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J. HENRY STROHMEYER vs. CHARLES E. REMSON AND ELLA F.REMSON, HIS WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
135 Md. 439; 109 A. 105; 1919 Md. LEXIS 158

 December  10, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County, in Equity (FORSYTHE, J.).

DISPOSITION: Order reversed, with costs, and cause remanded, to the end that the sale reported may be ratified.

CORE TERMS:  mortgagee, first mortgage, mortgagor, mortgage, power of sale, second mortgage, resale, ratified, third mortgage, foreclosure, decree, usury, ratification, language used, simultaneous, injurious, favorable, invoked, indebtedness, confirmed, purchaser, realized, disputed, surplus, lienors, ratify, farm

COUNSEL: Charles Claggett and William L. Marbury, for the appellant.
 
Daniel R. Randall, with whom were Hill, Randall & Leser on the brief, for the appellees.

JUDGES: The cause was argued before BOYD, C. J., BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and ADKINS, JJ.

OPINIONBY: URNER

OPINION: [*440] [**106] URNER, J., delivered the opinion of the Court.

   The order from which this appeal has been taken was invoked and passed in evident misapprehension of the intended effect of certain language used in the opinion of this Court in Boynton v. Remson, 133 Md. 101, 104 A. 527. The appeal in that case was from a decree ratifying a sale of the same real estate which is involved in the present proceeding. In the former case separate sales were made on the same day under powers of sale contained in first and third mortgages on the property. Exceptions to both sales were filed by the mortgagor on the ground that, because of the confusion arising from the efforts to conduct these conflicting sales, [***2] the property was sold in both instances at a substantial sacrifice of its real value. The decree appealed from sustained the exceptions to the sale reported under the third mortgage, and ratified the sale under the first mortgage, at the same time dismissing a bill for injunction against that sale which had been heard with the exceptions by agreement. On appeal the decree was affirmed except in so far as it ratified the sale under the first mortgage. In the view of this Court, the evidence was "sufficient to support the contention that the conditions surrounding the sale not only tended to prevent the disposition of the property for an adequate price, but in fact produced that injurious result."

   As stated in the opinion, our review of the case brought us to the conclusion that the mortgagor's interest "suffered material injury as a result of the concurrent exercise of the powers of sale contained in the first and third mortgages, and of the effort of each of the vendors to discourage bidding at the sale conducted by his competitor." It was further said: "According to our conception of the case, a serious loss may result to the mortgagor from the ratification of either of the reported[***3] sales, but we are confident that no injustice would be done to any interest in the case if a resale is ordered. The third mortgagee, whose claim will be partly lost if the first sale is confirmed, might be very materially benefited if the farm is resold, and the first mortgagee is amply protected by [*441] priority of lien and cannot be injured by a resale of the property under conditions which will admit of its fair market value being realized. The second mortgagee appears to be well secured and is taking no part in the litigation." The opinion concluded with the statement that if the mortgagor "should be unable to refund his existing mortgage indebtedness, and a resale cannot be thus avoided, it should be made alone under the power of sale in the first mortgage, so that the title may be sold clear of all liens and under conditions favorable to a sale that will be advantageous to all parties concerned."

   After the case was remanded, the first mortgagee concluded not to proceed with the exercise of his power of sale, and after the mortgagor had been given an opportunity to make a sale of the farm on his own account, the holder of the second mortgage advertised and sold the property[***4] at public auction under the power of sale in that mortgage, which secured a claim of $30,000 and accumulated interest. This sale was made for $47,000, subject to the first mortgage, which recited a consideration of $2,500. The purchaser was Mr. Fred B. Rhodes, who is the attorney named in the power of sale in the third mortgage. The price realized at this sale represented a considerable increase over the prices formerly reported. The mortgagor excepted to the new sale on the ground that it was made for an inadequate price and in disregard of the opinion of this Court disposing of the other appeal. The exceptions stated additional grounds of opposition to the ratification of the sale, but they are not pressed and are plainly untenable. In declining to ratify the sale last reported, the Court below expressed the view that the sale should be made free of all incumbrances, and that "such a sale was undoubtedly meant by the Court of Appeals, when, after considering the circumstances of this particular case, it was said the property should be sold alone under the first mortgage, and clear of all liens." The argument made in favor of the affirmance of the order setting aside the sale is [***5]based largely upon the theory that the language used by this [*442]Court on the former appeal in reference to a resale under the first mortgage alone was mandatory in its purpose that this course should be pursued.

   It was not intended by any expression in the prior opinion to prescribe a method of sale that must be adopted regardless of any change of circumstances. The question previously decided arose out of the complications produced by the simultaneous exercise of the powers of sale in the first and third mortgages. In order to prevent a renewal of such a competition, and of its injurious effect upon the sale of the property, the Court stated that a resale, if one were necessary, should be made under the first mortgage alone. This statement was made upon the natural assumption that the first mortgagee would still desire to enforce the right thus recognized. But there was a subsequent change in his attitude. After our decision he entered into an agreement with the mortgagor, as the record shows, "to withhold any further action at that time in the way of foreclosure proceedings." The pending sale under the second mortgage was made about six months after[**107] the former[***6] decision was rendered, and in the meantime no steps were taken by the first mortgagee to pursue the course which our opinion had defined. The conditions with which we are now dealing are, therefore, radically different from those in reference to which the language quoted from the previous opinion was used. It is not applicable to the situation now presented, and it cannot be invoked by the excepting mortgagor who participated in changing the conditions to which alone our proposal was pertinent.

   In view of the new and unforeseen development just mentioned, we are of the opinion that the second mortgagee should not be denied the right to exercise the power of sale in his mortgage for the satisfaction of the long-matured indebtedness which it secures. The fact that the exceptions to the first sale disputed a portion of the first mortgage claim on the ground of usury is not an adequate reason for the restriction of any of the second mortgagee's legitimate rights. Suitable action by the mortgagor to have such a question determined [*443]is not precluded by the ratification of the sale here in controversy. The only question now to be decided is whether there is anything in the present [***7]record, or in our decision on the exceptions to the prior sales, that can be held sufficient to bar the exercise of the power of sale under the second mortgage, and our answer to that question must be in the negative. The contract in the mortgage for such a power was authorized by statute, which provides also that a sale made in pursuance of the power, "when confirmed by the Court, and the purchase money is paid, shall pass all the title which the mortgagor had in the said mortgaged property at the time of the recording of the mortgage," and that "any person claiming an interest in the equity of redemption may apply to the Court confirming the sale to have the surplus of the proceeds of sale, after payment to the mortgagee of his claim and expenses, paid over to such person, or so much thereof as will satisfy his claim, and the Court shall distribute such surplus equitably among the claimants thereto." Code, Art. 66, Secs. 6, 11, 12. By these provisions the extent of the title to be sold under the power in the second mortgage was clearly defined, and the rights of subsequent lienors were fully protected. There was consequently no occasion to resort, as suggested, to a bill for foreclosure[***8] to which the first and third mortgagees might be made parties.

   The record shows that the mortgagor was given an opportunity, after the last sale, as well as before, to procure a purchaser of the property for a price higher than the one to which he excepts. All his efforts to that end have proved unavailing. The evidence in the case does not satisfy us that the sale should be rejected on the ground that the price reported was inadequate.

   Order reversed, with costs, and cause remanded, to the end that the sale reported may be ratified. 

GEORGETTA GALE vs. LILLIAN S. KEECH ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
135 Md. 203; 108 A. 481; 1919 Md. LEXIS 125

 November  21, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County, In Equity (Moss, J.).

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  testator, residue, daughter, widow, residuary clause, residuary estate, deed of trust, case stated, bequeathed, grantor, devised, dispose, died intestate, die intestate, life estate, real estate, gift, draughtsman, twenty-one, remainder, married, beloved, intend, decree, heir, farm, died

COUNSEL: James M. Munroe, for the appellant.
 
No appearance for the appellees.

JUDGES: The cause was argued before BOYD, C. J., BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and ADKINS, JJ.

OPINIONBY: URNER

OPINION: [*203] [**481] URNER, J., delivered the opinion of the Court.

   The object of this proceeding is to obtain a judicial construction of the residuary clause of the will of George Gale, of Anne Arundel County, who died in the year 1856. After making two pecuniary bequests of three thousand dollars each, the will concludes as follows: "All the residue of estate real and personal I leave to my beloved wife Susan Matilda Gale according to the provisions directed by law." The testator died seized of a farm of six hundred and seventy-two acres in Anne Arundel County, and it is the title to that property which is involved in[**482] the question now raised as to the construction of the residuary clause just quoted.

   The will is dated July 16, 1856, and the testator died within a few days after its execution. He was survived by his wife, who gave birth to their only child, a daughter,[***2] shortly after the father's death. The widow entered into possession of the real estate of her deceased husband, and on February 17, 1857, conveyed by deed an undivided two-thirds interest in the farm, and a like proportion of the residue of the personal estate, to her father, Augustus Mathiot, in trust to apply the income thereof to the support and education of her daughter, Georgetta Mathiot Gale, until she arrived at the age of twenty-one years, any surplus income not required for the objects stated to be paid to the grantor, and after the daughter became twenty-one years of age, it was provided that the whole of the income should be paid to her for life. The trust estate was limited in remainder to the issue of the daughter living at the time of her death, but in default of such issue, then to Susan M. Gale, the grantor, or to her heirs, personal representatives or assigns. Subsequently Mrs. Gale married Frederick Anspach, and this union resulted in the birth of a daughter, Lillian S. Anspach, who is now the wife of Edward P. Keech. The testator's daughter, Georgetta M. Gale, has never married. It appears from the record that his widow, Susan M. Gale, is now deceased, but the date[***3] of her death is not stated. Mrs. Keech is now trustee under the deed of trust by appointment of the Circuit Court for Anne Arundel County, in equity, under whose jurisdiction the trust has been administered.

   The deed of trust refers to the property conveyed as being part of the residuary estate devised and bequeathed to Mrs. [*205] Gale, the grantor, by the will of her husband, as her "own absolute property and estate in fee simple." In 1891, thirty-four years after the trust was created, a case stated between Georgetta M. Gale and Lillian S. Keech, individually and as trustee, was presented to the Court having jurisdiction over the trust, for the purpose of having the residuary clause of the will of George Gale construed in so far as it affected the title to the real estate which the deed of trust purported to convey. The question of interpretation thus raised was whether the testator did not intend his widow to take merely such interests in the residue of his estate as were secured to her by statute. According to this theory, if adopted, it would be held that the widow took only a dower interest in the realty, and that the testator died intestate as to the remainder of the[***4] title, which thereupon descended to his daughter as his only heir at law. The effect of such a decision would be to render the deed of trust inoperative and to recognize Georgetta M. Gale as the sole and absolute owner of the property since the termination of her mother's dower. The case stated was heard by the late JUDGE I. THOMAS JONES, afterwards a member of this Court, and his opinion, filed March 12, 1892, thus disposes of the question of construction submitted for his determination: 

   "I am of opinion that Mrs. Susan M. Gale took an absolute interest in the residue of both real and personal property. There does not seem to be room for any other construction. It seems entirely clear that the testator did not intend to die intestate as to any of his property and he would have died intestate as to by far the major part of it if, as suggested in the case stated, this clause of the will is to be held as giving the wife only a life estate or what would be a widow's share of an intestate's estate. The draughtsman of the will here in question does not appear to have been a very skillful one, but surely more apt terms would have been employed to give effect to testator's purpose if[***5] his instructions had been to make the will give to the wife only a life estate or a widow's share of the estate. It [*206] is hard to divine what significance in the draughtsman's mind attached to the words, 'according to the provisions as directed by law,' but there certainly appears to be no reason, and it would be contrary to the whole scheme of the will, to treat them as words of limitation upon the estate disposed of by the will. The most natural and obvious meaning to be given them is that the testator meant to conform to the provisions of law governing and regulating the formal execution of wills."

   No decree was ever passed by JUDGE JONES in pursuance of his opinion filed in the case, and no further action was taken to question the title devised to the testator's widow until the present proceeding was instituted for that purpose in November, 1918. It is upon a petition of Georgetta M. Gale and non-contesting answers of Lillian S. Keech and husband, and of Mrs. Keech as trustee, that the question is now raised. The case was heard in the Court below by JUDGE MOSS, who accepted the view previously announced by JUDGE JONES and passed a decree declaring that under the residuary[***6] clause of the will of George Gale his wife "took an absolute fee simple estate in all the residue of his property, real and personal."

   In that decision we concur. It is the only conclusion which can give effect to the evident intention of the testator to dispose of his whole estate. There may be difficulty in understanding what he meant by the subsequent words: "according to the provisions directed by law," but the meaning of the language: "All the residue of estate real and personal I leave to my beloved wife," is perfectly clear and definite. The purpose thus plainly expressed by the testator to give his wife all of the residuary estate should be gratified unless the context unequivocally provides to the contrary. The phrase "according to the provisions directed by law," as applied to a gift to the wife of the entire residue of the estate, comes far short of indicating an intention that she was really to[**483] receive only a part of the whole thus devised and bequeathed. Whatever the testator may have understood those words to mean, it is hardly to be supposed that he would have employed such an inadequate form of expression if he had desired to defeat the clear effect[***7] of the terms he had just used. As he may be presumed to have known that his wife would not receive the whole of the residue of his estate "according to the provisions directed by law," independently of his will, it may be reasonably assumed that this phrase had some other significance in his mind, such, perhaps, as the one suggested by JUDGE JONES in his opinion. But any interpretation of that expression is so unavoidably conjectural that it could not safely be given the effect of producing a specific reduction of the estate devised and bequeathed to the wife in its entirety. Language of such uncertain meaning is, moreover, insufficient to overcome the force of the presumption that the testator intended by the residuary clause to dispose of the whole of the residue of the estate and not to die intestate as to any part. This consideration is emphasized in the opinion of JUDGE JONES, with which we fully agree.

   Decree affirmed, with costs. 

JAMES F. STRANGE, MAYOR OF ANNAPOLIS, MARYLAND, vs. JOHN J.LEVY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
134 Md. 645; 107 A. 549; 1919 Md. LEXIS 104

 June  25, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (MOSS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree reversed and bill dismissed, with costs to appellant.

CORE TERMS:  referendum, emergency, duty, Emergency Law, constitutional provision, preliminary injunction, referendum petition, effect immediately, full force, appointment, declaration, declaring, salary, voters

COUNSEL: George E. Rullman and Ridgely P. Melvin, for the appellant.
 
Nicholas H. Green, for the appellee.

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

OPINIONBY: ADKINS

OPINION: [*646] [**549] ADKINS, J., delivered the opinion of the Court.

   This is an appeal from an order passed on April 3rd, 1919, by the Circuit Court for Anne Arundel County declaring Chapter 205 of the Acts of the General Assembly of Maryland of 1918 unconstitutional, null and void "in so far as it attempts to create the municipal office of President of the Annapolis Water Company and provide for his appointment by the Mayor of Annapolis, and so far as said Act imposes upon the counselor and one of the minority members of the Board of Aldermen the duty of being directors of the Annapolis Water Company," and making perpetual a preliminary injunction passed by said Court on May 9th, 1918, restraining and enjoining James F. Strange, Mayor of Annapolis from appointing [***2]George T. Melvin, or any other person, as president of said Water Company.

    The learned Court below based its decision on the ground that said Act was passed as an Emergency Law under Article XVI of the Constitution of Maryland, known as The Referendum, and therefore violates the proviso in section 2 of said Article [**550] "that no measure creating or abolishing any office, or changing the salary, term or duty of any officer, or granting [*647] any franchise or special privilege, or creating any vested right or interest shall be enacted as an emergency law."

   The three questions argued on this appeal were:

   1. Was the appointment of George T. Melvin as President of the Water Company actually made before the granting of the preliminary injunction?

   2. Was any office created, or the salary, term or duty of any officer changed, within the meaning of said constitutional provision, by the Act of 1918?

   3. Assuming that the constitutional provision was violated by the attempt to make the Act an Emergency Law, did that render the entire Act unconstitutional?

   In the view we take of this case it is unnecessary to consider any of these points. In our opinion the Act of 1918 does not[***3] come within the purview of Article XVI of the Constitution. That Article was clearly not intended to apply to public local laws for any city other than Baltimore City, there being no provision for a referendum except in cases of public general laws applicable to the State, and public local laws for a county or the City of Baltimore.

   Section 3 (a) of the said Article is as follows: 

   "The referendum petition against an Act or part of an Act passed by the General Assembly, shall be sufficient if signed by ten thousand qualified voters of the State of Maryland, of whom not more than half shall be residents of Baltimore City, or of any one county; provided that any Public Local Law for any one County or the City of Baltimore, shall be referred by the Secretary of State only to the people of said County or City of Baltimore, upon referendum petition of ten per cent. of the qualified voters of said County or City of Baltimore as the case may be, calculated upon the whole number of votes cast therein respectively for Governor at the last preceding Gubernatorial election."

   It is manifest that a public local law for the City of Annapolis does not come within the above quoted provision[***4] and [*648] there is no other provision in Article XVI applicable to such an Act.

   This Court decided in the case of Beall v. State, 131 Md. 669, 103 A. 99, that Article XVI did not supersede section 31 of Article 3 of the Constitution, but that said provision of the Constitution remained in full force except as to the cases provided for in Article XVI.

   The declaration by the Legislature that an Act is an emergency act does not make it so if it does not come within the purposes and provisions of Article XVI. In our opinion it was perfectly competent for the Legislature to provide that the Act of 1918 should go into effect immediately under section 31 of Article 3 of the Constitution.
 
   It follows that the Court below erred in declaring said Act unconstitutional and in granting the injunction.

   Decree reversed and bill dismissed, with costs to appellant. 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, VIVIAN PHILLIPS,AND THE AMERICAN FEEDING COMPANY, vs. AUGUSTUS J. SACKETT, ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
135 Md. 56; 107 A. 557; 1919 Md. LEXIS 116; 5 A.L.R. 915

 June  25, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (Moss, J.).

DISPOSITION: Order reversed, with costs, and bill dismissed without prejudice.

CORE TERMS:  garbage, farm, nuisance, plant, injunction, reduction, demurrer, restrain, disposal, carrying, enjoined, piggery, temporary, conveying, injunction to restrain, erection, dumping, prayer, lawful business, property rights, bill dismissed, non-residents, municipality, remediable, disposing, hauling, dollars, real estate, interfere, easement

COUNSEL: S. S. Field, City Solicitor, for the appellants.
 
Osborne I. Yellott and Ridgely P. Melvin, with whom were Bruner R. Anderson, Lester L. Stevens, Emory L. Stinchcomb, and Piper, Yellott, Hall & Carey, on the brief, for the appellees.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and ADKINS, JJ.

OPINIONBY: BRISCOE

OPINION: [*57] [**558] BRISCOE, J., delivered the opinion of the Court.

   This case is presented, on an appeal from an order of the Circuit Court for Anne Arundel County overruling the defendants' demurrers to a bill in equity for an injunction to restrain a prospective or probable nuisance.

   The original bill was filed by a number of property owners and residents of Anne Arundel County against the Mayor and City Council of Baltimore, D. A. Gaumitz and Lewis Towing and Lighterage Company.

   Subsequently, by an amended or supplemental bill, other persons and corporations were made parties defendants.
 
   The object and purpose of the proceedings, it will be seen from the allegations of the bill, is[***2] to restrain the defendants by injunction from disposing of the garbage from the City of Baltimore on a farm known as the Jubb farm and owned by the City, on Bodkin Creek, in Anne Arundel County.

   The prayers for relief are substantially the same in both bills, and appear to be as follows:

   (1) That the defendants may be permanently enjoined against hauling to, dumping upon or reducing the garbage of Baltimore City on the Jubb farm, or establishing a piggery on the farm for the consumption of the garbage.

   (2) That the Mayor and City Council of Baltimore may be enjoined from further consummating or carrying out or doing anything in the furtherance of the actual or proposed contract between it and the defendant, D. A. Gaumitz, looking to the establishment of a piggery on the Jubb farm, and conveying the garbage of Baltimore City to the Jubb farm for that purpose.

   (3) That the Mayor and City Council of Baltimore and the Lewis Towing & Lighterage Company may be enjoined by the peremptory enjoining order of this Court, issued on such notice as the Court may prescribe, unless cause to the contrary be shown, from conveying to or dumping upon the Jubb farm the garbage from Baltimore City[***3] or any portion thereof.

   (4) That the Mayor and City Council of Baltimore may be enjoined from proceeding with the erection of a temporary reduction plant on the Jubb farm for the purpose of reducing the garbage of Baltimore City thereon, and from conveying to the Jubb farm all or any portion of such garbage [*59] from Baltimore City for the purpose of there being so reduced.

   The facts upon which the relief is asked as set forth in the bill are thus stated:

   First--That the defendants are severally seized and possessed of land near Bodkin Creek, in the Third Election District of Anne Arundel County, most of them residing upon their holdings.

   Second--That the Mayor and City Council of Baltimore have recently purchased a tract of land from Charles H. Jubb, containing 125 acres, on the south side of Bodkin Creek, and have taken possession of this farm.

   Third--That the Mayor and City Council of Baltimore have awarded to the defendant, D. A. Gaumitz, a contract for the disposal of the garbage of Baltimore City for a term of five years, beginning January 1st, 1919, with the understanding that the garbage would be transported from Baltimore City to the Jubb farm, and there fed to[***4] some fifteen thousand pigs to be kept thereon, and the Board of Awards of the City estimating that by this manner of disposing of the garbage of Baltimore City, the City would receive a net revenue of sixteen thousand, five hundred dollars for the garbage, and save the annual cost of seventy-five thousand dollars heretofore paid for the disposition of the same, making a net saving to the City of ninety-one thousand, five hundred dollars a year.

    Fourth--That until the piggery is permanently established the garbage of Baltimore City is to be transported in scows to the Jubb farm, there to accumulate until the piggery is established, and the Mayor and City Council have made plans for the location of a temporary plant for the reduction of all or a portion of the garbage between January 1st and March 1st, 1919, and that the feeding contract has been assigned to the American Feeding Company and others.

   It is thus averred, in substance, that the removal and transporting by the City to the Jubb farm of the garbage from Baltimore City and there causing it to be reduced in a [*60] temporary reduction plant or fed to pigs in the manner proposed, will result in a nuisance and destroy the[***5] value of property holdings in that section and render the property unmarketable, and for certain reasons stated, will deprive the owners of the reasonable use and enjoyment of their property rights, and will cause irreparable loss, damage and injury to each of the plaintiffs.

   The defendants, the appellants here, demurred to the bill, and, as the demurrers of all the defendants are similar, the cause and grounds of the demurrer of the Mayor and City Council of Baltimore will be here set out:

   (1) That this Court is without jurisdiction, because upon the face of the bill it appears that none of the defendants are residents of Anne Arundel County, and the bill contains no averment of any fact or facts giving this Court jurisdiction over this defendant. [**559]

   (2) That this Court is without jurisdiction, because there is no sufficient allegation of any wrong actually committed or threatened, remediable in a Court of Equity, and because there is no sufficient allegation of any fact or facts showing irreparable damages to the plaintiffs or any of them.

   (3) That the bill does not aver facts showing any wrong committed or threatened which is remediable in a Court of Equity.

   (4) That[***6] the bill contains no sufficient statement of facts showing any irreparable damage to the plaintiffs or either of them, either suffered or impending.

   The first objection presented by the defendants' demurrer, that the Circuit Court of Anne Arundel County was without jurisdiction to maintain the suit because the defendants are non-residents of Anne Arundel County cannot, under the authorities, be sustained.

   It is averred in the bill that the situs of the subject-matter of the proceedings is within Anne Arundel County, and the property to be affected by the threatened nuisance is situate in that county. In Gunther v. Dranbauer, 86 Md. 1, 38 A. 33, it is said if the subject of the injury be real estate or an easement [*61] such as a right of way, whether private or public, obviously the action must be local, for the reason that the injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured was actually situated. In Crook v. Pitcher, 61 Md. 510, the Court held if the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought[***7] in the county or place in which it arose.  Mayor and City Council of Baltimore v. Meredith's Ford Turnpike Co., 104 Md. 351, 65 A. 35; Nettie Taylor v. Mayor and City Council of Baltimore, 130 Md. 133, 99 A. 900.

   The cases in this Court are reviewed and considered in Phillips v. Baltimore City, 110 Md. 431, 72 A. 902, and it is there held that, in this State, the rule requiring local actions to be brought in the jurisdiction where the cause of action arose, is well settled, and it applies as well to municipal corporations as to all other corporations.

   The general rule is thus stated, in 29 Cyc. 1237, to be that a suit to abate or restrain a nuisance can be brought in the county or district where the nuisance is situated, and should be tried there, unless a change of venue is granted by the Court. 40 Cyc. 73-75; 22 Ency. of Pl. and Pr. 829; 1 Chitty, Pleading, 281; Miss. and Mo. Railroad Co. v. Ward, 2 Black (U.S.), 485, 17 L. Ed. 311.

   Whatever, then, may be the decisions elsewhere, we think it is clear that, under the decisions and the statutes of this State, the Circuit Court for Anne [***8]Arundel County had jurisdiction to entertain a bill for an injunction to restrain a nuisance, or a threatened nuisance, directly affecting property in that county, although the defendants are non-residents of the county. Art. 16, Secs. 86 and 189, Code of Public General Laws; Fowler v. Pendleton, 121 Md. 297, 88 A. 124; Graham v. Co. Commrs. Harford Co., 87 Md. 321, 39 A. 804.

   The second and third grounds of the demurrer are in effect that the bill does not aver facts showing any wrong committed or threatened which is remediable in a Court of Equity.

   [*62] It appears by Chapter 205 of the Acts of 1908 that the City of Baltimore is prohibited from disposing of its garbage within the City, and the Act prohibits the erection of any garbage reduction plant within nine miles from the Lazaretto Lighthouse, on the Patapsco River. It was, as stated, because of this Act the Jubb farm, in Anne Arundel County, was selected as the point for the disposal of the City garbage, and where it is now proposed to operate a reduction plant for this purpose.

   While the general principle may be conceded that a municipality will not be stopped by an injunction[***9] from doing an act which it is authorized by law to do, but as was said by this Court in Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 A. 1081, the delegation of a power to do an act, whilst conferring full authority to perform the act itself does not, therefore, without more, essentially and without exception, carry the right to so do it as to inflict loss or injury upon an innocent individual. It was further said in that case that, however free from interference by the public acts of this character may be when authorized to be done by a municipality under competent and sufficient legislative grant, the right of an individual to complain of the special injury sustained by him as a consequence of this being done is, ordinarily, in no way impaired or affected.

   In Taylor v. Mayor and City Council of Baltimore, 130 Md. 133, 99 A. 900, the authorities upon this subject are collected and reviewed, and it is there said, in a case such as the one now before us, where the plant is essential to the health and comfort of the people at large, an injunction should not issue unless under very extraordinary circumstances, but the party should be left to [***10]his or her remedy at law.
 
   The law controlling the rights of parties to an injunction to restrain a prospective or threatened nuisance is well established by numerous decisions of this Court, and it is settled, where the application is to restrain the carrying on of a legitimate and lawful business, the Courts will go no further[**560] than is absolutely necessary to protect the rights of the parties seeking such injunction.

   In Chamberlain v. Douglas, 24 A.D. 582, 48 N.Y.S. 710, the Court said, when a person is engaged in carrying on a lawful business he should not be absolutely prohibited from doing so, unless it appears that the carrying on of such business will necessarily produce the injury complained of. If it can be conducted in such a way as not to constitute a nuisance, then it should be permitted to be continued in that manner.  Adams v. Michael, 38 Md. 123; Hamilton v. Julian, 130 Md. 597, 101 A. 558.

   Upon the allegations of the bill in this case, we are unable to hold that the conditions complained of are of such a character or so injurious in their present effect upon the property and other interests of the[***11] appellees as to invoke the restraining power of a Court of Equity.

   The prayer for relief not only asks that the Mayor and City Council of Baltimore shall be enjoined from hauling to, dumping upon or reducing the garbage on the Jubb farm or establishing a piggery on this farm, but from proceeding with the erection of a temporary reduction plant on the farm for the purpose of reducing the garbage of Baltimore City thereon, and from conveying to this farm all or any portion of the garbage from Baltimore City for the purpose of there being so reduced.

   This Court has frequently held that a prayer for relief as here set out is too broad and general to grant an injunction, and the application should be at once refused. Haines v. Taylor, 2 Phillips, Chancery, 209; West Arlington Co. v. Flannery, 115 Md. 274, 80 A. 965; Warren Mfg. Co. v. Balto., 119 Md. 188, 86 A. 502; Pope v. Clark, 122 Md. 1, 89 A. 387.

   It is conceded that if in the disposal of the garbage or in the operation of the reduction plant a nuisance is created whereby the property of the plaintiffs is injured or seriously affected, the defendant could be[***12] made to respond in damages for the injuries thus sustained.  Baltimore v. Merryman, 86 Md. 584, 39 A. 98; Taylor v. M. & C. C. of Baltimore, 130 Md. 133, 99 A. 900.

   [*64] We cannot hold, however, as this case is now presented, the appellees have brought themselves within the rules of law to justify an injunction to restrain a prospective or threatening nuisance, and unless such a case is presented a Court of Equity will not interfere. Dittman v. Repp, 50 Md. 516; Lohmuller v. S. Kirk & Son, 133 Md. 78, 104 A. 270.

   The mere allegation in a bill that irreparable damages will ensue is not sufficient unless facts be stated which will satisfy the Court that the apprehension is well founded, and they do not sufficiently appear in this case to justify a Court of Equity to interfere. Lamm and Hughes v. Burrell, 69 Md. 272, 14 A. 682; Johnston v. Glenn, 40 Md. 200; West Arlington Loan Company v. Flannery, 115 Md. 274, 80 A. 965; Warren Mfg. Co. v. Baltimore, 119 Md. 188, 86 A. 502.
 
   For the reason stated, we think, the[***13] Court below committed an error in overruling the demurrers to the plaintiffs' bill of complaint, except the demurrer as to the jurisdiction of the Court.

   These demurrers should have been sustained and the bill dismissed, but without prejudice to any future application for proper redress, if the use of the City's property as proposed results in injury or material damage to the plaintiffs' property rights sufficient to justify an injunction or an action at law for damages.

   It follows that the order of the Circuit Court for Anne Arundel County, dated the 22nd day of April, 1919, will be reversed, and the bill dismissed, without prejudice.

   Order reversed, with costs, and bill dismissed without prejudice. 

UNIVERSAL LODGE NO. 14 FREE AND ACCEPTED MASONS vs. HENRYVALENTINE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
134 Md. 505; 107 A. 531; 1919 Md. LEXIS 101

 June  24, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County. (THOMAS, C. J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order or decree affirmed, with costs.

CORE TERMS:  lodge, appointed, regulations, investigate, expulsion, subordinate lodge, secretary, session, hear, null and void, suspended, contumacy, sub-title, regular, attend, notify, tribunal, reasonable notice, suspension, inflicted, charter, morning, custom, retire, notice, decree, usages, reasonable opportunity, writ of injunction, reasonable time

COUNSEL: W. Ashbie Hawkins (with whom was Hawkins & McMechen on the brief), for the appellants.
 
James M. Monroe, for the appellee.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: PATTISON

OPINION: [*506] [**531] PATTISON, J., delivered the opinion of the Court.

   The appellee, Henry Valentine, was in January, 1914, and for sometime prior thereto, Master of Universal Lodge Number Fourteen, Free and Accepted Masons of the City of Annapolis, Anne Arundel County, Maryland, one of the subordinate lodges of the Grand Lodge of Free and Accepted Masons of Maryland.

   On the 13th day of January, 1914, certain members of said subordinate lodge, in a letter addressed to Joseph P. Evans, Master of the Grand Lodge, one of the appellants, preferred charge against the appellee as Master of said subordinate lodge. The charges were that Henry Valentine had called a meeting of the subordinate lodge at Isaac & Rebecca Hall, not the place designated in its charter for holding its meetings, [***2] and had at such meeting transacted business pertaining to the lodge, without receiving authority from the Grand Master to hold the meeting at such place; and also with "passing an act to purchase a piece of property at the cost of thirty-five hundred dollars ($3,500) and to make a deposit payment of one thousand dollars ($1,000), with the right to give a mortgage for the remaining twenty-five hundred dollars ($2,500)." The property so referred to was to be, when purchased, a home for said subordinate lodge.

   Section 6 of Article 1 of the constitution of the Grand Lodge, sub-title "Subordinate Lodges," provides: 

   "Nor shall any lodge hold meetings, unless authorized by the Grand Master, in any place other than the one designated in its charter, under the penalty of a forfeiture thereof."

   Section 2 of Article 1 of the same sub-title provides: 

   [*507] "It shall not be competent for a lodge to try its master. Any five members of the lodge or the District Deputy Grand Master may, however, impeach him before the Grand Master, who shall order an investigation of the charges; and if, in his opinion, they are well founded and of a character to justify the proceeding, he[***3] may suspend the delinquent and summon him to appear at the ensuing meeting of the Grand Lodge, to show cause why he should not be dealt with according to the regulations and usages in such cases established."

   Upon the receipt of the letter containing the charges mentioned, Joseph P. Evans, Grand Master, appointed a commission, consisting of five Past Masters, to investigate the charges preferred against Valentine, and on January 14th, 1914, the Grand Secretary of the said lodge, wrote Valentine, telling him that charges had been preferred against him to the Grand Master 'for a violation of the law and Masonic usages in holding a communication outside of the regular place of meeting without a dispensation," and further telling him that the commission would notify him as to the time and place of investigation.

   This the commission did by letter of January 22nd, 1914, in which he was told that the members of the commission would sit in the City of Annapolis on February 2nd, 1914, to hear testimony in reference to the charges preferred against him.

   To this letter Valentine replied by letter dated January 25th, in which he told them that he was employed as steward at the Naval Academy[***4] Officer's Mess, that on the date mentioned for the hearing he had to serve a supper, where his presence would be required from 8 to 11:30 P. M. and that it would be impossible for him to attend the meeting on the day named, but stated that "any other day will be all right for me. Please arrange and advise me."

   The secretary of the commission wrote Valentine on January 26th acknowledging the receipt of his letter and said to him: 

   [*508] "I shall [**532] at once take the matter up with the commission and notify you at the very earliest convenience of whatever day they may set."

   But in a postscript thereto, dated January 29th, the secretary stated that: 

   "The commission has instructed me to say to you that under no consideration can they change their date from February 2nd, and shall expect you and your witnesses present."

   On January 30th, Valentine wrote Evans telling him of the engagement which prevented his attending the meeting of the commission on February 2nd and of the letter received from the commission saying they would not change their date of sitting and asked him 

   "to please have them, the commission, meet on Tuesday, Feb. 3rd, or Feb. 6th. Either[***5] of these days I can and will be glad to meet them. Hoping this meets with your approval."

   On the following day, January 31st, Valentine again wrote the secretary of the commission telling him that it was impossible for him to be present on February 2nd, but saying: 

   "I can with pleasure be with you Tuesday, Feb. 3rd, or Feb. 6th. I have referred the matter to the Grand Master. Please confer with him."

   On February 1st, Evans wrote Valentine stating in substance that he very much regretted that he could not have the commission defer their meeting as suggested by him, Valentine, but as the matter was at such time in the hands of the commission and as they had fixed February 2nd, he could not interfere in the matter.

   The meeting of the commission was held on the evening of February 2nd at Annapolis, but Valentine was unable to attend for the reasons previously communicated to the commission. After its meeting at Annapolis on the evening [*509]named, the commission made its report to the Grand Master, in which it is stated 

   "that after a very careful review of all the evidence, we find that Brother Henry Valentine, W. M. Universal Lodge Number 14, F. & A. M., of Annapolis, [***6]Maryland, is guilty of a very grave offense by not complying with the second common laws of Masonry by not being present at the setting of the commission when summoned to do so, also treating the commission with contempt by not sending them a written statement at their place of setting on Feb. 2nd, stating just why he could not be present. Also Brother Henry Valentine we find has commit an offense in the violation of Article 1, section 6, on page 65. Also a violation of Article 7, section 22, page 63, in the Masonic Digest."

   The first of these sections (section 6, Article 1), as we have stated, contains the prohibition against holding meetings in any place other than the one designated in the charter of the lodge without authority from the Grand Master.

   The other (section 22, Article 7) provides: 

   "That special committees may be appointed upon any item of business and may consist of as many members as the lodge, in its discretion, may think proper. All committees shall report at the next stated meeting, subsequent to their appointment, and in writing, unless otherwise ordered by the lodge. All committees shall be appointed by the Master. Members who are appointed to serve [***7]upon committees shall feel bound in honor to give patient and diligent attention to the business of their appointment, and report their conclusions to the lodge without fear or favor."

   We have stated section 22, Article 7, in full, in order that it may be seen of what specific offenses Valentine was found guilty and for which he was subsequently suspended.

   On February 9th, Joseph P. Evans, Grand Master, wrote Henry Valentine stating that he would visit his lodge on [*510] Tuesday night, February 17th, and ordered him to have his secretary notify all members of said subordinate lodge to be present and also to notify the District Deputy Grand Master of his coming, and that he be present at the meeting. Valentine attended the meeting on February 17th, and his statement of what occurred is as follows: "After the regular routine of business had been completed, the Grand Master, Joseph Evans, was introduced by the Worshipful Master to the lodge and I gave him the chair. * * * After taking the chair he * * * said, Brother Valentine come to the altar; I did so. He said, charges have been preferred against you by members of this lodge and a commission have been appointed to investigate[***8] and the charges have been sustained; you are suspended; go out of this lodge. * * * He then said to the Junior Warden call off this lodge from Labor to Refreshment, and * * * to the Junior Deacon, open that door and let Henry Valentine go out of this hall * * *.

   Evans, in speaking of what occurred at the meeting of Feb. 17th said, "on my arrival about eight o'clock, found the lodge opened and in session. * * * I repaired to the Master's station, as is the custom, asked him for his jewel of office, he turned over the same to me, as is the custom, I then asked for the warrant of the lodge, which he refused to give, but after some explanation and a statement as to what I had learned his purpose and motives was, I taken it out of his hand, he very reluctantly turned it loose, it was in a case. I then * * * explained to him that the commission that had been appointed by me to investigate the charges preferred by the members of his lodge had made their report to me and their report sustained the charges and that I was here in the capacity as Grand Master to perform my duty as is the custom, the rules and regulations of the order, which under the circumstances, compel me to suspend him [***9]  as Master of Universal Lodge until the meeting of the Grand Lodge in Hagerstown, August coming, at its regular sitting, at which time his case would be reported by me to the Grand Lodge. That he was also ordered to be present and if any irregularities or otherwise [*511] [**533] he would have ample provision or opportunity to vindicate himself and his case and asked him to please retire from the lodge, whereupon he refused. I ordered the lodge called off and the door opened and demanded that he retire. He refused and I told him I would be compelled to order him forcibly ejected if he did not retire and he still refused. * * * He finally went out."

   On the 13th of April, 1914, the appellee filed his bill of complaint in this cause, in which he stated the facts as we have given them and further alleged therein that the proceedings of the Grand Master, as well as the commission appointed by him to investigate the charges preferred against him, the plaintiff, were utterly null and void, and that "the corporation was without authority either in law or by the usages of said order" to hear the frivolous charges, and to find thereon, as stated herein.

   It likewise alleged that if[***10] the action of the said commission and of the said Grand Master of said lodge is sustained, the plaintiff "would be denied the benefit of sick benefits in the event of his sickness and that his family would be denied the benefit of the death burial claim in the event of his death, and that his widow would be denied the benefit of the widow's allowance provided by said order in the event of his death, and that he is denied his rights and privileges as a Mason, and otherwise injured in his good name and reputation as a citizen," etc.

   The prayer of the bill asked that the action of Evans, the Grand Master, "be declared null and void and that he be restored to his rights and privileges as a member of Universal Lodge Number Fourteen, and that the said Grand Master and Universal Lodge Number Fourteen be enjoined from interfering with him in the exercise of his rights as Master of said lodge, and from preventing him from attending the meetings thereof."

   The Court passed an order thereon directing the writ of injunction to be issued, as prayed, unless cause to the contrary be shown, on or before the day therein named.

   [*512] Evans, the Grand Master, answered the bill, denying that his [***11]action in suspending the plaintiff was null and void and alleging that it was in strict accordance with the laws and constitution of the order.

   The other defendant, Universal Lodge Number Fourteen, the subordinate lodge, filed its answer admitting the facts alleged in the bill of complaint and consenting to the granting of the relief prayed.

   While these proceedings were still pending in the Equity Court for Anne Arundel County, the Grand Lodge met in Hagerstown, in August, 1914.

   In the meantime, however, Valentine had employed counsel and had taken an appeal from the action of the Grand Master in suspending him. The regularity and sufficiency of the appeal is not assailed.

   Then Grand Lodge met on the 17th of August. Valentine was there with McGuinn, his counsel, and with witnesses in support of his appeal. The counsel of Valentine testified that when the question of Valentine's suspension was brought before the lodge by the Grand Master, he was not permitted to defend him. He stated that he arrived in Hagerstown on the morning of the 17th of August about noon. "I did not attend the morning session of the Grand Lodge. When I appeared the Grand Lodge had * * * taken a recess. I saw[***12] the Grand Master, Joseph P. Evans, and asked him for the personnel of committee that would hear Mr. Valentine's case. He told me that the commission had been appointed but he would not tell me who they were nor when they would meet. He did say to me, however, that you can not appear before that commission representing Brother Valentine, or Mr. Valentine, I don't know which he called him, for I have filed charges against you and you are a criminal, using his exact words, and you can not appear before that commission. I asked him for a copy of the charges that had been filed against me and he said "That is all right.' I said, is it final that I can not represent Mr. Valentine? He said you can not appear before that commission. I then left him and reported the interview [*513] to Mr. Valentine, but before leaving him in order to induce him to reverse his decision, I told him that I had prepared Mr. Valentine's case, that he had retained me to do so and I was there for the purpose of presenting his side of the matter, and it would put him in a very awkward position and he said that it didn't matter. I conversed with Mr. Valentine and told him that I had been rejected as his counsel, [***13] and said to him I don't know what to advise you; I can not represent you any further, the Grand Master says I can not."

   Evans, when upon the stand, testified that he did not object to McGuinn's appearing as counsel for Valentine but thought it better that he should not appear for others, against whom charges had been made, in as much as he, McGuinn, was implicated and charged with them in the commission of the offense for which they were to be tried. The charges against them were that they had divulged the secrets of the order when upon the stand as witnesses in the equity case pending in Anne Arundel County, after having been subpoenaed to appear and testify therein.

   Valentine testified that upon being told by his counsel that he was not permitted to defend him he did not enter the hall but remained upon the outside, and did not attend the hearing before the commission but returned to his home. Whatever may have been said and done by the Grand Master in relation to the hearing of the charges before the commission, that is, whether the statements made by McGuinn were true or untrue, it is a conceded fact that the charges submitted to the commission, named at the session of the Grand[***14] Lodge, for its consideration, included other charges than those upon which Valentine had been suspended. These charges [**534] were presented by the Grand Master at the morning session of the lodge on August 17th, in the absence of both Valentine and his counsel, and were considered by the commission on the afternoon of that day and at the next morning session the result of their investigation was reported to the Grand Lodge, and Valentine was then expelled. Thereafter on that day the [*514] Grand Lodge adjourned. The additional charges were at such time unknown to Valentine or his counsel, as asserted by them, but if known to them, no sufficient opportunity was afforded Valentine to defend against such charges.

   The report of the commission shows that such additional charges were considered and passed upon by them and that upon such charges, with those for which he had been suspended, Valentine was expelled from the order.

   The report stated that they found Valentine guilty of the charges named in the report of the investigating commission, and also "of contumacy in refusing to act knowingly subjection to the Grand Lodge of the jurisdiction of Maryland." The contumacy[***15] of which he was found guilty consisted of his invoking the aid of the Equity Court for Anne Arundel County to redress the alleged wrong inflicted upon him by his suspension by the Grand Master.

   Thereafter, the plaintiff amended his bill, by further alleging his wrongful expulsion from the order by the Grand Lodge and asked that it too be made a party defendant to his bill.

   The amended bill was first demurred to, but upon its being overruled, an answer was filed by Evans and the Grand Lodge, in which they allege that the matter of Valentine's expulsion was considered at the session of the Grand Lodge in the presence of his counsel and with the knowledge of both of them, and no protest was made by either; that he failed to exhaust the remedies provided by the order; and further allege that his expulsion "was in conformity with the constitution laws and regulations of the Masonic Fraternity, and in strict regard of every right and privilege of the complainant."

   Much evidence was taken upon the issues framed, and thereupon the Court "adjudged, ordered and decreed that the action of the Most Worshipful United Grand Lodge of Free and Accepted Masons of Maryland, expelling Henry Valentine, [***16] the plaintiff, from Masonry forever, be and the same is hereby declared to be null and void," and the clerk of the [*515] Court was ordered and directed to issue the writ of injunction directed to the said Grand Lodge and to the said Joseph P. Evans, Grand Master thereof, enjoining and strictly forbidding the said Grand Lodge and the said Grand Master thereof from interfering with the plaintiff, Henry Valentine, "in the exercise of such Masonic rights and privileges as he would have enjoyed as a member of the order, but for such action of the said * * * Grand Lodge in expelling him from Masonry forever." It is from this order or decree that this appeal is taken.

   The law, applicable to cases of the character of the one before us is now well established in this State. Where it is shown that the proceedings instituted against a member of an association have not been conducted in accordance with the prescribed rules of procedure in such cases, and that in violation of such rules, he has been given no opportunity to appear and defend himself before the tribunal which is to hear and determine the charges preferred against him, the Court when called upon will not hesitate to interfere [***17]in his behalf against the invasion of such rights, if it be shown that he has exhausted the remedies furnished him by the association.  Grand Lodge v. Lee, 128 Md. 42, 96 A. 872; Zeliff v. Knights of Pythias, 53 N.J.L. 536, 22 A. 63, and other cases cited in note to McGuinness v. Forresters of America, Vol. 3, 211, of Amer. & Eng. Annotated cases.

   Section 1 of Article 5 of the Constitution, sub-title "General Regulations," provides: 

   "No penalty shall be inflicted by the lodge until after a fair trial and examination of evidence, or confession, the fact of guilt shall be manifest. The manner of trial shall be as follows: The written charge and specification shall be filed with the secretary of the lodge, whose duty it shall be to have a copy thereof delivered to the accused, as also a notice which shall give a reasonable time for the taking of proof to sustain the charges and specifications; also to inform the accused that he may, at the same time and place, offer proof to exculpate himself from such charges, and that the accused [*516] may also have leave to prove at such other time and place as he may designate upon giving [***18] reasonable notice to the master or presiding officer of said lodge; for which purpose the lodge shall allow reasonable time, if asked for, and in all cases the whole testimony shall be reduced to writing if not improper to be written, and shall be carefully preserved by the secretary of the lodge."

   And further provides: 

   "The object of all Masonic penalties is declared to be twofold, to vindicate the honor of Masonry and to reform the erring brother. The only penalties recognized by this lodge or known to Free Masonry are expulsion, suspension and reprimand.

   "The highest grade of Masonic punishment is expulsion. It is only to be inflicted for aggravated offenses or for contumacy in refusing to acknowledge subjection to the lodge, or for such offenses as are notoriously subversive of the foundations of virtue and morality, and would therefore be calculated to render the Masonic institution contemptible in the eyes of the community."

   As was so well said by JUDGE THOMAS in his opinion, rendered in the lower Court: 

   [**535] "The only charge preferred against the plaintiff in January, 1914, and the only offense for which he was tried, was that he had violated section[***19] 6 of Article 1 by holding a meeting of the lodge at a place other than the place where its regular meetings were held, and the action of the Grand Master in February, 1914, was based upon the findings of a committee appointed by him to investigate that charge, and that was the only offense covered by his appeal to the Grand Lodge from the action of the Grand Master. It appears, however, from the report of the committee of the Grand Lodge that it investigated other and distinct charges against the plaintiff, and that its report and recommendation, which were approved by the Grand Lodge, [*517] were based, at least in part, upon the findings of the committee that he was guilty of such other offenses. By the terms of the report it would seem that the committee of the Grand Lodge appointed to investigate the charges against Valentine based its recommendation of expulsion mainly upon its finding that he was guilty of 'contumacy' in having taken the lodge into court, and there is no evidence in the case that the plaintiff ever had had any notice that such a charge was to be preferred against him, or that he was given such reasonable opportunity to defend himself against[***20] such a charge as the constitution, by-laws and regulations of the order would seem to contemplate.

   "It is not clear from the language of section 1 of Article 5, sub-title 'General Regulations,' of the constitution, quoted above, that it was intended to apply to trials in the Grand Lodge, but the justice of that provision would seem equally applicable to such trials. Certainly a member charged with such a serious offense as to warrant his expulsion from the order should be given some notice of the charge and a reasonable opportunity to defend himself before the tribunal appointed to try him. Even assuming, according to the contention of the defendants, that the plaintiff was in Hagerstown on the 17th of August, 1914, and then learned for the first time that the charges were preferred against him; that a committee had been appointed to investigate the charges, and that the committee would sit in the afternoon of that day to hear the case; that he did not appear before the committee, and that he did not defend himself in the Grand Lodge against the adoption of the report of the committee, it can not be said that he had such a fair trial as the constitution, rules and regulations of the [***21]order provided for, or as justice and fair dealing would require, or, under the circumstances disclosed by the record, that he acquiesced in what was done.  Camp No. 6 v. Arrington, 107 Md. 319, 68 A. 548; Worshipful Grand Lodge v. Lee, 128 Md. 42, 96 A. 872; Smith v. Merriott, 130 Md. 447, 100 A. 731; [*518]Grand Lodge v. Lee, 131 Md. 681, 103 A. 88.

   "He should have been given such reasonable notice of the charges preferred against him as would have enabled him to prepare for his trial, and to have appeared with his witnesses and defend himself before the tribunal which was to hear and determine the charges against him, in accordance with the constitution, rules and regulations of the order. That, it would seem upon any view of the evidence contained in the record, was denied the plaintiff, and as no appeal from the action of the Grand Lodge is now provided for in the constitution, rules and regulations of the order, there would be no remedy for the wrong done the plaintiff unless a Court of Equity intervenes to declare the action of the Grand Lodge null and void."

   The order and decree passed[***22] by the lower Court was in our opinion properly passed and should be affirmed.

   Order or decree affirmed, with costs. 

JOSEPH P. EVANS, GRAND MASTER OF UNITED GRAND LODGE, vs.DANIEL BROWN ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
134 Md. 519; 107 A. 535; 1919 Md. LEXIS 102

 June  24, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County. (THOMAS, C. J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order and decree affirmed, with costs.

CORE TERMS:  session, lodge, secrets, notice, decree, subordinate lodge, interfering, suspended, expulsion, redress, sitting, by-laws

COUNSEL: W. Ashbie Hawkins (with whom was Hawkins & McMechen on the brief), for the appellants.
 
James M. Munroe, for the appellees.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: PATTISON

OPINION: [*520] [**535] PATTISON, J., delivered the opinion of the Court.

   The appellees in this case were, by the Grand Lodge of Free and Accepted Masons of Maryland at its session, held at the City of Hagerstown, State of Maryland, on the 17th and 18th of August, 1914, suspended from membership in Universal Lodge, [**536] Number Fourteen, a subordinate lodge of Annapolis, Maryland, and deprived of their general Masonic rights for a period of six months, upon the charge of disclosing the secrets of Masonry in the testimony given by them in the case of Henry Valentine v. Universal Lodge Number Fourteen, Joseph P. Evans, Grand Master, and the Grand Lodge of Free and Accepted Masons of Maryland, heard in the Equity Court for Anne Arundel County, Maryland, from which an appeal[***2] was taken and a decision rendered in this Court at its April Term, 1919, in the case of Universal Lodge Number Fourteen, Joseph P. Evans, Grand Master and the Grand Lodge of Free and Accepted Masons of Maryland v. Henry Valentine.

   The appellees in their amended bill, filed in the Circuit Court for Anne Arundel County, sitting as a Court of Equity, asked that the action of the Grand Lodge in suspending them be declared null and void, and that the defendant corporations and Joseph P. Evans, Grand Master, be enjoined and restrained from interfering with them in the exercise of their rights as members of the subordinate lodge. The bill alleges, among other things, that certain of the plaintiffs "were not present at the aforesaid session of the * * * Grand Lodge, * * * had no notice whatever that any charges would be preferred against them, and had no opportunity to appear at said session and make defense of said charges;" while it alleges others were present at said session of the Grand Lodge, "but had no knowledge nor notice of any description whatever, [*521] prior to arriving there, that any charges were to be preferred against them; that the session of the * * * Grand[***3] Lodge as aforesaid was convened at 12 o'clock on the 17th day of August, * * * and among the first things ordered by the said Joseph P. Evans, Grand Master, * * * was the appointment of a commission and the preferring of charges against them, with directions to the said commission to report their findings to the * * * Grand Lodge at 2:30 o'clock of the same afternoon; that the commission assembled at 1 o'clock P. M. on the 17th day of August, aforesaid," at which time, such of the plaintiffs as were present in Hagerstown, "appeared before them; that they protested against the hearing of any charges against them, on the ground that the charges had just been preferred; that no copy of said charges had been served upon them; that they had not been afforded opportunity to consult counsel and prepare their defense," as provided by the constitution of the Grand Lodge; "that notwithstanding their earnest protests, the said commission proceeded to hear said charges," and after hearing the same and reporting their investigation to the lodge, the plaintiffs were suspended for the period named.

   Each and all of the plaintiffs in the bill averred that they appeared as witnesses before the examiner[***4] of the Circuit Court for Anne Arundel County, sitting as a Court of Equity, in the case above mentioned, in obedience to the writs of subpoena commanding them to appear and testify, but each and all of them allege that they did not, in giving their testimony at such time, disclose any of the secrets of Masonry, "and that the said Joseph P. Evans, Grand Master, well knew, when he preferred said charges, that no such secrets were so disclosed."

   It was conclusively shown by the evidence taken in the case that the plaintiffs had no notice that charges would be preferred against them by the Grand Lodge or its officers at the meeting to be held in August, 1914, at Hagerstown, and only a few of the plaintiffs were present at that meeting, and no sufficient opportunity was afforded any of them to meet and [*522] defend the charges preferred against them; and as it does not appear from the record that any appeal from such action of the Grand Lodge is provided by the constitution and by-laws of the association, or any further remedy or redress furnished by it for the alleged wrong inflicted upon the appellees, the decree of the Court below, continuing the injunction, previously issued[***5] in the case, enjoining and restraining the defendants from interfering with the plaintiffs and each of them in the exercise of their rights and privileges as members of said lodge, was properly passed, for the reasons fully stated in the case of Universal Lodge Number Fourteen et al. v. Henry Valentine, above referred to.

   The order or decree of the Court will, therefore, be affirmed.

   Order and decree affirmed, with costs. 

LUKE SWIFT vs. GEORGE J. COOK ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 651; 105 A. 869; 1919 Md. LEXIS 32

 January  16, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (Moss, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, the costs to be paid out of the proceeds of sale.

CORE TERMS:  remainder, testator, widow, vested, heir, life estate, daughter, vested remainder, vesting, deed, natural life, deceased, life tenant, contingent, lifetime, vest, deceased child, divested, devised, residue, dispose, fee simple, tenant, decree, died, share and share alike, expressly provided, real estate, administrators, remainderman

COUNSEL: Daniel R. Randall submitted a brief for the appellant.
 
James M. Munroe, submitted a brief for the appellee.

JUDGES: The cause was submitted to BOYD, C. J., BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

OPINIONBY: BOYD

OPINION: [*652] [**869] BOYD, C. J., delivered the opinion of the Court. 

   This case is before us on an appeal from the decree of the Circuit Court for Anne Arundel County overruling exceptions of the appellant to a sale made to him and reported to the Court by James M. Munroe, trustee. George H. Chard was in his lifetime seized and possessed of a farm in Anne Arundel County. His will, dated the 1st of February, 1878, after the formal parts, was as follows: 

   "1st. I desire my brother Robt. W. Chard to settle my estate.

   "2nd. After all my just debts are paid, I desire my wife, Nancy E. Chard, to have and to hold the balance as long as she may live and at her death if any remain to be divided among my children by the said Nancy E. Chard."
[***2]

   George E. Chard died in 1878, leaving surviving him his widow, Mrs. Nancy E. Chard, and three daughters, namely, Mrs. Sadie Cook, Miss Lottie Chard and Miss Mary Chard. Mrs. Cook survived her husband, Henry D. Cook, and died a few years ago leaving eight children, all of whom are parties to the cause in which Mr. Munroe was appointed trustee to sell the property, for the purposes of partition. Miss Lottie Chard married Warren A. Ballard and has three children. Miss Mary Chard is unmarried and Mrs. Nancy E. Chard, widow of George H., is still living. By a deed dated January 10th, 1899, Nancy E. Chard, widow, Lottie Chard, now Mrs. Ballard, and Mary Chard conveyed in fee simple to Sadie Cook the farm in question. Several exceptions were filed to the ratification of the sale reported by Mr. Munroe, but all were abandoned excepting the second and third, which call for the construction of the will of George H. Chard. The appellant contends that Nancy E. Chard, the widow, took a life estate in the lands, without power of sale, with remainder to the children of the said George H. Chard and Nancy E. Chard, contingent upon their being still alive at the death of the life tenant. That the life[***3] tenant being still alive, it [*653]can not certainly be determined in whom the remainder will vest.

   While the will was doubtless not drawn by a lawyer, it expresses the evident intention of the testator--which was that his widow should have all of his property for life, without impeachment of waste, and that after her death the remainder should be divided between his children by Nancy E. Chard. It is not necessary to cite many authorities to show that the law favors the early vesting of estates, and that when the language of a will or other instrument admits of such construction, a remainder will be declared to be vested, rather than contingent. In one of the earlier cases in this State, which has been so frequently cited, Tayloe v. Mosher, 29 Md. 443, 457, JUDGE MILLER, in his usual strong way of stating propositions of law, said: "Estates will be held to be vested wherever it can fairly be done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must be so plainly inferable from the terms used as to leave no room for construction." Although it is not always helpful[***4] to cite decisions affecting other wills when the Court is called upon to construe one, it will not be out of place to refer to some of those which have decided the questions to be considered [**870] in this case. In Russell v. Werntz, 88 Md. 210, 44 A. 219, the testator, after providing for payment of his debts and funeral expenses, and bequeathing to his son George $800 to be paid out of the proceeds of a life insurance policy, left to his wife "all the residue of my estate, including all my property, both real, personal or mixed, to have and to hold and dispose of as she may see fit, while she remains single, and at her death or marriage, the remaining property is to be equally divided between my two daughters, Grace A. Russell and Jessie V. Russell." (Italics ours.) The appellees contended that the widow only acquired a life estate, with power to dispose of that interest and no more, and that her daughters took a vested interest in the remainder, while the widow contended that she took a fee, or if it be held that she acquired only a [*654] life estate she had the power to convey a fee simple title in the reversion. Notwithstanding the[***5] language used in that will, the Court held that the widow only took a life estate in the real property, with remainder to the daughters.

   In Hoover v. Smith, 96 Md. 393, 54 A. 102, the will left all of the property of the testator to his wife, "to have and to hold the same during her natural life, or as long as she shall continue to be my widow. After either of the above events the property to be sold and divided equally among my lawful heirs. The children of deceased heirs shall inherit the full portion as their parents would have done if living." The testator left a widow, two sons, a daughter, two grandchildren who were children of a deceased daughter, and a granddaughter, Elizabeth Wolf, who was the child of another deceased daughter. Elizabeth Wolf died after the testator, but in the lifetime of the widow. It was held that the remainder to the testator's heirs vested in them at the time of his death and the vesting was not postponed until the death of the life tenant, but only the enjoyment of the estate. It was consequently held that Elizabeth Wolf took her share of the estate by a direct gift and it passed to her representatives.

   In Roberts v. Roberts, 102 Md. 131, 62 A. 161,[***6] the testator after bequeathing $100 to each of his two children by his first wife, and providing for payment of his debts and funeral expenses, devised and bequeathed all the rest and residue of his estate to his wife "for and during the term of her natural life, in trust for the use and benefit of herself and our children." He authorized his wife to sell any part of the real estate which she thought proper--"the proceeds of such sale or sales to be invested upon the trusts of this will"--and to lease the real estate. He gave her authority to use so much of the principal as necessary for the support of herself and their children, or for their education or advancement in life, and then followed this clause: "I devise and bequeath all my estate, real and personal, remaining at the death of my said wife, to my children by my said wife, share and share alike, absolutely in fee simple, the child or children of a deceased [*655] child shall stand in its or their parent's place and stead, and receive and have the share and interest its and their parent would have been entitled to if living." It was held, quoting from the syllabus for convenience, that: "When there is a vested [***7]remainder in property after a life estate, such interest is not defeated by the death of the remainderman before the termination of the life estate, but it passes to the heirs at law and next of kin of the remainderman in case of his intestacy, or to his devisee or legatee in case he disposes of the same by will. When an estate is given to one for life with a remainder over to other persons, and a power of disposition of the property is annexed to the life estate, the remainder is not affected by the power unless, and to the extent, that it be exercised. In such case the remainder vests subject to the execution of the power and the uncertainty as to whether the power will be exercised as to all or any part of the estate does not make it a contingent remainder."

   In Weller v. Kolb, 128 Md. 221, 97 A. 542, the testator left to his sister for and during the term of her natural life certain tracts of land, and although he did not specifically devise the remainder in that clause of the will, by a codicil he left to his "executrix, her heirs, executors, administrators and assigns, all the rest and residue of his estate not specifically devised and bequeathed in my said[***8] last will and testament, and in this codicil, in trust to sell and dispose of the same and valid conveyance thereof to make, and divide and distribute the proceeds among all my heirs at law, share and share alike." It was held that the remainder vested in those persons who were the heirs at law of the testator at the time of his death. It was further held that any one having a vested remainder could convey the same--citing Roberts v. Roberts, supra, where it was said that a vested remainder can be devised, mortgaged or conveyed and is liable to execution by a judgment creditor. See also, 1 Tiffany on Real Prop. (305), sec. 129.

   The appellant referred in his exceptions to Williams v. Armiger, 129 Md. 222, 98 A. 542, but the provision in the deed in that [*656] case presented a very different question. It expressly provided that the property was to be held in trust for the benefit of Mary W. Johnson during her natural life, "and from and after the death of the said Mary W. Johnson, then in trust for all and every the children the said Mary W. Johnson now has or the child or children she may hereafter [**871] have, and their executors, [***9] administrators and assigns, as tenants in common equally, the issue of any deceased child of said Mary W. Johnson, if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled." We held that each of the children of Mrs. Johnson took a vested remainder, subject to be divested only by his or her death leaving issue, during the lifetime of Mrs. Johnson, and that the words "from and after" merely referred to the time of enjoyment of the estate. It will be observed that the deed expressly provided that the issue of every deceased child should take the part or portion to which the parent of such issue if living would have been entitled. The same sort of a provision was in the will under consideration in Cox v. Handy, 78 Md. 108, 27 A. 227. In each of those cases the intention of the grantor and testator, respectively, was decided to be that the child, or issue of deceased children, was to take the share of his parent, and hence while the estates were held to be vested remainders, they were liable to be divested by the death of the parent. Such is not the case in this will. The testator did not[***10] show any intention to postpone the vesting or to provide for any but his children by the said Nancy E. Chard.

   Of course, if one of his children had died intestate during the lifetime of the tenant for life and left a child or issue, without having disposed of her interest in the vested remainder, such child or issue would have inherited that interest, but would have taken as heir of his or her parent, and not under the will of the testator, and hence the vested remainder would not have been divested as would have been under the deed under consideration in Williams v. Armiger, or under the will construed in Cox v. Handy, 78 Md. 108, 27 A. 227.

   [*657] It does not seem necessary to discuss such cases as Demill v. Reid, 71 Md. 175, 17 A. 1014; Larmour v. Rich, 71 Md. 369, 18 A. 702, and Poultney v. Tiffany, 112 Md. 630, 77 A. 117. In Small v. Small, 90 Md. 550, 568, 45 A. 190, JUDGE FOWLER, in speaking of Larmour v. Rich, said: "The distinction is clearly drawn between that class of cases where the estate or interest vests at the death of the testator, because[***11] of an absence of any expressed intention that it vest later, and those where the testator by his will fixes a more distant period for the vesting."

   The will did not leave the remainder to the children of Nancy E. Chard, but to his children by her, and hence any children she might have had by another husband would not be entitled to take and there would be no contingency of having to let in after-born children.

   So, without deeming it necessary to refer to other cases, we are of the opinion that under the will of George H. Chard, his children by Nancy E. Chard took vested remainders in the property at the time of his death, and that the deed of Nancy E. Chard and others to Sadie Cook vested in the latter all the interest in the tract of land which George H. Chard died seized and possessed of. As no question is raised in reference to the mortgage held by Mrs. Chard, of course that is not intended to be affected by what we have just said. The decree of the lower Court will therefore be affirmed.

   Decree affirmed, the costs to be paid out of the proceeds of sale. 

JOHN SNOWDEN vs. STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 624; 106 A. 5; 1919 Md. LEXIS 34

 January  16, 1919, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Baltimore County, whence it had been removed from  Anne Arundel  County. (DUNCAN, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Motion to dismiss the appeal denied, and judgment affirmed, with costs.

CORE TERMS:  bruise, o'clock, door, autopsy, street, neck, photographs, scratches, morning, wound, night, noise, died, malice aforethought, fingernails, feloniously, admissible, wilfully, rebuttal, sister, looked, murder, minute, signing, dollar, reversible error, front door, contradiction, indictment, injurious

COUNSEL: A. Theodore Brady and C. Gus Grason, for the appellant.
 
Nicholas H. Green, State's Attorney for Anne Arundel County, and Ogle Marbury, Assistant Attorney General (with whom was Albert C. Ritchie, Attorney General, on the brief), for the appellee.

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

OPINIONBY: BURKE

OPINION: [*625] [**6] BURKE, J., delivered the opinion of the Court.

   John Snowden, the appellant on this record, was indicted by the Grand Jury for Anne Arundel County for the murder of Lottie May Brandon, a young married woman living at No. 29 Second street, in the city of Annapolis. The murder was alleged to have been committed on the 8th of August, 1917. The indictment contained two counts. The first count alleged that the said John Snowden on the date and at the county aforesaid: 

   "In and upon one Lottie May Brandon in the peace of God and of the said [***2]State then and there being, feloniously, wilfully and of his malice aforethought did make an assault, and that he the said John Snowden, then and there the said Lottie May Brandon, by and upon the neck and throat of her the said Lottie May Brandon, [*626] with both the hands of him the said John Snowden, did feloniously, wilfully and of his malice aforethought, grasp and seize, thereby choking and strangling the said Lottie May Brandon, and that he the said John Snowden, with a certain blunt instrument, a further description whereof is unknown to the jurors aforesaid, in his hand then and there had and held the said Lottie May Brandon, in and upon the head of her the said Lottie May Brandon, then and there feloniously, wilfully and of his malice aforethought, did strike, giving to her the said Lottie May Brandon, then and there, with the blunt instrument aforesaid, a further description whereof is unknown to the jurors aforesaid, as aforesaid, by the stroke aforesaid, in and upon the head of her the said Lottie May Brandon, a mortal wound, of which said choking, strangling and mortal wound she the said Lottie May Brandon then and there died."

   The second count alleged 
 
"that[***3] the said John Snowden on the eighth day of August, in the year of our Lord nineteen hundred and seventeen, at the county aforesaid, feloniously, wilfully and deliberately premeditated malice aforethought did kill and murder Lottie May Brandon, contrary to the form of the Act of Assembly in such case made and provided against the peace, government and dignity of the State."

   Snowden plead not guilty, and upon the suggestion of the State's Attorney for Anne Arundel County, the case was removed to the Circuit Court for Baltimore County for trial. The case was tried in that Court in January, 1918, and on the 31st day of January, 1918, the jury found Snowden guilty of murder in the first degree. A motion for a new trial was made and overruled, and on the 13th of February, 1918, the Court sentenced Snowden to be hanged. The appeal in this case was taken from that judgment.

   [*627] The State has moved to dismiss the appeal upon two grounds: First, because the record was not transmitted to this Court within the time required by law; second, because the bills of exceptions were not signed during the term at which the judgment was entered, nor within any extension of the time[***4] for such signing which had been granted by the Court. The judgment, as we have stated, was entered on the 13th of February, 1918, and the order for an appeal was filed March 2, 1918. The appeal was, therefore, taken within the time required by Rule 23 of this Court. But the transcript of the record was not filed in this Court until October 5, 1918,--a little more than seven months after the order for appeal was filed. It was not transmitted earlier because the bills of exceptions were not signed until the 23rd of September, 1918. But the record shows that the delay in the signing of the exceptions and in the transmitting of the record were not chargeable to the default or to the laches of the appellant or his counsel. A certificate of JUDGE DUNCAN, who presided at the trial, appears in the record by which it is shown that the bill of exceptions "in their present shape," were submitted to him by the counsel for the appellant before the 15th of April, 1918, * * * the time limited by previous orders of Court for filing exceptions being May 15, 1918. JUDGE DUNCAN told counsel that the exceptions should be presented to the State's Attorney for Anne Arundel County for approval, and they[***5] were presented to the State's Attorney for that county on or before April 12, 1918. On the 27th of April, 1918, the exceptions were again presented to JUDGE DUNCAN "in their present shape" without an agreement between counsel as to what they should contain having been reached. JUDGE DUNCAN took no action upon the exception, but handed them over to Mr. Hartman, the State's Attorney for Baltimore County, with [**7]the request that he go over the exceptions with Mr. Brady, one of the counsel for the appellant. JUDGE DUNCAN was absent from Towson by reason of illness from July 5th until September 16th, 1918, and he heard no more of the exceptions until the 12th of August, [*628] 1918, when they were received by him in New York. Before acting upon them, Charles S. Williams, one of the counsel for the appellant, called upon him and requested the return of the exceptions in order to go over them with the State's Attorney for Anne Arundel County. The judge did not see the exceptions again until about the 16th of September when they were returned to him by Mr. Williams for his action, no agreement having been reached. The exceptions were signed by JUDGE DUNCAN on the 23rd of September, [***6] 1918, and the bills of exceptions then acted upon were the same ones which on two occasions in April, 1918, had been presented to him by counsel for the appellant. It thus appears that the appeal was taken in time, and that the exceptions were prepared by the counsel for the accused with reasonable promptness, and submitted to the judge on two occasions within the time limited by previous orders regularly passed. This was all that was required of counsel, and under the circumstances stated it can not be held that the delay in signing the exceptions or transmitting the record was due to any fault of the appellant or his counsel. We said in Wilmer v. Baltimore, 116 Md. 338, 81 A. 685, that in cases at law it is the settled practice in this State in the event of a disagreement between counsel for the trial judge to determine what shall constitute the record. The motion to dismiss the appeal will therefore be denied.

   During the progress of the trial sixty-six exceptions were taken by the appellant to rulings of the Court to questions of evidence. Forty-six of these exceptions are not pressed in this Court, but we have considered them carefully and find no reversible[***7] error in any of them. The exceptions relied on are the third, fourth, fifth, twelfth, fourteenth, fifteenth, sixteenth, twenty-first, twenty-third, thirty-first, thirty-third, thirty-fourth, thirty-seventh, forty-sixth, forty-seventh, forty-ninth, fiftieth, fifty-first, fifty-fourth and fifty-sixth. Three of the exceptions, viz, the fifth, fiftieth and fifty-first were not signed by the presiding Judge, and therefore can not be considered by us. They can not be regarded as valid exceptions. [*629] Poe on Pleading and Practice, 2 Vol., Sec. 321; Jones v. State, 118 Md. 67, 83 A. 1100. Before passing on the remaining seventeen exceptions, which are relied upon for the reversal of the judgment, we will give a brief outline of some of the important facts upon which the State relies to convict the appellant.

   It must, however, be borne in mind that this Court has no power to pass upon the guilt or innocence of the appellant. He elected to be tried by a jury. They were the exclusive judges of the weight and sufficiency of the evidence to establish the guilt of the accused, and we have no power to disturb their finding, unless we find that the Court during the[***8] course of the trial committed some reversible or injurious error either in the admission or rejection of testimony.

   The following facts were proved by the State without contradiction: first, that Mrs. Brandon on the morning of August 8th, 1917, after the departure of her husband to take up his work at the Experiment Station, Annapolis, where he was employed, was seen alive at her home. One witness--Ida Burch--testified that on that morning she saw Mrs. Brandon come to the door of her home and pick up a paper and go into her house. She fixed the time she saw her as between half-past 10 and 11 o'clock. Another witness--Grace Myers--testified that she saw Mrs. Brandon on the day of her death about 10.30 or quarter of 11 o'clock. That Mrs. Brandon came to the door and picked up a paper and spoke to the witness. Another witness--Thomas A. King--testified that on the morning of the same day he saw Mrs. Brandon sitting in the kitchen window of her home. Secondly, that the apartment occupied by Mr. and Mrs. Brandon was the lower floor of 29 Second street, and consisted of three rooms and a bath, the middle room being the bedroom. About 5 o'clock on the afternoon of Wednesday, August[***9] 8th, 1917, Mr. Brandon returned from his work. He entered by the front door into the front room and called his wife. He went into the middle or second room, and found Mrs. Brandon lying on the bed. He spoke to her and touched her shoulder, [*630]and she did not answer. He thought she had fainted or was sick. He became alarmed and went to get a physician. He notified a neighbor--Mrs. Burch--who lived nearby, and she went to the house, and found Mrs. Brandon dead. The fact of her death soon became known in the neighborhood, and a number of people gathered in and about the house. Dr. Joseph C. Joyce reached the house between 5 and 5.30 o'clock and found Mrs. Brandon dead. The body was lying on the left side, with the head to the foot of the bed; her hair was loose and wrapped around her neck, and her dress was pulled up about her knees and her limbs were exposed. Her limbs were bruised and her neck was scratched and bruised. She had a wound in her forehead from which the blood had flowed, saturating the sheet and mattress. Dr. Joyce made an autopsy of the body on the night of August 8th, 1917, at the Emergency Hospital, Annapolis, assisted by Dr. Walton H. Hopkins. He described[***10] the condition of the body as to bruises disclosed at the autopsy, which he said were the same bruises he noticed when he first went to the house and saw the body: [**8] "We found a bruise over the back of the left hand; we found a bruise between the first and second knuckle; found a bruise in the center of the forearm, anterior surface of the left arm; found a bruise on her right arm above the elbow, a corresponding one on the left elbow; found bruises, several bruises, over the neck, scratches on the side of the neck and a large bruise--- Q. (interrupting) What did these bruises on the neck, what did they resemble, the appearance of them? A. The scratches resembled the appearance of nails. Q. Fingernails? A. Fingernails. Found a large depression in the center of the forehead, the skin broken. You want me to tell what we found when we went in? Q. One minute; were those the same bruises you noticed, Doctor, when you first went to the house and looked at the body? A. Yes; also two large bruises over the knee, right and left legs." He said the marks upon the neck which looked like scratches from fingernails were "curved back," and would have to be done by someone standing [*631] [***11]behind and not in front of Mrs. Brandon. He testified that Mrs. Brandon's death was a result of the blow on the forehead, strangulation and shock.

   Dr. Hopkins, who saw the body of Mrs. Brandon at her home before the autopsy, testified that she died from shock as a result of her injuries. Several witnesses corroborated the evidence of Dr. Joyce as to the injuries to Mrs. Brandon, and there is really no contradiction of this evidence, and no real question that she died as the result of her injuries. During the examination of Dr. Joyce he was shown and identified certain photographs which he said represented the marks and bruises on the body of Mrs. Brandon at the time he first saw it and at the time of the autopsy. These marks and bruises were fully described in his evidence, and it was not denied that they existed. The defense objected to the offer and introduction of the photographs in evidence. Their objections were overruled, and these rulings constitute the third and fourth bills of exceptions. As these photographs were merely representations of injuries which had been fully described by the witness and not denied to exist, their introduction in evidence could not be held to have[***12] injured the accused. But aside from this, they were properly admitted. Consolidated Gas Company v. Smith, 109 Md. 186, 72 A. 651. Later in the trial the defense moved that these photographs be stricken out or withdrawn. This motion was overruled, and this ruling constitutes the twelfth exception. It follows from what we have said in disposing of the third and fourth exceptions that there was no error in this ruling.

   The testimony to which we have referred and which was not denied by anybody was strong proof to show that Mrs. Brandon was murdered as charged in the indictment. If the evidence satisfied the jury that she had been murdered, it was incumbent upon the State, before Snowden could be properly convicted, to prove beyond a reasonable doubt that he had committed the murder. That was a question of fact for the jury. To show this fact the State relied upon the testimony of Mary Perkins, Edith Creditt and LeRoy Cisco, [*632] together with certain facts and circumstances, some of which it will be necessary for us to allude to in passing upon the remaining exceptions. Mary Perkins and Edith Creditt were sisters, and lived at No. 30 Second street, directly[***13] opposite the Brandon home. This street is a narrow one. Briefly but substantially stated, Mary Perkins testified that on the day of Mrs. Brandon's death (Wednesday, August 8, 1917) she was sitting in her parlor at the parlor window, about 11 o'clock or a few minutes after 11 o'clock, writing a few letters. She had written one, and had started to write another, when her attention was attracted by a noise in Mrs. Brandon's house. She described it as a rushing sound towards the door, footsteps and a knock against the door, and she saw a chair "knocked in front of the window." She said her sister, Edith Creditt, came into the room where she was sitting and she told her about the noise she had heard. That in about fifteen or twenty minutes she saw the front door open, and she saw Snowden, whom she positively identified, inside the Brandon home at the front door; that "he looked towards Murray's Hill first and then towards West street; that was before he brought his whole body out of the door; and in coming out the door, when he closed the door, he closed the door from behind with his right hand; he never turned his back, and he walked off the porch, and when he got near the second porch[***14] he then began to fool with something that he took out of his pocket. I took it to be a bottle or flask--I mean it was reddish and looked as though it either had whiskey in it or it was a red flask--and he took it from his hip pocket and put it in front in some of his pockets, and he walked up the street and, in looking behind, my sister saw his face before he got far." That she saw him on Main street the following morning driving an ice wagon; that she had seen him before Mrs. Brandon's death, but did not know his name. Edith Creditt testified that her sister called her attention to the man; that he was then on the pavement, and she identified that man as Snowden, whom she had seen and knew before. She fixed the time as five or ten minutes [*633] of 12 o'clock. It was shown by the evidence of LeRoy Cisco, a colored boy, that he passed the Brandon home between 11 and 12 o'clock on the 8th of August, 1917; that he heard "a little noise" in the house and saw "a lady's arm start to come out the door, and somebody pulled her back and shut the door." A determined effort was made by the defense [**9]to break down the testimony of Mary Perkins and Edith Creditt, but the jury, who[***15] saw all the witnesses and heard all their testimony, evidently believed they told the truth.

   The fourteenth and fifteenth exceptions were taken during the examination of Dr. William B. Carr, a physician and surgeon, who made a second autopsy upon the body of Mrs. Brandon at the Emergency Hospital in Washington on the 14th of August, 1917. The record shows that Snowden was arrested on August 13th, 1917, and was taken to the Sheriff's office in Annapolis. It was there discovered that he had some scratches on his face which appeared to be fresh scratches. He was asked to account for them, and he said that Edna Wallace, a woman with whom he was living, had inflicted those scratches more than a week before. The State was permitted to show by Dr. Carr that the autopsy performed by him disclosed particles of skin of a colored person under the fingernails of Mrs. Brandon. This testimony was important and, we think, under the circumstances clearly admissible. Dr. Hopkins assisted in the autopsy made in Washington, and the sixteenth exception was taken to the question asking him the results of the autopsy. The Doctor answered the question as follows: "After the clothes were removed an examination[***16] of the exterior of the body was made, and the various wounds that I mentioned that I found in the autopsy in Annapolis were still present. There was one wound made under the armpit--I think it was the right arm--where the undertaker had injected his embalming fluid. After noting these wounds, an examination was made of the hands." This answer was not harmful to the appellant. The twenty-first exception was taken to the action of the Court in overruling a motion to strike out all the evidence of Dr. [*634] Joyce, Dr. Littz and Dr. Hopkins regarding an assault on or rape of Mrs. Brandon. The evidence of these physicians on the subject-matter embraced in the motion tended to show the condition of the body of Mrs. Brandon at the time it was discovered. It was admissible for that purpose. Whether it showed, in connection with all the other facts and circumstances in evidence, that a rape had been committed upon Mrs. Brandon was a question to be determined by the jury. The twenty-third exception was taken to the action of the Court overruling an objection to an answer made by Dr. Hopkins to a question asked on cross-examination as to the cause of Mrs. Brandon's death. His answer to [***17]the question was: "She died from shock as a result of her injuries." We can see no ground of objection to this answer. It tended to support the allegation as to the cause of death set out in the first count of the indictment. The thirty-first exception was taken under the following circumstances: Valentine Brandon, in his examination in chief, testified that before leaving home on the morning of August 8th he left a dollar bill with his wife, and that he never saw that dollar bill again. After he had concluded his testimony he was recalled by leave of the Court and asked this question: "Q. Didn't you tell Mr. Munford, at Annapolis, after the discovery of your wife's body that you had found your dollar bill in question?" The Court sustained the State's objection to the question. The question was too general and indefinite, and was properly excluded under the rule stated in Poe on Pleading and Practice, Vol. 2, Sec. 280, and in Conrades v. Heller, 119 Md. 448, 87 A. 28.

   There is no merit in the thirty-third exception. It was taken during the examination of John M. Taylor, a funeral director and embalmer of Annapolis, who had prepared the body of Mrs. Brandon[***18] for burial. There appears to have been some confusion in or misunderstanding of his testimony as to the position of the hands of Mrs. Brandon after he had completed his work, and upon the application of the defense he was recalled to clear up any doubt on that point. It was [*635] within the discretion of the Court to recall the witness, and his explanation of his prior answer as to the position of Mrs. Brandon's hands in the casket was a matter he was asked about, and the answer was proper.

   During the examination of Rachel E. Stewart, a nurse, called for the defense, she was asked this question: "Have you had any experience with eclamptic patients?" An objection by the State to this question was sustained, and this ruling constitutes the thirty-fourth bill of exception. There was no offer to prove that Mrs. Brandon had died of eclampsia. There is absolutely nothing in the case to support such a suggestion, and the ruling was correct. In the thirty-seventh bill of exception it appears that the State was permitted to show, over the objection of the traverser, what church Mary Perkins attended. That was not a material inquiry, and the Court might have sustained the objection, but[***19] we do not see how the answer could have resulted in any injury to the appellant.

   The forty-sixth, forty-seventh and forty-ninth exceptions were taken to the rulings of the Court refusing to permit the following questions to be answered. They were propounded to Mary J. Williams, a witness called by the defense:

   First--"Q. During the night of August 7th, the night before Mrs. Brandon's body was found, did you hear any noise in that house?"

   Second--"Q. Where were you between 11 and 12 o'clock on the night before Mrs. Brandon's body was found?"

   Third--"Q. Was there or not any unusual noises [**10] or sounds coming from the Brandon home on that night, August 7th, between the hours of 11.30 and 12.30 o'clock?"

   In view of the uncontradicted evidence of five witnesses, viz, Valentine Brandon, Ida Burch, Grace Myers and Mr. and Mrs. King, that Mrs. Brandon was alive on the morning of August 8th, 1917, and was seen by two of these witnesses at her house on that morning as late as 10.30 o'clock, and there being no evidence to connect anyone, except Snowden, with the crime, or to justify a suspicion that any particular [*636] person other than he had committed it, the proposed offer[***20] of testimony was clearly inadmissible and properly refused.

   The fifty-fourth and fifty-sixth exceptions were taken to testimony in rebuttal by the State in contradiction of the evidence of Snowden wherein he testified to certain acts of maltreatment inflicted upon him by the police of Baltimore City at the time he made certain statements which had been put in evidence by the State. The witnesses offered in rebuttal were Samuel House, Deputy Marshal of Baltimore City, and Robert G. Carter, Marshal of Police of Baltimore City. They each gave testimony in denial of Snowden's evidence of abuse and maltreatment by the officers. In 2 Poe on Pleading and Practice, Sec. 287, it is said that "it is not always easy to draw the line between what is rebutting evidence and what is evidence properly adducible in chief. The subject is one which is addressed to the sound discretion of the court; and the appellate court will not reverse for an error on this point, unless the ruling of the court below was both manifestly wrong and substantially injurious. Indeed, as a general rule, in such cases no appeal will lie." See also Bannon v. Warfield, 42 Md. 22, and Jones v. State, 132 Md. 142, 103 A. 459.[***21] There was no error in these rulings.

   We have given the case our most careful and earnest consideration, and we have found no reversible error committed by the trial Court in any of its rulings, and the judgment will, therefore, be affirmed.

