LEXSEE 165 md 651

LUCIEN VAN REUTH ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE.  

No. 76 

COURT OF APPEALS OF MARYLAND 

165 Md. 651; 170 A. 199; 1934 Md. LEXIS 176 

January 12, 1934,
 Appeal from the Circuit Court No. 2 of Baltimore City (O'DUNNE, J.).

.

Humanitarian purposes being within the corporate purposes of the City of Baltimore, a devise of property to the city, "its authorities to use it for any outstanding purpose for which they may deem it best suited -- Humanitarian or Artistic," was not invalid as creating a trust for indefinite objects, there being no evidence of an intention to create a trust.
COUNSEL:
Charles P. Burger, Michael J. Manley, and Harley, Wheltle & Webster, submitting on brief, for the appellants.

J. Francis Ireton, Assistant City Solicitor, with whom were R. E. Lee Marshall, City Solicitor, and Paul F. Due, Deputy City Solicitor, on the brief, for the appellee.  

JUDGES:
The cause was argued before BOND, C. J., PATTISON, ADKINS, DIGGES, PARKE, and SLOAN, JJ.  

OPINIONBY:
ADKINS 

OPINION: 1931-34

BALTIMORE v. STATE, USE OF JOHN AHRENS ET AL.  

No. 4 

COURT OF APPEALS OF MARYLAND 

168 Md. 619; 179 A. 169; 1935 Md. LEXIS 186; 99 A.L.R. 680 

May 21, 1935, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Baltimore City Court (DENNIS, C. J.).

The City of Baltimore was not liable by reason of the drowning of a boy while wading in a stream in Gwynn's Falls Park, even though the city was negligent in failing to warn the public by signs of the dangerous character of the spot at which the drowning occurred, or to take other precautions to protect the public, since the maintenance and operation of the park was a governmental duty, performed by the city in its political and governmental capacity as an agency of the State.  

COUNSEL:
R. E. Lee Marshall, City Solicitor, and J. Francis Ireton, Assistant City Solicitor, with whom was Edwin J. Wolf, Assistant City Solicitor, on the brief, for the appellant.

Joseph W. Spector and L. Wethered Barroll, with whom were W. Albert Menchine and Symone S. Spector on the brief, for the appellee.  

JUDGES:
The cause was argued before BOND, C. J., OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.  

OPINIONBY:
MITCHELL 

1933, 

LEXSEE 168 md 421

TONY GREEN ET AL. v. AARON SAMUELSON ET AL.  

No. 27 

COURT OF APPEALS OF MARYLAND 

168 Md. 421; 178 A. 109; 1935 Md. LEXIS 164; 99 A.L.R. 528 

April 2, 1935, Decided 

Every man has a legal right to refuse business relations with any person whomsoever, whether his refusal rests upon reason or is the result of whim, caprice, prejudice, or malice.

The picketing by colored persons of the stores of white merchants, in order to compel the latter to employ colored clerks, is a proper subject for an injunction, such a racial or social matter not being subject to rules applicable to labor disputes.

p. 429 

COUNSEL:
W. A. C. Hughes, Jr., with whom were Warner T. McGuinn and McGuinn & Hughes on the brief, for the appellants.

Leonard Weinberg and Harry J. Green, with whom were Herman Samuelson, Oscar Samuelson, and Weinberg & Sweeten, on the brief, for the appellees.  

JUDGES:
The cause was argued before BOND, C. J., OFFUTT, PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.  

OPINIONBY:
SLOAN 

OPINION:

  SLOAN   1933

   MAYOR AND CITY COUNCIL OF BALTIMORE v. HANOVER SHIRT COMPANY 
COURT OF APPEALS OF MARYLAND 

168 Md. 174; 177 A. 160; 1935 Md. LEXIS 142 

February 6, 1935, Decided 

HEADNOTES:

Exemption from Taxes -- Property Used in Manufacturing

The exemption from taxation, granted by an ordinance as regards personal property used entirely or chiefly in connection with manufacturing in Baltimore City, was applicable in favor of a shirt manufacturing company which conducted in the city all the processes of manufacturing shirts, fifteen in number, except that the sewing of the materials, after they were stamped and cut in the city, was done outside thereof, they being then returned to the city for assorting, starching, and wrapping.  

COUNSEL:
Lawrence B. Fenneman and W. Wallace Rhynhart, Assistant City Solicitors, with whom was R. E. Lee Marshall, City Solicitor, on the brief, for the appellant.

Wirt A. Duvall, Jr., with whom was Philip B. Perlman on the brief, for the appellee.  

JUDGES:
The cause was argued before BOND, C. J., URNER, OFFUTT, SLOAN, and MITCHELL, JJ.  

OPINIONBY:
MITCHELL 

OPINION:

 [*175]   [**160]  MITCHELL, J., delivered the opinion of the Court.
The Hanover Shirt Company, one of the appellees in this case, was incorporated in January, 1932, 

LEXSEE 171 md 178

STATE OF MARYLAND, TO USE OF IRMA A. BIRCKHEAD, v. JAMES S. SAMMON et al.  

No. 16, October Term, 1936 

Court of Appeals of Maryland 

171 Md. 178; 189 A. 265; 1936 Md. LEXIS 42 

November 19, 1936, Decided 

PRIOR HISTORY:
 [***1]    
Appeal from the Court of Common Pleas of Baltimore City; Solter, J.  

DISPOSITION:
Judgment affirmed as to the defendant Hochschild, Kohn & Co., Inc., and reversed, and new trial awarded, as to the defendants James S. Sammon and Baltimore Flying Service, Inc.; the costs to be paid by the two last-named defendants.  

