to the case. The contempt here was not a private one, but one in which the government was concerned, and set on foot on the part of the government. Bro. Ab. tit. Contempt, pl. 6, 9. F. went armed into the palace, which was shown to the counsel of the king. The court would have advice of the counsel of the king how he should be punished. Cooke's Prac. Cases, 51. It was moved to estreat the recognizance, because the defendant had not appeared. This case shows the party may be committed, or suffered to recognize, and if he does not appear the recognizance may be forfeited in the same manner as in other criminal cases. King vs. Harries, Cooke's Prac. Ca. 112. This case shows that the sheriff must return the attachment, and if he returns attached, a rule may be laid for him to bring in the body on the attachment, and that the court are to decide upon motions, &c. in the same manner as other cases. That the king's attorney is to conduct the case as in all other criminal cases. He is to call the attachment, &c. In the case of Cox vs. Philips, Cases K. B. 239--Interrogatories were filed, and the defendant demurred [**24]  to them. The king's counsel argued the demurrer. The attachment in this case issued for an abuse of the process of the court, and after it issued it was conducted by the king's attorney, and considered a criminal proceeding, and prosecuted on the crown side. A quaker cannot be a witness to obtain an attachment. Being a criminal proceeding, an affirmation was not permitted. Ellwood vs. Ellwood, Cooke's Prac. Ca. 124. An attachment being a criminal process, may issue against a peer. 1 Wils. 332. Some attachments are considered civil process. Where an attachment goes for the purpose of instituting a civil suit, it is a civil process. But where it issues for a contempt it is a criminal process. Process at the king's suit may be served on Sunday. An attachment for contempt partakes of the nature of process on indictment. 12 Mod. 348. The question arose in 8 Term Rep. 86, 2 Lord Raym. 1028, as to the service of an attachment on Sunday. There are two kinds of attachment, the one entitles the party to his action for damages; the other punishes the contempt. 12 Mod. 164, 348. An attachment may be taken out at the suit of the king and party. 2 Hawk. ch. 150, s. 27. To show that contempts may [**25]  be punished by information or indictment, he cites Wood's Inst 656. Information lies for contempt. Escaping from legal imprisonment on a process of contempt. 2 Hawk. ch. 26. s. 1. Contempts may be punished by indictment. 2 Hawk. c. 22, s. 4. Every contempt, if no other provision made, may be proceeded against by indictment. Contempts of courts of justice indictable. 1 Hawk. c. 21, s. 10, c. 22, s. 5. 1 Dall. Rep. 319. A man may be indicted for contemptuous words spoken of the judge of a court. In this case one of the judges doubted whether the words spoken amounted to a contempt. King vs. Mayo, 1 Siderf. 144. The attachment must go on the crown side of the court, and in the name of the king. When on the civil, and when on the crown side, particularly mentioned. Wood vs. Webb, s T. R. 253. As to attachments for costs.--1 T. R. 256. 8 T. R. 86. Other cases cited 1 Stra. 267. King vs. Horsley, 5 T. R. 362. Respublica vs. Orwald, 1 Dall. Rep. 319--also shews it is a criminal proceeding. In Wallace's Rep. of cases in the circuit court of the United States for the Pennsylvania district, page 77, it stands Hollingsworth vs. Duane--an attachment ordered; and in page 134 it is carried on The [**26]  United States vs. Duane. As to the entitling the rule, until the attachment issues, it is to be in the name of the applicant, and on the civil side. But after the attachment issues, it is a criminal case, and in the name of the United States, and on the criminal side of the court. All these cases go to show, that where an attachment issues to punish any offence it is considered a criminal proceeding, and on the crown side, and is as much a suit as any other case, and equally conducted by counsel--and the counsel of the state is bound to attend as much to a summary proceeding, where the state is concerned, as in any other. When the attorney-general came into