   Motion to dismiss the appeal denied, and judgment affirmed, with costs. 

THOMAS J. MCDONALD vs. MAYOR AND CITY COUNCIL OF BALTIMORE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 301; 105 A. 266; 1918 Md. LEXIS 130

 November  21, 1918, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Carroll County (Moss, J.), to which County the case had been removed from the Circuit Court for  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment affirmed, the appellant to pay the costs.

CORE TERMS:  lease, prayer, rent, manufacturing, lessee, street, sitting, declaration, delivery, actual use, expiration, deed, one year, installments, grantee, action of ejectment, re-enter, relieve, good condition, land described, land claimed, semi-annual, dedication, dedicated, estopped, assigned, re-entry, proviso, filling, leased

COUNSEL: Joseph C. France and F. Neal Parke (with whom were Bond & Parke, James B. Guyton and T. Tilden Kelbaugh), for the appellant.
 
S. S. Field, City Solicitor, and Edward J. Colgan, Assistant City Solicitor, for the appellee.

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

OPINIONBY: BOYD

OPINION: [*302] [**267] BOYD, C. J., delivered the opinion of the Court. 

   The Mayor and City Council of Baltimore brought an action of ejectment against the appellant for a lot of ground in Anne Arundel County containing three and one-tenth acres, more or less. It was formerly a part of what is known as the "Old Marine Hospital Grounds," and was used by the city for hospital purposes and the detention of those suffering with infectious diseases. The lot is described on the "Plan for the Development of the Old Marine Hospital Grounds as Proposed by Jos. W. Shirley, Chief Engineer Topographical[***2] Survey," as Lot No. 4, which fronts on the Patapsco River and Thrift street. A plea of not guilty was filed, and the case was tried before the Court sitting as a jury. The trial resulted in a verdict for the plaintiff, and this appeal was taken from the judgment entered thereon. The only exception in the record is to the granting of the plaintiff's first and to the rejection of the defendant's first prayer.

   The Mayor and City Council of Baltimore leased to The Impervious Products Company on the first day of April, [*303] 1912, for the term of ninety-nine years the property mentioned in the declaration at an annual rent of ninety-three dollars, payable in equal half-yearly installments, accounting from the first of April, 1912. Amongst other provisions to which the lease was subject was the following: 

   "1. If the development, for manufacturing purposes, of the property hereinbefore described, as intended to be sold or leased, shall not have been begun within one year from the date of the delivery of the deed of grant or lease thereof to the grantee or grantees or lessee or lessees; or the said property shall not be in actual use for such purposes before the expiration of three[***3] years from the aforesaid date, the Mayor and City Council of Baltimore may, at its option, re-enter upon the foregoing property and the grant or lease and all interest of the grantee or grantees or lessee or lessees thereunder shall thereupon become null and void; and it shall be stipulated in the grant or lease that the Mayor and City Council of Baltimore shall have the privilege of re-entering upon the property for the reasons aforesaid."

   The lease was assigned to the appellant on March 25, 1915. He was President of the Impervious Products Company, which paid the semi-annual installments of rent on November 4th, 1912 (being the October rent), on June 6th, 1913 (April rent), March 28, 1914 (October, 1913, rent), and December 3, 1914 (being the April rent). The theories of the respective parties may in part at least be seen from the granted prayers. The first prayer of the plaintiff was granted, and is as follows: "If the Court sitting as a jury shall find that the lease of April 1st, 1912, from the Mayor and City Council of Baltimore to the Impervious Products Company offered in evidence, and the deed from the Impervious Products Company to John J. Cosgrove, dated March 25, 1915, and[***4] the deed from John J. Cosgrove to the defendant of the same date, were duly executed and delivered, and that [*304] the land mentioned in the declaration is the same land described in said lease; and if the Court sitting as a jury shall further find that no development for manufacturing purposes was begun on the land mentioned in the declaration within one year from the date of delivery of the said lease, and that no such development has been begun up to the present time, and that said property was not in actual use for manufacturing purposes before the expiration of three years from the date of delivery of said lease, and has never yet been used for such purposes, then the verdict of the Court, sitting as a jury, should be for the plaintiff for the land described in the declaration, and one cent damages."

   The second prayer of the defendant, after submitting to the Court, sitting as a jury, to find the ownership by the plaintiff of the property described, the lease, the deeds of assignment by the lessee to one Cosgrove and by him to the appellant, proceeded as follows:

   "And that the rent was paid by the lessee and unto the plaintiff in semi-annual installments up to and inclusive[***5] of the year ending April 1st, 1913, and that from and after April 1st, 1913, the lessee paid the rent for the six months ending on October 1st, 1913, unto the plaintiff on March 28th, 1914, and paid the rent for the six months ending on April 1st, 1914, unto the plaintiff on December 3, 1914, and that each of said last two payments of rent were paid unto the plaintiff more than one year after the delivery of the lease from the plaintiff to the said The Impervious Products Company; and that at the time of the payment of said installments of rents maturing on October 1st, 1913, and April 1st, 1914, the plaintiff knew that no development for manufacturing purposes of the tract or parcel of land mentioned in the lease to The Impervious Products Company had begun within one year from the date of the delivery of the lease hereinbefore mentioned, then the plaintiff is estopped from denying the title of defendant, and the verdict of the Court, sitting as a jury, must be for the defendant, provided that the Court, sitting as a jury, shall further find that the failure [*305] of the defendant to pay the rent falling due after April 1st, 1914, was due to the fact that the plaintiff declined[***6] to receive the same."

   The appellant contends that those prayers are so conflicting as to be reversible error, [**268] but the conditions in the lease were in the alternative--if the development, for manufacturing purposes, shall not have been begun within one year from the date of the delivery of the lease, or shall not be in actual use for such purposes before the expiration of three years from that date. A compliance with the first did not relieve the lessee from a performance of the second, in order to prevent the right of re-entry. Therefore, a waiver of the breach of the first could not relieve the lessee of the second. We do not find in the record any evidence of a waiver of the second or of its performance. The plaintiff's prayer required the Court, sitting as a jury, to find that no development for manufacturing purposes was begun within the year, and that no such development had been begun up to the time of the trial of the case, and that the property was not in actual use for manufacturing purposes before the expiration of the three years and had never been used for such purposes. If those facts were found, then the plaintiff was entitled to re-enter. It was[***7] immaterial whether the first condition was waived, if the second was not performed, and hence the omission to refer in that prayer to the question of waiver of that condition could do the defendant no harm.

   The defendant's second prayer, which was granted, certainly went as far as he could ask. The proviso at the end of the prayer has reference to an excuse for non-payment of the rent. The plaintiff was not relying on that, but on the failure of the defendant to comply with the condition of the lease. The only evidence on the subject of not paying rent subsequent to that for the two years which was paid is that of the appellant himself. He was asked: "What did you do with any rent accruing subsequently to the two years that has been paid on this?" and answered, "I offered it to Mr. Glasscock and he refused it." He was then asked: "Why [*306] did he refuse it?" and replied, "He said the city was going to eject me because I had not erected the plant." Mr. Glasscock was the cashier in the Comptroller's Office. The witness did not say when he offered the rent, but the inference would seem to be that it was after the three years had expired (April 1st, 1915), as that was the time[***8] within which the property was to be in use for manufacturing purposes. The company which assigned the lease to him by the deed of March 25, 1915, had only paid the rent up to April 1st, 1914. He was president of the company, and he does not say whether he offered to pay the rent as such or after the assignment to him of the lease. But however that may be, he was told, when he did offer the rent, why the city was going to eject him. The Court must have found against the defendant as to the proviso in the prayer, or that the plaintiff did not know that the development for manufacturing purposes had not begun within the year, as there was no question about the other facts stated in the prayer. Just why the plaintiff was estopped from denying the title of the defendant, if all the facts submitted were found, we do not understand, but that was a prayer offered by the defendant and granted by the Court, and hence the appellant can not complain of it. A prayer on the question of waiver as to the year would have been correct, but as we have already indicated we do not think that a waiver as to the year entitled the defendant to a verdict, but as it was not necessary to refer to the waiver[***9] in the plaintiff's prayer there was no error in granting it, and as the Court must have found against the defendant on the facts, as a verdict for the plaintiff was rendered, no harm was done--certainly not to the defendant, by granting his prayer. The two prayers are therefore not in such conflict as is meant by the authorities in speaking of contradictory prayers.

   The appellant contends that by a proper construction of the lease the city undertook to make Thrift street a passable highway, and the undertaking of the city and that of the lessee to build a factory on the lot constituted mutual (if not [*307] dependent) conditions, and hence as the city has not done its part, the appellant was not required to develop the lot for manufacturing purposes. But we do not so understand the lease. The general principle is thus stated in 1 Elliott on Roads and Streets (3rd Ed.), Sec. 129: "An owner who dedicates a way to the public neither warrants nor represents that the land is fit for the purpose, but the public takes it as it is granted, and in the condition in which it is at the time of the dedication. If there are excavations or obstructions in the land dedicated the owner is[***10] not chargeable with the expense of filling or removing them, nor, after the dedication is fully complete by acceptance and the way has passed under the control of the public authorities, is he responsible for injuries resulting from the unsafe condition of the way, unless he has made it so by some wrongful act."

   The fact that the plan showed that the streets were not to be regarded as dedicated can not make any difference in this respect. It would be an expensive undertaking on the part of landholders in many cases, if because they sold off lots on the plans on which streets were laid out they had to improve the streets and put them in good condition for use. We do not understand it to be contended that such is the general rule and we do not find anything in this lease or under the circumstances of the case which required the city to improve the streets. At the time of the lease a greater part of this street was covered with water and continued to be so.

   There is no suggestion in the record that the appellant or his assignor was prevented from making the development for manufacturing [**269] purposes, or using the lot for such purposes, by any changes in the plan by the city, [***11]and we do not deem it necessary to discuss that. As we have seen, the only exception in the record is to the granting of the plaintiff's first prayer and to the rejection of the defendant's first prayer which sought to take the case from the jury. The latter was, in our judgment, properly refused, and the plaintiff's first prayer was properly granted.

   [*308] We do not want to be understood as approving the form of the judgment entered in this case. A verdict in an ejectment case should regularly be: "Verdict for the plaintiff for the land claimed in the declaration and     damages," filling in the blank, of course, for the amount of damages, or something to that effect; 2 Poe on Pl. & Pr.; Sec. 480. The judgment should follow the verdict. In this case we find the following entry: "1918, February 23rd--Finding and verdict for plaintiff and damages assessed at one cent and costs. Judgment on verdict in favor of plaintiff for one cent damages and costs." In the docket entries the verdict and judgment are set out in substantially the same language.

   In Kershner v. Kershner's Lessee, 36 Md. 309, 336, "a verdict for the plaintiff and assessed the damage[***12] at one cent" was held to be sufficient, but in this case the judgment is "Judgment on verdict in favor of plaintiff for one cent damages and costs." Whether or not that is a sufficient judgment suggests itself, but the judgment was not objected to below, and no point was made about it in this Court. We do not feel called upon, therefore, to determine whether it is a sufficient judgment, or what it includes, but will simply affirm the judgment. Cushwa v. Cushwa, 5 Md. 44, 54; Standard Co. v. O'Brien, 88 Md. 335, 340, 41 A. 898.

   Judgment affirmed, the appellant to pay the costs. 

JOHN F. MCGRAW vs. N. BOSLEY MERRYMAN, TREASURER OFBALTIMORE COUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 247; 104 A. 540; 1918 Md. LEXIS 121

 July  30, 1918, Decided

   PRIOR HISTORY:  [***1] Several appeals from the Circuit Court for Baltimore County. (MCLANE and DUNCAN, JJ.)
 
Appeal also from the Circuit Court for  Anne Arundel  County. In Equity. (MOSS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order reversed and cause remanded, in order that a mandamus issue as prayed, the costs to be paid by the County Commissioners of Baltimore County. 

CORE TERMS:  annexed, territory, annexation, voters, referendum, contiguous, municipality, authorize, taxation, annex, river, annexed territory, public property, residing, constitutional provision, extending, injustice, taxing district, obiter dictum, authoritative, concurred, differed, speaking, taxing, adjoins, outlying, enlarge, binding, charter, invalid

COUNSEL: Henry H. Dinneen (with whom were W. Stuart Symington, Jr., and John F. Thomas on the brief), for McGraw and others, appellants.
 
Benjamin A. Richmond and S. S. Field, the City Solicitor, (with whom were Henry D. Harlan, W. Calvin Chesnut and Daniel R. Randall on the brief), for Baltimore City.
 
Shirley Carter, W. Irvine Cross and T. Scott Offutt (with whom were Edward H. Burke and Carville D. Benson on the brief), for Merryman and the County Commissioners of Baltimore County.
 
Ridgely P. Melvin, Stevenson A. Williams and Isaac Lobe Straus (with whom were Venable, Baetjer & Howard on the brief), for Anne Arundel County, appellee.

JUDGES: The causes were argued together before BOYD, C. J., BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.
 
OPINIONBY: BOYD

OPINION: [*249] [**541] BOYD, [***2] C. J., delivered the opinion of the Court.

   At the last session of the General Assembly of Maryland there was passed "An Act to extend the limits of Baltimore City by including therein parts of Baltimore County and Anne Arundel County," it being Chapter 82 of the Acts of 1918. The validity of the Act has been attacked on several grounds--the principal one being that there is no referendum in it, as the appellees contend section 1 of Article 13 of our State Constitution requires. Although there are five appeals from orders and decrees passed by the Circuit Court for Baltimore County and one from a decree of the Circuit Court for Anne Arundel County, the main questions are involved in all of them. The cases were at the request of the attorneys for the respective parties advanced by us, and were heard together. As no question was raised in any of them as to the procedure adopted, it will be unnecessary to make further reference to that.

   Much stress was laid by the attorneys for the appellees upon the alleged injustice of this Act, but no one will challenge the rule by which we must be guided in our consideration [*250] of these appeals, that if the Legislature had the power to pass[***3] the Act before us without a referendum, and in the form it was passed, this Court has no right to call in question the wisdom or even justice of it. As said by JUDGE GRAYSON in Groff v. Mayor, etc., of Frederick, 44 Md. 67, in a case involving the validity of an Act extending the limits of Frederick City, after referring to the power of the Legislature to create municipal corporations, to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, etc.: "The Legislature having this constitutional power, the exercise of it is wholly within its discretion, and it can in no wise be controlled by the courts," and he concluded that opinion by saying: "Whether the power was wisely or unwisely bestowed, or the mode in which it has been exercised is just or unjust, and burdensome upon the citizen, are questions with which the courts have no right to deal, but are within the exclusive control of the Legislature." But the rule is too universally adopted by this and other Courts to require other citations of authorities, and we will proceed at once to the consideration of such questions as should be passed on by us.

   The one that first presents[***4] itself, and is of the gravest importance, is the scope and effect of the decision in Daly v. Morgan, 69 Md. 460, 16 A. 287. In that case the constitutionality of Chapter 98 of the Acts of 1888, which was entitled, "An Act to extend the limits of Baltimore City by including therein parts of Baltimore County," was before the Court. There was a referendum in that Act, and the question of annexation was submitted to the respective voters of the three parts of Baltimore County proposed to be annexed to Baltimore City. In two of them a majority was declared to be in favor of annexation, and in the others it was against it.

   In Article 13 of our State, Constitution entitled "New Counties," section 1, which was then in force, and still is, authorizes the Legislature to provide by law for organizing new counties, locating and removing county seats and changing [*251] county lines, and contains this provision: "nor shall the lines of any county be changed without the consent of a majority of the legal voters residing within the district, which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change." It[***5] is contended by the appellees that that provision applies here, as it is proposed to change the lines of the two counties, although the district affected is to form a part of Baltimore City, while the appellants contend that it only applies to a change of lines of a county which would transfer the district to another county, and that it does not apply when the district, under the proposed change, would form a part of Baltimore City. But we must first determine whether this Court decided that question in Daly v. Morgan, and if so, are we bound by it as a controlling authority?

   The bill of complaint in that case, in speaking of the Act of 1888, alleged that, "the Act aforesaid is null and void, because the Constitution of Maryland gives no power to the Legislature of Maryland to annex any of the territory of a county to the City of Baltimore, nor does it empower said Legislature to make the annexation of said territory depend upon the majority of the votes cast at an election provided for by legislative enactment," etc. The answer of the Mayor and City Council of Baltimore alleged that the Act was a constitutional and valid exercise of the legislative authority of the State, [***6] and that of the Treasurer of Baltimore County averred that the Act was wholly and utterly void, [**542] etc.

   The argument of Colonel McIntosh and of Mr. Mitchell, solicitors for appellant in that case, as shown by their briefs, was that section 1 of Article 13 was the only provision in the Constitution which authorized a change of the lines of a county, and that only authorized such change when the district proposed to be changed would "form part of a county different from that to which it belonged prior to said change," and that that was not synonymous with and in ordinary parlance did not mean "form part of a city or Baltimore City [*252] different from," etc. They argued that there was therefore no power in the Legislature to change the lines of the county to annex it to Baltimore City. They also contended that the Act of 1888 did not conform to the requirements of section 1 of Article 13, if held to be applicable, because the latter required the consent of the majority of the legal voters residing within the district, while they claimed that the Act only required a majority of the votes cast.

   We find in the records of this Court that there are bound with the briefs for [***7] the appellant (Daly) opinions of Colonel Marshall, JUDGE FISHER and Mr. S. Teackle Wallis, presumably with the consent of the Court, which are mostly on the validity of section 19 of Act of 1888, providing for taxation. There are, however, some expressions of views on the necessity of a referendum. JUDGE FISHER'S opinion, which was addressed to the attorney for the County Commissioners of Baltimore County, shows that one of the questions submitted to him was: "Can the limits of the city be extended by legislative enactment without submission to the voters in the territory to be annexed?" and apparently the same question was asked Mr. Wallis. Both of them answered in the negative, but the latter said it was "extremely doubtful" whether it was competent for the Legislature to annex the territory of Baltimore County, constitutionally, to Baltimore City in any way.

   The brief of the city was for the most part confined to a discussion of section 19 of the Act. It concluded by saying that there was appended to it the legal opinions given before the election by Messrs. Steele, Gwynn and Findlay "which furnish additional arguments to those we have presented in favor of the constitutionality[***8] of the City Extension Act, and which we respectfully commend to the consideration of the Court." Those of Messrs. Steele and Gwynn were confined to the validity of section 19, which seems to have been understood by the city to be the principal ground of objection to the Act, but that of Mr. Findlay very clearly and emphatically [*253] took the position that Article 13 did not apply to the city, and that the Belt could have been annexed by a legislative act without a popular vote. He dwelt on that at some length, and made the prediction that if annexation was voted down it would be the last time that it would be submitted to the voters, as such an Act could be passed without a referendum.

   We have thus referred to the briefs and opinions of prominent attorneys, filed with them by the respective parties, to show how far the attention of the Court was directed by them to the question whether it was necessary to have a referendum. As we have seen, another of the grounds relied on by the appellant for the Act being invalid was that it did not comply with the requirements of section 1 of Article 13 in reference to the submission of the question of annexation. It may be that a sufficient[***9] answer to that might have been the decision in Walker v. Oswald, 68 Md. 146, 11 A. 711, although Col. McIntosh sought to distinguish the two cases, but if the constitutional provision did not apply, and it was not necessary to submit the question to the people, there could not well have been a more complete answer to the contention and to the allegation in the bill that it was not submitted as required by that provision than to hold that an Act for annexation to the city could be passed with or without the consent of the people, for if that be so, and the Legislature chose to submit it, it could determine the terms, etc., of the submission, and hence it was immaterial whether the Act of 1888 complied with section 1 of Article 13. 

   But let us see just what the Court did decide, and what the judges thought they were called upon to decide. Seven judges sat in that case. JUDGE ROBINSON delivered the opinion of the Court, and JUDGES STONE, MILLER, IRVING and MCSHERRY concurred in it. JUDGES ALVEY and BRYAN concurred in the affirmance of the order appealed from, but differed in some of the conclusions reached by the majority, of which we will speak later. The Court, [***10] through JUDGE ROBINSON, said: "The power of the Legislature to extend the [*254] limits of a city, by including therein parts of the county adjoining, when the city itself is a part of the county, is not and can not be questioned. It is contended, however, that Baltimore City being a separate and independent territorial division of the State, and not a part of Baltimore County, the Legislature has no power to change the lines of the county by annexing part of its territory to the city. And in support of this contention, the appellant relies entirely upon section 1 of Article 13 of the Constitution."

   The part of that section which we have quoted above was then set out in the opinion, which calls attention to the fact that "it does not say, as has been argued, that the lines of a county shall not be changed except it be for the purpose of annexing parts of one county to another county. It merely provides that when the lines of a county are to be changed for this purpose, it must be done with the consent of a majority of the voters residing within the district to be annexed."

   The Court then uses this emphatic language, which can leave no doubt as to its construction of section[***11] 1 of Article 13: [**543] "The object, and sole object, of this provision of section 1 was to provide for the annexation of parts of one county to another. The entire section in fact, and the article in which it is to be found, deals exclusively with the organization of 'new counties,' 'the location of county seats,' and the mode by which parts of one county may be annexed to another county, and the limitation imposed upon the legislative power is in respect of these matters and these only." (Last italics ours.)

   The opinion then pointed out some of the distinctions between counties and towns and cities, and, in speaking of the latter said: "They are chartered by the Legislature, and their boundaries are fixed by it, and the power to extend them, whenever in its judgment the public interests require it, has been exercised by the Legislature from the earliest days of the colony."

   It then concludes the discussion of that question by saying: "No one knew better than the framers of the Constitution of 1867, that the time must come, and that not far distant, when [*255] the extension of the limits of a great city like Baltimore would be absolutely necessary to its proper[***12] growth and development. And if they meant to deny the exercise of this power by the Legislature, and to say that its limits as then defined by its charter should for all time remain the same, it is but reasonable to presume that this intention would have been declared in plain and explicit terms. So far from being expressly declared, there is nothing either in the language or terms of this section from which such an intention can be inferred. The Legislature has, therefore, in our opinion, the same power now which it has always exercised, to extend the limits of Baltimore City by including therein parts of Baltimore County, and this too, with or without the consent of the majority of the voters residing within the districts annexed."

   The appellees make special objection to the latter expression, but that was manifestly the necessary result of what had already been clearly and definitely settled in the opinion, as shown above. In the absence of a constitutional prohibition, there can be no doubt under the authorities that it is for the Legislature to say whether or not there shall be a referendum in reference to the extension of the limits of a city or town. "Not only may the Legislature [***13]originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory, and this without the consent, and even against the remonstrance of the majority of the persons residing in the corporation or on the annexed territory" * * * "The power to enlarge the boundaries of a municipality by the annexation of contiguous territory is an incident to the legislative power to create and abolish municipalities at pleasure." 1 Dillon on Mun. Cor. (5th Ed.), sec. 355.

   See also 1 McQuillin on Mun. Cor., section 265, where many authorities are cited: Johnson v. Luers, 129 Md. 521, 530, 99 A. 710; In re Pittsburg, 217 Pa. 227, 66 A. 348, affirmed in Hunter v. Pittsburgh, 207 U.S. 161, 52 L. Ed. 151, 28 S. Ct. 40. The Court having held that section 1 of Article 13 did not apply, and there being no other restriction in the Constitution, that conclusion would necessarily [*256] have meant that the Legislature could act with or without the consent of the majority of the voters, even if that expression had [***14]been omitted from the opinion, unless the Court had placed itself in conflict with the practically unanimous decisions of other courts and our own.

    How then can it be said that the expression objected to was an obiter dictum, or that the question is not res adjudicata? JUDGE BRYAN filed an opinion in which he concurred in the conclusion reached by the five judges, but differed with them as to whether it was necessary to have the consent of the voters. He did not suggest that it was an obiter dictum, but based his opinion on what he deemed to be the proper construction of section 1 of Article 13. The reason he thought that the Act of 1888 would have been unconstitutional, had it not required the consent of a majority of the local voters, was that under his construction of that section it was applicable to Baltimore City, which, in construing the section, was to be considered and treated as a county. That is precisely contrary to what the majority of the Court held. He did not intimate that he thought the use of the expression referred to was unwarranted or even unnecessary, if the construction of section 1 of Article 13 by the majority was correct. So in JUDGE ALVEY'S opinion[***15] on that subject. The most of his opinion was devoted to a discussion of section 19 of the Act, but he also concluded that section 1 of Article 13 was applicable, and of course under his construction of that section he thought "the popular election was an indispensable condition."

   It will be noticed that the two dissenting opinions were filed the same day the case was decided (Nov. 23, 1888), which indicates that the majority not only had the views of the dissenting judges, but their written opinions before them, in which the attention of the majority was expressly directed to the question of the necessity for the consent of the voters. If it had been simply a passing remark by the learned judge who wrote the opinion, without due consideration having been [*257] previously given to it by all the members of the Court, and it was not thought proper that it should be mentioned in the opinion, it is impossible to conceive that such men as then constituted this Court would not have avoided any question about it, by striking out that sentence, but all of them must have known that whether the expression criticized was in or out of the opinion, it was unquestionably the necessary[***16] result of the construction placed on section 1 of Article 13 by the majority.

   In view of what we have said, we do not deem it necessary to quote at length from the decisions of this Court as to what should be deemed binding in later cases, but in Alexander v. Worthington, 5 Md. 471, 489, [**544] the question was discussed at length in an opinion delivered by CHIEF JUDGE LEGRAND, and he concisely stated the rule to be that: "All that is necessary in Maryland to render the decisions of the Court of Appeals authoritative on any point decided is to show that there was an application of the judicial mind to the precise question adjudged; and this we apprehend is the rule elsewhere." That was approved in C. C. & I. Co. v. Sherman, 20 Md. 117, 131; Michael v. Morey, 26 Md. 239, 261; State v. Cowen, 94 Md. 487, 495, 51 A. 171; Carstairs v. Cochran, 95 Md. 488, 52 A. 601, and other cases. That rule is not only applicable here but in our judgment the decision of the question as to a referendum was directly involved in what was necessarily decided. We are, therefore, of opinion that [***17]Daly v. Morgan is a binding authority upon us, and we can not properly decline to follow it.

   We do not deem it necessary or proper to again construe section 1 of Article 13 of the Constitution. If we did so, there would be as much, if not more, ground for the contention that our decision was obiter dictum, than there is for what was said in Daly v. Morgan. We certainly would not be justified in overruling that decision, as much of the argument for the appellees was directed to having us do, even if [*258] we differed with the majority, which, we will only add, must not be inferred by reason of our declining to construe section 1 of Article 13.

   But it was argued that the decision in Daly v. Morgan was limited to Baltimore County, and hence is not applicable to this case. We find nothing in that opinion to sustain the position that parts of Baltimore County could be annexed to Baltimore City, but no part of any other county could be. In that case the extensions were into Baltimore County, and that county alone was the one then being considered. The statement in the opinion referred to by the appellees that, "The Legislature has, therefore, in our opinion, [***18] the same power now which it has always exercised, to extend the limits of Baltimore City by including therein parts of Baltimore County," can not properly be said to have been intended to limit the right to extend the boundaries of Baltimore City into that county. It is said in the brief of the city that its limits had been extended into that county by ten different Acts, all of them being while the city was still in Baltimore County. We have not thought it necessary to examine all of the Acts referred to, but we know from the records of this Court that the limits had been extended, more than once, into Baltimore County, the last time prior to the Act of 1888 having been in 1816, and no inference can be drawn from the statement in the opinion quoted above, that they could not be extended so as to include part of some other county, but it meant what it in effect said, that the Legislature had the same power to extend the limits "now"--that is to say, in 1888, when the present Constitution was in force--as it had when the city was a part of the county.

   It was also argued that, as Anne Arundel County is separated from the city by a part of Baltimore County, and is not contiguous to the[***19] city, this Act for that reason can not be sustained, even if full effect be given to Daly v. Morgan. Baltimore City is, for a considerable distance, on the opposite shore of the Patapsco River from the lands of Anne Arundel County, and it was decided in Raab v. State 7 Md. 483, [*259] that the Act of 1816, Chapter 209, extending the boundaries of that city, limited its lines to the north 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, 68 A. 6, 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. The lines of the proposed extension include all of that part of Baltimore County between the Anne Arundel lines and those of the city, and there is no intervening[***20] space. There is no statute or constitutional provision in this State, limiting an extension of the boundaries of a city to contiguous territory, as there is in some States, although it may be conceded that some part of the newly acquired territory should be contiguous. As will be seen from the cases collected in the notes to Morgan Park v. Chicago (255 Ill. 190, 99 N.E. 388), in Ann. Cas. 1913D, 399, "The annexation of outlying territory to a municipality is commonly conditioned, by the statute authorizing the proceeding, on the situation of the territory to be annexed, it being required to be adjacent or contiguous to the municipality," but proper limitations of the rule are given in that note, where it is said, that "While the general rule is that land can not be annexed to a city or town unless it is contiguous thereto, it is not necessary that each and every tract of land sought to be annexed shall be contiguous to the municipality. If all of the tracts are contiguous to each other, and one of them is contiguous to or adjoins a city, that is sufficient." For that statement a number of cases are cited, and the same rule is stated in 19 R. C. L. 734, Sec. 40, [***21] and other authorities, but if we had found none on the subject, we could have no doubt that such should be the rule.

   [*260] Having reached the conclusion, as all of us have, after attentively listening to the able and thorough arguments of the attorneys, and after having given to them and the questions involved such consideration, thought and study as their importance demands, that Daly v. Morgan is a binding and authoritative decision, and that it was there determined by this Court, as then constituted, that Sec. [**545] 1 of Art. 13 of the Constitution did not apply to an extension of the limits of the City of Baltimore, and there being no other constitutional or statutory provision affecting it, there can be no valid ground for holding that an extension which affects the lines of the two counties can not be permitted. As it was there held that the provision as to the change of lines of the county did not apply to a change for the purpose of extending the limits of Baltimore City, it can make no possible difference that parts of two counties are affected, instead of only one. It was even suggested at the argument that such a conclusion would authorize an annexation[***22] to Baltimore of some part of a remote county, but we can not think that such a suggestion would be made on more serious reflection, and if it should ever be attempted, nothing that we have said can be relied on to sustain it. In this Act there are well defined lines which include additional territory on each side of and immediately adjoining the former boundaries of the city--the most of which was in Baltimore County and the rest in Anne Arundel County, which adjoins Baltimore County--and the whole, together with the territory included in the city prior to the passage of this Act, constitute one body.

   It was also urged upon us that we should not feel bound to follow Daly v. Morgan because of the great injustice that will be done the two counties and the people within the annexed territory. But as we have already stated, for whatever injury the two counties or the people in the annexed territory may sustain, the responsibility rests upon the Legislature, and not upon this Court. If this Court should reverse one of its prior decisions which was so deliberately rendered, on a question of such vast importance as to demand of every [*261] Judge who sat his fullest consideration[***23] and best judgment, as we have endeavored to show was done in Daly v. Morgan, because we felt that it worked a great hardship and possible injustice, not only would the principle of stare decisis have to be ignored, but it would have a tendency to cause decisions of Courts to be regarded as unstable and vacillating--depending upon the individual views of the Judges who happened to constitute the Court when such questions arose.

   It is also suggested that the Act is in conflict with Article 16 of the Constitution--the article on referendum--because it undertakes to affect taxes levied prior to June 1st, when the act under that provision of the Constitution took effect, but it only attempts to affect the proportion of taxes from January 1st, 1919, to the end of the pending fiscal year, and does not seem to require further comment.

   We will not discuss at length the objection made to the Act on account of the provisions in reference to taxation. Most of the argument on that subject is met by the decision in Daly v. Morgan. That case has been cited over and over again in cases involving taxes since Chapter 98 of the Act of 1888, and subsequent Acts in reference to taxation[***24] of property within the Belt. It is there held that the principle of equality in taxation was fully gratified by making local taxation equal and uniform as to all property within the limits of the taxing district, and hence the 15th Article of our Declaration of Rights was not violated by the Act of 1888. JUDGE ALVEY dissented, but the other six Judges who sat were of the opinion that the Act was valid. CHIEF JUDGE MCSHERRY said in Sindall v. Baltimore City, 93 Md. 526, 49 A. 645: "It must be borne in mind that at the date of the adoption of the Annexation Act a large part of the added territory was unimproved, outlying rural land. It would have been manifestly unjust to have subjected such property to the same valuation and to the same rate of taxation as then obtained in the city with respect to distinctly urban property."

   In Baltimore City v. Gail, 106 Md. 684, 68 A. 282, JUDGE BURKE quoted from JUDGE ROBINSON'S opinion in Daly v. Morgan, [*262] 69 Md. 460, and from CHIEF JUDGE MCSHERRY'S in the above case to the same effect. In Miller v. Wicomico County, 107 Md. 438, 69 A. 118, JUDGE BRISCOE[***25] referred to Daly v. Morgan, and said: "The same power which authorizes the Legislature to make one taxing district of an entire city, equally authorizes it to make two or more taxing districts, if in its judgment the public interest require it."

   But as it would seen clear that even if the position taken by the appellees on the question of taxation be conceded to be correct, it would not invalidate the whole Act, it is unnecessary to continue the discussion of the subject. Not only did JUDGE ALVEY take that position in his dissenting opinion in Daly v. Morgan, but JUDGE ROBINSON, also in speaking for the majority, did so in effect. The case of Steenken v. State, 88 Md. 708, 42 A. 212, cited that case, amongst others, on that question. If that be correct in a case where the question had been submitted to the people, there is all the more reason why it should be so in this case where it was not submitted.

   The question in reference to the part of the Act which has a saving clause as to certain officers who reside within the annexed territory certainly can not affect the rest of the Act. Nor do we find anything in the Act to justify the contention[***26] that it is taking property without just compensation, or without due process of law. It is said that Baltimore County owns a number of properties within the annexed district which it had purchased under tax sales. But the provisions for Baltimore City taking over the public property can not be construed to mean such property as that. It only means such as is held for public purposes, and not any property that either county may own that does not come in that class.

   [**546] The rule is thus stated in 1 Dillon on Mun. Cor. (5 ed.) Sec. 360: "Upon the annexation of part to another corporation, the legislature may provide for an equitable apportionment or division of the property, and impose upon the new corporation, or upon the people and territory, thus disannexed, the obligation to pay an equitable proportion of the corporate debts. But there is usually no constitutional requirement [*263] that the legislature shall make such provision, and in the absence of such requirement it may provide for the annexation of territory to a municipality and the transfer to it of such public property as may be within the territory annexed, without imposing upon the municipality[***27] any obligation either to pay for the property so transferred or to assume and pay for any portion of the unpaid debts contracted in the acquisition or erection of buildings and other property transferred."

   As will be seen from Sections 358, 359 and the rest of 360 of that volume, it is generally held that, in the absence of a constitutional provision, the Legislature makes the disposition of public property.

   In Hunter v. Pittsburgh, 207 U.S. 161, 52 L. Ed. 151, 28 S. Ct. 40, which affirmed In re Pittsburg, 217 Pa. 227, 66 At. 348, 66 A. 348, the question is considered at some length, in reference to property held and used for governmental purposes. But if there be any property owned by either of the counties, in addition to that held and used for governmental purposes, for which it can be said proper provision has not been made, that would not require the portion of the Act providing for the annexation to be set aside. Without attempting to refer to other points which have been raised, we are of the opinion that all of the cases before us must be reversed.

   Order reversed and cause remanded, in order that a mandamus issue as prayed, the costs [***28]  to be paid by the County Commissioners of Baltimore County. 

HUGH A. MCMULLEN vs. JAMES S. SHEPHERD. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 157; 104 A. 424; 1918 Md. LEXIS 110

 June  20, 1918, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (Moss, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order reversed and petition dismissed, with costs to the appellant. 

CORE TERMS:  salary, treasury, convention, semi-annually, duties, twenty-five, constitutional provision, public lands, volume, semi-annual, appointed, dollars, fees collected, null and void, per annum, custodian, abolish, insert, fixing, deduct, gone

COUNSEL: Albert C. Ritchie, the Attorney-General, for the appellant.
 
Jos. C. France and Edgar Allan Poe, for the appellee.

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

OPINIONBY: CONSTABLE

OPINION: [*158] [**424] CONSTABLE, J., delivered the opinion of the Court.

   James S. Shepherd, Land Commissioner of the State of Maryland, filed his petition praying that Hugh A. McMullen, Comptroller of the State of Maryland, be directed to issue his warrant upon the Treasury of the State of Maryland in favor of the said petitioner in the amount of twenty-five per cent (25%) of the moneys paid by the petitioner into the Treasury, as shown by accounts filed by him with the Comptroller on the 31st day of March, and on the 30th day of September, 1917. The Comptroller filed an answer to the said petition denying that the petitioner was entitled to the twenty-five per cent. (25%) of moneys referred to in his petition, and further averring that Chapter[***2] 318 of the Acts of the General Assembly of Maryland of 1900, codified as section 13 of Article 54 of the Annotated Code of Maryland, upon which alone the petitioner based his alleged right to the writ of mandamus, was unconstitutional, null and void so far as the same provides that "25% of such moneys so received the Treasurer shall pay over on warrant of the Comptroller semi-annually to the Commissioners of the Land Office."

   The petitioner demurred to the answer and upon the Court overruling the demurrer, the writ was ordered issued, and this appeal taken. This appeal brings up for decision the right of the land commissioners to receive, by way of compensation, fees of his office in addition to the salary provided by the Constitution.

   The only question involved, is whether Chapter 318 of the Acts of 1900 is obnoxious to the Constitution of Maryland, and therefore void. It is a well settled rule that "The Legislature has all power, except such as is expressly denied to it by the State or Federal Constitution." Thrift v. Laird, 125 Md. 55, 93 A. 449.

   The constitutional provisions relating to the Land Commissioner are found in sections 4 and 5 of Article 7, and[***3] are as follows: 

   [*159] "Sec. 4. There shall be a Commissioner of the Land Office, who shall be appointed by the Governor, by and with the advice and consent of the Senate, who shall hold his office during the term of the Governor, by whom he shall have been appointed, and until his successor shall be appointed and qualified. He shall perform such duties as are now required of the Commissioner of the Land Office, or such as may hereafter be prescribed by law, and shall also be the Keeper of the Chancery Records. He shall receive a salary of one thousand, five hundred dollars per annum, to be paid out of the Treasury, and shall charge such fees as are now, or may be hereafter, fixed by law. He shall make a semi-annual report of all the fees of his office, both as Commissioner of the Land Office, and as Keeper of the Chancery Records, to the Comptroller of the Treasury, and shall pay the same semi-annually into the Treasury."

   "Sec. 5. The Commissioner of the Land Office shall also, without additional compensation, collect, arrange, classify, have charge of, and safely keep all papers, records, relics and other memorials connected with the early history of Maryland, not belonging[***4] to any other office."

   The Constitution of 1851, section 6 of Article 7, provided that the commissioner should sit as judge of the Land Office and should receive a salary therefor the sum of two hundred dollars per year and should retain for the performance of the other duties of his office, as compensation, the fees received. By Chapter 415 of the Acts of 1853, and Chapter 149 of the Acts of 1854, the commissioner was authorized to receive fees for recording papers and proceedings in land cases, and further to deduct as his compensation twenty-five per cent (25%) from all moneys on account of public lands, the remaining seventy-five per cent (75%) to be paid to the State. By Chapter 208 of the Acts of 1862 the commissioner was made the custodian of the [**425] records of the Court of Chancery and was paid a salary of $500 per annum.

   [*160] As we have seen from a perusal of the present constitutional provision relating to this office, it is apparent that somewhere between the time of the adoption of the Constitution of 1851 and the Constitution of 1867 it changed from a fee office to a salary office and we will find that this change was made by the framers of the Constitution[***5] of 1864 and continued with slight modifications in the Constitution of 1867.

   In construing the Constitution we are to consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it, and one of the useful and most helpful sources is the debates of the Convention. Bandel v. Isaac, 13 Md. 202; Baltimore City v. State, 15 Md. 376; Bonsal v. Yellott, 100 Md. 481, 60 A. 593; Jackson v. State, 87 Md. 191, 39 A. 504.

   According to the Debates of the Maryland Constitutional Convention of 1864, as found in Volume 1, at page 163, the Committee on Civil Offices made a report to the Convention in which they recommended that the Land Commissioner should be elected by the people for the term of six years, and should receive a salary of eighteen hundred ($1800) dollars, and should turn all of the fees of his office into the treasury.

   On page 1089 of the second volume of the "Debates," the section referring to the Land Office was first taken up for debate. The section was read and the President of the Convention said: 

   "The President: [***6] 'I have been requested by the Commissioner of the Land Office to state to the convention that the salary fixed in this section does not amount to what he actually receives at the present time. I think he said the amount he now receives was not less than two thousand dollars. I make this statement for the consideration of the convention at his request.'

   "Mr. Briscoe: 'Does that include the compensation he receives for performing the duties of Keeper of the Chancery Records?' [*161] "The President: 'My understanding was that it applied to both offices.'

   "Mr. Daniel: 'He referred a petition to us on that subject, asking that his salary be fixed, instead of giving him fees. I wish to say further that I think the report of the Commissioner of the Land Office shows that some years his compensation has gone down as low as $1,500 or $1,600; on other years it has gone up as high as $2,700 or $2,800. It shows that his fees are now decreasing, and in a few years they will doubtless not amount to as much as $1,800. That consideration influenced the committee to fix his salary at some reasonable sum, and they considered that $1,800 was about a fair compensation under all the circumstances. [***7] ' * * * *

   "The President: 'I understand that the Commissioner of the Land Office receives a stipulated salary, as Keeper of the Chancery Records, under the existing law, of $500; and that all the fees are to go into the Treasury.'

   "Mr. Daniel: 'It was the intention of the committee that all the fees should be paid into the Treasury, and he should receive the $1,800 as a substitute.'"

   The petition that the then Land Commissioner referred to the Committee and which was mentioned to the Convention, was read to the Convention and is too lengthy to insert in this opinion, but we will insert one paragraph of it from page 1183 of Volume 2: 

    "I would respectfully suggest that the office may be continued in its present form, and the evil growing out of the influence of the Commissioner's decisions upon his emoluments corrected, by fixing a salary to be paid out of the Treasury of the State, the fees of register and examiner-general to be charged and received by the Commissioner, to be paid by him into the Treasury, after deducting necessary office expenses. This would also relieve the office from the embarrassment necessarily arising from the uncertain and unsettled state of his [***8]compensation."

   [*162] The section was afterwards passed by the Convention fixing the salary at $2,000 although there was considerable debate as to whether or not the smallness of the business done did not justify an abolishment of the office. 

   No one can have any doubt after a reading of the debates that it was the intention not only of the members of the Convention but of the Land Commissioner himself that a salary of $2,000 was to be in lieu of all fees and the language of the section itself "Providing that the fees shall be turned into the State Treasury" gives this assurance. When the Convention of 1867 met, an effort to abolish the office was again renewed and the Convention at first voted to abolish the office (see proceedings Maryland Constitutional Convention 1867, page 486), but later reconsidered their action and continued the office at a salary reduced from $2,000 to $1,500 and added section 5 as it now stands, which simply made him the Historiographer of the State of Maryland.

   By Chapter 66 of the Acts of 1874 the Commissioner was made the custodian of certain deed books and provision was made for him receiving and retaining fees for making copies and searches[***9] of the same. The provision of this Act, together with the Acts of 1853 and 1854 about which we have heretofore spoken, were codified as sections 6, 9, 11 and 13 of Article 54 of the Code of 1888.

   Section 11 of the Code of 1888 which was the Act of 1853, which authorized the Commissioner to deduct as his other compensation 25% of all moneys received on account of the public lands the balance to be paid over to the State, was amended by the Act of 1894, Chapter 191, so as to require the commissioner to pay over all such moneys to the State.

   The Act of 1900, Chapter 318, now codified as section 13 of Article 54 of Bagby's Code, and is the Act involved in this controversy, sought to restore to the Commissioner the right to this 25%, and is as follows: 

   "All moneys payable to the State on account of the public lands and all fees shall be paid to the Commissioner of the Land Office, whose receipts therefor shall [*163] be a good acquittance to the party paying the same; and the said Commissioner shall keep an accurate account of all such payments in a book kept for the purpose, and shall account semi-annually on the thirty-first day of March and the thirtieth day of September[***10] with the Comptroller, on oath, and pay over to the Treasurer all such moneys so received; and twenty-five per cent. of such moneys so received the [**426] Treasurer shall pay over on warrant of the Comptroller semi-annually to the Commissioner of the Land Office."

   What more is this legislative enactment than an attempted amendment of a constitutional provision? The Constitution says in plain, unequivocal and express language that he shall make a semi-annual report of all the fees of his office, both as Commissioner of the Land Office, and as Keeper of the Chancery Records, to the Comptroller of the Treasury, and shall pay the same semi-annually into the treasury. The plain meaning of which can only be, that fees collected are not to be retained as any part of his compensation. Notwithstanding which the Legislature passes this statute, which, in effect, seeks to set aside this constitutional provision.

   There is no question the Legislature can place additional duties upon the office, but it can not allow the occupants in the face of the express prohibition of the Constitution, to retain or recover any part of the fees, but they, as a whole shall go to and be retained by the[***11] State.

   Being of the opinion that the Constitution expressly says the Commissioner shall not have any of the fees of his office but shall take a salary in lieu thereof, section 13 of Article 54, attempting to do that is null and void and of no effect.

   Order reversed and petition dismissed, with costs to the appellant. 

ETTA L. BOYNTON, ET AL., vs. CHARLES E. REMSON, ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
133 Md. 101; 104 A. 527; 1918 Md. LEXIS 118

 June  19, 1918, Decided

   PRIOR HISTORY:  [***1] Three appeals in one record from the Circuit Court for  Anne Arundel  County. In Equity. (THOMAS, C. J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed in part and reversed in part and cause remanded, the costs to be equally paid by the first and third mortgagees.

CORE TERMS:  mortgage, first mortgage, mortgagee, farm, mortgagor, power of sale, third mortgage, ratification, purchaser, bonus, inadequacy of price, advertisement, realized, assignee, borrowed, resale, usury, invalidate, usurious, preliminary injunction, collateral security, opposing interest, fair market value, money borrowed, mortgage loan, final account, good title, announcement, indebtedness, appropriated

COUNSEL: Daniel R. Randall, Arthur Peter and Fred. A. Rhodes, for the appellants.
 
Charles Clagett and Ridgely P. Melvin, for the appellees.
 
Lucius Q. C. Lamar, James M. Munroe and Charles Clagett filed a brief for G. Howard White, one of the appellees.

JUDGES: The causes were argued together before BOYD, C. J., BRISCOE, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: URNER

OPINION: [*102] [**527] URNER, J., delivered the opinion of the Court.

   The farm of Charles E. Remson, containing about three hundred acres of land and situated near Annapolis was subject in 1915 to a mortgage for $25,000. Interest on the mortgage debt and taxes on the property being in arrears to the amount of about $1,500. Mr. Remson borrowed the money to meet those charges from Mr. G. Clifton Sunderland, of Annapolis. In order to obtain the sum required Mr. Remson gave his promissory note to Mr. Sunderland for $2,500 secured[***2] by a second mortgage on the farm, and the note and mortgage were used by Mr. Sunderland as collateral security for a loan to himself of the same amount from the Annapolis Banking and Trust Company, the proceeds of which he deposited to Mr. Remson's credit in that institution. As previously agreed, Mr. Remson at once paid $1,000 out of the fund to Mr. Sunderland for providing the sum of $1,500 thus left available for the use to which it was intended to be applied. Mr. Sunderland paid one-half of the $1,000 bonus to Mr. George T. Melvin, who as President of the Annapolis Banking and Trust Company had received and submitted to the Board of Directors the application for the loan, and had individually agreed, for an equal share of the bonus, to bear an equal part in financing the purchase of the [*103] property in case a foreclosure became necessary. These transactions were completed on December 1st, 1915. On the same day a check for $1,500, signed by Mr. Remson, was mailed from the bank to the representative of the first mortgagee, to be used for the payment of interest and taxes, but it was returned to the bank with the statement that it would not be accepted. The check thereafter[***3] remained at the bank subject to Mr. Remson's disposal. It was not until March 2nd, 1917, however, that he had the check canceled and made other use of the fund against which it was drawn.

   After declining to receive the check referred to the first mortgagee made an effort to exercise the power of sale in his mortgage, but this was restrained by preliminary injunction, and the mortgage was shortly afterwards paid out of the proceeds of a new mortgage loan of $30,000 which Mr. Remson obtained from Mr. J. Henry Strohmyer, of Baltimore, by paying therefor a commission or bonus of $3,000 in addition to $895 interest in advance for six months. A further mortgage loan of $8,559.40, for which Mr. Remson appears to have paid a bonus of $1,000 to the lender, was then procured from Mrs. Etta L. Boynton, of the City of Washington. The proceeds of this loan were applied to the payment of judgments and taxes amounting to over $5,300, unsecured debts of about $200, an attorney's fee of $750 and other expenses incident to the two mortgage transactions just mentioned, both of which were conducted for Mr. Remson by his counsel, Mr. Frederick B. Rhodes. As a result of the payment of the $25,000 [***4]mortgage, and the existing judgment indebtedness, out of the funds realized from the Strohmyer and Boynton loans, the Sunderland mortgage became the first lien on the Remson farm. The two subsequent mortgage loans were effected by Mr. Rhodes in the belief that a release of the Sunderland mortgage could be obtained on the ground that the object for which it was given had failed and the fund it produced for Mr. Remson had not as yet been utilized for any purpose. Efforts were accordingly made by Mr. Rhodes, as counsel for Mr. Remson, to accomplish that result, but [*104] while an understanding was reached with Mr. Ridgely [**528] P. Melvin, as attorney for Mr. Sunderland and the bank, that the mortgage would be released upon terms which appear to have been quite moderate, yet the sum agreed upon was not paid, and eventually, as already stated, the $1,500 fund derived from the mortgage loan was appropriated by Mr. Remson to his own use. All of the mortgages had then matured and were in default. An extension of time on the Strohmyer mortgage was secured, but proceedings were begun for the exercise of the power of sale in the Boynton mortgage by Mr. Rhodes, as attorney therein[***5] named for that purpose, his professional relations with Mr. Remson having previously terminated. In the advertisement of the sale thus undertaken no reference was made to the Sunderland mortgage, but it was stated that the property would be sold subject to a prior mortgage of $30,000. The sale was advertised to be held at the Court House door in Annapolis at 12 o'clock M. on April 3rd, 1917. When Mr. Sunderland learned of this proceeding he consulted his counsel, Mr. Ridgely P. Melvin, who represented also the bank, which held the Sunderland mortgage by assignment as collateral security for the $2,500 loan, and, with the consent of Mr. Remson, it was determined to exercise the power of sale in that mortgage so as to anticipate the Boynston sale by which the first mortgage was apparently to be ignored. The Sunderland mortgage was thereupon assigned by the bank to Mr. Melvin as its attorney, who, after filing his bond as required by law, advertised the mortgaged property for sale at the Court House door in Annapolis on April 3rd, 1917, at 10:30 o'clock A. M. A suit was brought by Mrs. Boynton to restrain the sale under the first mortgage on the ground that it was invalid, but at a[***6] hearing on bill and answer, shortly before the day of the sale, a preliminary injunction was refused. At the Sunderland sale the property was sold for $40,000, and at the Boynton sale an hour and a half later it was bought by the same purchaser for $11,000, subject, in terms, to the $30,000 mortgage held by Mr. Strohmyer. Announcement was made at the Sunderland sale, by [*105] an attorney for Mrs. Boynton, that a purchaser at that sale would not obtain a good title, while at the Boynton sale it was publicly stated by Mr. Melvin, representing the first mortgagee, that the property had already been sold.

   Exceptions to both sales were filed by Mr. Remsen on the ground that, because of the confusion arising from the conflicting sales and announcements to which we have referred, his property was sold in both instances at a substantial sacrifice of its real value. Mrs. Boynton excepted to the ratification of the first mortgage sale upon grounds which will be presently stated and considered. Mr. Melvin, as assignee of the Sunderland mortgage, excepted to the Boynton sale, but the question raised by his exceptions need not be determined. The purchaser also filed exceptions seeking[***7] a decision upon the validity of the first mortgage and the ratification of the sale under which it might be found that he would obtain a good title. Testimony was taken in support of the various exceptions, and by agreement the same evidence was treated as being available in the injunction suit relating to the Sunderland mortgage, that case and the exceptions to the sales being brought to final hearing at the same time. 

   The grounds of objection urged against the sale under the Sunderland mortgage, apart from the question as to the adequacy of the price, are that the consideration mentioned in the mortgage is usurious and fictitious, and that the third mortgage loan was made upon the assurance by the mortgagor that he had received no part of the loan secured by the first mortgage and that it would be released. In disposing of these objections in the Court below, JUDGE THOMAS held that the Sunderland mortgage was not rendered invalid by the fact that the mortgagor was charged $1,000 for the loan, or by the circumstance that the $1,500 fund which the mortgage produced was not used for the purpose for which it was borrowed and was not actually drawn upon by the mortgagor until long [***8]after the second and third mortgages were executed. In this conclusion we fully concur. As JUDGE THOMAS said [*106] in his opinion: "The law is well settled in this State that usuary does not invalidate a mortgage or affect the power of sale contained therein. In the case of Md. Perm. Land and Bldg. Soc. v. Smith, 41 Md. 516, the Court said that the question of usury 'can only arise upon the statement of the final account by the auditor, and cannot be urged as an objection to the sale,' and in the case of Powell v. Hopkins, 38 Md. 1, we find the same rule stated in the following language: 'The exaction of usurious or illegal interest (if proved by the evidence) does not invalidate the mortgage or affect the power to sell * * *. The Court of equity in which the sale is to be ratified, and the proceeds distributed, has full authority and jurisdiction to adjust the question of interest between the parties.' See also Miller's Eq. Proc., p. 563, and cases cited in the note, and Chipman v. Farmers' and Merchants' Nat. Bank, 121 Md. 343, 88 A. 151."

   There was no evidence in the case that the Boynton loan was induced[***9] by any statement by Mr. Sunderland or the Annapolis Banking and Trust Company that the first mortgage would be released or that the consideration it recites had not been paid. It clearly appears from the testimony that the bank had in fact loaned to Mr. Sunderland, and the latter had paid to Mr. Remson, the amount of the loan which the mortgage was intended to secure. The fact that the money could not be applied to the objects first proposed, but remained in bank subject to Mr. Remson's order, could not affect the rights of the original holder, or of the assignee of the mortgage, whose money had been actually and unconditionally appropriated to the loan. [**529] They could certainly not be deprived of the security of the mortgage lien merely because of Mr. Remson's statement to the third mortgagee that the Sunderland mortgage would be released because he had not then received the fund to which it referred.

   The Court below concluded also that the objection to the first mortgage sale on the ground of inadequacy of price could [*107] not properly be sustained. With this view we have been unable to agree.

   In our opinion the evidence is sufficient to support the contention that [***10]the conditions surrounding the sale not only tended to prevent the disposition of the property for an adequate price, but in fact produced that injurious result. It was almost inevitable that the efforts of two mortgagees to sell the same property at rival auctions held on the same day would cause a state of conflict and confusion by which both sales would be seriously prejudiced. In addition to being hampered by the mere fact of such competition, each of the sales was further embarrassed by a public warning against its validity by a representative of the opposing interest. It would be really remarkable if the fair market value of the farm had been realized under such adverse conditions.

   The price of $40,000 for which the property was sold under the first mortgage was said by several witnesses to represent, in their judgment, its full value. There was testimony, however, that some years ago the owner had received from separate sources offers of $55,000 and $65,000 for the farm, which he declined. A county assessor testified that the property is worth $50,000 for farming purposes alone, and two other witnesses estimated its value, respectively, at $55,000 and $75,000. It was[***11] proven that a prospective bidder, who had visited the property, and had come from the City of Washington to attend the first mortgage sale, even though he had been told by his counsel that the United States Government had offered $75,000 for the farm, remained away from the sale after he learned that a second sale was to be made under another mortgage, because he did not wish to become involved in the litigation which would be expected to result from such a conflict of interests. By the advertisement for both of the sales, as well as by the evidence, emphasis was laid upon the fact that this 300 acre farm is exceptionally valuable, not only because of its fertility and improvements, and its availability and actual use [*108] for the purposes of an extensive dairy enterprise, but also because of its large water frontage, its adaptability to profitable subdivision, its proximity to Annapolis and the Naval Academy, and its adjacency to the Government Experimental Station and other public property in process of extensive development.

   Our review of the case has brought us to the conclusion that the mortgagor's interests have suffered material injury as a result of the concurrent[***12] exercise of the powers of sale contained in the first and third mortgages, and of the effect of each of the vendors to discourage bidding at the sale conducted by his competitor. While Mr. Remson consented to the advertisement of his property under the first mortgage, after he found that the third mortgage was being foreclosed, we do not think he should be held to have thereby waived in advance any valid objection he might otherwise be entitled to raise as to the inadequacy of the purchase price reported. In consenting to such a proceeding he probably did not anticipate that the validity of the sale would be publicly contested at the time it was attempted to be made, and he certainly did not agree that his property should be sold for less than it was really worth. According to our conception of the case, a serious loss may result to the mortgagor from the ratification of either of the reported sales, but we are confident that no injustice would be done to any interest in the case if a resale is ordered. The third mortgagee, whose claim will be partly lost if the first sale is confirmed, might be very materially benefited if the farm is resold, and the first mortgagee is amply protected[***13] by priority of lien and cannot be injured by a resale of the property under conditions which will admit of its fair market value being realized. The second mortgagee appears to be well secured and is taking no part in the litigation. The purchaser would apparently lose the benefit of an attractive bargain if neither sale is sustained, but it is not unjust to him to hold that he is not entitled to retain the [*109] accidental benefit resulting from the extraordinary and adverse conditions under which both sales occurred.

   The conclusion we have reached upon the exceptional facts of this case does not disregard, and is not inconsistent with, the general rule relating to objections to sales on the ground of inadequacy of price as applied in previous decisions of this Court. McCarty v. Hamburger, 112 Md. 40; Edgecombe Park Co. v. Finney, 121 Md. 320, 88 A. 143; Hunter v. Highland Land Co., 123 Md. 644, 91 A. 697; Vollum v. Beall, 117 Md. 617, 83 A. 1095; Carroll v. Hutton, 91 Md. 379, 46 A. 967; Shaw v. Smith, 107 Md. 523, 69 A. 116.

   If Mr. Remson should be[***14] unable to refund his existing mortgage indebtedness, and a resale cannot be thus avoided, it should be made along under the power of sale in the first mortgage, so that the title may be sold clear of all liens and under conditions favorable to a sale that will be advantageous to all parties concerned.

   The decree of the Court below will be affirmed in so far as it dismissed the bill for an injunction against a sale under the first mortgage, and sustained the exceptions to the [**530] sale reported under the third mortgage, but with respect to the ratification of the sale under the first mortgage, it will be reversed.

   Decree affirmed in part and reversed in part and cause remanded, the costs to be equally paid by the first and third mortgagees. 

BALTIMORE CAR FOUNDRY COMPANY vs. SOPHIA RUZICKA. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
132 Md. 491; 104 A. 167; 1918 Md. LEXIS 66; 4 A.L.R. 113

 April  3, 1918, Decided

   PRIOR HISTORY:  [***1] Appeal from the judgment of the Circuit Court for  Anne Arundel  County. (MOSS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  willful misconduct, track, workmen, shop, willful, boardwalk, crossing, trainman, crushed, workman, engine, Workmen's Compensation Law, thoughtless, misconduct, warning, coupled, minutes, serious and willful misconduct, disobedience, machinery, vat, sufficient time, self-inflicted, conversation, intoxication, deliberate, killed, couple, widow, spur

COUNSEL: Edward Duffy, for the appellant.
 
Edward J. Colgan, Jr. (with whom was Frank J. Pintner, on the brief), for the appellee.

JUDGES: "The cause was argued before BOYD, C. J., BRISCOE, THOMAS, URNER and STOCKBRIDGE, JJ.

OPINIONBY: URNER

OPINION: [*492] [**167] URNER, J., delivered the opinion of the Court.

   Upon this appeal from a judgment of the Circuit Court for Anne Arundel County, affirming an order of the State Industrial Accident Commission, the main question to be decided is whether the death of Frank J. Ruzicka, to whose widow an award was made by the Commission under the Workmen's Compensation Law, was the result of his "willful misconduct" within the meaning of that statute, which by its 46th section provides that "no employee or dependent of any employee shall be entitled to receive any compensation or benefit under this Act, on account of any injury to or death of an employee caused by self-inflicted injury, willful misconduct, or where the injury or death resulted solely the intoxication of the injured[***2] employee."
 
   Ruzicka was crushed and killed while attempting to pass between two cars on a track in the car-erecting shop of the Baltimore Car Foundry Company in which he was employed as a maker of decks or platforms for the cars there in course of construction. The accident occurred in the evening as the day's work was closing and Ruzicka was starting to leave the shop on his way to his home. The cars between which he tried to pass were two of a number of finished cars, standing [*493]at intervals on the track, and ready to be coupled together and drawn out of the shop by an engine which had been brought to the end of the building for that purpose. A trainman had passed along the track notifying all the workmen that the cars were about to be coupled and moved. At a distance of about eighty feet from the place where Ruzicka had been working there was a boardwalk over the track referred to, and others parallel with it, which was intended for the use of the workmen in crossing the tracks in going to and from their work. There does not appear to have been any enforced rule requiring [**168] the employees to use the boardwalk alone in passing from one side of the building to the[***3] other, and they could, if they chose, in going home, cross the tracks at other points. When the trainman who gave warning as to the coupling and removal of the cars passed Ruzicka's place of work, the latter was in the act of putting on his coat. It was about five minutes later that the engine, on signal from the trainman, began the movement by which the cars were coupled. An employee who saw the accident testified that he told Ruzicka, as he was about to go between the cars, that he ought not to do so because they were ready to be moved, but Ruzicka said: "That is all right; I will go through before they start." If he had passed on promptly, he would have crossed in safety, as the cars were not moved during the next five minutes, but as he reached the track he was engaged in conversation by another workman for about the period just mentioned, and then as he was passing between the couplers, which were three or four feet apart, the movement of the cars was begun and he was crushed to death. 

   It is, of course, perfectly clear that the fatal accident we have described was the result of Ruzicka's own negligence. But we agree with the Court below and the State Industrial Accident Commission[***4] in the opinion that the highly imprudent act which caused the unfortunate man's death is not properly to be characterized as willful misconduct. It lacked the element of intentional impropriety which those words [*494] imply. It was a thoughtless and heedless act, but not a willful breach of a positive rule of conduct or duty.

   In Bradbury's Workmen's Compensation Law, 3rd ed., p. 531, where numerous decisions on the subject are collected and discussed, it is said: "No general rule of law can be established defining accurately what constitutes willful misconduct. The question is one of fact and must be determined by the facts presented in each particular case. The conduct must be willful, which means that it must be intentional, that is, deliberate, with an exercise of the will as opposed to accident, negligence, inadvertence, and thoughtless acts on the spur of the moment or an error of judgment."

   On the appeal to the House of Lords in Johnson v. Marshall Sons & Co., 94 L. T. 828, LORD CHANCELLOR LOREBURG, in defining "serious and willful misconduct," as used in the British Workmen's Compensation Act, said that the word "willful" imports that "the misconduct[***5] was deliberate, not merely a thoughtless act on the spur of the moment."

    In discussing a provision in the California Workmen's Compensation Act, similar to the one with which we are here concerned, the Supreme Court of that State said: "Willful misconduct involves something more than negligence, and it does not even include every violation of a rule." U.S. F. & G. Co. v. Industrial Accident Commission, 163 P. 1013. The contention in that case, which the Court overruled, was that the injured employees, who were suffocated in a wine vat, were guilty of willful misconduct in entering the vat without previously testing it for noxious fumes according to the customary method of observing that precaution. It was held in Gignac v. Studebaker Corporation (Mich.), 152 N.W. 1037, that a checker of automobile shipments whose foot was crushed between the bumpers of freight cars over which he was climbing, without knowing whether the train was about to move, was not, as a matter of law, guilty of such "intentional and willful misconduct" as would defeat recovery under the Michigan Workmen's Compensation Act. In [*495] Nickerson's Case, 218 Mass. 158, 105 N.E. 604,[***6] it was decided that the act of a painter in working near machinery while it was in motion, contrary to an order that the painting be done during the noon hour when the machinery was stopped, should not be regarded as "serious and willful misconduct," within the provisions of the Massachusetts Workmen's Compensation Act, the Court observing that willful misconduct "is a very different thing from negligence, or even from gross negligence," and "the fact that the injury was occasioned by the employee's disobedience to an order is not decisive against him. To have that effect, the disobedience must have been willful."

   Other illustrative cases on this subject are cited in an elaborate annotation on workmen's compensation laws in L. R. A., 1916A, 75, 243.

   In the present case it is evident that the death of Ruzicka was due to his erroneous assumption that there was sufficient time for him to pass between the cars before they were moved. There was in fact ample time for that purpose when he started to cross, but when, after his progress had been interrupted by the conversation in which he became engaged with another workman, he resumed his forward movement, he apparently failed to realize[***7] how long he had been delayed. This was a very serious lapse of memory and judgment. It led him into an imminent peril which he could readily have avoided by ordinary attention. But in thus neglecting to have proper regard to his safety he was not, in our opinion, guilty of willful misconduct within the purview of the Workmen's Compensation Law, which, except in cases of injury produced by such misconduct or self-inflicted, or due to intoxication, provides compensation for the disability or death of employees resulting from accidental personal injury arising out of and in the course of the employment "without regard to fault as a cause of such injury."

   [**169] It was argued that Ruzicka's death did not arise out of and in the course of his employment since he was killed [*496] while leaving the car shop by a route other than the boardwalk which led to the place of exit. As we have already stated, the workmen were not required to use the boardwalk, but they could pass elsewhere over the tracks, in going to and from their working places, and we think that the accident, which resulted in Ruzicka's death, and which occurred while he was on the employer's premises and immediately[***8] at the close of the day's labor, should be regarded as arising out of and in the course of the employment. This conclusion is fully in accord with the general trend of the many decisions upon questions of this nature which are cited in the annotation heretofore referred to in L. R. A., 1916A, 40, 232.
 
   The specific exceptions in the record were taken to the refusal of the lower Court to rule that the death of the plaintiff's husband was caused by his willful misconduct, and to reverse the decision of the State Industrial Accident Commission, which overruled that defense and awarded compensation to the widow on the statutory basis. In our judgment the rulings excepted to were correct.

   Judgment affirmed, with costs. 

NICHOLAS H. GREEN AND FRANK H. STOCKETT, ADMINISTRATORS, vs.ROBERT REDMOND AND ELIZABETH A. REDMOND, HIS WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
132 Md. 166; 103 A. 431; 1918 Md. LEXIS 22

 January  16, 1918, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County. In Equity. (FORSYTHE, JR., J., who signed the decree in conformity with the opinion of BRASHEARS, J., since deceased.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  mortgage, mortgagee, mortgagor, gift, donor, covenant, default, lifetime, monthly, principal sum, deemed paid, installments, donee, demanded, impaired, fully paid, twenty-five, terminate, annually, reserved, preliminary injunction, lodging, insure, decree

COUNSEL: Nicholas N. Green (with whom was Frank H. Stockett on the brief), for the appellants.
 
James M. Munroe, for the appellees.

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

OPINIONBY: URNER

OPINION: [*167] [**431] URNER, J., delivered the opinion of the Court.

   This case is closely analogous in principle and material facts to the case of Howard v. Hobbs, 125 Md. 636, 94 A. 318. The mortgage and a separate agreement between the mortgagors and mortgagee in that case provided that if no default occurred in the payment of the stipulated interest, or in the performance of the other usual covenants of the mortgage, during the lifetime of the mortgagee, the principal sum therein mentioned should not be demanded at her death, but the mortgage should be deemed paid and satisfied and should thereupon be released by her personal representatives. The interest having[***2] been paid during the mortgagee's lifetime, it was held after her death that the mortgage was not enforceable and that the mortgagors were entitled to have it released, either upon the ground that the provisions referred to showed the transaction to be a gift of the fund in question, subject only to conditions which had been fully performed, or upon the theory that, if the money advanced were regarded as a loan, it was effectually forgiven and extinguished under the terms and performance of the agreement between the parties. In the present case the mortgage under consideration recites the payment of $5,000 by the mortgagee to the mortgagors upon the agreement that they shall pay interest thereon at three per cent. annually or in monthly installments, and that if there were no default in the covenants of the mortgage, the principal sum mentioned should [*168] not be demanded by the mortgagee, or his personal representatives, and that in the event of the mortgagee's death before the maturity of the mortgage, which was to continue for a period of twenty-five years, the sum of $5,000 so advanced should be deemed a gift to the mortgagors, and the mortgage should be considered fully[***3] paid and satisfied and should be released [**432] by the personal representatives of the mortgagee. In an agreement executed simultaneously with the mortgage it was recited that the $5,000 fund was paid and advanced to the mortgagors upon the understanding and condition that they should give the mortgagee a comfortable home for the remainder of his life. It was provided by the agreement that while the mortgagee was an inmate of the mortgagors' home, the interest covenanted in the mortgage to be paid should be applied on his board and maintenance, but if he should leave the home for any reason, then the interest should be paid to him in cash in yearly or monthly installments, and if he should find it necessary to remove from the home to a hospital or sanitarium on account of illness, the mortgagors would give him every care and attention. It was agreed, "in consideration of the premises" and "other good and valuable considerations," that the mortgage should terminate upon the death of the mortgagee, and should then be deemed paid and satisfied and should be released by his personal representatives, and it was expressly stated to be the intention of the parties that the principal[***4] sum of money referred to should not be repaid by the mortgagors to the mortgagee, "because the said sum is an absolute gift to them upon his death, and the time specified in the mortgage, being twenty-five years, was inserted because it is necessary in mortgages to specify and give the duration of the mortgage."

   For a number of years prior to the advancement of the money and the execution of the mortgage with which we are now concerned the mortgagee, Daniel Parke Custis, was employed as a pharmacist in a drug store in Annapolis owned [*169]by the mortgagor, Robert Redmond, whose wife is a party to both the mortgage and the agreement, and is designated by those instruments as a joint recipient of the fund to which they refer. During the period just mentioned Mr. Custis had been living with the family of Mr. Redmond's sister, and he continued to occupy his quarters there after the mortgage and agreement were executed, although a room was available for his use in the home of Mr. Redmond, but the latter paid for the board and lodging of Mr. Custis at the place where he chose to remain. Several weeks after the transaction under inquiry, the health of Mr. Custis had become impaired[***5] to such an extent that he was taken for treatment to Johns Hopkins Hospital, where shortly afterwards he died. The administrators of his personal estate attempted to exercise the formal power of sale contained in the mortgage, and they have appealed from a decree making permanent a preliminary injunction by which their effort to enforce the mortgage was restrained.

   According to the expressly declared purpose of the parties to the mortgage and agreement before us, the fund mentioned in those instruments was paid and received as a complete and irrevocable gift, subject only to the conditions specified. Its real character as a gift was not impaired by the fact that such conditions were imposed. As observed by CHIEF JUDGE BOYD in Howard v. Hobbs, supra: "The mere fact that a donor reserves such rights as an income for life from the thing given, or requires the donee to pay, and secure the payment of, interest to him for life on a sum given, is not sufficient to defeat it as a gift." This principle was fully recognized in the argument for the appellant in the pending case, but the contention has been made that the gift in this instance has failed because of default[***6] in the performance of the mortgage covenants relating to the payment of interest during the lifetime of the mortgagee and to the insurance of the mortgaged property for his further security. The evidence in the case shows that after the gift was made [*170] the donees paid for the donor's board and lodging amounts far in excess of the interest reserved for his benefit during his life. Moreover, the mortgage left it optional with the donees to pay the interest either annually or in monthly installments, and the period when the payment of the interest was demandable had not arrived at the time of the donor's death, or even at the time when the enforcement of the mortgage by his personal representatives was undertaken. No default, therefore, can be held to have occurred with respect to that covenant.

   The mortgage provided that the property it covered should be insured to the amount of $5,000 against loss by fire and that the policy for the insurance should be endorsed to the mortgagee. This covenant was not observed. The insurance on the property was for a less amount than stipulated, and the policy was not entered to the mortgagee's use. No question, however, appears to have been[***7] raised by the mortgagee as to this omission, and the agreement executed cotemporaneously with the mortgage declared in the most explicit and unqualified terms that both instruments should "terminate" upon the mortgagee's death and that the mortgage should then be "deemed paid and satisfied." It would be clearly inconsistent with the donor's intention to treat as a fatal default the non-observance of an insurance covenant which he apparently waived in his lifetime and to which no reference is made in the supplemental agreement of the parties providing for the extinguishment of the mortgage at the time of the donor's death. There was a sufficient compliance with the only conditions which that agreement imposed upon the gift, and consequently by its terms the mortgage became wholly inoperative at the expiration of the mortgagee's reserved interest for life in the donated fund.

   The argument for the appellant was partly based upon the theory that the donor may [**433] not have been fully competent at the time to make the conditional gift which is here sought to be recovered. We find no adequate support in the [*171] record for such a theory. The proof is conclusive to the effect[***8] that while the donor's health was impaired when the gift was made, he was in full possession of his mental faculties.

   The point was raised that the petition for the injunction to prevent a sale under the mortgage did not, as required by Code, Article 66, section 16, allege that the mortgage and all interest due thereon had been fully paid, and it is further contended that the bond filed as a prerequisite to the issuance of the preliminary injunction was not in the form prescribed by law. As the petition alleges that the mortgage debt and interest were fully satisfied, under the terms of the agreement, and as a final decree for a permanent injunction on that ground is the subject of this appeal, the objections just stated are without force.

   There were exceptions to some of the testimony in the case, but they need not be discussed, as the evidence to which they refer has not affected our conclusion.

   Decree affirmed, with costs. 

RICHARD HENRY HOWARD AND MARTHA HOWARD, HIS WIFE, vs. DANIELR. RANDALL, ATTORNEY, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
131 Md. 692; 104 A. 368; 1918 Md. LEXIS 5

 January  15, 1918, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)

DISPOSITION: Order affirmed.

COUNSEL: John S. Strahorn submitted a brief for the appellants.
 
Daniel R. Randall submitted a brief for the appellee.

JUDGES: The cause was submitted to BOYD, C. J., BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

OPINIONBY: THOMAS

OPINION: [*692] [**368] The order of the lower Court was affirmed in an opinion by THOMAS, J. 

CARROLL BATES BLICK vs. JAMES M. COCKINS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
131 Md. 625; 102 A. 1022; 1917 Md. LEXIS 71

 December  13, 1917, Decided

   PRIOR HISTORY:  [***1] Three appeals from the Circuit Court for  Anne   Arundel  County (BRASHEARS, J.), from the Court of Common Pleas of Baltimore City (SOPER, C. J.) and from the Superior Court of Baltimore City (SOPER, C. J.) 
 
The facts are stated in the opinion of the Court.

DISPOSITION: Assignment of error in No. 73 dismissed. Judgment in No. 85 affirmed, with costs. Order in No. 86 affirmed, with costs, except that each party shall pay one-half of the costs of the preparation and printing of the record.

CORE TERMS:  non-resident, removal, collateral, set-off, delivery, summons, certificate, promissory, transferred, tribunal, immunity, maturity, pleaded, notice, payee, exemption, statute of limitations, separate suit, time to time, declaration, actual demand, attachment, returning, assigned, amenable, exercise of judicial discretion, promissory note payable, legally sufficient, properly granted, promissory note

COUNSEL: William J. Kennedy, for the appellant.
 
Louis J. Burger and George Weems Williams (with whom was L. Vernon Miller on the brief), for the appellee.

JUDGES: The three appeals being not only between the same parties, but also growing out of the same controversy, were, by agreement of counsel and the consent of the Court, argued together before BOYD, C. J., BURKE, THOMAS, URNER, STOCKBRIDGE and CONSTABLE, JJ.

OPINIONBY: URNER

OPINION: [*626] [**1022] URNER, J., delivered the opinion of the Court.

   The appellee sued the appellant in the Circuit Court for St. Mary's County to recover a certain balance of principal and interest claimed to be due on two promissory notes set forth in the declaration. Upon the application[***2] of the plaintiff, the case was removed for trial to the Circuit Court for Anne Arundel County. In that Court the defendant filed a suggestion and affidavit for removal, whereupon an order [*627] was passed removing the case to the Court of Common Pleas of Baltimore City.

   At the trial of the [**1023] case in the Court to which it was thus finally removed, the defendant proposed that a verdict be directed in his favor on the ground that there was no evidence legally sufficient to overcome the bar of the statute of limitations which he had pleaded. The trial Court refused to grant such an instruction.

   During a recess which occurred in the course of the trial in the Court of Common Pleas, the plaintiff was served with a writ of summons in a suit which the defendant had entered against him in the Superior Court of Baltimore City. The writ in that case was quashed, on motion, because the person sought to be affected by the process was a non-resident of Maryland and at the time of the service of the writ was in this State solely for the purpose of prosecuting and testifying in his suit, then being tried, in the Court of Common Pleas.

   The appellant seeks to have reviewed under[***3] a writ of error, the action of the Circuit Court for Anne Arundel County in designating against his objection the Court of Common Pleas of Baltimore City as the tribunal to which the suit pending against him should be transferred on his application for its removal. By an appeal from the judgment rendered against him in the Court of Common Pleas he has brought up for review the refusal of the Court, to which he excepted, to instruct the jury that recovery was barred by limitations. Another appeal questions the propriety of the action of the Superior Court of Baltimore City in quashing the writ served upon the non-resident appellee, in the appellant's suit against him, while he was present as a suitor in this jurisdiction.

   The three appeals were argued together and we shall rule in one opinion upon the questions they present.

   The order of the Circuit Court for Anne Arundel County transferring the appellee's suit against the appellant to another Court for trial was passed in pursuance of the appellant's own application for a removal, and the designation of the Court of Common Pleas of Baltimore City as the tribunal [*628] to which the case should be sent was made in the exercise[***4] of an ample discretion conferred by the Constitution of the State. Const., Art. IV, sec. 8; Weiskittle v. State, 58 Md. 155. In Atl. & George's Creek Consol. Coal Co. v. Md. Coal Co., 64 Md. 302, 1 A. 878, an appeal from an order changing, before transmission of the record, the tribunal to which the case should be transferred on an application for removal was dismissed on the ground that the matter was within the discretion of the lower Court and therefore not reviewable. It is urged in the present case that the action of the Circuit Court for Anne Arundel County in directing the case to be sent to the Court of Common Pleas of Baltimore City was an abuse of discretion, because the selection of the latter Court was made in compliance with the request of the appellee, and against the appellant's protest, and because the suit had originally been brought in one of the Baltimore City Courts where a judgment of non pros was entered upon the defendant's motion on account of his not residing and being amenable to suit in that jurisdiction. These objections are clearly inconclusive. It appears from the record that the appellant's proposal for the[***5] removal of the case from the Circuit Court for Anne Arundel County was made on the day assigned for its trial in that Court, and that the appellee, who had come from his home in California to be present and testify at the trial, requested the Court, through his counsel, to send the case to one of the courts of Baltimore City, as he would thus be enabled to have the case tried at a very early date and be relieved of the trouble and expense of making a second visit to Maryland for the trial. Under such circumstances the action complained of was a manifestly fair and sound exercise of judicial discretion.

   One of the promissory notes sued on assigned by the appellant is in the following form: 
 
"$2250.   Baltimore, Md., December 9th, 1907.

   On demand, for value received, I promise to pay to James M. Cockins, or order, Two Thousand Two Hundred and Fifty Dollars, with interest, having deposited [*629] with said James M. Cockins as collateral security for the payment of this note Certificate No. 1109 for 29 shares and Certificate No. 1459 for 40 shares of stock of The National Marine Bank, of Baltimore, Md., with such additional collateral as may, from time to time, be required[***6] by said James M. Cockins, and which additional collaterals I hereby promise to give at any time on demand. If these additional collaterals be not so given when demanded, then this note to be due; and rebate of interest taken, shall be allowed on payment prior to maturity."

   The collateral agreement in the note included also a power of attorney to the payee to sell the collateral securities "on the non-performance of the above promise" and without giving the maker "any notice or making any demand of payment." There was also a provision that the pledged securities might from time to time be exchanged for others by mutual consent, and that if the maker of the note should incur any other liability to the payee the proceeds of the securities held as collateral should be likewise applicable at his election to any such obligations.

   A subsequent loan of $2,000 was made by the appellee to the appellant for which the latter gave his promissory note dated July 12, 1909, and payable one year after date. Interest was paid on the first note to December 9, 1910, and on the second to July 12, 1912, the payments being made at regular annual periods accounting from the respective dates of the notes. [***7] Demand for the payment of the principal of the notes and the interest in arrears was made on May 1, 1915. Upon default of payment and after further demands and due notice the collateral securities referred to were sold for the sum of $2,208, and the proceeds applied to the payment in full of the principal of the [**1024] $2,000 note and to the reduction of the principal of the $2,250 note to the extent of a credit of $208.

   In the pending suit for the balance of the principal of the one note and for the interest in arrears on both, the only [*630] exception reserved is to the refusal of instructions that the plaintiff's cause of action accrued more than three years before the suit, and that there was no legally sufficient evidence of a new promise, acknowledgment or partial payment effective to remove the bar of limitations, and that the verdict should therefore be for the defendant. The prayers thus offered and rejected were based upon the theory that the $2,250 note being payable on demand, and the $2,000 note one year after date, the first was due immediately upon its delivery in 1907, and the second matured according to its terms in 1910, and that neither the interest [***8]payments, the last of which occurred in 1912, nor the application of the proceeds of the collateral securities, though made in 1915, could have the effect of precluding the defense of limitations to the suit brought on the notes in 1916.

   There is a conflict of authority upon the question whether the statute of limitations is removed by the application of the proceeds of pledged securities upon the indebtedness to which such a defense is pleaded. The decision of that question was not necessarily involved in the ruling under review. The proposed instructions would have denied the plaintiff any recovery whatever as against the plea of limitations, while the greater part of his claim does not depend upon the collateral credits to protect it from the operation of the statute.

   It is clear from the terms of the $2,250 note that the parties intended it to represent a continuing liability which should mature only upon actual demand of payment, or upon the failure to provide further collateral if required, which it was agreed should have the effect of making the note due and payable. While the general rule is that a promissory note payable on demand is due immediately upon delivery, yet this[***9] rule does not apply when a different intention of the parties is apparent from the terms of the instrument or the purpose and circumstances of the transaction. 8 C. J., p. 407 and cases there cited; Mudd v. Harper, 1 Md. 110; Fells Point Savings Inst. v. Weedon, 18 Md. 320. In the [*631]case last cited the cause of action was a certificate of deposit payable to the order of the depositor "on demand, and on returning this certificate." The plea of limitations was interposed on the theory that the certificate was due from the date of its issuance, the suit having been brought more than three years after that time. The Court held that the provisions in reference to interest, and as to the return of the certificate, as a condition of payment, excluded it from the ordinary rule that an obligation payable on demand is due immediately.

   In the case before us the terms of the note, which was given for a loan, are wholly inconsistent with the theory that it was intended to become due and payable from the time of its delivery. It provides for the contingency of its maturity occurring at some future period as a result of the maker's failure to furnish[***10] additional securities when desired by the payee. It requires a rebate of interest in the event of the payment of the note prior to its maturity. These provisions, and that relating to the substitution of other collateral from time to time by mutual consent, clearly indicate the purpose of the parties that the note should not become due on delivery, but only upon default as to the agreement for additional security, or upon actual demand of payment, which in fact occurred within three years before the institution of the suit. There was consequently no error in the refusal of the prayers which sought to make the statute of limitations a complete bar to the plaintiff's recovery.

   Before the appellee's suit against the appellant was removed from the Circuit Court for St. Mary's County, a plea of set-off was filed, claiming $15,000 from the plaintiff for services alleged to have been rendered by the defendant as his financial agent during the period of ten years from 1900 to 1909, inclusive. To this plea of set-off the plaintiff pleaded the general issue and limitations. After the removal of the case to the Circuit Court for Anne Arundel County it was brought to issue on the pleadings, [***11] rejoinders having been filed by the defendant traversing the plaintiff's plea of limitations to the [*632]defendant's counter-claim, and averring further that the plaintiff, at and since the time of the accrual of the cause of action mentioned in the plea of set-off, was absent from this State. At the instance of the plaintiff's counsel the case was set for trial in the Circuit Court for Anne Arundel County on May 28, 1917. The defendant was given due notice of this assignment. Upon the case being called for trial on the day appointed the defendant filed the application for removal, already referred to, which resulted in the transfer of the case to the Court of Common Pleas of Baltimore City. Immediate notice was given by plaintiff's counsel of their intention to press for a trial of the case in the Court of Common Pleas on the earliest available day. They accordingly applied for and secured in that Court an assignment of the case for trial on May 31st, and of this the defendant's counsel were at once notified.