HEADNOTES:

Accident at Airport -- Landing of Airplane -- Aeronautics Statute -- Negligence -- Police Supervision -- And Warnings.
The question of the liability of the owner and operator of an airplane for causing injury to a person while landing at an airport is to be determined in accordance with common law principles affecting responsibility for negligence.
In a suit against the owner and operator of an airplane by which plaintiff's child was killed, it was for the appellate court, on appeal from a judgment for defendant, based on a directed verdict in his favor, not to decide whether he was negligent, but whether the evidence was sufficient to sustain plaintiff's contention that the issue should have been submitted to the jury. 

COUNSEL:
J. Rieman McIntosh and Robert Stinson, with whom was Stuart S. Janney on the brief,  [***5]  for the appellant.
Norwood B. Orrick, with whom were Venable, Baetjer & Howard on the brief, for James S. Sammon, appellee.
Robert D. Bartlett, submitting on brief, for Baltimore Air Terminals, appellee.
John H. Hessey, with whom were Musgrave, Bowling & Hessey on the brief, for Baltimore Flying Service, appellee.
Clarence A. Tucker, with whom were Knapp, Tucker & Thomas on the brief, for Hochschild, Kohn & Company, appellee.  

JUDGES:

Bond, C. J., Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Urner, J., delivered the opinion of the Court.  Bond, C. J., and Parke and Sloan, JJ., dissent from reversal as to James S. Sammon and Baltimore Flying Service, Inc.  Offutt and Johnson, JJ., dissent from affirmance as to Hochschild, Kohn & Co., Inc.  

OPINIONBY:
URNER 

OPINION:

1935, across the flying field of the Curtiss-Wright Airport near Baltimore, along the course of a formerly used road, the rider in the lead was struck and killed by an airplane as it was gliding to the ground. 

LEXSEE 170 md 326

RICHARD F. SCHNEIDER v. ARTHUR W. DUER ET AL.  

No. 52 

COURT OF APPEALS OF MARYLAND 

170 Md. 326; 184 A. 914; 1936 Md. LEXIS 103 

May 18, 1936, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Circuit Court of Baltimore City (O'DUNNE, J.).

Bill by Richard F. Schneider against Arthur W. Duer, and others, named as members of the State Board of Barber Examiners, and J. Bernard Wells, State's Attorney for Baltimore City. From a decree dismissing the bill, the plaintiff appeals. Reversed.

The occupation of barbering is a trade or calling that may be subjected to police regulation, so far as the health and safety of the public is concerned.

p. 331

The requirements of Acts 1935, ch. 371, that an applicant for a barber's license shall have had ten years of educational preparation, shall be a graduate of the eighth grade, and shall have completed a two year course in a barber school or a barber shop, with specifications as to what shall be included in the course of instruction, are unreasonable.

COUNSEL:
Abram C. Joseph, with whom were Louis Peregoff, Jacob Blum, and Daniel C. Joseph, on the brief, for the appellant.

Charles T. LeViness, III, Assistant Attorney General, with whom was Herbert R. O'Conor, Attorney General, on the brief, for the appellees.  

JUDGES:
The cause was argued before BOND, C. J., OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.  

MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. ELIZABETH ERCOLANO MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. GUSTAVE KELM ET AL.  

Nos. 13, 14 

COURT OF APPEALS OF MARYLAND 

170 Md. 341; 184 A. 164; 1936 Md. LEXIS 104 

April 9, 1936, Decided 

PRIOR HISTORY:
 [***1]  Appeals from the Baltimore City Court (O'DUNNE, J.).

The holders of a market stall, under a license from the city for the period of a year, renewable from year to year with the city comptroller's approval, were entitled, on condemnation of their rights in the stall for the widening of a street, and after the city had decided not to continue the stalls and renew the license for another year, to damages merely in the amount by which the use and occupation of the stall for the balance of the year exceeded the license fee and rent paid for the year then ending.

Ogle Marbury and Lawrence W. Hecht, for the appellees.  

JUDGES:
The causes were argued, as of January Term, before BOND, C. J., URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.  

OPINIONBY:
BOND 

OPINION:
There is no evidence of customary dealing with the stalls by the city before 1900. Stalls were sold at auction in some instances, but by whom is not known to witnesses examined. Private sales by individual owners have been common, and high prices have been obtained in the past. Whatever the title of a licensee or tenant, the rights resulting, in this and other markets, have been valued highly, and availed of as investments, subject to sale or pledge, subject to execution for debts, and transmissible at death as assets of the owner's estate. And in the decisions of this court the rights have been allowed this substantial quality and effect. It is known that, in one other market at least, stalls or rights in stalls were once sold by the city at high rates.  Rose v. Baltimore, 51 Md. 256; Border State Sav. Inst. v. Wilcox, 63 Md. 525; Green v. Western Nat. Bank, 86 Md. 279, 38 A. 131. Changes in recent years in the method [***7]  of retailing food supplies, and perhaps other economic changes, have caused the vacating and abandonment of more than three-eighths of the stalls in Belair Market. The appellees believe the threat of condemnation has contributed to cause the vacating  [*347]  of the stalls affected; other witnesses are not of that belief.
Elizabeth Ercolano, licensee of a stall numbered 381, to be removed, has been a holder of eleven stalls in the same market, for investment, having purchased them all in 1921 for about $ 4,500, from persons who were the owners in 1900 and afterwards. Mrs. Ercolano has since sold one for $ 2,500, and has abandoned five others, retaining No. 381, with four others. That particular stall, however, has not been occupied, except for two months, during the past eight years and more. She paid license fees for it from 1921 to 1934, but has not paid any in 1935, for the current year, and consequently has no certificate or license for it after May 1st, 1935. Lacking sufficient money for payment otherwise, she was permitted by the market master to make delayed payments on other stalls, one at a time, and has done so; but she has paid nothing on No. 381. The market master,  [***8]  in October, 1935, threatened to bring suit for the money, but did not bring it.