office, which was in 1778, he was unacquainted with criminal proceedings. The then chief justice, (Mr. Paca,) had been an attorney of the provincial court, and was well acquainted with the proceedings of that court. In the dockets of 1779 of the general court, all the attachments are on the same docket with the other criminal business, with the name of the attorney-general as appearing for the state; and there are a number of attachments against jurymen, who were either fined or discharged on paying fees--and in all such cases the [**27]  fee of the attorney-general is taxed by the clerk with the other costs, and paid to him in the same manner as in other criminal cases. Other dockets before and since 1779, until the present indictment was found, show that such was the practice uniformly during the time Mr Paca was the chief justice. When the indictment now before the court was found, and judgment thereon given, the then chief justice, (Colonel Harrison,) was presiding. He had never practised in the provincial or general court, and could not be supposed to know the practice of either of those courts previous to his appointment. The attorney-general never received fees in cases of attachments against witnesses for nonattendance. He only received fees on attachments against jurymen; and since the present indictment, he has ceased receiving them on attachments against jurors. An attachment against a witness issues on the application of the party who wishes the attendance of his witness. But if a juror does not attend, a general order of court is given directing attachments against such as do not attend, returnable to the subsequent term. The attachment cannot issue without directions from the attorney-general; and the [**28]  attorney-general could not direct without the order of the court. Act 1715, c. 48, s. 2, 3. The state is a party on the attachment. The party must conduct his suit by attorney, or in person: But the state being a body corporate cannot appear but by its attorney. The attorney-general has always been ready to bring this point before the court. He was not much interested in the particular fees, as few cases of the kind occur in the courts. He believes he is not remarked for great anxiety to exact fees. He has never exacted any from his deputies. His object has been to get proper characters to prosecute for him in the county courts. The act of 1715, ch. 48, is not the only act under which attorneys ought to charge fees. It is therefore a question, under what law do attorneys receive fees? The charter of Maryland was granted in 1632, and the first book of records is in 1653. The first judiciary proceeding is in 1658, of course attorneys fees must have been regulated previous to that time. There must have been such regulations, for so soon as the courts were established, fees must be allowed. There were laws in existence which cannot now be found. The destruction of a law giving rights does [**29]  not take away the right, no more than the destruction of a deed conveying an estate destroys the right. The attorney is entitled to a quantum meruit for his services. When fees were regulated, the tobacco at one penny half penny per pound was then of more value than a shilling per pound is now. The counsel on the part of the state may say, that by the record it does not appear that the attorney-general appeared to the attachment stated in the indictment on which it is charged he received the illegal fee; that it is not stated in the record that the attorney-general appeared for the state when the party appeared and submitted on the attachment. This is the mode of making up criminal records. The king or the state is considered always in court. Lill. Ent. 238. If the record is not legally recited in the indictment, it is not the fault of the attorney-general, and he had no right to say it was not the correct mode. He disclaims all right, if there is any technical error, or other incorrect form in the record before the court, to take any advantage of it. So far as his admission can cure errors, he will admit that the record is regularly before the court, and correct in point of form.  [**30]  He will show that long before the year 1715 there was a law regulating attorneys fees; or that there was a regulation by the court amounting to a law, allowing fees to attorneys, and which cannot now be found. The common law by which we are now governed was originally the statute law, which has been long since lost. The first legislature in Maryland was in 1637, and among the laws agreed to at the session, held in January of that year, is "No 34, a bill for fees," which is not to be found, and Bacon, in his introduction to his edition of the laws of Maryland, has accounted for it. In 1638 sundry bills were read and engrossed, but never read the third time, among which was one--"For fees." There is no law to be found on record previous to the year 1699, which regulates attorneys fees. By the act of 1674, ch. 31, there was an express regulation of attorneys fees; but this law is not to be found on record, nor is it noted in Bacon's edition to be recorded--though there are laws in the same session which are on record. The act in 1638, ch. 14, recorded in Lib. C. and W. H. fol. 26, is the first law regulating fees which can be found, but this law does not appear to have passed the house--It [**31]  is however on record. In 1642, ch. 5, recorded in Lib. C. and W. H, fol. 81, is an act providing for officers. In the same book, fol. 103, is a table of fees assessed and published by the Lieut. General and Council, on the 1st of August 1642. There is nothing in this table relative to attorneys fees. 1674, ch. 5, "an act for payment of fees due in criminal cases." This act directed that the criminal should pay the fees if they had property, if not, they were to pay by servitude. 1676, ch. 11, "an act for limitation of officers fees." There is nothing said in this act respecting attorneys fees; but there is a provision that the governor and council might allow fees where the law had omitted to make provision. 1704, ch. 55, "an act for rectifying the ill-practices of attorneys of this province, and ascertaining the attorney-general's, and clerk of the indictment's fees." By a note in Bacon it is said "a new law made in 1715, ch. 48." By the act of 1704, ch. 55, the attorney-general, or his deputy, was to receive, where there was no indictment, a fee of 100lbs. of tobacco. This was a restriction of the previous regulation of fees. It was an exception from the general provision. This law [**32]  is free from ambiguity. But the act of 1715, ch. 48, goes on further, and says, "but if the clerk of indictments draws a bill of indictment upon the said presentment, and the party therein presented traverses," &c. instead of or, as is in the act of 1704. There are no other regulations in the act of 1704 respecting attorneys fees. The act of 1708, ch. 8, "ascertaining fees to the attorneys and practitioners of the law in the courts of this province," &c. seems to give attorneys in the county court a fee of 100lbs. of tobacco in all cases. In 1704 the attorney-general had a fee of 200lbs. of tobacco in certain criminal cases, and if so, why not a fee of 200lbs. of tobacco in civil cases also? The court may judge what are reasonable fees--12 Mod. 608, 609. Though it is not conclusive unless the jury concur--and if declared reasonable, it is conclusive in all cases. Where there are no fees limited, the person must have what he reasonably deserves. 2 Hardress, 355. Every person rendering services is entitled to be rewarded. 13 Vin. tit. Fees, (E.) pl. 2, 3. The jury may fix the fees, and when fixed they become regular and incontrovertible fees. Ibid. pl. 5. On a quantum meruit, if allowed [**33]  by a jury, the fees become established. 1 Salkeld, 333. The court are authorised to suppose, that previous to the year 1704 the fee in the county court in all cases was 200lbs. of tobacco. The legislature have never been in the practice of raising fees, and the practice was for the attorney to receive a fee of 200lbs. of tobacco in all cases in the county courts. It is evident there was a previous provision, which law or regulation cannot now be found. It was a bare reasonable fee. And as the legislature have regulated the fees in certain cases, it is to be presumed that the fee in other cases was not less.