   When the case was called for trial in the Court of Common Pleas the defendant was not in attendance. The trial proceeded in his absence but with his interests represented[***12] by his counsel. On the second day of the trial and during the morning session the defendant's plea of set-off was withdrawn. [**1025] Earlier on the same morning a separate suit on the counter-claim had been brought in the Superior Court of Baltimore City, and the writ of summons issued in that suit was served during the recess of the Court of Common Pleas, as already narrated. The question is whether the appellee was amenable to the service of process in the new suit in view of his presence in the State at the time for the sole purpose of protecting his interests in the pre-existing litigation.

   In Long v. Hawken, 114 Md. 234, 79 A. 190, it was decided that a non-resident defendant, who had come into Maryland in order to be present and testify at the trial of a suit against him in this jurisdiction, was exempt from process in another case during his attendance at the trial of the first action and for a reasonable time while coming and returning. It had previously been held that a non-resident witness is immune from suit while in this State for the purpose of testifying in one [*633] of our courts. Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 A. 788.[***13] The protection of such a rule, however, was denied in Mullen v. Sanborn, 79 Md. 364, 29 A. 522, to a non-resident plaintiff in an attachment on original process, who failed to maintain the action and was immediately sued by the defendant for damages sustained through the wrongful institution of that proceeding. The decision to that effect was based upon considerations arising from the special nature of the attachment and the liability of the bond on the strength of which the writ was issued. It was found to be unnecessary in that case to define the limits of the rule of exemption with respect to non-resident parties generally.

   As ordinarily stated the rule is broad enough to include non-resident litigants without regard to their relative position as plaintiffs or defendants. While there are cases in which the rule has been held not applicable to non-resident plaintiffs, in most instances the decisions appear to disregard such a distinction. Notes to Long v. Hawken, 42 L. R. A. (N. S.) 1101; and Mullen v. Sanborn, 25 L.R.A. 721; and notes to cases reported in Rix v. Sprague, 52 L. R. A. (N. S.) 583;[***14] Vaughn v. Bryd, L. R. A. 1915A 694; and Burroughs v. Cocke, L. R. A. 1916E. 1173; 32 Cyc. 492. The reason of the exemption is said to rest on grounds of public policy and the due administration of justice, which require, according to the theory of the rule, that parties should not be deterred from attending Court in another State, to protect their interests, through fear of being subjected there to the burden of new litigation. But there is force in the argument, which has prevailed in some of the cases collected in the L. R. A. notes we have cited, to the effect that a non-resident who voluntarily comes within a State to secure the affirmative benefit of its judicial authority, in his suit against one of its citizens, is not within the reason and policy of the rule of immunity, and is not entitled to its protection against reciprocal liability to suit by a resident.

   In the case now before us the party who claimed and was allowed exemption from process occupied the dual position of [*634] plaintiff and defendant with respect to the issues joined on the pleadings. The plea of set-off was in effect a declaration in a cross-suit, to which the original plaintiff[***15] sustained the relation of defendant. In his replication to the plea of set-off the plaintiff pleaded "precisely as he would to a declaration," in order to prevent a recovery against him by the opposite party. Baer v. Robbins, 117 Md. 213, 83 A. 341; 2 Poe's Pleading & Practice, sec. 825. When the appellee came here from California to attend the trial at the time appointed it was not merely to prosecute his suit for the balance due on promissory notes amounting, with interest, to about $3,000, but it was also for the important purpose of making defense against a counter-suit for $15,000. The latter object was defeated by the action of the defendant in withdrawing his plea of set-off in order to bring another suit in which he hoped to secure a later trial on the same issue. Under such conditions the appellee was entitled to the immunity he invoked and the motion to quash the writ of summons was properly granted.

   In the first of the three cases we have thus considered together, which are Nos. 73, 85 and 86 on the docket of the present term, the assignment of error will be dismissed, and in the other cases the judgment and order, respectively, will be affirmed. [***16] As the record in No. 86 was at least double the requisite volume on account of the unnecessary incorporation at large against the appellant's objection of the transcript of proceedings in a Pennsylvania Court, relating to the same subject of litigation, we will direct the costs of the preparation and printing of the record on that appeal to be equally divided. 

   Assignment of error in No. 73 dismissed. Judgment in No. 85 affirmed, with costs. Order in No. 86 affirmed, with costs, except that each party shall pay one-half of the costs of the preparation and printing of the record. 

ANNAPOLIS PUBLIC UTILITIES COMPANY, A BODY CORPORATE, vs.JOHN F. MARTIN. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
131 Md. 393; 102 A. 465; 1917 Md. LEXIS 39

 November  15, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

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

CORE TERMS:  meter, consumed, slot, gas meter, installed, supply of gas, consumer, tested, prayers, indebted, electric light, legally sufficient, declaration, wrongfully, collector, deposited, notified, occupied, cooking, notice, fast, noon, shut, unnecessary force, evidence offered, cubic feet, consumption, discontinue, maliciously, discrepancy

COUNSEL: George Weems Williams (with whom were Marbury, Gosnell & Williams and L. Vernon Miller on the brief), for the appellant.
 
Eugene P. Childs and James M. Munroe, for the appellee.

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

OPINIONBY: BURKE

OPINION: [*394] [**465] BURKE, J., delivered the opinion of the Court.

   The appeal in this case was taken by the Annapolis Public Utilities Company, a corporation, from a judgment entered against it in the Circuit Court for Anne Arundel County at the suit of John F. Martin, who conducted a restaurant at No. 6 West street, in Annapolis. The declaration contained two counts. The first count alleged that upon the application of the plaintiff the defendant installed a gas meter and made connections from its service pipes to the building occupied by the plaintiff, and furnished plaintiff gas used for cooking and illuminating purposes which the defendant continued to do until the 10th day of April, 1916, "when[***2] said defendant or its agents did maliciously, wrongfully, and without just cause, and with intent of injuring the plaintiff's business cut off said gas supply, which deprived the plaintiff of light and heat for cooking purposes." This count alleged that the application for gas was made by the plaintiff to the defendant on the 23rd day of November, 1915, for furnishing gas to be used by him in the premises occupied by him as a tenant. The second count set out the application in which it appears that the plaintiff agreed to hold himself "responsible for all gas consumed on said premises until forty-eight hours after notice has been duly given at the office of the company to discontinue the supply." The count then alleged that the defendant accepted the application, installed a gas meter, made connection with the [**466] service pipe, and furnished gas to the premises for cooking and lighting, and "that said defendant company did continue to furnish to the said plaintiff the supply of gas until the tenth day of April, 1916, when said defendant company, through its agents, did enter upon said premises, and did wrongfully and maliciously and without just cause cut off the supply[***3] of gas, and refused and does still refuse to furnish the same.

   That by reason of the wrongful act of the defendant company the plaintiff has suffered gross indignities and mortifications, as well as having been put to great expense and trouble." There are four exceptions in the record reserved [*395]by the defendant during the course of the trial,--three relate to rulings on evidence, and one to the action of the Court on the prayers submitted at the close of the case.

   As we have reached the conclusion that the defendant's first and second prayers should have been granted the other questions raised need not be considered. These prayers are here transcribed:

   1. "The defendant prays the Court to instruct the jury that no legally sufficient evidence has been offered in this case tending to prove that the defendant violated any of the obligations it owed to the plaintiff, and therefore, the verdict of the jury must be for the defendant, upon the issues joined in the pleadings."

   2. "The defendant prays the Court to instruct the jury that inasmuch as it appears from the uncontradicted evidence that on April 7th, 1916, the plaintiff owed the defendant for gas furnished by the defendant[***4] on the premises of the plaintiff, and was on that date notified of the amount alleged to be due, and requested to pay said amount, and that the plaintiff was further notified that if he did not pay said amount on or before noon of April 10th, 1916, the gas meter would be removed, and that the said plaintiff failed or refused to pay said amount so due on or before noon of April 10th, 1916, and that thereupon in pursuance of said notice said gas meter was removed without any unnecessary force, the verdict of the jury must be for the defendant."

   We held in Carter v. The Suburban Water Company, decided June 28th, 1917 (131 Md. 91), that a Public Service Water Company has a right to cut off a consumer's water supply for non-payment of water rents. In the case before us the burden was upon the plaintiff to offer evidence legally sufficient to show that he was not indebted to the defendant for gas supplied to the premises at the time the supply was shut off, for unless such evidence was offered there was a failure of proof to support the allegation of the declaration that the supply was wrongfully and without just cause shut [*396] off. The undisputed facts, which[***5] are few and simple, in our opinion are legally insufficient to support the plaintiff's case.

   The meter installed and used by the plaintiff was known as a slot meter. It consisted of two parts,--one part measured and recorded the gas consumed, and the other part consisted of a receptacle in which quarters were placed in order to start and maintain the flow of gas. If the coin was not placed in the slot no gas would be furnished, and if the meter was in proper working order, the amount of gas consumed and the amount of cash in the slot would correspond, that is to say, there would be sufficient money in the slot to pay for the gas consumed as recorded by the meter. Payment for gas consumed was to be made monthly, and collections were made by a collector of the company. The meter used had been inspected, tested, and approved by the Public Service Commission of Maryland before it was installed in the plaintiff's premises, and immediately after it was removed it was again tested by the defendant and was found to be substantially correct. The only inaccuracy found was that it was three per cent. fast, and on this account the plaintiff was entitled to a credit on his bill of sixty-nine cents[***6] which was allowed by the company. The amount due for gas consumed for January, 1916, was $20.50; for February, $24.50, but when the defendant's agent went to collect for gas consumed from March 6th to April 6th, 1916, only $11.00 was found in the slot attached to the meter. This cash receptacle was locked, and one having a key could open it, and the undisputed evidence is that a child by means of a wire could extract the money.

   On the 6th of April, 1916, Henry Boteler, the defendant's collector, went to the plaintiff's place to make the collection. He unlocked the meter and in the presence of Miss Stevens, an employee of the plaintiff, a boy and the cook, counted the quarters on a table and found that they amounted to $11.00. He was surprised at the discrepancy between that amount and the amounts collected in the previous months and asked Miss Stevens if they were not doing a good business and she [*397] said, yes. Miss Stevens testified that she was in the dining room and saw Boteler come through with the meter, that he counted the money in the dining-room, and she said it looked like a smaller amount than had been taken out in previous months. Boteler notified H. T. Connolly, [***7] the defendant's superintendent of this discrepancy, and he sent one of his men around and removed the meter and installed another. After the meter was tested and examined it was found that it showed a consumption of gas of 19,000 cubic feet for March which according to the fixed rates for Annapolis amounted to $23.75.

   The defendant then wrote the plaintiff the following letter: 

   "April 7, 1916.
 
MR. JOHN F. MARTIN,
6 West Street,
Annapolis, Md.
 
DEAR SIR:--

   The gas meter, this Companies Number 1030, Public Service Commission Number 64215B, located on the premises No. 6 West St., occupied by you as a lunch room, showed on March 6, 1916, a reading namely 652, and on April 7th, 1916, it showed a reading of 842, consequently gas consumption of 19,000 cubic feet, at $ 1.25, equals $23.75. Our collector on opening the above meter discovered that there was only $11.00 in money-box. After meter was removed there was twenty-five cents in the money-box.

   The meter, after being removed, was tested by this company and found to be three per cent fast. We have credited your account sixty-nine cents on account of meter being this fast. With [**467] the credits above mentioned[***8] you are indebted to this company to the extent of $11.81. Failure on your part before Monday, April 10th, 12 o'clock noon, we will be forced to discontinue your supply of gas.

   [*398] Attached please find duplicate of statement I handed you personally today.

   Respectfully,

   ANNAPOLIS PUBLIC UTILITIES COMPANY,

   (Signed) H. T. CONNOLLY,

   Supt of Power."

   Martin paid no attention to this letter and the meter was removed on the 10th day of April without any unnecessary force or any disturbance.

   We think the evidence is perfectly clear that the plaintiff was indebted to the defendant in the sum of $11.81 for gas consumed on his premises at the time the meter was removed. Assuming the admissibility of the testimony embraced in the first exception, and giving the plaintiff credit for all the money claimed to have been put in the slot, the evidence offered on his behalf showed that he had not paid for the gas consumed at the time the meter was taken out. The contention that the defendant should have applied the $20.00 deposited on the Electric Light contract to the Gas bill can not be sustained. The contracts for electricity (upon which the $20.00 was deposited), and gas were[***9] separate and distinct contracts and made at different times. This deposit was applied by the defendant to bills for electric light which it claimed were due by the plaintiff, and it offered evidence tending strongly to support its claim. But we are not required to decide that question but it is obvious that the defendant, without the consent of the plaintiff, had no right to divert the sum which was deposited under the terms of the electric light contract and apply it to an indebtedness which had accrued under a contract for gas made some months later. As there was no evidence offered legally sufficient to support the plaintiff's case, the defendant's first and second prayers should have been granted, and a verdict directed for the defendant.

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

WILLIAM G. GISCHELL vs. FRANK H. BALLMAN AND WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
131 Md. 260; 101 A. 698; 1917 Md. LEXIS 22

 June  28, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, each party to pay one-half of the costs in this Court, and the appellant to pay the costs below.

CORE TERMS:  one-half, die, testator, seized, marry, heirs, inherit, pump, farm, tract of land, entire fee, devised, decree, tract, purchase money, right of way, fee simple, alienation, married, life estate, alienation of property, true construction, public policy, one-third, bequeath, daughter, favored, advise, convey, assigns

COUNSEL: Charles W. Buck, for the appellant.
 
Charles F. Stein, for the appellees.

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

OPINIONBY: BOYD

OPINION: [*261] [**699] BOYD, C. J., delivered the opinion of the Court. 

   This is an appeal from a decree for specific performance, requiring the defendant (appellant) to pay to the plaintiffs (appellees) the purchase money for a tract of land in Anne Arundel County, which he agreed to purchase from them, and directing the plaintiffs to convey said land to the defendant upon his payment of the purchase money, or bringing it into Court. The appellant states in his answer that he is anxious and willing to complete the purchase, and to pay the purchase money, and that he will do so in accordance with his contract, if by a true construction of the devise to Frank Harman Ballman in the will of Henry Ballman the former became and is seized[***2] of the entire and absolute fee simple estate in the lands purchased.

   Henry Ballman, the father of Frank H. Ballman, died on or about the 31st day of October, 1884, seized of a tract of land containing about 50 acres, of which that in controversy in this case is a part. By his last will and testament he devised to his daughter, Laura Caroline Ballman, one-third part of his home tract of land, where he then resided, and to his son Christian Frederick Ballman the north third of the home farm, and made the following provision for his son Frank Harman Ballman, one of the appellees: 

   "Item--I will and bequeath to my youngest son, Frank Harman, the south third of my home tract, containing sixteen and three-quarters acres of land, more or less, with the old dwelling house and the large barn and such buildings as shall fall to his third of said tract, with the well of water and pump, but I will and direct that the heirs to the several parts of my home farm shall have equal right to use the well or pump aforesaid, provided they bear equal part of the repairs to said pump and well. And further that each of said heirs shall have free right of way to and from said farm, or their parts thereof, [***3] without let or hindrance. To the said Frank, his heirs and assigns. And whereas the said Frank is not so well able to provide for and take care of himself, I direct that Henry Frederick [*262] shall look after his interest, advise and direct Frank as best he can, and in case Frank shall not marry and die before the said Henry, then the said Henry shall have and inherit one-half of Frank's part of said property; and I also direct that in case Frank shall die as aforesaid, that Henry shall have him decently buried and properly attend to him in all his sickness in consideration of the aforesaid interest."

   The answer admits that after the death of the testator, and under the provisions of the will, Frank H. Ballman entered into possession of the part of the tract of land devised to him, claiming to be seized of the entire fee simple estate therein, and that he has ever since remained in possession thereof, always claiming to be so seized of the entire fee simple estate, but the appellant contends that by the true construction of the will he did not become seized of the entire fee simple estate, and at best only became seized of a defeasible estate in fee therein, to be divested[***4] upon his marriage or death before the death of his brother Henry, and that although he is married and alive he is not seized of the entire fee simple estate and can not convey such estate to the appellant, as was contracted to be sold him.

   The appellant makes no objection to the provisions for the use of the well or pump, or the right of way provided for in the will. It is not easy to find such difficulty about the title as justified an appeal to this Court. The will was evidently not drawn by one skilled in such work, but it is sufficiently clear to show the intention of the testator. After saying that he wills and bequeaths to his son Frank Harman the south third of his home tract, and giving the heirs the right to the use of the well or pump and the right of way, the testator apparently desired to emphasize the fact that he intended his son Frank to have the property in fee simple, as he added in a separate sentence, "to the said Frank, his heirs and assigns." He had in previous items left a third of his home tract to his daughter, Laura Caroline, and the north third of [*263] that farm to his son Christian Frederick, and in both of those items used the same language, except[***5] he added the word "forever" in his gift to Charles Frederick.

    The part of the item leaving the property to Frank, in which he directs that Henry Frederick shall look after his interest, advise and direct him as best he can, certainly did not create a trust. It was just an expression of the father of the interest he had in the welfare of his younger son, calling upon Henry to watch over him.

   Then when the will says "and in case Frank shall not marry and die before the said Henry, then the said Henry shall have and inherit one-half of Frank's part of said property," etc., [**700] it is clear that Henry was only to have the one-half, if Frank did not marry and died before him. As it is admitted that Frank has married and is still living, clearly Henry has no interest in the property by reason of that provision. The testator did not simply say "in case Frank dies before Henry," but, "in case Frank shall not marry and die before the said Henry." He knew that if he married he might leave a child or children, or a widow, or both, surviving him, and he indicated no intention to leave the one-half to Henry in that event, or in any event, unless Frank did not marry and [***6] predeceased Henry. The concluding clause of the item--"and I also direct that in case Frank shall die as aforesaid"--could have no effect unless he did not marry and did die before Henry. It seems to us that that item is too clear for controversy.

   The next item in the will is as follows: 

   "Item--I will and direct that all the land and property hereby by me bequeathed shall not be sold on any account, but that the aforesaid heirs may rent or lease their said parts of said land, but shall not sell during their natural lives."

   Inasmuch as by the will the testator had already given Frank a fee simple interest in the property he left to him, that item can not have the effect of reducing his interest to [*264] a mere life estate. Such a construction would be wholly contrary to the provision as to Henry taking under the previous item the property left to Frank, for if Frank only had a life estate how could Henry "have and inherit one-half of Frank's part of said property"? But such restraints on alienation are not favored and are very generally held to be contrary to public policy. In many cases in this Court the subject has been dealt with. Amongst them are Smith v. Clark, 10 Md. 186;[***7] Warner v. Rice, 66 Md. 436, 8 A. 84; Stansbury v. Hubner, 73 Md. 228, 20 A. 904; Trinity M. E. Church v. Baker, 91 Md. 539, 574; Blackshere v. Samuel Ready School, 94 Md. 773, 51 A. 1056; Clark v. Clark, 99 Md. 356, 58 A. 24, and Doan v. Ascension Parish, 103 Md. 662, 64 A. 314. See also Manierre v. Welling, 32 R.I. 104, 78 A. 507, reported in (24) Ann. Cas. 1912, C. 1311, where there is a note on page 1329 citing many authorities, and Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641, reported in Ann. Cas. 1916, D. 1248, and note on page 1254.

   It is clear that this item is such an attempted restraint on the alienation of the property left Frank in fee simple (as we hold it was left) as to be void and of no effect. We are only concerned with Frank's interest and therefore say nothing as to the others, but our silence must not be construed as intimating a doubt on the subject as to those interests, as we neither express nor intimate any opinion.

   The decree will be affirmed, but we will direct that each side[***8] pay one-half of the costs in this Court, and that the appellant pay the costs below, as directed by the decree of the lower Court.

   Decree affirmed, each party to pay one-half of the costs in this Court, and the appellant to pay the costs below. 

JAMES H. CROMWELL vs. CHANCE MARINE CONSTRUCTION COMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
131 Md. 105; 101 A. 623; 1917 Md. LEXIS 7

 June  27, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment reversed and a new trial awarded, the appellee to pay the costs.

CORE TERMS:  boat, engine, prayer, installed, general issue, belong, action of assumpsit, agreed to purchase, legally sufficient, ground of defense, probative force, good conscience, purchase price, bound to pay, new trial, assumpsit, manufactured, withdrawing, motor-boat, talking

COUNSEL: Eugene P. Childs, for the appellant.
 
Robert Moss, for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [*106] [**623] BRISCOE, J., delivered the opinion of the Court. 

   The controversy, in this case, is over the sale of a motorboat.

   The declaration is in assumpsit, upon the usual common counts. The defendant pleaded the general [**624] issue pleas, and the trial in the Court below resulting in a judgment for the defendant, the plaintiff brings this appeal.

   At the trial a single exception was taken and that was, to the ruling of the Court, at the close of the plaintiff's testimony, in granting the defendant's prayer, withdrawing the case from the consideration of the jury, and directing a verdict for the defendant.
 
   The sole question presented, on the appeal, is whether the Court below committed an error in granting the defendant's prayer, and this requires a review of the evidence, [***2] disclosed by the Record.

   The Record is a short one, and there were only two witnesses examined in the case. The testimony is somewhat brief and the plaintiff's testimony is the only material evidence in the case.

   It appears, that the plaintiff who resides upon the Severn River, in Anne Arundel County, sometime in the year 1916, purchased of the defendant, a motor-boat, for the sum of $375. Prior to the contract of sale, it was agreed that a small engine which was then in the boat, should be removed and what was called a Hubbard engine was to be installed in its place.

   [*107] It further appears, that on the 25th of February, 1916, the plaintiff paid the sum of $210.00, on account of the boat and engine, but with the understanding that if a Hubbard engine was not put in it, he did not want it. The following letter, introduced as evidence in the case shows the contract and understanding between the parties. 

   "The Chance Marine Construction Company,

   Designers and Builders of Boats,

   Office and Shipyard, Severn Avenue,

   Eastport, Md.

   Annapolis, Md., Feb. 23, 1916.
 
Mr. J. H. Cromwell, Forrest and Front Sts., Balto., Md.
 
Dear Herbert:

   Confirming telephone conversation[***3] with you regarding the Caughy boat, will say that we will let you have the boat at $375.00 as per your request. As you understand, the hull does not belong to us, we will ask you for your check for $210; we will then take the engine out and put in the 12 H. P. Victor motor in its place. The balance payable when the boat is delivered. You will understand that we could not make any change in the boat until it is paid for, as the money has to be turned into the estate of the owner.

   Yours very truly,

   Caryl H. Bryan."

   On the 25th of February, 1916, the plaintiff replied to the foregoing letter, as follows: 

   "Homestead Park Product Company,

   Forrest and Front Streets,

    Baltimore, Feb. 25, 1916.
 
The Chance Marine Construction Co., Annapolis, Md.
 
Gentlemen:

   I am enclosing herewith my check for $210.00 to apply on account of the Seabury boat and engine. [*108] Your attention is called to the fact that before I agreed to purchase this outfit or even before I made an offer for same in your office last week, your Captain Baker represented this engine to be one manufactured by the Hubbard Motor Company, and it was on the strength of this representation that I made the[***4] above offer and finally agreed to purchase.

   In the meantime I have been familiarizing myself with the different parts of the Hubbard Motor, and after talking with your Mr. Bryan this afternoon I ran across some information that led me to believe that it was possible that your motor was not a Hubbard machine, but one manufactured for the Fairbanks Company by another concern and with which they have experienced a large amount of trouble. I have just finished talking with your Captain Baker on the phone and he assured me that the motor is a Hubbard, and if such is the case all is well and good, and I want you to go ahead with the work as promptly as you can, but on the other hand I want you to be sure of this fact before you do go to work on it, because if it is not a Hubbard engine I don't want it, as I do not care to experiment with any engine that you or I don't know anything about.

   Yours very respectfully,

   J. H. Cromwell."
 
C. K.

   The plaintiff also testified that he got the boat on Thursday and returned it on Saturday of the same week, that when he went after the boat there were two or three hours' work on the engine before it was ready to be taken away, that the boat leaked, [***5] that it broke down on its way home before they got to the railroad bridge, "we had to anchor and spend an hour and then came back with one cylinder and they repaired it and we started out again."

   He further testified that the defendant stated that it was a Hubbard engine which had been put in and installed in the boat, when it was turned over to him. Upon re-direct [*109] examination he was asked the following question: "Then you did not find out it was not a Hubbard motor until after you took the boat back? Answer: "Yes, sir." That he told the defendant, when he carried the boat back, that if he could prove to him, that a Hubbard engine had been installed in the boat he would take it, but this was not done. That he made demand for the return of the $210 before bringing the suit, but the defendant refused to answer any correspondence, or to return the money, even upon a personal appeal.

   From this outline and statement of the testimony, and it embraces all of the material and substantial facts disclosed by the Record, it will be seen, that the question here presented is a narrow one, and that is, whether the Court below committed an error, in withdrawing the case from the jury, [***6] by the instruction granted.
 
   We think, the testimony as disclosed by the Record, was legally sufficient to take the case to the jury and the Court committed an error in granting the defendant's prayer.

   It is well settled by a long line of decisions of this Court, that the Court has no power or authority to decide upon the comparative weight of evidence, but that is exclusively for the jury.

   If there is any evidence competent or of a sufficient probative force to sustain the proposition sought to be maintained or to support the plaintiff's case, the weight and value of this evidence should be left for the consideration of the jury. Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 A. 338; Jones v. Jones, 45 Md. 144; Burke v. M. & C. of Balto., 127 Md. 554, 96 A. 693.

   The theory of the plaintiff's case, is, that he purchased from the defendant a [**625] motor-boat, in which there should have been installed a Hubbard engine, of the kind agreed upon between the parties and that he paid the sum of $210 on account of the purchase price, and that through the fraud of the defendant, he did not get what he bargained for, but[***7] on the contrary the defendant delivered to him a boat and engine of no use and value, and that upon this discovery [*110] he returned it to the defendant and demanded the money which he had paid, but the defendant refused to return or to pay it back.

   The law is well established that in an action of assumpsit for money had and received the plaintiff can recover from the defendant any money belonging to the plaintiff, obtained from him through mistake, fraud or deceit. It lies to recover money in the possession of the defendant which in justice and good conscience belongs to the plaintiff, and the defendant under the general issue may rely upon any just ground of defense that may show he was not bound to pay it. Penn v. Flack, 3 G. & J. 369; Blair v. Blair, 39 Md. 556; Mills v. Bailey, 88 Md. 320, 41 A. 780; 1 Poe's Pleading, 117-124.

   In this case, we are not prepared to hold that there was no evidence legally sufficient to require the case to be submitted to the jury, under the undisputed evidence set out in the Record, and for the reasons stated, the judgment must be reversed and a new trial will be awarded. [***8]

   Judgment reversed and a new trial awarded, the appellee to pay the costs. 

THE WASHINGTON, BALTIMORE AND ANNAPOLIS ELECTRIC RAILROADCOMPANY, A CORPORATION, vs. WILLIAM H. MOSS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
130 Md. 198; 100 A. 86; 1917 Md. LEXIS 114

 February  2, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Howard County (FORSYTHE, J.), to which the cause had been removed from  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment reversed, new trial awarded, with costs to the appellant.

CORE TERMS:  lease, prayer, services rendered, securing, amended declaration, declaration, surrender, boarding house, demurrer, statute of limitations, cause of action, years prior, assumpsit, former appeal, aunt, reasons stated, begins to run, surrendering, negotiating, new cause of action, properly rejected, grocery store, new suit, negotiations, assigned, planning, estimate, dollars, brokers, quantum meruit

COUNSEL: George Weems Williams and Edward M. Hammond, for the appellant.
 
Nicholas H. Green, for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [*199] [**87] BRISCOE, J., delivered the opinion of the Court.

   This case is presented upon a second appeal. The first appeal is reported in 127 Md. 12. The suit in that case was brought for the breach of an alleged contract as set out in the [*200] declaration filed in the case. We held on the former appeal, that the alleged contract was unenforceable because of its indefiniteness and vagueness in the essentials stated, in the opinion, and being invalid, it would not support an action by the plaintiff for a recovery. It was also said in the course of the opinion, that if the facts are as testified to by the appellee and his witnesses, the plaintiff was not without a remedy, because [***2]independently of the alleged contract, the plaintiff "has a right of recovery for the services rendered for the benefit of the appellant, the W. B. and A. Electric R. R. in securing the lease from his aunt for it, as well as compensation for the surrender of his lease to the premises, if he had a lease that had a value." The judgment of the Court below, on the former appeal, was reversed and the cause was remanded in order to allow the appellee an opportunity to amend his declaration so as to conform to the views expressed, or to dismiss that action and institute a new suit for the recovery of such compensation "as shall be found to be due him for what he did towards the securing of the lease and the surrender of his own lease and possession, whichever he shall prefer."

   The case was remanded to the Circuit Court for Howard County, and the mandate filed in that Court on the 21st of January, 1916.

   On the 6th of March, 1916, an amended declaration was filed containing seven counts. The first and third being the usual common counts in assumpsit, the second, "And for work done and services rendered by the plaintiff for the benefit of the defendant," the fourth, fifth, sixth and seventh[***3] counts are special counts.

   The fourth count alleges that the defendant, desiring to obtain the property at College avenue and Bladen street, on or about February 7th, 1913, employed the plaintiff to negotiate for a purchase or lease of the same, and that in pursuance of said employment by the defendant, the plaintiff began negotiations with the owner of said property, which negotiations [*201] resulted in a lease to Robert Moss on the 25th day of February, 1913, for a term of ten years, with an option to renew same for another term of ten years, which lease was assigned to the defendant on the 27th day of March, 1913, for which services in negotiating the lease as aforesaid for the defendant, the plaintiff has received no compensation.

   The fifth count avers that on February 25th, 1913, the date of the lease to Robert Moss, the plaintiff was, and for a number of years prior thereto had been, in possession of the premises as a tenant, and at the request of the defendant and with full expectation and promise of pay therefor surrendered his tenancy [**88] and gave up his possession, and the defendant has not paid him therefor.

   The sixth count states that on February 25th, 1913, [***4] the plaintiff was and had been for a number of years prior thereto employed in conducting a grocery store on a portion of the premises in question, and at the request of the defendant, and with full expectation of compensation therefor, closed out his business and gave up his business, but has not been paid any compensation by the defendant.

   The seventh count alleges that the plaintiff on February 25th, 1913, was and for a number of years prior thereto had been conducting a boarding house on part of the premises, and at the request of the defendant and with full expectation of payment therefor, ceased to conduct said boarding house, and the defendant has not compensated him therefor.

   The defendant demurred to each and every count of the declaration but the demurrer was overruled.

    The plaintiff, upon demand, filed the following as the bill of particulars of his claim against the defendant for services rendered by him from January 1st, 1913, to May 21st, 1913, as follows:

For services rendered in originating and suggesting
  the advisability, advantages and necessity
  of the location of the defendant and
  its interests on the corner of Bladen St.
  and College Ave. in the City of Annapolis,
  Maryland                                                  $ 5,000.00
For services rendered in securing lease on
  property located on the west corner of College
  Ave. and Bladen St. in the City of
  Annapolis, Md.                                              5,000.00
For services rendered in obtaining possession
  of said property for the defendant:
  (1) In surrender of tenancy                                 4,000.00
  (2) In closing out business conducted in
         storehouse and surrender of
         perquisites                                          4,000.00
  (3) In surrender of business conducted in
         dwelling                                             1,000.00
  (4) In planning and construction of the
         remodeling of improvements on said
         property                                             1,000.00
                                                           $ 20,000.00

 [***5]

   [*202] To the declaration the defendant filed four pleas: first and second, that the cause of action did not accrue within three years from the suit, or within three years prior to the 6th of March, 1916, the date of the amended declaration. The third and fourth pleas were the usual general issue pleas of never promised and not indebted as alleged. The plaintiff's demurrer to the second plea was sustained and the case was tried upon a traverse to the first plea and issue joined on the other pleas.

   There were seventy-one exceptions reserved to the rulings of the Court, in the course of the trial. Seventy of these relate to the admissibility of testimony and the other to the ruling of the Court upon the prayers. The plaintiff offered one prayer and this was granted. The Court granted the defendant's eighteenth prayer, but rejected its remaining twenty-nine prayers; and the rulings, in overruling the defendant's special exception to the plaintiff's prayer and the refusal to grant the defendant's twenty-nine prayers and the [*203] granting of the plaintiff's prayer form the basis of the seventy-first bill of exceptions.

   It is apparent from the record, and an examination of[***6] the declaration and the various items and claims set out in the bill of particulars, that the plaintiff sought in this action to recover for matters and undertakings embraced in the contract declared upon in the original declaration and which we held on the former appeal to be invalid and not alone upon a quantum meruit for alleged services rendered in securing the lease from his aunt and the surrender of his own lease. W. B. & A. R. R. Co. v. Moss, 127 Md. 12, 96 A. 273.

    There was error in granting the plaintiff's first prayer, because apart from allowing the plaintiff to recover under the evidence for services rendered in securing the lease and for the surrender of his own lease, it instructed the jury that the plaintiff could recover for separate and distinct services, in closing out of his retail grocery business and the surrender of his boarding house business, conducted on the premises, either by previous employment or the acceptance of the plaintiff's agency and the adoption of his acts. This prayer was not only clearly erroneous under our former decision in 127 Md. 12, but is also open to the objection that it directed the jury to allow[***7] interest "from such time as the jury may find from the evidence such services were completed to the date of their verdict."

   It is the settled practice in this State, except in those cases where interest is allowable as of right, to refer the question of interest to the jury to be allowed in its discretion. Newson v. Douglass, 7 H. & J. 417; Baltimore City Pass. Rwy. Co. v. Sewell, 37 Md. 443; Curtis v. Gibney, 59 Md. 131.

   The defendant's exception to the rejection of its first, second and third prayers are waived and need not be considered.

   The defendant's fourth prayer presented the question of limitations, and the Court was asked to instruct the jury, that under the pleadings the plaintiff could not recover for any services alleged to have been rendered by the defendant [*204] and which were completed more than three years before the filing of the amended declaration, the amended declaration, being filed on March 6th, 1916. The same question was raised by the ruling of the Court, in sustaining the plaintiff's demurrer to the defendant's second plea.

   The question as here presented upon the evidence set out in the record, is [***8]not free from difficulty.

   The suit is in assumpsit upon a quantum meruit for services rendered in obtaining the lease, and surrendering the plaintiff's own lease.

   Under all the authorities, the statute of limitations would run against any services rendered and completed by the defendant more [**89] than three years prior to the filing of the amended declaration.

   In Spencer v. B. & O. R. R. Co., 126 Md. 194, 94 A. 660, this Court said: "The rule is well settled in this State, and in other jurisdictions, that where an amended declaration introduces a new or different cause of action and makes a different claim and demand, it is equivalent to a new suit, upon a new cause of action, and opens the case to the bar of the statute of limitations and the plea is proper and available, and this rule applies although the two causes of action arise out of the same transaction." Hamilton v. Thirston, 94 Md. 253, 51 A. 42; Di Giorgio Co. v. Stock, 116 Md. 201, 81 A. 385; Johnston v. District, 1 Mackey D. C. 427; Union Pacific Ry. v. Wyler, 158 U.S. 285, 39 L. Ed. 983, 15 S. Ct. 877.[***9]

   In Young v. Mackall, 3 Md. Ch. 398, it is said, as soon as the cause of action accrues, whether it be a trust or not, if it be a fit subject for a suit at law as well as in equity, the statute of limitations begins to run. Green v. Johnson, 3 G. & J. 389; Hahn v. Claybrook, ante, page 179.

    The general rule seems also settled that in the computation of the statutory period, in cases where there is an undertaking which requires a continuation of services, or the party's right depends upon the happening of an event in the future, the statute begins to run only from the time the services [*205] can be completed or from the time the event happens. Angell on Limitations, sec. 120; Wood on Limitations, 325-330.

   In 25 Cyc. 1065 and 1066, it is said: "'The accrual of the cause of action' means the right to institute and maintain a suit; and whenever one person may sue another a cause of action has accrued and the statute begins to run. So whether at law or in equity the cause of action arises when and only when the aggrieved party 'has the right to apply to the proper tribunal for relief.' The statute does not attach to a[***10] claim for which there is no right of action, and does not run against a right for which there is no corresponding remedy or for which judgment can not be obtained. The true test therefore to determine whether a cause of action has accrued is to ascertain the time when plaintiff could have first have maintained his action to a successful result. The fact that he might have brought a premature or groundless action is immaterial."

   In the case at bar, there is a manifest conflict in the evidence as to when the services of the defendant were completed for which the suit was brought in this case.

   The amended declaration, it appears, was filed on the 6th of March, 1916. In the fourth count of the declaration, it is averred, that the plaintiff on or about the 7th of February, 1913, was employed by the defendant to negotiate for the purchase or lease of certain property in the City of Annapolis and the negotiations resulted in a lease of the property to Robert Moss on the 25th of February, 1913, for a term of ten years, with a renewal of another term of ten years and this lease was assigned to the defendant on the 27th of March, 1913.

   The plaintiff testified that after his aunt Mrs. Baldwin[***11] refused to sell for the stipulated price of $7,500, that he then approached her on the subject of a long term lease and she said she would let him know about it in a few days and she finally did let him know that she would give a lease for [*206]ten years, renewable for ten years more; that as the final outcome of these services, Mrs. Baldwin on February 25th, 1913, and in company with the witness went to the office of Robert Moss and executed a lease for ten years, renewable for another ten years, to Robert Moss, with the understanding that the lease was to be turned over to the defendant, which was done on March 27th following. He also testified upon cross-examination as follows: Q. How long was it from the first visit that you made to Mrs. Baldwin until the lease was procured? A. The first visit was made on February 7th, and the lease was signed on February 25th. Q. And you are charging $1,500 for eighteen days' work? A. Yes, sir. Q. Of course you were not working all that time? A. Yes, sir. Q. On this? A. No, sir; not on getting the lease. Q. You were actively engaged in working all the eighteen days in getting the lease? A. No, sir.

   Mr. Robert Moss, a witness for the[***12] plaintiff testified that what little representing he did in the transaction, he represented the railway company, that he was employed at the time as local counsel for the defendant company and had represented them for many years, that he did not receive anything for the services rendered in connection with the leasing of the property, that possibly the defendant made him an allowance on his gas bill of a few dollars or so, but not very much, that he was sure it was not over $18.00, that he sent his brother to attend to the lease for the company, because he knew that he was the best one and the only one who could attend to it quickly and efficiently for them, and that his brother was the only person who could get a lease on the property for them. He further testified upon cross-examination that he had no idea as to how many visits his brother paid Mrs. Baldwin in procuring the lease for the company but that the matter was started on February 7th, and was concluded on February 25th, 1913.

   It further appears, that while the lease is dated the 25th of February, 1913, the term did not begin until the first day [*207] of April, 1913, and the lease was not assigned by Robert Moss to[***13] the company until March 27th, 1913, that the plaintiff did not close out his business until the latter part of March, and under instructions from the company he kept the place open, from April 1st to April 21st, 1913.

   Upon this state of facts, we think, the question of limitations in this case is a mixed one of law and fact.

   It is well settled that when the evidence is susceptible of more than one interpretation and the facts are disputed or conflicting, the question of limitations is one of fact for the jury, subject to the instructions of the Court as to what in law is sufficient to constitute a bar or to take the case out of the statute. Shipley v. [**90] Shilling, 66 Md. 558; Quynn v. Carroll, 10 Md. 197; Guy v. Tams, 6 Gill 82; Dempsey v. McNabb, 73 Md. 433, 21 A. 378; 25 Cyc. 1434, 1435, 1436.

   There was no error then in the ruling of the Court, in sustaining the plaintiff's demurrer to the defendant's second plea, or in the rejection of the defendant's fourth prayer, in the form it was offered.

   The defendant's fifth, sixth and seventh prayers should have been granted. These prayers[***14] instructed the jury that the plaintiff could not recover any damages sustained by loss of alleged profits, in either the grocery store business or the boarding house business. The suit was not for loss of profits but for services rendered in securing the lease and in surrendering the plaintiff's own lease.

   The defendant's tenth, eleventh, twelfth, thirteenth and fourteenth prayers relate to compensation for alleged services rendered in originating and suggesting the advisability, advantages and necessity of the location of the defendant and its interest on the corner of Bladen street and College avenue, in the City of Annapolis, as a separate and independent undertaking, in addition to the services rendered, in securing the lease. While the tenth prayer was too general to have been granted in the form it was offered, it is too clear for discussion, that the appellee had a right to recover for [*208] only two items of services alleged to have been rendered, assuming the truth of the plaintiff's evidence, and they were as stated on the former appeal, compensation for securing a lease from his aunt for it, and for the surrender of his own lease, if it had a value.

   The difficulty[***15] and error, on these rulings arose from the plaintiff's declaration and the bill of particulars, wherein he sought to recover for six distinct and separate undertakings and services: first, for suggesting the idea; secondly, for securing the lease; thirdly, for surrendering the tenancy; fourthly, for closing out the grocery store business; and, fifthly, for closing out the boarding house business; and sixthly, for planning and remodelling of improvements on the property.

   The Court's ruling was correct on the eleventh and twelfth prayers for the reasons stated in support of the fourth prayer.

   The thirteenth, fourteenth, fifteenth, twentieth, twenty-first and twenty-fourth prayers were demurrers to the evidence and were properly rejected in the form they were offered.

   The sixteenth and seventeenth prayers again raised the question of limitations and for the reason stated, in the ruling on the fourth prayer, they were properly rejected.

   The nineteenth prayer instructed the jury that the plaintiff could not recover for the services rendered in negotiating the lease, more than an amount based on what the jury shall find from the evidence is the usual charges or commission of real estate[***16] brokers in Annapolis for negotiating leases. This prayer was properly rejected because it limited the recovery and fixed the usual charge or commission of real estate brokers in Annapolis, as the sole basis of the value of the services rendered in negotiating the lease, and ignored the other evidence bearing on this question.

   There was no error in the rejection of the twenty-second prayer, and it is conceded in the defendant's brief, to have been properly refused.

   [*209] The twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth and thirtieth prayers instructed the jury, that the plaintiff could not recover for certain services alleged to have been rendered by the plaintiff in closing out the store house and the boarding house business and in the planning and construction of certain improvements on the property. These prayers should have been granted and there was error in their rejection for the reason stated in a former part of this opinion.

   This brings us to the rulings on the admissibility of evidence. The first, second, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth, thirty-fourth, thirty-eighth and seventieth bills of exceptions are abandoned [***17]by the defendant.

   It would extend this opinion to an unreasonable length to discuss each exception separately and as it appears from what we have said in discussing the prayers, that there was error in many of the rulings upon evidence, we shall as far as necessary, dispose of the remaining exceptions, set out in the record.

   The evidence of alleged loss and profits from the retail grocery business, and the boarding house business; the planning and construction of improvements on the property after it was leased, the closing out of business in the storehouse, and surrender of business in the dwelling house, contained in the third, tenth, thirteenth, twenty-second and twenty-third exceptions and in other exceptions embracing similar evidence was clearly inadmissible and should have been excluded for reasons stated by us in passing upon the prayers.
 
   There was also error in the ruling of the Court in the fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, thirty-second, thirty-third, thirty-six and thirty-seventh exceptions and the other exceptions containing similar testimony.

   The issue in the case was not the value and advantage of the property to the [***18]defendant, but the reasonable value of the services rendered by the plaintiff in obtaining the property.

   [*210] The twenty-eighth exception presents the ruling of the Court in allowing the plaintiff to give an opinion estimate of his services and to fix his damages in dollars and cents, [**91] for the services rendered in securing the lease. The question and answer is as follows: What is a fair and reasonable compensation for the services, such as you have stated were performed by you in securing the lease for this property for the defendant? Answer: Fifteen hundred dollars.

   The plaintiff was a non-expert witness and had no knowledge upon these subjects but was competent to state only facts and not give his opinions. He could have testified as to the nature and extent of the services rendered, the time occupied in their performance and other attending circumstances but not his estimate or judgment of their value. There was no standard fixed and no evidence of what was the usual price charged and received for similar services by other persons. It was the province of the jury to weigh the testimony and to fix the value of the services alleged to have been rendered, upon the[***19] evidence in the case.

   In Western Union Tel. Co. v. Ring, 102 Md. 677, 62 A. 801, it is said: "If therefore the evidence set out in the exception now under consideration was intended to be offered as from an expert witness nothing more needs to be said than that it is within the ruling of the case just cited. If the witness of whom the question objected to was asked was not intended to be qualified as an expert then evidence offered was not within the exception to the general rule which excludes opinion testimony--a rule, the limits of which, it is intimated in the opinion just cited, ought not to be enlarged and which we may here say is a most salutary one in its operation as a restraint upon testimony which otherwise too often would be the result more of bias, recklessness of statement, and mere speculation than of judgment calmly and intelligently applied to relevant facts." Giering v. Sauer, 120 Md. 295, 87 A. 774; Walker v. Rogers, 24 Md. 237; Poe's Pl. & Pr., Vol. 1, 584 B.

   [*211] For the reasons stated, there was also error in the rulings on the defendant's eighth and ninth prayers, and they should have[***20] been granted.

   There was also error in the rulings embraced in the twenty-seventh, twenty-ninth, thirtieth, thirty-first, thirty-third, thirty-fifth, thirty-sixth, fortieth, forty-first, forty-third, forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, fifty-seventh and fifty-ninth exceptions and the other exceptions set out in the record relating to like subjects.

   The demurrer to the sixth and seventh counts of the declaration should have been sustained as the plaintiff could not recover under these counts.
 
   The motion to dismiss the appeal will be overruled as the second appeal is properly before us.

   For the reasons stated the judgment will be reversed and a new trial awarded. 

   Judgment reversed, new trial awarded, with costs to the appellant. 

MARY COALE DUGAN vs. CHARLES A. HOWARD. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
130 Md. 114; 99 A. 966; 1917 Md. LEXIS 104

 January  17, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree reversed and bill dismissed without prejudice to the appellee to proceed in the prior case after proper amendment of his account and notice, if the same shall be determined to be amendable, the appellee to pay the costs of this case.

CORE TERMS:  notice, heating, mechanics', plumbing, pendency, bid, furnishing, architect, appended, amendable, work done, pleaded, water, allowable, complete defense, bill dismissed, former action, connecting, reduction, vexatious, furniture, abatement, recording, stricken, delivery, erected, boiler, decree

COUNSEL: James M. Munroe (with whom was Ferdinand C. Dugan on the brief), for the appellant.
 
Nicholas H. Green, for the appellee, submitted the cause on brief.

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

OPINIONBY: STOCKBRIDGE

OPINION: [*115] [**967] STOCKBRIDGE, J., delivered the opinion of the Court.

   Miss Mary Coale Dugan entered into a contract for the erection of a house in the City of Annapolis with a firm doing business under the name of "DeWaard & Sons."

   The contractor invited bids from the appellee for furnishing and installing the heating and plumbing in the building, and Mr. Howard submitted two bids, one of $331 for the heating, and one of $297 for the plumbing. DeWaard & Sons endeavored to obtain a reduction in the bids, and succeeded [*116] [***2]so far as the heating was concerned in securing a reduction from $331 to $311. Upon the bids thus made of $311 and $297, the contracts were awarded on June 18, 1910.

   There were entirely two distinct contracts, one at a definite amount for the heating; the other for the plumbing, to be installed in the building about to be erected. DeWaard & Son failed, and left a number of their sub-contractors unpaid, including Howard.

   A bill was subsequently filed in equity by the Farinholt-Meredith Co. for the purpose of enforcing a lien claimed by it, to which suit Howard and other lien claimants were made parties. In such proceeding the appellee appeared, and set up the same claim as that involved in the present suit, which earlier case is still pending. Mr. Howard then caused this suit to be brought, to which the appellant appeared and filed a plea of lis pendens.

   This plea was stricken out by the Circuit Court for Anne Arundel County, the order reciting that: "There was no objection in No. 3443 Equity (the suit instituted by the Farinholt-Meredith Co.) to the claim of Charles A. Howard, so it seems to me that the rights of the parties can be better presented in these proceedings." [***3] The effect of this, therefore, is to leave two suits pending with regard to one and the same claim.

   While pleas are not usual in equity suits, they are not unknown, and the nature of the defense that may be set up by plea may be stated generally as follows: "That any facts or combination of facts may be pleaded which without going into the full merits, show a good and complete defense to the whole or a part of the bill, e. g., the pendency of another suit in the same jurisdiction between the same parties in regard to the same subject matter." 10 R. C. L., sec. 222, p. 455 Way v. Bragaw, 16 N.J. Eq. 213; Seebold v. Lockner, 30 Md. 133. And in the Mutual Life Ins. Co. v. Brune, 96 U.S. 588, 24 L. Ed. 737, it is said that: "At law the pendency of a former action between the same parties is pleaded in abatement to [*117] the second action, because the latter is regarded as vexatious. The rule in equity is analogous to the rule at law."

   It was, therefore, error upon the part of the Circuit Court for Anne Arundel County to have stricken down the plea in this case.

   When we come to consider the facts relating to the[***4] claim now presented, they are as follows:

   As Mr. Howard's contract was not made with the owner, it was incumbent upon him to give notice of his intention to claim a lien, under Section 11 of Article 63 of the Code, which provides: "If the contract for furnishing such work or materials or both shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing the work or furnishing the materials or both, shall not be entitled to a lien unless within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident with in the city or county of his intention to claim such lien."

   To comply with this the appellee attempted to serve a notice upon Miss Dugan in the City of Baltimore, on December 28th, 1910, and being in doubt as to the efficacy of his attempt, on the day following posted a copy of the "notice" upon the premises. The account appended to the notice was as follows: 

   "Annapolis, Md., December 28, 1910.
 
Mr. DeWaard & Sons for Mary Coale Dugan's Cottage, Annapolis Md., to Charles A. Howard   Dr.

Nov. 9, 1910--
  To heating house, erected for Mary Coale
    Dugan as per agreement                             $ 331.00  
  To plumbing house and premises erected
    for Mary Coale Dugan as per
    agreement                                            297.00  
                                                       $ 628.00  
  To extra at Dugan's house, as follows:
    To changing gas lights--
      10 ft. 3/8 pipe                           .40
      10 ft. 1/4 pipe                           .38
      2 hrs. plumber and helper                1.50
                                                           2.28  
                                                       $ 630.28  
Nov. 19th. By cash                                       250.00  
  Balance due                                          $ 380.28."

 [***5]

   [*118] This was clearly defective. The amount set out as the claim for the heating is $331 the amount of the original bid, and not $311 the sum for which the contract was let. Besides this, there is a claim for $2.28 for extras, with nothing to show when the extras were ordered or by whom. In the body of the notice, as well as the account, the sum for which the lien is claimed is $380.28, when at most he was only entitled to claim $358.

   Whether the notice is amendable in this respect under the very broad power of amendment allowable in mechanics liens under the provisions of the Code, Art. 63, sec. 41, it is not now necessary to decide, but the case of Kenly v. Sisters of Charity, 63 Md. 306, at least leaves it open to serious doubt.

   The lien was filed for record in the office of the Clerk of Anne Arundel County on [**968] February 1, 1911, and contained exactly the same account as that which accompanied and formed a part of the notice to the owner.

   No date is given as to the time when any of the materials were furnished or labor done. The lien is, therefore, open to the same objection as that criticised by this Court in Rust v. Chisolm, 57 Md. 376,[***6] where it was said: "The claims of Hutchinson & Bro. and Coyle & Bro. are defective because it does not appear from the face of the account, nor from any paper accompanying the same, at what time or times the materials were furnished. The object of this provision is to [*119] enable the owner or purchaser, and other lien creditors, to trace out the truth of the claim and guard against fraud and imposition." And this language is quoted apparently with approval in Brunt v. Farinholt, 121 Md. 126, 88 A. 42.

    The work is testified to have been begun in June, 1910, and to have been completed on November 9th, 1910. In a letter written on October 22nd, by the architect, Mr. Lawrence Fowler to Miss Dugan, he says: "I have found the house practically completed and satisfactory with the exception of the plastering." And he sanctions the payment to DeWaard & Sons of $600. The house had been leased on September 20th to Admiral Porter, who began moving his furniture in on October 28th.

   If the work of Mr. Howard under his two contracts had been completed by the time when Mr. Fowler wrote his letter, the notice was clearly not within the time required by the Code.

   The[***7] evidence is uncontradicted that the keys were delivered to Mrs. Porter on October 27th, and that they began moving their furniture in on the 28th, but did not actually occupy the house until some days later, when an additional support had been put in for one of the floors. Both Admiral and Mrs. Porter testify that to all appearances the house was completed when they commenced moving in, and that they had no knowledge or recollection of any work done by Mr. Howard afterwards.

   As against this testimony of Admiral and Mrs. Porter, Mr. Howard declares positively that on November 9th, he and a workman by the name of Hyde went to the premises, connected up the water to the plumbing and heating boiler, and tested both jobs. No reason is advanced why this could not and ought not to have been done when the balance of his work was done, except a fear that the pipes might freeze and burst. Whether this was work done in good faith, or merely in an endeavor to keep his lien in force, without notice to the owner, and without recording it, it is not necessary now to [*120] decide. But it is strange that such an omission in the building should have escaped the architect, and if this work alone[***8] could be delayed even for the purpose suggested by Mr. Howard, it might be availed of to keep an unrecorded lien alive indefinitely, so long as the building was not occupied.

   For the reasons indicated the decree of the Circuit Court for Anne Arundel County passed on the 11th day of August, 1916, must be reversed, and the bill dismissed, without prejudice, however, to the appellee to proceed in the former case after proper amendment of his account and notice, if the same shall be determined to be amendable.

   Some question was raised as to the allowance of interest on the claim. In Smith v. Shaffer, 50 Md. 132, interest was charged in the bill of particulars, but the amount was not extended, and this Court held in such a case, interest was recoverable from the date of the last delivery made of materials. In the German Lutheran Church v. Heise, 44 Md. 453, no interest was charged or claimed in the account, and it was held that the interest was allowable only from the date of filing the lien; and in Hensel v. Johnson, 94 Md. 729, 51 A. 575, it is said: "Inasmuch as the lien became a claim of record, enforceable without stay [***9]or condition, interest should be allowed from the time of filing the lien claim for record."

   In this case the lien as filed claimed interest only from November 9th, 1910, and if the claim is allowed at all, no interest could be awarded for a longer time than claimed, in addition to which there are no dates given when materials were furnished or work done, and, therefore, there is no earlier date from which interest could be allowed.

   Decree reversed and bill dismissed without prejudice to the appellee to proceed in the prior case after proper amendment of his account and notice, if the same shall be determined to be amendable, the appellee to pay the costs of this case. 

ROBERT L. WERNTZ AND GEORGE W. EVANS vs. WALTER I. WELLS ANDJOHN S. STRAHORN, RECEIVERS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
130 Md. 53; 99 A. 956; 1917 Md. LEXIS 97

 January  11, 1917, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order reversed, with costs and cause remanded.

CORE TERMS:  one-third, receiver, one-half, roller, time to time, ascertained, proportion, finance, auditor, partnership, contractor, one-sixth, appointed, partner, dollar, bought, decree, build, seal, necessary to carry, bond of indemnity, written contract, views expressed, body corporate, distributed, transcribed, conformity, deposited, credited, induced

COUNSEL: Robert Moss, for the appellants.
 
John S. Strahorn (with whom was Walter I. Wells on the brief), for the appellees.

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

OPINIONBY: BURKE

OPINION: [*54] [**957] BURKE, J., delivered the opinion of the Court.

   In November, 1911, George Jewell was awarded a contract by the State Roads Commission for the building of a portion of the State road between Annapolis and Baltimore. He was required to give bond for the faithful performance of the contract. He was personally unable to secure the bond, or to finance the work, and in order to secure the bond and the money necessary to carry on the work, Robert L. Werntz, one of the appellants, was induced to become interested in the contract under circumstances which will be presently stated.

   On December 15, 1913, the Emerson-Brantingham Implement Company and the Rittenhouse-Fleury Company, being each a body corporate, filed a bill of complaint in the Circuit Court[***2] for Anne Arundel County against George Jewell and Robert L. Werntz in which they alleged that they were judgment creditors of George Jewell; that Jewell had been a contractor for the building of certain roads for the State Roads Commission, and in connection with said work had certain business relations with Robert L. Werntz, the nature of which were unknown to the complainants; that the State Roads Commission on the 15th of February, 1913, drew its check in favor of George Jewell and Robert L. Werntz in the sum of $8,000.00, in payment for a part of said construction, which check was deposited by Werntz in the [*55] National Bank of Baltimore to the credit of himself and Jewell, and that there was to the joint credit of said parties, at the time of filing the bill, the sum of about $2,085; that on or about March 10, 1913, the State Roads Commission drew another check to the order of Jewell and Werntz for further payment of said road construction in the sum of $1,549.00, which check is held by Jewell or his attorney, N. H. Green, unused; that the Emerson-Brantingham Implement Company had caused two attachments to be issued upon its judgment against Jewell--one of which had[***3] been laid in the hands of Robert L. Werntz, Robert Moss, attorney, and N. H. Green, attorney, and the other had been laid in the hands of the National Bank of Baltimore attaching the fund so deposited in that bank to the order of Jewell and Werntz; that George Jewell has an interest in the funds mentioned at least equal to the amounts of the complainants' judgments, with costs, which said interest, in part at least, is disputed by Werntz. The bill further alleged that since the issuance of the aforesaid checks a controversy had arisen between Jewell and Werntz over the construction of a certain contract between them as to their rights in said funds, and that in order to ascertain the ownership of said funds it was necessary that a receiver be appointed to take charge of said funds in order that the title to the said funds be legally determined, and the rights of persons and corporations therein ascertained according to law. The relief prayed for was: 

   "1. That a Receiver be appointed to take charge of said two funds, or vouchers and money and other evidence of assets, and collect and bring into this Court the money so as aforesaid due the said George Jewell and Robert L. Werntz [***4]or either of them;

   "2. That your petitioners may have such other and further relief in the premises as their cause and equity may entitle them to."

   The Court appointed John S. Strahorn, Walter I. Wells and Robert Moss, receivers, "with full power and authority [*56] to take charge and possession of the two funds or [**958] vouchers, and money and other evidence of assets mentioned in said bill, belonging to the above mentioned defendants, or either of them, and collect and bring into this Court the money mentioned in said bill as due the said George Jewell and Robert L. Werntz."

   The answer of George Jewell admitted that he has a substantial interest in the funds mentioned in the bill, and that he and Werntz had not been able to agree upon their respective interests in said funds. It averred that on the 27th of November, 1911, Jewell and Werntz entered into a contract "by which the said Werntz was from time to time to advance the necessary money to carry on the work and to complete the same in consideration whereof by the terms of said agreement the said Robert L. Werntz was to receive one-half of the net profits of said work or to be paid one-third of the net profits[***5] thereof; but this respondent avers that in addition to the agreement it was understood and agreed among the said Robert L. Werntz, a certain George W. Evans and this respondent that the net profits would be divided into three parts, one-third thereof to be paid to said Robert L. Werntz, one-third to said George W. Evans and one-third to this respondent."

   Jewell, in his answer, consented to the appointment of a receiver to take charge of said funds "in order that the respective rights of the parties be ascertained according to law." The second and third paragraphs of the answer of Robert L. Werntz are here transcribed: 

   "Second--Answering further, this defendant says that he admits that for a one-half interest in a certain contract obtained by the defendant, George Jewell, for the building of a part of the State road from Annapolis to Baltimore, which is fully set forth by the written contract filed in this case, he became the special partner of said Jewell for this purpose only, and this defendant denies that said Jewell has, under the terms of said contract, sufficient interest in the funds [*57] mentioned in said bill of complaint to pay the debts due the plaintiffs. [***6]

   "Third--Answering further, this defendant consents to the appointment of said receivers for the purpose of taking charge of said funds and administering the same under the direction of this Honorable Court."

   Upon the petition of George W. Evans the Court, by its order passed October 26th, 1914, made him a party defendant with leave to answer and defend. In his answer he alleged: 

   "That, under the terms of the agreement entered into between George Jewell and Robert L. Werntz, whereby the said Robert L. Werntz agreed to obtain the necessary money to finance the said building of the part of the State road for which the said Jewell was the lowest bidder, before the contract for building same was signed, he was offered by the said George Jewell one-third of the net profits from said contract upon a condition that this defendant would get the said defendant, Robert L. Werntz, to finance the said building, and when it was finally agreed that the said Werntz would so finance it, both the said Jewell and the said Werntz agreed that this defendant should have one-third of the net profits from said contract.

   "Answering further, this defendant says that he never knew for many months [***7]after date of the same that the said Jewell and Werntz had entered into the written contract filed in this case.

   "This defendant prays the Court to protect his interest under this contract, and to have awarded to him the money arising from his interest in the same."

   The contract between Jewell and Werntz, mentioned in the bill and answer and in the testimony, is here transcribed: 

   "This Agreement, Made this 17th day of November, in the year nineteen hundred and eleven, by George Jewell, party of the first part, and Robert L. Werntz, [*58]party of the second part, both of Anne Arundel County, State of Maryland:

    "Whereas the said George Jewell has obtained a contract to build two and two-tenths miles of the State road known as the Baltimore Boulevard, at and near Revell's Station, in the Third Election District of Anne Arundel County, Maryland; and

   "Whereas in order for the said George Jewell to obtain said contract it became necessary for him to have financial backing; and

   "Whereas the said Robert L. Werntz has this day executed a bond of indemnity to the Fidelity and Deposit Company of Maryland, a body corporate, in order to indemnify the said The Fidelity and[***8] Deposit Company which has become surety on the bond of the said George Jewell for the sum of forty-five thousand four hundred and forty-two dollars and sixty cents ($45,442.60); and

   "Whereas the said Robert L. Werntz has agreed from time to time to advance to the said George Jewell such necessary money as may be absolutely necessary in order for him to carry on said work and to complete the same;

   "Now, Therefore, This Agreement Witnesseth, That in consideration of the premises and of the sum of one dollar, the said George Jewell does hereby agree, that from the net profits of said work under his said contract he will pay without any deduction of any kind one-half of the same to the said Robert L. Werntz at such times and as soon as said profits can be ascertained, and the said George Jewell does hereby declare that he understands and knows that it is not the intent of this paper to make the said Robert L. Werntz a partner under the said contract for said road building, but that he is to be paid one-third of the net profits of said work for the risk he takes for becoming financially responsible for the work to be done by the said George Jewell.

   [*59] "And the said George[***9] Jewell does further promise, covenant and agree, that in the event of any loss upon said work, that the said Robert L. Werntz shall have and possess all personal property now owned by him which has this day been bill of sale to the Robert L. Werntz to be sold and applied to the payment of such losses as the said Robert L. Werntz shall suffer by reason of his bond of indemnity, as above set forth, and does further agree that he will at all times upon the request to submit to the said Robert L. Werntz his books of account showing the money earned, the money expended and how all monies have been applied, and that he will as soon as any money is received from the State upon said contract, after paying whatever there may be actually due for labor and material upon said road, promptly turn over to the said Robert L. Werntz the balance to be paid to the said Robert L. Werntz to reimburse him for any money he may have advanced to the said George Jewell, or to the payment of any money the said Robert L. Werntz may have borrowed to advance to the said George Jewell to aid him in completing his contract.

   "It is understood, except a reasonable allowance to the said George Jewell for his support[***10] and maintenance during the said contract shall be used or enjoyed until the work is completed, and the said Robert L. Werntz on his part [**959] does hereby agree and promise that he will from time to time raise for the said George Jewell such necessary money as may be necessary for the proper and expeditious carrying on of said work.

   "And it is hereby mutually understood that should the said George Jewell die or become from any cause physically unable to carry on said work that the said Robert L. Werntz shall have the right to appoint and designate some proper person to conduct and complete the work in place of the said George Jewell.

   "And the said George Jewell does further promise that he will at all times give his personal supervision to the work and see that all servants and employees [*60] under him perform their work and work to advantage and will push the work to as rapid a completion as possible, consulting with the said Robert L. Werntz from time to time as to the manner of conducting said work, the best scheme of work to be enforced, and the place or places where it is best to buy the necessary materials for constructing the said road.

   "Witness our hands and[***11] seals to this contract executed in duplicate this 27th day of November, in the year nineteen hundred and eleven.

   "Robert L. Werntz. (Seal)

   "George Jewell. (Seal)
 
"Witness: Clara C. Russell."

   The receivers filed a report on the 15th day of August, 1914, by which it appeared that they had in hand the sum of $3,634, less $25 paid for premium on the receivers' bond, but it appears by the order of Court dated June 14th, 1916, they then had the sum of $4,024.72. Testimony was taken before the examiner and also before the auditor, who stated four accounts designated as accounts "A," "B," "C" and "D." The plaintiffs and Robert L. Werntz excepted to each of these accounts, and the Court by its order dated January 10, 1916, sustained the exception to each of said accounts, and remanded the proceedings to the auditor to state an account distributing the funds in accordance with the views expressed in a written opinion filed with the order. On the 7th of April, 1916, the auditor filed two additional accounts to each of which exceptions were filed. The exceptions were sustained by an order of June 14, 1916, and by which the funds in the hands of the receivers[***12] were distributed in accordance with an account which the Court appears to have stated upon its own motion. This account charged the receivers with the sum of $4,024.72, and credited them with commissions and claims against the funds, including the claim of Rittenhouse Fleury Company, amounting to $1,545.67,-- [*61] leaving the sum of $2,479.15 for distribution. This balance was distributed as follows:

To Robert L. Werntz, 1/2                          $ 1,239.57
To Emerson Brantingham Implement Company
  on account of claim against Jewell
  and Evans                                         1,239.57
                                                  $ 2,479.15

 

   A counsel fee of $100.00 was allowed to Messrs. Wells and Strahorn to be borne by the creditors in proportion to their respective claim. From this order Robert L. Werntz and George W. Evans appealed.

   The only questions raised by the appeal are:

   First. To what proportion of the funds in Court for distribution are Jewell, Werntz and Evans entitled?
 
   Secondly. How are their respective portions to be ascertained? and

   Thirdly. Should any part of these funds to which Evans may be entitled be applied to the payment of the claim of the Emerson-Brantingham Implement Company?

   We think it is clearly[***13] shown by the evidence, as it is admitted in the answer of George Jewell, that it was understood and agreed that George W. Evans was to receive one-third of the net profits realized from the contract, and the evidence is to the effect that it was due to his influence that Werntz was induced to become interested in the work and to give it his financial assistance. We agree with the lower Court in its holding that by the true construction of the contract between Jewell and Werntz, dated November 27th, 1911, Werntz is entitled to one-half of the net profits of the work, but Evans was not a party to that contract, was not consulted about it, and was not aware of its existence until sometime after its execution and after the work had been commenced. He was not bound by it, and it could not have the effect of lessening or destroying his rights under the [*62] agreement which all parties admit. We, therefore, hold that under the evidence the net profits of the contract should be apportioned as follows, viz: one-half, or three-sixths to W. L. Werntz; one-third, or two-sixths, to George W. Evans, and one-sixth to George Jewell. The testimony as to the circumstances under which the contract [***14]of November 27th was concluded shows conclusively that Jewell was helpless unless he yielded to Werntz for an increased share of the profits. It is manifestly impossible to ascertain in dollars and cents the one-sixth interest of George Jewell in the net profits of the contract unless an accounting between him and the work be had. All the parties are before the Court, and all their rights should be settled in this proceeding. This ought not to be difficult to do on the evidence. Indeed, there is no reason to think that it will not be agreed to. The evidence shows that Jewell should be charged with certain amounts, and that he is entitled to certain credits. For instance, Evans and Werntz should pay their proportions of the premiums on the bond and Jewell should be credited with one-sixth of whatever amount it may be found he has diverted, and he should be allowed a reasonable sum for the rental of the two rollers used on the work. We agree with the lower Court that Robert L. Werntz should not be allowed for personal services, nor for interest charged on notes negotiated at the National Bank of Baltimore, as it was his duty under the contract of November 27th to furnish the money necessary[***15] to carry on the work.

   Should any part of the profits to which it may be found that Evans is entitled be applied to the payment of the judgment of the [**960] Emerson-Brantingham Implement Company? This judgment was recovered against George Jewell for the unpaid balance on a roller which he bought and used on the work. So far as this case is concerned it is unnecessary to decide whether the undertaking to build this section of road constituted a partnership or not, because the evidence is clear that in buying the roller Jewell did not act as a member of a [*63] partnership, or in his capacity as agent. On the contrary, it shows beyond question that he acted as principal and individually, and bought the roller for his own use, and afterwards charged rent for its use upon the work. The judgment was against him in his individual capacity. The roller was his own, and bought upon his own individual responsibility. Under such circumstances, even if it could be held that there was an existing partnership, there would be no partnership liability arising out of the purchase. The rule is well established that "in order that a firm may be bound by the acts of a partner or other agent[***16] acting within his authority, the person whose acts it is sought to impute to the firm must have acted in his character of agent and not as principal. If he acted as principal and not as agent, he alone is liable for such acts." 22 Eng. & Am. Ency. Law, p. 163, and cases there cited.

   A motion has been made to dismiss the appeal upon the ground that the rights of all parties are concluded by the decree of January 10, 1916, from which no appeal was taken. But Werntz could not appeal from that decree because it sustained his exceptions to the auditor's account and directed a new account to be stated in conformity to the views expressed in the opinion. No appeal could be taken from the opinion of the Court. The appeal was properly taken from the order or decree of June 14, 1916, which settled and adjudicated the rights of the appellants in the fund in the hands of the receivers. The motion to dismiss must be denied. For the reasons herein expressed the order appealed from must be reversed and the cause remanded for further proceedings in conformity to this opinion.

   Order reversed, with costs and cause remanded. 

F. CONRAD STOLL vs. FRANCIS SMITH, JAMES CLINTON MEWSHAW ANDDESSIE ESTELLE MEWSHAW, HIS WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
129 Md. 164; 98 A. 530; 1916 Md. LEXIS 136

 June  23, 1916, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  adverse possession, equitable estate, legal estate, appointed, deed, cestui que trust, different rule, exclusive possession, sufficient reason, ratification, continuous, church, eighty, decree

COUNSEL: Thos. Burling Hull, for the appellant.
 
D. List Warner (with whom were Benson & Karr and John D. Nock on the brief), for the appellees.

JUDGES: The cause was argued before BOYD, C. J., THOMAS, URNER, STOCKBRIDGE and CONSTABLE, JJ.

OPINIONBY: STOCKBRIDGE

OPINION: [*164] [**530] STOCKBRIDGE, J., delivered the opinion of the Court.

   By the bill of complaint in this case the Court was asked to specifically enforce a contract of sale for two acres of land in Anne Arundel County. The defendant answered and set up as the ground for defense that the appellees could not convey a good and merchantable title.

   [*165] The land in question was part of a larger tract of twenty acres. This had been sold in December, 1830, by William Legg as trustee under a decree of a Court of Chancery to the predecessor in title of the vendors in the contract of sale, the appellees here, and he and his heirs have been in actual, continuous and exclusive possession of the property since that time, a period of more than eighty years.

   The sale[***2] made by Legg, trustee, was duly reported to the Circuit Court for Anne Arundel County, and an order of ratification nisi duly passed. The docket entries of that Court do not show any final ratification of the sale, and the proposed vendee under the contract refuses to carry out the sale, alleging this defect as a sufficient reason.

   It is not understood as denied that if the sale of 1830 had been between individuals, the title of the appellees would be good by adverse possession, but it is urged that because of the fiduciary character in which Legg was acting when he made the sale, a different rule applies, and that no limitations can run as against a trustee. The case of Sharp St. Station v. Rother, 83 Md. 289, 34 A. 843, is relied on as sustaining this position.

   That case differs from the present in one important particular, which at once distinguishes it, namely there was nothing to show the conditions under which the church entered into possession of the property, and whether or not there was a reverter if the lot was used for other than the purposes specified in the deed.

   While at one time the objection now urged on behalf of the appellants would have[***3] been a valid one, the contrary has been the accepted rule ever since the decision of LORD HARDWICKE, in Llewellin v. Mackworth, 2 Equity Cases Abridged 579, and it has been held that an adverse possession sufficient to bar the legal estate of a trustee was also sufficient to bar the equitable estate of a cestui que trust. In some States this has been regulated by statute, while in others the same result has been reached by the Courts independent of any statute. A good example of the latter class is Snyder v. Snover, 56 N.J.L. 20, 27 A. 1013. Certain land had been conveyed to [*166] six trustees for the purpose of erecting a church with restrictions against permitting any other use of it. The original trustees and their successors had held the land for the purposes of the trust for many years, when a dispute arose with Snover over a right of way which he was using across a portion of the land, and which he claimed to have become entitled by prescription. In deciding the case the Court said: "A stranger may by adverse possession against a trustee for the requisite period of time bar both the legal estate of the trustee and the equitable estate of[***4] the cestui que trust." The same doctrine has been fully recognized in this State in a very careful and thorough opinion by JUDGE ALVEY, in Crook v. Glenn, 30 Md. 55, and again acted on in the case of Love v. Rogers, 118 Md. 525, 85 A. 771.

   It has been suggested by the appellants that a distinction is to be made between a trustee appointed by a Court of Chancery and one appointed by a deed, and a different rule applied in one case than in the other.

   It is sufficient to say in regard to this that none of the adjudicated cases draw any such distinction, and no sufficient reason appears why a different standard should be applied in one case than in the other.

   The case of Rieman v. Wagner, 74 Md. 478, 22 A. 72, presents many points of similarity to the present case, and while the turning point in that case was the effect upon the title to land of a lost and unrecorded paper, there is much in the language of JUDGE MILLER which is applicable to the present controversy.
 
   Without encumbering this opinion with a [**531] repetition of what was there so well said, it is the conclusion of this Court that the eighty odd years [***5] of actual, open, continuous and exclusive possession of the tract, of which the land now in controversy is a part, has given to the appellees a good title thereto, and that the decree appealed from should be affirmed.

   Decree affirmed, with costs. 

RAYMOND S. WILLIAMS, TRUSTEE, vs. J. C. ARMIGER AND BROTHER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
129 Md. 222; 98 A. 542; 1916 Md. LEXIS 141

 June  23, 1916, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, with costs to the appellees.

CORE TERMS:  heir, deed, testator, grantor, remainder, lifetime, deceased child, leaving issue, life estate, life tenant, divested, died, gift, devise, vested, die, words of limitation, proportion, conveyed, ancestor, rule of law, succession, ascertain, deceased, tenant, enlarge, decree, held in trust, offspring, convey

COUNSEL: James M. Mullen (with whom was Raymond S. Williams on the brief), for the appellant.
 
James M. Munroe, for the appellees.

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

OPINIONBY: THOMAS

OPINION: [*224] [**543] THOMAS, J., delivered the opinion of the Court.

   This appeal is from an order of the Circuit Court for Anne Arundel County sustaining an exception to a sale of a parcel of land in that county made by the appellant, Raymond S. Williams, trustee under a deed of trust for the benefit of creditors from Charles L. Solley. The exception was filed by the appellees, Josiah C. Armiger and James S. Armiger, co-partners, trading as J. C. Armiger and Brother, who purchased the property from the appellant at a public sale, and is based upon an alleged defect in the title of Charles L. Solley, who claims under two deeds, one dated September 3rd, 1896, and the other dated the 4th of October, 1909.
 
   By the first of these deeds Sarah Ann Solley, [***2] "in consideration of natural love and affection and the sum of five dollars," granted and conveyed the property therein described and containing about one hundred and fourteen acres of land to George H. Solley, "his heirs and assigns, * * * in trust for the sole and separate use and benefit of Mary W. Johnson, wife of William C. Johnson, for and during the period of her natural life and no longer, so that she, during the period of her natural life, may be permitted and suffered to have, hold, use, occupy and possess the aforesaid parcel of ground with all the rights, appurtenances and rents, issues and profits thereof to receive, take and apply to her separate use and benefit, her receipts alone being good and sufficient acquittances and discharges for all such rents, issues and [*225] profits; so that the said parcel of ground shall not at any time or in any manner be liable for any debts of her present or any future husband, and from and after the death of the said Mary W. Johnson, then in trust for all and every the children the said Mary W. Johnson now has or the child or children she may hereafter have, and their executors, administrators and assigns, as tenants in common[***3] equally, the issue of any deceased child of said Mary W. Johnson, if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled."

   By the second deed Mary W. Johnson and William C. Johnson, her husband, Stella S. Thornton and Arthur Thornton, her husband, James A. Johnson and Emma Johnson, his wife, George W. Johnson and Annie M. Johnson, his wife, Harry M. Johnson and Amanda R. Johnson, his wife, conveyed "all their right, title, interest and estate in and to" said parcel of land to Charles L. Solley, who, on the 16th of October, 1914, conveyed it [**544] to the appellant, in trust for the benefit of his creditors.

   It appears from the agreed statement of facts that Mary W. Johnson, who at the date of the sale made by the appellant was a widow and sixty-eight years of age, "had only five children," viz: Stella S. Thornton, James A. Johnson, Harry M. Johnson, George W. Johnson "and a deceased child who died in infancy, unmarried and without issue"; that Stella S. Thornton died "leaving no children"; "that there are no other children of Mary W. Johnson, * * * nor descendants of any deceased child of Mary W. Johnson, [***4] " and that George H. Solley died in April, 1914, leaving heirs, all of whom are "now of full age and reside in the State of Maryland."

   The appellant contends that the deed from Sarah Ann Solley, under the Rule in Shelley's Case and the Statute of Uses, conveyed to Mary W. Johnson the legal estate in fee simple, and that the deed from Mary W. Johnson and others operated to vest the same title in Charles L. Solley, while the contention of the appellees is that the deed from Sarah Ann Solley conveyed to the trustee the legal title, and to [*226] Mary M. Johnson only an equitable life estate, with contingent remainders to her children.

   The rule relied on by the appellant (which has been abrogated by the Act of 1912, Ch. 144, as to instruments executed after the 31st of May of that year) is, "that when the ancestor, by any gift or conveyance, taken an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately, to his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase." Or as stated in Preston on Estates and adopted by CHANCELLOR KENT, "When a person takes an estate of freehold, [***5] legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."

   The construction given to the words "heirs" or "heirs of the body" imputes to the grantor an intention to use them in their legal sense, and they are regarded as conclusive evidence of the intent of the grantor notwithstanding it may be contrary to the real intention. One of the exceptions to this rule is that where the grantor or testator annexes to the word "heirs" other words indicating that he intended to use the term in a qualified sense, as a designation of certain individuals, and that they and not the ancestor were to be the points or termini from which the succession to the estate was to take its start, then the word "heir" is to be treated as a word of purchase. For instance it is said that the words "heirs now living," "children," "issues," etc. [***6] , are words of limitation or purchase according to the manifest intention of the grantor. Ware v. Richardson, 3 Md. 505; Handy v. McKim, 64 Md. 560, 4 A. 125.

   [*227] While the word heirs, in the absence of some qualifying expression annexed to it, is under the rule treated as a word of limitation, the word "children" also has a well-recognized meaning, and unless the context clearly shows it to be otherwise intended, it signifies immediate offspring, and is a word of purchase and not a word of limitation. Stump v. Jordan, 54 Md. 619; Reilly v. Bristow, 105 Md. 326, 66 A. 262.

   In Stump v. Jordan, supra, JUDGE MILLER said: "The devise after the life estate, is not to the 'heirs,' nor to the 'issue,' but to the 'children' of the life tenant, if she have any. In its ordinary and popular signification the word 'children' means immediate offspring, and such in general is its legal construction. It is a word of purchase and not of limitation, unless the context clearly shows it to be otherwise intended. The cases in which it has a broader signification, and where[***7] it has been held synonymous with 'heirs' or 'issue' or 'descendants,' are well illustrated by the resolutions in Wild's Case, 6 Coke 17. In that case, says LORD COKE, 'it was resolved for good law that if A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail; for the intent of the testator is manifest and certain that his children or issue should take, and as immediate devisees they can not take because they are not rerum natura, and by way of remainder they can not take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation, scilicet as much as children or issue of his body.' In such a case there is no difficulty in discovering the plain intent or discerning the reason why the word 'children' should have the same effect as the word 'heirs.' The distinction between the case put and one like this, is clearly stated by the other resolution in the same case, which is this: 'But it was resolved that if a man, as in the case at bar, devises land to husband and wife, and after their decease to their children or the remainder to their[***8] children, in this case although they have not any child at the time, yet every child [*228] which they shall have after, may take by way of remainder, according to the rule of law; for his intent appears that their children should not take immediately, but after the decease of the husband and wife.'" After referring to the argument that the succeeding words of the testator, "in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law," had the effect of enlarging the meaning of the word "children" previously used, from a word of purchase to a word of limitation, and, therefore to give the first taker an estate tail, JUDGE MILLER said further: "But to this we cannot yield our assent. In the devise after the life estate the testator has used the most appropriate word, and the one usually adopted in order to avoid the operation of the rule in Shelley's Case, and to enable the children to take as purchasers, and prevent the ancestor from depriving them of the estate by alienation." In the case of Reilly v. Bristow, supra, the limitation over was in the following words: [**545] "To go and be[***9] divided between the children the lawful heirs of my aforesaid children." After referring to the argument of the appellees' counsel that the words lawful heirs explained and enlarged the preceding word, children, JUDGE PEARCE said: "Where, as here, there are two possible constructions, one of which would enlarge and the other would restrict the meaning of the word children, we think the spirit of our decisions requires us to adopt the restrictive construction which will give effect to the natural and primary meaning of the word, rather than the arbitrary meaning placed upon it by an artificial rule of law." In the case of Hall v. Gradwohl, 113 Md. 293, 77 A. 480, where the will provided that after the death of the life tenant the property should be equally divided "among her children or heirs" the Court held that the words "children or heirs" were words of purchase, and JUDGE BURKE, referring to the contention that the rule in Shelley's Case applied, said: "By that construction her 'children or legal heirs' would take nothing under the will, and the whole portion which the testator [*229] intended his daughter to take for life would be taken by her[***10] absolutely. Such a construction, which has neither reason, policy, justice, nor equity to support it, can only be sustained by giving the words 'legal heirs,' which are superadded to the word children, the arbitrary meaning placed upon them 'by an artificial rule of law.'"

   In the case at bar the deed provides that after the death of Mrs. Johnson the property is to be held in trust "for all and every the children the said Mary W. Johnson now has or the children she may hereafter have, * * * the issue of any deceased child of said Mary W. Johnson, if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled." Here the word heirs is not used, and there is nothing in the context to suggest that the grantor intended the words "child or children" to have any other than their ordinary meaning. To treat these words as words of limitation would be contrary to the manifest purpose of the grantor to convey to Mrs. Johnson only a life estate in the property, and the remainder to her children and their issue.

   The case of Cook v. Councilman, 109 Md. 622, 72 A. 404, on which the appellant relies, is[***11] very different. There the limitation over in default of children was to the heirs of the devisee of the life estate, and JUDGE BRISCOE said: "But in the case of the devise we are now considering the word 'heirs' is used as well as the word 'children,' and that word is strictly a word of limitation. The ultimate gift over to the heirs of Councilman in default of children indicates a general intent that the estate should descend to his heirs and operates to enlarge the effect of the word 'children' antecedently used." As we have said, the deed in this case contains no words that can operate to enlarge the effect of the word 'children.' On the contrary, the terms employed are those usually adopted to avoid the rule in Shelley's Case, and to enable the children of the life tenant to take the remainder as purchasers. The intent to make them, and not their mother, "the root of succession from which future takers should come" is clear, and there [*230] is no rule of law or of construction that can deprive them of the estate. In this view of the case it is not necessary to determine whether the life estate of Mrs. Johnson was converted by the Statute of Uses unto a legal estate, [***12] or whether the rule enforced in Handy v. McKim, supra, still applies in this State.

   Having determined that Mrs. Johnson has only a life estate in the property, the next question to be considered is, Did her children by uniting in the deed convey to Charles L. Solley the remainder in fee simple?