LEXSEE 169 md 478

UNIVERSITY OF MARYLAND v. DONALD G. MURRAY 

No. 53 

COURT OF APPEALS OF MARYLAND 

169 Md. 478; 182 A. 590; 1936 Md. LEXIS 51 

January 15, 1936, Decided 

PRIOR HISTORY:
 [***1]  Appeal from the Baltimore City Court (O'DUNNE, J.).

Mandamus proceeding by Donald G. Murray to compel Raymond A. Pearson and others, officers and members of the Board of Regents of the University of Maryland, to admit petitioner as a student in the Law School of the University. From an order directing the issue of the writ, respondents appeal. Affirmed.  

COUNSEL:
Wm. L. Henderson and Charles T. LeViness, 3rd, Assistant Attorneys General, with whom was Herbert R. O'Conor, Attorney General, on the brief, for the appellants.

Thurgood Marshall and Charles H. Houston, with whom was William I. Gosnell on the brief, for the appellee.  

JUDGES:
The cause was argued before BOND, C. J., URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.  

OPINIONBY:
BOND 

OPINION:

 [*480]   [**590]  BOND, C. J., delivered the opinion of the Court.
The officers and governing board of the University of Maryland appeal from an order for the issue of the writ of mandamus, commanding them to admit a young negro, the appellee, as a student in the law school of the university. The appellee and petitioner, Murray, graduated as a bachelor of arts from Amherst College in 1934, and met the standards [***2]  for admission to the law school in all other respects, 

LEXSEE 177 md 506

RAYMOND D. MATTHAEI v. HOUSING AUTHORITY OF BALTIMORE CITY et al.  

No. 18, January Term, 1940 

Court of Appeals of Maryland 

177 Md. 506; 9 A.2d 835; 1939 Md. LEXIS 273 

December 21, 1939, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; Adams, J.  
the local authority to provide decent and sanitary living accommodations for persons or families who lack the income necessary for that purpose is within the same police power that justifies removal of the slums, it being, in substance, the power to remove nuisances.
The misuse of federal funds in a housing project would not cause injury to persons [***2]  suing as state and city tax payers and so would not support a suit by them to restrain such misuse.
It is within the constitutional power of the Legislature, in slum clearance legislation, to delegate to the local authority the function, so far as the Legislature may have it, of determining the question of what are incomes too low for decent, safe, and sanitary housing. 

SYLLABUS:

Bill by Abraham Kreshtool against the Housing Authority of Baltimore City, a corporation, the [***5]  Board of Estimates of Baltimore City, and the Mayor and City Council of Baltimore.  From an order sustaining a demurrer to the bill, Raymond D. Matthaei, intervening complainant, appeals.  

COUNSEL:
Harry Troth Gross, for the appellant.
Lawrence B. Fenneman, Assistant City Solicitor, and Philip B. Perlman, Solicitor for the Housing Authority, with whom was Charles C. G. Evans, City Solicitor, on the brief, for the appellees.  

JUDGES:
The cause was argued, as of the October Term, before Bond, C. J., Offutt, Sloan, Mitchell, Shehan, Johnson, and Delaplaine, JJ.  Bond, C. J., delivered the opinion of the Court.  

OPINIONBY:
BOND 

LEXSEE 176 md 394

FILLMORE COOK et al. v. NORMAC CORPORATION 

No. 46, January Term, 1939 

Court of Appeals of Maryland 

176 Md. 394; 4 A.2d 747; 1939 Md. LEXIS 186 

March 8, 1939, Decided 

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

In a suit by owners of a moving picture theater, as such owners and as taxpayers, but not in behalf of taxpayers generally or of a class thereof, to restrain the erection and use of another such theater opposite their property, as being erected without the municipal permits required by law, and so subjecting them to unlawful competition, the ground of complaint is limited to plaintiff's own injury.
SYLLABUS:

Bill by Fillmore Cook and F. Evelyn Cook, his wife, against the Normac Corporation.  From a decree dismissing the bill, plaintiffs appeal.  

COUNSEL:
Wirt A. Duvall, Jr., and Wendell D. Allen, with whom were Harry Troth Gross and Alexander Gordon III on the brief, for the appellants.
William L. Marbury, Jr., and C. Alex. Fairbank, Jr., with whom was G. Van Velsor Wolf on the brief, for the appellee.  

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

OPINIONBY:
BOND 

MARYLAND RACING COMMISSION et al. v. MARYLAND JOCKEY CLUB 

Court of Appeals of Maryland 

176 Md. 82; 4 A.2d 124; 1939 Md. LEXIS 163 

February 1, 1939, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Decree reversed with costs, injunction dissolved, and bill of complaint dismissed.  

A fee imposed by the State on the business of horse racing is a tax on the business and not a license.
The provisions of Acts 1918, ch. 264, 

SYLLABUS:

Bill by the Maryland Jockey Club of Baltimore City against Jervis Spencer, Jr., and others, constituting the Maryland Racing Commission, to restrain the commission from collecting a certain license tax, in which proceeding the County Commissioners of Baltimore County intervened as a defendant.  From the decree rendered, the defendants appeal.  