Pinkney, for the State. He would not long trespass on the patience of the court, which had been already so severely taxed by the long, though learned argument of the attorney-general--whose speech, however, was distinguished by these two qualities, that of being remarkably redundant, and remarkably deficient. He had resorted to authorities without number to support principally what nobody denied, and abandoned the field of fair argument. The attorney-general has introduced into the discussion three different topics:

1. A feigned issue relative to criminal fees to the deputy [**34]  attorneys of the state in the county courts.

2. What are the fees of the attorneys in civil cases in the county courts? And

3. What are the fees of the attorney-general, and his right to fees, in cases of attachments against defaulting jurymen?

As to the two first points he has nothing to do with them. He will confine his argument solely to the last point.

The attorney-general is indicted for charging and receiving a fee upon an attachment of contempt issued against a juror for nonattendance; and whether he is authorised to charge a fee in such a case, is the sole question to be discussed. If the attorney-general has a right to charge a fee in that case, the act of 1715, ch. 48, must give it to him. It is in vain to talk of usage. The attorney-general must show, that ita lex scripta est, and unless he can produce a law justifying the demand, he is guilty of extortion. He does not mean to discuss the question, whether a private attorney, if there existed no regulation with respect to fees, could recover upon a quantum meruit for the value of his services. The case of a public officer is very different, and he must show an express law to authorise his demand. If he [**35]  had a fixed salary allowed him as a recompense for his services, it would be extortion for him to receive more. It is the same thing where there are fees given to him. To vindicate himself he must show a positive law in his justification, and must not rely upon usage. He acquits the attorney-general of all criminal motives. No man is better acquainted with his generosity and utter negligence in pecuniary concerns. No doubt he received the fee under an entire conviction that he had a right to it. The honour of the attorney-general is not in question. He must stand upon a legal bottom--Upon the last only we are at issue. The sole question before the court, is what is the true construction of the act of 1715 with reference to the fees in the general court? The attorney-general is mistaken when he says that the act of 1715 was made to reduce the fees in the county courts. The act of 1708, ch. 8, fixed the fee in every case at 100lbs. of tobacco. It had no casus omissus. The act of 1715 re-enacts that of 1708, except so far as it is inconsistent with it. It enlarges the fee in some cases; but diminishes it in none. The 7th section of the act of 1715, ch. 48, specifies the cases in which [**36]  fees in civil suits are to be demanded. The attorney-general contends, that if the act had stopped here, it would have authorised him to demand. It is unnecessary to answer him, because the act has not stopped here. If there had been no special provision, then he might have claimed to be included in the general provision. But such a special provision is expressly made, and excludes the possibility of extending the general provision to the attorney-general, so far as respects his fees in the general court. After providing what shall be the fees of the attorneys, it goes on to say, "and to his majesty's attorney-general for any action in the provincial court at the suit of his majesty, indictment, presentment or information, the sum of 400lbs. of tobacco, and no more." This is the special provision made for the fees of the attorney-general, and must reach to every case. If the general assembly had intended to include him in the general provision, then no special provision would have been subsequently made. Where special fees are given we must suppose that no other fees are meant to be allowed but those given--no casus omissus to be presumed. The attorney-general seems to be aware of [**37]  the force of this argument, and has therefore contended that attachments come within the words of this provision. It cannot be contended that an attachment is either an indictment, presentment or information. There being only one other expression in the provision on which to rely, the attorney-general has contended that an attachment is an action or quasi an action. To do this, he has cited a number of cases to prove, what any of them would have established and cannot be controverted, that an attachment is a criminal proceeding. But still it remains to be proved that an attachment is an action. He has always understood that the word "action" was used in this law in contradistinction to criminal suits. The legislature could not have intended to mean by the word "action," criminal proceedings, because they have afterwards used words to embrace almost every criminal proceeding. In the provision regulating the fees of prosecutors in the county courts, the word "action" is not used. Yet attachments against jurors as frequently issue from the county courts as from the general court. It follows therefore, that the word "action" must mean civil suits. The definition of the word "action" in [**38]  the law books, all prove that it is either the assertion of an individual right, or a criminal proceeding carried on by and for the use of an individual. Actions are said to be either criminal or civil; criminal, as appeals of death, felony or mayhem--civil, either real personal or mixed. 1 Bac. Ab. 26. 2 Wood's Inst. 561. Jacob's Law Dictionary, tit. Action. But it is needless to examine the books for a definition of the word action; the sense in which the legislature have used it is obvious. If they had intended it as a nomen generalissimum, to comprehend every species of criminal as well as civil proceedings, why add the other words "indictment, presentment or information?" He declined noticing the cases which had been cited by the attorney-general to establish principles totally irrelevant to the question in issue, and which he was not concerned to refute. He had contented himself with making such observations only as he conceived to be required by his duty. He had no wish to strip the office of any of its emoluments. If the court, consistently with the laws of the land, could reverse the judgment of the general court, he should rejoice. The question, however, is not what fees [**39]  ought to be allowed, but what were by law authorised to be received. It appeared to him most clearly, that the attorney-general had no claim to fees in this summary mode of proceeding--nor is it proper he should have, for the proceedings, with respect to him, is principally a matter of form. As he understood the law, a process of attachment can never be resorted to when any other will serve--so that the attorney-general's argument, that had a more circuitous mode of proceeding been adopted there could have been no doubt of his right, has no force. He submits the case with the few remarks which he has thought proper to make, adding that the crowd of authorities adduced by the attorney-general has nothing to do with the real merits of the question.  

OPINION:

 [*743]  THE COURT OF APPEALS affirmed the judgments of the General Court in both the cases.  

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