   In the case of Stump v. Jordan, supra, where the property was devised to Catherine J. Edie for life, and "at her death * * * to her children if she have any," JUDGE MILLER said: "If therefore the clause had stopped with the devise 'to her children, if any she have,' it is beyond doubt that in this State, since the Act of 1825, Ch. 119, the mother would have taken a life estate, and any child or children she might have had, would have taken a remainder in fee. It is well settled that where a life estate is carved out with a gift over to the children of the life tenant, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution, and in cases falling under this rule, the children, if any, living at the death of [***13]the testator, take an immediately vested interest in their shares, subject to the diminution of those shares (i. e., to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares, (if their interests therein are transmissible) devolve to their respective representatives." In the case of Cox v. Handy, 78 Md. 108, 27 A. 227, the testator devised certain property to his wife for life and directed that after her death it should be divided "amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled," and [*231] JUDGE BRYAN, after stating that it was "settled that where a particular estate is given, and there is a gift over to children, this gift will embrace the children living at the death of the testator, and all who may subsequently come into existence before the period of distribution," and after reviewing many decisions bearing upon the question, said: "In view of these authorities, [***14] we think that we are justified in holding that a share of the property vested in each of the children of William W. Handy (the testator) who survived him, but if any such child should leave children at his death his share was divested in favor of his children; and that it was not divested by the death of the child in the lifetime of the tenant for life without leaving children. * * * In Engel's Case (Engel v. State, use of Geiger, 65 Md. 539, 5 A. 249,) the Court said that it was unmistakably clear that the testator intended to substitute [**546] the child of the legatee who might die, in the place of the parent." In disposing of a motion for reargument JUDGE BRYAN said further: "A share of the property vested in each of the children who were living at the time of his (testator's) death, and if any child died before the period of distribution leaving children, they were substituted in his place; his share, however, was not divested if he left no children, but it went to his representatives." In that case the Court also held that the children of a child who died before the testator took their parent's share. The statements of JUDGE BRYAN were quoted with[***15] approval in the case of Hoover v. Smith, 96 Md. 393, 54 A. 102. In the case of In re Rogers Trust Estate, 97 Md. 674, 55 A. 679, the will directed the executor to convert the entire estate into money, and after paying debts, etc., to transfer what remained to a trustee to invest the same and pay the interest thereon to the testator's wife during her life, and after her death to divide the securities and interest amongst the testator's children, and provided that "in said division, the child or children of a deceased parent, if there be such, are to take in equal proportion, the share to which that deceased parent would have been entitled had he or she lived at the time of said division." The widow of [*232] the testator released all her interest in the trust fund, and his children filed a bill to procure a division of the fund on the ground that in consequence of the release an acceleration of the remainder had resulted, and that they were entitled to a division of the trust estate. This Court, in affirming the decree of the lower Court dismissing the bill, said: "By the terms of the will, it seems to be clear that his children took vested[***16] interests in the estate in equal proportions defeasible as to the share of any one of them upon his or her death in the lifetime of the widow; and in this event the share of the person so dying would become vested in his or her children. Cox v. Handy, 78 Md. 108, 27 A. 227. The period at which the division among the remaindermen is to take place as fixed by the will, is after the death of Mrs. Rogers; and if at that time, one of the children is deceased leaving a child or children then living, such child or children must be substituted in his place; but if the child so dying leaves no children, his share is not divested but goes to his personal representatives. Cox v. Handy, 78 Md. 108, 27 A. 227. We do not understand that the appellants by their counsel, dispute these conclusions. With this construction of the will it is impossible to ascertain with precision the person or persons who will be entitled to take at the period of the death of Mrs. Rogers the life tenant. That event is yet in the future, and it is not possible to determine who may be entitled when it shall arrive. The testator desired that his estate should pass to all his children[***17] share and share alike, but if any one of them is deceased at the period of his wife's death, the children or child of such deceased child shall take; and if there be no such child or children, inasmuch as the estate vested in the deceased child would not become divested by death, his share would go to his legal representatives. So that, it seems clear that if the estate be divided at the present time while Mrs. Rogers is still living the result might ensue that the several portions of the estate will finally become vested in persons other than those contemplated by the testator, and in direct contravention of his will."

   [*233] Now the deed in question provides that "from and after" the death of Mrs. Johnson the property is to be held in trust "for all and every the children" she "now has or the child or children she may hereafter have, * * * the issue of any deceased child * * * if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled," and unless the words "from and after" show that the grantor intended to postpone the vesting of the remainder until the death of Mrs. Johnson, the case falls clearly within[***18] the rule referred to, and upon the execution and delivery of the deed, each of the children of Mrs. Johnson then living took a vested interest in the property. The share of each child was liable to be diminished in order to include any child Mrs. Johnson might thereafter have, and the interest of each child was subject to be divested only by his or her death, during the lifetime of Mrs. Johnson, leaving issue, who by the terms of the grant, take the share "to which the parent of such issue if living would be entitled."

    There are cases holding that words like the words "from and immediately after" the death of the life tenant express the intention of the testator or grantor to defer the vesting of the remainder until that period. Larmour v. Rich, 71 Md. 369, 18 A. 702; Poultney v. Tiffany, 112 Md. 630, 77 A. 117. But here the words "from and after" are followed by an express grant to the children Mrs. Johnson "now has," which show that the grantor intended each of the children of Mrs. Johnson living at the time the deed was executed and delivered to take a vested remainder, subject to be divested only by his or her death, leaving[***19] issue, during the lifetime of Mrs. Johnson, and that the words "from and after" refer merely to the time of enjoyment of the estate.

   With this construction of the deed it is impossible to ascertain with certainty the persons who will be entitled to take the property at the death of Mrs. Johnson, and while the deed in question operated to transfer the interest and estate [*234] of the children who united therein provided they survive their mother or die during her lifetime without leaving issue, it cannot effect the interest or share of any child who may die during the lifetime of Mrs. Johnson, the life tenant, leaving issue.

   The deed in this case does not differ in any material respect from the deeds construed in Ware v. Richardson, supra, and Handy v. McKim, supra, and following the ruling in those cases, the remaindermen in the case at bar, by force of the Statute of Uses, take legal estates. See also Merritt v. Disney, 48 Md. 344; Hooper v. Felgner, 80 Md. 262, 30 A. 911; Graham v. Whitridge, 99 Md. 248, [**547]57 A. 609, and 39 Cyc. 219.

   The agreed[***20] statement of facts does not state when the child referred to as "a deceased child who died in infancy, without issue," died. If said child died after the deed from Mrs. Johnson and others was executed, his or her interest in the property did not pass by that deed, but vested in his or her heirs at law.

   In addition to the defects pointed out, the title of Charles L. Solley and his assignee is subject to the further uncertainty, referred to by the Court below, arising out of the fact that Mrs. Johnson is still living. The Court cannot say that she will not have other children to take vested interests in the property. In re Ricards Trust Estate, 97 Md. 608, 55 A. 384.

   For the reasons stated the decree of the Court below sustaining the exception to the sale made by the appellant must be affirmed.

   Decree affirmed, with costs to the appellees. 

OSCAR SHACKS AND ISAAC HOHBERGER, TRADING AS HOHBERGER &SHACKS, vs. HORACE FORD AND FRANCIS W. STANSBURY, TRADING AS THE UNITED HEATINGCO. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
128 Md. 287; 97 A. 511; 1916 Md. LEXIS 74

 April  5, 1916, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree reversed, and bill dismissed with costs.

CORE TERMS:  heating plant, mechanics', one-fourth, repair, materials furnished, lien claim, finished, hotel, work done, installation, stoves, plant, steam-heating, apparatus, machine, finish, hot water heating, debts contracted, contract price, installing, repaired, improved, erected, tenants, decree

COUNSEL: John S. Strahorn (with whom was Robert Moss on the brief), for the appellants.
 
Harry L. Price, for the appellees.

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

OPINIONBY: BRISCOE

OPINION: [*288] [**511] BRISCOE, J., delivered the opinion of the Court. 

   The bill in this case is filed by the plaintiff against the defendants, in the Circuit Court for Anne Arundel County, in equity, to enforce an alleged mechanics' lien, for materials furnished and work done, under a contract between the parties, to furnish and install a hot water heating plant at four stores and an apartment house on a lot of ground owned by the defendants, known as No. 33 1/2, 35, 37 and 37 1/2 West street, Annapolis, for the contract price of eleven hundred and eighty-two dollars.

    The contract for the installation of "the hot water heating plant" is dated October 10th, 1913, and the plant was installed and the work completed on the 25th of January, 1914.

   It is admitted, [***2] that the sum of $554.44 has been paid upon the contract, leaving a balance due of $627.56, with interest thereon, for which the plaintiff claims a lien, against the buildings and ground set out in the lien claim filed with the bill, under sections 1 and 2 of Article 63 of the Code, titled Mechanics' Lien.

   By section 1 of Article 63 of the Code, it is provided that every building erected and every building repaired, [**512] rebuilt, or improved to the extent of one-fourth of its value in Baltimore City and in any of the counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same, and in the counties every such building shall also be subject to a lien for the payment of all debts contracted for materials furnished for or about the same.

   And by section 2, of the same Article, it is further provided, that in all cases in which a building shall be commenced and not finished, the lien shall attach thereto to the extent of the work done or materials furnished.

   It is clearly established that a mechanics' lien is the creation of statute and to maintain and enforce it, the requirements of the statute must be substantially complied[***3] with.  Treusch v. Shryock, 55 Md. 330; Wilson v. Simon, 91 Md. 1, 45 A. 1022; Long v. Albert, 116 Md. 111, 81 A. 265; Carroll v. Waters, 108 Md. 419, 70 A. 422.

   [*289] It is clear that the plaintiff is not entitled to a lien, under section 2 of Article 63 of the Code, because according to the uncontradicted proof the building against which the lien is claimed, was finished and completed on or about August 1st, 1913, and the contract for the installing of the heating plant, was not made until October 10th, 1913.

   The witness Bean, testified on behalf of the plaintiff, that the building was completed on August 13th, 1913, and the contract was completed on that day and a settlement had between the parties. He further testified, that it was not the intention of the owners to put in a heating plant, under the original contract, but the building was to be heated by stoves and chimneys were put in by the contractor for this purpose.

   The undisputed testimony upon the part of the defendants, is to the effect that the heating plant, was not determined upon, until two months after the completion of the building, [***4] and then, the owners, decided they could get a better class of tenants by putting in a heating plant instead of the stoves then in the building. It was never intended to be a part of the original improvement to the building and was not included, in that contract. The building had been completed, the stoves put in, and the apartments partly occupied by tenants, when the contract for the heating plant, was made.

   It is, therefore, difficult to see upon what theory, it can be held, that the plaintiffs can enforce a mechanics' lien, under section 2 of Article 63 of the Code, when the building had been finished and completed two months prior to the contract for the installation of the heating plant, under which the lien claim is sought to be maintained.

   Nor is it satisfactorily shown from the proof, that a lien can be sustained, under section 1 of Article 63 of the Code. It is not alleged by the bill, nor is it stated in the lien claim that the repairs or improvement to the building was to the extent of one-fourth of its value. The answer avers that the heating plant was not one-fourth of the value of the finished building. The proof shows that it was an old building repaired, remodeled[***5] and improved to the extent of $5,000. [*290] The contract price for the heating plant was $1,182.00, but it does not appear that the improvement made by the installing of the heating plant was more or to the extent, of one-fourth of the value of the building, in which it was placed, so as to bring the claim within the provisions of the statute.

   In Stebbins v. Culbreth, 86 Md. 656, 39 A. 321, it was said, that the plaintiff was not entitled to a lien under section 1 of Article 63 of the Code, because the proof shows that the repairs or improvements upon the hotel (the same being the repair of the steam-heating apparatus erected in the hotel) did not amount to one-fourth of its entire value. It was further held in that case that a steam-heating apparatus consisting of a boiler and furnace built in the cellar of a hotel with pipes and radiators, is not a machine within section 22 of Article 63 of the Code, which provides that every machine shall be subject to a mechanics' lien in like manner as buildings.

   The case of Schaper v. Bibb, 71 Md. 145, 17 A. 935, relied upon by the appellee, is unlike this. In Bibb's case, the contract was[***6] an entire and continuous one, and the ranges and fire-place heaters, with their attachments were put and fitted in the houses, while in course of erection and construction and the Court held, that they were materials furnished for or about the finish of the house. According to the intention of the parties, they were permanent fixtures and as part and parcel of the finish of the house, and the lien was allowed. And to the same effect, is the case of Weber v. Weatherby, 34 Md. 656.

   We are of opinion, therefore, that the Court below, committed an error in allowing the lien claim in this case, and its decree must be reversed. As there can be no recovery under the mechanics' law, the bill will be dismissed.

   Decree reversed, and bill dismissed with costs. 

JOSEPH ABROMATIS vs. JOHN T. AMOS, ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
127 Md. 394; 96 A. 554; 1916 Md. LEXIS 10

 January  12, 1916, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Baltimore County, (MCLANE, J.), to which County the case had been removed from  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  declaration, prayer, rental value, ejectment, dollars, deed, entitled to recover, mesne profits, action of ejectment, notice, acre, levy, motion to strike, summons, evidence offered, objected, actual possession, tax sale, cleared, isaac, heirs, amos, voluntary appearance, right of possession, subject to review, misnomer, summoned, reasonable rental value, service of process, died intestate

COUNSEL: George E. Disney and Elmer J. Cook (with whom was Henry J. Broening, on the brief), for the appellant.
 
T. Scott Offutt and Eldridge Hood Young (with whom were James M. Munroe and John S. Young, on the brief), for the appellees.

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

OPINIONBY: THOMAS

OPINION: [*396] [**554] THOMAS, J., delivered the opinion of the Court.

   This is the second appeal in this case. It is an action of ejectment brought by the appellees in the Circuit Court for Anne Arundel County on the 21st of [**555]March, 1912, to recover a farm or parcel of land in that County and the damages sustained by them. Process was issued for Peter Abromatis and was returned by the sheriff, "Served upon Joseph Abromatis, the person in actual possession of the lands described in the declaration, and a copy of the declaration and copy of summons left with him on the 3rd day of April, 1912." On the 18th[***2] of December, 1912, leave was granted to the plaintiffs to amend the declaration by changing the name of the defendant, who had "been inadvertently called Peter Abromatis," to Joseph Abromatis, and the amendment was made accordingly. Joseph Abromatis appeared by counsel and the case was tried on the issue joined on the plea of not guilty. The plaintiffs offered in evidence several deeds for the property mentioned in the declaration, including the deeds to Isaac Amos of William, and produced evidence to show that he died intestate in Harford County, Maryland, on January 6th, 1877, seized and possessed of the property, and that the plaintiffs were his only heirs at law. The defendant then offered in evidence the record of proceedings in a tax sale of the property, made in 1892, for the purpose of collecting taxes levied in 1890, and the several deeds under which the defendant claimed from the purchaser at that sale. This evidence was objected to by the plaintiffs and was admitted by the Court subject to exceptions. The [*397] plaintiffs subsequently filed a motion to strike out the evidence, but the Court overruled the motion. The plaintiffs excepted to that ruling, and the judgment[***3] being in favor of the defendant they appealed. This Court held in Amos v. Abromaitis, 122 Md. 256, 89 A. 497, that the tax sale was void, and that the motion to strike out the evidence should have been granted, and the judgment was reversed and case remanded for a new trial.

   The case was subsequently removed to Baltimore County for trial, and on the 3rd of February, 1915, the plea of not guilty was withdrawn by leave of the Court, and the defendant filed a motion to strike out the return made by the sheriff of Anne Arundel County of the summons issued for the defendant. This motion having been overruled, the defendant filed a motion to rescind the order of the Circuit Court for Anne Arundel County granting the plaintiffs leave to amend their declaration. The Court sustained a demurrer to this motion, and the defendant then filed a plea of not guilty, and the case went to trial again on the issue joined on that plea. During the trial the defendant reserved nineteen exceptions to the ruling of the Court on the evidence and the prayers, and has brought this appeal from a judgment on the verdict in favor of the plaintiffs for the property described in the declaration[***4] and three hundred dollars damages.

   The plea of not guilty admitted the possession and ejectment by the defendant, and only put in issue the title to the premises, the right of possession and the amount of damages to which the plaintiffs were entitled. Code, Article 75, section 71; 1 Poe, secs. 275 and 630; Gibbs v. Didier, 125 Md. 486, 94 A. 100; Wallis v. Wilkinson, 73 Md. 128, 20 A. 787; Brooke v. Gregg, 89 Md. 234, 43 A. 38.

   By agreement of counsel the deeds by which Isaac Amos of William acquired title were omitted from the record, and his title to the property is admitted, and the evidence offered to show that Isaac Amos of William died intestate and that the plaintiffs are his only heirs at law is not contradicted, [*398] so that the exceptions we are to consider are important only in so far as they relate to the questions of the defendant's title and the amount of damages recoverable by the plaintiffs.

   The second, third, sixth, ninth, tenth, eleventh, fourteenth, fifteenth and sixteenth exceptions are to the rulings of the lower Court excluding the record of proceedings in the tax sale of the property[***5] referred to in the first appeal; the deeds from the purchaser at that sale and the successive owners of the land claiming through him, and evidence offered for the purpose of showing that Frank Fisher, to whom the tax bills and notice referred to in section 229 of Article 2 of the Code of Public Local Laws of Anne Arundel County was delivered as "tenant," was in fact the agent of the plaintiffs.

   As we understand these exceptions and rulings of the Court, the deed to Peter Abromatis, executed on the 19th of August, 1904, the date of the alleged ejectment of the plaintiffs by the defendant, and the deed from his heirs at law to the defendant were admitted by the Court for the purpose of showing that the possession of the defendant was bona fide, and that he was therefore entitled to be allowed for any permanent improvements on the property made in good faith. Tongue v. Nutwell, 31 Md. 302. Under the rulings of this Court on the former appeal the evidence embraced in these exceptions was clearly inadmissible for the purpose of establishing title in the defendant. Assuming, without deciding, that notwithstanding the previous decision of this Court and[***6] the statement in the report of sale of the treasurer that the tax bill, &c., referred to in section 229 of the Code of Local Laws was delivered to Frank Fisher, "tenant," it was permissible for the defendant to show that Frank Fisher was in fact the agent of the plaintiffs, the fact of such agency would not cure the defect in those proceedings. As pointed out in the opinion of this Court, section 230 of Article 2 of the Code of Public Local Laws, referred to provided that notice of the levy, &c., should be delivered to the owner, or at his residence, or mailed to him, or conspicuously [*399] posted on the premises, whereas the report of sale shows that the notice of the levy, &c., was delivered to Frank Fisher, and we said: [**556] "Section 230 does not authorize the delivery of the notice therein referred to to any one except the owner of the property," and that there was not a substantial compliance with either section 229 or 230 of the law.

   The seventeenth exception is to the action of the Court striking out the testimony of the defendant offered for the purpose of showing that he had made improvements on the land. When asked if he had made any improvements[***7] he said he had some bushes and stumps moved in 1912. This evidence was objected to by the plaintiffs and admitted by the Court subject to exception. The defendant was further asked to state what amount he expended for "cleaning up the stumps and removing the bushes," whereupon the plaintiffs objected and the Court ruled that the evidence offered was not sufficient to support a claim for improvements, and granted the motion to strike it out. The narr. alleged that the defendant ejected the plaintiffs in August, 1904, and the plaintiffs had offered evidence tending to show that the farm contained from forty to sixty acres of cleared or tillable land, and that the reasonable rental value of the cleared land during the succeeding years was about three dollars per acre a year. The defendant's witnesses had stated that about fifty or sixty acres of the land was cleared and tillable, and that its rental value was from thirty-five to sixty dollars a year. These estimates were based upon the condition of the land as testified to by the witnesses, and none of them had reference to the rental value as enhanced by the improvements testified to by the defendant as having been made by him in[***8] 1912. It is stated in 22 Cyc. 26: "In the absence of a statute to the contrary, the general rule is that the amount which a bona fide occupant of lands is entitled to recover for improvements made thereon is not the cost of the improvements to him, but the amount which they enhance the value of the property to the owner," and this is the rule [*400] recognized in this State. Jones v. Jones, 4 Gill 87; McLaughlin v. Barnum, 31 Md. 425; Long v. Long, 62 Md. 33. See also 15 Cyc. 222. Where however the rental value has reference to the improved value a different rule applies. Jones v. Jones, supra. Without further evidence of the character and extent of the improvements claimed and the extent to which it enhanced the value of the property, the evidence referred to was properly excluded.

   The first, seventh and eighth exceptions are to the admission of evidence offered by the plaintiffs to show the rental value of the property on the ground that the witnesses were not qualified to testify. Under section 71 of Article 75 of the Code, the plaintiff in an action of ejectment may recover damages [***9]for the ejectment and mesne profits down to the time of the termination of the case, and these mesne profits may be shown by proof of the probable rental value of the property. West v. Hughes, 1 H. & J. 574; Jones v. Jones, supra; Tongue v. Nutwell, supra; Tome Institute v. Crothers, 87 Md. 569, 40 A. 261; Worthington v. Hiss, 70 Md. 172, 16 A. 534. The ejectment alleged in the declaration and admitted by the plea was on the 19th of August, 1904, and the trial of the case was not concluded until the 9th of February, 1915. The verdict was for $300.00 damages, so that the jury only allowed the plaintiffs about $28.00 a year for the loss of the use of the property during the years they were deprived of the possession. According to the plaintiffs' witnesses the rental value of the property was from one hundred and twenty to one hundred and eighty dollars a year, while the lowest value given by the defendant's witnesses was thirty-five dollars a year, and the defendant testified that in 1912 he received ninety dollars rent for thirty acres of the land. There is no exception to the testimony of[***10] H. E. Haslup, one of the plaintiffs' witnesses, who stated that the rental value of forty acres of the land was three dollars an acre or one hundred and twenty dollars a year. Under this state of the record it would seem reasonably clear that the defendant was not [*401] injured by the evidence objected to, even if we assume that it was not admissible for the reason stated, and it would work a great hardship upon the parties to reverse the judgment for such an error and subject them to the costs and expense of another trial.

   There was no error in the exclusion of the evidence referred to in the twelfth and fifteenth exceptions. The witness had not seen the property since 1892, and was not shown to be competent to testify to the rental value of the property during the years from 1904 to the time of the trial.

   The fourth, fifth and eighth exceptions were abandoned by the appellant.

   The remaining exception is to the granting of the plaintiffs' prayers and the rejection of the defendant's. The objection to the plaintiffs' third prayer is waived by the agreement of counsel, and no objection is urged in this Court to part C of plaintiffs' first prayer or plaintiffs' second prayer,[***11] and the latter was approved in Wallis v. Wilkinson, supra.

   Plaintiffs' fourth prayer is as follows: "If the jury find their verdict for the plaintiffs for the land mentioned in the declaration then the plaintiffs are entitled to recover as damages what the jury may find from the evidence was the fair or reasonable rental value of the land for the time the jury may find from the evidence the defendant has been in possession of said land, not going back of the 20th of August, 1904, less such amount as the jury may find from the evidence was expended by the defendant in taxes on said land after he took possession of the same."
 
   The appellant contends that the evidence offered by the defendant shows that he did not take possession of the property until 1911, and the objection urged to this prayer is that it permitted the jury to allow the plaintiffs the rental value of the property [**557] from 1904 while limiting the allowance to the defendant for taxes to the amount expended by him after he took possession of the property. This prayer contains practically the same instruction asked for in the defendant's second and fourth prayers, and the latter was rejected [***12][*402] by the Court because it was covered by the plaintiffs' fourth prayer. The plea of not guilty admitted, as we have said, the ejectment of the plaintiffs by the defendant as alleged in the declaration, and only put in issue the title, right of possession and amount of damages plaintiffs were entitled to recover by reason of such ejectment and "detention" of the property. Under that plea the plaintiffs were entitled to mesne profits from the date of the admitted ejectment by the defendant to the determination of the case, there being no evidence to show that the plaintiffs had possession of any part of the property during that interval, and we think the prayer, when construed in the light of the admission of the plea, instructed the jury that they could allow the defendant for taxes paid during that time. But apart from that, there is no evidence in the case to show who paid the taxes on the property from 1904 to the date of the verdict, except the taxes for the years 1911 and 1912, which were paid by the defendant. The defendant could not therefore have been injured by the granting of the plaintiffs' fourth or the rejection of his second and fourth prayers.[***13]

   The exception to the rejection of the defendant's first prayer, which sought to withdraw the case from the jury, was not pressed in this Court, and the ruling was obviously correct. The defendant's third prayer, by which the defendant asked that the jury be instructed that they could, "in their discretion," allow the plaintiffs only nominal damages, was properly refused. The defendant having had the use and possession of the property the plaintiffs were entitled to recover substantial damages. B. & O. R. R. Co. v. Boyd, 67 Md. 32, 10 A. 315.

   The appellant insists as a further ground for the reversal of the judgment that the Court below erred in refusing to strike out the return of the Sheriff of Anne Arundel County of the process for the defendant, and in sustaining the demurrer to the defendant's motion to rescind the order of the Circuit Court for Anne Arundel County granting the plaintiffs [*403] leave to amend the declaration by changing the name of the defendant from Peter Abromatis to Joseph Abromatis. Assuming that these rulings of the Circuit Court for Baltimore County are properly presented by the record and that they are subject to review by [***14]this Court, it is apparent that they afford no ground for the reversal of the judgment in this case.

   The reasons assigned for the first motion are (1) that Joseph Abromatis was not in actual possession of the land at the time; (2) that the defendant was a resident of Howard County and that the process was served on him at his home in said county, and (3) that the suit was brought against Peter Abromatis, and that the Sheriff exceeded his authority in serving the process on the defendant at his home in Howard County, who was not in actual possession of the property. The obvious answer to these objections is that the defendant appeared, and without making any objection to the service of process, filed the plea of not guilty, thereby waiving all objections to the service of the summons and admitting the ejectment alleged in the declaration. In Belt v. Blackburn, 28 Md. 227, the Court said: "The voluntary appearance of a party to a suit or proceeding, must be considered as a waiver of formal notice," and in the case of Ireton v. Baltimore, 61 Md. 432, the Court held that after an appearance it is too late to object to any infirmity in respect[***15] to the service of the writ or summons, except where the appearance is made for the special purpose of raising the objection. The reason for the rule is strikingly applicable to a case like this where objections to the service of process are not made until the second trial of the case.

   The ground of the second motion is that the amendment of the declaration made "an entirely new party defendant," and the answer to this objection is that no exception was taken to the action of the Court granting the plaintiffs' leave to amend the declaration, and that there is no appeal from such an order where the amendment is authorized by statute. [*404] The motion of the plaintiffs for leave to amend the declaration recited that the defendant had been "inadvertently called Peter Abromatis," and section 37, Article 75 of the Code provides that "No writ or action shall abate because of the misnomer of any plaintiff or defendant named therein, but the Court, on suggestion, supported by the affidavit of the plaintiff or defendant or other proof to the satisfaction of the Court that by mistake the plaintiff has sued in a wrong name, or that the party summoned in virtue of said writ or action[***16] is, in fact, the party intended to be sued by such writ, or in such action, may at any time before judgment, direct the writ or any of the proceedings to be amended by inserting therein the true name of any plaintiff or defendant, at the discretion of the Court." In the case of Union Bank v. Tillard, 26 Md. 446, this section was held to apply to a misnomer of an individual defendant, and in W. Union Tel. Co. v. State, etc., 82 Md. 293, 33 A. 763, the amendment was allowed upon the statement of counsel for plaintiffs in open Court. The Circuit Court for Anne Arundel County was authorized to allow the amendment upon being satisfied that the party summoned as defendant was in fact the party intended to be sued, and leave granted in pursuance of that authority is not [**558] subject to review by this Court. Scarlett v. Academy of Music, 43 Md. 203.

   Finding no reversible error in the rulings of the Court below the judgment will be affirmed.

   Judgment affirmed, with costs. 

W., B. & A. R. R. CO., ETC., vs. WILLIAM H. MOSS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
127 Md. 12; 96 A. 273; 1915 Md. LEXIS 16

 December  4, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Howard County (FORSYTHE, J.), to which Court the cause had been removed from the Circuit Court for  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment reversed, case remanded, with leave to amend the declaration, with costs to the appellants.

CORE TERMS:  lease, dwelling, rent, salary, lunch, securing, occupied, vague, lessee, reconstruction, declaration, indefinite, station, occupy, aunt, covenant, merchandise, occupancy, adjoining, surrender, dollars, street, tickets, corner, door, void, evidence produced, expiration, altogether, prayer

COUNSEL: George Weems Williams and Edward M. Hammond (with whom was L. Vernon Miller on the brief), for the appellants.
 
Nicholas H. Green, for the appellee.

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

OPINIONBY: CONSTABLE

OPINION: [*13] [**273] CONSTABLE, J., delivered the opinion of the Court.

   In this case the appellee brought suit against three public service corporations, the Washington, Baltimore and Annapolis Electric Railroad Company, the Annapolis Public Utilities Company and the Annapolis Gas and Electric Light Company, for breach of an alleged verbal contract and declared on said contract. Before the conclusion of the trial the declaration was amended by striking out the Annapolis Gas and Electric Light Company as a defendant, and a verdict was found by the trial jury in favor of the appellee and[***2] against the two defendants, and from the judgment accordingly entered this appeal was taken.
 
   The declaration, which contains but one count, avers that the appellee on the 1st day of February, 1913, was and had been, for a number of years prior thereto, engaged in a general retail grocery business in Annapolis, with a store located at 112 College avenue, which yielded an income sufficient for the support of himself and family, and in addition was an agent of the Washington, Baltimore and Annapolis Electric Railroad Company yielding a salary and other privileges; and occupied as a dwelling the property adjoining his said store, in which he conducted a successful boarding house yielding a good return; that while he was engaged in business as aforesaid, the defendant, the Washington, Baltimore and Annapolis Electric Railroad Company and the [*14] Annapolis Public Utilities Company purchased the Annapolis Gas and Electric Light Company and desiring a more central location for a sub-station for the defendant, the W., B. & A. R. R. Co., selected the site of the plaintiff's place of business, and his dwelling as a desirable position; "and thereupon the defendants agreed and contracted[***3] with the plaintiff that upon his securing an option for the purchase of the property, so as aforesaid occupied by him, or a lease of the same, a surrender of his tenancy thereof and the closing out of his business conducted therein and thereon, to give him employment with the defendants, and in the remodeling and reconstruction of the property to provide a store for the said plaintiff, and allow him the privilege of conducting therein a lunch room and a store for the sale of such articles as are usually sold in places of like character, including tobacco, cigars, candy and ice cream; and the occupancy of the adjoining dwelling"; that acting upon the good faith of said agreement and contract [**274] the plaintiff carried out in every particular his part of the contract, but that the defendants, disregarding the said agreement failed and refused and still fail and refuse to give the plaintiff employment, and refuse to provide a store and lunch room for him and to allow him the privilege of sale on the premises as aforesaid.

   The proof offered in support of the issues joined upon the filing of the general issue pleas was substantially as follows: The plaintiff conducted a store at[***4] the corner of College avenue and Bladen street in Annapolis, and resided in the house adjoining the store; that he sold tickets for the defendant, the W., B. & A. R. R. Co., for a monthly salary of five dollars and the privilege of a pass on the defendant company's road, and, in addition to these occupations, conducted a boarding house in his dwelling. The corner on which his business was located, was directly across the street from property which was owned by the Annapolis Short Line Railroad and the houses and buildings on which were about to be torn down so as to make a small park leading from College avenue to the station of the Annapolis Short Line R. R.

   [*15] The Short Line is the rival transportation line of the appellant, the W., B. & A. R. R. The property occupied by the appellee was owned by his wife's aunt and had been occupied by him since 1899. It happened that Mr. Robert Moss, the counsel of the appellants, was also the brother of the appellee. The appellee went to his brother and sought to have him interest the officials of the W., B. & A. R. R. Co. in the advantages to be gained by it in securing the property occupied by him and converting it into a regular station[***5] and waiting room.

   Mr. Robert Moss testified that, bearing in mind the request of his brother, he took up the proposition with Mr. Bishop, the president of the appellant companies, and other officials, upon their next visit to Annapolis. "I told him, Mr. Bishop, about the property; and told him that my brother had the property, but that he would give it up under certain conditions, and I suggested that we go down and look at the property." He and Mr. Bishop went down and stood across the street from the property. Mr. Bishop wished to know what the property rented for and asked witness to find out. The witness went across and found out from his brother and continued: "I came back and told him; told him my brother would want to occupy the house, would want a place to sell sandwiches and have a little store such as was usual in places of this kind, that he also wanted a place of some kind with them, taking care of the building and selling tickets. Mr. Bishop said it seemed all right to him, but it did not appear to me that he had made up his mind to it as yet." Later in the same day the officials went to Mr. Moss' office and "I talked over with them the purchase of the property and told[***6] them that my brother (appellee) was the best one to see about this for them. They told me to send for my brother; and I went for my brother and got him there."

   The appellee testified that he went to the office of Robert Moss and met the officials and was sent to Baltimore to try to purchase the property; that his aunt would not sell [*16] the property, but on his second visit, she said she would consider a long term lease; that after several visits a lease for ten years, with the privilege of renewal for ten years, was entered into between his aunt and Robert Moss, and subsequently assigned by Robert Moss to the railroad company; that the entire negotiations for the lease were carried through by the appellee, and for which he has not received any compensation. After the execution of the lease Bishop, the president; Craig, the treasurer, and Doyle, the general manager of the appellant companies, went over and through the properties, and Bishop at that time asked him, "Mr. Moss, do you want a lunch room in here? Do you think it will pay in here satisfactorily?" That witness then produced a sketch or plan for the reconstruction, that he had made, and on the departure of the officials[***7] they took the drawing, and it proved the original idea from which the building was built. That on April 21st, 1913, the master mechanic of the railroad company came to his store and told him they were ready to proceed with the work; thereupon the appellee moved, what little merchandise he had left, into the dwelling house and turned the store building over to them; and on the same day they commenced to tear down the building and erected upon the store lot the present two-story building, now used as a station. He further testified that in the reconstruction they were not making any place for him, and he wrote the following letter to Doyle, to which he received no reply: 

   "Annapolis, Md., May 21st, 1913.
 
"Dear Sir:--

   "I now make formal demand on you to carry out the contract entered into between the President and General Manager of the W. B. and A. Electric Railroad and the Annapolis Gas and Electric Light Company, parties of the first part, and myself, William H. Moss, party of the second part, to wit: That in consideration of the party of the second part securing a lease on the property corner College Avenue and Bladen [*17] Street and closing out his general merchandise [***8]business and giving them possession of the property, that the parties of the first part would give the party of the second part privileges of said place, when completed, to sell such articles of merchandise as are usually sold in stations, and employment with said parties of the first part at a fair salary. Said contract to date from April 1st, 1913."

   Witness further testified that after he knew no place had been provided for a lunch room for him Doyle offered him a position as meter reader at a salary of fifty dollars a month, but that witness had refused it, for he thought if he was not to have a lunch room [**275] he should have a position paying one hundred dollars a month. That he moved out of the dwelling house July 1st, 1913. 

   Mr. Robert Moss testified further that sometime after the execution of the lease he met Mr. Bishop in Annapolis, and I told him they were not satisfying my brother. "I said, I told him, as I understood it, my brother was to occupy the house, that he wanted an eating room there or a store room, a small one there, and he wants to work with you. My idea about that is that he could be of service to you, and so earn the money that you would get for[***9] rent for these two places. If you can give him something like that or equal to that, he can make a living and be of service to you, and that he was a sober and well-behaved fellow. Mr. Bishop said: 'All right, I want to satisfy you.' These were the last words Mr. Bishop said to me." After the appellee had called his attention to the fact that in the reconstruction no place was being provided, the witness wrote under date of May 28th, 1913, to Mr. Bishop: 
 
"Dear Sir:--

   "I came to Baltimore today to see you, but have been unable to do so and have to return to Annapolis for a meeting at half-past four. I had a talk with my brother and he would like to rent the house at $25.00 [*18] per month, have a door cut from the new building into one of the rooms of the dwelling so that he could use that room for the purpose of furnishing lunches, cigars, etc., in this room of the dwelling he now occupies.

   "He would also take charge of the building and sell tickets from such time in the afternoon as the other men left, until twelve o'clock at night, and then in the morning from the early car until the day men arrive. During the day he would solicit business for the company, and, of[***10] course, would understand that if he did not make a success of it, you could not pay him as much as if he did make a success of it. He thinks he ought to have $65.00 per month, $25.00 of which he would pay back to the company for rent each month. * * *

   "I was urgent to see you today because if the door is to be cut, Mr. Doyle ought to be told about it so it could be done before the building is completed. My brother would designate the place where the door is to be cut."

   No reply was made to this letter.

   We have so fully set forth the evidence produced on behalf of the appellee relating to the alleged contract, for the reason that the appellants by their fifth prayer asked the Court to instruct the jury that inasmuch as the alleged contract mentioned in the evidence was too indefinite and vague to entitle the plaintiff to recover against the defendants, or either of them, that therefore their verdict should be for the appellants. Of course, we have not set forth nor considered any of the testimony of the appellants unfavorable to the position of the appellee for it is not necessary to even cite authorities to sustain the proposition that in considering a prayer to withdraw a[***11] case from the consideration of the jury, "the Court must assume the truth of all the evidence produced before the jury, tending to sustain the claim, or defense as the case may be, and all inferences of fact fairly deducible [*19] from it as on demurrer to the evidence; and this though such evidence be contradicted, in every particular by the opposing evidence in the cause." Jones v. Jones, 45 Md. 144.

   So we have seen from the testimony the negotiations were principally carried on by Robert Moss with the officials of the appellants and there cannot be said to be any lack of definiteness, either from his or the testimony of the appellee, as what the appellee was to do in the performance of his part, although there may be a difference, at times, as to which one of the appellants or how many the alleged contract was being made with. We will assume, however, for the present point, that the agreement was entered into with both the appellants. However when we come to consider what the appellants were to do we find the same witnesses at one time claiming more and at another time claiming less was to be done by the appellants. For instance, the appellee in his letter [***12]to Doyle, makes no claim for the right to occupy the dwelling while in other parts of his testimony this claim is made. But considering in the most favorable aspect to the appellee, the appellants were (1) to allow the appellee to occupy the dwelling, (2) in the remodeling of the property, to provide a store for him and allow him the privilege of conducting a lunch room and store therein, and (3) to give him employment.

   Nowhere was a word of testimony produced showing when the tenancy was to begin, when end, or how long was it to continue, nor what rent was to be paid. As far as the rent is concerned, the witnesses admitted the occupancy was not to be free, but they expected the amount to be taken into consideration in fixing the salary for employment, or in other words to be deducted from the amount otherwise would be allowed as salary. The letter of Robert Moss of May 28th shows this was the proposition made by him at that time, and so far as the record discloses this was the first and only time the amount of rent was mentioned; and this letter was never answered. What has been said as to the dwelling applies [*20] with even more force to the occupancy of the store. In the[***13] promise to employ, the character of the employment was not fixed or determined, nor the amount of salary, nor the duration of the term of employment.

   "The law is too well settled" said JUDGE MILLER, in Thomson v. Gortner, 73 Md. 474, 21 A. 371, "to admit of doubt, that in order to constitute a valid verbal or written agreement, the parties must express themselves in such terms that it can be ascertained, to a reasonable degree of certainty, what they mean. And if an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; for neither the Court nor the jury can make an agreement for the parties. Such a contract can neither be enforced in equity nor sued upon in law."

   [**276] In the case of Delashmutt v. Thomas, 45 Md. 140, which was a suit on the breach of a covenant which was in these words; "the said Delashmut to have the preference of renting said property as long thereafter as it shall be rented for a store," the Court said: "Here there is no covenant to renew the former lease, nor any stipulation whatever either as to the time, for which the lessee might have preference[***14] or privilege to rent; nor with regard to the rent to be paid. 'A covenant to let the premises to the lessor at the expiration of the term without mentioning any price for which they are to be let * * * is altogether void for uncertainty.' Taylor Land. & Tenant, sec. 333. Construing the contract in the most favorable way for the lessee, it left to the lessor the absolute right to fix the rate of rent, and the terms upon which he would let the property to the lessee after the expiration of the term. Such a contract was altogether vague and uncertain, and conferred no definite rights upon the lessee which he could enforce either in law or equity." See also Blakistone v. German Bank, 87 Md. 302, 39 A. 855; Gelston v. Sigmund, 27 Md. 334; Myers v. Forbes, 24 Md. 598; Howard v. Carpenter, 11 Md. 259 and Dorsey v. Wayman, 6 Gill 59.

   [*21] It is equally well settled that no action will lie on the breach of a contract of employment unless there is a definite time fixed for the continuance of the employment. The reason for the rule is that the hiring would be one merely at will[***15] and could be terminated at the pleasure of either party. McCullough Iron Co. v. Carpenter, 67 Md. 554, 11 A. 176; Wood on Master & Servant (2nd Ed.), sec. 133 and 81; Blaisdell v. Lewis, 32 Me. 515; S. F. & W. R. Co. v. Willett, 43 Fla. 311, 31 So. 246; Louisville & Nashville R. R. v. Offutt, 99 Ky. 427, 36 S.W. 181; Shaw v. Woodbury Glass Works, 52 N.J.L. 7, 18 A. 696; Harrington v. Brockman Com. Co., 107 Mo. App. 418, 81 S.W. 629; Morrison v. Ogdenburg & Lake Cham. R. R. Co., 52 Barb. 173.

   In the light of these authorities the conclusion is inevitable that the Court should have instructed the jury that the alleged contract was unenforceable because of its indefiniteness, and vagueness in the essentials we have pointed out.

   We are conscious of the feeling that apparently the enforcement of these rules of law under the facts of this case, does not do full justice to the parties, yet it is not for courts to make contracts for parties, but to maintain, unimpaired, the established rules of law.

   Although we have found it necessary to[***16] declare the contract sued upon invalid for the purpose of sustaining an action, yet, nevertheless, we are strongly of the opinion, that, if the facts are as testified to by the appellee and his witnesses, the appellee is not without a remedy. If he were, it would be a sad reproach upon the law. Still of course, assuming the truth of the facts as established by the appellee, we have on one hand a man giving his efforts and time in securing a thing of value for another in addition to giving up that which may have had value to him, with the expectation of full compensation for his efforts and sacrifices, and on the other hand, a party freely accepting and enjoying these, but unwilling to pay therefor. There can be no doubt, that independently of the alleged contract, the appellee has a right [*22] of recovery for the services rendered for the benefit of the appellant, the W., B. & A. Electric R. R., in securing the lease from his aunt for it, as well as compensation for the surrender of his lease to the premises, if he had a lease that had a value. The testimony of the appellee, standing alone, shows that but for him and his peculiar location, the W., B. & A. Electric R. R. Co. would [***17]not, nor could not have secured the present site of their station, and it is too clear for argument that some compensation should be due the one whose labor and sacrifice accomplished this result.

   Though we, by our per curiam heretofore filed, reversed the judgment for the error already indicated, we will remand the case in order to allow the appellee an opportunity to amend his declaration so as to conform to the views herein expressed, or to dismiss the present action and institute a new suit for the recovery of such compensation as shall be found to be due him for what he did towards the securing of the said lease and the surrender of his own lease and possession, whichever he shall prefer.

   Judgment reversed, case remanded, with leave to amend the declaration, with costs to the appellants. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY AND JOSHUAS. LINTHICUM, LATE TREASURER, vs. MAYOR, COUNSELOR AND ALDERMEN OF THE CITY OFANNAPOLIS AND ANNAPOLIS WATER COMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
126 Md. 445; 95 A. 40; 1915 Md. LEXIS 147

 June  23, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (In Equity.) (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed, with costs to the appellee.

CORE TERMS:  stock, taxation, shares of stock, exemption, capital stock, charter, exempt, shareholder, water, stockholder, elected, franchise, engrafted, speaking, sinking fund, maturity, demurrer, actuated, managed, motives, incorporation, exempted, embrace, Code of Public General Laws, water furnished, subject-matter, hypothecated, endeavoring, subscribed, redemption

COUNSEL: Edgar Allan Poe, the Attorney-General, Ridgely P. Melvin and James M. Munroe, for the appellants.
 
Nicholas H. Green and Robert Moss, for the appellees.

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

OPINIONBY: PATTISON

OPINION: [*446] [**40] PATTISON, J., delivered the opinion of the Court. 

   In this case the Circuit Court for Anne Arundel County granted a preliminary injunction restraining the commissioners of said county and Joshua S. Linthicum, treasurer of said county and collector of the State, county and school taxes for the year 1912, from "advertising and selling," for the payment of such taxes, the property assessed on the books of said county in the name of the Annapolis Water Company.

    A demurrer thereafter interposed to the bill, which was overruled, raised the question, which is the one now before us, whether the property so assessed to the Annapolis Water Company is exempt from taxation under Article 81, section 4, of the[***2] Code of Public General Laws, exempting from taxation "property in this State belonging to the United States, or to this State or to any county of this State, or incorporated city or town in this State."

   The Annapolis Water Company, one of the appellees, was incorporated by the Acts of 1865, Chapter 123, for the purpose and object of supplying the City of Annapolis with pure water for private and public uses. Its capital stock was limited to two thousand shares, each of the par value of five hundred dollars, of which stock the corporation of the City of Annapolis and the State of Maryland were each authorized to subscribe to an amount not to exceed twenty thousand dollars. The company was to be managed by "a president and four directors," elected by the stockholders, each stockholder being entitled to one vote for every share of stock owned by him.

   Both the State and City of Annapolis, in the exercise [**41] of the authority so conferred upon them, subscribed to the stock of the company and paid in the amounts so subscribed by them respectively. In addition to this, other stock was taken [*447] by persons in their individual capacity. The company was thereafter duly[***3] organized and proceeded to exercise its corporate rights and privileges in accordance with the provisions of the Act aforesaid.

   Thereafter, Chapter 322 of the Acts of 1904 was passed, providing that 

   "The Mayor, Counsellor and Aldermen of the City of Annapolis are hereby authorized and empowered to purchase stock of the Annapolis Water Company, in their discretion, whenever the same is for sale, and may borrow for the purchase thereof, and may use said stock as an offset to the debt incurred therefor, and as collateral for the purchase money; provided, that after having purchased stock in the corporate name of the City of Annapolis for the benefit and use of said City, it shall not be alienated or hypothecated for any other debt whatsoever."

   Subsequently, Chapters 86 and 118 of the Acts of 1912 were enacted, both of which were approved on the same day. The first of these provides: 

   "Sec. 2. And be it enacted, That immediately after the passage of this Act a general meeting of the stockholders of the said company shall be called for the purpose of electing directors of said company, and said company shall be managed by a board of directors, elected by the party or parties[***4] holding a majority of the stock in said company, consisting of three persons, none of whom need be stockholders in said company, and none of whom except the Mayor, as hereinafter provided, shall be a member of the corporation of Annapolis, and one of said directors shall be elected to serve for six years and who will also act as president of the company by virtue of his election; another director shall be elected for the term of four years, and another director shall be the person who may be the Mayor of the City of Annapolis, and who will serve during his term of office; * * * and all vacancies in said board, whether by death, resignation or otherwise, [*448] shall be filled by the person or persons holding a majority of the stock of said company."

    "Sec. 4. Be it enacted, That the Mayor, Counsellor and Aldermen of the City of Annapolis are authorized and empowered to acquire all the capital stock of the Annapolis Water Company and operate said company under said charter or any enlargement or amendment thereof to the extent of its stockholding therein."

   The aforesaid Chapter 118 provides for the issuance of bonds by the City of Annapolis to the amount of $100,000, and[***5] that such "bonds and the proceeds of sale of the same shall be used and applied for the purchase of the stock of the Annapolis Water Company or to pay off the indebtedness which the said Mayor, Counselor and Aldermen of the City of Annapolis, or its Finance Commission acting under its authority, may have assumed in respect to the purchase of stock of said water company; and the said bonds with the interest due and to become due thereon, are hereby declared to be a first lien upon the interest of the Mayor, Counselor and Aldermen of the City of Annapolis in the stock and property of the Annapolis Water Company, or its successors, and the stock of said company owned by the Mayor, Counselor and Aldermen of the City of Annapolis shall be placed on the books of said company in the name of the Mayor, Counselor and Aldermen of the City of Annapolis as Trustee, so long as said bonds are outstanding, as security for the payment of the said bonds and interest, as and when the same become payable; and should the said obligation not be paid as and when the same become payable, then the bondholder's lien may be enforced as other liens are enforced in equity."

   The Act also provides for the creation[***6] of a sinking fund of $2,100 per annum for the redemption and retirement of said bonds at maturity. And it was further provided in the Act that "The said Mayor, Counselor and Aldermen of the City of Annapolis are hereby required and directed to maintain such a schedule of charges for water furnished its customers [*449] by the Annapolis Water Company, to be uniform in every particular, as will make the profits accruing to said Mayor, Counselor and Aldermen of the City of Annapolis from its interest in the Annapolis Water Company sufficient in each and every year, to create and maintain the sinking fund to redeem and retire said bonds at maturity and to pay the interest thereon when and as the same may be due and payable."

   The bill alleges that in the exercise of the right conferred upon them, "The Mayor, Counselor and Aldermen of the City of Annapolis, on the 28th day of December, in the year 1911, purchased the entire capital stock of the Annapolis Water Company; and this fact is admitted by the demurrer.

   As we have said, the only question to be determined upon this appeal is, whether such property is exempt from taxation under the provisions of section 4 of Article 81 of the[***7] Code.

   In the early case of the Mayor and City Council of Baltimore v. the B. & O. R. R. Co., 6 Gill 288, the claim was made that under the charter of the B. & O. R. R. Co. (Acts of 1826, Chapter 123, section 18), which provides that the "shares of the capital stock of said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen," its shares of stock may be exempt from all taxation, but such exemption in nowise protects the specific articles of property of the company from taxation. In discussing such claim our predecessors said: "If such a specific property be deemed liable to the imposition of taxes, no sufficient reason can be assigned why the franchise should not be subject to the like imposition. It is as much an ingredient in the shares of stock, and component part of their value, as is any portion of the corporate property of the company; and if under such an express legislative exemption as that now before us (section 18 of said charter), the one be exempt from taxation, so also is the other." And thereafter in its opinion the Court said the shares of capital stock embrace every species of[***8] property owned by the company.

   [*450] In the case of the County Commissioners of Anne Arundel County v. Annapolis and Elk Ridge R. R. Co., 47 Md. 592, the assessors appointed under the General Assessment Law assessed and returned to the County Commissioners of Anne Arundel County all the property of the appellee. The latter, under said Act (section 28), filed a petition to have the property stricken from the assessment [**42] list, upon the ground that the Acts of 1836, Ch. 298, by which it was incorporated, had engrafted upon its shares of stock the same exemption from taxation that had been engrafted upon the shares of stock of the Baltimore & Ohio R. R. Co. by its Act of incorporation, Acts of 1826, Chapter 123, section 18, and that the exemption from taxation thus granted, protected forever all the property of the appellee from taxation. The Court, however, held that by a proper construction of section 5 of the Act of 1836, the exemption granted to the B. & O. R. R. Co. by section 18 of its Act of incorporation, was not engrafted upon the shares of the appellee company, but said, speaking through JUDGE ALVEY: "If it be true, as contended by the appellee, [***9] that such exemption was made, then * * * it is settled, by repeated decisions of this Court, which we are not disposed to disturb, that the exemption of the shares of the capital stock operates as an exemption of the property of the corporation, or so much of it as the corporation is fairly authorized to hold for the proper exercise of its franchises; and this upon the principle that the shares of the stock in the hands of the shareholders represent the property held by the corporation."

   In deciding the later case of State v. B. & O. R. R. Co., 48 Md. 49, where suit was brought to recover from the appellee a tax imposed by the Act of 1872, Chapter 234, on the gross receipts of all railroads incorporated by, and doing business in, this State, it became necessary for the Court again to construe section 18 of Chapter 123 of the Acts of 1826, incorporating the Baltimore & Ohio R. R. Co. JUDGE ROBINSON, speaking for the Court, said: "This section has been the subject of judicial construction, and it is necessary [*451] therefore in the first place, to understand precisely what has been decided. In the Mayor and City Council v. The Balt. & Ohio R. R. Co., 6 Gill 288,[***10] power to tax the real and personal property, and the capital stock of the company, and its shares of stock in the hands of the shareholders, was the question, and the sole question, before the Court, and after full argument, all the Judges were of opinion that no such power existed, and that the 18th section of the appellee's charter exempted the property and capital stock, and shares of stock, from taxation."

   The exemption under the aforesaid charter, as expressed by it, referred only to the shares of stock of the company; it was silent as to the property of the company. Nevertheless, the Court held that in exempting the shares of stock of the company, it exempted as well the property of the company from taxation. It is true the Court in that case said: "The question, however, is not whether the shares of stock, abstractly considered, embrace and represent the property and franchises of the appellee. Strictly speaking, it may be true that a shareholder is not the legal owner of any portion of the property of the company, and his shares of stock are evidences only of his right to participate in the business and government of the corporation, and to a proportional share of the[***11] profits earned by the company." This was said, however, with no intention of disturbing the law, as previously laid down, when applied to the case then before it or when applied to cases of the character now being considered by us, and the Court thereafter was careful to say that they were not dealing with abstract definitions, but endeavoring to ascertain how far and to what extent the Legislature meant to exempt the corporation from taxation. "We are not bound therefore by the literal meaning of the words of the statute, but must look to the connection in which they are used, the subject-matter to which they are applied, and the motives and objects which actuated the Legislature in conferring this privilege on the appellee."

   [*452] So it is in this case. We are not dealing with abstract definitions, but are endeavoring to ascertain the intention of the Legislature as to its meaning in the use of the term "property belonging to any incorporated city or town in this State," and in arriving at such intention we are to consider the motives and objects which actuated the Legislature in the passage of such Act, and the subject-matter to which the term is attempted to be applied. [***12]

   The motives and objects which actuated the Legislature in the passage of the Act were, no doubt, to relieve the public of the burden of taxation upon property held by it for its use and benefit, and not for the use and benefit of private shareholders, which has been acquired by it through and by the imposition of burdens upon it, either by direct taxation or otherwise.

   Under the provisions of the original charter of the appellee company, the City of Annapolis was limited and restricted in the extent to which it was permitted to subscribe to the capital stock of the company, the remainder of the stock was to be issued to the State of Maryland and to individuals in their private capacity, and under these provisions of the charter the company was organized. Subsequently, by successive Acts, it is clearly shown that it was the intention of the Legislature that the City of Annapolis should not only become the owner of the entire stock of the company, but that it should manage, control and operate the company, through the agency therein mentioned, as fully and to the same extent as if the charter of the company had been granted directly to the City.

   The subsequent Acts referred to conferred[***13] authority upon the City to purchase the entire stock of the company, to be held by it for the benefit and use of said City, and when once purchased it was "not to be alienated or hypothecated for any other debt whatsoever," and under this authority the City acquired the entire stock of the company.

   The affairs of the company are managed by three directors, one of whom is the Mayor of the City and the other two are [*453] named by the City. The Mayor, Counselor and Aldermen of the City are required to fix and maintain the schedule of charges for water furnished to consumers, which are to [**43] be uniform in every particular, and the profits accruing therefrom to the City shall be sufficient to create and maintain the sinking fund for the redemption, at maturity, of the bonds issued by the City to purchase said stock, as well as to pay the interest thereon, when and as the same may become due and payable.

    Applying the principles of law above stated to the facts of this case, we have no difficulty in reaching the conclusion that not only is the stock of the company owned by the City, but the aforesaid property appearing upon the assessment books of the county in the name of[***14] the Water Company belongs to the City of Annapolis, a municipal corporation, within the meaning of section 4 of Article 81 of the Code of Public General Laws of this State, and that such property is exempt from taxation.

   The order of the Court below overruling the demurrer to the bill will therefore be affirmed.

   Order affirmed, with costs to the appellee. 

STATE TAX COMMISSION vs. EMERSON C. HARRINGTON, COMPTROLLER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
126 Md. 157; 94 A. 537; 1915 Md. LEXIS 120

 May  12, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed, with costs to the appellee.

CORE TERMS:  general counsel, salary, appoint, appointed, appointment, duties, charter, sovereignty, senator, requisition, demurrer, elected, import, councilman, speaking, legislative authority, legislative intent, oath of office, public officer, sustaining, incumbent, extending, authorize, conferred, singular, oath, school commissioner, question presented, municipal official, powers conferred

COUNSEL: Isaac Lobe Straus (with whom was Charles C. Wallace on the brief), for the appellant.
 
Edgar Allan Poe, the Attorney General, for the appellee.

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

OPINIONBY: PATTISON

OPINION: [*158] [**537] PATTISON, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County sustaining a demurrer to the appellant's petition and dismissing said petition. The prayer of the petition asks that a writ of mandamus be issued directed to the defendant, Emerson C. Harrington, Comptroller of the Treasury of the State of Maryland, commanding and requiring him to pay to the petitioner, the State Tax Commissioner, the sum of $1,750.00, consisting of two items each for the amount of $875.00, for the payment of the salaries of its general counsel, Edward M. Hammond and William W. Beck, for the period of the seven months from the first day of June, 1914.

   The facts are undisputed. [***2] The State Tax Commission, created and established by Chapter 841 of the Acts of 1914, on or about the first day of June, 1914, under the alleged authority conferred upon it by the provisions of said Act, appointed the said Edward M. Hammond and William W. Beck, general counsel to said commission. The said Edward M. Hammond and William W. Beck are now and were at the time of the passage of said Act of 1914 and at the time of their appointment as general counsel to said commission, State senators from Howard and Kent Counties, respectively.

   The demurrer to the petition assails the validity of the said appointment of Senators Hammond and Beck, 1st. Because, [*159] as urged by the appellee, it is in violation of section 17 of Article 3 of the Constitution, which provides that "No senator or delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time for which he was elected be eligible to any office which shall have been created, or the salary or profits of which shall have been increased, during such term;" and 2nd. Because the provision of said Act authorizing and empowering the commission to "appoint an attorney at law of[***3] the State of Maryland to be and act as the general counsel of said commission," conferred no power upon it to appoint more than one attorney as such general counsel, and that in appointing both Senators Hammond and Beck it exceeded the power so conferred upon it.

   We will consider and decide these questions in the order in which they are presented.

   We will, first, determine whether "general counsel" to the commission is an office [**538] within the meaning of said section 17 of Article 3 of the State Constitution. So far as we have been able to find, this Court has never defined nor has it been called upon to define what is or what is not an office within the meaning of this section of the Constitution. It has, however, determined in a number of cases what is and what is not an office within the meaning of other sections of the Constitution and certain statutes of the State. As it is easier to conceive the general requirements of an office than to express them with precision in a definition that shall be entirely faultless, the Courts have ordinarily, in the different cases considered by them, passed upon the facts of each case and reached their conclusion from such facts whether [***4] the essential requirements of an office were or were not found therein.

   It will be found, however, by consulting the cases and the authorities, that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the State. Thus, in Mechem Pub. Off., par. 4, it is said: "The most important characteristic which distinguishes [*160] an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer." Atty. General v. Jennings (Ohio), 49 N.E. 404.
 
   As was said by this Court in School Commissioners v. Goldsborough, 90 Md. 193: "The nature of the duties, the particular method in which they are to be performed, the end to[***5] be attained, the depository of the power conferred and the whole surroundings must be all considered when the question as to whether the position is a public office or not is to be solved." In that case the question presented was whether a school commissioner was an officer under section 15 of Article 2 of the Constitution, which provides that the Governor may remove, for incompetency or misconduct, all civil officers who receive appointment from the executive for a term of years. It was there held that a School Commissioner was not an officer under said section and Article of the Constitution, and JUDGE MCSHERRY, speaking for the Court, said: "Civil Officers are governmental agents--they are natural persons-- in whom a part of the State's sovereignty is vested or reposed, to be exercised by the individuals so entrusted with it for the public good. The power to act for the State is confided to the person appointed to act. It belongs to him upon assuming the office." And quoting from Collins v. N. Y., 3 Hun 680, the Court also said: "Probably the true test to distinguish officers from simple servants or employes is the obligation to take the oath prescribed by law. [***6] "

   In Baltimore City v. Lyman, 92 Md. 591, 48 A. 145, the question presented was whether the Superintendent of Public Instruction in the City of Baltimore is a municipal official within the meaning and intent of section 26 of the City Charter, which provides that "No person shall at any time [*161] hold more than one office yielding pecuniary compensation under the Mayor and City Council of Baltimore. All municipal officials, except females, shall be registered voters of the City of Baltimore."

   This Court in that case, quoting from JUDGE COOLEY in the case of Throop v. Langdon, 40 Mich. 673, said: "The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath and perhaps to give an official bond, in the liability to be called to account as a public offender for misfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general." And in the discussion of that case this Court said, speaking through JUDGE BRISCOES "The Superintendent of Public[***7] Instruction is not appointed by the Mayor, or elected by the people, or appointed by joint-convention of the two branches of the Council. He takes no official oath, gives no official bond, has no commission issued to him, and has no fixed or definite tenure of office, but is appointed at the pleasure of the School Board. * * * And all executive power, relating to educational matters is vested in the department known as 'the Department of Education,' and this department is composed of the Board of School Commissioners. The Superintendent of Public Instruction exercises no power except what is derived from and through this board. He is simply, then, an employee or the agent of the School Board and not a municipal official, within the meaning of the Charter."

   In the case of Clark v. Harford Agri. & Breed. Asso., 118 Md. 608, 85 A. 503, the question was, are the members of the Racing Commission appointed under the Act of 1912, Chapter 132, persons "elected or appointed to any office of profit or trust under the Constitution or under the laws made pursuant thereto, and as such required to take and subscribe the oath required by the Constitution before they enter upon[***8] the duties of the position to which they were appointed." We there held that it was not an office of profit and trust and [*162]that they were not required to take the oath prescribed by the Constitution, and in reaching this conclusion we followed the reasoning in the cases of the School Commissioners v. Goldsborough and Baltimore City v. Lyman, supra.

   In Truitt v. Collins, 122 Md. 526, 89 A. 850, in which the question here involved was last before us, after stating the law as we have here stated it and as laid down in the cases of School Commissioners v. Goldsborough, Baltimore City v. Lyman, Clark v. Harford Agri. and Breed. Asso., and other cases therein mentioned, including the case of Attorney-General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058, reported in 17 Am. & Eng. AnnoCases 449, we held [**539] that the position of councilman in the municipal corporation of the Mayor and Council of Snow Hill was an office of profit within the meaning of Article 35 of the Declaration of Rights, and that it was an office of profit and trust within the meaning of section 6 of Article 1 of the Constitution. [***9] In reaching this conclusion, JUDGE BURKE, in speaking for the Court, said: "That it is an office in some sense can not be denied. It is spoken of in the Act as an office and it certainly is one of profit and trust. An examination of the charter will disclose that many of the powers of sovereignty were conferred upon the corporation. An enumeration of some of these sovereign powers of government will be found in section 16 of the charter. Section 6 of the charter declares that any person elected as Mayor or Councilman shall, before he enters upon the duties of his office, make oath before the Clerk of the Circuit Court for Worcester County, that he will diligently and faithfully, without favor, partiality or prejudice, perform the duties of such Mayor and Councilman." And it was "in view of the duties and the nature and extent of the powers conferred by the Act of 1894, Chapter 455, upon the Mayor and Council of Snow Hill and of the fact that the Mayor and Councilmen were required to take an oath of office before entering upon their duties" that we held that such position was an office of profit within the meaning of Article 35 of the Declaration [*163] of Rights, and an office[***10] of profit and trust within the aforesaid provision of the Constitution.

   The meaning of the word "office" necessarily varies with the connection in which it is used, and to determine it correctly in a particular instance, regard must be had to the intention of the Constitution or statute, as the case may be, and the subject-matter in reference to which the term is used. It is true the meaning of the term "office" as given in the cases to which we have referred had reference to other sections of the Constitution and to certain statutes of the State, and not to the section of the Constitution now before us, and the meaning placed thereon in those cases was more or less dependent, as we have said, upon the connection in which said term was there used, but after a careful examination of this section, with the view of determining the meaning of the term "office," we are unable to find such a distinguishing difference in the connection in which it is there used, and the connection in which it is used in the cases to which we have referred, as to warrant us in giving to it a meaning different from that established by such cases.

   The difficulty in extending its definition or in giving the[***11] term "office" a more comprehensive meaning is that we must at some point draw the line in determining what is and what is not an office within the meaning of this section of the Constitution. If it is to include employment and position, not office as defined in such cases, is it to mean all positions and employment incident to such legislation? We think not. And therefore the difficulty is in saying just where we are to draw the line as to what is and what is not meant by this term. Thus we are unable to find any better definition of the term or any better guide by which we should be governed than the essential requirements established by the cases and authorities above mentioned.

   In view of said cases and authorities stating what is and what is not an office, the position of general counsel to the State Tax Commission is not, in our opinion, an office within the meaning of the constitutional provision here involved.

   [*164] There is nothing in the case of Robb v. Carter, 65 Md. 321, 4 A. 282, in which the question whether the position of City Solicitor was an office was not especially presented, in conflict with the conclusion we have reached when the distinguishing[***12] facts of that case and the reasons upon which the decision rests are considered.

   In the case before us the commission may, under the provisions of the statute, appoint general counsel, but it is not required to do so. The salary and tenure of the employment are not fixed, no oath of office is required, no official bond is given, no commission issued, and the incumbent exercises no sovereign power, but only such power as is derived from and through the State Tax Commission, and is simply an employee or agent of the commission.

   We are now to consider the question whether the State Tax Commission in the appointment of two persons as general counsel to such commission acted within the power and authority conferred upon it by the aforesaid Act of 1914, Chapter 841.

   The commission construed the provisions of the Act as authorizing and enabling it to appoint two attorneys-at-law to act as its general counsel, and the petition alleges that "in view of the number and variety of legal questions likely to arise with reference to different sorts of property and interests and under divers conditions in the various parts and sections of the State, it was in the judgment of said commission[***13] reasonable, proper and desirable to appoint as counsel to said commission two attorneys, one residing and practicing his profession mainly on the Eastern Shore, and the other residing and practicing his profession mainly on the Western Shore of the State of Maryland, so that thereby the said commission might have the advantage of consultation with and where it became necessary of representation in court by counsel conversant with the people, property, interests and conditions and the practice and customs of the courts in each of said natural and extensive geographical divisions of the State," and so appointed Edward M. Hammond, [*165]of the Western Shore, and William W. Beck, of the Eastern Shore, as general counsel to said commission.

   The petition further alleges that "on the 25th day of November, 1914, by a resolution or order of the State Tax Commission, duly appointed, the salary of the said counsel to the commission was fixed at $3,000.00 per year, beginning on the first day of June, 1914, [**540] and the Secretary of the commission was instructed to draw a check at the regular time for the payment of salaries for $1,500.00, payable to the order of said Messrs. Beck[***14] and Hammond, for six months' salary." And that on or about the 10th day of December, 1914, the State Tax Commission, pursuant to the aforesaid resolution, sent and delivered to the defendant, the Comptroller of the Treasury of the State of Maryland, "a requisition for salaries for the members of the commission and its secretary and its various employees, including two items for $875.00 each, with which to pay the salaries of its said counsel, Edward M. Hammond and William W. Beck, for the period of seven months ensuing the first day of June, 1914, the said counsel having entered upon their duties as aforesaid upon said first day of June, 1914, and having since said date continuously and satisfactorily rendered and performed all services, as counsel to the commission, which the commission requested or required of them," but that the said defendant "has declined and refused to honor the same in respect to said two items of $875.00 for the salary of said counsel to said commission, and * * * has declined and refused to pay to the said Tax Commission the amount due for the salaries of the said counsel to the commission as specified and called for by said requisition; * * * and that the[***15] said defendant * * * still refuses and declines to pay to the said commission the said sum or any sum whatsoever for the salary or compensation of said Messrs. Hammond and Beck as counsel to the State Tax Commission."

   The language of the statute authorizing and empowering the commission to appoint general counsel is as follows: "The [*166] commission may appoint an attorney at law of the State of Maryland to be and act as the general counsel of said commission, whose salary shall be fixed by said commission."

   This language of the statute clearly authorizes and empowers the commission to fix the salary of the general counsel to the commission, which it, by its aforegoing resolution, fixed at three thousand dollars, and the result of appointing two rather than one attorney as general counsel to the commission may be conducive to its general efficiency; but does the language used authorize and enable the commission to appoint two attorneys as general counsel, even though the salary so fixed is divided between them?

   "Statutes should be interpreted according to the most natural and obvious import of their language, without resorting to subtle or forced construction, for the[***16] purpose of either limiting or extending their operation." Dwarris on Statutes, 144.

   "It is only in cases where the meaning of a statute is doubtful, that Courts are authorized to indulge in conjecture, as to the intention of the Legislature, or to look to consequences in the construction of the law."

   "When the meaning is plain, the Act must be carried into effect according to its language, or the Courts would be assuming legislative authority." Cearfoss v. State, 42 Md. 403; Scott v. Reid, 10 Peters 524.

   The words of the Act are first to be resorted to, and if these are plain in their import they ought to be followed.

   The language here is "The commission may appoint an attorney at law to be and act as general counsel." The effort is made by the appellant to extend the meaning of this language so as to enable the commission to appoint more than one attorney at law.

   The meaning of the language of the statute does not to us admit of doubt, its meaning is clear and obvious. The commission is to appoint an attorney at law. And when we construe these words with the words that follow, "to be and act as general counsel of said[***17] commission," we find nothing in [*167] these latter words indicating that more than one attorney was intended. Nor is there anything in any other part of the statute, when considered in connection with the language "an attorney at law to be and act as general counsel," that would warrant the construction that the authority of the commission was not confined to the appointment of one attorney.

   The statute authorizes the appointment of an attorney to act as general counsel. The term "general counsel" as here used implies something more than an attorney who is employed from time to time for each separate occasion when advice of counsel is needed, and the amount of whose compensation is regulated and determined by the value of such special services so rendered. The general counsel, when once appointed, is to act generally as counsel to the commission in relation to all matters pertaining to it and concerning which his legal advice is sought by the commission, until his appointment is revoked. It is counsel of this character that the commission is authorized, under this provision of the statute, to appoint, and "whose salary shall be fixed by the commission," and under[***18] this provision of the statute the commission is, we think, confined to the appointment of one attorney.

   In support of the contention of the appellant, our attention is directed to 36 Cyc., page 1123, in which it is said, "When necessary to give effect to the legislative intent, words in the plural number will be construed to include the singular, and words importing the singular only will be applied to the plural of persons and things." This, no doubt, is a proper rule of construction, but it has no application in this case, for such a construction is not necessary in order to give effect to the legislative intent.

   It is further urged by the appellant that their contention should be sustained by reason of the provision of Code (section 7 of Article 1), which provides that "The singular shall always include the plural, and vice versa, except where such construction would be unreasonable."

   [*168] [**541] In the recent case of Shehan v. Tanenbaum, Son & Co., 121 Md. 283, 88 A. 146, we were called upon to construe section 14 of Article 1 of the Code. We there said: "The appellee relies upon the Rule of Interpretation as it appears in section[***19] 14, Article 1, of the Code (1912), providing that 'The word person shall include corporation, unless such a construction would be unreasonable.' But if such construction is without the clear meaning and intention of the Legislature it would be unreasonable to so include it. And although the rule is to be followed in some cases it cannot override the clear intention of the Legislature."

   What we there said as to section 14 of Article 1 of the Code applies with equal force to section 7 of said article of the Code. There are, no doubt, many cases in which the rule should be applied in order to give effect to the legislative intent. In this case, however, such necessity does not exist, and if we were to apply the rule we would, in our opinion, be assuming legislative authority.

   The requisition made upon the defendant, the Comptroller of the Treasury of Maryland, was for the aforesaid sums of money for seven months' salaries to be paid to Messrs. Hammond and Beck as its general counsel, and as we here hold that the commission was without authority to appoint two attorneys to be and act as its general counsel, the defendant, in our opinion, was right in refusing to honor[***20] the requisition and pay over the money to be applied for such purposes, and the Court below, in sustaining the demurrer to the petition and in dismissing the petition asking for a mandamus requiring him to pay said money, committed no error.

   It follows, from what we have said, that the order of the Court below sustaining the demurrer and dismissing the petition will be affirmed.

   Order affirmed, with costs to the appellee. 

CALEB C. MAGRUDER, ET AL. vs. STATE ROADS COMMISSION. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
125 Md. 525; 94 A. 153; 1915 Md. LEXIS 234

 May  7, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (In Equity.) (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, the appellants to pay the costs, above and below.

CORE TERMS:  gap, miles, highway, map, improved, appropriation, built, balance in hand, county seat, dollars, secondary, filling, bridge, decree, localities, general system, rights of way, miscellaneous, appropriated, interfering, northerly, expended, estimate, spent, interfere, roadbed, difference of opinion, mandatory injunction, funds appropriated, large discretion

COUNSEL: S. S. Field, for the appellants.
 
Leon E. Greenbaum, for the appellee.

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

OPINIONBY: BOYD

OPINION: [*526] [**154] BOYD, C. J., delivered the opinion of the Court. 

   The appellants, some of whom are taxpayers of Prince George's County and others of Anne Arundel County, filed a bill for in injunction against the members of the State Roads Commission, (a) to restrain them from expending any portion of the Road Loans Fund provided for by Chapter 267 of the Acts of 1914, allowed to Prince George's County, upon the road from Meadows to Camp Springs, or upon any other road not a part of a main gap of the State Roads system selected by the State Roads Commission in 1909, etc.; and (b) praying that a mandatory injunction may also be issued at once compelling the defendants to apply the amount of $74,536, the balance claimed to be in hand for road construction[***2] in Prince George's County, only upon what is called the "Old Stage Road." After an answer was filed and testimony taken, the Court below passed a decree dismissing the bill, and from that decree this appeal was taken. 

   Chapter 141 of the Acts of 1908, which created the State Roads Commission, provided for "the establishment of a system of public roads and highways, in Maryland." It directed in section 32H (now sec. 40 of Art. 91 of the Code of 1912) that "The general system of public roads hereinbefore provided for in this Act shall be completed as soon as may be feasible by the said Commission, the time for the completion thereof, not to exceed, however, seven years from 1st day of July, 1908; and the aggregate and total expenditures of the said Commission for said purposes shall not exceed the sum of five million dollars ($5,000,000), of which sum not more than one million dollars ($1,000,000) shall be expended in any one year, accounting from said 1st day of July, 1908." It is manifest that when that Act was passed the stupendous undertaking in which the State was engaging was not fully realized, as at each session since then the Legislature has been called upon to pass laws on[***3] the subject and make additional appropriations. State Road Loans have been authorized since 1908 as follows: $1,000,000 in 1910, $3,170,000 in 1912 and $6,600,000 in 1914, or [*527]$10,770,000 since the original Act, in addition to smaller sums appropriated for the State Road purposes. In considering the Act of 1908 we must therefore remember that it was then providing for a system, the cost of which was not to exceed $5,000,000, while now there has been spent and authorized over three times that amount, and there is not yet sufficient to complete the system as originally contemplated and shown by the maps filed under the provisions of section 32B of the original Act, which is as follows: "The said Commission, in addition to the powers hereinbefore mentioned, shall have full power and be charged with the full duties to select, construct, improve and maintain such a general system of improved State roads and highways as can reasonably be expected to be completed with the funds herein provided in and through all the counties of this State. The said Commission shall reach its conclusions as to the selection of the roads to be improved on or before May 1, 1909, and shall on[***4] or before that date file with the County Commissioners of each county for public inspection a certified copy of a map of the State showing plainly thereon the adopted system of main roads to be improved under this Act, which map shall bear the written approval of the said Commission."

   If it was supposed that the "general system of improved State roads and highways" could thus "reasonably be expected to be completed with the funds" therein provided "in and through all the counties of this State," those making the estimate fell far short of what it would require. Certain it is that all of the roads selected in Prince George's County, for example, could not have been built with improved material with the amount appropriated before May 1st, 1909, when the map was required to be filed, and had not the State Roads Commission had very great discretion vested in it the construction would probably not have been commenced without further legislation. That Commission had to determine which of the various roads they had selected for improvement should be improved, and it could not then have [*528] been contended that the Court could require the Commission to improve the "Old Stage Road" [***5] first, or second, or in any particular order. There is nothing in the selection of the five roads selected, and hereinafter mentioned, designating the order in which they should respectively be improved.

    But it is contended on behalf of the appellants that Chapter 267 of the Acts of 1914, which appropriated $5,000,000 to the counties and $1,600,000 to building a bridge over the Patapsco River from Baltimore City to Brooklyn, and the balance, if any, to the streets of Baltimore City, contains a provision which does require the money to be applied to the "Old Stage Road" in preference to the two contemplated by the Commission which are now objected to. The said sum of five million dollars was by section 8 of Act of 1914 appropriated to the several counties by regular appropriation on county road mileage basis (as the original Act did) and by special appropriations. By it Prince George's was entitled to $108,800 on the mileage basis and $116,200 as special appropriation, making $225,000 in all. Following the various appropriations to the counties is this provision: "That the five million dollars ($5,000,000) provided for the counties shall be expended in paying for the work already [***6]done in counties in excess of previous allotments, in finishing the [**155]work now under construction and not completed, and shall then be applied, first, to filling in the main gaps of the system, and that the balance remaining thereafter shall be applied to secondary gaps for necessary bridges, for rights of way, for over-head expenses, for the construction and maintenance of the Washington Boulevard ($50,000), and for other miscellaneous purposes."

   About $57,000 of the $225,000 was used in paying for work which had been done in that county prior to the Act of 1914, in excess of previous allotments, so that only about $168,000 was available at the beginning of the operations in 1914. Five routes were determined upon prior to May 1st, 1909, in accordance with the Act of 1908. The following resolution was adopted by the Commission on October 5th, [*529] 1908: "Final location of roads in Prince George's County. Dr. Remsen moved that the road to be selected as a State Road in Prince George's County shall start from the Charles County line, near Mattawoman by way of T. B., Clinton, Camp Springs, Silver Hill to the District Line; from the District Line by way of the Washington-Marlboro[***7] Pike to Oakland, Forestville, Meadows to Marlboro; from the District Line over the Central Avenue road to Seat Pleasant to Hall Station to the Patuxent River near Hardesty, by the most direct route; from Bladensburg on the Washington Boulevard by the way of Buena Vista, Collington to Priest's Bridge, and from a point near Camp Springs, on the road from Charles County to the District Line, to Meadows, on the Washington and Marlboro Turnpike, or as much thereof as the funds will permit. The motion was seconded by Governor Crothers, and adopted." In the answer, those roads are named, and as the evidence refers to them as there numbered it will be convenient to quote from the answer:

   "(a) A road running from Bladensburg to Priest's Bridge and known as the 'Old Stage Road,' being of about fourteen miles in length. (b) A highway known as the Central Avenue Road, running from the District Line via Seat Pleasant Hall to Hardesty, being of about fourteen miles in length. (c) A highway running from the District of Columbia via Oakland, Meadows, Marlboro to Hill's Bridge, being of about sixteen miles in length. (d) A highway running from the District of Columbia line via Silver Hill, Camp Springs, [***8] Clinton, T. B., to the Charles County line, being of about sixteen miles in length. (e) A highway running from Camp Springs to Meadows, there connecting with the highway referred to as (c) herein, being of about three miles in length."

   Of the $168,000 available at the beginning of the operations in the year 1914, about $9,400.00 was used on road (d) from T. B. to Mattawoman, about $18,000 on road (b) from the District Line to Seat Pleasant, about $38,700 on road (b) from Seat Pleasant to Largo, and about $36,800 for resurfacing on route (d) from the District Line to Camp Springs, [*530] and apparently several thousand dollars in addition were spent, but not explained in the testimony, which shows a balance of about $63,000 to be used on the roads in that county which were still unfinished when this bill was filed. As the estimate is that it would cost about $154,000 to build the Old Stage Road, it is evident that that can not be built out of the balance in hand, and if the $63,000 were spent on it there would be a gap of six or eight miles left on it in Prince George's County, in addition to what there would be beyond the Anne Arundel line. Then on what is called the[***9] Central Avenue Road, which runs from the District Line to the State Road near Annapolis, which is conceded to be one of the main lines laid out by the Commission, only 2.23 miles have been completed and 2.59 are under contract, making 4.82 miles in all. That will leave nine miles of that road in Prince George's County unprovided for. As according to the estimate it would cost nearly $100,000 to complete it, that could not be finished with the balance in hand. There is nothing whatever in the original statute or any of the subsequent ones which indicates any intention to give the Old Stage Road a preference over all of the other four selected in 1909. It is true that in the resolution of October 5, 1908, in speaking of the one from Camp Springs to Meadows, it said "or as much thereof as the funds will permit," but even if it be conceded that that could be a limitation on the Commission, or would give the Old Stage Road a preference over the one from Camp Springs to Meadows, that would not be a reason for giving it a preference over the Central Avenue Road (b) and, as we have seen, nine miles of that is yet to be built. It would seem to be much more businesslike and desirable to use [***10]the balance in hand in completing the Central Avenue Road than to expend it on the Old Stage Road. So without now referring to other matters, it is unnecessary to discuss further the branch of the case by which it was sought to obtain a mandatory injunction to compel the defendants to apply the balance (erroneously stated to be $74,536) only upon said Old Stage Road. There is no foundation [*531] for such demand, and if the Commission had granted it, it would simply have resulted in making a gap in a road which had not been commenced when the Act of 1914 was passed, or when the bill was filed.

   The Commission intends to use the balance in hand to build a road from Camp Springs to Meadows and one from Marlboro to Hill's Bridge. No specific reference is made in the bill to the latter, and the only way by which it could be said to be included in the bill is the effort to have all the balance expended on the Old Stage Road, and the general clause in the prayer--"or upon any other road not a part of a main gap of the State Road System selected" in 1909-- the appellants contending that it is not a main gap. There can be no doubt from the record that one of the roads selected by the[***11] Commission before May 1, 1909, was the one marked (c) above. It is true that originally it seems to have been intended, by the meeting of October 28, 1908, to stop that road at Marlboro, but on April 29, 1909, it was on motion of Mr. Shoemaker, seconded by Dr. Remsen, extended from Marlboro to Hill's Bridge, and that entire [**156] road was one of the five selected for Prince George's County and put on the map adopted on May 1, 1909. That would give a completed road from the District Line to the Anne Arundel line and only two and a half miles are required to complete it.

   The other gap objected to is from Camp Springs to the Meadows. That is about three miles long. Neither that nor the one just mentioned above has yet been constructed, but the Commission proposes to do so, if not prevented by this proceeding. It is estimated that the road from Marlboro to Hill's Bridge will cost about $25,000 and from Camp Springs to Meadows about $36,000--the two absorbing most of the balance in hand. One of the five roads adopted October 5, 1908, for this county was "from a point near Camp Springs on the road from Charles County to the District Line to Meadows, on the Washington and Marlboro [***12]Turnpike, or as much thereof as the funds will permit." By the construction of those three miles from Camp Springs to [*532] Meadows, there will be a State Road from La Plata, the county seat of Charles County, through Upper Marlboro, the county seat of Prince George's County, to Annapolis, the capital of the state and county seat of Anne Arundel County. The same can be said from Leonardtown, the county seat of St. Mary's County, as the State Road running through Leonardtown joins the one from La Plata to the District Line before the latter reaches Camp Springs. Then there will be a State Road from Prince Frederick, the county seat of Calvert County, via Upper Marlboro to the District Line, or anyone desiring to do so can go to Camp Springs and then down to La Plata. One of the projected roads in Southern Maryland, as shown by the maps with which we have been furnished, was from Solomon's Island, at the lower end of Calvert County, in a northerly direction through Calvert County, passing through Prince Frederick, thence into Anne Arundel County to Annapolis. Another from Point Lookout, the extreme southern end of St. Mary's, runs northerly through that county to Charles and through[***13] part of Charles until it intersects the road going through La Plata to the District Line. Another runs from Rock Point, the southern end of Charles County, northerly through Charles on to the District Line. There were three roads laid out to run easterly and westerly, as shown on the map--the one from Camp Springs through Upper Marlboro, the Central Avenue Road referred to above and the Old Stage Road. If the roads are properly laid down on the map the Central Avenue Road can not be much longer than the Old Stage Road, and is only a few miles distant from it.

   We have stated the facts thus fully because they seem to us to shed much light on the question before us. We have no doubt about the right of the courts to prevent the State Roads Commission from diverting funds appropriated by the Legislature for the building and improvement of one road or set of roads to the construction of another or others, but to justify a Court in interfering with the powers and the [*533] large discretion vested in that Commission, it would have to be very clearly shown that it was improperly using such funds. What we said in Weller v. Mueller, 120 Md. 633, 87 A. 1045, on that[***14] subject, must suffice, without further discussion of it. The State Roads Commission necessarily had very delicate questions to solve in locating the roads. Sometimes those of one part of a county have felt aggrieved at the action of the Commission because they located a road differently from what they wanted, and in many, possibly most, instances, those complaining were perfectly honest in their contentions, and, perhaps naturally, thought that their part of the county was better than another part for the road in question. It required firmness, intelligence and tact to deal successfully with such controversies. Presumably, at least, and we may acknowledge it as a fact, those engaged in that character of work are better qualified to determine the localities of roads and the material out of which they are to be made, than courts are, and when the members of the Commission have settled the difficult problems they often have before them, the courts should be very cautious when they are asked to interfere with them. In 1908 and 1909, there were many new questions to be determined by the Commission, and one amongst the most difficult of settlement was the character of roadbeds to be made. [***15] When the first appropriation was made, 1908, very few, if any, of those interested in the good roads movement had any very definite idea of what the cost would be, or possibly that such expensive material as concrete would be used to any extent in building roads. So now we must look at the question somewhat differently from what we might have done then.