COUNSEL:
Hilary J. Gans, Deputy Attorney General, with whom was Herbert R. O'Conor, Attorney General, on the brief, for the Maryland Racing Commission, appellants.
Randolph Barton, Jr., with whom was James P. Kelley on the brief, for the County Commissioners of Baltimore County, appellants.
Stuart S. Janney and Frank B. Ober, with whom were Ritchie, Janney, Ober & Williams on the brief, for the appellee.  

JUDGES:
Bond, C. J., Offutt, Parke, Sloan, Mitchell, and Johnson, JJ.  Sloan, J., delivered the opinion of the Court.  Parke, J., filed a dissenting opinion, in which Johnson, J., concurs.  

OPINIONBY:
SLOAN 

OPINION:

 [*84]   [**125]  The Maryland Jockey Club, which operates [***3]  the Pimlico Race Track in Baltimore City, has filed a bill to restrain the imposition and collection by the State Racing Commission of a daily license fee of $ 3000 for every day of racing permitted, 

LEXSEE 175 md 457

MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. BALTIMORE TRUST CORPORATION 

No. 50, October Term, 1938 

Court of Appeals of Maryland 

175 Md. 457; 2 A.2d 441; 1938 Md. LEXIS 220 

November 16, 1938, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court No. 2 of Baltimore City; O'Dunne, J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Emergency Banking Act -- Set-Off of Obligations
Treasurer's checks, issued by a trust company to a city, representing tax collections made for the city by the company, held, in view of the provisions of the agreement under which the trust company accepted tax payments for the city, to have been a "credit extended or deposit made," within the terms of the Emergency Banking Act (Laws 1933, ch. 46), sec. 71B, providing that no debtor shall have the right to set off any credit extended or deposit made before the passage of the act against any obligations arising after its passage, thus precluding the city from setting off its claim for such collections against an indebtedness to the trust company arising after the act's passage.  

SYLLABUS:

Petition by the Baltimore Trust Corporation against the Mayor and City Council of Baltimore, and Thomas G. Young, City Collector, seeking a decree that defendants pay over to it, as assignee of the Baltimore Trust Company, a certain sum named less the amount which the city would receive as a general creditor of the Trust Company.  From [***2]  a decree in favor of petitioner, respondents appeal.  

COUNSEL:
Charles C. G. Evans, City Solicitor, and Charles R. Posey, Jr., Assistant City Solicitor, for the appellants.
G. Ridgely Sappington, with whom was D. Heyward Hamilton, Jr., on the brief, for the appellee.  

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

OPINIONBY:
URNER 

LEXSEE 175 md 186

MAYOR AND CITY COUNCIL OF BALTIMORE v. PEABODY INSTITUTE OF BALTIMORE 

No. 59, April Term, 1938 

Court of Appeals of Maryland 

175 Md. 186; 200 A. 375; 1938 Md. LEXIS 194 

June 29, 1938, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Decree affirmed, with costs.  

Where property is held by a municipal corporation in trust, or where the trust reposed in the corporation is for a charity within the scope of its duties, a court of chancery will prevent the misapplication of the trust fund, and compel the execution of the trust.  

SYLLABUS:

Bill by the Mayor and City Council of Baltimore against the Peabody Institute of the City of Baltimore and Susan D. Leakin, to secure a decree declaring plaintiff's title to certain property under the will of J. Wilson Leakin, deceased, and a construction of the devise.  From the decree rendered, plaintiff appeals.  

COUNSEL:
Charles C. G. Evans, Deputy City Solicitor, and Charles R. Posey, Jr., Assistant City Solicitor, with whom was R. E. Lee Marshall, City Solicitor, on the brief, for the appellant.
Charles McH. Howard, for the appellees.  

JUDGES:
Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Sloan, J., delivered the opinion of the Court.  

OPINIONBY:
SLOAN 

'The Leakin Park'

LEXSEE 175 md 7

PSALMIST BAPTIST CHURCH et al. v. BOARD OF ZONING APPEALS et al.  

No. 30, April Term, 1938 

Court of Appeals of Maryland 

175 Md. 7; 199 A. 815; 1938 Md. LEXIS 174 

June 14, 1938, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Stanton, J. 

DISPOSITION:
Appeal in No. 30 dismissed, with costs.  

HEADNOTES:

SYLLABUS:

Petition by the Psalmist Baptist Church and the Mt. Olivet Baptist Church to reopen proceedings by which the order of the Board of Zoning Appeals of Baltimore City, granting a permit for the enlargement of an ice plant to Louis Shane and wife, was affirmed.  From an order dismissing the petition, the petitioners appeal.  

COUNSEL:
Ernest Fadum, with whom was Josiah F. Henry, Jr., on the brief, for the appellants.
Meyer Reamer, with whom was William Curran on the brief, for Louis Shane and wife, appellees.
J. Francis Ireton, Assistant City Solicitor, with whom [***2]  was R. E. Lee Marshall, City Solicitor, for the Board of Zoning Appeals.  

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

OPINIONBY:
SLOAN 

BOARD OF EDUCATION OF BALTIMORE COUNTY v. CARROLL O. WHEAT, JR.  
No. 58, January Term, 1938 

Court of Appeals of Maryland 

174 Md. 314; 199 A. 628; 1938 Md. LEXIS 274 

May 20, 1938, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Baltimore County; Grason, J.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Transportation of School Children -- Not Attending Public Schools -- Validity of Statute -- Sufficiency of Title -- As Special Law -- Use of Public Funds.

SYLLABUS:

Petition by Carroll O. Wheat, Jr., an infant, by Hilda C. Wheat, his mother and next friend, for a writ of mandamus to the Board of Education of Baltimore County to compel the board to carry him to and fro between his home and a Roman Catholic parochial school attended by him.  From an order granting the writ, the Board of Education appeals.  

COUNSEL:
William L. Rawls and William L. Marbury, Jr., with whom were Cornelius V. Roe and G. Van Velsor Wolf on the brief, for the appellant.
Edward H. Burke and Robert R. Bowie, with whom were Lawrence E. Ensor, William P. Bolton, and Bowie & Burke, on the brief, for the appellee.  

JUDGES:
Bond, C. J., Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Bond, C. J., delivered the opinion of the Court.  Sloan, J., concurs.  Parke, J., filed a dissenting opinion, in which Mitchell and Johnson, JJ., concur.  

OPINIONBY:
BOND 

LEXSEE 174 md 188

LEROY W. SAUNDERS et al. v. ROLAND PARK COMPANY 

No. 24, January Term, 1938 

Court of Appeals of Maryland 

174 Md. 188; 198 A. 269; 1938 Md. LEXIS 262 

April 6, 1938, Decided 

PRIOR HISTORY:
 [***1]  

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

DISPOSITION:
Decree reversed, and bill dismissed, with costs.  
SYLLABUS:

Proceeding by the Roland Park Company against Leroy W. Saunders and others for a declaratory decree.  From such a decree, rendered as prayed, defendants appeal.  

COUNSEL:
Charles F. Stein, Jr., with whom was Frederick H. Hennighausen on the brief, for the appellants.
R. Dorsey Watkins, with whom were Piper, Carey & Hall on the brief, for the appellee.
Wirt A. Duvall, Jr., amicus curiae, with whom on the brief were A. Walter Kraus, Roszel C. Thomsen, Clater W. Smith, Paul M. Higinbothom, J. Cookman Boyd, Jr., and Theodore C. Waters.  

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

OPINIONBY:
BOND 

 [**270]  dwellings are specified, and these include one that "buildings may also be erected, maintained or used for business purposes on such plots fronting on The company urges that it contemplates a departure only on the York Road side and expressly disclaims any intention of departing from it in any other section.  The effect of the declaration sought could not be so confined, however, by construction of the reservation of power, for it is a power over all restrictions and all [***6]  parts of the tract alike.  The company has reserved the right "in its absolute discretion to change or modify any of the restrictions *** as to any part of said tract," still owned by it, and as to any part already sold, with the  [*192]  consent of the owners of that part.  

LEXSEE 173 md 641

MEADOWBROOK SWIMMING CLUB, INC., v. TALBOT J. ALBERT et. al. 

No. 9, January Term, 1938 

Court of Appeals of Maryland 

173 Md. 641; 197 A. 146; 1938 Md. LEXIS 340 

February 3, 1938, Decided 

PRIOR HISTORY:
 [***1]    
Appeal from the Circuit Court of Baltimore City; Dennis, C. J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Nuisance of Noise -- Jazz Band -- Injunction.
Any business so conducted as to become a nuisance, though not a nuisance per se, may be enjoined.
Where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done for which an action lies at law or in equity, and it is immaterial that the business is lawful, is one useful to the public, and is conducted in the most approved method.
The right to an injunction against 

SYLLABUS:

Bill by Talbot J. Albert and others against the Meadowbrook Swimming Club, Inc.  From a decree for plaintiffs, defendant appeals.  

COUNSEL:
Walter C. Mylander [***4]  , with whom were Nathan Patz and Walter C. Mylander, Jr., on the brief, for the appellant.
Robert W. Williams, with whom were J. A. Dushane Penniman and Ritchie, Janney, Ober & Williams on the brief, for the appellees.  

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

OPINIONBY:
URNER 

LEXSEE 173 md 450

WINFIELD S. CAHILL v. MAYOR AND CITY COUNCIL OF BALTIMORE 

No. 90, October Term, 1937 

Court of Appeals of Maryland 

173 Md. 450; 196 A. 305; 1938 Md. LEXIS 328 

January 13, 1938, Decided 

PRIOR HISTORY:
 [***1]    
Appeal from the Superior Court of Baltimore City; Ulman, J.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Baltimore City Harbor -- Erection of Wharves -- Control by Ordinance -- Vested Rights.
The validity of city ordinances marking the limits to which a wharf may be extended into the harbor may be litigated on a petition for a writ of mandamus to compel the city officials to issue a permit to the petitioner to build a wharf out from his property, the fact that the purpose of such a writ is only to require obedience to a clear legal duty not excluding consideration of any and all disputed questions of law. 

SYLLABUS:

Petition by Winfield S. Cahill for a writ of mandamus to the Mayor and City Council of Baltimore, a municipal corporation, and Frederick M.  [***4]  Kipp, Jr., Harbor Engineer.  From an order refusing the writ, petitioner appeals.  

COUNSEL:
Isaac Lobe Straus, for the appellant.
Allen A. Davis, Assistant City Solicitor, with whom were R. E. Lee Marshall, City Solicitor, and James J. Doherty, Assistant City Solicitor, on the brief, for the appellees.
L. Vernon Williams, by permission of the Court, filed a brief as amicus curiae.  

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

OPINIONBY:
BOND 

OPINION:

LEXSEE 173 md 295

EDWARD MEADE v. MARY ESTELLE DENNISTONE et al.  

No. 26, October Term, 1937 

Court of Appeals of Maryland 

173 Md. 295; 196 A. 330; 1938 Md. LEXIS 311; 114 A.L.R. 1227 

January 11, 1938, Decided 

PRIOR HISTORY:
 [***1]    
Appeal from the Circuit Court of Baltimore City; Solter, J.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Neighborhood Agreement -- Barring Negro Occupancy -- Validity.