   It is not a question of building new roads, as suggested by the appellants, for all of the roads before us were in contemplation, but the question is which of those shall be built with the money now in hand. It is not altogether clear, just what was intended by the expression "first, to filling in the main gaps of the system, and that the balance shall be [*534] applied to secondary gaps, for necessary bridges, for rights of way * * * and for other miscellaneous purposes." Bridges might be required in filling in "main gaps." It might have been necessary to obtain and pay for rights of way before the main gap could be filled in, for it is not unusual to be necessary to acquire additional property after such work is begun, in order to improve the grade or make some change which is only found to be necessary after the work is started, [***16] and when no expenditure will be required for "miscellaneous purposes" the system may be regarded as practically perfect. So the legislature could not have meant that [**157] payment of all those things must in all cases be postponed to filling in what are called "main gaps."

   It must be remembered that the legislation was for the road system of the whole State, and not simply for five roads in Prince George's County. In some localities there would be no difficulty in determining what would be meant by "main gaps" and "secondary gaps." For example, take the great highway running through the western part of the State. Those familiar with it know what a beautiful roadbed could be found at places on both sides of some miles of road which would spoil, or at least greatly detract from the pleasure of the trip. For some reason many of the State Roads seem to have been built in sections, the result being a few miles of splendid road, some miles of what would be almost a misnomer to call a road, and then perhaps another good one. Sometimes there will be what is known as a main road and what are merely side or branch roads. In such localities and under such conditions, anyone could see the[***17] distinction between main gaps and those on some local road, but in such case as we have before us, the members of the Commission who give their time to the work, would be better qualified to draw the line between those classes of gaps than judges or others would. If their judgment about such matters is liable to be reviewed by the courts every time there is a difference of opinion about them, much of the State's money will be frittered away and [*535] the time of the Commission and their agents and employees largely occupied with litigation.

   There is no evidence of such a gross error or failure of duty on the part of the Commission in this case as calls upon or authorizes the Court to interfere. On the contrary, there is much to be said in favor of the conclusion it reached. To use the balance on hand on the Old Stage Road would make a gap, rather than fill one, as no part of that road has been built. The Central Avenue Road is not far from it and runs practically parallel with it. But beyond that, the gaps which the Commission propose to fill are manifestly important ones, and will for reasons shown above be of great service to the people of Southern Maryland. The Commission[***18] properly takes into consideration the system of road it is building, and not merely a part of it in one county. The system can not be advantageously worked unless the connections, etc., by the roads in one county with those of other counties are kept in mind. Certain it is, in our judgment, that neither the road from Camp Springs to Meadows, which connects the roads in Southern Maryland running north and south, by joining the one numbered (d) with that numbered (c) above, or the road to Hill's Bridge, which completes that road through the county, is so clearly a secondary gap, and not a main gap of the system, within the meaning of the statute, as would justify the Court in interfering with the Commission. So without further discussion of it we will affirm the decree.

   Decree affirmed, the appellants to pay the costs, above and below. 

WILLIS E. OVERTON vs. EMERSON C. HARRINGTON, COMPTROLLER OFTHE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
126 Md. 32; 94 A. 325; 1915 Md. LEXIS 109

 April  16, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)

DISPOSITION: Order reversed and cause remanded, with costs to the appellant.

CORE TERMS:  license, mesh, food fish, purse, fish, buck, fishing, catching, boat, non-food, season, purse net, ownership, sentence, qualification, ambiguous, ascertain, preamble, caught, food, force and effect, subject matter, plainly expressed, penalties imposed, natural import, cardinal rule, line drawn, bona fide, subject-matter, accomplished

COUNSEL: Tazewell T. Thomas (with whom was John H. Elliott on the brief), for the appellant.
 
Nicholas H. Green, for the appellee.

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

OPINIONBY: CONSTABLE

OPINION: [*33] [**326] CONSTABLE, J., delivered the opinion of the Court.

   The appellant sought by mandamus proceedings to compel the Comptroller of the Treasury of the State of Maryland, the appellee, to issue to him a license, under the provisions of Chapter 828 of the Acts of 1914, for a purse or buck net to be used exclusively for catching a species of non-food fish called menhaden. Upon trial before the Court without a jury, the petition was dismissed and from that order, this appeal was taken.

   Chapter 828 of the Acts of 1914, amending Chapter 740 of the Acts of 1908, provides: 

    "Section 2-A. No person shall at any time be allowed to fish with purse nets at any point in the Chesapeake Bay above or north of a line drawn east from Robin's Point on the Western Shore to Handy's Point[***2] on the Easern Shore of Maryland.

   "Section 2-B. No person shall fish with purse or buck nets within the State of Maryland south of the line drawn from the line aforesaid due east to the Eastern Shore without first obtaining a license so to do from the Comptroller of the Treasury, and then only from June 15th to November 1st of each year, and the applicant shall pay the sum of twenty-five dollars for each and every purse or buck net owned and operated by him, whereupon the Comptroller shall issue to such applicant a license or licenses to operate such purse or buck nets, and all moneys arising from [*34] said license shall be paid into the State Treasury for the maintenance of the State Oyster Navy, and any person failing to procure such a license and violating the provision of this section shall be guilty of a misdemeanor, and, on conviction, shall be subject to the fines and penalties imposed by section 3 of this Article and to the penalties imposed by the Statutes of Maryland for failure to procure licenses wherever required by law. It shall be unlawful to use a purse or buck net with a mesh less than three inches for the catching of food fish, and no license shall be issued[***3] by the Comptroller of the Treasury for the use of a purse or buck net with a mesh less than three inches, and unless the steam or sail boats used in connection with purse or buck nets have been owned by bona fide residents of the State of Maryland twelve months before the issuing of said license."

   Menhaden are very small fish and cannot be caught in a net having a mesh as large as three inches; and the contention of the appellant is that the restrictions, found in the last sentence of Section 2-B, and relating to the size of the mesh and the ownership of the boats used in connection with the nets, only apply to those fishing for food fish; and that the only restriction upon those applying for purse net licenses for the purpose of catching other than food fish, other than the payment of the license money, the limits of the fishing grounds and the season, as contained in the first sentence of the section, is that found also in the first sentence of the section, to wit, that the applicant should be the owner and operator of the nets. On the other hand, the appellee contends that his authority to issue licenses is wholly contained in the Act under discussion and he can issue no[***4] license for the use of a purse or buck net with a mesh less than three inches, no difference to what use it is to be put, whether for catching food or non-food fish.

   The rules for the construction of statutes are well established and defined, and they all refer to and are used for arriving at the intention of the Legislature.

   [*35] As was said by this Court in Clark v. Baltimore, 29 Md. 277: "To ascertain this (intention of the Legislature), we are first to consider the words employed, and interpret them according to their plain, ordinary and natural import, having some regard to their order and grammatical arrangement. If they are clear, precise and unambiguous, the Legislature must be understood to mean what it has plainly expressed." But, where the language is obscure or ambiguous, the Courts are not confined to it, but may make use of extraneous aids to arrive at the meaning, such as a view of the subject matter, the necessity of the legislation and the object of the Legislature. Shehan v. Tanenbaum, 121 Md. 283, 88 A. 146. The intention is to be gathered from a consideration of every part of the statute, thus, giving force and effect [***5]to it as a whole. Miller v. Cumberland Cotton Factory, 26 Md. 478; State v. Archer, 73 Md. 44, 20 A. 172. "Statutes must also be construed with special reference to the subject matter legislated upon, and with reference to the manifest mischief the Act was intended to remedy." Mitchell v. State, 115 Md. 360, 80 A. 1020. These are a few of the very many cases in this State dealing with the construction of statutes, but should be sufficient for the purposes of this case.

   That the language of the statute is ambiguous must be conceded. In the first portion of Section 2-B, it provides, in effect, that the Comptroller, on the application of anyone [**327] owning and operating a purse or buck net, shall issue to him a license for the use of such net during a certain season and within certain boundaries; while by the latter part of the same section, it directs that he shall issue no license for a purse or buck net with a mesh less than three inches and not then unless the boats to be used in fishing the nets have been owned by bona fide residents of this State.

   Let us examine the contention of the appellant, that these[***6] latter restrictions apply only to those fishing for food fish. We do not have to assume that the Legislature was familiar with another industry in the fishing business other than food fisheries, for by the words of the statute, they evidenced that [*36] knowledge by providing that it should be unlawful to use a purse net with a mesh less than three inches for the catching of food fish; thereby, indicating that other than food fish were sought after.

   An examination of Chapter 740 of the Act of 1908, which was amended by the Act in question, throws some light upon the subject. By the preamble it appears that whereas fishing with purse nets had a tendency to decrease the stock of food fish in the Chesapeake Bay and its tributaries by causing greater quantities to be caught than were marketable, and thus allowed the best classes of fish to be sold to fertilizer factories; and whereas, the catching of fish during the spawning season had a tendency to destroy one of the most productive industries of the State, it was then enacted by Section 2-A, that no one should fish north of a certain line in the Bay at all; and by Section 2-B, that no person should fish with purse nets south[***7] of a certain line without first obtaining a license so to do from the Comptroller and that the applicant should own and operate the nets. Briefly, this Act, it appears, was designed primarily for the protection of the food fish of the State and secondarily, as a method of raising revenue for the Oyster Navy. As a means of protection, it abolished the right to fish with purse nets wherever desired, and defined the portions of the Bay where and where not such nets could be used, but placed no restriction as to time during which these nets could be used, although the preamble indicated they should be prohibited during the spawning season, and, further, made no restrictions as to the size of the mesh. By the amended or present Act, changes admittedly were made in the area of the waters wherein such nets could be used, and in the duration of time during which they could be used as applicable to all classes of fish, and expressly prohibited the use of such nets with a smaller mesh than three inches for the catching of food fish. The question is, did the Legislature intend, by expressing in the manner it did, to prohibit the Comptroller from issuing a license for a purse net with a mesh less [***8] than three inches and where the [*37] boat was not owned twelve months by a bona fide resident of the State, but was not to be used for the catching of food fish; or did it mean those restrictions to apply only to those fishing for food fish.

   The object of the Legislature, as appears from the preamble of the original Act, was solely to preserve food fish by licensing and limiting this form of fishing. The only natural inference to be drawn from the later legislation, is that the prior Act was inadequate; so, therefore, still with the intention of securing adequate protection for food fish, more restrictions were needed. Under the prior Act, this class of non-food fish could be caught in the defined area, because of the right to use a purse net with a mesh of any size. If then, the intention of the law makers was to make this law, in its restrictions as to the size of the mesh, apply to those fishing for either class of fish--food or non-food-- why should they have said, "it shall be unlawful to use a purse or buck net with a mesh less than three inches for the catching of food fish," and not a word as to the other class of fish they then recognized? If what follows after[***9] the above quotation of the language of the Act, that is, "no license shall be issued by the Comptroller for the use of purse or buck nets with a mesh less than three inches, etc.," was meant to be a restriction upon the size of the mesh of nets used for both classes of fish, then the language as to the size of mesh to be used for food fish was useless and worthless, for the language directing the Comptroller to issue no license for a net less than three inches would have accomplished that. If the omission of those words would have accomplished the end for which the appellee contends, does their insertion mean the same end? These words most certainly were inserted for some purpose, and it is a cardinal rule of construction of statutes that the Courts should give force and effect to every part thereof when possible.

   In our opinion, the first sentence of section 2-B, which is a verbatim re-enactment of section 2-B of the original Act [*38] in its entirety, with the exception to the addition as to area and the season, provides generally for purse net fishing, designating the area, the season, the amount of the license fee, the qualification of the applicant and the authority to the[***10] Comptroller to issue the license. It is practically a statute in itself. The Legislature, recognizing the different classes of the fish industry, intended to protect the food-fish by providing that food-fish should not be fished for but by a certain sized mesh. Having provided by the first part of the section, that purse nets could be used without mention as to the size of the mesh, then provision was intended to be made declaring it unlawful to catch food fish with a net of which the mesh was less than three inches. The restrictions following, in our opinion, refer [**328] only to those fishing for food fish. It is significant that the sentence providing the restrictions is separated from the provisions as to food fish by only a comma. It will be noted that the provision as to the ownership of the boats also follows after the food fish provision. If this qualification does not refer only to the food fish fisherman, it is difficult to account for the fact of ownership of the nets is made a qualification of the applicant in the first sentence.

   We are of the opinion, therefore, that the restrictions as to the size of the mesh and the ownership of the boats to be used in connection[***11] with the use of the nets were, in the minds of the law makers, only to apply to those engaged in the industry of fishing for food fish; and that the Act contains authority for the Comptroller to issue a license for a purse or buck net with a mesh of any size to be used in catching non-food fish; provided the applicant is the owner and operator of the net or nets.

    For the reasons stated, we are of the opinion that the order ought to be reversed and the cause remanded, to the end that a writ of mandamus be issued as prayed.

   Order reversed and cause remanded, with costs to the appellant. 

G. CLIFTON SUNDERLAND AND G. CLIFTON SUNDERLAND AND EUGENEP. CHILDS, EXECUTORS OF FREDERICKA C. SUNDERLAND, vs. HENRY EBLING, JAMES HENRYEBLING AND FRANK H. STOCKETT, ASSIGNEE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
125 Md. 686; 94 A. 344; 1915 Md. LEXIS 246

 April  14, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree reversed, cause remanded, with costs to the appellants.

CORE TERMS:  mortgage, deed, services rendered, promise to pay, conveyance, grantor, void, valuable consideration, law implies, fraudulent, foreclose, decree, farm, pecuniary, fraudulent conveyances, express contract, foreclosure, covenants, residing, borrowed, attained, default, paying, wages, stepchildren, grandparents, voluntary conveyance, fraudulent intent, judgment creditor, property sold

COUNSEL: Ridgely P. Melvin and Robert Moss, for the appellants.
 
Daniel R. Randall, for the appellees.

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

OPINIONBY: BRISCOE

OPINION: [*687] [**344] BRISCOE, J., delivered the opinion of the Court. 

   The object of the proceedings in this case is to vacate and set aside a conveyance of real estate from a father to his son, on the ground of its being a voluntary conveyance, without legal consideration, fraudulent, in respect to the plaintiff, a judgment creditor of the grantor, and therefore null and void, as to her claim.

   The deed in question is dated the 23rd day of May, 1910, and in consideration of the sum of five dollars and other good and valuable considerations, the grantor conveyed in fee simple unto the grantee, the tract of land mentioned therein, situate in the Second Election District of Anne Arundel County, containing one hundred acres more or less, together with the buildings[***2] and improvements thereon.

   At the time of the transfer and conveyance of the farm or tract of land, it was encumbered by a mortgage, dated the 8th day of December, 1908, which had been given by the grantor to Mr. Eugene W. Iglehart, of Anne Arundel County, to secure a loan of one thousand dollars borrowed by him from Mr. Iglehart.

   On the 12th of April, 1913, the Iglehart mortgage was foreclosed and the property purchased at the foreclosure sale, for the sum of $2,200, by the defendant, James H. Ebling, the owner of the equity of redemption, under the deed here in dispute and by Mrs. Mace, children of the grantor, in the deed.

   It is conceded that the property sold for more than sufficient to pay the Iglehart mortgage, debt, interest and costs, and it is this surplus or balance of the purchase money amounting to about $1,000, and now in the hands of the trustee or assignee of the mortgage, for distribution, which the plaintiff seeks, by a decree of this Court, to recover and to have applied to the payment of a judgment, dated the 19th day of November, 1912, in favor of the plaintiff against the defendant, Henry Ebling and others, for the sum of $9,767.25 in the Circuit Court for[***3] Anne Arundel County.

   [*688] It appears from the record that the debt secured by the promissory note upon which this judgment was rendered, was contracted prior to the deed to the son, and was given to secure the payment of the sum of $12,000, borrowed from the plaintiff by the Braun Packing Company of Anne Arundel County and endorsed by the defendant, Henry Ebling and others, stockholders and officers of the company. The note is dated in November, 1909, and was secured by a mortgage to the plaintiff covering the property of the Packing Company. This mortgage was foreclosed and the property sold on or about the 26th of May, 1911, and the proceeds of sale being insufficient to pay the debt, a judgment ($9,767.25) was obtained against the defendant Ebling and the other endorsers on the note, for the balance of the mortgage debt due the plaintiff.

   The real question in the case are, first: whether the deed from the father to the son was voluntary and without consideration; second: whether there was a valid subsisting debt from the father to the son at the date of the execution of the deed, and, third: whether the deed is fraudulent and void as to creditors.

   It is well settled[***4] in this State that a debtor has the right, apart from the provisions of the bankrupt or insolvent laws, to prefer one creditor to another when done bona fide, without fraudulent intent and upon proper consideration. Glenn v. Grover, 3 Md. 212; Thompson v. Williams, 100 Md. 195, 60 A. 26; Tyner v. Johnson, 119 Md. 627, 87 A. 266; Zimmer v. Miller, 64 Md. 296, 1 A. 858; Commonwealth Bank v. Kearns, 100 Md. 202, 59 A. 1010.

   It will be seen that the alleged consideration for the deed in this case as shown [**345] by the proof is for services rendered to the father by the son after he had attained the age of twenty-one years, and while residing at his father's home as a member of his family and without an express contract either for their performance or a promise made for their payment. The authorities are clear that the law implied no promise to pay for services rendered by members of a family to each other under the facts and circumstances of a case like this.

   [*689] In 20 Cyc., p. 533, it is said: "Services rendered by children who have attained their majority, [***5] to their parents while residing with them, without any agreement for compensation, do not constitute a valuable consideration for conveyance by the parents, since the law implies no promise to pay for services rendered each other by persons standing in this relation."

   In Hack et al. v. Stewart et al., 8 Penn. State Reports 213, it is said: "Where a son, after he had attained the age of twenty-one years, continued for a few years to live with his father, who supported him, and to labour and work on the farm as he had previously done; and no express contract as to the payment of wages by the father for the services of the son, was proved between them: the father cannot, after he becomes indebted and involved, create a debt in favour of the son, which had no legal existence until that time, and in consideration of such debt convey his property to the son at the expense of creditors; and a conveyance from the father to the son, under such circumstances, would be fraudulent and void.

   In Bump on Fraudulent Conveyances, p. 232, it is said: "The law implies no promise to pay for services rendered by members of a family to each other, whether by children, parents, grandparents,[***6] brothers, stepchildren, or other relations. The rule rests upon the simple reason that such services are not performed in the expectation or upon the faith of receiving pecuniary compensation. The services rendered in such cases are mutual, and it may often be difficult to decide upon which party the principal benefit is conferred. Services so rendered do not, therefore, constitute a valuable consideration for a transfer." Irish v. Bradford, 64 Iowa 303, 20 N.W. 447; Savings Bank v. McLean, 84 Mich. 625, 48 N.W. 159; McCord v. Knowlton, 79 Minn. 299, 82 N.W. 589; Sanders v. Wagonseller, 19 Pa. 248; Updike v. Titus, 13 N.J. Eq. 151.

   In Updike v. Titus, supra, under a state of facts somewhat similar to those here, the Court said: "So far as relates to the claim for services rendered, the mortgage is without consideration and fraudulent as against creditors. The law [*690]implies no promise to pay for services rendered by members of a family to each other, whether by children, parents, grandparents, brother, stepchildren, or other relations. No action can[***7] be maintained for such services in the absence of an express contract or engagement to pay for them. The rule rests upon the simple reason, that such services are not performed in the expectation or upon the faith of receiving pecuniary compensation. Ordinarily, for a service rendered, the law implies a promise to pay corresponding with the value of the service; but for services rendered by members of a family to each other no promise is implied for remuneration, because they were not performed in the expectation, by either party, that pecuniary compensation would be made or demanded. The authorities upon this subject are numerous and decided, and the principle upon which they rest too clear for doubt." Winchester v. Reid, 53 N.C. 377; Moore on Fraudulent Conveyances, p. 380, and cases there cited.

   There is no evidence in this case of any express agreement of the father to pay the son for his services and the subject does not appear to have been discussed between them until about the date of the Iglehart mortgage and the date of the execution of the judgment note to the plaintiff.
 
   The son testified there was no fixed amount agreed upon as compensation and [***8]upon cross-examination testified as follows: Q. At the time your father placed the mortgage loan on his 100 acre farm, where were you living? A. I was living there then. Q. What did your father owe you at that time, if anything? A. You mean how much money? Well, I wouldn't work for nobody under $25 a month. I worked 1907, 1908, 1909 and 1910; that would be about $1200 I guess at $300 a year, $25 a month. Q. What security had you for this or what promise, if any, from your father to secure you? A. I didn't have none from him, but I went and told him he would have to give me some. Q. Did your father make any contract with you to secure you or to reimburse you after the $1,000 was borrowed? A. Yes, we kind of agreed altogether; of course, my sisters was in the [*691] thing too; and us three kind of objected after we had been working there so much. Yes, we made an agreement among ourselves, but there were no papers drawn up. Q. What was that agreement? A. The agreement was that we was to take the place; then I bought the place, and I had to promise to pay my two sisters and brothers, and that I would be responsible for their money.

   John Jungers, a witness on the part of the[***9] defendants, testified: "I have heard his father say that he was not paying him in cash. This conversation arose several years ago when I told Mr. Ebling I was paying my boys from the time they were able to work; he replied that he was not paying his children because he was not able to do it."

   John H. Wagner, another witness on the part of the defendants, also testified: "I have heard Mr. Henry Ebling say on some occasions when we were discussing wages for our sons that he had never paid James a dollar in his life in the way of wages and that his son had left opportunities of at least $40.00 a month to work for him for nothing."

   Mr. Iglehart, who held the mortgage on the property, at the time of its transfer to the son, testified as follows, in answer to the following interrogatories: "Q. During the existence of this mortgage, with whom did you have all your dealings? A. Mr. Henry Ebling. Q. Did you know his son, Mr. James Henry Ebling? A. No, I never had any dealings with him at all. Q. Who paid the interest on this mortgage? A. Mr. Henry Ebling. Q. Did you know that while your mortgage was in existence Mr. Henry Ebling attempted to transfer title to this property to his son, James[***10] Henry Ebling? A. No, I knew nothing whatever of that. Q. Were the interest payments made promptly by Mr. Henry Ebling, and were the covenants of the mortgage kept up? A. The interest payments were made promptly for a time, that is, up to and including the interest which fell due on the 8th of June, 1912. So far as I know, the covenants of the mortgage were kept up until that date. Q. Will you kindly state, then, just how it happened that you came to foreclose this mortgage? A. On [*692] or about the 5th day of December, 1912, [**346] at about 11 o'clock in the morning, Mr. Henry Ebling and Mr. Daniel R. Randall called at my office. As nearly as I can recall, Mr. Randall opened the conversation by stating that the next interest on Mr. Ebling's mortgage would be due in three days (that is, December 8, 1912), and he wished to ask me a hypothetical question, to wit: If Mr. Ebling should default in the payment of said interest would I consider the mortgage in default and proceed to foreclose within a week? I answered that I would not, for the reason that it would place me in a bad light before the public as having exercised "snap judgment." Mr. Randall then stated that the taxes[***11] for the year 1912 were then due and had not been paid, in consequence of which the mortgage was already in default, and asked if that fact would justify me in an early foreclosure. I answered that it would not, as I was not willing to foreclose on such short notice. As nearly as I can recall, neither Mr. Randall nor Mr. Ebling stated their reasons for desiring an early foreclosure, and I did not ask. Shortly thereafter both gentlemen left my office. I waited about four months after this, or until sometime in April, 1913, for Mr. Ebling to pay the interest on his mortgage, which had become due on December 8, 1912. At the end of that time, and after due notice of my intention, the interest being still unpaid, I placed the mortgage in the hands of Mr. Frank H. Stockett, attorney at law, with instructions to foreclose.

   It thus appears that notwithstanding the father had conveyed the farm to the son James for all of his children in May, 1910, he continued to pay the interest to the mortgagee until 1912, and performed all the covenants of the mortgage to the time when he himself asked for its foreclosure.

   Apart from this no payment was ever made on account of the services alleged to have[***12] been rendered by the son and no settlement at any time whatever to ascertain the amount due by the father to the son; nor does any demand of payment appear to have been made, until the apparent insolvency of the father, and the execution of the mortgages, stated herein.

   [*693] Upon this evidence, or in fact, in the absence of all proof to show the bona fides of the transaction, the deed from the father to the son in this case must be held as a voluntary conveyance, and void as against the plaintiff, a judgment creditor.

   As was said by this Court in Benson v. Benson, 70 Md. 253, 16 A. 657, it needs no authority for so plain a proposition that the son was not under the circumstances a purchaser for a valuable consideration and cannot be treated as such under the facts of this case. Worthington v. Shipley, 5 Gill 449; Somerville v. Stansfield, 28 Md. 210; Goodman v. Wineland, 61 Md. 449; Whedbee v. Stewart, 40 Md. 414.

   The facts of the case of Thompson v. Williams, 100 Md., supra, relied upon by the defendants, are unlike this. In that case the consideration[***13] for the conveyance to the daughter was adequate, the deed was made to secure an actual loan, and accepted in good faith, and the evidence did not show that the mortgage was made with intent to hinder and delay the creditors of the grantor.

   In the present case there is no evidence whatever of the existence of any bona fide indebtedness, except from the testimony of the defendants, the parties in interest, and that is not satisfactory when considered in connection with the other facts and circumstances surrounding the transaction, to constitute a valid consideration for the deed.

   It follows, for the reasons stated, that the Court below committed an error in sustaining the validity of the deed here in question as against the plaintiff's claim and denying the plaintiff the relief asked by the bill.

   The decree will therefore be reversed and cause remanded, that a decree may be passed, in accordance with this opinion.

   Decree reversed, cause remanded, with costs to the appellants. 

THE SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, TRUSTEE, INTHE MATTER OF THE TRUST ESTATE OF RICHARD SWANN, DECEASED. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
125 Md. 519; 94 A. 93; 1915 Md. LEXIS 230

 April  7, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (In Equity.) (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  notice, co-tenant, tax sale, treasurer, substantial compliance, personal notice, ratification, occupancy, purchaser, ownership, locality, resident, heirs, notified, observe, dollars, Code of Public Local Laws, tenant in possession, legal relationship, property assessed, sale of property, tenant in common, enforce payment, mere fact, conspicuously, notification, presumptive, outstanding, inoperative, prescribed

COUNSEL: Daniel R. Randall, for the appellant.
 
James M. Munroe, for the appellee.

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

OPINIONBY: URNER

OPINION: [*520] [**94] URNER, J., delivered the opinion of the Court.

   The Safe Deposit and Trust Company of Baltimore, as trustee under the will of Richard Swann, deceased, sold a tract of thirty acres of land in Anne Arundel County for the sum of seven hundred dollars, and the sale was duly reported to the Circuit Court for that county, whose jurisdiction over the trust had been previously invoked. Exceptions were filed by the purchaser to the ratification of the sale. The main ground of objection is that the title proposed to be conveyed is not good and marketable. This contention was sustained by the Court below, and from its order setting aside the sale an appeal has been taken by the trustee.
 
   [*521] The title of the Trust Company was obtained by its purchase of the property under foreclosure of[***2] a mortgage which it held for the benefit of the trust estate and which had been executed by John Henry Johnson and wife on April 15, 1911, to secure a loan of seven hundred dollars. It was recited in the mortgage that the tract had been conveyed to Johnson by deed from B. Allein Welch, treasurer of Anne Arundel County, dated May 19, 1905, and duly recorded. The tax sale proceedings which resulted in the conveyance last mentioned include a report by the treasurer to the Circuit Court showing that the land was sold on December 30, 1902, to John Henry Johnson for thirty-five dollars in the enforcement of claims for taxes in arrears for 1899 and 1900, amounting, with interest and costs, to $30.04. It appears from the tax bills exhibited with the report that the property was assessed at $404.00 for the purposes of taxation. It is in evidence that the land formerly belonged to Margaret Anna Johnson, a widow, who died intestate some years prior to the sale, leaving eight children as her heirs at law. The property was thereafter entered on the assessment record, and the tax bills referred to were made out, in the name of "Margaret Anna Johnson Heirs." One of the persons included in this[***3] designation was John Henry Johnson. When the sale occurred he was in sole possession of the premises. The evidence shows that some of the other co-tenants were residing in the same neighborhood, but there are some whose places of residence at that time are not proven. The notices required by law to be given before the property could be sold for taxes were served upon "John Henry Johnson, one of the heirs of Mary A. Johnson, deceased," and, as already stated, he became the purchaser.

   The objection to the title is based primarily upon the ground that the notice served upon only one of the co-tenants, even though he was then in possession, was not sufficient to gratify the terms of the statute prescribing the notices to be given as pre-requisites to a valid sale.

   [*522] It is provided by section 229 of Article 2 of the Code of Public Local Laws, relating to Anne Arundel County, that it shall be the duty of the treasurer, during the month of March succeeding each levy, to make out all tax bills which have not been paid, with a notice in each that if it remains unpaid on the first day of June next after its date, the property will be levied upon and sold to enforce payment, and that[***4] a copy of each bill so prepared shall be delivered by a constable of the district "to the person or corporate institution against whom it is made out; or in the event of failure to find such person or taxpayer in the district, [**95] such tax bill shall be left with the agent of such person or institution, or conspicuously posted on the property assessed." The treasurer is directed by section 230 to enforce the payment of all taxes remaining unpaid on the first day of June succeeding the year in which they were imposed, but it is enacted that when property is levied upon for that purpose, "notice thereof together with a copy of the bill of taxes due * * * shall be delivered to the owner, if he be in possession of the property, or at his residence, if it be within the same district, or mailed to him if his postoffice address be known, and if not, then to be conspicuously posted on the premises, together with a notice that if the said bill for taxes, interest and costs, be not paid within thirty days, the property levied upon will be sold at public sale." Provision is made by section 231 for a report of the sale to the Circuit Court by the treasurer, and for its ratification if the[***5] proceedings are regular and there has been a substantial compliance with the statute.

    In view of these provisions, and of the facts we have stated, the question to be decided is whether the delivery of the preliminary and final notices to the co-tenant in possession was adequate for the purposes of the ensuing sale.

   It is the evident intention of the Act to require the notices to be served upon the owner of the property, if this can be done under the prescribed conditions. The right of the owner to be notified is not made dependent upon his occupancy [*523] of the land. In the event that he is not in possession, the copy must be delivered to him elsewhere in the district, if he is a resident of that locality. It is only when the owner cannot be given personal notice, within the district, that the alternative methods of notification can be employed. The bills in this case were made out against the "heirs" of the former proprietor, and the persons thus described were then in fact the owners of the property assessed. The law does not authorize any discrimination, as to notice, in cases of plural ownership, and it is clear that all who are charged with the taxes and own the[***6] land are entitled to personal notice before their rights can be affected by a sale, provided they are within reach of the service which the Act prescribes. If none of the owners occupied the property, it could not be contended that a notice given to only one of several co-tenants residing in the district should be regarded as sufficient. As ownership and not occupancy is the basis of the provisions for the successive notices, the mere fact that one tenant in common was in possession could not deprive the other owners, resident in the same locality, of their right to be warned of an impending sale of their property.

   The legal relationship between tenants in common does not imply an agency on the part of one in possession, for the other co-tenants, with respect to the receipt of notice of outstanding claims affecting the title, Freeman on Co-tenancy and Partition, 2nd Ed., sec. 171; 38 Cyc. 106; but even when there is an agent on the ground, the delivery to him of the preliminary notice would not be effective if the owners are in a position, under the terms of the Act, to be personally notified, and the final notice is not directed to be served upon an agent under any circumstances. [***7]

   In a proceeding for the sale of property to enforce the collection of taxes the jurisdiction of the Court to which the sale is reported is special and limited and cannot be validly exercised unless there has been a substantial compliance with the provisions of the law. The order of ratification gives presumptive validity to the sale, but when it [*524] appears from the record or proof that there has been a failure in any material respect to observe the requirements of the statute, the attempted transfer of the title must be held to be inoperative and void.  Taylor v. Forrest, 96 Md. 529, 54 A. 111; McMahon v. Crean, 109 Md. 652, 71 A. 995; Amos v. Abromaitis, 122 Md. 256, 89 A. 497. In the case last cited, which involved a tax sale under the same local law we are now considering, the owner of the land sought to be sold, against whom the tax bills were made out, was dead, and the notices of the intention to enforce payment of the taxes were left with the tenant in possession. It was held that this was not a substantial compliance with the Act. The same view must be adopted in reference to the proceedings now in question. [***8] The notices given in this instance having been confined to one of several owners who were equally entitled to personal service, on account of their residence in the district in which the property was located, there was a manifest failure to observe the law in one of its most material requirements.

    While a considerable period has elapsed since the tax sale was made and ratified, and while those adversely affected have taken no formal action to have the sale annulled, the present purchaser could have no assurance that they will not contest the title. Some of them have apparently regarded their interests as still subsisting, and one, a widowed daughter of Margaret Johnson, built a small dwelling house on the land, a few years after the tax sale, with the consent of other heirs, and is living there at the present time. It would not be just to compel the objecting purchaser to accept a title thus exposed to probable litigation. As it stands at present it is not the good and marketable title which he has a right to demand.  Hewitt v. Parsley, 101 Md. 206, 60 A. 619; Hammer v. Westphal, 120 Md. 15, 87 A. 488.

   This conclusion renders it unnecessary[***9] to pass upon the other grounds of exception to the sale reported by the trustee.

   Order affirmed, with costs. 

CLAYTON PURNELL vs. STATE BOARD OF EDUCATION AND HENRYSHRIVER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
125 Md. 266; 93 A. 518; 1915 Md. LEXIS 208

 February  17, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  appointment, successor, appointed, session, advice, vacancy, adjournment, appoint, duty, next succeeding, unambiguous, expiration, authorize, concurrence, plainly expressed, natural import, sustaining, construing, formation, presumed, demurrer, abolish, qualify, modify, await

COUNSEL: W. C. Devecmon (with whom was Ridgely P. Melvin on the brief), for the appellant.
 
Edgar Allan Poe, the Attorney-General, for the appellee.

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

OPINIONBY: CONSTABLE

OPINION: [*267] [**519] CONSTABLE, J., delivered the opinion of the Court.

   This appeal involves the construction and interpretation of section 5, Article 77, of the Code, being a portion of Chapter 584 of the Acts of 1904, and relates to the formation of the State Board of Education.

   The appellant filed a petition, praying that the writ of mandamus issue directing the State Board of Education to recognize him as a member of said board, and ordering the appellee, Henry Shriver, to vacate the office of membership in said board, unlawfully held by him.

    [*268] The petition alleged that the petitioner had been appointed a member of said board on the 27th day of April, 1908, for a term of six years from said date, and until his successor should be duly appointed[***2] and qualified; that the Governor, during the session of the General Assembly, in the year 1914, nominated to the Senate as his successor, the appellee, Henry Shriver, but that the Senate adjourned without acting upon said nomination; that after the adjournment of the General Assembly, the Governor on the 30th day of April, 1914, undertook to appoint the said Henry Shriver to said office, as the successor of the petitioner, without the advice and consent of the Senate, and issued a commission to him; that at the next succeeding session of the State Board the said board refused to recognize the petitioner as a member, but did recognize the said Henry Shriver as a member thereof. The appellees demurred to the petition, and upon the lower Court sustaining the demurrer and dismissing the petition, this appeal was taken. The statute involved is as follows: 

   "The Governor, by and with the advice and consent of the Senate, if in session, and without said advice and consent when not in session, shall appoint before the first Monday in May, next ensuing, six persons, at least two of whom shall be from the political party which at the last preceding election for Governor received next to[***3] the highest number of votes, said minority representation of at least two members as aforesaid to be continued thereafter, to be members of the State Board of Education, two of whom shall hold office for a term of four years from the first Monday in May next succeeding their appointment and until their successors shall qualify; the Governor shall, at the time of making said appointment, designate the term of years of each of said members when first appointed under this article; the term of office of said members, after the expiration of the term for which first appointed, shall be a term of six years, and to take the places of the members of said board whose terms of office shall so expire, the Governor shall, every two [*269] years after April 12, 1904, before the first Monday in May in such years, appoint two persons as members of said board to serve for terms of six years from the first Monday in May next succeeding their appointment, and until their successors shall qualify; said persons shall be of high character, integrity and capacity; these six members, together with the Governor and the State Superintendent of Public Education, shall constitute the State Board of Education, [***4] but principals of the State normal schools and of the normal department of any school or college under the control of the State Board of Education whose certificates are recognized by it shall be ex officio honorary members of this board, but with no vote. In case of a vacancy by death, resignation, disqualification or otherwise, the Governor shall fill such vacancies."

   It is not claimed that the appointment was made by virtue of the power contained in the last sentence of the section, relating to the filing of vacancies, for although the term for which the appellant had been appointed had expired, yet as he was to continue to hold the office until his successor was appointed and qualified, there would be no vacancy between the expiration of the definite term and the appointment and qualification of the successor. In other words to authorize an appointment under the vacancy clause, the vacancy must actually exist at the time the appointment is sought to be made, for otherwise the incumbent holds on with all the powers and duties of his appointment. Smoot v. Somerville, 59 Md. 84; Ash v. McVey, 85 Md. 119, 36 A. 440. It is claimed, however, [***5] by the appellant that the appointment of his successor without the advice and consent of the Senate, was an illegal appointment, and without any effect, and that, therefore, he is entitled to hold the office until his successor is legally appointed and qualified. Whether or not the Governor is authorized, except in cases of vacancies, under the provisions of section 5, Article 77, to appoint successors to the State [*270] Board of Education without concurrence of the Senate, is the sole question to be determined in this case.

   [**520] This Board is of legislative creation, and no question can now be raised in this State as to the powers of the Legislature to modify, control or abolish it, embracing therein the power to change the manner of appointment of its members, for this Court has many times expressly emphasized this.  Anderson v. Baker, 23 Md. 531; Warfield v. County Comm., 28 Md. 76; Townsend v. Kurtz, 83 Md. 331, 34 A. 1123, and Ash v. McVey. supra.

   The State Board of Education was created by Chapter 311 of the Acts of 1870, by which, and by all amendments thereto until the present[***6] Act, all appointments were expressly required to be made during the regular sessions of the Legislature, in addition to the requirement of their being made with the advice and consent of the Senate. The present act is the first to contain the provision, "and without said advice and consent when not in session." This Act made material changes in the formation of the Board; changing the number of appointed members from four to six, extending the tenure of office from four to six years and providing for a continuous minority representation of two members. For the first time also the limit in point of time within which the appointments should be made was changed from during the session of the Legislature to prior to the first Monday in May.

   Now it being settled that the Legislature had the power to make the changes it apparently did make, did it in reality intend to give the Governor the power to do away with the concurrence of the Senate in the appointment of members to this Board? In construing all statutes the aim is to get at the intent of the Legislature; and to arrive at this there are certain and fixed rules. And one that is particularly applicable to this statute is that first, [***7] the words employed are to be considered, and they are to be interpreted according to their plain, ordinary and natural import; if they are clear, precise and unambiguous, the Legislature must be understood [*271] to mean what it has plainly expressed. Clark v. Baltimore, 29 Md. 277; Scaggs v. Balto., etc., R. R., 10 Md. 268; Leonard v. Wiseman, 31 Md. 201; Maxwell v. State, 40 Md. 273. Applying to the present statute this principle, it seems clear that the meaning of the Legislature was to authorize the Governor to await, if he saw fit, until after the adjournment of its body before making the appointments to this board. Of course they must be presumed to have known that the first Monday of May would be approximately a month after the day of the adjournment of any regular session. The fact that the first appointments were to be made before the first Monday in May can be accounted for on the theory that probably they feared the Act would not become operative until after the adjournment of the Legislature, but no such reason can account for authorizing the Executive to have until the same time before[***8] appointing the successors. The only way we could reach the conclusion sought by the appellant in reference to the portion of the statute regulating the appointment of successors, would be to declare that the opening language of the section was, as a whole, applicable only to the original appointments, and that when the successors were to be appointed the words "and without said advice and consent when not in session" were to be ignored, and that further the time limited for the appointment of the successors as expressed by the words "before the first Monday in May" were also to be completely ignored. This would ignore entirely the rule of construction that every statute should be so construed as to give effect to every part of it if possible.

   The appellant attempts to argue away the effect we think the time limit should have, as expressing the intent of the Legislature, by contending that not much force is to be given to a provision as to time in a statute in the interpretation of that statute, and refer to State v. County Com., 29 Md. 516, and similar cases. In the cited case the question involved was whether or not certain officers after the expiration of the[***9] time limited by the statute for the doing of a certain object, could be compelled to do that thing; and the Court [*272] held that time in that use was directory merely, unless it plainly appeared that the designation of time was intended as a limitation of power. How that principle can have any applicability here we are at a loss to understand. There is no question involved here as to whether the appointment was or not made before or after the time limited, but rather, whether it could be made at all. And as bearing upon the intention of the law makers in a case of the character of this we think the expression of time has a most potential bearing.

   Because the history of the legislation shows that the advice and consent of the Senate had previously been a requisite, we think, in this case, lends no aid in favor of the appellant's construction. Conceding this to have been the first time the consent of the Senate was not required, as the legislation shows to be a fact, still, where the language in unambiguous terms shows there was to be a change in that respect, the history can have no effect, but can only have bearing in solving doubts arising over new legislation. For the same[***10] use only is the fact that previous executives had acted contrary to the present executive. As to the wisdom of the Legislature in making this change, or their reason for making it, we are not concerned; for the policy of legislation is not to be determined by the Courts. When the true intent of the legislative branch of the government, as to certain legislation, is determined, it is the duty of the Courts to see that that intention is carried into effect. If persons believe the provisions are unwise, the appeal should be made to the lawmaking powers and not the Courts.

   Agreeing with the lower Court in its action [**521] in sustaining the demurrer, we will affirm the order appealed from.

   Order affirmed, with costs. 

FIDELITY SAVINGS BANK OF FROSTBURG, MD., ET AL., vs. MURRAYVANDIVER, TREASURER OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
125 Md. 352; 93 A. 978; 1915 Md. LEXIS 217

 February  11, 1915, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order reversed and cause remanded that the writ of mandamus may issue in accordance with the prayer of the petition; costs to be paid by the appellants.

CORE TERMS:  depositor, retrospectively, deposited, deposit, surrender, legislative intent, writ of mandamus, prospectively, trustent, savings, duty, designated, necessary implication, constitutional power, subject to repeal, distinct interest, express language, trust created, preservation, terminating, succeeding, registered, transcend, recourse, unwisdom, cestui, wisdom

COUNSEL: D. Lindley Sloan (with whom was Albert A. Doub on the brief), for the appellants.
 
Edgar Allan Poe, Attorney General, submitted a brief for the appellee.

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

OPINIONBY: STOCKBRIDGE

OPINION: [*354] [**978] STOCKBRIDGE, J., delivered the opinion of the Court.

   This case arises from a second application for a writ of mandamus to require the State Treasurer to surrender to three Savings Banks located in Allegany County, Maryland, certain bonds, severally deposited by them with the State Treasurer, in compliance with the provisions of three several Acts of Assembly amending the charters of the respective banks.

    The first application and the opinion of the Court in that case are reported in 120 Md. 619, and the facts with a single exception will be found fully stated in the opinion[***2] in the former case. The additional fact which has transpired since the first decision was rendered, was the passage by the General Assembly of 1914, of an Act designated as Chapter 781. By that, after the recital of the antecedent legislation, it was provided in section 2 as follows: 

   "Be it further enacted by the General Assembly of Maryland, That the Treasurer of Maryland be, and he is hereby authorized and empowered and directed forthwith to surrender to each of the said savings banks such bonds or securities as may have been deposited with him by each of said banks, by virtue of the provision of Chapter 109 of the Acts of the General Assembly of 1892, and any amendments thereto, and that this Act shall be construed retrospectively as well as prospectively."

   The provisions of the statute under which the deposits were made required them to be registered in the name of the State Treasurer, officially, and held as a trust under and pursuant to the Act, "and the same shall be held by said [*355]Treasurer in trust as security for the depositors." The effect of this legislation was to constitute a designated State official as a trustee for certain specific purposes; [***3] the trust was one created by an Act of the General Assembly, and since an Act of the Legislature is always subject to repeal by a succeeding Legislature, the trust must be construed as analogous in many respects to a trust created by an individual with a reserved power in the person creating it of terminating the trust. As was pointed out in a former opinion, the effect of this was to make the position of the depositors similar to that of cestui que trustent--they were not technical cestui que trustent, for that position could only arise upon the failure of the banks, and a necessity to have recourse to the securities deposited for the benefit of the depositors. But a condition was created which gave to the depositor a distinct interest in the preservation of the fund in the hands of the official trustee. This position the Legislature had attempted to alter at its session of 1912, by a series of Acts repealing so much of the previous legislation as required the making of these deposits. In 120 Md. it was held, that while the Act of 1912 (Ch. 828) was perfectly competent legislation so far as all future depositors were concerned, it could not operate so as to affect those who[***4] had become depositors prior to the passage of the Act of 1912, for the reason that the Act could not be given a retroactive effect unless it appeared either by express language or necessary implication that such was the legislative intent, and that was not to be found in the Act of 1912. It was to cure this omission that the Act of 1914 was passed, wherein by the last sentence of the section already quoted it was enacted "that this Act shall be construed retrospectively as well as prospectively." There can thus be no doubt whatever of the legislative intent, and that being the case and the Legislature having in express terms declared that the Act was to [**979] operate retrospectively, it is the duty of the Court to give effect to that expressed purpose. With the wisdom or unwisdom of such legislation it is not the province of this [*356] Court to deal, all that the Court is called upon to do or can properly do, is to carry out and give effect to the legislative enactment, whenever that enactment does not transcend the constitutional power of the Legislature.

   No vested right existed in any depositor to the bonds deposited with the State Treasurer, or any of them; no section[***5] of the Constitution was violated by the passage of the Act.

   The petitioners for the mandamus were, therefore, entitled to the relief sought and the writ should have been issued.

   The order must accordingly be reversed and the case remanded to the Circuit Court for Anne Arundel County, to the end that the writ of mandamus may issue as prayed.

   But while the action of the lower Court must be reversed, the costs will be imposed on the appellants. The legislation which gave rise to this case was of a purely private character, for the benefit of the appellants; and in his refusal to surrender the bonds of State Treasurer was but discharging a plain duty. He could not in the absence of a valid order of Court comply with the request of the appellants without subjecting himself to the possibility of a charge of dereliction of duty, and of imperiling his bond.

   Order reversed and cause remanded that the writ of mandamus may issue in accordance with the prayer of the petition; costs to be paid by the appellants. 

ZACHARIAH R. DUVALL vs. CHARLES D. RIDOUT. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
124 Md. 193; 92 A. 209; 1914 Md. LEXIS 21

 October  28, 1914, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. In Equity. (BRASHEARS' J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  easement, farm, deed, conveyance, conveyed, roadway, appurtenant, injunction, ownership, belonging, unity, acres, land conveyed, continuous, public road, appertaining, appurtenances, convenient, unimproved, severance, tenement, grantor, alley, tract, preceding, withdrawn, adjacent, improved, invoked, convey

COUNSEL: Robert Moss, for the appellant.
 
James W. Owens, for the appellee.

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

OPINIONBY: URNER

OPINION: [*194] [**210] URNER, J., delivered the opinion of the Court.

   By the decree from which this appeal is taken the appellant was perpetually enjoined from using a certain roadway extending from his farm through the adjoining property of the appellee to the public highway. It is alleged in the bill of complaint and shown by the proof that the contiguous lands of the parties to the suit formerly composed a single farm of about one hundred and twenty-seven acres under the ownership of the appellee and his brother as tenants in common. On December 28th, 1909, they conveyed to the appellant eighty-one acres of the land including the portion on which the farm buildings are located. The appellee has since become the owner of the entire title to the remaining forty-six acres by grant from his co-tenant. At the time of the appellant's[***2] purchase there was a well-defined but unimproved driveway leading to the public road, from the dwelling and barn on the premises conveyed, over the land reserved by the grantors. This had been used as the customary way of travel to and from the farm buildings for many years. It was not, however, the only available outlet, as the land sold to the appellant bordered on a public thoroughfare and contained within its own area a road leading from the buildings to the highway. The last mentioned private way, by reason of its grade and location, was much less serviceable and convenient than the one extending through the property retained by the appellee and his co-owner.

   The deed to the appellant conveyed to him the eighty-one acres mentioned, together with "all and every the rights, [*195] alleys, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining." It is the appellant's theory that under this clause of the grant he acquired an easement in the roadway over the land reserved. For several years after his purchase of the part of the farm described in his deed he used the way through the remaining portion without objection. But it appears[***3] from the evidence that in October, 1913, the appellee erected wire fencing across the roadway, and the appellant having removed it under a claim of right to the continued and permanent use of the way as appurtenant to his property, the present litigation has resulted.

   In the case of Oliver v. Hook, 47 Md. 301, where the question we have now to decide was considered upon facts analogous to those shown by the record before us, it was contended that inasmuch as the way in controversy was existing and apparent at the time of the execution of the deed under which the right to its use was claimed, it passed under the grant as incident and appurtenant to the land conveyed. In discussing this theory the Court, in the opinion delivered by JUDGE ALVEY, said: "The deed is for a specific piece of land, being parcel of a larger piece held and owned by the grantor, and described by metes and bounds. In such case, in the absence of apt and express terms, no specific way outside the limits of the land granted, if not properly an existing easement, will pass as appurtenant. The only words in the deed that could possibly be relied on to convey the right of way in question are: [***4] 'all and every the rights, privileges, appurtenances and advantages to the same belonging, or in anywise appertaining.' If there was a way belonging to the estate, as a pre-existing easement, such way would pass by force of these terms, or even without the use of them; but such terms used in a conveyance of part of a tract of land as in this case, will not create a new easement, nor give a right to use a way which had been used with one part of the land over another part, while both parts belonged to the same owner, and constituted an entire estate. A party cannot have an easement in his own land; as all the uses of [*196] an easement are fully comprehended and embraced in his general right of ownership. * * * The general principle is that no right in a way which has been used during the unity of ownership will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. " After stating the doctrine, as quoted from Gale on Easements, 81, that "upon the severance of an heritage a grant will be implied of all those continuous and apparent easements which have in fact been used by the owner[***5] during the unity, and which are necessary for the use of the tenement conveyed, though they have no legal existence as easements," the opinion proceeds: "This is a very just and beneficial principle in those cases to which it is properly applicable, and it has been fully sanctioned in this State: but it would seem to be well settled that it does not apply to the case of an ordinary way, like the one in controversy here, not being at the time an existing easement. Grant v. Chase, 17 Mass. 443 at 447; Worthington v. Gimson, 2 Ell. & Ell. 626; Pearson v. Spencer, 1 Best & S. 583-4; Dodd v. Burchell, 1 H. & Colt. 113, 120."

   In Mitchell v. Seipel, 53 Md. 251, where the distinction between grants and reservations of easements by implication was considered and stated, the case of Oliver v. Hook, supra, was cited as holding "upon abundant authority" that "the doctrine of implied grants had no application to the case of an ordinary, open and unenclosed way, not being at the time of the grant an existing easement."

   It was observed by JUDGE BOYD, in the case of Eliason v. Grove, 85 Md. 215, 36 A. 844,[***6] that "there are a number of cases which hold that ways may be so improved and well defined as to bring them within the class of easements, or [**211] quasi easements, known as continuous and apparent, and hence pass by implied grants." The Court in that case was dealing with a claim to the benefit of the principle stated with respect to the use of a well, located immediately adjacent to the dividing line between the premises of the plaintiff and defendant, and which, during the unity of a preceding ownership, had been used in common by the occupants of both properties, [*197] access to the well, from the lot subsequently conveyed to the plaintiff, being afforded through a doorway maintained for that purpose in the division wall, from which the pump was only a few feet distant. There was held to be evidence tending to place the use of the well in the class of continuous and apparent easements and to show that it was necessary for the reasonable enjoyment of the property for whose benefit it was claimed; and because the issue had been withdrawn from the jury by the lower Court the judgment in favor of the defendant was reversed and a new trial awarded.

   Another instance[***7] in which the principle just referred to was found to be applicable is the case of Burns v. Gallagher, 62 Md. 462, where it was invoked in reference to an alley, fenced on both sides and located in the rear of the plaintiff's lot in Baltimore, and which furnished the only means of access to the back yard of the premises, except through the front door of the building by which the lot was improved.

   In the case of Janes v. Jenkins, 34 Md. 1, which was concerned with a claim, under implied grant, to the maintenance without obstruction of windows overlooking the adjacent ground of the grantor, the right to the easement was sustained, but this decision was declared in Oliver v. Hook, supra, not to be authority for the extension of the principle to the case of an ordinary way like the one there in dispute.

   In the present case the roadway in question was undoubtedly the most convenient means of ingress and egress to and from the appellant's farm, but it cannot be said to be necessary for the beneficial use of the property. It was an ordinary uninclosed and unimproved way over intervening land to a farm which has another available[***8] outlet to the public highway. The conditions here shown are hardly comparable with the exigencies which existed in the cases of Eliason v. Grove and Burns v. Gallagher, supra, and are certainly not more urgent than those which in Oliver v. Hook, supra, were held not to admit of the application of the principle now invoked.

   If, in a case like the present, it is the purpose and agreement of the parties that such a way as the one in question [*198] shall pass as appurtenant to the land conveyed, such an intention may be expressed very readily and simply in the deed, as suggested in the opinion in Oliver v. Hook, by the use of such terms as "with the ways now used," or "with the ways used with the land hereby conveyed," thus creating new easements for the benefit of the estate granted, as contemplated by the rule to which we have referred.

   Both the appellant and the appellee have testified to conversations between them prior to the conveyance in regard to their understanding upon the question as to whether the road now in controversy was intended to be included in the purchase. This testimony, having been offered without objection from[***9] either side, is entitled to be given the effect of competent proof, and we have no occasion, therefore, to express an opinion as to its admissibility. Sentman v. Gamble, 69 Md. 293, 13 A. 58. According to the depositions of the appellee and his co-grantor it was distinctly stated and understood in the interviews preceding the execution of the deed that it was not to convey a right to the use of the roadway through the reserved land, but that the grantee would be permitted to use it while the farm was in his personal occupancy. The appellant's testimony is directly to the contrary and asserts in effect an understanding that he should be entitled without restriction to the use of the road. His deed, however, does not contain the terms necessary to confer such a right, and his statement as to a verbal assurance on the subject could not properly be accepted as conclusive in view of the explicit denial made by the other two parties to the transaction. It is to be further remarked that as the appellant is insisting upon an absolute right to the continued and perpetual use of the roadway, as an incident of the grant and as appurtenant to his property, he is, of course, [***10] not claiming, and could not be given, the benefit of the alleged agreement, which he disputes and disavows, that he should have a permissive user of the way during his individual possession of the land conveyed.

   [*199] In the argument on behalf of the appellant it was contended that the appellee has an adequate remedy at law for any invasion of his property rights occasioned by the appellant's use of the road, and that such use, if wrongful, is a mere trespass which results in no injury sufficiently serious to justify the granting of relief by injunction.

   The maintenance of the driveway in question amounts to an appropriation to that extent of the appellee's land for the benefit of the adjacent property of the appellant. So long as the way is in existence the ground it occupies is withdrawn from cultivation and all the other ordinary uses to which it is susceptible. The road creates a division of the tract which may interfere materially with the owner's plans for its use or development. It does not appear to be needed or desired for the purposes of the property through which it passes. Its use by the appellant, therefore, does not simply impose an additional burden upon a private[***11] way which in any event be maintained by the appellee for his own convenience, but it appropriates a part of his ground for a road which would not otherwise [**212] exist. In our opinion the continuing occupation and use of the appellee's land to the extent and for the purposes thus indicated is such an injury to his property rights as a Court of Equity may properly restrain and prevent.

   As stated by JUDGE BURKE in Chesapeake Co. v. Mt. Vernon Co., 107 Md. 528: "The decisions in this State are uniform, that while an injunction will not lie to restrain a mere trespass, it will lie when the injury is destructive of the estate, as it has been held and enjoyed, or where full and adequate relief cannot be granted at law, or where it is necessary to prevent a multiplicity of suits." Among the other cases in which this principle has been recognized are: Long v. Ragan, 94 Md. 462, 51 A. 181; Schaidt v. Blaul, 66 Md. 141, 6 A. 669; Baltimore Belt R. R. Co. v. Lee, 75 Md. 596, 23 A. 901; Oberheim v. Ree side, 116 Md. 265; Douglass v. Riggin, 123 Md. 18, 90 A. 1000.[***12] The rule thus defined and supported clearly embraces in its scope and purpose the case presented by this record.

   Decree affirmed, with costs. 

EDWIN P. BAUGH, JR., vs. ALTON R. ARNOLD. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
123 Md. 6; 91 A. 151; 1914 Md. LEXIS 98

 March  18, 1914, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Howard County, to which the case had been removed from  Anne Arundel  County. (FORSYTHE, JR., and BRASHEARS, JJ.)
 
The facts are stated in the opinion of the Court.

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

CORE TERMS:  right of way, easement, cultivated, farm, servient, non-user, deed, dominant estate, conveyed, grantor, adverse use, abandonment, thirty-five, wood, crops, prescriptive period, extinguished, obstruction, prayer, lived, plat, corn, right of way granted, entitled to recover, conclusive evidence, deed executed, new trial, creek, extinguish, recorded

COUNSEL: Arthur R. Padgett and John Philip Hill, for the appellant.
 
Robert Moss (with whom was Joseph L. Donovan on the brief), for the appellee.

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

OPINIONBY: PATTISON

OPINION: [*7] [**152] PATTISON, J., delivered the opinion of the Court.

   This is an action brought by the appellee against the appellant to recover for damages for the obstruction of an alleged right of way of the plaintiff over the lands of the defendant. At the conclusion of the plaintiff's testimony the defendant offered a prayer asking the Court to take the case from the jury. This was refused, and at the conclusion of the defendant's testimony the prayer was renewed and was again refused, and the evidence being submitted to a jury, a verdict was rendered for the plaintiff, upon which judgment was entered.

   One of the questions raised by this[***2] appeal is, does the evidence of the plaintiff, corroborated as it is by the evidence of the defendant, show an abandonment and extinguishment of the easement. After a careful examination of the evidence and the law applicable thereto, it is our opinion that the right of way of the plaintiff, if it ever existed, has been extinguished by its non-user for a prescriptive period united with an adverse use [**153] of the servient estate inconsistent with the existence of the alleged easement.

   The law as established in this State, Canton Co. v. Baltimore City, 106 Md. 69, 66 A. 679, and elsewhere is, that the mere non-user of an easement even for more than twenty years will not afford a conclusive evidence of abandonment, but such non-user for a prescriptive period united with an adverse use of the servient estate inconsistent with the existence of the easement will extinguish it. Washburn on Easements, sections 551-2; 14 Cyc. 1195; 10 A & E. Ency. of Law, 436; Woodruff v. Paddock, 130 N.Y. 618, 29 N.E. 1021; Matter of New York, Etc., 73 A.D. 394, 77 N.Y.S. 31; Smyles v. Hastings, 22 N.Y. 217;[***3] Smith v. Langewald, 140 Mass. 205, 4 N.E. 571; Spackman v. [*8] Steidel, 88 Pa. St. 453; Horner v. Stillwell, 35 N.J.L. 307; Bentley v. Root, 19 R.I. 205, 32 A. 918; McKinney v. Lanning, 139 Ind. 170, 38 N.E. 601; Lathrop v. Elsner, 93 Mich. 599, 53 N.W. 791; Louisville & N. R. R. Co. v. Quinn, 94 Ky. 310, 22 S.W. 221.

   The right of way in this case is claimed by the plaintiff under a grant dated the 19th day of November, 1853, from one Elijah R. Arnold, the then owner of the servient estate, to one Levi Sheckells, the owner at such time of the dominant estate, as claimed by the plaintiff, whereby the grantor therein conveyed unto the grantee "his heirs and assigns, the right and privilege of the original road through his (the grantor's) farm lying in Anne Arundel county that leads to Chaney's Creek." The grant by which Sheckells became the owner of the dominant estate, if there was a dominant estate, is not in evidence, but by a deed executed on the 23rd day of October, 1877, by Ann M. Insley and Caroline E. Sherbert, the only children[***4] and heirs at law of Sheckells, certain lands therein described, said by the defendant to have been the dominant estate, were granted to Thomas H. Arnold, the grantor of the plaintiff; and in said deed reference is made to the fact that the land thereby conveyed "was a part of the same land that is described in a deed executed on the 19th day of November, 1853, by E. R. Arnold and wife to Levi Sheckells," and recorded among the Land Records of Anne Arundel County in Liber N. H. G. No. 2, folio 626, etc.; and in this deed were granted to Thomas H. Arnold the right and ways, etc., appurtenant to the lands so conveyed "especially the right of way granted to the said Levi Sheckells and assigns by deed from E. R. Arnold dated the 19th day of November, 1853, and recorded among said Land Records in Liber N. H. G. No. 2, folio 630.

   The lands mentioned in the deed from Ann M. Insley and Caroline Sherbert to Thomas H. Arnold were thereafter conveyed on the 23d day of February, 1885, by the said Thomas H. Arnold unto his son Alton R. Arnold, the plaintiff, together with the ways, appurtenances and advantages thereto [*9] belonging. In this deed, however, no special reference is made to the[***5] right of way granted on November 19th, 1853, by Elijah R. Arnold to Levi Sheckells, nor was special reference thereto necessary to convey such right had it existed at such time. The failure to mention it specially is referred to only as reflecting upon the fact whether or not at such time it existed.

   The plaintiff, when on the stand, located upon the lands of the defendant the right of way mentioned and described in the grant from Arnold to Sheckells dated November 19th, 1853, as "the original road" through the farm at that time owned by Elijah R. Arnold, the grantor, and at the request of the defendant located the said right of way upon a plat, a reduced fac simile of which is given below.

   [SEE DRAWING IN ORIGINAL]

   [*10] The original road as located by him is designated on said plat as A, B, C, D, E. The point A is on the county road at or near the present entrance of the defendant's property, and is the place at which the obstruction complained of is located, and the point E is on the bank above Chaney's Creek. The line from D to F upon the plat represents a private road leading from D to the Severn River and over which the plaintiff claims no right of way, although [***6]he and others have frequently used it, by the permission of the prior owners of the land now owned by the defendants. The bank of Chaney's Creek at point E is variously estimated by the witnesses to be from thirty to sixty feet. 

   The evidence of the plaintiff discloses that about thirty-five or forty years ago Sheckells used the road or way from A to E in hauling wood to Chaney's Creek; that upon reaching the point E they would throw the wood down the bank into the water below. The plaintiff states that he recalls the use of this road by Sheckells for the purposes aforementioned, but he, the plaintiff, never used the way from D to E nor has he ever heard of any one else using that part of said road since it was used by Sheckells thirty-five or forty years ago, and in fact he never knew of the alleged right of way over the land of the defendant until about three years ago, when he discovered it in the grant above referred to from Elijah R. Arnold to Levi Sheckells. He further testified that the land between D and E has been continually plowed up, sowed and cultivated in crops, that is, such part of it as lies between D and the wooded lands bordering upon the bank of the creek, and that[***7] it is now impossible to distinguish at such place exactly where the road once ran.

   John Day, a witness produced by the plaintiff, testified that he was eighty-two years old; that he had lived near the defendant's property all his life; that he knew Mr. Sheckells; also knew his daughters, the grantors in the deed to Thomas H. Arnold; he was also familiar with the alleged [*11] right of way over the lands of the defendant as located by the plaintiff, and that Sheckells used this right of way to haul wood to Chaney's Creek "as long as there was any wood to be hauled"; that he had recently seen the road, but he could not locate it over the field because it had been cultivated over; that it had been cultivated for "a good ways back" in rye, corn and other crops; he could not say that Mr. Arnold had cultivated it or that Mr. Baugh had, but it had been cultivated by Mr. Revell.

   John Y. Hall, another witness produced by [**154] the plaintiff, testified that he was forty-seven years of age. He knew the property now owned by the defendant and had lived on the adjoining farm all his life. He was then asked: "Did you know the road that led through Baugh's farm to Chaney's Creek?" Ans. [***8] "I know the road that was used before it was ploughed up thirty-five years ago."

   Mr. William T. Revell, a witness produced on the part of the defendant, testified that he owned the property now owned by the defendant until he conveyed it to the defendant in the year 1907; that he owned it for about four years; prior to that his mother owned it for twenty-five or thirty years; that he lived upon the farm all the time that his mother and he owned it; that the whole time he was upon the farm, so far as he knew, no one claimed or exercised any right of way over it; he permitted Mr. Arnold and others to use the landing on Asquith creek and the Severn river for "the landing of manure and the loading of watermelons." He further testified that when he first went upon the farm there was a peach orchard between D and E, upon the alleged right of way. This orchard he grubbed up and thereafter the land was planted and cultivated in crops by him, and that during the whole thirty years thereafter that he was upon the property no one ever used any road or way from D to E in going to Chaney Creek.

   "An adverse and hostile use of the servient estate inconsistent with the rights of the owner of the[***9] easement will [*12] start the statute of limitations running to defeat his right, and a continuous adverse use for the period of the statute will establish a right by prescription in the adverse claimant." Jones on Easements, section 865.

   The plowing of the ground and the sowing and cultivation of crops therein, such as rye and corn, year after year, upon the alleged right of way as shown by the plaintiff's testimony, was inconsistent with the rights of the owner of the easement, and this obstruction continuing for thirty-five years extinguished such right of way or easement, and thus the plaintiff was not entitled to recover, and therefore the prayer of the defendant taking the case from the jury should have been granted.

   There are some other questions presented, but inasmuch as we are of the opinion that the plaintiff failed to make ont a case for the jury and is therefore not entitled to recover, we will not consider them. We will reverse the judgment below without granting a new trial.

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

JAMES H. NOWELL vs. EMERSON C. HARRINGTON, COMPTROLLER OFTHE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
122 Md. 487; 89 A. 1098; 1914 Md. LEXIS 77

 January  15, 1914, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed, the appellant to pay the costs.

CORE TERMS:  approve, appropriation, adjournment, signature, erased, disapproved, disapprove, approving, dollars, misapprehension, disapproval, memorandum, demurrer, failure to return, appropriated, speaking, intend, veto, Acts of Assembly, point of time, appropriating, endorsed, waters

COUNSEL: James W. Owens (with whom was Eugene P. Childs on the brief), for the appellant.
 
Edgar Allan Poe, the Attorney-General, for the appellee.

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

OPINIONBY: BOYD

OPINION: [*488] [**1098] BOYD, C. J., delivered the opinion of the Court.

   This is an appeal from an order dismissing the amended petition of the appellant for a mandamus against the appellee. The petition sets out Chapter 630 of the Acts of Assembly of 1912, the first section of which is as follows: 

   "Be it enacted by the General Assembly of Maryland, That the Treasurer of this State be and he is hereby authorized and directed, upon the warrant of the Comptroller, to pay to James H. Nowell the sum of one hundred and seventy-five ($175.00) dollars for injuries done to the local guard boat, the sloop 'Maria,' while on duty in the waters of Herring Bay, said boat having been damaged by ice while guarding the waters of said Herring Bay."
[***2]

   It then states: 

   "That the Governor of Maryland, in approving the bill, endorsed on it as follows: 'This Act is approved for the sum of one hundred and twenty-five dollars ($125.00), and is disapproved for the amount or sum of fifty dollars ($50.00)'."
 
and alleges that section 17 of Article 2 of the Constitution does not authorize the Governor to approve part and disapprove the rest of an item of an appropriation, but that he is only authorized under that section to approve or disapprove the entire item under consideration. But while that may be an interesting question, it was not passed on by the lower Court, and it is not necessary for us to do so.

   It is admitted that the bill was not presented to the Governor until after the legislature adjourned, and no bill can become a law without the Governor's approval, if submitted to him after such adjournment. Section 17 of Article 2 of the Constitution. Lankford v. County Commrs., 73 Md. 105. If, then, the Governor did not actually approve the bill as passed by the legislature, it is manifest that such bill never became a law, and hence no appropriation was made by it for the sum of $175. Yet the appellant[***3] is in Court admitting that he had received the $125.00 and asking that the Comptroller "may be required to pay to your petitioner the [*489] additional sum of fifty dollars appropriated by said Act of the General Assembly." A sufficient answer to the petition might have been that the Comptroller has no power to pay any of the sum, as the bill required the Treasurer to pay it on the warrant of the Comptroller, which is the course usually pursued, but regardless of that, section 17 of Article 19 of Code of 1912 provides that, "Every warrant drawn by the Comptroller on the Treasurer for the disbursement of money, to be valid, shall express upon [**1099] its face the purpose for which it is drawn, and the Act of the General Assembly by which the appropriation is made," and section 32 of Article 3 of the Constitution provides that, "No money shall be drawn from the Treasury of the State by any order or resolution, nor except in accordance with an appropriation by law; and every such law shall distinctly specify the sum appropriated and the object to which it shall be applied."

   It was said in Warfield v. Vandiver, 101 Md. 78, 60 A. 538, that, "There are three[***4] ways in which a bill may become a law-- first, by being signed by the Governor; secondly, by being passed over his veto; and thirdly, by his failure to return the bill within six days after receiving it, unless by adjournment the General Assembly prevents its return." Section 17 of Article 2 of the Constitution is then quoted. Of course the Court was then speaking of bills which had been duly passed by the legislature. This bill did not become a law by being passed over the veto of the Governor, or by his failure to return it within six days (Sunday excepted), after receiving it, for, as we have seen, it was admittedly not received by him until after the adjournment of the legislature. The only remaining way by which it could have become a law was by being signed by the Governor.

   Was it, then, signed by him within the meaning of the Constitution, so as to make it a valid appropriation for the amount named in it? Below the copy of the Act filed with the petition as shown in the printed record is the following: 

   A reduced facsimile of the official indorsements upon the bill is given on the next page.

   [*490] [SEE EXHIBIT IN ORIGINAL]

   [*491] There is no charge in the[***5] petition that what we have quoted was not all placed on the bill at the same time, but on the contrary it is therein alleged "That the Governor of Maryland in approving the bill endorsed on it as follows," etc. It would seem clear therefore that the Governor did not intend to give his approval of the bill for the whole amount allowed by the legislature, and hence never did approve it as passed by the legislature. In Allegany County v. Warfield, 100 Md. 516, 60 A. 599, the Governor signed a bill, which had been passed by the legislature, in the presence of the officers of the Senate and House of Delegates, but immediately thereafter erased his name from the bill because he discovered that he was under a misapprehension as to what the bill signed was, and he had never mentally approved it. It was held that the bill so signed was not approved by the Governor within the meaning of the Constitution and did not become a law.

   In that case it was held that testimony of the Governor "that he signed the bill which is the subject of this proceeding by inadvertence and under a misapprehension as to what the paper being signed was, and without ever having gone through the[***6] mental operation of approving said bill, and that that he immediately thereafter erased his name from the bill" was admissible. JUDGE FOWLER, in speaking for the Court, said: "Of course there may be cases where a bill has been approved by mistake or misapprehension, and the point of time beyond which such mistake may be corrected by the Governor has passed. But this, as we have seen, is not such a case. It is conceded here by the plaintiffs under their contention in the first exception, that the Governor erased his signature immediately after writing it, and under the second exception that the signature was erased before the bill left the executive chamber." Whether or not that bill had passed beyond the Governor's control or out of his custody after he signed it was then considered, and it was held that it had not by being in the hands of the Secretary of State, the [*492] Court saying: "Neither the Constitution nor the law provides for or contemplates any possession of a bill after it is signed by the Governor other than his, until he causes it to be sent to the Clerk of the Court of Appeals for record, as provided by section 30, Article 3 of the Constitution. We, [***7] therefore, have no difficulty whatever under the facts of this case in holding, that the Governor never did approve the bill as contemplated by the Constitution, and that the placing of his signature to the bill was absolutely null and void, in so far as it affords any evidence of his approval thereof."

   Under that decision and from what appears in this petition we can have no hesitation in affirming the order of the lower Court which sustained a demurrer to the petition and, the petitioner having declined to amend it or plead further, dismissed the petition. It might perhaps have been better to have had the memorandum as to the approval of part and disapproval of the rest before the signatures of the Governor and the officers of the Senate and House of Delegates, but in the absence of something which would show that the bill was first signed at a point of [**1100] time which was beyond the power of the Governor to correct or recall, there can be no doubt that the Governor did not intend to approve the bill as passed, as the memorandum signed by him and the other officers clearly shows. The fact that the President of the Senate and the Speaker of the House also signed the memorandum,[***8] does not lessen the effect of the Governor's disapproval of a part, but on the contrary tends to show that it was all done at the same time.

   Although in view of what we held in Allegany Co. v. Warfield, supra, it is not necessary to cite authorities outside of our own, in the case of State v. Holder, 76 Miss. 158, 23 So. 643, one of the cases cited by the appellant, it was said: "The bill in question is an entire thing, inseparable in its provisions, and to be approved or disapproved as such, and, not being signed as a whole, was not made law by the partial and qualified approval which it received. It can not be law, for that would be to make law of what has not been concurred in by the [*493] legislature and the Governor * * * To hold that the bill became law as a whole would be to make it so without the Governor's approval, and in the face of his disapproval of the conditions. Both legislative declaration and executive approval are essential prerequisites to the enactment of any law." In that case the Governor approved part of a bill making appropriations, and disapproved parts which placed limitations on the use of the money appropriated.[***9]

   If, then, the appellant be correct in his main contention, that the Governor could not approve a part and disapprove a part of this item, about which we express no opinion, the result would be that the appellant was not entitled to any of the sum, and not that he could require payment of the residue. Inasmuch as he has received what the Governor was willing and intended to approve, he is certainly not in a position to complain, and the order of the lower Court will be affirmed.

   Order affirmed, the appellant to pay the costs. 

JOHN T. AMOS ET AL. vs. JOSEPH ABROMAITIS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
122 Md. 256; 89 A. 497; 1914 Md. LEXIS 54

 January  14, 1914, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. (BRASHEARS, J.)
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment reversed, with costs to the appellants, and new trial awarded.

CORE TERMS:  notice, constable, tax sale, levy, substantial compliance, treasurer, property assessed, collector, purchaser, ratified, posted, deed, constructive notice, conspicuously, tenant, duty, public sale, mailed, farm, order of confirmation, legally sufficient, motion to strike, notice provided, enforce payment, actual notice, null and void, illegality, discharged, succeeding, resisting

COUNSEL: John S. Young and Eldridge Howard Young (with whom was James M. Munroe, on the brief), for the appellant.
 
Ridgely P. Melvin, for the appellee.

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

OPINIONBY: THOMAS

OPINION: [*257] [**498] THOMAS, J., delivered the opinion of the Court.

   This appeal is from a judgment of the Circuit Court for Anne Arundel County, in an action in ejectment brought by the heirs at law of Isaac Amos of William, deceased, against the appellee to recover possession of a farm in that county.

   The defendant filed a plea of not guilty, and the trial of the case in the Court below resulted in a verdict and judgment in favor of the defendant, from which the plaintiffs appealed.

    The plaintiffs offered in evidence several deeds for the property mentioned in the declaration, including the deeds to Isaac Amos of William, and then produced evidence tending to show that he died, intestate, in Harford County, Maryland, [***2] [*258] on January 6th, 1877, seized and possessed of the property, and that the plaintiffs were his only heirs at law.

   The defendant then offered in evidence the record of proceedings in a tax sale of the property, made in 1892 for the purpose of collecting taxes levied in 1890, on property assessed to Isaac Amos; the deed from the treasurer and collector of taxes to the purchaser at the tax sale, and the several successive deeds under which the defendant claimed.

   All of this evidence was objected to by the plaintiffs, and was admitted by the Court subject to exception. At the conclusion of the defendant's testimony, the plaintiffs filed a motion to strike out the evidence of the defendant referred to, but the Court below overruled the motion, and at the instance of the defendant granted a prayer directing a verdict for the defendant, to which rulings of the Court the plaintiffs excepted.

   The defense rests entirely upon the tax sale proceedings, and the question of their validity is the only important one in the case.

   We have said in the recent case of McMahon v. Crean, 109 Md. 652, 71 A. 995, that a statute which requires a tax sale to be reported to[***3] and ratified by the Court, confers upon the Courts a special and limited jurisdiction, and that the order of confirmation "operates only to relieve the purchaser of the onus of proof, and to cast the onus of showing the illegality of the proceedings upon the party resisting the sale." When the sale has been ratified, this "Court will presume that the collector has discharged his duty, and no presumption will be invoked against the validity of the proceedings. But where it appears, by the record, or by proof, that material and substantial provisions of the law have not been observed in making the sale, it will be treated as utterly null and void."

   The provisions of the local law of Anne Arundel County, under which the sale in question was made, are found in the Code of Public Local Laws, 1888, Article 2. Section 229 provides that "It shall be the duty of the treasurer, during the month of March succeeding each levy, to make out all tax [*259] bills which have not been paid, in duplicate form, and to place the same in the hands of the several constables of the districts wherein the property assessed is located or the owners reside, to be delivered to the parties owning[***4] the same; and that each bill so made out shall contain a notice that if the same be not paid on or before the first day of June next after the date of said bill, the property upon which the taxes may be owing will be levied upon and sold to enforce payment thereof; * * * the bills so made out shall be placed in the hands of the said constables on or before the first Monday of April after the date thereof, and one copy of such bill shall be delivered to the person or corporate institution against whom it is made out; or in the event of failure to find such person or taxpayer in the district, such tax bill shall be left with the agent of such person or institution, or conspicuously posted on the property assessed, within thirty days after the receipt of the same; and the constable receiving such tax bills shall endorse upon one copy thereof the time and manner of service made, and shall return the same to the treasurer within twenty days after making such service." Section 230 provides that "It shall be the duty of the treasurer to enforce the payment of all taxes remaining unpaid on the first day of June in the year succeeding that in which the same shall have been levied, by a levy[***5] upon the real or personal property of the person or corporate institution so neglecting to pay; provided, the last notice required in the preceding section shall have been given; * * * Whenever any levy is made, notice thereof, together with a copy of the bill of taxes due, interest and costs, including that of the levy, shall be delivered to the owner, if he be in possession of the property, or at his residence, if it be within the same district, or mailed to him, if his post-office address be known, and if not, then to be conspicuously posted on the premises, together with a notice that if the said bill for taxes, interest and costs be not paid within thirty days, the property levied upon will be sold at public sale." Section 231 provides that a sale made by the treasurer shall be reported [*260] to the Circuit Court for said county; that the same shall be ratified by the Court if the proceedings are regular, and that such sale shall not be set aside if the provisions of [**499]the law shall appear to have been substantially complied with, &c.

   It appears from the report of sale made by the treasurer, being a part of the record of said proceedings offered in evidence, that[***6] he made out the tax bills against Isaac Amos for the year 1890, and placed the same in the hands of one of the constables for the district in which the farm in question was situated, and that one of said tax bills was delivered to the tenant, Frank Fisher; that said taxes being unpaid, a levy was made "on said lot of ground," and that "notice thereof, together with a copy of the bill for taxes due, interest and costs, including that of the levy, was delivered to the said Frank Fisher, together with a notice that if the said bill for taxes," etc., was not paid within thirty days the property would be sold at public sale, and that after the expiration of said notice, and after giving notice of the sale as required by the provisions of said Article of the Code, he sold the entire farm, on the 24th day of May, 1892, to the highest bidder, for seventy-five dollars.

   One of the tax bills sent to the constable in accordance with section 229, was returned, endorsed as follows: "Failed to find Isaac Amos in the 4th Dist. Sent copy to Black Hall, Harford Co., Md., April 29, 1891. F. M. Osborne, Constable of the 4th District of Anne Arundel County."

   The record therefore shows that one of[***7] the tax bills sent to the constable was, according to the report of sale, "delivered to the tenant, Frank Fisher," and according to the return of the constable, a copy was sent "to Black Hall, Harford Co., Md.," instead of being left with the agent of Isaac Amos, or conspicuously posted on the property assessed, as the law required, and that the notice of the levy, copy of tax bill, and notice that if the bill was not paid within thirty days the property would be sold at public sale, referred to in section 230, were, according to the report of sale, delivered to Frank Fisher, instead of being delivered to the owner, or [*261] at his residence, or mailed to him, or conspicuously posted on the premises, as required by said section.

   We think that the record shows that there was not a substantial compliance with the provisions of the statute. The effect of such proceedings is to take a man's property against his will, and, it may be, without his knowledge. The officer making the sale is not authorized to adopt forms of notice other than those required by law, and a substantial compliance with the provisions of the statute is essential to the transfer of title to the purchaser. Baumgardner v. Fowler, 82 Md. 631, 34 A. 537;[***8] Texler v. Shipley, 86 Md. 424; Richardson v. Simpson, 82 Md. 155, 33 A. 457; Taylor v. Forrest, 96 Md. 529, 54 A. 111; McMahon v. Crean, supra.

   In the last mentioned case the Public Local Law of Baltimore City provided that no sale could be made by the collector until he has "first given to the person or persons so in arrears, or has left at his, her or their residence, or last known residence, or, if neither can be found, on the premises, a statement of his, her or their indebtedness, and no less than thirty days' notice of his intention, if the bill is not paid within the time named, to enforce payment thereof." The bills for the amount of taxes due were delivered to one of the life tenants to whom the property was assessed, and the report of the collector stated that on the bills delivered to her there was "a printed notice stating that if the bills were not paid within thirty days from delivery it will be subject to distraint or execution." This Court held that such a notice was "insufficient, because it is not such as the law requires."

   In the case at bar, the first notice, according to the report[***9] of sale, was, as we have said, delivered to the tenant, and according to the return of the constable, was mailed to Black Hall, Harford Co., Md. The second notice was delivered to Frank Fisher. The evidence shows that at the time these notices were given, Isaac Amos, against whom the bills were "made out," was dead, and under section 229 the first notice should have been posted on the property assessed. Section [*262] 230 does not authorize the delivery of the notice therein referred to to any one except the owner of the property. In neither instance, then, was there a substantial compliance with the statute.

   The object of such statutory provisions is to give the owner of the property either actual or constructive notice of the taxes due, and that his property will be sold unless the amount thereof is paid. Constructive notice in such cases is the notice provided by law in lieu of actual notice, and no notice short of a substantial compliance with the requirements of the law can amount to constructive notice, or render effective and valid, proceedings based upon it.

   The learned Court below was, therefore, in error in overruling the plaintiffs' motion to strike out the evidence[***10] of the tax sale proceedings and the deeds based upon them. In this view of the case, and as the defense rested entirely upon the tax sale, it is not necessary to consider the other objections urged against those proceedings, or the other exceptions in the case, further than to say that the established practice in this State sanctions the withdrawal of a case from the jury only in cases where the evidence is not legally sufficient to justify a verdict for the plaintiff, and does not warrant the trial Court in passing upon the weight of the defendant's evidence. Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 A. 814.

   Judgment reversed, with costs to the appellants, and new trial awarded. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. THOMAS E.COLLISON. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
122 Md. 91; 89 A. 325; 1913 Md. LEXIS 5

 December  6, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

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

CORE TERMS:  team, brush, collision, pile, horse, feet, public road, width, proximate cause, narrower, driver, prayers, compelled, legally sufficient, brush pile, travelling, actionable, night, cause and effect, occasioned, turning, omission of duty, horse and buggy, single track, open space, obstruction, driving, thrown, killed, asleep

COUNSEL: Ridgely P. Melvin, for the appellant.
 
Robert Moss, for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [*92] [**325] BRISCOE, J., delivered the opinion of the Court.

   The appellee brought suit against the appellant for damages for the loss of a horse, which was killed as the result of a head on collision between his horse and buggy, while being driven on the public road by his son, and a horse and buggy of another. The negligence relied upon, as stated in the declaration, was, that the "defendant suffered and allowed trees and bushes to be cut down and thrown into the public road * * * so that the portion of said road open for public travel was only of the width of eleven feet, and not wide enough for two [**326] teams to pass thereon." At the conclusion of the testimony of both parties, the Court granted both prayers offered by the plaintiff, which, however, do not appear[***2] in the record, and refused two offered by the defendant. The two prayers of the defendant asked the Court to withdraw the case from the jury, the first for the reason "that there was no legally sufficient evidence to show that any negligence on the part of the defendant was the proximate cause of the accident;" and the second, the usual one, that there was no legally sufficient evidence to entitle the plaintiff to recover. The rejection of these prayers constitute the only exception in this appeal.

   [*93] It will be necessary, therefore, to review the testimony, practically all of which is undisputed. It appears from the testimony, offered upon the part of the appellee, that the road in question is a country road and has been in use for a great many years. It is what is termed a single track road for several hundred feet in proximity to the place of the accident, that is, that there is but one wagon track worn and used by the travelling public. The road is straight, with no obstructions upon or along this single track. That opposite the place of collision there was an accumulation of brush, covered with vines, which had been thrown there a year prior to the date of the accident [***3]by telephone linemen, and allowed to remain. This pile extended into the cleared portion of the road three or four feet further than the rest of the bushes growing along both sides of the road, and toward the track, but not to it. That the open space at this point was about eight feet, and that in order for teams to pass here, one would have to drive over a portion of the brush. The appellee's son, the driver, testified that the accident occurred on a dark night; that he had been in the habit of travelling over this road two or three times a week and had been over it two or three nights before the accident; that he had known this brush pile to be there for a year; that it made a shadow at this place; that he was jogging along at a moderate speed, and as was his custom, "letting the horse take his own course, and was driving with loose reins;" that he made no effort to pass the other team, because he did not see it until the collision took place; that the shaft of the other team penetrated the neck of his horse, from which injury it shortly died. The driver of the other team, called by the defendant, testified that his horse was travelling at a walk, and that the first he knew of the[***4] approach of the other team was from the collision.

   The only dispute in the testimony is that the defendant's witnesses testified that, by actual measurement, the open space was thirteen feet in width; and the driver of the other [*94] team testified that, immediately after the collision, the appellee's son had stated to him "I didn't see you. I was asleep." To which, the appellee's son testified that he had not said that, but that what he did say was "Somebody must have been asleep." However, in considering the questions raised, the testimony of the appellee will be taken to be true.

   The appellee urged in support of his contention, not only that the pile of brush, as located, constituted an obstruction and defect, for which the appellant could be held liable for any injury resulting directly therefrom, but further, that the appellant was guilty of negligence in maintaining a public road narrower than that authorized by law, and was therefore liable to anyone injured by reason thereof. There can be no question but that the county can be made liable for an injury directly caused through its negligently allowing defects to remain in a public road. Harford County v. Hause, 106 Md. 439, 67 A. 273,[***5] and many other cases. Or like in the case of Flagg v. Hudson, 142 Mass. 280, 8 N.E. 42, cited by the appellee. But there must be some causal connection between the defect and the injury. In the Mass. case, the injury was occasioned through the plaintiff being compelled to pull his team away from a defect and thus, crashed into another team. In this case, there is not a particle of evidence, that the pile of brush compelled the team of the appellee to be diverted from its course by either the driver or by the horse instinctively shying from it. But on the other hand, the testimony shows that the brush pile had no part in the collision except in that the road at that point was, because of it, three or four feet narrower than on either side of it. That the brush pile was opposite the place of collision, appears a coincidence rather than a cause. Or if the injury had been caused by the appellee's son turning into the pile of brush, and had thereby suffered injury; or if the testimony showed he was prevented by the pile of brush from turning out of the way of the other team, and thus was run into, a different question altogether would be presented. But even assuming[***6] that it is prima facie negligence to allow [*95] piles of brush to accumulate along and in public roads, or to have roads narrower than the statutory width, the difficulty is, in the absence from the record of any testimony connecting those conditions with the injury complained of, to assume that the injury was occasioned thereby. Conceding the negligence, the injury has to be traceable to it before there can be a liability.

   This has been invariably held by this Court, and very recently in the case of Young Co. v. Kabat, 117 Md. 247, 83 A. 345, through JUDGE BURKE, it expressed this principle as follows: "Actionable negligence is an act, or omission of duty, which is the proximate cause of an injury. No matter to what extent, or in what respect a party [**327] may be negligent, such negligence does not constitute a cause of action, unless the negligence charged and the injuries sued for bear the relation of cause and effect. In legal contemplation, actionable negligence and injury are cause and effect." Therefore, unless the testimony tended to show that the negligence relied upon was the proximate cause of the accident, there was nothing upon which[***7] a jury could predicate a verdict for the party complaining, and the Court should have declared that as a matter of law, and directed the jury so to find.

   With this opinion of the law, as applicable to the facts of this case, we think the prayers of the appellant should have been granted, and we are therefore compelled to reverse the judgment.

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

JOHN B. MARTIN vs. JAMES M. MUNROE, ADMR. OF THE ESTATE OFLOUISA MAY MARTIN, DECEASED, JOHN F. MARTIN AND SUSANNA V. MARTIN. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
121 Md. 679; 89 A. 319; 1913 Md. LEXIS 87

 December  2, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County, in Equity (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree affirmed; the costs to be paid out of the fund.

CORE TERMS:  deposit, gift, savings, ownership, deposited, implied agency, withdrawals, endorsed, surviving husband, bank account, declarations, presumed, decedent, earning, opened, decree, absolute ownership, right to withdraw, deceased wife, checks drawn, short time, identification, inadmissible, attributed, incapacity, signature, possessed, perfected, withdraw, withdrew

COUNSEL: Jerry L. Smith and Nicholas H. Green, for the appellant.
 
Robert Moss and James M. Munroe, for the appellees.

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

OPINIONBY: URNER

OPINION: [*681] [**319] URNER, J., delivered the opinion of the Court.

   In January, 1894, an account was opened in the Annapolis Savings Institution in the name of Louisa May Martin. At the time of her death in November, 1909, the balance credited was $6,030.50. The ownership of this fund is the subject of the present litigation. The appellant, who is the surviving husband of the decedent, claims the deposits on the theory that they were made exclusively with his individual money, that the account was always subject to his control, and that no gift of the funds was ever intended. This claim is resisted by the two children of the appellant and of his deceased wife, who assert that the account represents in large part their mother's own savings from a business[***2] conducted by her for many years, and that any contributions which their father may have made to the deposits must be regarded as completed gifts. Shortly after the death of his wife the appellant withdrew the money under an order which he signed in her name. He later paid it over to the appellee administrator, who now holds it subject to the determination of the question of title. A bill in equity against the other parties interested was then filed by the appellant claiming the ownership of the fund upon the grounds stated. The Court below was unable to sustain the claim upon the proof in the case, and the record is before us upon appeal from a decree dismissing the bill. There are exceptions to certain portions of the testimony, and we shall accordingly recite only such facts as are established by [**320] what we regard as the weight of the competent evidence.

   When the account now in dispute was opened in 1894 the appellant was a harness dealer and his wife kept a small confectionery store. They withdrew from these enterprises in the course of a few years, and since 1897 Mr. Martin has been conducting a saloon, while Mrs. Martin was engaged in the work of providing sandwiches[***3] and other edibles for sale at the bar. The part of the business in which his wife was thus interested was treated as her independent undertaking, and the profits, amounting at times to as much as fifteen dollars [*682]per week, were regularly set apart as belonging to her individually. Her savings from this source during the long period indicated must have been considerable, as she was a frugal and thrifty woman and her husband was able to support the family without aid from her earnings. The evidence shows that Mrs. Martin could not read or write. The account in the Annapolis Savings Institution was opened in her name by her husband and her signature was written by him in the identification book. She was not present at the bank on that or any other occasion. The sums deposited from time to time were usually taken to the bank by Mr. Martin or by a messenger. The appellant's son, John F. Martin, testified that he was occasionally sent there by his father to deposit some of his mother's savings. There were a number of withdrawals from the account, and these were invariably made by checks drawn to the order of Mrs. Martin and signed and endorsed by her husband in her name. There[***4] is no suggestion as to the existence of any other assets representing her accumulated profits, and we can have no doubt, upon the record before us, that they were placed in the Savings Institution.

   The appellant had an account in his own name in The Farmers' National Bank of Annapolis. It is shown by the proof that checks on this account were drawn by Mr. Martin to the order of his wife and were endorsed by him in her name for deposit to her credit in the other bank. According to the testimony of the son, John F. Martin, some of these checks were given for his mother's savings which his father had held for a time. But the aggregate of the checks drawn by the appellant on the Farmers' National Bank and deposited to the credit of Mrs. Martin in the Annapolis Savings Institution apparently exceeded the total amounts she could reasonably be supposed to have derived from her business. To the extent of this excess the deposits so entered may have been intended as re-payments of the withdrawals to which we have referred, or they may have been made simply as gifts from the husband to the wife. In either event they were placed by the appellant to his wife's credit in a bank [*683] account [***5]which was not only kept in her name, but in which her own money was currently deposited.

   In view of the conditions we have described the appellant's contention is clearly not sustainable. If his wife had survived him, there is obviously no legal or equitable principle upon which her title to the fund could be denied. If his claim to the deposits were to be now recognized after her death, it would have to be solely upon the ground that the bank account of his illiterate wife was subject, while she lived, to his unrestricted control. The decision of the case could not justly be based upon such a theory. The authority possessed by the husband to withdraw the money of the wife at his pleasure did not invest him with the ownership of the account. It was the depositary of her own savings, and her title was not divested merely because her incapacity made it necessary and proper for her husband to have entire charge of her interests. If it be assumed that some of the deposits to the credit of Mrs. Martin in the Savings Institution were made by the appellant with his own funds, upon which his wife originally had no claim, the amounts so placed in her account must, under the circumstances, [***6] be regarded as perfected gifts, and they could not properly be held to have been deprived of that character simply because of the husband's ability to make withdrawals. His management of the account must be attributed to his implied agency for his wife and not to the assertion for himself of an absolute ownership of her money. If Mrs. Martin had been capable of attending personally to her finances and had been in actual control of her funds in bank, it is clear that deposits by her husband to her credit and subject to her order in her current account would be presumed to be completed donations. In such case the subject of the gifts would plainly have passed under the dominion of the donee and beyond the donor's power of recall. This, in its essential legal aspects, is the condition with which we have now to deal. It is proven in the case that according to the practice of the Savings Institution money could not be withdrawn from an account except upon the order of the person [*684] to whose credit it was entered. The checks upon Mrs. Martin's account were drawn and endorsed in her name by her husband, and were honored by the bank, upon the evident theory that he was invested with[***7] authority from his wife for that purpose. His right to withdraw the funds could be exercised only in her name and by virtue of an express or implied agency. The authority of the agent is presumed to be consistent with the interest and title of his principal, and in such a case as the present we can have no difficulty in holding that deposits by the husband in the wife's bank account were not ineffective as gifts simply because her affairs were of necessity left so completely in his hands.

   There is no occasion to review in this opinion the various cases to which we have been [**321] referred upon the subject of gifts in the form of bank deposits. The decisions cited were all governed by circumstances which differed materially from those now under review. The principles relating to gifts inter vivos are too well settled and familiar to require discussion. The only question in any case is as to their application to the particular facts. Upon the present record we have been unable to reach any other conclusion as to the title to the money in dispute than the one we have indicated.

   The testimony of the appellant has been excluded from our consideration of the case in so far as[***8] his statements relate to the ownership of the fund. It is provided by Article 35, section 3 of the Code that in such an action as the present no party to the cause shall be allowed to testify as to any transaction had with or statement made by the decedent, except under conditions which do not here exist. It has been urged that the appellant's testimony is admissible because it describes transactions which occurred with the Savings Institution and not with his deceased wife. In our view of the case the prohibition of the statute is clearly applicable. The effect of the appellant's narrative, if admitted, would be to show that all of the deposits to his wife's credit were made with his individual money and that she never had any interest in the account. It is difficult to see how any evidence could more [*685]immediately affect her rights. The disposition by the appellant of funds deposited in his wife's name and subject to her order could hardly be regarded otherwise than as a transaction with the wife, and his denial of her interest in the account is not sufficient to exempt him from the disqualification of the statute.

   We have likewise excluded, under the Code provision cited, [***9] the testimony of the appellee, John F. Martin, as to acts and declarations of his mother in reference to the earning and deposit of the profits from her business. It has not been necessary, however, to disregard the statement of this witness as to his being sent to bank by his father with his mother's savings. This related to a transaction between the witness and a living party to the suit, and it is not affected by the terms or intent of the Act.

   Objection was made to the proof by other witnesses of declarations by Mrs. Martin a short time before her death, referring to the deposits to her credit in bank as her own and as being subject to her right of disposition. These assertions of ownership appear to have been made out of the presence of her husband, and in view of previous decisions of this Court they have not been considered.  Duvall v. Hambleton, 98 Md. 12, 55 A. 431; Taylor v. Brown, 65 Md. 366, 4 A. 888.

   Upon the admissible evidence in the case we concur in the conclusion of the learned Court below, and the decree will accordingly be affirmed.

   Decree affirmed; the costs to be paid out of the fund. 

ROBERT P. GRAHAM, SECRETARY OF STATE, OF STATE OF MARYLAND,vs. GEORGE L. WELLINGTON ET ALS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
121 Md. 656; 89 A. 232; 1913 Md. LEXIS 85

 November  12, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: The order was reversed and the petition dismissed.

CORE TERMS:  certificate, nomination, vacancy, election, inoperative, ballot, secretary, nominated, fill, primary election, candidate, nominee, filled, directory, certify, time fixed, convention, supervisors, twenty-five, mandatory, political parties, chairman, complied, filling, per curiam, political party, general rule, resignation, manifestly, personally

COUNSEL: Edgar Allan Poe, Attorney-General, for the appellant.
 
George R. Gaither and Charles J. Banaparte, for the appellee.

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

OPINIONBY: BOYD

OPINION: [*658] [**232] BOYD, C. J., delivered the opinion of the Court. 

   This is an appeal from an order of the lower Court, directing a mandamus to issue against the appellant, the Secretary of State, of the State of Maryland, requiring him to certify to the Boards of Supervisors of Elections of Baltimore City and of the counties, the nominations of the three appellees by the Progressive Party for the offices of United States Senator, Comptroller and Clerk of the Court of Appeals, respectively. The certificates of nomination were not filed with the Secretary until October 11th; but the agreed statement of facts made by the attorneys shows that the certificates were intended to be filed by him on Oct. [**233] 10th, 1913; the Chairman of the Progressive [***2]Party, however, believing that they should be placed in the hands of the Secretary personally, called up the personal office of the appellant by telephone, in Baltimore City, and received from a subordinate in that office the message that the Secretary was not within the State and would not return until October 11th, which was correct. No further attempt was made to deliver the certificates until the morning of the 11th, when they were delivered to the Secretary in person, and were the same day mailed to the Secretary's office in Annapolis. The nominations were made by the members of the State Central Committee of that body, who were authorized, by the delegates elected at a primary election in convention assembled by a resolution unanimously passed, to fill any vacancy which might or did exist in respect to the nominations [*659]of said party for the three offices--the members of the committee having also been elected at the said primary election. There were no candidates at the primary election for those nominations, and they were made by the committee, under the provisions of the statute authorizing vacancies to be filled which may exist by reason of there being no candidates[***3] for said offices at the primary election as the rules and regulations of the governing bodies of the respective parties may or shall provide. The certificates of nominations were not before us, but no objection was made to them for any reason other than because of the time at which they were filed. The Secretary of State, upon the advice of the Attorney-General, refused to certify the nominations to the supervisors because they were not filed as required by section 47 of Article 33 of the Code. In referring to the several sections of this Article, we will mean the Code of 1912, which must be borne in mind, as many of the sections are numbered differently in that Code from what they were in the original Acts, and from those in the pamphlet issued by the Secretary of State.

   Section 47 is as follows: "Except in cases provided for by section 51 and cases of special election to fill vacancies in office caused by death, resignation or otherwise, such certificates of nomination shall be filed respectively with the Secretary of State not less than twenty-five days, and with the Board of Supervisors of Elections not less than fifteen days before the day of election."

   As the day of the election[***4] was November 4th, it will be observed that the 10th day of October was "not less than 25 days before that time, unless either the 10th of October or November 4th be counted, even if it be conceded that what was done on the 10th of October was sufficient to permit the Secretary of State to treat the certificates as filed that day. But we cannot concur in the view that what was done by the chairman on that day, as set out in the petition and stipulation of the attorneys, was a compliance with the requirement of the statute. It does not require such a certificate to be [*660] filed with the Secretary of the State personally, but it contemplates it being filed in his official office, which is at Annapolis, although, of course, we do not mean to say that if one be delivered to the Secretary of State in person in Baltimore, or at some place other than his office in Annapolis, and he accepts it, that would not be sufficient. These certificates should have been sent to or delivered at the office of the Secretary of State in Annapolis (where his official office is) and the absence of the Secretary from his office, or from the State, would not have prevented them from being filed within[***5] the meaning of the statute. Presumably some one would be there during office hours to receive them for the Secretary of State, and it is not shown or suggested that the office of the Secretary was closed by reason of his absence from the State throughout that day, or that there was no one there who could have received them. If such conditions ever exist, and a certificate of nomination cannot for that reason be filed in time, a wholly different question from the one now before us will be presented.

   Being of the opinion that what was done by the chairman on October 10th was not sufficient to excuse him for not filing the certificates before October 11th, which was undoubtedly not within the time fixed by the statute, it is not necessary to determine whether filing it on October 10th would have been in time. It will not be amiss, however, to call attention to the terms of the statute, which are, "not less than twenty-five days * * * before the day of election." While the general rule, in the computation of time, is to include one day and exclude the other, and not to include or exclude both, there are many decisions which hold that if a statute indicates that there are to be[***6] so many clear days, or that requires so many days at least, both are to be excluded. We will only refer to what was said in Walsh, Trustee, v. Boyle, 30 Md. 262 and 267, and without saying more on that subject, we will consider the effect of not filing the certificates until October 11th, which is the earliest day we can treat them as filed.

   [*661] In determining the effect of a failure to comply with the terms of statutes regulating elections, the preparation of ballots and who can be placed on them, as well as other matters connected with elections, the intention of the legislature must be sought for, and when ascertained followed: "This intention may be manifested either by express declaration, or by a consideration of the general scope and policy of the act," as was said by JUDGE BURKE in Carr v. Hyattsville, 115 Md. 545, 81 A. 8. Courts should undoubtedly hesitate to declare elections invalid merely because some of the requirements of the statute in reference [**234] to preliminary matters have not been literally complied with, unless they be declared by the Legislature to be essential to the validity of the election[***7] or be of such character as the Court can see they were so intended. But we are not now called upon to determine whether placing on the official ballots the names of those whose certificates of nomination were not filed by the time fixed by the statute could invalidate an election in other respects regular, and we do not want to be understood as intimating that such would be the result, but the real question before us is whether the Secretary of State, with whom the statute required certificates of nominations for such offices as these to be filed, not less than twenty-five days before the day of the election, can be required to certify to the Supervisors of Elections the names and descriptions of those persons specified in those certificates, although the certificates were not filed with him by the time fixed by the statute.

   Section 48 of Article 33 requires the Secretary of State to certify to the Supervisors of Elections of each county and of Baltimore City the nominees for such offices as those before us, not less than eighteen days before the election. Sections 47 and 48 of Article 33 were in the original Act, (1896, Chapter 202), being there numbered sections 42 and 43, and are[***8] still just as they were originally passed in 1896, excepting in that Act section 42 provided that the certificates of nomination should be filed "respectively, with the Secretary of State, not less than twenty days, and with the Boards of [*662]Supervisors of elections not less than ten days before the day of election." By the Act of 1900, Chapter 366, that section was amended, so as to provide that those to be filed with the Secretary of State should be filed not less than twenty-five days, but still left ten days as the time for them to be filed with Supervisors of Elections. Then by Chapter 133 of the laws of 1902 the section was amended to read as it now does. Those amendments show that the Legislature did not consider the time originally fixed sufficient. No change has been made in what was originally section 43 (now 48) since it was passed in 1896, and the fact that such amendments were made is a strong indication that the legislature intended to require the certificates to be filed not less than the number of days respectively mentioned before the day of election. If twenty-four or twenty days would in its judgment answer, the Legislature could have had no reason[***9] for amending the original provisions which it did at its second session after the original Act was passed.

   Section 43 of Article 33 (section 38 of Act 1896) authorizes nominations to be made otherwise than by a convention or primary election, usually spoken of as independent nominations or those by petition, upon compliance with its requirements. If what is now section 47 is to be held so far directory as to authorize certificates of nominations to be filed at any time, provided they be in time to have them placed on the ballots, or at least in time to enable the Secretary of State to certify them not less than eighteen days before the election, then political parties and individuals can ignore the time fixed by the statute and consult their own convenience instead of obeying the requirements of the law. The Secretary of State may have, after the twenty-five days limit, prepared his certificates for the various Boards of Supervisors of Elections, but some political party or some individual or individuals could under the construction of the appellees still file such certificates of nomination and require him to certify them, regardless of the inconvenience or possible expense and confusion[***10] caused by the delay and of the fact that the Legislature [*663] manifestly deemed it important to have it known by the voters, as early as possible, who the nominees were.

   If section 47 is to be deemed merely directory as to the certificates of nomination to be filed with the Secretary of State, it must be equally so as to those to be filed with the Supervisors of Elections. They are required by section 49, which was section 44 of Act of 1896, to publish at least eight days before the election the nominations to office which have been filed with them or certified to them under the provisions of Article 33. The ballots are required to be printed, and in possession of the supervisors at least four days before election day, which necessarily requires some days in advance of that time, for the proper arrangement and printing of them. As very many nominations are often made, it is evident that the Legislature was wise in amending section 47, so as to fix fifteen instead of ten days for the filing of certificates of nomination with the supervisors. It would certainly be remarkable if political parties or individuals could ignore the provision fixing fifteen days as the time and file [***11]the certificates, for example, ten days before the election,--the time limit which the Legislature by the amendment clearly indicated was not in its judgment sufficient, and which the Court can itself see might not be for many, perhaps most, general elections.

   What is now section 51 of Article 33 (section 46 of Act of 1896) also strongly indicates that the Legislature did not intend the provisions of section 47 to be merely directory. It makes provisions for filling vacancies and so much of it as we deem necessary to quote is as follows: "Should any person so nominated die before election day or decline the nomination, as in this article provided, or should any certificate of nomination be or become insufficient or inoperative from any cause, the vacancy or vacancies thus occasioned may be filled in the manner required for original nominations. If the original nomination was made by a party convention which had delegated to a committee the power to fill vacancies, [**235] such committee may, upon the occurring of such vacancies, proceed [*664] to fill the same; the chairman and secretary of such committee shall thereupon make and file with the proper officer a certificate[***12] setting forth the cause of the vacancy, the name of the person nominated, the office for which he was nominated, the name of the person for whom the new nominee is to be substituted, the fact that the committee was authorized to fill vacancies, and such further information as is required to be given in an original certificate of nomination." After providing that the certificate shall be executed and acknowledged in the manner prescribed for the original certificate, it says that it "shall, except in case of a nominee dying, be filed at least eight days before the day of election, and in cases of either resignation or death shall be filed within six days after the vacancy shall have occurred, and upon being so filed shall have the same force and effect as an original certificate of nomination." It then continues: "When such certificate shall be so filed with the Secretary of State, he shall, in certifying the nomination to the Supervisors of Elections, insert the name of the person who has been thus nominated to fill a vacancy in place of that of the original nominee; and in case he has already sent forth his certificate he shall forthwith certify to the supervisors the name and[***13] description of the person so nominated to fill a vacancy," etc.

   It is clear from those provisions that the Legislature believed and intended that the times mentioned in section 47 were imperative, for if a certificate could be filed after the times named in 47, provided it be filed early enough to enable the officers of the law to perform their duties, then why did the Legislature expressly make provision for the Secretary of State inserting the name of the person nominated to fill the vacancy in his certificate to the supervisors and provide for an additional certificate in case he had already sent the regular one? If the certificate of nomination can be filed after the time named in 47, there would be no occasion for a vacancy by reason of the certificate being or becoming insufficient or inoperative, for it could be amended and refiled and made sufficient and operative--certainly before the Secretary [*665] had complied with section 48. Yet the Legislature provided for such a vacancy, which could only have been on the understanding that section 47 drew the line which was to be observed. Other provisions in section 51 might be cited to show that the Legislature did not intend[***14] to allow the certificates to be filed after the times named in section 47, unless they so expressly authorized.

   We stated, in the per curiam order filed already, that the committee of the Progressive Party could, under the authority vested in it to fill vacancies, make the nomination under section 51. The language of the statute--"should any certificate of nomination be or become insufficient or inoperative from any cause"--seemed to us sufficient to justify that conclusion, as we deemed the certificates of nomination inoperative because they were not filed in time, and our construction is supported by a number of decisions of other States where there are similar statutes. In People v. Hartley, 170 Ill. 370, 48 N.E. 950, S. C. 48 N.E. 950, the county clerk, who was the officer with whom the certificate of nomination was to be filed, refused to place the names on the ballot because it was not filed thirty-days before the election. The Central Committee then filled the alleged vacancies by nominating the same persons for the offices in question. The statute provided that, "In case a candidate who has been duly nominated under the provisions[***15] of section six (6) of this Act die before election day, or decline the nomination, as in this Act provided, or should any certificate of nomination be held insufficient or inoperative by the officer with whom they may be filed, the vacancy or vacancies thus occasioned may be filled," etc. The Court held that the refusal of the County Clerk to place upon the official ballot the names of the candidates nominated by the Convention because the certificate was not filed thirty days before the day of election was in effect a holding that the certificate of nomination was inoperative, and that vacancies so caused could be filled by the Central Committee. In Bower v. Clemans, 61 Kan. 129, 58 P. 969, s. c. 58 P. 969, the statute was practically in the same language as that of Illinois [*666] and the same conclusion was reached by that Court. In Reese v. Hogan, 117 Iowa 603, 91 N.W. 907, s. c. 91 N.W. 907; State v. Hogan, 24 Mont. 397, 62 P. 683, s. c. 62 P. 683, and State v. Clark, 56 Neb. 584, 77 N.W. 87, s. c. 77 N.W. 87, the statutes were in effect[***16] the same as ours--providing that when certificates were insufficient or inoperative the vacancies could be filled--and the same conclusion was reached by the Courts of those States. It is true they did not determine whether the times named were directory or mandatory, but they in effect justified the action of the officers with whom the certificates were filed, in refusing to put the names on the ballots, because the certificates were not filed within the times named, as the decisions were based on the ground that vacancies had been thereby created. It could only be said that certificates of nomination had become inoperative, by reason of not being filed in time, on the theory that the time named in the statute fixed the latest date at which they could be filed, as manifestly if they could be filed after such time they were not inoperative.

   It may be contended that such a construction of section 51 will enable political parties to avoid the requirements of section 47, but it is not likely that a political party will deliberately and intentionally render its certificates of nomination inoperative, or that its nominees would consent to such a course. It is difficult to see any advantage[***17] a party [**236]could obtain by postponing the filing of such certificates, especially as it can only get the names on the ballots by filling the vacancies under the terms of the statutes, which would result in additional and unnecessary trouble, and in many cases in useless expense. Certain it is that the original nominees would not be benefitted by having the certificates filed later than the times named in section 47, and it would be possible that others might be nominated in place of all or some of them.

   But however that may be, the language of the statute is very broad--"insufficient or inoperative from any cause"-- and the authorities we have found are all one way in the construction of such a provision. The object of the Legislature was to prevent political parties from being deprived of having [*667] their candidates on the official ballot, and inasmuch as it had named the time within which the certificates of nomination must be filed, and then, as construed by us and other Courts, treated as vacancies the places not filled by certificates filed within such times, it must follow that the times named were not intended to be merely directory.

   We have not thought[***18] it necessary to refer to the many decisions in this State and elsewhere on the general question when provisions in statutes shall be deemed directory and when mandatory, but we are of the opinion that the times named in section 47 must be complied with, in filing such certificates of nomination as are included in it. The general rule apparently is that statutory provisions in regard to the time of filing certificates of nomination are mandatory; 15 Cyc. 338 and 10 Am. & Eng. Ency of Law, 638 and 654, and cases cited in the notes. It is certainly safer and better to require such certificates to be filed by the times named in the statute than to leave it to the discretion of the officers with whom they are to be filed, to accept or reject them, as they may think it would be in time to enable them and other officers of the law to properly perform their duties. As the Legislature has been very liberal in providing for filling vacancies, there can be but little danger of the nominees of any political party having injustice done them by our construction of the statute.

   It was, however, contended on the part of the appellees that section 47 did not apply to them, as they were nominated[***19] under the provisions of what was originally section 160K, now section 188 of Article 33, as amended by Chapter 2 of the Acts of 1912. That section concludes as follows: "Any vacancy which may exist in respect to any office, delegates to conventions or position named in this sub-title occurring after the returns have been canvassed and finally announced, or which may exist by reason of there being no candidate for the same in any such primary election or otherwise, shall be filled as the rules and regulations of the governing bodies for the respective parties in the counties, city or State, may now [*668] or shall hereafter provide." That section is a part of the sub-title, "Primary Elections," added to Article 33, title "Elections." As originally enacted Ch. 737, Laws of 1908, p. 103, the provision was simply, "Any vacancy which may exist in respect to any office or position, after the returns have been canvassed and the final result announced, shall be filled," etc. By Ch. 741, Laws of 1910, p. 113, the Act of 1908 was repealed and new sections enacted in place of those in it, and section 160K concluded with the provision quoted above. Then by Chapter 2 of laws of 1912, a number[***20] of those sections were amended, including 160K, but the provision as to vacancies was continued as it was adopted in 1910. The clause added, with which we are now concerned, is, "Any vacancy * * * which may exist by reason of there being no candidate for the same in any such Primary Election." The provision for filling vacancies was a wise, and perhaps necessary one by reason of the fact that prior provisions of the primary election laws were so broad and comprehensive that there would have been some question as to the right to fill at least some of the vacancies in any way other than by primary elections. The primary election law did not fix the times when certificates of nominations should be filed, but section 160K (188 of Article 33) provides that "All nominations to be made by such conventions shall be made in like manner and certified as required by this article." When then we turn to other parts of Article 33 we find section 47 which requires certificates of nomination to be filed at the times named "Except in cases provided for by section 51 and cases of special election to fill vacancies in office caused by death, resignation or otherwise." Manifestly, vacancies which exist[***21] by reason of there being no candidates for the offices at the primary elections are not embraced in section 51, and they are the vacancies which the appellees contend existed. No reason was suggested why the certificates of the original nominations could not have been prepared and filed within the time fixed by section 47, and such as these could ordinarily be easily so prepared and filed, but however that may be, in [*669] our judgment as section 160K fixes no time and the certificates did not come within the exceptions to section 47, the time fixed in the latter applied to them.

    Inasmuch as the Attorney-General and the attorneys for the appellees requested us to determine whether the committee of the Progressive Party could still make nominations for these offices and file certificates of the same under section 51, and as the time was so short that it would have been difficult, if not impossible, to have had a decision by us early enough to be of use, after the committee had made nominations and filed the certificates under section 51 and the question had been passed on by the lower Court, [**237] we expressed our views on that subject in the per curiam order, and as[***22] we have said above, we were of the opinion that the committee could proceed under section 51. The conclusion reached by us, therefore, did not prevent this party from having nominees for the three offices on the official ballot, and we can see no reason to fear that our construction of section 51 will lessen the importance of section 47, but if it does the Legislature can make such changes as it deems proper to avoid that result hereafter.

   For the reason stated the order directing a mandamus to issue was reversed and the petition dismissed by the per curiam order heretofore filed. 

HENRY BRUNT vs. THE FARINHOLT-MEREDITH COMPANY. MARY COALEDUGAN vs. THE FARINHOLT-MEREDITH COMPANY. THE NATIONAL JUNIOR REPUBLIC vs. THEFARINHOLT-MEREDITH COMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
121 Md. 126; 88 A. 42; 1913 Md. LEXIS 32

 June  24, 1913, Decided

   PRIOR HISTORY:  [***1] Three appeals from the Circuit Court of  Anne   Arundel  County in Equity (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree in each of the three cases reversed, and causes remanded, the appellee to pay the costs in each case.

CORE TERMS:  mill-work, estimate, notice, decree, contractor, furnish, builder, blinds, furnishing, cross-examination, amounting, lumber, materials furnished, separate contract, lattice, nails, afterwards, flooring, quantity, cut down, specifications, commencement, continuously, remember, rough, pair, feet, bid, lts, original contract

COUNSEL: James M. Munroe (with whom was Ferdinand C. Dugan on the brief), for the appellant.
 
Winson G. Gott, for the appellee.

JUDGES: The three causes were argued together before BOYD, C. J., BRISCOE, BURKE, THOMAS, PATTISON, STOCKBRIDGE and CONSTABLE, JJ.

OPINIONBY: BOYD

OPINION: [*127] [**43] BOYD, C. J., delivered the opinion of the Court.

   The three appeals of Henry Brunt v. Farinholt-Meredith Company, Mary Coale Dugan v. Same, and The National Junior Republic of the City of Baltimore v. Same, were argued together.

   The firm of De Waard and Sons, contractors and builders, entered into a contract with each of the appellants for the erection of a house--those of Mr. Brunt and Miss Dugan being in Annapolis and that of the National Junior Republic being at Annapolis Junction, in Anne Arundel County. The Farinholt-Meredith Company furnished materials for the three houses at the request of the contractors, and, having filed[***2] Mechanics' Liens against the respective houses instituted proceedings in equity to enforce them. The lower Court on December 17, 1912, passed decrees in favor of the plaintiff (appellee) in each case, providing that unless the amounts named be paid within thirty days the respective properties should be sold, and containing the usual provisions in such decrees. From the respective decrees the defendants appealed, and as some of the principal questions are involved in all of them and they must be governed by the same principles of law, we will pass on the three cases in one opinion.

   1. Decree against house of Henry Brunt.

   This decree is for $642.94 with interest from January 23rd, 1911,--being the total amount of the plaintiff's claim. The bill of particulars contains items furnished from July 2nd, 1910, to October 26th, 1910, amounting to $634.65, and [*128] then on October 29th there was a charge for some items amounting to $8.29. Notice of the intention of the company to file a lien claim was served on Mr. Brunt on December 21st, 1910. He concedes that the items furnished from October 5th to October 26th are properly chargeable and that the appellee is entitled to a lien[***3] for them, but he contends that the items delivered prior to that time were not furnished under the same contract or understanding between the appellee and the contractors, and hence as to them the notice was not in time. The testimony on the part of the plaintiff is not altogether clear. When Mr. Carey L. Meredith, secretary and treasurer of the appellee, testified in chief he said, in answer to the question, how they came to furnish the material on this building: "Mr. De Waard came to our office after he had put up some of the rough lumber which he furnished himself from a sawmill in the country and asked us for a bid on a small list of materials, which amounted to $252.64." That list was filed with the examiner and marked "Exhibit A." He was then asked: "Did this consist of all materials furnished on the job?" and replied, "No; he afterwards [**44] ordered a lot of materials not included in this list each day as he needed it."

   "Exhibit A" is not in the record but on cross-examination of that witness it appears that it was dated October 1st 1910, and was what the witness called an "estimate." He said the house was nearly half completed when the estimate was made, and the contractors[***4] had then already bought "approximately $350 00" from the appellee for the Brunt house. Apparently either Mr. Meredith was mistaken when he testified in chief that the contractors "afterwards" ordered the materials not included in the list, or the record does not correctly state what he testified to, for with the exception of a small difference between the amount of the estimate and the sum of the items furnished between October 5th and October 26th, the bill of particulars shows that the greater part of the bill was furnished before Mr. De Waard asked for a bid on the list [*129] of materials in the estimate, and not afterwards, as his evidence in chief states. On cross-examination he stated that the materials furnished before October 1st were not furnished pursuant to any agreement between them that his company was to furnish them, and he did not know from day to day that the contractors were going to buy from him for this house; that when they furnished the articles on the second of July that might have been the last order they would have gotten from the De Waard for the Brunt house. He was then asked: "Then you had no contract with De Waard to continue to furnish his[***5] material for the Brunt house or were under no obligation to continue to sell him, or for him to buy from you but when he sent his orders from day to day you furnished the things and sent them to the place that he told you to," and replied: "That is right."

   The following also appears in his cross-examination:

   "16 Q. These items charged in this account are widely separated, for instance on the 1st day of August you sell De Waard and Sons 1 keg of 20 penny nails, and there appears to be nothing further charged until the 16th of August, more than two weeks later, when you furnished him the 20 penny nails on the 1st of August you had no contract or agreement to furnish anything else? A. No. 17 Q. And you simply might or might not receive any further orders? A. Yes, sir. 18 Q. And does that apply all the way through to everything furnished? A. That applies until we get to the list of materials estimated from. 19 Q. The list of things of October 1st, 1910? A. Yes. 20 Q. These are the things that you had a contract with De Waard to furnish at the prices specified therein? A. Right. I want to say that the reason for the long time between deliveries was because of the fact that they put their[***6] rough lumber in from the country sawmill, and all nails and other materials from us which explains why it would be a long time between buying from us. 21 Q. In other words they were buying first from one person and then another, wherever [*130] they chose, and you had no contract to furnish anything except the items mentioned in Exhibit A? A. That is right." It is true he said on re-examination that all of the goods furnished for the Brunt job were furnished continuously, considered to be one bill and so charged, but while it may be true that in his dealings with the contractors he treated it as one bill, the testimony does undoubtedly show that the materials furnished after October 1st were furnished under a separate contract from those prior to that time. Mr. William G. Meredith, shipping and order clerk for appellee, testified as follows on cross-examination: "22 Q. Did he (De Waard) make any contract with you to furnish all this material, or just send in orders from time to time as he wanted stuff? A. He made a contract with C. L. Meredith and afterwards orders came to me and I would enter them on the day book and then on the wagon. 23 Q. Is the contract you refer to, is this[***7] the contract mentioned in the paper marked 'Exhibit A' which he made with C. L. Meredith? A. It is. 24 Q. That is the only contract you know anything about? A. Only one I know of. 25 Q. All the other orders came in from various parties from time to time as he wanted the things? A. Yes."

   Having quoted from the testimony at some length, it would be well at this point to recall the principles of law applicable to such facts. By section 11 of Article 63 of the Code it is provided: "If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien." In Trustees of Ger. Luth. Church v. Heise & Co., 44 Md. 453, JUDGE ALVEY, in speaking for the Court, announced certain rules which [*131] have been followed in cases of this kind and which[***8] may be thus stated: (1) It is not incumbent upon a claimant who furnishes materials to a builder, or other person than the owner, to establish an express antecedent contract made with respect to the exact quantity of materials to be furnished by him;
 
   (2) "In the absence of evidence of such express contract, the character of the account, the time within which * * * the materials were furnished, and the object of the * * * materials may afford proper grounds for the presumption that the * * * materials were furnished with reference to [**45] an understanding from the commencement that such * * * materials should be * * * furnished, if required by the builder;"

   (3) "In such case, it is from the last item in the account that the notice, and the time within which to take the lien, should date;"

   (4) "But where the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different[***9] parcels of material, and not from the last item in the account."

   The evidence is not sufficient to create a presumption that there was "an understanding from the commencement that such materials should be furnished, if required by the builder," but on the contrary it does affirmatively appear that there was no such understanding. It cannot be doubted that if the estimate of October 1st had not been satisfactory to the contractors, they would have been under no obligation to purchase the material furnished in that month from the appellee. That was admitted by Mr. Meredith in his evidence. The articles delivered during the month of October were furnished under the contract of October 1st, and if it be conceded that as to those delivered prior to that month [*132] the presumption spoken of in paragraph (2) of what we have taken from 44 Md., supra, would arise, they were furnished under a different contract from that under which those in October were furnished. What is said of the claim of Myohl & Luken in Hensel v. Johnson, 94 Md. 729, 51 A. 575, is very applicable to this claim. JUDGE PAGE said on page 736 the original contract was to furnish "not such[***10] lumber as might be needed for the construction of the houses but a specific quantity, contained on a list, a copy of which is in the record. The firm agreed to furnish the builder with those specified quantities for the sum of $1,487.45. Subsequently the builder purchased more lumber, not by virtue of the original agreement, but as he needed it. The lumber furnished in addition to the kinds and quantities included in that list was as much under a separate contract as was the lumber furnished by the firm to Eckstine for other work that the latter was then conducting." Again he said: "Of the delivery on the 2nd day of September, that being the last, Mr. Luken states that it was delivered, not by virtue of any understanding entered into before the beginning of the work, but because it 'was ordered either that day or previous to that.' So that this case is clearly within the rulings in Trustees of the German Luth. Church v. Heise & Co., supra, where it was held that when the materials are furnished under separate distinct contract, the right to take the lien must date from the time of furnishing the different parcels of material and not from the last item. And this[***11] rule will prevail 'if the materials are furnished under distinct contracts, though to be used for the same purpose, or by the contractor in executing one and the same contract with the owner.' Watts v. Whittington, 48 Md. 353."

   Section 11 of Article 63, requires a notice to be given by the material-man or his agent within sixty days after materials are furnished, under a contract with an architect, builder or any other person except the owner, of his intention to claim the lien, in order that the owner may have the [*133] opportunity to protect his property against liens, in case the contractor does not pay for materials he purchases, and hence it is important that the material man should not be permitted to extend the time within which he is required to give notice, in order to obtain a lien for materials furnished under one contract, by counting from a later period, when he furnished materials under a subsequent contract or order. While our decisions hold that a notice within sixty days from the last item furnished under a contract is sufficient to cover all items furnished under that contract--although they may cover quite a period of time--it would be[***12] very unreasonable and sometimes afford an opportunity to defraud an owner, if the material-man could be permitted to keep alive or revive his right to a lien by furnishing materials outside of and in addition to those contemplated by a contract after such contract had been performed. In this case there is no ground for suspecting fraud on the part of the appellee, but inasmuch as under the authorities cited and others which might be, the materials furnished in Oct. were furnished under a separate and distinct contract from the arrangement under which those delivered prior to October 5th were furnished we are of the opinion that this decree should only have included the items delivered in October and should not have included those delivered prior thereto.

   2. The decree against house of Mary Coale Dugan.

   To this case much that has been said above is applicable. The notice of an intention to file a lien claim was served on Miss Dugan in Baltimore on December 21st, 1910, and on December 23rd, 1910, one was also posted on the front door of the house, but we will treat the former as sufficient. The first items in the account were one and a half pounds caps and nails and sixty bags cement [***13]on June 6th, 1910, and the last two items were 64 feet lattice on October 22nd, and 500 feet, 6 inch flooring on October 29th, 1910. The total amount of the bill was $1,168.13 with credits of $18.95, leaving a balance of $1,149.18. There is evidently an error in [*134] the testimony of Carey L. Meredith where he says they [**46] furnished the first mill-work on June 9th, and it was furnished continuously from that time until October 22nd, 1910. The only item in the account of June 9th is for "20 bags cement," and the contractors did not accept their bid for the supply of mill-work on the house until June 18th. Indeed the proposition by the appellee "to furnish mill-work for Miss Dugan's house, per plans and specifications, for the sum of seven hundred and thirty dollars ($730.00)" is dated June 15th. Then we find included in the bill of particulars of date of October 1st, "Mill-work per estimate, $730.00," and he testified that "The item furnished on the 22nd of October was extra. We finished as far as the estimate went on October 1st, the item on the 21st was furnished outside of the $750 estimate referred to in the acceptance by De Waard dated June 19th, 1910." [***14] There is some confusion about that, as there is no item of the "21st" and the amount is $730, but he evidently meant the "22nd" and "730." Inasmuch as the notice was not given until December 21st, it is clear that there can be no lien for any part of the bill furnished prior to October 22nd (the last item being on the 15th), unless the item furnished on that day, or the one on October 29th, can be tacked on to all or some part of the prior items. That neither of them can revive the contract for the mill-work would seem to be settled by what we have said above, and by the testimony in this case. That was undoubtedly a separate contract. It was in writing and was for the mill-work mentioned in it. It was treated by the appellee as separate. The only reference to the mill-work furnished under that contract in the bill of particulars is the entry of "Mill-work per estimate, $730.00," which was made in appellee's account on October 1st. As we have seen Mr. Meredith testified in chief, "We finished as far as the estimate went on October 1st," and in his cross-examination this appears: "11 Q. And you have stated in your examination in chief that the reason you charged all your mill-work[***15] in a lump is that all of the [*135] mill-work per estimate $730 had been furnished at the time it was charged for? A. I did, that is all right. * * * 20 Q. Where did that lattice work go? A. I don't know whether it went on the porch or under the porch or under the steps, it could have gone to either place. * * * 25 Q. Was this lattice work called for in the specifications of the mill-work? A. Some of it was. A lattice is always included in mill-work if shown on the plans, but in this case it was more of it than was shown and the extra was agreed upon by Mr. De Waard and Sons. 26 Q. And this particular item was an extra and not included in the specifications? A. Yes, that is right."

   Manifestly then this extra lattice furnished after the contract for mill-work was completed and charged cannot bring the mill-work included in the contract within the sixty days. It is equally clear that the item of October 29th cannot have such effect. Mr. Meredith's testimony on cross-examination as to that was as follows: 21 Q. What is this 500 feet of flooring charged for October 29th? A. That was some common flooring for the third floor as near as I can remember. 22 Q. That is not mill-work?[***16] A. No. I want to say that it could have been used in the cellar for coal bin or attic flooring. I remember the order distinctly, don't remember what purpose it was used for."

   The whole item of "mill-work per estimate, 730.00" must therefore be rejected because it was a separate and distinct contract, and the notice was not given within sixty days from the time any part of it was furnished. We do not deem it necessary to determine whether that charge, without giving any dates, items or prices of the items, was a sufficient compliance with the requirements of the statute, but will only call attention to what is said in Rust v. Chisolm, 57 Md. 376, and to section 19 of Article 63 of the Code. It was said in that case "The object of this provision is to enable the owner, or purchaser and other lien creditors, to trace out the truth of the claim and guard against fraud and imposition." See also Thomas v. Barber, 10 Md. 380.

   [*136] The other items in the account we think are sufficiently shown to come within paragraphs (1) and (2) of what we have said about the case in 44 Md. to be allowed. The testimony of Mr. Meredith satisfies us that there[***17] was an understanding from the commencement that such materials as those included in the account from June 6th to October 22nd (excepting the mill-work, which was furnished under a special and distinct contract) should be furnished. He said they furnished all the material, except some rough framing and sheathing, which the contractors bought in the country, and they were furnished continuously between the dates named and without any unusual intervals between the dates. The item of October 29th was apparently under a separate contract from the others, but was within the sixty days. So giving the account as liberal a construction as we feel justified in doing, we think the decree should have been for $419.18 with interest.

   3. Decree against house of The National Junior Republic.
 
   This decree was for $868.21 with interest from January 23rd, 1911. The total bill was for $902.80, with credits amounting to $34.59. There are a number of items from July 15th to October 27, 1910, amounting to $148.46 and then one item of "Mill-work per estimate $750.00," which is not dated, but entered just below the $148.46, and then below $898.46 are the following, "November 12th, 2 pair blinds (cut[***18] down) $2.80, 8 lts. 10 x 12 $.64, [**47] 1lts. 24 1/4 x 30 $.50, 1 lts. 12 x 14 $.10, 1 lts. 18 1/8 x 34 $.30," making $902.80.

   The only notice of an intention to claim a lien was served on the 7th of January, 1911, on Claude E. Arnold, who is described as "Superintendent of the National Junior Republic, at Annapolis Junction, Anne Arundel County, Maryland." Without referring to the testimony we think the service on Mr. Arnold was sufficient, as we understand he was acting superintendent and was the highest officer or agent [*137] of the corporation at that time in Anne Arundel county. It is also claimed that it was not shown that the materials were delivered, but we are of opinion that was sufficiently proven. The serious difficulty is as to the account. The contract for mill-work was made on June 18th by the same letter of acceptance as that for the Dugan house. It was for $750.00 and was a separate and distinct contract. As we have seen the only entry in the account, and, as we understand the testimony, in the books of the appellee, was, "Mill-work per estimate $750.00." That was apparently entered on October 27th, as it is under that date. The first item of the[***19] account was furnished on July 15th, 1910, and from that time to October 27th other items were furnished amounting to $148.46. Amongst those were some blinds, and Mr. Marshall testified that there were some things not in the estimate and upon being asked what they were, he said, "Hardware partitions and few extra blinds and nails." It is manifest that the item of "2 pair blinds (cut down $2.80" delivered on November 12th did not differ from the items included in $148.46 and they were treated by the appellee as different and separate from the "Mill-work per estimate," which was a separate and distinct contract. The item as to the blinds (cut down) is thus spoken of in Mr. Meredith's cross-examination; "18 Q. So I understand that it was included in the original estimate or as an extra? A. These were either extra or extra for cutting down, but it appears to me that the price covers the whole cost of the blinds and I think they were used in the third-story dormer window, and if that was the case they were not in the original estimate. 19 Q. Then according to the best of your recollection and belief these blinds furnished Nov. 12th were not in the original contract, but were used in the[***20] third-story for windows not specified in the plans? A. Yes." The other items of that date were clearly not a part of the contract for the mill-work or the other items, as is shown by the next question and answer: "20 Q. Also the lights mentioned thereunder same date, were they also extra? [*138] A. They were extras furnished for a dresser in the inside of house not on the original plans." Of course they cannot relate back to the other items, so as to bring them within the sixty days, as that was a separate contract--certainly as much so as the sand and lime referred to in Hensel v. Johnson, supra, under the claim of James H. Warthen, which was held to be under a separate and distinct agreement from that for plastering and pointing.

   It is clear under the authorities and testimony that the two pairs of blinds furnished November 12th cannot bring the charge for mill-work included in the estimate within the sixty days, as it was a separate and distinct contract, and the only question is whether they can save the other items. We have concluded to allow them, as we think there is sufficient evidence in the record to show that those items were furnished under the[***21] terms of paragraphs (1) and (2) referred to above. That may be a somewhat liberal construction in favor of the appellee, but as among the items amounting to $148.46 blinds were furnished, and there is nothing to indicate an effort to simply extend the time within which notice could be given (the items of November 12th having been entered nearly two months before the notice was given) we feel justified in holding that the items amounting to $148.46 were included in the notice, but the mill-work in the estimate of $750.00, being a separate and distinct contract, must be excluded. Of course the $34.59 of credits must also be deducted and this decree should therefore have been for $118.21, with interest. 

   It follows that each of the decrees must be reversed and the causes remanded, in order that new decrees be entered in accordance with this opinion.

   Decree in each of the three cases reversed, and causes remanded, the appellee to pay the costs in each case. 

MURRAY VANDIVER, TREASURER OF MARYLAND, vs. THE FIDELITYSAVINGS BANK OF FROSTBURG, MARYLAND, LONACONING SAVINGS BANK OF ALLEGANY COUNTYAND THE COMMERCIAL SAVINGS BANK OF CUMBERLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
120 Md. 619; 87 A. 1086; 1913 Md. LEXIS 154

 April  25, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order appealed from reversed, and petition for mandamus dismissed, costs to be paid by the appellees.

CORE TERMS:  depositor, deposit, charter, repeal, retroactive, deposited, stock, savings bank, stocks and bonds, treasurer, withdrawal, competent jurisdiction, banking business, general law, depositing, designated, withdrawn, enlarged, assent, trust fund, retrospective, enlarging, constitutional objection, subject to sale, set apart, acts done, retrospectively, officially, retransfer, registered

COUNSEL: Edgar Allan Poe, Attorney-General, for the appellant.
 
D. Lindley Sloan and Albert A. Doub, for the appellees.

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

OPINIONBY: STOCKBRIDGE

OPINION: [*620] [**1087] STOCKBRIDGE, J., delivered the opinion of the Court.

   In April, 1889, the Lonaconing Savings Bank was incorporated under the general law, as a stock company, for the conduct of a savings bank in Allegany county. By Chapter 297 of the Acts of 1898 the charter was amended and the powers of the bank enlarged so as to authorize it to conduct a general banking business. By section 2 of the Act it was provided, "that said corporation shall be subject to the provisions of Chapter 109 of the Acts of 1892 as amended by Chapter 160 of the Acts of 1896 and to all general laws applicable [*621] to companies or associations of a character similar to that[***2] named in this Act."

   In 1902 the Fidelity Savings Bank of Frostburg was incorporated as a stock company under the general law, for the conduct of a savings bank in the town of Frostburg, in Allegany county. By Chapter 268 of the Acts of 1904 the charter of this bank was also amended and its powers enlarged so as to enable it to conduct a general banking business. Section 2 of the Act was, totidem verbis, section 2 of the Act relating to the Lonaconing Savings Bank, supra.

   In 1906 the Commercial Savings Bank of Cumberland was incorporated, as a stock company, under the general law, for the conduct of a savings bank in Cumberland. By Chapter 304 of the Acts of 1908, the charter of this bank also was amended and its powers enlarged, so as to enable it to conduct a general banking business, and section 2 of the Act was a repetition of section 2 as incorporated in the Acts relating to the Lonaconing Savings Bank and the Fidelity Savings Bank of Frostburg.

   The provisions of the Act of 1896 referred to in each of these Acts, and which lie at the base of the present case were in substance as follows: Each one of these banks was required to deposit with the State Treasurer, bonds[***3] to the amount of 15 per cent. of the paid up capital stock, * * * but not less in any case than the sum of $30,000 which stocks or bonds were required to be registered in the name of the State Treasurer, officially, and held as a trust under and pursuant to the Act, "and the same shall be held by the said treasurer in trust as security for the depositors," * * * the Act further provided that the stocks and bonds so deposited should be held by the treasurer subject to sale and transfer only on the order of a Court of competent jurisdiction.

   After the passage of the Acts before mentioned, amending the said several charters, deposits of bonds in varying sums were made with the State Treasurer in compliance, or part compliance with the provisions of the Act of 1896.

   [*622] In 1912 the General Assembly passed three Acts, all in identical language, one relating to each of the banks above mentioned. The Act intended to affect the Fidelity Savings Bank of Frostburg (Ch. 828, Acts of 1912), which may be taken as an example reads as follows: 

   "Be It Enacted By The General Assembly of Maryland, That section 2 of Chapter 268 of the Acts of 1904 of the General Assembly of Maryland, [***4] by which the Charter of the Fidelity Savings Bank of Frostburg, Maryland, was amended, be and the same is hereby repealed; provided, that nothing in this Act shall be construed as relieving the said corporation from the provisions of Chapter 219 of the Acts of 1910, entitled 'Banks and Trust Companies,' or of any other General Laws applicable to corporations similar to that named in this Act."

   Upon the passage of these Acts the three banks in this case made application to the State Treasurer for the return to them respectively of the bonds which had been deposited with him, and upon his refusal to deliver the bonds filed a petition for a mandamus to compel him to return them. The writ was granted by the Circuit Court for Anne Arundel County, and it is from the order granting the writ that the present appeal was taken.
 
   With the propriety of the action of the General Assembly in imposing the condition [**1088] which it did, when the several Acts were passed enlarging the powers of these banks, this Court has nothing whatever to do. The function of this Court is to determine the legal results produced by the enactments which the General Assembly adopted. At the time when the[***5] several acts amending the charters were passed each of these banks was conducting the business of a savings bank only. In enlarging the powers of the banks the Legislature saw fit to impose what it deemed a condition for the better security of those depositing moneys in these banks, by which condition a certain sum was directed to be set aside and placed in the hands of a designated official as trustee, the same to constitute [*623] a trust fund for the benefit of a specified class of persons easily ascertainable. Upon the acceptance by the banks of the condition named, which they did when they made the first deposit of bonds in accordance with the provisions of the Act, each one of the then depositors in the banks acquired an interest in the fund thus set apart, similar to that of a cestui qui trust, and so did each subsequent depositor who placed his money in the bank so long as this provision remained unaltered. The situation was therefore precisely that which existed in the case of Vandiver v. Poe et als., Receivers, 119 Md. 348, and what was there said is controlling of the present case unless a different situation has been created by the passage [***6]of the Acts of 1912. The lower Court took the view that as the original condition had been imposed by the General Assembly, it was competent for the General Assembly to repeal it, and that such repeal would operate, not merely to remove the intended protection in the case of those who might thereafter become depositors in either of the banks, but also with respect to those who had deposited their moneys in reliance upon, or during the time when the condition was in force. In so far as depositors can be affected who have become such since the passage of the Act of 1912, the view of the lower Court was undoubtedly correct, but it by no means follows that there is the same result to those who were depositors at the time of the enactment of the laws which imposed the condition, or who became such between the time of the passage of those Acts and the passage of the Act of 1912. To give the Act the effect for which the appellees contend would be to make it retroactive, and the general principle is well stated in Southerland on Statutory Construction, section 463, when he says: "Statutes, not remedial, will not be construed to act retrospectively, even where they are not obnoxious to[***7] any constitutional objection, unless the intent that they shall do so is plainly expressed or made to appear. Where the intent as to being retrospective is doubtful, the statute will be construed as prospective only." The same rule has [*624] been adopted in this State. Thus in App. Tax Court v. W. M. R. R., 50 Md. 274, it is said: "Before a statute can be allowed to have a retroactive operation the Court must see that the words are so clear, strong and imperative in their retrospective expression that no other meaning can be attached to them, or that the plain intention of the Legislature could not be otherwise gratified * * * The statute must be taken to refer to and speak exclusively of future proceedings under it, leaving acts and proceedings done under prior legislation to stand as they were at the time of the repealing statute." And in Swan v. Kemp, 97 Md. 686, 55 A. 441, it was said: "Where rights are acquired under a statute, a repeal of the statute will not divest the right or interest acquired, or annul acts done under it." And to the same effect are, Williams' Adx. v. Johnsons' Adx., 30 Md. 508; New Cent. Coal Co. v. George's Creek Coal Co., 37 Md. 537;[***8] Herbert v. Gray, 38 Md. 529, and Johnson v. Johnson, 52 Md. 668.
 
   The Act of 1912 contains no language of any description which either in terms or by necessary implication indicates that it was the purpose of the General Assembly that the repealing act should be retroactive, and its prospective operation will give it full effect without in any manner interfering with any interests which existed at the time of its passage. The order appealed from must therefore be reversed and the petition dismissed.

   But in passing the order it seems proper that some indication should be given, how to relieve the anomalous situation arising from a portion of the depositors of a bank having their deposits protected by a deposit of securities with the State Treasurer, and a portion not so protected. As already stated depositors who have become such since the passage of the Acts of 1912, have no ground to claim any protection through or under the deposit of stocks or bonds with the State Treasurer. The records of the banks will disclose who were depositors therein prior to the passage of these acts. Some of those accounts have undoubtedly been closed and the deposits[***9] withdrawn. If now the still existing depositors of [*625] those who were such prior to the passage of the Acts of 1912, shall assent in writing to the release of the security for their deposits afforded by the deposit of the stocks and bonds with the State Treasurer, or close their accounts by a withdrawal or withdrawal and redeposit of their moneys, so that there no longer exists a class for which the Legislature had provided the measure of protection, the reason for the further preservation of the fund will be at an end.

   Under the statute the stocks and bonds in the hands of the State Treasurer constitute a trust fund, any disposition of which [**1089] must be by the direction of a Court of competent jurisdiction. The recognized tribunal in this State for the administration of a trust is a Court of Equity. When therefore these banks shall, as indicated, have closed the accounts of all of those standing in the position of cestui qui trustent, or received their assent to the release of the security now in the hands of the State Treasurer, and shall make these facts satisfactorily appear to a Court of Equity, that Court may by its order authorize and approve the release[***10] of the securities now held by the designated trustee, and their retransfer to the banks severally depositing them.

   Order appealed from reversed, and petition for mandamus dismissed, costs to be paid by the appellees.

   BOYD, C. J., and BURKE dissented. 

WILLIAM H. MCDOWELL vs. THOMAS E. BIDDISON AND AMY D.BIDDISON, HIS WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
120 Md. 118; 87 A. 752; 1913 Md. LEXIS 116

 February  27, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County, in Equity, (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

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

CORE TERMS:  deed, barn, injunction, laid down, obstruction, specific performance, perpetual injunction, permanent, diagram, roadway, opened, plat, road leading, convenient, marked, decree, fence, new road, accomplished, compelled, egress, specific execution, oral contract, specifically enforced, bill in equity, relief prayed, right of way, right to use, little good, equal force

COUNSEL: James M. Munroe (with whom was R. Bennett Darnall on the brief), for the appellant.
 
Robert Moss, for the appellee.

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

OPINIONBY: BURKE

OPINION: [*119] [**752] BURKE, J., delivered the opinion of the Court.

   Thomas E. Biddison and Amy D. Biddison, his wife, were the owners of a tract of land situated on the Magothy river, in Anne Arundel county. The property was subject to a mortgage held by George W. Lowenstein and wife. On the 12th day of June, 1909, Biddison and wife and Lowenstein and wife granted and conveyed to William H. McDowell, the appellant, four acres of the tract. The property granted was particularly described by metes and bounds, and immediately following the description, the deed contained the following clause: "Also the right to use in common with others a roadway twelve feet wide (as much of the same as is embraced in the above description being reserved[***2] for use in common with other lot owners) beginning at the end of the second line in the description and running across the whole tract recently laid down by the said Thomas E. Biddison [**753] to the waters of Black Hole Creek. Also with the use in common with others of a private road to be laid down by the said Thomas E. Biddison, extending from the first mentioned road to Lake Shore Post Office."

   [*120] A diagram, which shows the situation of the property and the location of the roads mentioned in the testimony and of the improvements on the property, is here inserted.

   [SEE DIAGRAM IN ORIGINAL]

   The road leading to Black Hole Creek mentioned in the deed and shown upon the above diagram, was laid down and opened by Biddison, and that road is not the subject of controversy in this case.

   [*121] Biddison also laid down the other road mentioned. That road is shown upon the plat filed in the case and also upon the diagram. It connects with a road leading from Magothy River to Black Hole Creek. Both of these roads, which Biddison was obligated by the terms of the deed to lay out and keep open, were laid down by him and were in use long before the bill in this case was [***3]filed. He also opened a road, designated--C. to F.--on the plat and shown on the above diagram, which leads from the barn or stable of the plaintiff to the new road laid down by Biddison and which connects with the road to Black Hole Creek and leads to Lake Shore Post Office. By the opening of these roads, which afforded convenient ingress and egress to and from the plaintiff's property, Biddison has fully discharged the obligations imposed [**754] upon him by the deed with respect to the roads.

   Mr. Biddison purchased the property for the purpose of development and sale. At the time of and for many years prior to the conveyance to the plaintiff there was an old farm road running along the shore front and marked on the plat and diagram "Road to Lake Shore Post Office." The distance from this road to water front varied from one hundred and twenty-five to two hundred feet, and its location seriously interfered with the advantageous development of this part of the defendant's property. At the time of the conveyance it was the understanding of the parties to the deed that this road should be closed by the defendant. After the roads above mentioned had been opened by the defendant and[***4] in use by persons going to and from the property, he closed the old road which ran along the shore. Thereupon the plaintiff filed a bill of complaint in the Circuit Court for Anne Arundel County for an injunction. The bill prayed:

   First. That the defendant might be compelled to remove the fences and obstructions placed by him in said road and restore the same to the proper use and benefit of the plaintiff as it was at the time he purchased the property, and as it was promised by the defendant it should so continue.

   [*122] Second. That the defendants might be enjoined from placing any fence across the road leading to Lake Shore Post Office and from placing in any part of the roadbed any stones, bricks or other obstructions whatsoever in and upon the same or any part thereof whereby the plaintiff might or could be prevented from the full and complete access to, egress from and progress over the said roadway.

   Third. That the defendant might be compelled to lay down at once and definitely mark out the remaining road way or road ways as he was required to do by the covenants of the deed other than what have already been marked out by him in accordance with the terms[***5] of the deed; and for other and further relief.

   The grounds upon which the plaintiff relies as entitling him to the relief prayed for are set forth in the fourth, fifth, sixth and seventh paragraphs of the bill. The plaintiff filed with his bill a copy of the deed marked "Plaintiff's Exhibit A."

   Fourth. That the plaintiff, after the receipt of his said deed ("Plaintiff's Exhibit A"), entered upon and took possession of said property. Immediately upon taking such possession, the plaintiff, contemplating and intending the erection of certain necessary improvements upon his said property, for the better and more profitable use and occupation thereof, inquired of the defendants whether or not the road as laid down and indicated by red tracing on the plat marked "Plaintiff's Exhibit B," filed herewith, and leading to Lake Shore Post Office, and which had been used by all parties who came into or upon either the plaintiff's or defendant's property by way of land, was to remain as the permanent road, and which the plaintiff was to have the full use and benefit of, under the provisions of his aforesaid deed, the plaintiff giving as his reason for said inquiry that he, the plaintiff, wished[***6] to locate his barn with reference to the said road.

   [*123] The plaintiff was thereupon informed and assured by the defendant, Thomas E. Biddison, that the said road was to remain a permanent road. The plaintiff, relying upon the said assurance, proceeded to construct and finish his barn at a point convenient to said road on his said lot No. 4, which point is indicated by a red cross-mark on the said plat. The said defendant, Thomas E. Biddison, well knowing that the plaintiff was so constructing his said barn, allowed the same to be constructed without obstruction or objection. In the construction of said barn the plaintiff laid out and expended a very large sum of money.

   The said barn is so constructed that it would be impracticable and expensive to move it to any other part of the property, and there is no other roadway adjacent to said barn.

   Fifth. That the plaintiff further shows that the said road, hereinbefore designated as the road to Lake Shore Post Office, had for fifty (50) years or more previous thereto been used by the general public as a public road or highway, and though in recent years not so frequently used by the public, was yet used at the pleasure of[***7] all persons passing that way whenever the occasion required the use of the same, and was openly and notoriously a highway for the convenience of such persons living in that neighborhood as desired to use the same, and was adopted by the defendant Thomas E. Biddison, as hereinbefore stated, for the use of the plaintiff in conformity with the provisions to that effect in the deed heretofore referred to as "Plaintiff's Exhibit A."

   Sixth. That notwithstanding the expressed provisions of the aforesaid deed ("Plaintiff's Exhibit A"), and notwithstanding the assurance of the defendant, Thomas E. Biddison, as to the use of the Lake Shore Post Office road, and notwithstanding the erection of the barn by the plaintiff, under all the circumstances heretofore set out, the defendant, Thomas E. Biddison, has ordered and required the plaintiff to cease using the said road hereinbefore referred to as the Lake Shore Post Office road, and in order to more effectually prevent the use by the plaintiff of the said road, the said [*124] defendant, Thomas E. Biddison, has erected across said road a fence and other obstructions and thus effectually preventing the use of the road or right of way[***8] by the plaintiff, to the great injury of the plaintiff, whereby he is entirely excluded from any use whatsoever of the right of way over the Lake Shore Post Office road so granted to the plaintiff by the defendant, Thomas E. Biddison, in the aforesaid deed ("Plaintiff's Exhibit A"), and which the plaintiff has been using under the claim [**755] of right so to do, under the provisions of the aforesaid deed for about two (2) years.

   The plaintiff had had no intimation that the defendant intended to close said road until a short time ago, when the fence was placed across the road while the plaintiff was absent from the property.

   Seventh. That the obstruction of the said road and the deprivation of the use by the plaintiff of the same by the said defendant, Thomas E. Biddison, is not susceptible of adequate compensation in the ordinary course of law, but will cause the plaintiff irreparable damage and loss to the property of the said plaintiff unless the said defendants are restrained by the Court from the further obstruction of the said roadway and are compelled to remove what obstructions have been placed in, upon or across said roadway.

   An injunction was issued as prayed. [***9] The answer of the defendants denied the material allegations of the bill, and specifically denied that they or either of them ever told the plaintiff that the old road to Lake Shore Post Office was to be maintained as a permanent road, but they averred that the defendant, Thomas E. Biddison, informed the plaintiff that the road was to be used only until he could lay down the permanent road to be used by the plaintiff. They alleged that the plaintiff was in no manner injured by the closing of the road, and that he had a road as direct to Lake Shore Post Office and other places by the road laid down by the defendant as by the old road, and that he had as good a road to and from his barn as by the old road which the plaintiff claimed a right to use.

   [*125] They further alleged that they had purchased their property at a large cost for the purpose of advertising and developing the same, and selling building lots on the Magothy River, and that at the time of the sale of the lot to the plaintiff they were well aware of the fact that they could not leave the road to the Lake Shore Post Office permanently located where the old road had been located, because it would seriously interfere[***10] with the development and sale of lots along that part of the river front. That the old road was too close to the river bank and would not leave lots of sufficient depth between the road and the river; that the road was unsightly and crooked, not adapted to the location of a modern road, and that the defendant reserved the right to locate a new road in the place of the old road, and that the plaintiff accepted his deed with this understanding.

   The case was heard upon bill, answer, replication and testimony, and from the decree of the lower Court dissolving the injunction and dismissing the bill the plaintiff has appealed.

   The testimony in the case shows: first, that the closing of the old road has caused no actual damage to the plaintiff; and secondly, that the continuation of the road would result in very serious injury to the defendant. The bill contained averments which are wholly unsupported by the evidence, and besides it did not put the Court in possession of the actual, existing situation at the time it was filed.

   In Lamm v. Burrell, 69 Md. 272, 14 A. 682, it is said to be "quite a familiar principle, recognized in the 15th of the rules adopted by this[***11] Court for the regulation of the pleading and practice in Courts of Equity in this State, that every bill in equity must contain a clear statement of the facts upon which the plaintiff relies for relief. It is equally well settled that to warrant the Court in issuing an injunction, a full and candid disclosure of all the facts must be made. There must be no concealment and the res gestae must be represented as they actually are."

   [*126] There is no mention in the bill of the roads opened by the defendant, which the proof shows afforded the plaintiff easy and convenient access to and egress from his property.

   The plaintiff's case rests upon the alleged oral contract, or agreement set up in the fourth paragraph of the bill in connection with the further averment that in reliance upon that contract or agreement of the defendant that he would keep the old road open he located his barn in a place he would not have otherwise selected. The bill, in legal effect, is one for the specific performance of this oral contract or agreement. It seeks to have it established and enforced by means of an injunction. Should the injunction have been sustained, there would have been accomplished[***12] everything a decree for specific execution of the agreement could have effected. This Court in Gurley v. Hiteshue, 5 Gill 217, said: "All the principles which apply to the case of a bill for specific performance, apply with equal force to the case of a bill for perpetual injunction, when that injunction accomplishes all the objects which could be accomplished by a successful prosecution of a formal bill for a specific execution."

   The settled rule is that "in all cases for specific performance the contract must be accurately stated in the bill and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt." Semmes v. Worthington, 38 Md. 298.

   The agreement alleged in the bill and testified to by the plaintiff is directly denied by the answer of the defendant and by his testimony, and the fact that the permanent continuance of the old road in its present location would cause great injury to the defendant and set aside the original intention and understanding of the parties, is a circumstance strongly corroborative of the defendant's[***13] evidence. The testimony of George Hoffman and William T. Bryerly, who were [**756] called to establish the agreement, is not clear and satisfactory. We quite agree with the observations of JUDGE BRASHEARS that it would seem to be "unreasonable to suppose [*127] that Mr. Biddison would give the use of what is called the old road which would practically destroy his plans in the development of his property in consideration of the change by Mr. McDowell in the location or site of his stable or barn. The only inference that can be gathered from the evidence is that the alleged conversations related to the road leading from the barn to the new road which had been laid down in accordance with the provisions of the deed to McDowell; and that road is still open and subject to the use of the plaintiff."

   But if it be conceded that the agreement was made and established, the case is not one in which the injunction could have been continued. No real harm has been done the plaintiff by the closing of the old road, and very great harm would be done the defendant by granting the relief prayed for. It is said in McCutcheon's Heirs v. Rawleigh, 76 S.W. 50, that "it is[***14] not every plain and certain contract that will be specifically enforced, whatever may be the legal rights of the parties in an action for damages for its breach. Cocanaugher v. Green, 93 Ky. 519, 20 S.W. 542; Wollums v. Horsley, 93 Ky. 582, 20 S.W. 781; Simon v. Wildt, 84 Ky. 157. If to enforce specifically an agreement would do one party great injury and the other but comparatively little good, so that the result would be more spiteful than just, the Chancellor will not require its execution."

   It follows from what we have said that the lower Court committed no error in dissolving the injunction and dismissing the bill, and, therefore, its decree will be affirmed.

   Decree affirmed, with costs to the appellee above and below. 

ROBERT A. DAWSON vs. MARYLAND ELECTRIC RAILWAY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 373; 86 A. 1041; 1913 Md. LEXIS 176

 January  15, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  door, passenger, passenger compartment, compartment, baggage, sudden, seat, vacant, train, baggage car, carelessness, track, railway, loquitur, railroad, fingers, ride, jerk, jolt, ipsa, compelled, fastening, carrier, comfort, elected, exposed, switch, jar, evidence of negligence, electric car

COUNSEL: James W. Owens (with Robert Moss and Jere L. Smith on the brief), for the appellant.
 
Ridgely P. Melvin and Robertson Griswold, for the appellee.

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

OPINIONBY: THOMAS

OPINION: [*374] [**1041] THOMAS, J., delivered the opinion of the Court. 

   This is a suit to recover for injuries sustained by the appellant while a passenger on one of the cars of the appellee, and which is alleged to have been caused by its negligence.

   The only exception in the record is to the ruling of the Court below in granting a prayer, at the conclusion of the plaintiff's testimony, taking the case from the jury.

   The facts of the case, briefly stated, are as follows: The appellant, in the summer of 1911, purchased a round trip ticket from the appellee which entitled him to ride on its cars from Annapolis to Baltimore City, and, returning, from Baltimore to Annapolis. In returning to Annapolis the appellant entered the car at the rear end. The car[***2] contained a passenger compartment and a baggage compartment, and the appellant, after entering the car, walked through the passenger compartment and not finding a vacant seat he returned to the baggage compartment. There were no seats and no provisions made for the accommodation of passengers in the baggage compartment, and the appellant took a position in the middle of the car, near and immediately in front of the door leading into the passenger compartment. He says he was not holding on to anything, but was standing in front of the door and looking into the passenger compartment; that passengers were getting off and on the car at the stations, but that he did not see any vacant seat; that he remained in that position for about a half hour after the car left Baltimore, and that while he was standing there the car gave a sudden jerk, he threw up his hand and grabbed the door jamb to stop from falling, and that the door, which had been open, closed on his hand and mashed his fingers. The appellant says further that after he walked through the passenger compartment, when he first entered the car, and found that there were no vacant seats he did not again go into the passenger compartment,[***3] but that he did not see a vacant seat in there, and [*375]that he saw a man try to fasten the door back, and that he had to push it several times before it would catch.

   It is apparent from this brief statement of facts, which are all of the facts in the case having any bearing upon the question of the appellee's liability for the injury sustained, that the accident was directly due to the fact that the appellant voluntarily took the position stated in the baggage compartment of the car instead of remaining in the passenger compartment. The fact that he was permitted to do so would not render the appellee liable, where other provision was made for his safety and comfort. There is no evidence to show that there was not room for him to stand in the passenger compartment of the car, and if he elected to take the position he did in the baggage compartment, he did so at his own risk. In the case of Yorktown Turnpike Road v. Cason, 72 Md. 377, the Court, after stating, "if they (passengers) voluntarily take exposed positions with no occasion therefor, nor inducement thereto, caused by the managers of the road, except a bare license by non interference, [**1042] [***4] or express permission of the conductor, they take the special risks of that position upon themselves," said of the plaintiff: "Had he been inside the car, where he ought to have been, the injury would not have been sustained, his own voluntary choice placed him in an exposed position, and that position rendered the injury possible. It was a position not provided for him to occupy, and even a careless observer must know that it was the most dangerous one to take. He thought proper to make an experiment under circumstances of peril open and known to him, which he could have reasonably avoided, and it is no injustice that he is required to bear the consequences of his own act." The same principle was recognized in the later cases of State use of Miller v. W. Md. R. Co., 105 Md. 30, and United Rys. Co. v. Riley, 109 Md. 327, 71 A. 970.

   The fact that the car gave a sudden jerk is no evidence of negligence on the part of the appellee. It does not appear [*376] that the sudden movement of the car was due to any defect in the car or to any carelessness or negligence of those in charge of it. It is well known that electric cars do not run perfectly [***5]smoothly, and that there are certain irregular movements to which they are subject, and which do not justify the inference of negligence or carelessness on the part of those in charge. In the case of Yorktown Turnpike Road v. Cason, supra, the Court said: "Judges can not denude themselves of the knowledge of the incidents of railway traveling, which is common to us all," and in the case of Charles v. United Rys. Co., 101 Md. 183, 60 A. 249, JUDGE SCHMUCKER says: "It is a matter of common knowledge of which the Courts will take cognizance that street cars do not run with entire smoothness but are subject to occasional jars and undulations as they enter or leave switches or cross-intersecting tracts or encounter obstacles or slight inequalities in the track." In the case of Foley v. Boston & M. R. R., 193 Mass. 332, 79 N.E. 765, where the Court held that the plaintiff, who "boarded the smoking car of a railroad train, and, seeing no vacant seat, stood within three inches of the door, supporting himself with his hands, while the train traveled a distance of three-fourths of a mile, and was thrown through the open door on to[***6] the platform and off the train on its crossing a switch," was guilty of contributory negligence and could not recover, the Court said: "It is also common knowledge that in the performance of the duty resting upon steam railroads of rapid and prompt transportation, even in the exercise of the high degree of care required of them, there may be jolts and lurches in the management of trains.* * * There is nothing to show that the jar in question resulted from any negligent act on the part of the defendant, either as to speed or construction of car or track."

   Nor is there any ground for imputing negligence to the appellee because the door in the car closed and mashed the appellant's fingers. It does not appear who opened the door, or that there was any defect in its construction, and the mere [*377] fact that the appellant saw a man push it back twice in order to fasten it does not justify an inference that the door was not properly constructed, or that there was a defective fastening. In the case of Weinschenk v. N. Y., N. H. and H. R. R., 190 Mass. 250, 76 N.E. 662, the Court said: "The jolt of the car was described as an unusual one; but it does not appear [***7]to have been due to any defect in the track or car, or to any carelessness in the running of the train. * * * Nor could it be inferred, from the mere closing of the door, either that there was a defective fastening or that there had been negligence in putting the door on the catch, for the reasons stated in speaking of the plaintiff's own care. It is not a case to which the doctrine of res ipsa loquitur can be applied." See also Graf v. West Jersey & S. R. Co., 62 A. 333.

   Counsel for the appellant rely upon the case of B. & P. R. Co. v. Swann, 81 Md. 400, 32 A. 175, but in that case the plaintiff was compelled to ride in a baggage car, and the Court held: "If the carrier, being unable from causes beyond his control, to provide a passenger coach, according to its contract, substitutes a baggage car, and in the course of the journey, by reason of some fault in the vehicle, the passenger is injured, the carrier is liable therefor, unless it can be shown that it exercised the utmost care and diligence, and that the baggage car was a safe conveyance."

   In the case at bar the appellant was not compelled to ride in the baggage compartment[***8] of the car in question, but he elected to do so in preference to remaining in the passenger compartment, which was provided by the appellee for the safety and comfort of passengers. Under such circumstances, and in the absence of some evidence to show negligence on the part of the appellee or its employees, there was no error in the ruling of the Court below withdrawing the case from the jury.
 
   Judgment affirmed, with costs. 

W. FRANK CHANEY ET AL. vs. THE COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 385; 86 A. 1039; 1913 Md. LEXIS 178

 January  15, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County in Equity (BRASHEAR, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Order affirmed and bill dismissed, costs above and below to be paid by the appellants.

CORE TERMS:  wharf, wharves, public convenience, vessel, impliedly, public landing, conferred, landing, build, duties, Code of Public General Laws, implied power, establishment, confer, water, vest, order sustaining, public road, local law, discharged, appointed, repealed, demurrer, vested, moored, erect

COUNSEL: James W. Owens filed a brief on behalf of the appellant.
 
Ridgely P. Melvin filed a brief on behalf of the appellee.

JUDGES: The cause was submitted to BOYD, C. J., BRISCOE, PEARCE, BURKE, THOMAS, PATTISON and STOCKBRIDGE, JJ.

OPINIONBY: STOCKBRIDGE

OPINION: [*386] [**1039] STOCKBRIDGE, J., delivered the opinion of the Court.

   The appellants, who are citizens and residents of Anne Arundel county, filed the bill in this case to enjoin the Board of County Commissioners of that county "from building a wharf on Rockhold Creek or at Cedar Point, or at any other point adjacent thereto, or elsewhere in the waters of Anne Arundel county without the authority of an Act of Assembly". The bill was demurred to, demurrer sustained, and from the order sustaining it this appeal was taken. It is to be observed in limine, that the order sustaining the demurrer neither granted leave to amend nor dismissed the bill, and the order was therefore not strictly such final order[***2] as to permit an appeal to be taken from it. The opinion of the circuit judge appearing in the record makes it plain, however, that in his view the allegations of the bill did not present a case, under which any such relief as that prayed for could be granted, and that the bill would ultimately have to be dismissed. No good end would, therefore, be accomplished by dismissing this appeal on what is merely a technical defect.

   The allegations of the bill are, that the County Commissioners have advertised for proposals for the construction of a wharf in Rockhold Creek, that they further intend to advertise and give out a contract for a wharf to be placed at the mouth of Cedar Point in West River, and also a pier or wharf attached to South River Bridge. It is further alleged that Rockhold Creek is but a narrow tributary of Herring Bay, and that the produce raised and shipped from there is of infinitesimal value, that the said creek is so narrow and the water so shallow that a vessel drawing over four feet will be unable to get to or from the wharf there, except on very high tide, that no public demand exists for the establishment of such a wharf, that a commission appointed in 1911 reported [***3]unfavorably upon the establishment of a wharf on Rockhold Creek, which report was adopted by the Board of County Commissioners, and that subsequently another commission was appointed at the [*387] instigation of interested parties, which made a favorable report; that the establishment and building of such wharf or wharves would operate as a distinct injury to the taxpayers of the county, and that the County Commissioners have no authority in law to build wharves without an Act of the Legislature.

   The Code of Public General Laws, Article 25, contains the general grant of powers to County Commissioners, as bodies corporate, [**1040] and contains an enumeration of the powers conferred and the method of their exercise with regard to many matters. The effect of this grant is to vest in the County Commissioners but a limited authority; Tasker v. Garrett County, 82 Md. 150, 33 A. 407; and hence they can only perform acts expressly or impliedly permitted by their charter or conferred on them by the General Assembly. Peter v. Prettyman, 62 Md. 566. But in the performance of their duties and in the execution of the powers expressly or impliedly[***4] given them, they are ordinarily vested with the exercise of a discretion. Blundon v. Crosier, 93 Md. 355, 49 A. 1.

   The question which presents itself in this case is, Have or not the County Commissioners of a county, the power to erect wharves as one of the powers expressly or impliedly conferred on them? Sections 105 and 106 of the Code of Public General Laws (1912), Article 25, sub-title "Public Landings," are as follows:

   "105. In all cases where the public convenience requires it the County Commissioners shall have power to establish a public landing upon any navigable river, canal, bay, sound or other navigable waters.

   "106. Upon all applications to establish a public landing, the same proceedings shall be had as on application to open a public road."

   On behalf of the appellant, it is insisted that the power contained in these two sections neither expressly nor impliedly vests in the County Commissioners the power to establish or build wharves. Section 91 of the same article relates to public roads, but among other provisions contained [*388] in it is the following: "And it shall be lawful for the said County Commissioners of any county so to contract[***5] for land for a public wharf, drains for county roads or other public use or uses, which said land shall be the property of said county subject to said use or uses." This would seem by express language to confer upon the County Commissioners the power to construct wharves, for it is hardly conceivable that power should be given to a Board of County Commissioners to contract for lands for a public wharf, and yet not give them the power to build such wharf, when they had in pursuance of an expressed power contracted for the land for it. But even if this provision were not contained in the Code, there is undoubtedly an implied power to the same effect. In 24 Cyc. 843, a landing is defined to be "A bank or wharf to or from which persons may go from or to some vessel in the contiguous water; a place on a river or other navigable water for lading or unlading of goods, or for the reception and delivery of passengers; a place where a vessel can be moored or discharged; a wharfage place for crafts."

   In Waite v. O'Neil, 76 F. 408, in an opinion rendered in the Circuit Court of Appeals, by LURTON, J., a landing, it is said, "implies a place where vessels can be moored[***6] and loaded or discharged"; and the mooring of a vessel means something more than the casting of anchor in a roadstead or along side of a river bank. Similar language was before the Supreme Court of Pennsylvania for construction, in Reighard v. Flinn, 194 Pa. 352, 44 A. 1080, when that Court was called upon to construe the term "public landing," as used in an Act of the Pennsylvania Legislature of 1836, and it was held that the words "public landing" must be construed to comprehend a wharf. See also cases cited in "Words and Phrases," Vol. 5, page 3988. In view of these holdings, even in the absence of express legislative authority for the construction of a wharf, designated as such by name, it would have to be held that there was the implied power conferred upon the County Commissioners to erect such a [*389] structure under the language of sections 105 and 106 of Article 25.

   In the brief of the appellant, a suggestion was made that the provisions of the Public General Law would not apply because of the Local Laws of Anne Arundel County, as contained in the Act of 1898, Chapter 531. But no attempt was made in the brief to indicate wherein there was any[***7] conflict between the local and general laws. Chapter 531 of the Acts of 1898, was an Act dealing with the question of public roads in Anne Arundel county, and providing the procedure to be followed for the opening, repairing or closing of any such public road, and an examination of this Act has failed to disclose any conflict whatever between that Act and the General Laws of the State. Unless there be a conflict the general law with regard to County Commissioners, and their powers and duties, is not repealed by the enactment of a local law. Baltimore County v. Baker, 44 Md. 1.