The inhibition, in the Fourteenth Amendment, of denial of the equal protection of the laws, is upon the power of the State, and not on the right of individuals to contract with respect to their property, and consequently does not affect the validity of an agreement among property owners barring occupancy of their property by persons of African descent.
An agreement among property owners barring Negro occupancy can be enforced by injunction as between grantees and assignees, irrespective of whether it creates a covenant running with the land at law.
An agreement among property owners barring use or occupancy of their properties by persons of African descent, providing that any sale, lease, or transfer should be subject to such restriction, and that the covenants and conditions should run with and bind the land, and should be enforceable by any one owning or having any interest in any of the properties affected, created an easement in the property of each of the signatories thereto, inuring to the benefit [***2]  of their heirs, personal representatives, and assigns.
An agreement among property owners barring the use or occupancy of their properties by persons of African descent is valid without regard to the possible invalidity of restrictions on alienation to such persons.
A neighborhood agreement barring Negro occupancy of most houses in a city block did not become unenforceable because one house therein, and many on intersecting streets, were so occupied.
An agreement barring Negro occupancy of land belonging to the parties to the agreement, creating as it does an easement in the property of each of them, is entitled to be recorded, so as to put purchasers of any such properties on notice of the agreement.  

SYLLABUS:

Bill for injunction by Mary Estelle Dennistone and Mary J. Becker against Edward Meade and Frank Berman.  From a decree for plaintiffs, defendant Meade appeals.  

COUNSEL:
William A. C. Hughes, Jr., for the appellant.
J. S. T. Waters and William L. Marbury, Jr., with whom was Robert R. Portmess on the brief, for the appellees.  

JUDGES:
Bond, C. J., Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Sloan, J., delivered the opinion of the Court.  Bond, C.  [***3]  J., dissents.  

OPINIONBY:
SLOAN 

LEXSEE 173 md 267

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE, use of ALICE BLUEFORD et al.  

No. 54, October Term, 1937 

Court of Appeals of Maryland 

173 Md. 267; 195 A. 571; 1937 Md. LEXIS 308 

December 10, 1937, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Supplee, J. 

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

HEADNOTES:

Municipal Corporation -- Immunity from Suit -- Exercise of Governmental Function -- Maintenance of Swimming Pool.
In an action on account of a child's death, an unauthenticated transcript of a death certificate issued by the city health department, stating that an autopsy had disclosed that the cause of death was drowning, was inadmissible, it being hearsay and irrelevant, and its admission not being authorized by any statute.
The immunity of the State from suit extends to such agencies of the State as have no separate corporate existence, and are employed by it merely as hands or instruments to execute its will, but not to its creatures, such as municipal corporations, except when exercising some governmental function of the State itself.
Where a municipality is engaged in the performance of a governmental function as an agent of the State, the same principle which protects the State from liability to suit also protects the municipality.
As the maintenance of a public park by a municipality is the exercise of a public governmental function,  [***2]  with the result that the municipality is not liable for negligence in the management of the park, so the maintenance of a swimming pool in such a park is a public governmental function.
The maintenance by the municipality of a swimming pool in a public park being a governmental function, the municipality was not liable for the death of a child by drowning in such a pool by reason of the negligence of its employees.
And it was immaterial in that regard that the duty of maintaining parks was permissive and not mandatory on the municipality, that there was no specific authority for the maintenance of swimming pools, and that a nominal fee was charged for using the pool, insufficient to pay for its maintenance.
A municipal act which is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, is governmental in its nature.  

SYLLABUS:

Action by the State of Maryland, to the use of Alice Blueford and William Blueford, against the Mayor and City Council of Baltimore, a municipal corporation.  From [***3]  a judgment for plaintiff, defendant appeals.  

COUNSEL:
J. Francis Ireton, Assistant City Solicitor, with whom were R. E. Lee Marshall, City Solicitor, and Hector J. Ciotti, Assistant City Solicitor, on the brief, for the appellant.
Helen Elizabeth Brown, with whom was R. Palmer Ingram on the brief, for the appellee.  

JUDGES:
Bond, C. J., Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Offutt, J., delivered the opinion of the Court.  Bond, C. J., concurs.  Parke, J., concurs.  

OPINIONBY:
OFFUTT 

OPINION: 

LEXSEE 173 md 579

HOWARD W. JACKSON et al. v. WILLIAM S. NORRIS; HOWARD W. JACKSON et al. v. HATTIE B. DALY 

Nos. 3, 4, January Term, 1938 

Court of Appeals of Maryland 

173 Md. 579; 195 A. 576; 1937 Md. LEXIS 313 

December 8, 1937, Decided 

PRIOR HISTORY:
 [***1]    
Appeals from the Circuit Court No. 2 of Baltimore City; Dennis, C. J.  

DISPOSITION:
Decrees in both appeals affirmed, with costs to be paid by the Mayor and City Council of Baltimore.  

HEADNOTES:
The purchase by the board of voting machines was not invalid because the ballot to be displayed by the machine at a primary election shows the name of each of three candidates more than once, while Code, art. 33, sec. 203, prohibits the name of a candidate from appearing on the ballot more than once, since the statute and the mechanism of the machine preclude a voter from voting for any candidate for the same office more than once. 

SYLLABUS:

Bills by William S. Norris and Hattie B. Daly, respectively, against Howard W. Jackson and others, constituting a board, created by Acts 1937, ch. 94, known as the Voting Machine Board, and the Automatic Voting Machine Corporation.  From decrees in favor of the respective plaintiffs, the defendants appeal, and plaintiffs cross appeal.  