   Section 105 of Article 25 confers power upon the County Commissioners to establish public landings "in all cases where the public convenience requires it." The determination of what the public convenience does or does not require is thus a matter which is left to the judgment of the County Commissioners, and is a matter to be determined by them in favor of, or adversely to, an application in the exercise of their discretion. It is not a matter with which the Courts have anything to do, or can in any manner control, unless it be made apparent that the action of the County Commissioners was[***8] a purely arbitrary act, or induced by corruption or fraud. No allegation in the bill in this case goes to that extent, and the order of the Circuit Court for Anne Arundel County will therefore be affirmed.

    Order affirmed and bill dismissed, costs above and below to be paid by the appellants. 

CHARLES G. FELDMEYER vs. ROBERT L. WERNTZ. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 285; 86 A. 986; 1913 Md. LEXIS 168

 January  14, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Baltimore City Court (ELLIOTT, J.), to which Court it had been removed from the Circuit Court of  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgment reversed without awarding a new trial, the appellee to pay the costs above and below.

CORE TERMS:  lease, tenant, equitable, renewal, landlord, adjudicata, lessor, expiration, demurrer, lessee, prayer, original term, rent, year to year, subject-matter, tenancy, original lease, appraiser, covenant, declaration, recipiatur, pleaded, rental, assigns, restitution, erected, second story, instituted, expired, terminated

COUNSEL: Jesse Slingluff and Frank Gosnell (with whom was Robert Moss on the brief), for the appellant.
 
David G. McIntosh and James W. Owens (with whom was Frank H. Stockett on the brief), for the appellee.

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

OPINIONBY: STOCKBRIDGE

OPINION: [*286] [**987] STOCKBRIDGE, J., delivered the opinion of the Court.

   In April, 1910, Robert L. Werntz instituted a suit in ejectment against Charles G. Feldmeyer in the Circuit Court for Anne Arundel County, to recover possession of the premises in the City of Annapolis, known as No. 48 Maryland avenue. The size of the lot was said to be 20 by 90 feet, adjoining the Annapolis Opera House, formerly known as The Masonic Hall, and the declaration sought a recovery of the land and $1,200 damages.
 
   [*287] To this declaration the defendant, appellant here, filed-- [***2]first, a plea of non cul. The case was then removed to Baltimore City for trial, and after its removal there, additional pleas were filed, the second being a plea upon equitable grounds; the third, that the defendant was holding the property under the provisions of a lease thereof set out in the equitable plea; and fourth, that the defendant so holding the property had performed all stipulations and covenants contained in the lease to be by him performed; and the fifth plea set up, that the matter in controversy was res adjudicata.

   The plaintiff demurred to the second and third pleas, and filed a motion of ne recipiatur as to the plea of res adjudicata, and the demurrer and motion were subsequently sustained.

   The action of the lower Court in this regard presents the first matter for consideration. An appeal from the final judgment in a civil action brings up for review the action of the trial Court in its rulings on demurrers to pleas and replications, and no bill of exceptions or writ of error designating the point of law is necessary. Kendrick & Roberts v. Warren Brothers, 110 Md. 76, 72 A. 465.

   The sufficiency or insufficiency of equitable[***3] pleas has been frequently before this Court, and the authorities were very fully collected in Bond v. Murray, 84 A. 655, where it was stated that a defense which is a good defense at law, can not be pleaded on equitable grounds, because it is only such a defense as could not formerly have been pleaded at law, that is now let in on equitable grounds. The equitable plea in this case set up the following matters: that on the 16th January, 1875, the property which is the subject-matter of the suit, was in the possession of the Trustees of the Annapolis Lodge No. 89, Ancient Free and Accepted Masons of Anne Arundel County, who on that date leased the land to Charles H. Hopkins and Spedden V. Wilson for a term of twenty years from that date. The lease is set out in full, and that paper recites that in contemplation of the lease, [*288] Hopkins and Wilson had erected, at their own expense, a two-story frame building on the lot 20 by 90, south of and adjoining the Masonic Hall; that the Trustees, the party of the first part to the lease, were to have the full use of the second story of the building to be used by them in conjunction with a large room in the Masonic[***4] Hall, which is used for giving theatrical [**988] and other public entertainments, and for such other reasonable purposes to which the parties of the first part should see fit to apply them; that the parties of the second part were to pay all taxes and assessments levied and to be levied upon the lot so leased and the dwelling or dwellings erected thereon, and then follows this provision: 

   "Third. That they will further during the continuance of said lease keep the second story of said building in good and proper repair; that they will permit such portion of said lot as is not covered by said building to be used in common with them as a yard for the said Masonic Hall, and that they will not permit intoxicating liquors to be sold in said building during the continuance of said lease. And the said parties of the first part, for themselves, their heirs and assigns, covenant and agree that during the continuance of said lease, that they will pay the ground rent which shall accrue from time to time upon said lot. And it is herein further provided that at the termination of this lease, the said parties of the first part shall either lease said lot to the party of the second part[***5] or their assigns for another period of twenty years, subject to all the terms and conditions of this lease, or shall have the right to purchase of the said party of the second part, their heirs and assigns, the building aforesaid, as follows: If the parties are not able to agree upon the value of said building, then each of them shall appoint one appraiser to assess and value said property, and should said appraisers be unable to agree, then they the appraisers shall have the power to call in a third party as umpire, and the decisions of said appraisers shall be conclusive among the parties."

   [*289] The plea then goes on to recite that on the 21st of January, 1875, Spedden V. Wilson assigned all his interest under the lease to James W. Holland, and a full copy of that assignment is given; that on June 13th, 1882, James W. Holland assigned to Charles G. Feldmeyer all his interest in the lot so acquired from Wilson, and a copy of that assignment is inserted in full; that on January 23rd, 1890, Charles H. Hopkins assigned all of his interest under the lease to Charles G. Feldmeyer, and that assignment is also fully set out.

   The plea further recites that when the original term[***6] of twenty years expired, the lessors and their successors did not exercise the option to purchase, already mentioned in the original lease, made no offer to appoint appraisers for a valuation of the property, and gave no legal and sufficient notice to vacate; that the improvements erected by the defendants cost in the neighborhood of $3,000, and concludes, that to permit the plaintiff to recover in the action would allow him to escape the payment of the cost of improvements in accordance with the stipulations of the lease.

   The facts set up by this equitable plea have thus been somewhat fully recited for the reason that this plea is almost identical with a plea filed on equitable grounds in the case of Carpenter v. Wilson, 100 Md. 13, 59 A. 186, in which this Court, after giving the substance of the equitable plea, said, that upon the facts recited, if properly proven, there could be no doubt that a Court of Equity would afford relief by enjoining any judgment of restitution which might be made in a Court of Law. The only important difference between the lease in the present case and that under consideration in Carpenter v. Wilson, supra, [***7]is that in the present lease there is no rent stipulated to be paid, but the lease does distinctly give to the lessors the full and complete right of user of the second story of the building erected on the lot in question, and this was apparently deemed by the parties, together with the covenant on the part of the lessee to pay the taxes, an equivalent for any rent. The plea on equitable grounds in [*290] this case may be open to the criticism of being unduly prolix in setting out in full the original lease and assignments thereof, and undoubtedly the defendant could have framed an equitable plea relying upon the same facts without so giving these several papers in extenso, reserving the full text as matter of proof at the trial; but the mere fact that by thus fully setting out the several papers upon which the defendant relied the plea was made cumbersome, can not be regarded as making it legally bad, and when the trial Court sustained the demurrer to this plea, it committed error.

   The demurrer to the third plea was also sustained, and properly so. That plea was as follows: "And for a third plea, the said defendant says: that he is holding and in possession of said property[***8] in the declaration mentioned under the provisions of the original lease set out in the equitable plea and that said lease is still in force and effect."

   This plea involved a conclusion of law, rather than embodying a statement of fact, and as to the nature of the then holding of the premises by the defendant, the question was one to be raised by appropriately framed prayers, not by alleging legal conclusions by way of plea. Code 1904, Art. 75, sect. 2, 1 Poe on Pleading and Practice, sect. 549; Aetna Indemnity Co. v. Fuller, 111 Md. 321, 73 A. 738.

   The fifth plea, as already said, was a plea of res adjudicata, yet for some reason which does not appear in the record, the Court declined to receive such plea by the granting of the motion ne recipiatur. If, as matter of fact, there had been prior litigation between the same parties involving the same subject-matter, carried to a point of final determination upon the merits, there was no reason why the defendant should not be permitted to show that fact. Whether it is necessary to specially plead it, or whether evidence of such prior adjudication can be given under a general issue plea, may be [**989] [***9]open to considerable question, but Mr. Poe, in his valuable work on Pleading, sects. 655 and 656, lays it down as better practice to plead a defense of this character specially. [*291] If the defendant failed to establish the matter thus pleaded by proof, it could not avail him; while, on the other hand, if he could so establish it, he was entitled to have the pleadings so framed as to permit him to offer the evidence. It was therefore error on the part of the trial Court to grant the motion of ne recipiatur.

   The first bill of exceptions in this case relates to evidence. The plaintiff, Robert L. Werntz, was under examination, and he was asked as to the rental value of the property in question; to which objection was made, but the objection was overruled and the witness permitted to answer. The declaration in this case was for the restitution of the premises, and for $1,200 damages; the lease upon which the defendant relied named no rental whatever; if the plaintiff, upon a proper construction of the terms of the agreement, was entitled to the restitution of the premises, he was likewise entitled to recover damages, and one element of those damages would consist in[***10] the rentals of the property of which he had been deprived. It was, therefore, proper upon his theory of the case, that he should be thus permitted to testify as to the rentals value as bearing upon the question of damages.

   The second exception was to the ruling of the Court, excluding from consideration the record of a prior litigation between the same parties, in regard to the same subject-matter and which had been terminated by a verdict for the defendant. This was a natural consequence from the granting of the motion of ne recipiatur as to the defendant's fifth plea. In order to determine fully whether the exclusion of this record was or was not correct, it becomes necessary to examine the proceedings in the two cases with some degree of particularity. The present plaintiff acquired his title to the property in the month of March, 1907, and on the 26th of that month, in a letter addressed to the defendant, made a demand for the rent of the premises; no rent having been received, and liability for rent having been denied, Mr. Werntz instituted a suit in ejectment in the Circuit [*292] Court for Anne Arundel County to the April Term, 1908; to this the defendant filed various[***11] pleas, the second of which was a plea upon equitable grounds, almost identical with the plea upon equitable grounds filed in the present case; the first and fourth pleas were identical, and there were two additional pleas, to which a demurrer was sustained, and which it is therefore not necessary to consider. The property described in the declaration in this suit, was a lot 20 by 90 feet, known as No. 48 Maryland avenue, and was testified on cross-examination by Mr. Werntz to be the identical property for which the present suit was brought. The parties to the record in that case were the same as in the present proceeding, and the case was terminated by a verdict of the jury before which it was tried, in favor of the defendant, under instructions of the Court. What is necessary for a valid defense by way of res adjudicata is succinctly stated in Johnson v. Stockham, 89 Md. 368, 43 A. 943, where the rule laid down is, that "For successful defense on this ground there must be identity of parties, identity of subject-matter, a decision of the case on its merits, and jurisdiction of the Court over both of the parties." In that case the plea of res adjudicata[***12] failed by reason of the lack of jurisdiction. Cases might be multiplied in large numbers to the same effect, and some even go further than the statement just made. In Trayhern v. Colburn, 66 Md. 277, 7 A. 459, it is said: "That it is not necessary that the defense shall have been taken on the precise point which is controverted in the second case, a decree is res adjudicata as to all matters of defense existing and which were available to the defendant at its date." To the same effect are the cases of Aurora City v. West, 7 Wall. 82, 19 L. Ed. 42; State v. Brown, 64 Md. 199, 1 A. 54; Barrick v. Horner, 78 Md. 253, 27 A. 1111; Marine Bank v. Heller, 94 Md. 213, 50 A. 521; Albert v. Hamilton, 76 Md. 304, 25 A. 341; Hill v. McConnell, 106 Md. 574, 68 A. 199.

   The appellee, upon this branch of the case, places reliance upon the case of Wisconsin v. Torinus, 28 Minn. 135. In that case the Minnesota Court draws a distinction between [*293] the identity of the subject-matter of a suit, and the identity of the cause[***13] of action, holding that a subject-matter might be the same, and yet the cause of action different, so that an earlier adjudication will not operate to prejudice rights acquired after the first litigation, and which had not accrued at the time of the rendition of the original verdict. In that case a suit had been brought by the State of Wisconsin, but the suit failed because of the fact that the agent purporting to represent the State, in entering into the contract which was the basis of the action, had no authority to contract as he did. After such judgment the Legislature of Wisconsin adopted and ratified the previously unauthorized Act of the agent, and suit was again instituted, and res adjudicata was pleaded as a bar to the action; but under such a state of facts it is evident that the case came neither within the letter or spirit of the rule, that a party can not litigate the same question twice. In the present case, Mr. Werntz first acquired his interest in the property in question in the year 1907; twelve years after the term named in the original lease had terminated; the respective rights of Mr. Werntz and Mr. Feldmeyer were already fixed, and between 1908, when the first[***14] suit was brought, and [**990] 1910, when the second suit was instituted, there was but one possible thing which could operate to alter the rights of the parties, viz., the original term of twenty years having expired in 1895, if Mr. Feldmeyer and his predecessors by holding over thereafter became tenants from year to year, then more than a year having elapsed between the bringing of the two suits, a year's tenancy had expired, and notice to vacate having been given, the plaintiff was entitled to a restitution of the premises. On the other hand, if at the expiration of the original term in 1895, the inaction of the parties either as to renewal of the lease, or to the purchase by the owners of the fee, of the improvements placed upon the property by Hopkins and Wilson, had the effect of a renewal for another term of twenty years, the rights of the parties [*294] were identical in the two suits, and the plea of res adjudicata was properly interposed and a complete defense of the action.

    This leads to a consideration of the third exception which was reserved by the defendant to the ruling of the Court on the prayers in the case.

   The first prayer of the defendant sought to[***15] take the case from the jury upon the ground that the plaintiff had offered no evidence legally sufficient to entitle him to recover under the pleadings, and the second and third prayers of the defendant were predicated on the defendant's theory of the lease that there had been an implied renewal for a twenty year term. All three of these prayers were refused by the trial Court. One of the stipulations of that lease was: "That at the termination of this lease the said parties of the first part shall either lease said lot to the party of the second part or their assigns for another period of twenty years subject to all the terms and conditions of this lease, or shall have the right to purchase of the said parties of the second part, their heirs and assigns, the building aforesaid, as follows:" It is a concessum in the case that when the original twenty year term expired in 1895 nothing whatever was done either by way of executing a renewal lease, or a purchase of the property. The general rule in such cases is laid down in 24 Cyc. 993 (c), that "where a lessor covenants for a renewal or to pay for the improvements, the option rests with him to do one thing or the other. The lessee[***16] cannot compel a renewal and if the landlord elects to renew, the tenant cannot require payment for improvements." And the same general rule is contained in 18 Am. & Eng. Ency. 199, where it is said, "that the new periodical tenancy created by holding over is presumed to be upon the same terms as the preceding tenancy." And such was the holding in McBrier v. Marshall, 126 Pa. St. 390, where a tenant under a lease for five years held over after the expiration of the term, and was thereby construed to have renewed the lease for another period of five years. The rule in England is apparently clear, that "if there be a lease for a year and by consent of [*295] both parties the tenant continues in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement." Right v. Darby, 1 Term Rep. 159; Dougal v. McCarthy (1893), L.R. 1 Q.B. Div. 739. In this country there is some apparent conflict of decision, attributable in the main to the special phraseology of the lease in the particular case. For example the case of Hall v. Myers, 43 Md. 446,[***17] hinged mainly upon the question of notice, but in that case there had been a lease for three years, but without a covenant for its renewal at the expiration of the original term, and when the tenant held over beyond the term of three years, he was construed to be a tenant from year to year. In Hobbs v. Battery, 86 Md. 68, the land had been leased for a period of one year, the tenant remained in possession after the expiration of the year with the consent of the landlord, and it was held that the law implied a new renting at the rental named in the lease. In this case, therefore, the result was the same whether the construction given to the holding over after the expiration of the original term was a renewal of the original lease for another like term, or of the creation of a tenancy from year to year. In the case of Biggs v. Stueler, 93 Md. 100, 48 A. 727, there was a renting for one year, and it was said that, "where real property is rented for one year and the tenant remains in possession after the expiration of the year with the consent of the landlord, the law implies a tenancy from year to year, but if upon the expiration of the first[***18] year of the tenancy there is an express renewal of the lease for another year, the tenant holds for the definite period of one year and not as tenant from year to year." The lease in this case does not appear to have contained any provision for a renewal. The case of Falck v. Barlow, 110 Md. 159, 72 A. 678, was strongly relied on by the appellee. A lease for ten years had been signed by the parties, but it was not acknowledged and recorded as required by law, and when a question arose between the landlord and tenant under this state of facts it was held, that since the lease had not been executed and recorded agreeably to law, the tenant was [*296] not such by virtue of the lease, but that he was a tenant in fact, and by implication of law a tenant from year to year. The lease in the present case required the parties of the first part at the expiration of the original term to do one of two things; either, to give the parties of the second part a lease for a second period of twenty years, or to purchase the improvements placed on the property; there was thus an affirmative duty placed upon the lessors. They did not exercise their alternative right to purchase[***19] [**991] the improvements, or take any step in that direction, and were, therefore, bound to give a new lease for a second period of twenty years upon the same term as the first; and upon their failure so to do, and the tenant remaining in occupancy of the premises with their consent, the law would imply a renewal in accordance with the terms of the original lease, the continued occupancy of the premises after the expiration of the original term having been down until 1907 with the full consent of the original lessors and their grantees, the mutual rights of landlord and tenant had thereby become fixed, and could not thereafter be altered save by the mutual agreement of the parties, which agreement has never been reached. These rights being fixed, it was beyond the power of Mr. Werntz alone to alter them between the time of the first trial and the second, and the record of the prior case should have been admitted, and its exclusion was reversible error.

   It also follows from what has been said, that the first prayer of the defendant should have been granted.

   For the errors in sustaining the demurrer to the equitable plea, the granting of the motion of ne recipiatur and exclusion[***20] of the evidence tending to support the plea of res adjudicata, and the refusal of the first prayer of the defendant, the judgment below must be reversed.

   Judgment reversed without awarding a new trial, the appellee to pay the costs above and below. 

JOHN S. GRAHAM ET AL. vs. PHILIP B. COOPER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 358; 86 A. 991; 1913 Md. LEXIS 175

 January  14, 1913, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Decree reversed, with costs to the appellant.

CORE TERMS:  specifications, floor, liquidated damages, cellar, occupancy, planed, water, plastering, supplemental contract, sand, leak, contract price, occupation, carpenter, finished, omissions, plaster, chimney, window, door, fully completed, incomplete, estimated, estimate, planing, replied, builder, decree, oiled, sums of money

COUNSEL: Frank H. Stockett and James M. Munroe, for the appellant.
 
Ridgely P. Melvin, for the appellee.

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

OPINIONBY: PATTISON

OPINION: [*359] [**991] PATTISON, J., delivered the opinion of the Court.

   The appellant in this case, John S. Graham, a Lieutenant Commander in the U.S. Navy, and the owner of a lot of land at Wardour Bluffs, near the City of Annapolis, entered into a written contract with the appellant, Philip B. Cooper, a builder and contractor of Annapolis, Md., dated the 5th day of May, 1910, by which the appellee was to build and construct for him a frame cottage on said lot of land. By this contract the appellee was not only to do the work, but was likewise to furnish the material to be used in the construction of said cottage. The work to be done and the material to be used were to conform to the specifications thereto attached and made a part of the contract. The house was to be completed not later than[***2] the 1st day of September, 1910, at which time, or upon its completion, ready for occupancy, the sum of $4,400 was to be paid therefor to the appellee by the appellant.

   Upon the 1st day of September, 1910, the house was not completed and ready for occupancy, and on the 3rd of September following a supplemental agreement was entered into by and between the appellant and the appellee.

   By the last agreement or contract the time in which the building was to be completed was extended to the 1st day of October, 1910, at which time it was to be completed and ready for occupancy. But the contract further provided, that should the appellee fail to complete the building at the time named therein, he was to pay to the appellant, as liquidated damages, the sum of five dollars per day, commencing with the 1st [**992] day of September, 1910, "until the building was completed and ready for occupation." It was further provided therein, however, "That the said John S. Graham is not to be unreasonable in his interpretation of the phrase 'completed and ready for occupation,' but in matters of trifling moment may accept the said building, occupy the same and retain from the contract price such sum[***3] or sums of money as may be sufficient to complete the work in every [*360] detail and particular." In all other respects the original agreement or contract was unchanged and was to remain in full force and effect.

   On October 1st, as alleged by the appellant, the building was still unfinished and not ready for occupancy. On October 13th, however, the appellant moved in and occupied the building; at which time, as he alleged, the building was still incomplete and unfinished.

   The record discloses by correspondence and otherwise that the appellant was dissatisfied with the work done and material furnished by the appellee upon and in the erection of said house, and contended that the work had not been completed, and after the payment by him, in all, of the sum of $3,955.54, the last payment being made on the 8th day of October, 1910, he refused to pay more so long as the conditions of which he complained continued to exist.

   On the 16th day of December, 1910, the balance of said contract price, $444.46, as claimed by the appellee, and the further sum of $25 for extra work likewise claimed by the appellee, not having been paid, the appellee filed his mechanics' lien against said[***4] house and lot of land for the sum of $469.46. On the 30th day of December he filed his bill in the Circuit Court for Anne Arundel County for the enforcement of his mechanics' lien claim against the appellant and the "Workingmen's Building and Loan Association of Annapolis, Anne Arundel county, Maryland," a corporation to which the appellant, by deed of mortgage, had conveyed said property to secure a loan from it to him. In his bill he asked for a sale of the property described in said lien, and that the proceeds thereof be distributed to him as lien or under the order of the Court.

   The defendant answered the bill, denying the allegation therein contained that the building was erected and completed in compliance with the terms of the contracts and specifications mentioned, and alleged that it was at such time "in an incomplete condition, requiring and necessitating the expenditure of considerable sums of money to make [*361] the same conform to the provisions, requirements and stipulations of said contracts, plans and specifications;" and that such incomplete condition of the building was due to the neglect and failure of the plaintiff to complete the same in accordance with[***5] the terms of said contracts, plans and specifications. And in his answer he denied that he was owing unto the appellee the sum of $469.46, as alleged in the bill, but charged that "by reason of his (plaintiff's) neglect, mismanagement and flagrant disregard of the terms and requirements of the said contracts and specifications he has been more than compensated for such work as he has done and materials furnished in and about the erection of said building."

   Upon the bill, answer and evidence the Court below granted a decree as prayed, after first having reduced the amount claimed to the extent of $35, of which $25 was for extra work, which the Court held had not been properly proven, and $10 for work that the appellee agreed to do and which was not done. It is from that decree that this appeal is taken.

   The appellant contends:

   First--That by a reasonable interpretation of the phrase "completed and ready for occupation," found in the supplemental contract, the building was not completed and ready for occupancy on the 1st day of October, 1910; and, therefore, by the provisions of said supplemental contract he was entitled to the liquidated damages of $5 for each and every[***6] day the building remained incomplete and not ready for occupancy from the said first day of September until it was completed and ready for occupation, which was, as he alleges, not earlier than the 7th day of October, 1910.

   Second--That the property has never been completed in conformity with the terms and provisions of the aforesaid contracts and specifications, and that the amount required to complete the work in respect to those things which have not been done, and the loss and injury sustained by him by reason of the failure of the appellee to perform the work [*362] that has been done, in accordance with the terms and provisions of the contract, together with the liquidated damages, to which he claims he is entitled by reason of the failure of the appellee to complete the building, ready for occupancy on the 1st day of October, is in excess of the amount of the contract price remaining unpaid; and thus no part of said contract price was, at the time of the filing of the mechanics' lien or now, owing unto the said appellee.

   We will first consider the second contention. We shall refer only to such parts of the specifications, which are quite voluminous, as are involved [***7]in the contentions as we have stated them.

   The specifications first provided that "All work as described herein, or shown on the drawings and any work necessary to the thorough completion of the work so described or shown, is to be executed in the most workmanlike manner, and where work and material are not specially mentioned they are to be of the highest grade and best adapted to the purpose. All materials are to [**993] be the best of their respective kinds in ample quantities."

   As we have said, the appellant contends that much of the work that was to be done under the contracts and specifications has not been done, and that much that was done was improperly done. In his testimony he names these omissions and defects, some of which are: that the cellar floor was not laid so as to drain to the trap or sink in the center as it was intended, and that when the water was turned on it would run all over the floor before running out through the trap; that the plastering, particularly in the kitchen, was bad; that the pointing up over the doors and windows was of the crudest sort of work; that the floors had not been planed, cleaned and oiled, as provided for in the specifications, [***8]even the joints and butts were not planed off except in some cases; that the switches for the electric wiring had not been put in place in three or four rooms; that the correction to be made in the back porch by the supplemental agreement was not made; that the dormer [*363] window on the northwest side of the house was not weather tight, the rain blew in all around the weather framing and the wind came through both sides of the dormer, and the water leaked through into the bedroom below; that the moulding under the window framing was entirely missing; that there was no building paper on the side of the dormer under the shingles; that the chimney of the house leaked badly; the chimney flashing was not placed properly and was not made water tight where it joined the chimney; all along the beams of the pergola nearest the front of the house the tile on the outside wall had never been covered with even a sizing or coat of cement in any way, that it was still exposed to the weather; that the double doors on the porch fitted so badly that the lock provided for the door will not reach across the space between the doors when they are closed; that the flooring is in pieces and does not[***9] reach to the wall, especially in the dining room under the radiator; the wood work behind the radiators is not painted; that under the front door threshold there is a slit three feet long by three-fourths of an inch wide leading directly into the cellar; that there were leaks in the cellar on the southwest side and leaks through the steps on the northwest side. In addition to these defects, the chimney was built with three flues when the contract called for four.

   George W. Evans, a carpenter and builder, with twenty years' experience, who had visited the house and inspected it, was produced by the appellant as a witness and testified as to the defects named by the appellant in his testimony. He spoke of the plastering as being an ordinary job, not what it should be--a first-class job; that it wasn't a sand finish as he understood such finish; that there were some very bad cracks and it was not finished smooth, that the sand would leave the wall, it would rub off as though there was nothing "to it". When asked how this defect could be cured, witness stated that the only thing he knew was to finish it with water colors, and before doing that to use [*364] glue sizing, that might[***10] hold the sand to the wall and stop the loose sand from falling off. To do this he estimated the cost at $120 or $125. He also spoke of the leaks around the windows, the cost of which he said was hard to estimate, for this, however, he allowed $40. He testified that there were a great many radiators where the washboards behind them had not been painted; to complete this work he allowed $5, and for the leak around the dormer he allowed $5. As to the cellar, he stated there was a good bit of water in the cellar at the time he saw it; around the bottom of the cellar wall it was very wet and looked as though it came in under the end wall, but that he couldn't say positively, some may have come down the cellar door; it was difficult to locate where the water came in; there were two leaks in the cellar; that it was hard to estimate the cost of correcting these defects, "that it was a hard thing to get at," but said "I allowed $50 to stop that leak," that is, both leaks. He also noted the absence of the push buttons and electric switches, but as to these he could not make an estimate. He estimated the difference in the cost of the chimney with three flues and four flues at $30 or $[***11] 35. He also observed the rough casting behind the beam on the front porch, and estimated the cost of correcting that defect at $10. He also observed the opening under the front door, through which, when standing in the cellar, he could look out upon the Severn river; the cost of curing this defect, however, he said would be about $2. The change to be made in the back porch would not cost, he said, over $10. The work to the cellar floor to make it drain to the outlet in the center, would, he said, cost about $35. His attention was then called to the provision in the specifications which reads: "Flooring: To be clear of knots, holes, blemishes of any kind, planed, smooth, cleaned and oiled," and he was asked as to the meaning of that provision, to which he replied that by his interpretation it meant that the whole surface of the floors should be planed, cleaned and oiled, and that this was not done, some of the high [*365] places and headers had not been struck down. To plane the floors he estimated the cost would be $50. He further testified that the work was not done in accordance with the contract, at least in respect to the defects and omissions stated above by him. He[***12] also stated that there were other small things that were not in strict conformity with the plans and specifications; these he did not make a list of and to do so would require him to go over them again.

   [**994] William H. Gibbs, foreman mason at the U.S. Naval Academy, whose trade was that of bricklayer, stone mason and plasterer, testified, when produced by the appellant, that he examined the premises of the appellant and the plans and specifications under which the house was built; he did not think the plastering a good job, and saw no way to correct the defects but to replaster it, but made no estimate as to what the cost would be to do this. He examined the cellar, saw the defects to which his attention was called, but did not think it was a spring. He construed the provision in respect to planing the floors in the house as meaning that they should be planed all over. The defects in the plastering he thought were not due to the workmanship, but in the manipulation of the material; that it was not done in accordance with the plans and specifications. He said the plastering was faulty in that it sifts sand, that "if you draw your hand over it you can rub sand off the wall, which [***13]shows that the material has been killed in the working of it."

   The appellee when offered as a witness in his own behalf, when asked whether or not the contract was completed by him in accordance with the specifications, said "I do not know any case where it wasn't. And when asked "Has this contract been finally and fully completed by you in furnishing the work and material in conformity with the terms? He replied "Yes." He with Mr. Graham, the appellant, and Mr. Werntz, early in October, made an inspection of the building, at which time, he testified, Mr. Graham complained of the floors not being planed all over, but he did not recall [*366] any other complaints made at the time by Mr. Graham. "There were other things to which he objected, but he came down to the matter of planing the floors, as I remember. I stated my contract was finished, but he did not settle up with me." He also testified that after the work was completed he made a personal inspection and "found everything in first-rate shape and in good order; I found a few little things which always occur in a new house and which required small alteration." When asked what these small things were, he said he noticed that[***14] a window and a couple of gutter hangers were broken; he also noted certain cracks in the plaster, which he said, always occurs in new houses of frame construction; and that was all. All these defects he said could be remedied for about $10.

   William L. Marcy, for eighteen years Government Inspector at the Naval Academy, produced in behalf of the appellee, testified that on the day before, at the request of Mr. Cooper, he inspected the house with him, and that after his return he carefully read the specifications. He was then asked, "From your examination of this building in connection with these sets of specifications what did you find?" He replied saying, "The building is in fairly good shape according to the specifications, with the exception of a few little things." When asked about these, he said the plaster in the front hall was bad, in the other parts of the house it was in "Very good shape for that kind of a job." He testified, however, that he did not go into the kitchen; they were at the time cooking dinner. It was in the kitchen that the appellant claims the plaster was in particularly bad condition. When asked what was meant by the specifications in reference to planing[***15] the floors, he said, to plane a floor is "simply to buff and knock off the tongue and groove side." He also noticed that "water goes in the cellar when it rains;" he could not say whether the cellar was constructed according to the plans and specifications as he did not have the plans. He thought the job a good one except for the things he had mentioned.

   [*367] John A. Stokes, a carpenter of Eastport of forty-five years experience and who had worked for Mr. Cooper for the last three or four years, testified that he was foreman in the construction of the house mentioned in these proceedings, and when asked if the carpenter's work upon the building was completed according to the specifications in every particular, he replied by saying, "It might not have been up to the scratch in a few little things," and these, he explained, were all alterations made at the request of Mr. Graham. He further testified that the material measured up to the specifications. He said the floors were buffed, while the specifications called for the floors to be planed.

   George Jewell, who did the brick laying and plastering upon this house, testified that it was completed in accordance with the specifications. [***16]He also stated that Mr. Graham complained of the condition of the plaster and asked and wrote to him to come and look at it, but he never went but later sent someone who made the necessary repairs. Upon cross-examination, however, he did not know what repairs were made. He said "After the carpenters get done we generally see if there is any pointing up to be done." Mr. Graham, when upon the stand, testified that neither Jewell nor anyone else made any repairs thereto. Jewell also testified that shore side sand and not sharp bank sand was used, as provided in the specifications.

   Daniel P. Thompson, a carpenter of Annapolis, testified that at the request of Mr. Stokes, employe of the appellee, he visited the house and premises mentioned in these proceedings and examined the plastering and found it about as you would find in any house built that length of time; it appeared to be in fairly good condition, and thought the plastering for a two coat sand finish job [**995] was up to the specifications. He found a little water in the cellar--no puddles, only a little wet; wet where the water ran in from, as he thought, the down spout which had become disconnected.

   After the appellant's[***17] witnesses had testified specifically to the facts, as we have stated them, in relation to the defects [*368] and omissions complained of Mr. Cooper went upon the stand in rebuttal and denied the testimony of Mr. Graham, the appellant, that the work was not continuously carried on. He then explained the two ways of finishing the job using two coats of mortar, and then said that up to the day when he finished the job Mr. Graham never said a single word in complaint of the plaster taken as a whole; his only objections were to cracks and the pointing up around the doors and windows. This was the full extent of his testimony in rebuttal; he made no denials or references to the specific defects and omissions claimed by the appellant and others who testified in his behalf, to exist in this work. He contented himself with the general assertions or declarations of himself and witnesses that the work was done in accordance with the contracts and specifications but did not enter into any denials or explanations of such omissions and defects pointed out and complained of by the defendant.

   On neither of the occasions when upon the stand did the appellee give the meaning, as he understood[***18] it, of the provision in the specifications as to the planing of the floors, although nearly all, if not all of the witnesses who testified in his behalf attempted to construe this provision of the specifications. When first upon the stand he spoke of Mr. Graham's having complained to him because he had not planed the entire floor, Mr. Graham contending that such was the meaning of the specifications, and all he said in reply thereto was that he "had finished his contract" and it was not referred to by him at all when he returned to the stand in rebuttal, although Mr. Graham had testified that before the contract was executed he discussed with Mr. Cooper the meaning of this provision of the specifications and explained to him what was meant thereby. Mr. Graham stated that such discussion or explanation arose from the fact that at the home of Mrs. Graham in the preceding summer the same question had arisen in work there done, and that Mr. Cooper understood fully at the time that this was the meaning intended to be given by them to this provision of the specifications.

   [*369] In our opinion such construction was the proper one to be placed thereon and the one intended by the parties[***19] to the contract. The plaintiff not only failed to plane the floors, but also to oil them.

   With these facts before us, we can reach but one conclusion, and that is that the work that was to be done under the contracts mentioned has not been completed, and that much of the work done was not in compliance with the contracts and specifications. While the plaintiff and his witnesses say in general terms that the work has been completed in compliance with the contracts and specifications, yet some of them admit that certain defects of a serious character may be found in the work, and they do not deny that the plaintiff has failed to do other important things that under the contracts he was to do. We will here state that we find no evidence in the record to sustain the charge of $25 for extra work.

   We will now consider the first contention of the defendant as we have stated it:

   By the supplemental contract, as we have said, the time at which the building was to be completed was extended to the first day of October, and it provided that should the appellee fail to complete the same at such date he was to pay to the appellant the sum of $5 per day as liquidated damages from the 1st day [***20]of September until it was fully completed and ready for occupancy. Thus we are to determine whether or not the building was completed and ready for occupancy on said last-named date within the meaning of said contract.

   By it the appellant was not to be unreasonable in his interpretation of the phrase "completed and ready for occupation, and from that we understand that although the house was not to be fully completed in every particular at such time, he was to occupy the same if it was in that condition that he could do so with reasonable comfort and convenience; and he was thereby authorized, in the event of his occupying said building before it was fully completed, [*370]to retain from the contract price such sum or sums of money as would complete it.

   The appellant in his testimony says the building was completed so it could be occupied on October 7th and not before. Mr. Strange, the painter, testified that he was still painting on the inside of the building when the appellant started to move his furniture in the house, which was about a week before the 13th of October.

   The appellee on October 7th wrote the appellant, "My work being completed today," etc. On the same day, [***21] and upon the receipt of his letter, the appellant wrote him, "Your note of this date is just received in which you report your work finished. I infer from that that you mean the inside painting around the molding at the bottom of the base board and the pointing up that was agreed upon yesterday. I'll come and inspect the house this afternoon about five-thirty, as you know I am anxious to move in. When your work is completed present yourself with the releases, receipts, quittances, etc., as required in the contract, in Mr. Stockett's office, and I'll meet you there any time tomorrow or next Monday or Tuesday afternoon. We will then [**996] make final arrangements and pay you the amount due on the contract after the reservations that I have mentioned to you as due me under the terms of the contract. Now any delay in receiving your money will be due to your failure to be on hand." It was upon the next day, October 8th, that the second and last payment, $2,914.54, was made upon the house.

   It is evident in our opinion that the 7th of October was as early as the appellant could, within the meaning of the supplemental contract, have occupied said house. Even at this time the floors[***22] were neither planed nor oiled and, as the painter says, they were still painting upon the inside of the house.

   But before it can be said the appellant is entitled to the payment of five dollars a day from the 1st day of September to the 7th day of October, it must be determined that [*371] this money to be paid to the appellant is for liquidated damages and not a mere penalty for breach of the contract.

   As was said by JUDGE MCSHERRY, "The solution of that question, whilst to some extent controlled by artificial general rules which are not wholly in harmony with the ordinary canons of construction, depends in a large measure at least upon the particular facts and circumstances of each separate case." Willson v. M. & C. C. of Baltimore, 83 Md. 203, 34 A. 774.

   In 30 Ency. of Law, 2nd Ed., 1263, it is said: "Because of the difficulty of ascertaining with certainty the damages arising from a failure to complete working contracts within the stipulated time, the parties to such contracts frequently provide for the payment of a specified amount as liquidated damages for failure to perform the contract on time, and the Courts have unhesitatingly upheld and enforced[***23] such provisions." United Surety Co. v. Summers, 110 Md. 95, 72 A. 775; 13 Cyc. 99.

   The provision of this contract as to liquidated damages differs somewhat from the cases generally in that the time for which the payments are to be made starts at an earlier date than the day of the breach. The breach in this case occurred on October 1st, but the appellee, by reason of that breach, was to pay five dollars for each day from the 1st of September until the house was completed and ready for occupancy. This fact, however, in our opinion does not affect the character of these payments, they are, nevertheless, to be considered as liquidated damages. This provision in the supplemental contract must be considered in connection with and in the light of the provisions of the original contract, and especially the provision by which the work was to be completed on the 1st day of September.

   The appellant stated that his work at the Naval Academy began on October 1st, and he wished to be settled in his house prior to that time. Thus September 1st was the date first fixed for the completion of the house. When the supplemental contract was made on September 3rd, the [*372] [***24] appellee stated he could complete the house by September 25th, but he was given to the 1st of October, and was told by the appellant of the importance of its being completed at that time, and if not completed that it would put him to great inconvenience and expense, that it would be necessary for him to renew the rent for the house in which he was then living and to do numerous other things that were necessary to be done at that season of the year. Time was of the essence of the contract, and it was because of the damage that would result to him by a breach of the contract and the difficulty of proving and ascertaining such damages that the payment of these sums was named in lieu thereof. In our opinion, therefore, the appellant is entitled to these liquidated damages as stated in the contract.

   The evidence as to the amount of money that would be required to enable the appellant to do the unfinished work upon the house and to correct the defects in the work done by the appellant is, in respect to some of the items named, rather indefinite and general in its character, yet if we take the smaller amount named in such cases, the aggregate amount required to do such work and to correct [***25]the defects as shown by the testimony ($357.00), together with the liquidated damages, to which we have said he is entitled, is far in excess of what remains unpaid of the contract price for the construction of the house, and therefore the conclusion may be safely reached that there is nothing owing by the appellant to the appellee under the contract for the construction of said house. We will therefore reverse the decree of the Court below.

   Decree reversed, with costs to the appellant. 

FREDERICKA C. SUNDERLAND AND G. CLIFTON SUNDERLAND, HERHUSBAND, vs. THE BRAUN PACKING COMPANY, A CORPORATION, FREDERICK W. STEHLE ETALS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 125; 86 A. 126; 1912 Md. LEXIS 77

 December  7, 1912, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The facts are stated in the opinion of the Court.

DISPOSITION: Appeal dismissed, with costs.

CORE TERMS:  confession, clerk, motion to strike, seal, cause of action, session, mortgage, default, lapse, order striking, recess, appeal lies, narr, undoubted, assent, sound discretion, appearance, collection, severally, confessed, jointly, titling, vacate, avail

COUNSEL: Ridgely P. Melvin and Robert Moss filed a brief for the appellant.
 
Archibald Sykes, Sidney L. Nyburg and Daniel R. Randall filed a brief for the appellee.

JUDGES: The cause was submitted to BOYD, C. J., BRISCOE, PEARCE, BURKE, THOMAS, PATTISON and STOCKBRIDGE, JJ.

OPINIONBY: THOMAS

OPINION: [*126] [**126] THOMAS, J., delivered the opinion of the Court.

   On the 17th of November, 1911, the appellants filed in the Circuit Court for Anne Arundel County the titling of a case against the appellees, and the Braun Packing Company, a corporation, and Adolph C. Braun and Pauline Braun, his wife, the narr., cause of action, two affidavits and an order of the attorney for the defendants to enter his appearance and to enter a judgment by confession in favor of the plaintiffs for the sum of $8,863.88, with interest from date and costs, and two per cent. attorney's fee for collection, etc., and on the same day the clerk of the Court entered the judgment in accordance with said order.

    The cause of action was as follows:
 
No. [***2]    , $12,000.00.

   ANNAPOLIS, MD., November 18th, 1909.

   Three years after date, we jointly and severally promise to pay to Fredericka C. Sunderland and G. Christopher Sunderland or order, the sum of twelve thousand dollars ($12,000) for value received, with interest from date, hereby waiving the benefit of all exemption and stay laws, and agree, in default of payment of this note when it becomes due, to pay the usual attorney's fees for collection.

   And we hereby jointly and severally authorize the clerk of the Circuit Court for Anne Arundel County, Maryland, to enter, or any attorney of any Court of Record to appear for us and in our names to confess judgment for the above sum, interest and costs, and attorney's fees, after maturity.

   Witness our hands and seals this 18th day of November, 1909.

   THE BRAUN PACKING COMPANY,
 
(Seal)   B. A. C. BRAUN, President.
 
Attest:

   HENRY EBLING,

   Secretary.

   A. C. BRAUN, (Seal)

   PAULINE BRAUN, (Seal)

   JACOB F. EBLING, (Seal)

   FRED. W. STEHLE, (Seal)

   HENRY EBLING, (Seal)

   [*127] The narr. alleged that the said cause of action or note was secured by mortgage of the same date from[***3] the Braun Packing Company, and that said mortgage "recites that in default of the payment of said principal sum, or the interest thereon to accrue, or in any part of either of them, at the time limited for the payment of the same (being semiannually for the interest thereon), then the entire mortgage debt, as represented by said note, shall be deemed due and demandable, and that said mortgage having become in default for the non-performance of the covenants therein contained, was foreclosed in due course of law," and that by reason of said default the said promissory note had matured, and by its terms the plaintiffs were entitled to a judgment against the defendants.

   The affidavits, which were made by the plaintiffs and their attorney, state that at the time the note and mortgage were given it was understood and agreed by all the parties that the note should be considered due and payable "whenever the mortgage became in default," and the order given by Winson G. Gott, attorney for the defendants, to enter the judgment by confession, was signed by him as "Attorney for defendants under power in note."

   On the 23rd of November, 1911, the appellees, three of the defendants in said judgment, [***4] filed a motion to strike out the judgment for the following reasons: "First--Because said judgment was entered unadvisedly, improvidently and without due authority by the attorney appearing therein for the defendants. Second--Because said defendants, your petitioners, have a perfectly proper and valid defence to said action of which they desire to avail themselves, and which they have had no opportunity whatever to present or to avail themselves of by reason of the fact that said suit was docketed against them and simultaneously said judgment was confessed therein against them by an attorney whom neither they nor any of them had engaged, but who entered his appearance and confessed the judgment therein solely through a supposed authority embodied in the cause of action filed [*128] therein and without any subpoena or any notice whatever addressed or given to the defendants therein, or any of them. Third--Because it is manifest on the face of the note filed in said cause, as the cause of action therein, that the plaintiffs were not entitled to a judgment in said cause when the same was entered."

   The Court below held that "the judgment was prematurely entered," and on the 3rd of[***5] February, 1912, ordered it to be stricken out, and this appeal is from that order.

   The appellees have filed in this Court a motion to dismiss the appeal, and without [**127] considering the questions determined by the order from which the appeal was taken, we think it clear that this motion must prevail.

   It appears from the record that the motion to strike out the judgment was made during the same term at which the judgment was entered, and where that is the case the application is within the sound discretion of the Court, and no appeal lies from an order striking out the judgment. This is the rule as stated by Mr. Poe, and repeatedly announced and applied by this Court. 2 Poe's Pl. & Pr. (3rd Ed.), sec. 389.

   In the case of Rutherford v. Pope, 15 Md. 579, CHIEF JUDGE LEGRAND said: "The record shows that the motion to strike out the judgment was made during the same term at which it was rendered. Until the lapse of the term, it was subject to the control of the Court. Whether the judge, in striking out the judgment, acted wisely or not, it is not for this Court to determine on this appeal, the matter not being before it," and in the case of Townshend v. Chew, 31 Md. 247, [***6]the Court held that every judgment is subject to the control of the Court until the lapse of the term at which it was rendered, and an order striking it out, passed upon a motion made during the term, is not the subject of an appeal. In the case of Preston v. McCann, 77 Md. 30, 25 A. 687, CHIEF JUDGE ALVEY, after stating that the judgment in that case was entered at the May term of Court, and that the motion to strike it out was made during the same term, said: [*129] "It is an undoubted general principle, settled by many cases in this Court, that a judgment is subject to the control of the Court until the lapse of the term at which it was rendered; and it is also settled, that from an order striking out such judgment, passed upon a motion made during the same term at which the judgment was rendered, no appeal lies, because the matter rests in the discretion of the Court; and it makes no difference in this respect, and no appeal is given, though the motion to strike out, made during the term, was not acted upon until after the lapse of the term. The right of appeal depends upon the time when the motion was made, and not upon the time when it was decided." [***7] And in the very recent case of Laubheimer v. Johnson, 98 Md. 685, 57 A. 539, the Court quotes the above statement of CHIEF JUDGE ALVEY and then says: "It is entirely unnecessary to multiply authorities in support of a principle so well recognized, and which has been so frequently enforced in the practice of our Courts as the one just stated."

   Counsel for the appellants contend that this rule does not apply to a judgment by confession entered by the clerk of the Court under the provisions of section 6 of Article 26 of the Code of 1912, and they rely upon the case of Tyrrell v. Hilton, 92 Md. 176, 48 A. 55.

   Section 6 of Article 26 of the Code, 1888, provided that "Any judge in the recess of his Court may order his clerk to enter a judgment by confession, with the assent of the parties or their attorneys, in writing, which shall be filed with the order of the judge; and a judgment so entered shall, from the date of its entry, have the same effect as if entered during the session of the Court." This section was amended by the Act of 1890, Ch. 411 (now section 6 of Article 26 of the Code of 1912), which provides that "The clerk of any Court in [***8]this State may during the recess of said Court enter a judgment by confession with the assent of the parties or attorneys in writing, which shall be filed with the titling, narr., cause of action and other papers in the case in which said judgment is entered; and a judgment so entered shall [*130] from the date of entry of the same by the clerk have the same effect as if entered during the session of the Court." By both of these sections a judgment entered in pursuance of the authority therein contained, is given the same effect as if entered during the session of the Court, and in the case of Tyrrell v. Hilton, supra, the Court held that a judgment entered by the clerk under the provisions of the Act of 1890, "must necessarily have the same validity, as if entered upon the order of the judge." In that case the motion to strike out the judgment by confession entered by the clerk under the authority contained in the Act of 1890, was made five years after the judgment was entered, and in entertaining the appeal from the order granting the motion, there is not a suggestion in the opinion of this Court that it was not within the power of a Court to strike[***9] out a judgment by confession, or that an appeal would lie from such an order, passed upon a motion made during the term at which the judgment was entered. While the judgment by confession referred to in the Code of 1912 is entered by the clerk of the Court, it is nevertheless a judgment of the Court, and can have no greater effect than a judgment entered during a session of the Court. Like other judgments, during the term at which it was entered, it is subject to the control of the Court, and no appeal lies from an order striking it out, passed upon a motion made during the same term.

   It is said in 1 Freeman on Judgments (4th Ed.), sec. 90: "The power to vacate judgments was conceded by the common law to all its Courts. This power was exercised in a great variety of circumstances, and subject to various restraints. The practice in the different states is, in many respects, so conflicting that few rules can be laid down as universally applicable. One rule is, however, undoubted. It is, that the power of a Court over its judgment, during the entire term at which they are rendered, is unlimited." The same author says that "Judgments by confession are in nowise exempt from the rule [***10]applicable to other judgments, [*131] that to be valid they must be entered in a Court having jurisdiction [**128] over the subject-matter of the action and the parties thereto," and that "Where it clearly appears that the plaintiff was not entitled to the judgment on the notes and warrants of attorney, the Court should vacate the judgment and leave him to pursue the ordinary remedy by action." Volume 2, section 547. In Volume 2, section 558A he also says that "The effect of a judgment by confession is not substantially different from that of a judgment entered in a contested litigation."

   It is said in 23 Cyc. 722: "A judgment by confession may be opened or vacated on motion during the term at which it was entered, or after the end of the term, unless this is expressly forbidden by statute," and on pages 862 and 892, that "Courts have power to amend a judgment by confession, as well as any other, by rectifying mistakes, correcting the form of the judgment, or supplying omissions," and that "the power of Courts to grant relief by opening or vacating judgments is not generally limited either by the nature or form of the action, or by the amount in controversy. It extends[***11] to judgments rendered upon default, by confession, and upon trial and verdict."

   There is no ground for holding that a Court has not the same control over a judgment by confession entered during the recess of a Court that it has over a judgment entered during the session of the Court, and where, as in this case, the judgment is entered by the clerk, out of the presence and without an order of the Court, there is even greater reason why the rule we have stated should apply.

   Without meaning to question the propriety of the order passed by the learned Court below, the appeal in this case must, for the reasons stated, be dismissed. 

   Appeal dismissed, with costs. 

THE BOARD OF COUNTY COMMISSIONERS OF HOWARD COUNTY vs.ANTOINETTE PINDELL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
119 Md. 69; 85 A. 1041; 1912 Md. LEXIS 72

 December  5, 1912, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.), to which the cause had been removed from Howard County.
 
The facts are stated in the opinion of the Court.
 
The following are the prayers of the plaintiff and of the defendant, and the action of the lower Court on each:
 
Plaintiff's First Prayer.--If the jury finds that at the time of the accident spoken of in this case, that there were ruts and holes in the public road mentioned in the evidence of such a character as if allowed negligently to remain during the winter season, would naturally become dangerous, if the jury shall so find, and of which the defendants or their agents could by the exercise of ordinary care have had knowledge in time to have repaired the same before said accident and that the rain and snow falling upon and melting in said ruts and holes caused the hole, testified to by the plaintiff's witnesses, and rendered said road unsafe for persons travelling thereon. And that the defendants or their agents could by the exercise of ordinary care have known of said dangerous condition in time to have repaired the same, and if they find that the plaintiff's horse while travelling upon said[***2] road in the exercise of ordinary care fell into said hole and was injured, together with the plaintiff herself, then their verdict must be for the plaintiff. (Granted.)
 
Plaintiff's Second Prayer.--If the jury shall find a verdict for the plaintiff, then in estimating the damages, they are to consider her health and condition before the injury complained of as compared with her present condition in consequence of said injury and whether the same is in its nature permanent, and how far, if at all, it is calculated to disable her from engaging in employment, for which, in the absence of such injury, she would have been qualified, and also the physical and mental suffering, if any, to which she was subjected by reason of such injury, and to allow her such damages as in the opinion of the jury, will be a fair and just compensation for the injury she has sustained. (Granted.)
 
The defendant specially excepted to the granting of the plaintiff's prayers in the following words:
  
The defendant specially excepts to the granting of the plaintiff's first prayer: 
 
1st. Because there is no evidence in the case legally sufficient to prove that the defendant was negligent in not having[***3] said road repaired.
 
2nd. Because there is no evidence in the case at all to show that the defendant had any notice of the hole in the road, if one was there, or that they could have discovered the same by the exercise of due diligence. (Overruled.)
 
The defendant specially excepts to the granting of the plaintiff's second prayer:
 
Because there has been no evidence offered in this case to show that the plaintiff has been so injured by reason of the accident complained of as to disable her from engaging in the employment for which in the absence of said injury she would have been qualified. (Overruled.)
 
Defendant's First Prayer.--That there is no evidence in the case legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant. (Rejected.)
 
Defendant's Second Prayer.--That there is no evidence in this case legally sufficient to show that the injury complained of by the plaintiff to herself and to her horse and buggy and harness was caused solely by the negligence of the defendant and the verdict of the jury must be for the defendant. (Rejected.)
 
Defendant's Third Prayer.--That there is no evidence in this case legally [***4]sufficient to show that the defendant had notice or could have had notice of the dangerous condition of the public road before the accident in time to repair it and the verdict of the jury must be for the defendant. (Rejected.)
 
Defendant's Fourth Prayer.--The defendant prays the Court to instruct the jury, that there is no evidence in this case legally sufficient to show that the plaintiff was permanently injured by the accident. (Rejected.)
 
Defendant's Fifth Prayer.--That the duty imposed by law upon the County Commissioners does not require them to make and keep the public roads in perfect condition and repair, but only that they shall use reasonable care and diligence in the exercise of the powers vested in them in regard to the public road and in determining whether in this case the commissioners have acted with reasonable care and diligence, it is proper for the jury to take into consideration all the surrounding circumstances in the case. (Granted.)
 
Defendant's Sixth Prayer.--If the jury find from the evidence that the hole in the road complained of, if they find there was a hole in the road, in which the plaintiff's horse stepped before he fell, and shall find[***5] that said defect in the road was caused by the heavy rains and the thawing usual in February, the plaintiff is not entitled to recover, unless the jury shall find that the defendant had sufficient time to have acquired notice of said defect in the said road by the exercise of ordinary diligence so as to have repaired the hole in the road before the accident complained of, and in this connection the jury are entitled to take into consideration all the surrounding circumstances. (Rejected.)
 
Defendant's Seventh Prayer.--The jury is instructed that they cannot infer negligence on the part of the defendant county commissioners, from the fact that part of the road in question was rounded up for the purpose of placing hard material upon the same, and that said part was left without hard material upon the same during the fall and winter of nineteen nine and nineteen hundred and ten, although opened for travel by said county commissioners, the defendant. (Granted.)
 
Defendant's Eighth Prayer.--If the jury shall find from the evidence that the plaintiff's horse while being driven by the plaintiff's driver attached to the vehicle in which the plaintiff was seated fell in the public road[***6] as testified to in the evidence by reason of the breast strap which was used on the horse, choking him and thereby shutting off his wind, then the plaintiff is not entitled to recover in this case. (Granted.)
 
Defendant's Ninth Prayer.--If the jury shall find from the evidence that the public road in question was out of repair and dangerous for public travel, yet the plaintiff is not entitled to recover in this case, unless the jury shall further find that the defendant was negligent in not having said road repaired and rendered safe for public travel.
 
(Ninth granted in connection with plaintiff's first prayer.)
 
Defendant's Tenth Prayer.--If the jury shall find from the evidence that the plaintiff's horse while being driven by the plaintiff's driver attached to the vehicle in which the plaintiff was seated stepped into a hole in the road as testified to in this case, which hole had a depth of about two feet, and fell down and threw the plaintiff from the vehicle, and injured the plaintiff and the vehicle, harness and horse, and shall further find that said hole in the road could not be seen by a traveller passing along said road and that the defendant, the county commissioners, [***7] had no notice directly or indirectly of said hole being in the said road, and could not have learned of said hole being in the road by exercise of due diligence, then the verdict of the jury must be for the defendant. (Rejected.)
 
Defendant's Eleventh Prayer.--The defendant prays the Court to instruct the jury, that if they shall find from the evidence that the public road where the plaintiff is alleged to have been injured and her horse, wagon and harness injured was then in such good repair, as to be reasonably safe for persons travelling thereon with ordinary care, then the plaintiff is not entitled to recover. (Rejected.)
 
Defendant's Twelfth Prayer.--The defendant prays the Court to instruct the jury that the burden is on the plaintiff to prove that the defendant is guilty of negligence, and that said negligence has occasioned the injury, and if the evidence fails to establish either of these propositions, the burden has not been gratified and their verdict must be for the defendant. (Granted.)
 
Defendant's Thirteenth Prayer.--The defendant prays the Court to instruct the jury, that it is the right and duty of the County Commissioners of Maryland to make necessary[***8] and proper repairs upon the highways, and when such repairs are judiciously and reasonably done, the commissioners are exempt from liability for consequential damages. (Granted.)
 
Defendant's Fourteenth Prayer.--The defendant prays the Court to instruct the jury as a matter of law, that the plaintiff in order to entitle her to recover in this case, she must first prove that there was a neglect of duty on the part of the defendant and that the accident complained of was the direct consequence of such neglect of duty. (Granted.)

DISPOSITION: Judgment reversed and new trial awarded, with costs to the appellant.

CORE TERMS:  prayer, hole, horse, feet, driving, mud, permanent, macadam, muddy, deep, new trial, bad condition, practically, eliminated, harness, colored, thrown, repair, driven, notice, jumped, grade, wheel, team, presenting, announced, founded, questions of fact, dangerous place, good condition

COUNSEL: Robert Moss (with whom was Joseph L. Donovan on the brief), for the appellant.
 
John G. Rogers, for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [*75] [**1041] BRISCOE, J., delivered the opinion of the Court. 

   The record in this case presents the defendant's exception to the ruling of the Court below, in granting the plaintiff's first and second prayers, in rejecting the defendant's first, second, third, fourth, sixth, tenth and eleventh prayers and in overruling the defendant's[***9] special exceptions to the granting of the plaintiff's first and second prayers.

   The defendant's fifth, seventh, eighth, twelfth, thirteenth and fourteenth prayers were granted, as offered, and the judgment, being in favor of the plaintiff, the defendant brings this appeal.

   The suit was instituted by the plaintiff against the defendant, the Board of Co. Commissioners of Howard Co., in the Circuit [**1042] Court of that county, but was subsequently removed to the Circuit Court for Anne Arundel County, where upon trial, the plaintiff recovered a judgment of six hundred dollars and costs.

   The declaration contains two counts, and the suit was brought to recover damages for personal injuries received by the plaintiff and for injuries to her horse, wagon and harness, while driving on one of the public highways of Howard county, commonly called "the Beechwood Avenue," in the First Election District of that county.

   The declaration avers, that the County Commissioners negligently allowed and permitted, the county road where the accident happened to be and to remain out of repair and in an unsafe and dangerous condition; that the plaintiff while driving along this highway using due care[***10] and caution, was thrown from the vehicle in which she was driving and painfully injured, and her horse, then, being driven and drawing the vehicle, was badly cut and injured by reason of his having trod into a large and dangerous hole in the [*76] road, maintained by the defendant corporation, which hole was well known by the defendant to exist, yet the defendant did not repair the hole and the dangerous place, but permitted it to remain so unrepaired and unfixed, well knowing the same to be a dangerous place and a constant menace, to those driving along and using the road.

   The second count, relates to the injury to the person, the damage to the vehicle and horse, and the same negligence is averred as in the first count.

   The plaintiff testified that on or about the fifteenth of February, 1910, while being driven by a colored boy in a phaeton on the public road where the accident occurred, her horse suddenly plunged in a mud hole, and she was thrown on the dashboard, then back again, and then out against the wheel; that the hole was a deep one, but she had no idea of its size or depth; that the horse was now valueless, and that the harness and vehicle were injured; that she was [***11]bruised and began to suffer with pain in her hip and had to give up teaching for nine days, and one year later consulted a physician and had to wear a plaster case from that time until now. She further testified, that the road had been left in an unfinished condition in the fall of 1909, and no work had been done on the road from that time to the day of the accident, and it was filled with mud, and you could not tell what was there; that at the time of the accident Mr. Grovenoe Hanson, one of the county commissioners, drove up, and exclaimed; "Did you ever see such a terrible road?" and that when her team left the macadam road and had gone about twenty feet, going up grade very slowly, the horse fell.

   Upon cross-examination, she testified that she had been over the road four or five times that winter; that she went to see Dr. Riley on the 11th of February, and had been there three or four times since; that she lost no time and did not employ any one to teach for her.

   The colored boy, who drove the vehicle on the day of the accident, testified that after leaving the macadam road and [*77] going twenty feet up grade, all at once while the horse was walking, he went down and struggled, [***12] and when "I got him out of the hole help came; the hole was as deep as my arm and about six or eight inches wide." That the hole was filled with water, and it was in the day time, that he could see nothing there to show that it was dangerous; that the plaintiff was thrown out and he went to the horse; she was down in the mud and the shaft strap was broken, the road there was all right, but the whole road was muddy. He further testified on cross-examination that the hole was deep; that he could tell by the horse's knee; that both feet went down, one deeper than the other.

   Dr. Riley, who attended the plaintiff, testified in substance, that the plaintiff had been compelled to wear a plaster cast, but that he did not consider the injury permanent.

   Miss Pindell, a sister of the plaintiff, testified that her sister was well and strong before the accident, but that since that time she was practically an invalid, unable to do home work, or to attend to her ordinary duties and that she had lost flesh.

   On the part of the defendant, Mr. Hanson, one of the county commissioners, testified that he rode over the road where the accident occurred twice a week; that the State had macadamized the[***13] road except about six hundred feet, and this had been graded, rounded up, rolled and left in a smooth and nice condition in the fall of nineteen hundred and nine, that it was a good road in the month of December, and was in fairly good condition up to the time of the thaw; that on the day of the accident, in returning from Ellicott City, he rode up to the road where he overtook Miss Pindell; that the road was up grade and macadam and that he followed her team to the end of the macadam, and it struck muddy road; that he heard her horse wheeze, then the horse, suddenly turned and fell. The colored boy, who was driving, jumped out; then Miss Pindell jumped out and went up in the path at the side of the road, and Miss Pindell [*78] said to the boy, "why didn't you carry out my instructions and put on the horse's collar instead of the breast strap?" that the condition of the road had never been complained of; that at the time of the accident, the mud in the road was six or seven inches deep, and the road was in good condition and that there was no holes except the ruts usually made by wagon wheels in a dirt road.

   The witness Kreager, who saw the accident, testified, that Miss Pindell [***14]placed her hand on the wheel and jumped out, that he did not see any mud on her, and that she did not fall out; that the road at that point [**1043]was thirty feet, and that he saw no hole, although he looked for it, and could have seen one had there been one, and that he used the road twice a day going to and from work, and that there it was no worse than other parts of the road.

   George Arter, a witness for the defendant, who also saw the accident, testified, that he used the road with a pair of mules and it was alright, except muddy.

   The witness Turner, who lived near the road, testified, that he used the road at least four times a day going in vehicles to and from the depot; that he was over it five minutes before the accident and saw no hole; that the road was no worse that day than any other time, it was muddy; that this road had been harrowed, dragged, shaped up and rolled the previous fall and left in a fine condition; that the road was wide at that point and that no grading had been done there, nor had any stone been taken out there, that could leave a hole of any size; that he had his teams employed on the road, and was there in person daily, while work was going on, [***15] and that he was well and thoroughly acquainted with the road; there was a slight fill at that point from two to six inches, but no more.

   The witness Mullin testified, that he used the road, frequently hauling over it; that he saw no hole; that the road where the accident happened was in no worse condition than other parts of the road.

   [*79] There was also testimony to the effect, that no complaint had been made, or reported to the County Commissioners as to the bad condition of the road.

    There being then a clear conflict in the evidence in this case upon the material questions of fact, the case was one for the jury, and the Court committed no error in rejecting the defendant's first, second, third and fourth prayers, which were in the nature of a demurrer to the evidence.

   The plaintiff's first prayer, although somewhat involved, we think sufficiently stated the law as applicable to the plaintiff's theory of the case. A somewhat similar prayer was approved by this Court in Harford County v. Hause, 106 Md. 439, 67 A. 273, as presenting the law applicable to the plaintiff's theory of the case. The defendant's first prayer, however, in that case, was amended[***16] so as to submit the law bearing upon the defendant's theory of the case; it was granted as amended and approved by this Court.

   We find no error in the ruling of the Court in granting the plaintiff's second prayer, as to the measure of damages. There was a conflict in the evidence as to the nature and character of the injury, if the jury found there had been an injury to the plaintiff, and the question, "Whether the same was in its nature permanent and how far, if at all, it was calculated to disable her from engaging in employment for which, in the absence of such injury, she would have been qualified," was properly left to the finding of the jury. The verdict in the case was not excessive, and the defendant could not have been injured, by the granting of this prayer.

   The Court could not say under the evidence in the case as a matter of law, that there was no evidence of permanent injury. The special exception to this prayer was, also, properly overruled.

   We think, there was error in rejecting the defendant's sixth prayer, which submitted the defendant's theory of the case to the finding of the jury.

   The prayer is as follows: If the jury find from the evidence that the hole in [***17] the road complained of, if they find [*80] there was a hole in the road, in which the plaintiff's horse stepped before he fell, and shall find that said defect in the road was caused by the heavy rains and the thawing usual in February, the plaintiff is not entitled to recover, unless the jury shall find that the defendant had sufficient time to have acquired notice of said defect in the said road by the exercise of ordinary diligence so as to have repaired the hole in the road before the accident complained of and in this connection the jury are entitled to take into consideration all the surrounding circumstances.

   Practically the same prayer was approved by this Court in Hause Case, 106 Md. 439, as presenting the theory of the defendant's case.

   In Eureka Fertilizer Co. v. Baltimore Copper Co., 78 Md. 179, 27 A. 1035, this Court said, the case presented, opposite and conflicting theories founded upon the opposite and conflicting evidence introduced by the contesting parties, and each of these parties, if the evidence supported his theory, was entitled upon making such a request to have the legal principles involved in that theory announced[***18] to the jury upon a hypothetical statement of the facts upon which it was founded.

   In the Eureka Case, the judgment was reversed and a new trial was awarded, and the Court said the result was that the defendant's theory was eliminated from the case, though both that theory and the plaintiff's were entitled to be passed on by the jury. This was not only error, but was injurious to the appellant. The facts of the case at bar bring it directly within the rulings in the Eureka Case, supra, and other cases decided by this Court. Deford v. Dryden, 46 Md. 248; Corbett v. Wolford, 84 Md. 426, 35 A. 1088; Singer Sewing M. Co. v. Lee, 105 Md. 663, 66 A. 628; Caledonia Ins. Co. v. Traub, 86 Md. 86, 37 A. 782.

   The defendant's tenth prayer, was also rejected. It is as follows: If the jury shall find from the evidence that the plaintiff's horse while being driven by the plaintiff's driver attached to the vehicle in which the plaintiff was seated, [*81] stepped into a hole in the road as testified to in this case, which [**1044] hole had a depth of about two feet, and fell down and threw the plaintiff[***19] from the vehicle and injured the plaintiff and the vehicle, harness and horse, and shall further find that said hole in the road could not be seen by a traveler passing along said road and that the defendant, the County Commissioners, had no notice directly or indirectly of said hole being in the said road and could not have learned of said hole being in the road by exercise of due diligence, then the verdict of the jury must be for the defendant.

   This prayer contained material questions to be passed on by the jury, and it was error to have rejected this prayer.

   The defendant's sixth and tenth prayers, however, it will be seen, presented the theory of the defendant's case, and practically submitted the same questions. The granting of either of these prayers, in connection with the plaintiff's granted prayers would have covered the law of the case, but the rejection of both, eliminated entirely the defendant's theory of the case, from the consideration of the jury. Whiteford v. Burckmyer, 1 Gill 127; Adams v. Capron, 21 Md. 186; Jackson v. Jackson, 80 Md. 176, 30 A. 752; Higgins v. Carlton, 28 Md. 115;[***20] Day v. Day, 4 Md. 262.

   It is well settled, that where the granted prayers contain the law of the case, the judgment will not be reversed, if other prayers, although correct, are rejected, and this is so, because the law of the case has been sufficiently covered by the granted prayers. Ins. Co. v. Robinson, 115 M. 420; Regester v. Medcalf, 71 Md. 528, 18 A. 966; Balto. v. Pendleton, 15 Md. 12; 2nd Poe, Pleading and Practice, sec. 292, 292A; Rosenkovitz v. United Ry. & Elec. Co., 108 Md. 306, 70 A. 108.

   Nor would it be reversible error to reject a prayer which is substantially the same as an instruction already given. Caledonia Fire Ins. Co. v. Traub, 86 Md. 86, 37 A. 782; Goodman v. Saperstein, 115 Md. 678, 81 A. 695.

   [*82] There was no error in the ruling of the Court in rejecting the defendant's eleventh prayer, or in overruling the special exceptions to the plaintiff's prayers.

   No point was made as to the defendant's fifth, seventh, eighth, ninth, twelfth, thirteenth and fourteenth prayers, and they appear to have been granted without[***21] objection.

   The principles of law applicable to this character of case have been so recently applied and passed upon by this Court, that we deem it unnecessary to discuss them here, but refer to some of the adjudged cases, where the principles are announced and settled Harford Co. v. Hause, 106 Md. 439, 67 A. 273; Adams v. Somerset Co., 106 Md. 197, 66 A. 695; Co. Commrs. v. Wilson, 97 Md. 207, 54 A. 71; Co. Commrs. v. Blackburn, 105 Md. 226, 66 A. 31.

   For the error, in rejecting the defendant's sixth and tenth prayers, the judgment will be reversed and a new trial will be granted.

   Judgment reversed and new trial awarded, with costs to the appellant. 

DENNIS CLAUDE vs. JOHN H. WAYSON ET ALS. FRANK A. WALFRAMvs. JOHN H. WAYSON ET ALS. JAMES D. FELDMEYER vs. JOHN H. WAYSON ET ALS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
118 Md. 477; 84 A. 562; 1912 Md. LEXIS 41

 July  10, 1912, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.
 
The facts are stated in the opinion of the Court.

DISPOSITION: Judgments reversed in each case, with costs to the appellants.

CORE TERMS:  peace, term of office, successor, appointment, appointed, qualify, vacancy, elected, constable, election district, qualification, election, appoint, residue, regular session, nominated, commence, filled, advice, termination, nomination, extending, convention, regulated, question presented, several counties, oath of office, commencement, commissioned, practically

COUNSEL: Edgar H. Gans, for the appellants.
 
Ridgely P. Melvin and Isaac Lobe Straus, for the appellees.

JUDGES: The cause was argued before BOYD, C. J., PEARCE, BURKE, THOMAS, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: PATTISON

OPINION: [*479] [**562] PATTISON, J., delivered the opinion of the Court.

   This case is before us on appeal from the order and judgment of the Circuit Court for Anne Arundel County refusing to grant the writ of mandamus asked for by the appellant, in his petition, against the appellees, the County Commissioners for Anne Arundel County, commanding them to approve the bond of the appellant, and also against George Wells, clerk of the said Court, commanding him to administer to the appellant the oath of office of justice of the peace for the sixth election district of said county; and dismissing the said petition of the appellant, with costs to the defendants. The facts are not disputed.
 
   The Governor of Maryland in the year 1910, by and with the advice and consent of the Senate and pursuant[***2] to Chapter 334 of the Acts of 1892, appointed John B. Wells and John N. Davis to be justices of the peace for said election district of said county, both of whom were commissioned on April 20th, 1910, and each of them thereafter qualified by having his bond approved by the County Commissioners for Anne Arundel County, and by taking the oath of office before the clerk of the Circuit Court for said county; the former on the 2nd day of May, 1910, and the latter on the 26th day of April, 1910.

   Dennis Claude, the appellant, and one James D. Feldmeyer were, by the Governor, on February 14th, 1912, nominated to the Senate for justices of the peace for the said sixth election district of Anne Arundel County as successors to the said Wells and Davis, but the Senate finally adjourned without taking any action on said nominations. After the [*480] final adjournment of the Senate, on April 22nd, 1912, the said Claude and Feldmeyer were by the Governor appointed and commissioned justices of the peace for the said sixth election [**563]district of said county "for the term of two years from the first Monday in May, 1912, or until duly discharged therefrom." The appellant on the 7th day[***3] of May, 1912, attempted to qualify by submitting a bond, as required by the Acts of 1892, Chapter 334, to the County Commissioners for Anne Arundel County, but as alleged in said petition, said commissioners refused to approve his bond "not because it was not sufficient or in conformity with the laws of the State providing therefor, but solely upon the ground that under the Constitution of the State the aforesaid John B. Wells and John N. Davis held over in their aforesaid office of justice of the peace, that there was no vacancy in said offices, and that the Governor of Maryland had no right to make the appointment of the said Dennis Claude aforesaid; and that they had accordingly already, to wit, on the 23rd day of April, 1912, approved the bonds of John B. Wells and John N. Davis submitted to them for approval." And on the said 7th day of May, 1912, he further attempted to qualify by offering to take the oath of office prescribed by the Constitution and laws of this State before George Wells, clerk of the Circuit Court for Anne Arundel County, one of the defendants, but he refused to administer the oath thus tendered because of the acts of the County Commissioners in refusing to[***4] approve the bond and for the reasons assigned by the said commissioners.

   The question here presented is the validity of the appointment of the appellant by the Governor. The power of the Governor to make this appointment is said by the appellant to be found in sections 42 and 43 of Article 4 of the present Constitution, which are practically the same as sections 47 and 48 of the Constitution of 1864. These sections, so far as they are pertinent to the question presented, are as follows:

   [*481] "Section 42. The Governor, by and with the advice and consent of the Senate, shall appoint such number of justices of the peace, and the County Commissioners of the several counties, and the Mayor and City Council of Baltimore, respectively, shall appoint such number of constables, for the several election districts of the counties, and wards of the City of Baltimore, as are now, or may hereafter be prescribed by law. * * * The justices of the peace and constables, so appointed, and commissioned, shall be conservators of the peace, shall hold their office for two years, and shall have such jurisdiction, duties and compensation, subject to such right of appeal, in all cases, from the judgment[***5] of justices of the peace, as hath been heretofore exercised, or shall be hereafter prescribed by law."

   "Section 43. In the event of a vacancy in the office of a justice of the peace, the Governor shall appoint a person to serve, as justice of the peace, for the residue of the term, and in case of a vacancy in the office of constable, the County Commissioners of the county in which the vacancy occurs, or the Mayor and City Council of Baltimore, as the case may be, shall appoint a person to serve as constable for the residue of the term."

   By section 19 of Article 4 of the Constitution of 1851, justices of the peace and constables were elected by the legal and qualified voters of the election districts and wards of the city respectively, and held their office for two years from the time of their election and until their successors in office were elected and qualified. It will be observed that this extension of the term of office "until their successors in office are elected and qualified," is not found in section 42 of Article 4 of the present Constitution. And it is because of this omission that the appellant contends that the term for which the said Wells and Davis were appointed[***6] justices of the peace expired at the end of two years from the first Monday in May, 1910, and that inasmuch as no action was taken by the Senate upon the nomination made to it by the Governor, as above stated, no appointment of their successors in [*482] office was made by the Governor by and with the advice and consent of the Senate, and thus after the expiration of said term of two years from the said first Monday in May, 1910, as contended by the appellant, the office became vacant and the Governor was empowered to fill such vacancy.

   It is on the other hand contended by the appellees that we must not look alone to section 42 of Article 4 of the Constitution to ascertain the full term of office for which Wells and Davis were appointed, but that in connection with section 42 we are to consider section 13 of Article 2 of the Constitution, which provides that "all civil officers appointed by the Governor and Senate shall be nominated to the Senate within fifty days from the commencement of each regular session of the Legislature; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday in May next ensuing their appointment[***7] and continue for two years (unless removed from office) and until their successors, respectively, qualify according to law; but the term of office of the Inspectors of Tobacco shall commence on the first Monday in March next ensuing their appointment."

   If section 13 of Article 2 of the Constitution is to be read into section 42 of Article 4, and the provisions thereof in respect to the term of office--"until their successors respectively qualify according to law"--be made to apply to the office of justice of the peace, then we would have no difficulty in reaching the conclusion contended for by the appellees, that the term of office of Wells and Davis continued until the qualification of their successors, appointed by the concurrent action of the Governor and the Senate, and as there has been no such appointment, no vacancy [**564] could be said to exist to be filled by the Governor.

   It thus becomes necessary for us in the determination of the question presented by this appeal to determine whether or not section 13 of Article 2 of the Constitution should be read into section 42 of Article 4 of the Constitution and made to apply to the term of office of justices of the peace.[***8]

    [*483] Our predecessors in discussing the case of Taylor v. Hebden, 24 Md. 202, relied upon by the appellee, said: "Whilst (the appellee was) thus in office, the People of the State in convention assembled, framed and adopted a new Constitution, which went into effect on the first day of November, 1864. By it the tenure of office of justices of the peace was changed from election by the people, to appointment by the Governor, by and with the advice and consent of the Senate, the term of office to be two years. Art. (4), Part 6, sec. 47. And by Article 2, section 16 (Constitution of 1864), it is provided that 'all civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty days from the commencement of each regular session of the Legislature; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday in May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors, respectively, qualify according to law.'" (It will be observed that this section is practically the same as section 13 of Article [***9]2 of the present Constitution.)

   "These provisions regulate the original appointments of justices of the peace (as distinguished from filling of vacancies), and fix the time for the commencement and termination of their office. The regular sessions of the General Assembly are biennial; the appointments of justices of the peace are to be made at each regular session; and their term of office shall commerce on the first Monday in May next ensuing their appointment. No other time is fixed for this purpose in the Constitution. This mode allows a full session for the appointments to be made, and reasonable time for issuing their commissions and for their qualification for office. By it order and regularity are observed, and after the first appointments under the Constitution shall have been made, the machinery of government in this branch of the public service will move on without interruption. [*484] Such is the obvious design of the Constitution in this respect."

   In the case from which we have just quoted, the appellant was, in December, 1865, nominated to and confirmed by the Senate at an extra session of the General Assembly, for justice of the peace. Sec. 16 of Art. 2 of[***10] the Constitution of 1864, then in force, provided that all civil officers appointed by the Governor and Senate should be nominated to the Senate within fifty days from the beginning of each regular session of the General Assembly. It was because of the fact that the nomination was so made to the Senate at an extra session, and not at a regular session of the General Assembly, that the validity of the appointment was assailed.

   In deciding the question there raised, it was not necessary for the Court to have held, as it did, that the termination of the term of office of justices of the peace was regulated and fixed by Sec. 47 of Art. 4, and Sec. 16 of Art. 2 of the Constitution of 1864. Hebden, the appellee in that case, was in November, 1863, elected justice of the peace under the Constitution of 1851, for the term of two years from the time of his election and until his successor in office was elected and qualified, and upon the adoption of the Constitution of 1864, he was protected in his tenure of office by Sec. 6 of Art. 12 thereof, which provided that he should hold and exercise his office according to his present tenure until he should be superseded pursuant[***11] to its provisions and until his successor be duly qualified. Such successor was to be nominated by the Governor to the Senate within fifty days from the beginning of a regular session of the General Assembly, and upon confirmation by the Senate his term of office was to commerce on the first Monday of May thereafter. To this extent only were the provisions of section 16 of Article 2 (Constitution of 1864), involved in the determination of the question presented in that case. The provision therein contained that those to whom the section was [*485] applicable should continue in office "for two years (unless sooner removed from office), and until their successors, respectively, qualify according to law," was in nowise involved in the determination of the question there presented. And, therefore, as we have said, in deciding the question presented in that case, it was altogether unnecessary for the learned judge who delivered the opinion, to have held, as he did, that this section considered in connection with section 47 of Article 4, regulated and fixed the termination of the term of office of justice of the peace. It stated the time when the nomination should be made to[***12] the Senate and fixed the commencement of the term, for in these particulars section 47 of Article 4 of the Constitution is silent.

   As we have said, the extent of the term of office of justices of the peace, under the Constitution of 1864, was not presented in the case of Taylor v. Hebden, but in this case it is, and we are now to determine whether or not the extent of such term of office shall depend solely upon section 42 of Article 4 (Constitution of 1867), which provides that they shall hold their office "for two years," or whether we shall read into that section, in extension of that term, the language found in section 13 of Article 2, "and until their successors, respectively, qualify according to law."

   As we have said, under section 19 of Article 4 of the Constitution of 1851, justices of the peace and constables were elected by the people. The language of said section as to their tenure of [**565] office was, that they "shall hold their office for two years from the time of their election and until their successors in office are elected and qualified." Vacancies in such offices were to be filled until the next general election of said officers; those in the office[***13] of justice of the peace, by the Governor, and those in the office of constable, by the County Commissioners of the several counties and the Mayor and City Council of Baltimore, respectively.

   Under the Constitution of 1864, justices of the peace and constables were appointed, the former by the Governor, by and with the advice and consent of the Senate, and the latter [*486] by the County Commissioners of the several counties and the Mayor and City Council of Baltimore, respectively. Both the justices of the peace and constables were appointed for "two years," with no additional words, such as are found in the Constitution of 1851, extending their term until the appointment and qualification of their successors. In case of a vacancy in these offices, the same were to be filled for "the residue of the term;" the vacancies in the office of justice of the peace were to be filled by the Governor, and those in the office of constable were to be filled by the County Commissioners of the several counties and the Mayor and City Council of Baltimore, respectively, as in the previous Constitution of 1851.

   The provisions of the Constitution of 1864, as to these offices, were practically[***14] copied into the Constitution of 1867. In respect to all other appointive offices mentioned in the Constitution of 1867, as we recall, words are found similar to those appearing in section 19 of Article 2 of the Constitution of 1851, extending the term of office "until their successors in office are elected and qualify," and so far as we have discovered, this is also true of the elective offices, except judges of the Orphans' Court, surveyors and wreck master of Worcester County. The absence of such words in respect to these offices, may be explained by the fact that the authorities are almost unanimous in holding that if a Constitution or Statute, without expressly fixing the term of office, merely provides that there shall be an election or appointment annually or at stated periods, the one so elected holds over until his successor qualifies. 23 Am. & Eng. Encyc. of Law, 2nd Ed., 418.

   As disclosed by the debates of the Convention of 1864, different views were entertained by the different members thereof as to the manner of filling the office of justices of the peace. Some were for the appointment of them by the judges, others favored their appointment by the Governor by and with[***15] the advice and consent of the Senate, while some [*487] advocated their election by the people as under the previous Constitution. After much discussion, with the provisions of the Constitution of 1851 constantly before the convention, the section as we now find it in the Constitution of 1864, without any words extending the term of office to the appointment and qualification of their successors, was agreed upon.

   With these facts before us, it is unreasonable to assume that words similar to those found in the Constitution of 1851, extending the term of office of justices of the peace to the appointment and qualification of their successors, were unintentionally omitted from the Constitution of 1864, and also from the Constitution of 1867. On the contrary, we are rather forced to the conviction that the convention deliberately and intentionally made the distinction between justices of the peace and constables and other officers provided for in the Constitution.

   The provisions of section 16 of Article 2 of the Constitution of 1864 (practically the same as section 13 of Article 2 of the Constitution of 1867) are found in section 14 of Article 2 of the Constitution of 1851. The[***16] only difference therein being the insertion in the Constitutions of 1864 and 1867 of the italicized words "except in cases otherwise provided for" which appear in section 16 of Article 2 of the Constitution of 1864 hereinbefore fully set out.

   It cannot be said that section 14 of Article 2 of the Constitution of 1851 applied to justices of the peace, for under that Constitution justices of the peace were elected by the people, however much it may be contended that like words "and until their successors, respectively, qualify according to law," found in section 13 of Article 2 of the Constitution of 1867, should be made to apply to justices of the peace in extension of their term of two years, provided for in section 42 of Article 4 of said Constitution.

   Section 13 of Article 2 of the present Constitution, under which the question here presented arises, as we have said, provides that the term of the offices therein mentioned, to which the same is applicable, shall commence at the time [*488]therein stated and continue "for two years (unless removed from office), and until their successors, respectively, qualify according to law," except in cases otherwise provided for in the [***17]  Constitution. Therefore to make this section, in respect to the extent of the term of office, applicable to justices of the peace, or in fact to any other office, it must be shown that no provision has been made elsewhere in the Constitution for such term of office. This cannot be said of the term of the office of justice of the peace, when by section 42 of Article 4 it is expressly provided that justices of the peace shall hold their office for two years.

   The term of office of justice of the peace is for two years, and not two years and until their successors are appointed and qualify, as it would be if the language found in section 13 "until their successors, respectively qualify according to law" were made applicable thereto.