COUNSEL:
Paul F. Due, for the Voting Machine Board.
Arthur  [***6]   W. Machen and Wendell D. Allen, with whom were Armstrong, Machen & Allen on the brief, for the Automatic Voting Machine Corporation.
Charles C. G. Evans, Deputy City Solicitor, and William H. Marshall, Assistant City Solicitor, submitting on brief, for the Mayor and City Council of Baltimore, and R. Walter Graham, Comptroller.
Charles G. Page, for William S. Norris.
Isaac Lobe Straus and Willis R. Jones, for Hattie B. Daly.  

JUDGES:
The causes were argued, as of October Term, 1937, before Bond, C. J., Urner, Offutt, Parke, Sloan, Mitchell, Shehan, and Johnson, JJ.  Parke, J., delivered the opinion of the Court.  

OPINIONBY:
PARKE 

LEXSEE 172 md 563

MARGARET WILLIAMS et al. v. DAVID W. ZIMMERMAN et al.  

No. 28, April Term, 1937 

Court of Appeals of Maryland 

172 Md. 563; 192 A. 353; 1937 Md. LEXIS 266 

May 26, 1937, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Baltimore County; Duncan, J.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Equal Protection of Laws -- Colored Children -- Admission to White High School -- Equality of Treatment -- Examination Tests.
The fact that a colored child is subjected to an unauthorized or defective test as a preliminary to admission to a colored high school does not entitle the child to admission to a white high school, since separate education of the two races is the normal treatment in Maryland, and admission of a colored child to a white high school could be required only on a showing that equality of treatment is not obtainable separately.
The fact that the examinations preliminary to admission to a high school are given to colored children and to white children with some incidental differences and inequalities in meeting practical problems, such as the greater number of white children, does not show unconstitutional discrimination against colored children, it appearing that the school officials endeavor, to the best of their ability, to treat both races fairly and equally.
The fact that a manual issued by the State Department of Education stated that the possession [***2]  of an elementary school certificate is sufficient to entitle a pupil to enter a high school without examination, did not preclude the county school officials from requiring all pupils, both white and colored, to submit to the test of an examination, prepared by experts in the State Department of Education, apparently with the full knowledge of the State Board of Education.  

SYLLABUS:

Petition by Margaret Williams, infant, by Joshua B. Williams, her father and next friend, and Joshua B. Williams individually, asking for a writ of mandamus, directed to David W. Zimmerman, principal of the Catonsville High School, and others.  From an order refusing the petition, the petitioners appeal.  

COUNSEL:
Thurgood Marshall and Leon A. Ransom, with whom were Charles H. Houston and Edward P. Lovett on the brief, for the appellants.
William L. Marbury, Jr., and William L. Rawls, with whom was Cornelius V. Roe, on the brief, for the appellees.  

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

OPINIONBY:
BOND 

J. EARL JACOBS et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.  

No. 15, April Term, 1937 

Court of Appeals of Maryland 

172 Md. 350; 191 A. 421; 1937 Md. LEXIS 243 

April 9, 1937, Decided 

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

The City of Baltimore has power to license and regulate by ordinance the retail sale and delivery of coal, as it has to license and regulate other businesses. exception referring to persons who are not retail coal dealers.  

COUNSEL:
Harry O. Levin and Ernest F. Fadum, with whom was Sigmund Levin on the brief, for the appellants.
Allen A. Davis, Assistant City Solicitor, with whom were R. E. Lee Marshall, City Solicitor, and William H. Marshall, Assistant City Solicitor, on the brief, for the appellees.
William L. Marbury, Jr., as amicus curiae.  

JUDGES:

The cause was argued, as of the January Term, before Bond, C. J., Urner, Offutt, Parke, Sloan,  [***5]  and Johnson, JJ.  Parke, J., delivered the opinion of the Court.  

OPINIONBY:
PARKE 

MAYOR AND CITY COUNCIL OF BALTIMORE v. MARTHA A. TRUNK 

No. 6, January Term, 1937 

Court of Appeals of Maryland 

172 Md. 35; 190 A. 756; 1937 Md. LEXIS 209 

March 17, 1937, Decided 

Appeal from the Superior Court of Baltimore City; Dennis, C. J.  

One employed by a city as head orderly in a charity hospital, while a workman, is not a workman engaged in an extra-hazardous employment, within the meaning of the Workmen's Compensation Act, the work of an orderly not being expressly named in the statute as extra-hazardous, nor included by fair implication in any of the categories of affected employments, and the hospital not being an industrial enterprise.
J. Francis Ireton and M. Henry Goldstone, Assistant City Solicitors, with whom was R. E. Lee Marshall, City Solicitor, on the brief, for the appellant.
Avrum K. Rifman, with whom was David L. Morrison, on the brief, for the appellee.  

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

OPINIONBY:
PARKE 

MAYOR AND CITY COUNCIL OF BALTIMORE v. HEDWIG THOMPSON 

No. 64, October Term, 1936 

Court of Appeals of Maryland 

171 Md. 460; 189 A. 822; 1937 Md. LEXIS 185 

January 19, 1937, Decided 

Appeal from the Baltimore City Court; O'Dunne, J. 

A municipality is under the duty of exercising reasonable care to keep its highways safe for public travel, but is not an insurer of the safety of persons in their lawful use.
A municipality may be liable for injuries caused by an obstruction in a public highway of which it has sufficient notice, even though the obstruction is authorized by proper municipal and legislative authority, where it is reasonably foreseeable that it will endanger persons using the highway while in the exercise of reasonable care, unless it takes the precaution of warning such persons of the danger by some reasonably adequate means. 

COUNSEL:
R. E. Lee Marshall, City Solicitor, and Paul F. Due, Deputy City Solicitor, with whom was James J. Doherty, Assistant City Solicitor, on the brief, for the appellant.
James M. Roche, with whom were Harry I. Kaplan and Malcolm J. Coan on the brief, for the appellee.  

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

OPINIONBY:
OFFUTT 

BALTIMORE RETAIL LIQUOR PACKAGE STORES ASSOCIATION et al. v. BOARD OF LICENSE COMMISSIONERS et al.  

No. 79, October Term, 1936 

Court of Appeals of Maryland 

171 Md. 426; 189 A. 209; 1937 Md. LEXIS 180 

January 14, 1937, Decided 

Appeal from the Baltimore City Court; O'Dunne, J. 
Courts will entertain jurisdiction of suits by citizens and taxpayers for the writ of mandamus, or that of injunction, to correct unlawful action by municipal officers, when such action may injuriously affect the rights and property of the parties complaining. 
Petition by the Baltimore Retail Liquor Package Stores Association, Incorporated, and others, for a writ of mandamus directed to Morton J. Kerngood and others, constituting the Board of License Commissioners for Baltimore City, in which proceeding the Read Drug and Chemical Company was subsequently admitted as codefendant.  From an order denying the writ, petitioners appeal.  

COUNSEL:
Morton  [***3]   M. Robinson, with whom were Herbert Samuelson and Jerome Robinson on the brief, for the appellants.
Randolph Barton, Jr., and Lee S. Meyer, for the appellees.  

JUDGES:
Bond, C. J., Parke, Sloan, Shehan, and Johnson, JJ.  Bond, C. J., delivered the opinion of the Court.  

OPINIONBY:
BOND 

FRANK J. FEDERICO, JR. v. FRANK P. BRATTEN, et al., State License Bureau 

No. 37, January Term, 1943 

Court of Appeals of Maryland 

181 Md. 507; 30 A.2d 776; 1943 Md. LEXIS 146 

March 17, 1943, Decided 

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

Rule adopted by State License Bureau prohibiting issuance of liquor license saloon or restaurant within 300 feet of a church or school is a "prohibition" and not a regulation and hence is invalid [***2]  under statute regulating the sale, and where License Bureau's refusal to renew a license was predicated wholly on such rule, there was no "hearing" before the License Bureau as required by the statute.
The causes for which a city or county board of liquor license commissioners may refuse to grant a liquor license are fixed by statute, and, as the State License Bureau, on appeal, hears the case de novo, it must be guided by the same statutory rules and regulations. Code, 1939, Art. 2B, Sec. 86. 
COUNSEL:
Hillary W. Gans for the appellant.
Hall Hammond, Deputy Attorney General, with whom was William C. Walsh, Attorney General, on the brief, for the appellees.  

JUDGES:
Sloan, C. J., Delaplaine, Collins, Marbury, Grason, and Melvin, JJ.  Sloan, C. J., delivered the opinion of the Court.  

OPINIONBY:
SLOAN 

MAYOR & CITY COUNCIL OF BALTIMORE v. CANTON CO. OF BALTIMORE CITY 

No. 151, October Term, 1945 

Court of Appeals of Maryland 

186 Md. 618; 47 A.2d 775; 1946 Md. LEXIS 239 

June 14, 1946, Decided 

Appeal from the Superior Court of Baltimore City; Tucker, J.  

Action by the Mayor and City Council of Baltimore against the Canton Company of Baltimore to recover minor privilege charges exacted by the plaintiff on defendant's piers built into navigable waters.  

COUNSEL:
Paul R. Kach, Assistant City Solicitor of Baltimore City, with whom was Simon E. Sobeloff, City Solicitor of Baltimore City, on the brief, for the appellant.
J. Crossan Cooper, Jr., and Hunter H. Moss, with whom were Venable, Baetjer & Howard on the brief, for the appellee.  

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

OPINIONBY:
MARKELL 

NORTHWEST MERCHANTS TERMINAL, Inc. v. O'ROURKE et al.  

No. 176, October Term, 1947 

Court of Appeals of Maryland 

191 Md. 171; 60 A.2d 743; 1948 Md. LEXIS 358 

July 20, 1948, Decided 

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

Suit by Michael J. O'Rourke and others against Northwest Merchants Terminal, Inc., to enjoin defendant from erecting warehouses and from using premises for uses other than those permitted by ordinance.  From an adverse decree, defendant appeals.  

COUNSEL:
 [***5]  
Lawrence B. Fenneman, with whom was Goldie R. Miller on the brief, for the appellant.
Wilson K. Barnes, with whom were Carman, Anderson & Barnes on the brief, for the appellees.  

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

OPINIONBY:
MARKELL 

ATKINSON, Police Commissioner, v. SAPPERSTEIN 

No. 38, October Term, 1948 (Adv.) 

Court of Appeals of Maryland 

191 Md. 301; 60 A.2d 737; 1948 Md. LEXIS 369 

July 20, 1948, Decided 

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

The remedy of a taxpayer, who is taxed at a lower rate than others or who is taxed when others are not, is, not in attempting to be relieved of the tax himself, but in restraining the proper taxing officials from taxing him at a lower rate or from allowing the exemption to others, as the case may be.

COUNSEL:
Hall Hammond, Attorney General, and J. Edgar Harvey, Assistant Attorney General, for the appellant.
Max R. Israelson for the appellee.  

JUDGES:
Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ.  Collins, J., delivered the opinion [***8]  of the Court.  

OPINIONBY:
COLLINS