   If the term fixed by section 42 of Article 4 had been for four years, [**566]for example, instead of two, it could not be pretended that section 13 of Article 2 would apply, as it would have been in direct conflict with section 42 which made special provision for these offices. How then, can it be said that it can change the "two years" to "two years and until their successors qualify," simply because the term named in section 42 happens to be[***18] two years? It does not say that all civil officers appointed for two years shall continue for two years and until their successors qualify, as the Constitution nowhere says that all officers appointed or elected for a definite term shall continue until their successors are elected and qualified.

   Having reached the conclusion that we have stated, we cannot give our assent to the views expressed by our predecessors in the case of Taylor v. Hebden, supra, that section 16 of Article 2 of the Constitution of 1864 (section 13 of Article 2 of the present Constitution) considered in connection with section 47 of Article 4 of the Constitution of 1864 (section 42 of Article 4 of the present Constitution) regulated and fixed the termination of the term of office of [*489]justice of the peace, which as we have said were unnecessary in the decision of the question there presented.

   Taking this view of the case, the extent of the term of office of justice of the peace is dependent solely upon section 42 of Article 4 which fixes the term for two years.

   It was said by this Court in the case of Smoot v. Somerville, 59 Md. 84, that "It has been[***19] contended that, inasmuch as the term of office of tobacco inspectors commences on the first Monday of March and is to continue two years, a vacancy occurred immediately upon the expiration of the two years; and such would be the case were it not for the further provision of the 13th section, by which all officers are to continue in office until their successors, respectively, qualify according to law."

   The Court there was discussing the very section of the Constitution which is involved in this case, and it was because of the extension of the term of two years, resulting from the use of the words "until their successors, respectively, qualify according to law," that the Court in that case held that the position of the appellant was untenable. These words, as we have stated, are not to be added to the term justices of the peace, and as they are not, it is consistent with the expression of the Court in that case to hold, as we do, that vacancies occurred in the offices of justices of the peace in the sixth election district of Anne Arundel County immediately upon the expiration of the term of two years, from the first Monday in May, 1910.

   This Court also said in the case of Lynn v. Cumberland, 77 Md. 449, 26 A. 1001,[***20] speaking through JUDGE MCSHERRY, "Had the ordinance made no provision for the collector continuing in office after the expiration of the term for which he was elected, a different case might have been presented as to the liability of the surety, but we are not now called upon to decide such a case."

   The term of office of Wells and Davis expired two years from the first Monday, in May 1910, but notwithstanding [*490] the vacancy thereafter existing they, as de facto officers, continued in the performance of the duties of the office of justices of the peace until their successors should be duly appointed and qualified.

   Section 42 of Article 4 confers upon the Governor the authority to appoint in cases of vacancies occurring in the office of justices of the peace "for the residue of the term."

   It is important that the time, for which the appointee is appointed to hold office, be made certain and definite.

   In respect to the office of justice of the peace the appointment is for the "residue of the term." In some of the cases provided for by the Constitution the appointment is made until the end of the next Legislature and in other cases different times are named at which[***21] the term of the appointment is to end. So it will be seen that although different times may be, and are selected, in the different cases, for the termination of the term of office for which the appointment is made, yet in all cases the time is fixed and determined, as it should be.

   The question is whether there is a vacancy in the term, if there is, the appointment is made to cover such vacancy, of course such term cannot begin before the previous term is ended.

   "The residue of the term" was intended to fix the end of the time for which the appointee is to be appointed. What ever may be vacant of the term, whether it be all or only a small part thereof, is to be filled.

   From what we have said the Court below erred in refusing the writ of mandamus, and therefore the judgment will be reversed.

   Judgments reversed in each case, with costs to the appellants. 

THE BOARD OF COUNTY SCHOOL COMMISSIONERS OF ANNE ARUNDELCOUNTY vs. DR. LOUIS B. HENKEL, JOHN F. STRANGE, ROBERT MOSS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
117 Md. 97; 83 A. 89; 1912 Md. LEXIS 91

 January  9, 1912, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Cause remanded without affirming or reversing the order appealed from, costs to be paid by the appellants.

CORE TERMS:  appointment, teacher, appointed, repealed, secretary, duty, public school, county board, repeal, appoint, vacancy, furnishing, treasurer, erection, Code of Public General Laws, public school system, district school, composed, mandamus, school board, repealing, school building, general law, conferred, examiner, notice, legal question, subordinate, directing, public education

COUNSEL: Clayton Purnell (with whom was Nicholas H. Green on the brief), for the appellant.
 
Robert Moss, for the appellees.

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

OPINIONBY: PATTISON

OPINION: [*98] [**89] PATTISON, J., delivered the opinion of the Court.

   The appellees, citizens and taxpayers of Anne Arundel county, Md., filed their petition in the Circuit Court for that county asking that a writ of mandamus be issued. directed to the Board of County School Commissioners of Anne Arundel County, commanding them to appoint, pursuant to Chapter 275 of the Acts of the General Assembly of Maryland, passed at its January Session, 1896, and in accordance with the provisions thereof, six district trustees for the white public school in the City of Annapolis mentioned in the petition.

   The petition alleged that each of the six trustees of said school had resigned, and that a vacancy existed in each of said offices. The petition further alleges[***2] that the Board of County School Commissioners, ignoring the provisions of Chapter 275 of the Acts of 1896, appointed as trustees for said school three men, "under the pretense that said Act of Assembly is no longer in force and that the same has been repealed."

   [*99] The School Commissioners in their answer to the petition denied the existence of the vacancies in the board, as alleged in the petition, and alleged "that said board is composed of three persons, residents of the school district, as provided in section 7 of Article 77 of the Code of Public General Laws, title "Public Education." The answer further alleges "that sections 16, 17 and 18 of Chapter 275 of the Acts of 1896 are inoperative and no longer in force, in that the provisions thereof are repealed by Chapter [**90] 584 of the Acts of the General Assembly of Maryland, passed in 1904, which "as the answer alleges "was a general scheme of legislation for the whole State, governing and controlling all public school officers and providing for the conduct and management of all the public schools of the State."

   The answer further alleges that by section 11 of Chapter 584 of the Acts of 1904 the power is conferred[***3] upon the State Board of Education to hear and determine all controversies "between those entrusted with the administration of our system of education and those involving the proper administration of the public school system," and that in so acting its power is summary and exclusive and its decision final. And it further alleges that the controversy in this case was referred to the State Board of Education for its decision and that it decided adversely to the contention of the petitioners "and advised that the respondents should take charge of the Annapolis school and proceed to conduct it as other schools of the same class are required to be conducted, under the provisions of the general law applicable to the entire State." This decision of the State Board of Education, the answer alleges, was final, and thus the Circuit Court for Anne Arundel County was without jurisdiction to hear and determine the issues presented by the petition and answer.

   In the record we find an agreement between the counsel for the plaintiff and the counsel for the defendant whereby "It is agreed in this case that the office of Board of District School Trustees for the white public school in the City of Annapolis[***4] is vacant, and that if the provisions of Chapter [*100] 275 of the Acts of 1896 are operative and in force, the said Board of District School Trustees is composed of six members, but if said Act of 1896 has been repealed by Chapter 584 of the Acts of 1904 and subsequent legislation, said Board of District School Trustees is composed of three members, and the question of which act is in force is one of the questions submitted to the Court for its decision in the above case."

   There are but two question presented by this appeal:

   1st. Did the Circuit Court for Anne Arundel County have jurisdiction to hear and determine the issues presented by the petition and answer?

   2nd. Were sections 16, 17 and 18 of Chapter 275 of the Acts of 1896 repealed by Chapter 584 of the Acts of 1904, as claimed by the appellant?

   We will consider these questions in the order in which they are presented.

   Section 11 of Chapter 584 of the Acts of 1904, codified as section 11 of Article 77 of the Code of Public General Laws of 1904, provides that "The State Board of Education shall, to the best of their ability, cause the provisions of this article to be carried into effect;" and "they shall explain the[***5] true intent and meaning of the law and they shall decide, without expense to the parties concerned, all controversies and disputes that arise under it, and their decision shall be final."

   It is under this provision of the law that the appellant contends that the power and jurisdiction is vested exclusively in the State Board of Education to hear and determine the issues presented by the petition and answer in this case, and that the Circuit Court for Anne Arundel County was without jurisdiction to hear and determine the same.

   It is contended by the appellees that the vacancies should be filled by the appointment of six persons as trustees, three men and three women, to be made under and by virtue of Chapter 275 of the Acts of 1896, with the full powers therein conferred upon them. While it is contended by the appellant [*101] that sections 16, 17 and 18 of Chapter 275 of the Acts of 1896 have been repealed by Chapter 584 of the Acts of 1904 and are no longer operative, and that the vacancies should be filled by the appointment of but three persons as trustees, to be made under the last named statute, with only the limited powers therein conferred upon them.

   The appellant, in[***6] support of its contention that this question can not be heard and determined by the Circuit Court for Anne Arundel County, relies upon the case of Wylie et al., Trustees, v. The Board of School Commissioners of Allegany County, 51 Md. 401; Shober v. Cochrane, 53 Md. 544 and Underwood v. School Board, 103 Md. 181, 63 A. 221.

   In the first of these cases (Wylie et al., Trustees, v. Board of School Commissioners of Allegany County) a bill was filed praying for an injunction to restrain the Board of County School Commissioners of Allengany County from converting a public school house, which was at the time of the filing of the bill used for primary district school purposes, under the supervision of the complainants as trustees, to the use and purposes of a high school. The issue there presented was held to fall within the scope of the power conferred by section 11 of Article 77, on the State Board to decide all disputes arising under that article, and as the power was comprehensive enough to deal with the issue in the case it was held that the Court of equity should not interfere with its exercise.

   In the second case[***7] (Shober v. Cochrane) Shober applied for a writ of mandamus to compel Cochrane not to interfere with or prevent him from discharging his duties as examiner and secretary and treasurer of the Board of School Commissioners of Allegany County and from receiving the emoluments thereof, and to yield up said office to the petitioner. In that case the Board of School Commissioners, appointed by the Circuit Court for Allengany County, at the time of its organization, January 1st, 1879, elected J. W. S. Cochrane examiner and secretary and treasurer of the [**91] board. He entered upon the duties of the office and continued to serve [*102] until the 6th day of January, 1880, regularly performing the duties of his office. In January, 1880, after the expiration of the term for which said Board of School Commissioners had been appointed, and while holding over under their original appointment, the Circuit Court, in which the power of appointment was at that time lodged, having failed to appoint their successors, they elected Shober as examiner and secretary and treasurer. This appointment resulted in a controversy and the whole controversy was submitted to the State Board of Education, [***8] before whom all parties concerned, including the school commissioners, appeared and were heard, and the State Board adjudged and determined in favor of Cochrane. It was then that Shober applied for the writ of mandamus, which was refused him, and upon appeal, this Court filed a per curiam order affirming the order of the Circuit Court, upon the ground that "the power to decide the matter in dispute was vested in the State Board of Education and its decision thereon was final and conclusive."

   In the case of Duer v. Dashiell, 91 Md. 660, 47 A. 1040, in which a mandamus was asked for requiring the appellant therein, who had been the secretary, treasurer and examiner of the former board of school commissioners, to deliver the books and papers of the office to the appellee who was elected to the same office by the new board, this Court, in speaking of the two cases just cited, said: "Both Wylie's and Shober's cases were disputes between functionaries of the department of public education over which it was the purpose of section 11 of Article 77 of the Code to give the State Board of Education jurisdiction. Neither of these cases involved, as the one before[***9] us does, the important legal question of the effect of an Act of the Legislature, repealing the law under which a Board of School Commissioners were appointed, upon the tenure of office of a subordinate official, appointed by the board while they were still in office. We do not think it was the purpose of the Legislature in enacting section 11 to withdraw the determination of purely legal questions like [*103] this from the Courts and commit them to the Board of Education for decision. The real issue in this case is not one involving the proper administration of the public school system, but it is a question of legal effect of the passage by the Legislature of the Act of 1900, Chapter 29, upon the status of a subordinate official appointed by a school board which that act legislated out of office. The Circuit Court therefore had jurisdiction to entertain and pass upon the application for the mandamus and its order directing the writ to be issued will be affirmed."

   In the case of Underwood v. School Board a bill in equity was filed against the Board of County School Commissioners of Prince George's County, the secretary and treasurer of the board, and Mrs. Nally, to enjoin[***10] the school board and the secretary and treasurer from paying Mrs. Nally the salary as teacher of a public school in that county for the time therein stated and to enjoin Mrs. Nally from receiving the same. The facts of that case were: Miss Queen, afterwards Mrs. Nally, was a regularly appointed teacher in a public school of said county, and while so acting on the 23rd day of December, 1903, sent a letter to each of the three trustees telling them she was to be married on the 26th of that month and on that day she did marry Henry Nally. In her letter she stated: "I will continue to teach until the end of the scholastic year, June 15th, 1904," but prior to the last named day, on June 9th, 1904, she again wrote to the trustees saying, "If satisfactory to you, I will teach at this school another scholastic year. I trust my act meets your approval." On August 13th following the trustees notified her in writing that her resignation was accepted and on the same day appointed another person as principal of the school. Upon appeal to the county board it decided that she had not resigned her school and consequently the appointment of the new teacher could not be confirmed. Whereupon the trustees[***11] on September 9th notified Mrs. Nally that her services as teacher of the school would not be required after the 10th of October following. Upon the receipt of this notice she requested [*104]them to furnish her with the reasons of her removal, and in assigning their reason therefor the trustees stated that it "was for the best interest of the school." She again appealed to the county board, but upon this appeal the trustees were sustained and an order was passed confirming the new appointment. From the decision of the county board an appeal was taken by Mrs. Nally to the State Board of Education, to which board the county board forwarded copies of the letters sent to Mrs. Nally by the trustees. The State Board held, upon appeal, that the reason assigned by the trustees, that it was for the best interest of the school, did not constitute a reason as provided for by the statute, and also that the alleged notice was not in conformity with the law. On receipt of the resolution so passed by the State Board, the county board recognized Mrs. Nally as the teacher of the school, and again she entered upon her duties as teacher. It was then that the injunction above mentioned was asked [***12] for.

   It was there held, JUDGE BOYD speaking for the Court: "That there can be no doubt that the State Board had power to advise the county board and it was the duty of the latter to follow the advice of the State Board on the subject; * * * and it is right that such controversies should be settled by some tribunal [**92]connected with the public school system. When one applies for the position of teacher he makes himself subject to the laws governing them; * * * It must have been very injurious to this school to have had such a controversy and great confusion was caused by the conflicting action of the trustees and the county board. It is well, therefore, that there is a tribunal having jurisdiction over the State to settle such controversies and to guide the county board in the discharge of their duties. Of course there may be occasions when it is proper and necessary to apply to the Courts as in Duer v. Dashiell, 91 Md. 660, 47 A. 1040, where a purely legal question was involved."

   The case of Underwood v. School Board like the cases of Wylie and Shober, was a dispute between functionaries of [*105] the department of public education,[***13] over which, as was said in Duer v. Dashiell, it was the purpose of section 11 of Article 77 to give the State Board of Education jurisdiction. In all three of those cases the questions presented involved only the proper administration of the public school system, and were, therefore, unlike the questions presented in the case of Duer v. Dashiell and in the present case. In the case of Duer v. Dashiell the question there involved was the effect of an Act of Legislature, repealing the law under which a board of school commissioners were appointed, upon the tenure of office of a subordinate official appointed while they were still in office. In this case the question involved is the effect of the passage of Chapter 584 of the Acts of 1904 upon sections 16, 17 and 18 of Chapter 275 of the Acts of 1896, and upon the determination of it depends whether the aforesaid sections of Chapter 275 of the Acts of 1896 are still in force and operative and are to be followed by the appellant in this case in the filling of the vacancies in the local board of trustees hereinbefore mentioned.

   In this case, as in the Duer v. Dashiell case, the real issue is not one involving[***14] the proper administration of the public school system, but is a purely legal question. The Circuit Court, therefore, had jurisdiction to entertain and pass upon the application for the mandamus asked for, and as it ordered the writ to be issued, we will now consider whether it was right in so doing.
 
   It is not contended that sections 16, 17 and 18 of the Acts of 1896, are repealed by any express provisions contained in the Acts of 1904, but that it is repealed by implication, the provisions of the latter act being inconsistent and irreconcilable with the former, as it is contended by the appellant.

   It is the well established rule of law in this State "That the repeal by mere implication of a former by a subsequent statute is never favored by the Courts, and it is only where they are clearly irreconcilable and not susceptible of any such fair interpretation as would allow of their standing together, that such repeal will be declared." Higgins v. [*106] State, 64 Md. 419; Snowden v. State, 69 Md. 203, 14 A. 528; Mayor, etc., of Cumberland et al. v. Magruder et al., 34 Md. 381; Garitee v. Mayor and City Council, 53 Md. 422;[***15] State v. Northern Central Ry. Co., 44 Md. 131. "It is only when the two acts are repugnant and plainly inconsistent with each other that the rule applies. If the two acts can by a fair and reasonable construction stand together, there is no ground on which it can be held that the latter act operates as a repeal of the former act." Frostburg Mining Co. v. C. & P. R. R. Co., 81 Md. 28, 31 A. 698. And again, it is said in the case of State v. Falkenham, 73 Md. 463, 21 A. 370, "As respects subsequent legislation, the rule becomes but the declaration of the common law, that local laws or special laws shall not be held repealed except by the clearly indicated purpose on the part of the Legislature."

   In considering the question here presented we think it right and proper that we should refer to sections of Chapter 275 of the Acts of 1896, other than sections 16, 17 and 18, in order that the character, purpose and object of this legislation may be better understood.

   This act provided for the erection and furnishing of a school building to be built upon a lot of land in the City of Annapolis owned and held by the County School[***16] Commissioners of Anne Arundel County. In the act certain persons were named in a building committee, in whom was vested certain power and authority mentioned therein. For the purpose of contributing towards the erection and furnishing of said school building, the School Commissioners of Anne Arundel County were authorized and directed to issue bonds in the name of the school commissioners, with the endorsement thereon of the county commissioners of said county, to the amount of twelve thousand dollars, and the Mayor, Councellor and Aldermen of the City of Annapolis, for the purpose of contributing towards the erection and furnishing of said building, were also authorized and directed to issue bonds in the name of the City of Annapolis to an amount not exceeding six thousand dollars; and an act subsequent [*107] thereto (Act of 1898, Chapter 372) was passed authorizing and directing the School Commissioners and the Mayor, Counsellor and Aldermen of the City of Annapolis to issue additional bonds for the purpose of further contributing to the completion and furnishing of said building. The additional amounts so contributed by them respectively being apportioned in the same manner[***17] as in the original Act of 1896. This last-named act made it "the duty of the Board of School Trustees of Annapolis Public School and the Board of County School Commissioners of Anne Arundel County to establish and maintain, in addition to the primary and grammar school, a high school in [**93] the City of Annapolis." It is thus shown that the erection and furnishing of this school building was the result of the contributions of both the County School Commissioners and the City of Annapolis, and was not built by money contributed by the School Commissioners alone, as in the case of most buildings erected for public school purposes in this State.

   In the furtherance of the objects and purposes of this statute, section 16 provides that the district school trustees for said school shall always be composed of six persons, three of whom shall be men and three of them women, and those who were first to act as such trustees are therein named. These, by the statute, are directed, within thirty days after the first day of May of the year 1906 to meet and enter upon the duties assigned them by Chapter 5 of Article 77 of the Code of Public General Laws, and "at their first meeting[***18] they shall appoint a chairman to hold office for one year and shall give notice of such appointment to the secretary of the Board of County School Commissioners; they shall have all the rights and powers, and shall discharge all the duties conferred and imposed by Chapter 5 upon district school trustees, except that they and their successors shall have the absolute power of appointment and removal of the teachers of said district school without the approval of said Board of County School Commissioners."

   [*108] Section 17 classifies the trustees so named in section 16, placing in each class one man and one woman, the first class to hold office for one year, the second for two years, and the third for three years.

   Section 18 provides that vacancies in said Board of District School Trustees "shall be filled by the Board of County School Commissioners; each such appointment to fill a vacancy caused by the expiration of the term of office, shall be for the term of three years from the first day of May when such term expires, and each such appointment to fill any other vacancy shall be for the unexpired portion of the vacated term; such appointees shall be citizens of Annapolis, [***19] who will take an active interest in the management of said school, a woman shall always succeed a woman and a man shall always succeed a man; so that equality in that respect shall always be maintained among the trustees, and as far as possible equality of representation shall always be maintained among them in respect of either political views in making appointments to fill vacancies in their number."

   It is section 7 of Chapter 584 of the Acts of 1904, codified as section 7 of Article 77 of the Code of Public General Laws, that the appellant contends repeals sections 16, 17 and 18 of Chapter 275 of the Acts of 1896. That section provides that: "The Board of District School Trustees shall be composed of three persons, residents of the school district and county where said school may be located, who shall be appointed by the county school commissioners on the first day of May (August in the amended Act of 1892) or at their first meeting thereafter, which must be held during the month of May in each year, and who shall meet within thirty days after their appointment and enter upon the duties assigned them in Chapter 5 of this act. At their first meeting they shall appoint a[***20] chairman and shall give notice of their appointment to the secretary of the board of county school commissioners. When the trustees appoint a principal teacher, and the appointment shall be confirmed by the board of county school commissioners, the said principal [*109] teacher shall be ex officio secretary of the board of district trustees," etc.

   The only amendments or modifications thereby made to the provisions of section 7 of Article 77 as it stood at the time of the passage of the Act of 1896, Chapter 275, are shown by the words written in italics; that is, with the elimination of the words italicized the section will then appear as it stood prior to the passage of the Act of 1896.

   Both by section 16 of the Act of 1896 and section 7 of the Acts of 1904 the trustees appointed thereunder are directed within thirty days after their appointment to meet and enter upon the duties assigned them by Chapter 5 of Article 77 of the Code of Public General Laws. By reference thereto it will be found in section 27 thereof--the only section in which we are interested in the determination of the question before us--that at the time of the passage of the Act of 1896 the[***21] local board of trustees, among other duties thereby imposed upon them, were " to employ the teacher or teachers, subject to the confirmation by the board of county school commissioners," but it will be observed that the Act of 1896 specially provides that the powers of the trustees appointed under that act shall not be limited to the appointment of teachers, subject to approval of the commissioners, but that they and their successors shall have the absolute power of appointment and removal of such teachers without the approval of the said board of county school commissioners. It is also true that since the passage of the Act of 1896, Chapter 275, no material change has been made in the above quoted language from section 27 of Chapter 5 of Article 77, but like section 7 of said article it practically remains the same as it was at the time of the passage of the Act of 1896, the only modification being that the trustees shall appoint "the principal teacher" and not "the teacher or teachers," as originally provided, subject to the confirmation of the school commissioners.

   It will thus be seen that the Act of 1904, Chapter 584, is no more inconsistent with the special Act of 1896, [***22] so far as the questions here involved are affected thereby, than was the statute it repealed and re-enacted with amendments, which [*110] was in full force and effect [**94]at the time of the passage of said special act. The special statute passed at such time was to apply only to the school to be opened as the result of its special provisions. The passage of it had no effect upon the general statute, nor was it so intended. The general statute continued to apply to all schools to which it applied before the passage of that act. This school, created by the special statute and by the provisions of which the costs and expenses of the erection and furnishing of the school building were borne in part by the school commissioners and in part by the City of Annapolis, was not intended to be included within the class of schools to which the above cited provisions of the general law applied. In 1910, by the passage of Chapter 386, the management and supervision of the school commissioners over high schools of the State were intended to be enlarged, and it was specially provided that nothing in that act should be construed to repeal the provisions of sections 16, 17 and 18 of Chapter[***23] 275 of the Acts of 1896, applying to the Annapolis public high school.

   We do not think that the general Act of 1904, containing no express provisions repealing the special Act of 1896, and containing no provisions more inconsistent with such special law than the statute it repealed and re-enacted, can have the effect of repealing such special law. The two statutes are not irreconcilable. The former had application to a particular school, the one mentioned in this controversy, while the latter applied to a general class of schools which did not embrace the school here involved.

   But as the order of the lower Court directing the mandamus to issue is incomplete in its directions as to the appointment of the trustees as was conceded in the argument before us, we will, without affirming or reversing the lower Court in passing that order, remand the case, that an order may be passed in conformity with this opinion and the Act of 1896, Chapter 275.

   Cause remanded without affirming or reversing the order appealed from, costs to be paid by the appellants. 

ELIZABETH B. JESSUP vs. STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
117 Md. 119; 83 A. 140; 1912 Md. LEXIS 92

 January  9, 1912, Decided

   PRIOR HISTORY:  [***1] The appellant was tried and convicted in the Circuit Court of  Anne Arundel  County (BRASHEARS, J.) on three charges of selling liquor to minors in violation of Chapter 647 of the Acts of 1910. Three appeals were taken.

DISPOSITION: Judgment affirmed, appellant to pay the costs.

CORE TERMS:  hotel, traverser, manager, liquor, motion to strike, wine, legally sufficient, legal effect, admissible, indictment, whiskey, waiters, salary, clerk, legal sufficiency, general objection, twenty-one, licensed, objected, demurrer, admissible to prove, properly overruled, witness testified, attempt to obtain, evidence offered, whole evidence, liquor license, written order, well settled, cross-examination

COUNSEL: Daniel R. Randall and Robert Moss, for the appellant.
 
Isaac Lobe Straus, Attorney-General, for the appellee.

JUDGES: The three causes were argued together before BOYD, C. J., BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: BRISCOE

OPINION: [*119] [**141] BRISCOE, J., delivered the opinion of the Court. 

   These three cases were argued together and as they present the same questions, they will be considered and disposed of by this Court in one opinion. 

   [*120] The questions are presented by a single exception and that is to the ruling of the Court, at the close of the State's testimony, in refusing, upon motion of the traverser, to strike out all the evidence upon the part of the State which had been admitted subject to exception.

    The case was tried before the Court sitting as a jury and it appears, from the record, that after the first witness was sworn, on the part of the State, [***2]the traverser objected to his testimony as to the sale of the liquor to him at Carvel Hall Hotel, unless it was followed up by testimony legally sufficient to prove that the defendant was prima facie guilty of the offense charged in the indictment.

   The Court had admitted all the evidence set out in the record, subject to exception, with leave to the defendant at the close of the State's case to move to strike out the whole or any part of it.

   At the close of the State's case, the traverser submitted the following motion as stated in the exception, "the defendant moves the Court to strike out all the evidence of all of the State's witnesses, the said evidence having been admitted subject to exception and all of the said evidence of all of the witnesses not being legally sufficient, or admissible to prove or tend to prove that the defendant was guilty of the offense of selling or giving away whiskey and wine to Aaron S. Merrill on December the 24th, nineteen hundred and ten, at Carvel Hall Hotel, city, county and State aforesaid."

   This motion was overruled by the Court below, and the traverser declining to offer further evidence, was then convicted, upon the issue joined upon the [***3]plea of not guilty, and sentenced to pay a fine of $50 and costs. And from this judgment she has appealed.

   The testimony, which the traverser's motion sought to strike out, was all of the evidence offered by the State, and was as follows:

   Aaron S. Merrill testified that he purchased at Carvel Hall Hotel, Annapolis, Maryland, on the 24th day of December, nineteen hundred and ten, whiskey and wine, and that it was delivered to him in a little room off from the bar by [*121]one of the hotel waiters and he paid for the same, and at the time he purchased and paid for said whiskey and wine he was a minor under the age of twenty-one years, and a mid-shipman attached to the United States Naval Academy, and that he was not a student of St. John's College. The witness testified on cross-examination that at the time he purchased the liquor he did not see Miss Elizabeth B. Jessup in that part of the hotel and had never seen her at any time in that part of the hotel adjacent to the bar.

   William J. Seeley, testified that Miss Elizabeth B. Jessup was the manager of Carvel Hall Hotel, Annapolis, Maryland, on the 24th day of September, in the year nineteen hundred and ten, and that as[***4] said manager she had the right to employ and discharge waiters and bell boys and minor help. That she employed him as chief clerk, upon recommendation of A. H. McCartly, that as such manager she paid all bills contracted in and about the management of the hotel, drawing checks for same on a fund in bank in the name of the Carvel Hall Hotel Company and signing check Carvel Hall Hotel Company, E. B. Jessup, manager.

   On cross-examination the witness testified that Miss Elizabeth Jessup received a regular monthly salary, the same as he did, he being chief clerk of the hotel, and that she did not have the right to discharge him and did not have the right to employ or discharge the barkeeper, who also received a monthly salary, and that their salaries were paid them by the Security Land Company, a body corporate incorporated under the laws of the State of New Jersey, of which A. H. McCartly was manager, and that said company conducted the hotel, and all the liquor in the hotel for sale was kept at the bar.

   The State further proved that the application of the Security Land Company to the Mayor, Counsellor and Aldermen of the City of Annapolis for a liquor license was signed by Elizabeth[***5] B. Jessup, agent. It was admitted in the case that the Security Land Company was a non-resident corporation of the State of Maryland, but licensed to do business in this State, certifying to Secretary of State of Maryland that [*122] its sole business in the State of Maryland was the renting and collecting rents from property known as Carvel Hotel Company and that Daniel R. [**142] Randall was its agent on whom process could be served. And that all its directors and officers were non-residents of the State of Maryland.

   We have thus set out the evidence at length, because the ruling of the Court, embraced in the exception, upon the motion to strike it out, presents the only legal question to be reviewed by us, as we do not understand that the correctness of the Court's ruling upon the demurrer to the indictment is pressed, on this appeal.

   It is clear, we think, that the motion to strike out, as submitted to the Court and set out in the bill of exception, is entirely too broad and general, and was properly overruled by the Court for two reasons.

   The law is well settled, that if the objection is a general one to all, and each, and every part of the evidence and if any part[***6] of it is admissible, the Court will overrule the objection.

   Mr. Wigmore in his work on Evidence, 1 Wig., sec. 18, page 57, states the rule as follows: The cardinal principle is that a general objection, if overruled, can not avail.

   In Pegg v. Warford, 7 Md. 582, this Court said: A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained though inapplicable for other purposes and such general objection would leave the testimony to go to the jury as if no objection had been made at all. In other words, it would be virtually an offer generally of competent testimony.  Budd v. Brooke, 3 Gill 198; Morrison v. Whiteside, 17 Md. 452; Levy v. Taylor, 24 Md. 282; Burgoon v. Bixler, 55 Md. 384; State v. Luery, 116 Md. 284, 81 A. 681.

   In Carroll v. Granite Mfg. Co., 11 Md. 399, the Court used this language: After evidence has been admitted and an application is made to the Court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion[***7] of the evidence which is illegal. [*123] And the same rule applies when an offer is made of a mass of evidence, complex in its character, and the whole of it is objected to. In such case, if any part of it be admissible, it is error to exclude the whole.

   In the case at bar, the reason, for the exclusion of the evidence stated in the exception, is, "that all of the said evidence of all of the witnesses, not being legally sufficient or admissible to prove or tend to prove that the defendant was guilty, etc."

    This objection it will be seen, is too general and related to all the evidence offered on the part of the State, and did not point out specifically the inadmissible parts of the evidence or state in what way it had no legal application to the case. Some of the evidence objected to, was obviously admissible tending to prove the charge set out in the indictment and for the reasons stated and upon the authorities cited the Court committed no error in overruling the motion to strike it out in the form it was submitted.

   But apart from this, the motion to strike out the whole evidence on the part of the State, was in the nature of and in legal effect a demurrer to the evidence, [***8] and an attempt to obtain from the Court an instruction as to the legal effect and legal sufficiency of the evidence to sustain a verdict for the traverser.

   In Dick v. State, 107 Md. 11, 68 A. 286, the Court said, upon a review of the cases in this State upon the subject, it is well settled that this can not be done in Maryland where the jury in criminal cases are the judges of the law and the legal effect and legal sufficiency of the evidence and the Court only determines the admissibility of the evidence.

   In the case at bar, the precise language of a part of the motion to strike out the evidence is, "that all the evidence of all of the witnesses legally sufficient to prove or tend to prove the guilt of the traverser" and as the jury in this State are the judges of both the law and the evidence, and unless there is error in the rulings of the Court, their finding must stand.

   [*124] In Ridgely v. State, 75 Md. 510, 23 A. 1099, it was said, "No Court in this State, whatever may be the rule elsewhere, can be required by counsel or jury in criminal cases to give instructions, either upon the law of the crime or on the legal effect of the[***9] evidence."

   The rule here stated is sustained and approved by a number of recent cases, in this Court.  Lanasa v. State, 109 Md. 602, 71 A. 1058; Dick v. State, 107 Md. 11, 68 A. 286; Garland v. State, 112 Md. 83, 75 A. 631; Luery v. State, 116 Md. 284, 81 A. 681; Esterline v. State, 105 Md. 629, 66 A. 269.

   The law applicable to the facts of a case of this character, has been settled by an unbroken current of authorities in this State and elsewhere, and will be found clearly and fully stated in the cases cited by the learned Attorney-General of the State, upon his brief, filed in the case, and are as follows: Carroll v. State, 63 Md. 551, 3 A. 29; Peterson v. State, 83 Md. 194, 34 A. 834; Lochnar v. State, 111 Md. 660, 76 A. 586; Esterline v. State, 105 Md. 629, 66 A. 269; Bishop Stat. Crimes (ed. 1873), sec. 1024; 23 Cyc. 206, and cases there cited.

   The traverser was indicted for a violation of section 46 of Article 2 of the Local Code of Anne Arundel County (Acts 1910, Chapter 647), which[***10] makes it unlawful for any person, whether licensed to sell spirituous liquors or not, to sell, dispose of, barter or give, directly or indirectly, within the corporate limits of the City of Annapolis, or within five miles thereof, any spirituous or fermented liquors, wines or cordials of any kind, or in quantity whatever, to any youth or minor under the age of twenty-one years, without [**143]the written order or consent of the parent or guardian of such minor, nor to any midshipmen or student connected with or attached to the Naval Academy at Annapolis, or under orders to join or leave the said Academy or preparing for admission to said Academy, nor to any student of St. John's College, without the written order of some professor from said college. And any person violating the provisions of this section shall be liable to indictment in the Circuit Court for Anne Arundel County, and upon conviction thereof shall be fined a sum not [*125] less than twenty dollars and not more than one hundred dollars and costs, and shall be confined in the county jail until such fine and costs are paid.

   The undisputed evidence in this case, is to the effect, that the traverser was the manager[***11] of Carvel Hall Hotel, in Annapolis, and had the right to employ and discharge waiters bell-boys and minor help; she employed the chief clerk and that as such manager she paid all bills contracted in and about the management of the hotel, drawing checks for the same on a fund in bank in the name of the Carvel Hall Hotel Company and signing the check, Carvel Hall Hotel Company, E. B. Jessup, manager, that the salaries of the manager and the chief clerk and the barkeeper were paid by the Security Land Company a corporation of the State of New Jersey, but licensed to do business in this State, and that said company conducted the hotel and all the liquor in the hotel for sale was kept at the bar. It was also shown that the application of the Security Land Company to the Mayor, Counsellor and Aldermen of Annapolis, for a liquor license was signed by Elizabeth B. Jessup, agent.

   Aaron S. Merrill testified that he purchased at Carvel Hall Hotel, on the 24th of December, 1910, whiskey and wine, and that it was delivered to him in a little room off from the bar by one of the hotel waiters and he paid for the same, that he was a minor under the age of twenty-one years and a midshipman attached[***12] to the United States Naval Academy.

   Now without stopping to review in detail the evidence, upon which the verdict in each of these cases must have been based, it is sufficient to say, for the purposes of our conclusion, that the motion to strike out the whole evidence in all three cases was properly overruled and this being so, and the findings of the Court being against the traverser, the judgments were correctly entered by the Court below. It follows, that the judgment in each case must be affirmed. Thomas v. Hunter, 29 Md. 406; Tinges v. Moale, 25 Md. 486; New & Son v. Taylor, 82 Md. 40, 33 A. 435; Turner v. Egan et al., 116 Md. 35, 81 A. 877.

   Judgment affirmed, appellant to pay the costs. 

WILLIAM QUEEN, JOSEPH GREEN AND JOHN JOHNSON vs. STATE OFMARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
116 Md. 678; 82 A. 656; 1911 Md. LEXIS 104

 November  24, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Appeal dismissed, the appellants to pay the costs above and below.

CORE TERMS:  peace, election district, writ of error, right of appeal, final and conclusive, jurisdiction to hear, offences committed, sentenced, want of jurisdiction, inquisition, proceeded, common law jurisdiction, judgments rendered, pre-existing, confined, adjudged

COUNSEL: Robert Moss, for the appellant.
 
Isaac Lobe Straus, the Attorney-General (with whom was Walter D. Eiseman on the brief), for the appellee.

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

OPINIONBY: PEARCE

OPINION: [*679] [**656] PEARCE, J., delivered the opinion of the Court.

   The appellants in this case were charged with an assault and battery upon Charles C. Fisher and others in Anne Arundel county, and were brought before John N. Davis, Esq., a justice of the peace of that county under a warrant issued by him. Both the state's attorney for Anne Arundel county, and the appellants waived the right of jury trial. Upon trial they were all adjudged to be guilty and were sentenced to be confined in the Maryland House of Correction for varying periods, and they each appealed from this judgment of the justice of the peace to the Circuit Court for Anne Arundel County. When the case was called for trial in that Court, the defendants moved the Court to reverse the judgment and quash[***2] the warrant in the case because, as they alleged, the justice had no jurisdiction to hear and determine the case or to render judgment in the same. This motion was overruled by the Court and the defendants were again adjudged to be guilty and were sentenced to be confined in the Maryland House of Correction for the same periods respectively for which they had been sentenced by the justice, and from that judgment they have appealed to this Court.

   The record contains what is called a bill of exceptions signed and sealed by the Judge before whom the case was heard, and it sets forth the motion made to quash the warrant with the reasons therefor, and states that the State's attorney for Anne Arundel county admitted that the offence was committed in the First Precinct of the Second Election District of Anne Arundel County, and that John N. Davis, the justice who heard the case below, was not the police justice of the First Precinct of said Election District.

   The contention of the appellants is that under the local law of Anne Arundel county, as amended by Chapter 524 of the Acts of 1908, the police justice of the Second Election District has exclusive jurisdiction of all criminal[***3] offences [*680] committed in the First Precinct of that district, and that Justice Davis not being such police justice, had no jurisdiction to hear and determine the case. But even if this should be conceded, the judgment in this case could not be reversed, because it is firmly established by the decisions of this Court that wherever the statute gives an appeal from a judgment of the justice of the peace to the Circuit Court, the judgment of the Circuit Court is final and conclusive, and there is no appeal to this Court, whether the justice had jurisdiction or not, unless the statute gives an appeal to this Court from the judgment of the Circuit Court.

   It was so held in Rayner v. State, 52 Md. 368. In that case JUDGE ALVEY said: "It is only where the Circuit Court has proceeded without right or jurisdiction to hear and decide the case that an appeal or writ of error may be taken to this Court to reverse a judgment that is unwarrantably rendered. But here" (as in the case before us now) "the statute under which the proceedings were taken, by express terms, gave the right of appeal from the judgment of the justice to the Circuit Court, without giving any[***4] right of appeal to this Court. * * * Having invoked that jurisdiction and submitted himself to it, and the case having been regularly tried, he has no redress by an appeal or writ of error to this Court. If the Circuit Court had power and jurisdiction under the appeal taken, to revise and reverse the judgment of the justice, either for the want of jurisdiction in the justice, or upon other grounds, it had right and jurisdiction to affirm the judgment of the justice, and that judgment of affirmance must be taken as final and conclusive, as the judgment of reversal would have been, if such judgment had been rendered. * * * If the appeal had not been authorized by law, or if judgment had been rendered against the party in his absence and without legal notice, or opportunity of defending himself, or asserting his rights, or the Court had, in [**657] the rendition of its judgment, transcended the limited jurisdiction conferred upon it, in all such cases the party prejudiced by the judgment [*681] would have had the right of appeal. In other words, there would have been a want of jurisdiction in the Circuit Court to render the judgment, and for that reason the right[***5] of review would exist."

   It is difficult to imagine how greater precision, or more absolute finality, could have been imparted to language; and the Court then proceeded to say, that "it does not follow that the law denies to a party feeling himself aggrieved, the means of reaching this Court, on such a question, by the proper proceeding. * * * The fact that the statute gives an appeal to the Circuit Court from the judgment of the magistrate does not take away or deprive the party of the benefit of a certiorari for the purpose of having decided the question of the power and jurisdiction of the magistrate, though the writ will not be granted to bring up the case on its merits, as distinguished from the question of jurisdiction where an appeal is given."

   Under a certiorari, the Circuit Court would be in the exercise of its ordinary common law jurisdiction, and from its judgment in such case, a writ of error or an appeal could be prosecuted to this Court.

   This case has been repeatedly cited and followed.

   It was followed in Judefind v. State, 78 Md. 510, 28 A. 405, where the constitutionality of our law prohibiting work on Sunday was involved, and [***6]JUDGE BOYD said, "Rayner v. State was directly in point and it was unnecessary to refer to the other decisions of this Court."

   It was followed in Messick v. State, 82 Md. 583, 34 A. 537, Smith Premier Co. v. Westcott, 112 Md. 146, 75 A. 1052; Green v. State, 113 Md. 451, 77 A. 677, and Hendrick v. State, 115 Md. 552, 81 A. 18, and the same principle was applied in N. Y. Mining Co. v. Midland Co., 99 Md. 506, 58 A. 217, in an appeal from a judgment of the Circuit Court of Alleghany County confirming an inquisition for the condemnation of land for a public use, because the statute conferring upon the Circuit Court a special and limited jurisdiction to confirm or reject the inquisition provided no appeal from its judgment.

   [*682] It necessarily follows that the appeal in this case must be dismissed. It may not be amiss to say that under our decisions in Maryland, bills of exception are not allowed in the trial of cases upon appeal from judgments rendered by justices of the peace, and when they appear in the record the Court is not at liberty to examine them.  Cole v. Hynes, 46 Md. 181, [***7]but they must be treated as if they had been expunged from the record. Shippler v. Broom, 62 Md. 318.

   The record as presented does not warrant us in expressing any view as to the effect of Chapter 524 of 1908 upon the jurisdiction of the justice before whom this case was heard and determined, because the record does not disclose the election district for which he was appointed, and without knowledge of that fact we could not speak with authority; but if the record showed that he was at that time a justice of the Sixth Election District of Anne Arundel county, we should have little, if any, doubt that Chapter 524 of 1908 preserved the jurisdiction which the justices of the Sixth District had under pre-existing law over offences committed in the First Precinct of the Second Election District.

   But for the reason first assigned this appeal will be dismissed.

   Appeal dismissed, the appellants to pay the costs above and below. 

MORRIS MEYER vs. ISAAC FRENKIL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
116 Md. 411; 82 A. 208; 1911 Md. LEXIS 92

 November  15, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The following are the prayers of the plaintiff that were directed by the Court to be set out in full:
 
1st Prayer--The plaintiff prays the Court to instruct the jury that it is the duty of the jury to determine whether or not the whole contract between the plaintiff and the defendant was embraced in the paper writing offered in evidence signed by M. Meyer and dated November 7th, 1904, and if they shall find that the whole of the contract was not embraced in said paper writing, then it will be their duty further to find from all the evidence in the case, what the said contract was (Granted.)
 
2nd Prayer--The plaintiff prays the Court to instruct the jury that if they find from the evidence that there was a contract for certain materials in question to be furnished and work to be done by the plaintiff for the defendant at and for a special sum, and shall further find that other materials in question were furnished and other work done by the plaintiff for the defendant at his request and shall further find that other materials were furnished and work done by the plaintiff at the request of defendant's wife, [***2] in connection with the work done by the plaintiff at defendant's request, and shall further find that all such work so done and all such materials so provided were accepted by the defendant, then their verdict must be for the plaintiff for the sum, if any, due under said contract, together with the fair and reasonable value of the extra materials furnished and extra work done, if any, less such sums, if any, as they shall find have been previously paid by the defendant to the plaintiff. (Granted.)
 
3rd Prayer--The plaintiff prays the Court to instruct the jury that if they find from the evidence that there was a contract for certain materials in question to be furnished and work to be done by the plaintiff for the defendant at and for a specific sum, and shall further find that other materials in question were to be furnished and other work to be done by the plaintiff for the defendant, and that the work specified in the contract, to wit:--The three sanitary closets, had been performed, and shall further find that the completion of the other work was prevented by the defendant or by the defendant's wife who was in the occupancy and possession of the defendant's house when said[***3] work was to be done, if they so find, then the plaintiff is entitled to recover the fair and reasonable value of the materials furnished and work done less such sums, if any, as the jury may find shall have been previously paid by the defendant to the plaintiff. (Granted.)

DISPOSITION: Judgment affirmed the appellant to pay the costs above and below.

CORE TERMS:  prayer, former appeal, fault, completing, completion, work done, arbitrator, closets, materials furnished, legally sufficient, general authority, declarations, disavowed, objected, contesting, referees, hirer, farm, hire, authority to bind, properly granted, implied agency, matrimonial, admissible, calculated, settlement, occupation, residing, execute, deliver

COUNSEL: Israel Gomborov (with whom was Adrian Posey and Edward Colgan on the brief), for the appellant.
 
James M. Munroe, for the appellee.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, PEARCE, THOMAS, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: PEARCE

OPINION: [*414] [**209] PEARCE, J., delivered the opinion of the Court.

   This is the second appeal in this case, the former appeal being reported in 113 Md., pages 36 to 47.

   The suit was brought by the appellee, Isaac Frenkil, against the appellant, Morris Meyer, and his wife, Hilda Meyer, in the Circuit Court for Charles County, to recover a balance of $898.95 claimed to be due by the two defendants to the plaintiff, for work done and materials furnished by the plaintiff in the improvement of a house in the City of Baltimore, owned by the defendant, Morris Meyer.

   A verdict[***4] was rendered in favor of the defendant, Hilda Meyer, and a verdict for the plaintiff was rendered against the defendant, Morris Meyer, for the sum of $692.75 upon which judgment was entered, and upon appeal to this Court, that judgment was reversed for error in ruling upon one of the prayers, and a new trial was awarded.

   After the case was remanded to the Circuit Court for Charles County, it was removed for trial to the Circuit Court for Anne Arundel County, and after the record had been received and filed in that Court, the name of Hilda Meyer as one of said defendants was, on the plaintiff's motion, stricken out by the order of the Court, and the trial proceeded against Morris Meyer alone, resulting in a verdict and judgment against him for $800, with interest from January 26th, 1911, from which judgment this appeal is taken.

   There were seven bills of exception, six to the refusal of the Court to strike out certain testimony, and one to the rulings on the prayers.
 
   The plaintiff testified that about November 7th, 1904, he agreed with the defendant to [**210] do certain work and furnish certain materials for the house, 126 South Eden Street, Baltimore; that for a part of this[***5] work, the putting in three sanitary closets, there was a written agreement dated November 7th, 1904, for the sum of $200, and that as to the remaining work and materials he was to be paid its reasonable value; that some of the work and materials was ordered by the [*415] defendant, and some by his wife, Hilda Meyer, and that all the work and material so ordered was still in the defendant's house; that the total amount of his charges for work and material was $1,373.95, and the total payments made on account were $475, leaving due him a balance of $898.95; that sometime in March, 1905, he stopped work because he could not get his money in time, and that he and the defendant then decided to arbitrate their disputes, and for that purpose went to the office of one Simon Buckner; that there was no submission nor decision, but that while in said office, the defendant offered him a note for $800 in settlement of his claim, which he refused, as it was unindorsed. The defendant objected to this testimony "as to the offer of the note (it not being produced)" and moved the Court to strike the same out, and the first exception is to the refusal of the Court to grant that motion. Simon[***6] Buckner testified to the above offer of a note of $800, in settlement of plaintiff's claim, and the defendant objected thereto and moved the Court to strike it out, and the third exception is to the refusal of the Court to grant this motion.

   The apparent ground of the first exception is that the note was not produced. To this objection there are two satisfactory answers: 1st That it does not certainly appear that any note was actually executed and offered, but rather that an offer was made to execute and deliver such note; 2nd, that even if such a note was actually made and tendered for acceptance, its production in evidence would not be necessary, because the object of the testimony was not to prove the contents or form of the note, but only to prove the fact that such an offer was made. Cramer v. Shriner, 18 Md. 140.

   But the ground in support of both exceptions as presented in the brief of the appellant, and at the argument, was that the offer was made by way of compromise. The general rule that offers by a party with a view to compromise are inadmissible, is too well settled to require the citation of authority, "but there is an exception to this rule, under[***7] which admissions of particular facts may be received, as stated [*416] and applied by this Court in Calvert v. Friebus, 48 Md. 44." Acker, Merrall & Co. v. McGaw, 106 Md. 536, 68 A. 17. In Calvert v. Freibus, supra, the offer was to prove the statement of an account made by the plaintiff before referees chosen to adjust the account, and then acting as such referees. It does not appear from the record in that case why an award was not made, but suit was subsequently brought upon the same cause of action, just as in this case. In Calvert v. Freibus, JUDGE ALVEY said: "The facts embraced in the offer rejected by the Court do not present the case of a proposition to compromise; but the case of a pending controversy before arbitrators, where statements and declarations were made by the parties, and where the latter were contesting their rights as adversely as before any other tribunal. In such case, the statements and admissions made by a party contesting, are admissible, and may be proved by an arbitrator before whom they are made as by any other person hearing them." The facts of the present case in our opinion bring it fairly[***8] within the authority of Calvert v. Freibus, and there was, therefore, no error in the rulings on these two exceptions.

   The plaintiff then further testified over the objection of the defendant that sometime in March, 1905, he called at the house in question with some workmen for the purpose of completing the work, and that the wife of the defendant, Hilda Meyer, and another woman who he thought was Meyer's mother-in-law, and who were in the possession of the house, prevented him from entering the house. The defendant objected to the admission of this testimony and moved to strike it out, and the second exception is to the refusal of the Court to strike it out.

   F. Kahn, John Lotz and Harry Goldschneider each testified that sometime in March, 1905, they went with the plaintiff to the house to complete the work, and that the defendant's wife was there and would not let them in the house. Objection was made to the testimony of each of these witnesses and motions were made to strike out the same, which were refused, and these constitute the fourth, fifth and sixth [*417] exceptions, which, with the second exception, present the same question.

   Herman Meyer, the plaintiff's[***9] son, testified that he was present on November 7th, 1904, and that there was then only a verbal agreement for the whole work for $911, and that $745 had been paid on account of that work, and that the defendant had paid other parties $536 for completing work unfinished by the plaintiff.

   The defendant testified in his own behalf to the same effect, and further testified that the written contract dated November 7th, 1904, for three closets was written and signed afterwards because the plaintiff said he could not get a permit from the city without it; that he never offered a note for $800, nor accepted the work; that he never told the plaintiff to stop work, and never authorized his wife or any one else to prevent his completing the work.

   Hilda Meyer testified that she never prevented plaintiff from completing the work, but she did make some changes in the work, not by any authority from the defendant, but because, as his wife, she felt she had the right [**211] to do so.

   Kloze, Saltzman and Graham testified to payments made them for work done which Herman Meyer had testified was for completing plaintiff's work, and plaintiff, in rebuttal, testified that the payments made them[***10] were not for work included in his contract, but for connecting the three closets upon the order of the city with a sewer which was constructed after he had connected these closets with a well in the yard, which fulfilled his contract as to them.

   The second, fourth, fifth and sixth exceptions must depend upon whether the alleged act of the wife in forbidding and preventing the completion of the work can be regarded as the act of the husband upon the principle of implied agency.

   It appears from the record that the defendant was residing in Charles county where this suit was originally brought, and that during 1905 and 1906 he was residing, or occupied in some way at La Plata, Charles county, while it appears [*418] that during the same period his wife was in Baltimore in the occupation or possession of this house.

   It is true that a wife has no authority to bind her husband as his agent, merely by virtue of the matrimonial contract, but for some purposes her agency may be implied. "The wife has, it seems, in the absence of the husband, a general authority to exercise the usual and ordinary control over the property left in her possession by him, unless the presumption of authority[***11] is rebutted by proof that he has constituted some other person his agent for that purpose." 15 Amer. & Eng. Enc., 2nd Edition, page 856.

   "Where the husband is absent from home, and some one must carry on the household and small business, the agency of the wife will be implied." Schouler on Domestic Relations, sec. 72. "She may be his agent as to his real estate, not only for collecting rents, but in the more important transactions," idem. "Acts done by the wife in relation to her husband's property should be promptly disavowed by him if he wishes to escape responsibility." "Presumption of agency is strengthened where the husband is obliged to be absent much of the time." Idem.

   In Church v. Landers, 10 Wend. 79, it was held that a wife, in the absence of her husband, was authorized to hire his horse in her possession, and that trover would not lie by the husband against the hirer to avoid the contract, the Court saying, "The wife, in the absence of her husband must be considered as having a general authority to exercise the usual and ordinary control over his property, which must be possessed by some one, unless it be expressly shown he had constituted[***12] some other person his agent for that purpose." In that case there was evidence to the effect that he had directed her not to hire it, but that this was unknown to the hirer.

   In McAfee v. Robertson, 41 Tex. 355, the action was for work and material repairing fences and furnishing new rails for defendant's farm, necessary to its profitable use and occupation, in his absence. The lower Court instructed the jury [*419] that unless the defendant ratified the wife's contract they must find for defendant, but this was held error on appeal.

   In Buford v. Speed, 11 Bush 338, some question of title as to defendant's farm in the wife's possession, arose in his absence, and the wife employed counsel to defend the title, and he was held bound by her contract.

   And in Benjamin v. Benjamin, 15 Conn. 347, the Court said: "The law will, in some cases, presume the wife to be the agent of the husband when no such presumption would exist as to another person; and also will, in some cases, imply a larger authority to the wife than to an ordinary agent, and this, perhaps, whether the husband be absent from home or not; and that in other [***13]cases, where he is absent, a presumption would arise that his wife has authority to act in his behalf, which would not exist if he were at home." It is a reasonable presumption here, if the defendant's wife did forbid the plaintiff to enter the house to complete his work, that she communicated that fact to her husband, but there is no evidence that he disavowed her authority to do so, as we have seen from the text of Mr. Schouler, and upon plain principle, he was bound to do if he wished to escape responsibility therefor.

   Under the circumstances of this case we are of opinion that there was no error in the ruling on the 2nd, 4th, 5th and 6th exceptions.

   The plaintiff offered four prayers all of which were granted, and the defendant offered seven, of which the 2nd, 3rd and 7th were granted, and the 1st, 4th, 5th and 6th were rejected, to which rulings the 7th exception was taken.

   The defendant's 1st prayer asked an instruction that there was no evidence legally sufficient to entitle the plaintiff to recover. His 4th prayer sought to exclude from consideration by the jury the evidence relating to the offer of the $800 note. His 5th prayer sought in like manner to exclude any testimony [***14]tending to prove that defendant's wife prevented the completion of plaintiff's work, and his 6th prayer asserted that there was no evidence legally sufficient to establish any [*420] authority from defendant to his wife to interfere with the completion of the work.

   It follows from what we have said in relation to the previous exceptions, that all these prayers were properly rejected, and it follows for the same reason that it was error to grant the defendant's 2nd prayer which instructed the jury that there was no evidence legally sufficient to establish any relation of agency between the defendant and his wife. [**212] The defendant's 7th prayer in relation to the burden of proof is always proper where there is a conflict of testimony upon any material point, and was therefore properly granted here.

   The Court granted four prayers offered by the plaintiff of which the 1st, 2nd and 3rd will be set out by the reporter. The first is the same prayer which was approved by this Court on the former appeal, and is equally correct upon the testimony in this record. The 4th relates only to the allowance of interest in event that the verdict should be for the plaintiff, and needs no[***15] comment. The 2nd prayer is so framed as to embrace in addition to the contents of the 2nd prayer in the former appeal, one of the conditions held in the former appeal to be essential to recovery upon the common counts in assumpsit, viz, that all the materials and work done, were actually accepted; and the 3rd prayer is so framed as to embrace, in addition, the alternative condition held on the former appeal to be essential to recovery in this case, viz, that the completion of the work was prevented by the fault of the defendant. With these elements added, these two prayers conform to the views of the Court expressed in the former appeal in discussing the plaintiff's 2nd prayer, and they were properly granted here.

   The defendant's third prayer is in apparent conflict with plaintiff's third prayer, in that it asserts there could be no recovery unless the failure to complete the work was due to the fault of the defendant, while the plaintiff's prayer allows a recovery whether such failure was due either to the fault of the defendant, or of his wife, in possession and control of the house at the time the work was to be done. The [*421] appellant in framing his prayer seems [***16]to have relied upon the language of the Court on the former appeal "due to the fault of the defendant," but it will be seen on reference to the record in the former appeal that there was no testimony there as to the wife's interfering to prevent the completion of the work, and that no question was made there as to her agency in the matter; and it can not therefore be supposed that the Court intended to speak of the fault of the husband as embracing the fault of the wife. The defendant's 3rd prayer was directly calculated to mislead the jury, and if their verdict had been for the defendant, it would have been necessary to reverse the judgment thereon because of these conflicting prayers. But as their verdict was for the plaintiff in accordance with the theory of plaintiff's 3rd prayer which we have approved, there is no concurrence of error and injury, and the judgment will therefore be affirmed.

   Judgment affirmed the appellant to pay the costs above and below. 

FLORIED H. HILLERS vs. ELIZABETH R. TAYLOR. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
116 Md. 165; 81 A. 286; 1911 Md. LEXIS 52

 June  23, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.). where there was a judgment and verdict in favor of the plaintiff for $4,000, with interest and costs.
 
The following are the prayers that were offered:
 
Plaintiff's 1st Prayer.--The jury are instructed that in order for the plaintiff to recover damages against the defendant under the first count of the declaration it is not necessary that the plaintiff should prove any one act of illicit intercourse, which is conclusive of guilt, but the jury must consider the opportunity for the commission of the act the conduct of the parties and all of the circumstances and then determine from the whole of the testimony whether it should convince unprejudiced and cautious persons of the guilt of the parties, and if upon a consideration of all the evidence in the case the jury are satisfied of the commission of one act of illicit intercourse then their verdict should be for the plaintiff. (Refused.)
 
Plaintiff's 2nd Prayer.--The jury are instructed that in determining the amount of the damages, if they should find for the plaintiff, they should take into consideration the social position of the parties, the pecuniary[***2] situation of the defendant and award the plaintiff such an amount as will reasonably, and fairly compensate her for the loss of the affection, society of the husband of the plaintiff, together with the mental anguish and disgrace which she has sustained, and the loss of the support of her husband. (Granted.)
 
Plaintiff's 3rd Prayer.--If the jury find from the evidence, that the defendant alienated the affections of the husband of the plaintiff, even though there is no evidence to show that the defendant had criminal intercourse with the defendant, still the plaintiff would be entitled to recover, provided the jury find that the affections of the plaintiff's husband were alienated as alleged in the second count of the declaration. (Refused.)
 
Defendant's 1st Prayer.--It must appear by a preponderance of evidence, that the alienation and abandonment of the plaintiff by her husband, if any, was caused by the direct and active interference of the defendant and the burden of proof is upon the plaintiff to show this before she can recover under the second count of the declaration. (Granted.)
  
Defendant's 1st Prayer A.--The defendant prays the Court to instruct the jury that there[***3] is no testimony in this case legally sufficient to prove that the defendant debauched or carnally knew the husband of the plaintiff. (Granted.)
 
Defendant's 2nd Prayer.--Unless the jury believe from the evidence in this case that the defendant was intentionally guilty of such conduct as was calculated to prejudice plaintiff's husband against her and to alienate him from her and to induce him to leave her and remain apart from her; and that such effect was intended by the defendant to be produced and was actually produced by her conduct their verdict must be for the defendant under the second count of the declaration. (Granted.)
 
Defendant's 3rd Prayer.--Unless the conduct of the defendant was the effective cause which induced the husband of the plaintiff to leave her, and unless the jury are satisfied that but for that cause he would not have left her, their verdict must be for the defendant, under the second count of the declaration. (Conceded.)
 
Defendant's 4th Prayer.--The burden of proof is upon the plaintiff to establish the matter and facts set forth in the first and second counts of their declaration. (Conceded.)

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  prayer, affection, alienation, conversation, declaration, special exception, admissible, overruling, alienated, signature, assessing, feeling, injury resulted, former appeal, rule stated, reversible error, husband and wife, utterance, charging, appended, instruct, hearsay, induced, spouse, seal

COUNSEL: Robert Moss, [***4] for the appellant.
 
No appearance for the appellee.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, PEARCE, BURKE, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: BRISCOE

OPINION: [*168] [**287] BRISCOE, J., delivered the opinion of the Court. 

   When this case was before us, on a former appeal, from the Circuit Court for Prince George's County, reported in 108 Md. 148, a judgment of that Court in favor of the defendant was reversed for error in the rulings of the Court below, on the evidence presented at the trial and the case was remanded for a new trial.

   Subsequently, on the 8th day of October, 1908, the case was removed to the Circuit Court for Anne Arundel County for trial, and from a judgment in that Court in favor of the plaintiff the defendant has appealed.
 
   The questions for our consideration on this appeal are presented by two bills of exceptions, one relating to the ruling of the Court upon a motion by the defendant, at the conclusion of the testimony, to strike out certain testimony of the plaintiff, which had been admitted subject to exception, and, second, to the action of the Court in overruling the defendant's special exception to the granting of[***5] the plaintiff's second prayer, which submitted the proper rule of law for the guidance of the jury, in assessing the damages if they found a verdict for the plaintiff.

   [*169] The suit was brought by the plaintiff against the defendant, to recover damages for alienating the affections of the appellee's husband and persuading him to abandon her.

   The declaration contains two counts, the first charging the defendant with criminal conversation with the appellant's husband, resulting in the alienation of his affections, and the second charging her with having caused the alienation and abandonment by wrongful and wicked persuasion and the practice of alluring arts upon him, well knowing him to be the husband of the appellee.

   The record shows that in the course of the trial the plaintiff offered evidence tending to prove the facts set out in the second count of the declaration, and the defendant offered no testimony, but at the conclusion of the plaintiff's testimony, submitted the following motion: "The defendant moves the Court to strike from the record all the testimony of the plaintiff in this case with reference to conversations with her husband upon the ground that the conversations[***6] have not been in any way shown to have been caused or induced by the acts of the defendant."

   The testimony here referred to had been admitted subject to exception, and the ruling of the Court, in overruling this motion forms the basis of the first exception.

   We think, upon the state of the record now before us, the Court was entirely right in overruling the motion.

   The testimony was competent, under the well-defined exception to the rule against hearsay evidence, in suits like the present one to show the state of feelings existing between the husband and the wife, on the second count of the declaration.

   In the former appeal, we held, that evidence of statements made to the plaintiff by her husband relating to the wishes of the defendant or of declarations made by the defendant on the facts of that case, was inadmissible. Such evidence is either hearsay or a mere expression [**288] of opinion made out of the presence of the defendant. JUDGE SCHMUCKER, in delivering the opinion of the Court, said, [*170] "the subject has received careful consideration in sections 1730 and 1768 of Vol. 3 of Wigmore on Evidence, and more recently in section 1730 of the supplement to that[***7] work, where the rule is stated to be from an examination of the authorities, that in alienation suits the utterance of the alienated spouse are admissible to show the result on his or her state of mind of the efforts and influence of the defendant which have otherwise been proven. In that respect the defendant's acts and utterances as recited by the spouse are not hearsay and are admitted not as evidence of the truth of the statements, but of the mental state and motives of the party making them without reference to the truth of the Statements themselves."

   Volums 3, section 1648, of Elliott on Evidence, states the rule to be that "declarations or letters tending to show the feeling existing between the plaintiff's consort and the defendant may be shown, but it must first be shown that the defendant was responsible for the affection manifested for him.

   In this case they were admissible as offered, to show the state of the husband's mind, and the state of feelings existing between the husband and wife by reason of the efforts and influence of the defendant which had otherwise been proved. Nevins v. Nevins, 68 Kan. 410, 75 P. 492; McKenzie v. Lautenschlager, 113 Mich. 171, 71 N.W. 489;[***8] Rose v. Mitchell, 21 R.I. 270, 43 A. 67; Billings v. Albright, 66 A.D. 239, 73 N.Y.S. 22.

   The second exception does not appear to have been signed by JUDGE BRASHEARS, who sat in the case, in the Court below, but the signature "Jas. R. Brashears" (Seal), appears in the record at the conclusion of the defendant's fourth prayer. Assuming that the signature there appended was intended to be affixed to the special exception to the plaintiff's second prayer, we have here an exception to the granting of the plaintiff's second prayer upon the ground and because there was no testimony in the case, that the defendant alienated the affections of the plaintiff's husband.

   [*171] The plaintiff's second prayer stated the measure of damages, in the usual form, and under the facts of this case, no possible injury resulted therefrom. Hillers v. Taylor, 108 Md. 148 at 156, 69 A. 715.

   In Dexter v. McDonald, 103 Md. 381, 63 A. 958, in passing upon a similar prayer, this Court said, "the third prayer as to the measure of the damages while it seems to state a correct rule for assessing damages under the facts of the[***9] case, or a rule as favorable to the defendant as it could ask, is open to the criticism of being abstract in form and in not referring sufficiently to the facts to instruct the jury in the application of the rule stated to the facts. It is apparent, however, that no injury resulted from this. There was no conflict of evidence in the evidence going to the damages in the case." The plaintiff's evidence as to those was offered according to the rule stated and the verdict of the jury was evidently based on this evidence.

   There was no prayer at the close of the case on the part of the defendant asking the Court to withdraw the case from the consideration of the jury, for the want of legally sufficient evidence, to entitle the plaintiff to recover, and no proof whatever was submitted on the part of the defendant, in the trial of the case.

   On the contrary, the defendant notwithstanding the rejection of the plaintiff's first and third prayers, proceeded with the trial of the case and submitted five prayers two of which were conceded, upon propositions of law, based upon the defendants theory of the case, which were granted by the Court. To have rejected the plaintiff's second prayer would[***10] have left the jury uninstructed upon the proper rule, as to damages, at this stage of the case. Gill v. Staylor, 93 Md. 453, 49 A. 650; Sittig v. Birkenstack, 35 Md. 273. 

    We discover no error in the ruling of the Court upon this exception, for the further reason that it required the Court to hold that there was no evidence whatever that the defendant alienated the affections of the plaintiff's husband, and [*172] to have sustained the exception on this ground, would have been error. There was no prejudicial injury done the defendant by the granting of this prayer, and the conceded prayers were the law of the case. Dryden v. Barnes, 101 Md. 346, 61 A. 342.

   The evidence upon the part of the plaintiff tended to prove the issue, and the jury, upon the instructions from the Court, with the conceded prayers, was the proper tribunal to pass upon it, under the situation of the case, as here presented, by the record. There was practically a waiver of the exception to this prayer, by the submission of the case on the conceded prayers and the defendants instructions. Gans Salvage Co. v. Byrnes, 102 Md. 230, 62 A. 155; [***11]Com. Realty Co. v. Dorsey, 114 Md. 172, 78 A. 1099.

   Finding no reversible error in the rulings of the Court, presented by the two exceptions contained in the record, the judgment will be affirmed.

   Judgment affirmed, with costs. 

THE ARUNDEL REALTY COMPANY vs. THE MARYLAND ELECTRICRAILWAYS COMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
116 Md. 257; 81 A. 787; 1911 Md. LEXIS 79

 June  23, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court of  Anne Arundel  County.

DISPOSITION: Judgment affirmed, with costs to the appellee.

CORE TERMS:  special rate, purchasers, declaration, reasonable time, railroad, subject-matter, commutation, indefinite, farm, round trip, passengers, covenant, language employed, railroad station, transportation, deprivation, inducement, discloses, station, ticket, arrive, duration, removal, canons, large number, regular rate, hereinbefore, cancellation, aggregating, thirty-five

COUNSEL: James M. Munroe (with whom was Robert Moss on the brief), for the appellant.
 
Charles A. Marshall and Robertson Griswold (with whom was Daniel R. Randall on the brief), for the appellee.

JUDGES: The cause was argued before BOYD, C. J., BRISCOE, PATTISON, URNER and STOCKBRIDGE, JJ.

OPINIONBY: PATTISON

OPINION: [*258] [**787] PATTISON, J., delivered the opinion of the Court.

   The appeal in this case is from a judgment of the Circuit Court for Anne Arundel county sustaining the demurrer to the amended declaration filed by the appellant and entering thereon a judgment for costs in favor of the appellee.

   The declaration alleges that on the 7th day of June, 1908, the defendant company sold unto John W. Jarden and Clarence W. Gould a tract of land known as the Yealdhall farm, in Anne Arundel county, at and for the sum of twelve thousand dollars, which has been paid. That in the sale thereof, the defendant represented that "by reason of its proximity to the City of Baltimore and of its situation on the line of its railroad, it would make a most desirable property for suburban homes, and[***2] among the inducements offered by the defendant to the plaintiff to purchase and develop the same for such purpose "was a promise of the defendant to give to said Jarden and Gould a special rate between Baltimore City and the said farm, now called "Woodlawn Heights," for the benefit of all purchasers of lots at "Woodlawn Heights.'" That after the purchase of said land the plaintiffs, at the suggestion and by the inducement of the defendant, expended large sums of money in laying off said property in avenues and streets, blocks and lots, and in surveying, plotting and advertising said property, etc. That the defendant printed upon its official time table a notice of the special rate offered, to wit: "Woodlawn Heights, between Shipley [*259]and Wellham, 15 minutes from Baltimore by the electric short line. Eleven cents round trip by commutation."

   The declaration further alleges that Jarden and Gould in order the more effectually to conduct said business and develop and sell said property, associated with them John T. Moylan and Bruner R. Anderson and caused themselves to be incorporated under the name and style of the Arundel Realty Company, to which corporation the said Jarden[***3] and Gould transferred and assigned "all their rights and interests, as well as all their duties and obligations under their aforesaid agreement and contract with the defendant in reference to the development of said Woodlawn Heights property and the sale of lots there situate, and all their rights to the special rate between Baltimore City and Woodlawn Heights as agreed between the defendant and the said Jarden and Gould as hereinbefore set out," which transfer and assignment so made was with the approval and consent of the defendant company; and that thereafter the company continued "for a long space of time to advertise on its time tables the said special rate from Baltimore City to Woodlawn [**788] Heights and to circulate the same to the public from the ticket offices."

   That under the inducement aforesaid, a large number of said lots had been sold, upon the installment plan, by Jarden and Gould and the appellant company, at prices aggregating thirty-five thousand dollars, which were yielding to the appellant company a large profit, and it was in receipt of a large income from the regular payment of the installments due and payable from time to time by the purchasers of said[***4] lots. That certain purchasers of lots had erected dwellings on them, whereby the unsold property had enhanced in value. Other purchasers of lots were about to erect dwellings on their lots, and other persons were negotiating for the purchase of other lots at a large profit to the plaintiff, and that the business of the plaintiff was successful and prosperous and yielded to it a large revenue and income.

   [*260] That "without the knowledge or consent of the plaintiff and without previous notice to it, the defendant on the 7th of May, 1909, cancelled the said special rate between Baltimore and Woodlawn Heights, and refused to sell any commutation tickets between said points as previously agreed by the defendant, as hereinbefore set out, and refused to sell any round trip tickets between said points, and raised the rate of fare from eleven cents by commutation to twenty-five cents." That although repeatedly called upon to restore said rate, the defendant company has refused to do so, and that by reason of the acts of the defendant above stated and complained of, the business of the plaintiff at Woodlawn Heights has been greatly injured and practically ruined; that sales of lots have[***5] ceased; that the erection of buildings at Woodlawn Heights has ceased, and the property of the plaintiff has been greatly depreciated in value and rendered unsalable.

   The declaration discloses that the property so purchased by Jarden and Gould was granted and conveyed, at the request of the purchasers, by the defendant company to the Arundel Realty Company, no deed ever having been executed to the purchasers, but it is not alleged in the declaration that the said conveyance contained any covenant or promise that the special rate mentioned in the declaration should be given to the grantee. The promise sued on in this case is a mere general verbal promise to give a special rate, without the same being fixed or established, and with no time therein stated for which such rate should be maintained, and it is for a breach of this alleged promise that the plaintiff is seeking to recover. The breach complained of consists in the cancellation of the special rate, "Eleven cents round trip by commutation," fixed and established after the contract of purchase, and the establishing of a rate of twenty-five cents one way, as we understand it, and the defendant's refusal to restore the former rate. [***6]

   We have been referred to no case, nor have we been able to find one, where the contract was for a special rate given [*261] by the railroad company as in this case, but there are a number of decisions, not only of this Court but in other jurisdictions, where the validity of contracts made for the location of public stations along the line of the road has been passed upon.

   In some jurisdictions such contracts have been held to be absolutely illegal. Burney v. Ludeling, 47 La. Ann. 73, 16 So. 507; Fla. Cent. v. State, 31 Fla. 482 (20 L. R. A., 419, 13 So. 103); Greenwood on Public Policy, sec. 149, pages 316-321; while in others the contract is held to have been performed after a reasonable time, when changed conditions warrant a removal or relocation.

   In the case of the Md. and Pa. R. Co. v. Silver, 110 Md. 510, 73 A. 297, this Court said: "It has been held in a number of well reasoned cases that the covenant on the part of the railroad company to erect and maintain a station at a certain place along its line, even if originally valid, is fairly complied with by the erection and maintenance of such a station[***7] for a period of years, and until the exigencies of the business, the convenience of the public, and the welfare of the railroad demands its removal. Whalen v. Baltimore and Ohio Railroad Company, 112 Md. 187, 76 A. 166."

   In the case of Whalen v. Baltimore & Ohio Railroad Co., supra, this Court said: "Considering the language used in the covenant before us, it is to be observed, that while it distinctly provides for the construction and maintenance of the turnout and siding on Mr. Dorsey's land and the stopping of the cars at that point, it is entirely silent as to the duration of the maintenance of these structures or that service. Its meaning in that respect depends upon the context in which it appears and the subject-matter to which it relates. In order to arrive at the real purpose and meaning of parties to a contract the Court, according to the accepted canons of construction, considers the language employed, the subject-matter and the circumstances under which it was made."

   [*262] This action, unlike the cases of the Md. and Pa. R. Co. v. Silver, and Whalen v. Baltimore & Ohio R. R. Co., is not brought upon a covenant [***8]contained in a deed, but it is brought upon an alleged verbal "promise by the defendant to give to the said Jarden and Gould a special rate between Baltimore City and the said farm now called Woodlawn Heights, for the benefit of all purchasers of lots at said Woodlawn Heights."

   If it is to be understood from this promise that the special rate referred to has reference to the charge that was to be made for the transportation of passengers upon the defendant's road between Baltimore City and Woodlawn Heights, although this is not clearly stated, such rate was not fixed and established in and by said promise or agreement, nor does it allege that the said special rate was thereafter to be established by agreement between the purchasers and the defendant company; and the [**789] length of time for which it was to be maintained was not therein stated. The defendant, after the sale of the lands, printed upon its time tables the rate or charge for transporting passengers over its road between the lands so sold and Baltimore City to be eleven cents round trip by commutation. But there is no statement therein that said rate or charge was fixed or established in accordance with or pursuant[***9] to any agreement made by and between the purchasers and the defendant, and so far as the declaration discloses, such rate may have been established without conference with the purchasers, Jarden and Gould.

   It is not contended in this case by the appellant that the special rate was to last for all time, but only for a reasonable time thereafter, and the time it was maintained was not a reasonable time. Thus the injuries complained of exist in the deprivation to the appellant of such special rate between the date of its cancellation and the date when it would have been discontinued had it been maintained for what is regarded by the appellant company a reasonable time.

   [*263] As was said in the case of Whalen v. The Baltimore & Ohio R. R. Co., supra, "In order to arrive at the real purpose and meaning of a contract the Court, according to the accepted canons of construction, considers the language employed and the subject-matter and the circumstances under which it was made." We will thus apply this rule to this case.

   The subject-matter here is the procurement of a special rate over the defendant's road between Baltimore and the property of the appellant company. The alleged[***10] contract made in relation thereto is said by the appellant company to have been made in June, 1908, at the time of the purchase of this land by Jarden and Gould, and continued in operation until May, 1909, in which time, the declaration alleges, the plaintiff had sold a large number of lots, to wit: about four hundred, at prices aggregating thirty-five thousand dollars, and that the business of the plaintiff of developing and selling lots at Woodlawn Heights was successful and prosperous and yielded a large revenue and income to the plaintiff.

   The rate or charge for transportation of passengers is subject to frequent changes and has not that permanency of character that is found in the location of a railroad station, and a reasonable time for which rates, when established, should be maintained under a contract of this character, would naturally be of a shorter duration than that under a contract for the maintenance of a railroad station where no time was mentioned in either. It can not be claimed that a reasonable time would necessarily have extended to a time when the plaintiff had sold all the lots, for to have done this it might have required years. Had they desired that the rate[***11] should have been maintained until all the lots had been sold, they should not have contented themselves with a contract so general and indefinite as the one in this case, but by adequate and proper language should have provided for the maintenance of such rate until all the property was sold. [*264] Texas and Pacific R. R. Co. v. Marshall, 136 U.S. 393, 34 L. Ed. 385, 10 S. Ct. 846; Whalen v. Baltimore & Ohio R. R. Co., supra. Even then the deprivation of such special rate would have been felt by the owners of the individual lots, for whose benefit it is said this contract was made, and such deprivation would have been felt by them for all times.

   This alleged contract is, indeed, a very general and indefinite one. The assignors of the appellant company accepted it so general in its character as to provide only for a special rate. Such rate was not then fixed and established, and was not fixed and established until after the sale of the land was made, and then, so far as the declaration discloses, was made by the defendant company, possibly without conference with the plaintiff. Any special rate, not confined to the one named in the declaration, however[***12] slight may have been the difference between such special rate and the regular rate, would have been a literal compliance with the contract made, and in fact, it is not disclosed by the declaration that the rate now established is not a special rate, that is, less than the regular rate.

   The defendant company has raised the questions: First, as to the sufficiency of the consideration for the promise as alleged in the declaration; and, secondly, that the rights acquired by the original purchasers, Jarden and Gould, from the defendant company, by reason of the alleged promise, were not assignable. We have not, nor will we, pass upon these questions, as it is not necessary in the determination of this case.

   In view of the general and indefinite character of the promise or agreement sued on, and the absence therein of any stipulation as to the time that the special rate was to be maintained, and also in view of the time for which such special rate was maintained, we are of the opinion that there was no error in the action of the learned judge below in [*265] sustaining the demurrer, and we will affirm the judgment appealed from.

   Judgment affirmed, with costs to the appellee.[***13] 

CHARLES CARROLL MARDEN vs. THEODORE LEIMBACH AND WIFE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
115 Md. 206; 80 A. 958; 1911 Md. LEXIS 141

 February  23, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.)

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  deed, power of disposition, fee simple, habendum, life estate, remainder, conveyed, prevail, natural life, life tenant, nominal consideration, inconsistency, conveyance, reconveyed, reversion, lifetime, annexed, dispose, convey, invest, enlarge, specific performance, expressly reserved, fee simple estate, power to dispose, granting clause, habendum clause, entire estate, third party, proper use

COUNSEL: Andrew A. Savin submitted a brief, for the appellant.
 
Albert C. Donaldson (with whom was E. J. Revell, on the brief), for the appellees.

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

OPINIONBY: URNER

OPINION: [*207] [**958] URNER, J., delivered the opinion of the Court.

   In this suit for the specific performance of an agreement for the sale of land the appellant, who was the purchaser, objects to the title offered upon the ground that it is not good and marketable. It appears from the record that the property contracted to be sold is a lot of ground containing six acres situated on the Severn river and known as "Cypress Point". This was originally part of a larger tract devised, under the designation of "Piney Grove Farm", to Charles J. Stewart by the will of his mother, Virginia Levier, probated in 1885, and conveyed by the devisee to Theodore Leimbach, the vendor and appellee in this case, and to Juliane Leimbach, his wife, as tenants by entireties. On December 17, 1902, the grantees just named joined in a deed of the property[***2] to William Harrison in trust for the benefit of Theodore Leimbach for life with power to the life tenant "to sell, grant, convey, assign and dispose of said ground and premises absolutely," and with remainder as to the property not [*208]disposed of under the power to such person as the beneficiary for life might appoint by will, or, in default of such appointment, to such person as would be entitled to his lands under the laws of this State. Juliane Leimbach died about February 1st, 1907, and her surviving husband on March 20th following exercised the power of disposition reserved in the last-mentioned deed, by conveying all of the land it embraced to Mary K. McCormick, an unmarried woman, in fee simple. The deed by which this conveyance was accomplished expressed a consideration of five dollars and referred specifically to the power under which it was executed. The grantee immediately, by a deed of the same date and reciting the same nominal consideration, reconveyed the property to "Theodore Leimbach for and during his natural life and after his death unto William E. Leimbach and George Leimbach, trustees as hereinafter mentioned," * * * "To have and to hold" * * * "unto and[***3] to the proper use and benefit of the said Theodore Leimbach, for and during his natural life and no longer, reserving, however, unto the said Theodore Leimbach the right during his life to sell, grant, convey, assign and dispose of the said ground and premises or any part thereof absolutely * * * and from and immediately after the decease of the said Leimbach, then unto William E. Leimbach and George Leimbach, trustees, who shall so soon after the decease of the said Leimbach [**959] as may be practicable sell" the land conveyed and distribute the proceeds among the children of the life tenant in the manner prescribed in the deed.

   On August 14, 1909, Theodore Leimbach, by a deed in which his second wife, Catharine, joined and which made no reference to the power reserved in the last-mentioned deed, conveyed the real estate it described to John Aul absolutely for a recited consideration of five dollars, and received from him an immediate reconveyance in fee simple upon the same expressed consideration. Subsequently, Mr. Leimbach entered into the contract of sale which is sought to be enforced in this suit.

   [*209] There are two objections raised by the appellant against the [***4]title. The first is that in the deed from Mary K. McCormick to the appellee the granting clause created only a life estate in his favor, with remainder to the trustees named, and that this is in conflict with, and must prevail over the habendum clause, which, by conferring an absolute power of disposition upon the life tenant, would, if operative, have the effect of enlarging his interest to a fee simple estate. The second objection is that if the appellee is regarded as having acquired under the McCormick deed a life estate coupled with the power to dispose of the property absolutely in his lifetime, then his deed to Aul and the simultaneous reconveyance to himself were not sufficient to invest him with a fee simple title because these transfers made no reference to the power which they are claimed to have exercised.

   The latter objection would have to be held untenable upon the principle applied in Farlow v. Farlow, 83 Md. 118, 34 A. 837, and Ridgely v. Cross, 83 Md. 161, 34 A. 469, it being apparent from the conveyance of the property "absolutely" that the power was intended to be exercised, and that except for such exercise[***5] the deed would be inoperative to effect its expressed purpose. It is unnecessary, however, to discuss this point because of the fact, as shown by the record, that the appellant was tendered a deed in due form, executed by the appellee and his wife, referring particularly to the powers of disposition conferred upon the appellee in both the Harrison and McCormick conveyances. Any possible objection as to the execution of the power is thus removed.

   The other criticism of the title proceeds upon the theory that the power of disposition must be considered a part of the habendum clause in the McCormick deed, and that it enlarges the life interest granted in the premises of the deed to a fee simple estate. It is, of course, elementary that where there is a conflict between the granting and habendum clauses, the former will prevail. Link v. MacNabb, 111 Md. 641, 74 A. 825; Pritchett v. Jackson, 103 Md. 696; Marshall v. Safe Deposit Company, 101 Md. 1, 60 A. 476; Winter v. Gorsuch, 51 Md. 180; Zittle v. [*210] Weller, 63 Md. 190; Hopper v. Smyser, 90 Md. 363, 45 A. 206.[***6] A familiar illustration of such a repugnancy is where the granting clause is in fee and the habendum is only for life. Winter v. Gorsuch, supra. But there is no such conflict unless the habendum divests the estate granted and substitutes another. Hopper v. Smyser, supra.

   In the deed under consideration there is no inconsistency between the clauses in question as to the estate intended to be conveyed to the appellee. Each distinctly defines it to be an estate for life. The power of disposition annexed to it by the later provision does not enlarge it to a fee. It is "a well settled doctrine of law, sustained by all the authorities, that where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate," but "where the property is given expressly for life and a power of disposition of the reversion is annexed, the rule is different, and the first taker has but an estate for life with the superadded power." Welsh v. Gist, 101 Md. 606, 61 A. 665; Benesch v. Clark, 49 Md. 497; Roberts v. Roberts, 102 Md. 131, 62 A. 161.[***7]

   So far as the remainder in trust is concerned, it is granted in the premises of the deed to "trustees as hereinafter mentioned," and the separate clause defining the trust intended to be created is subsequent and subordinate to the provision vesting in the life tenant a power of disposition. To the extent of any inconsistency between the power and the trust, the former, as the earlier expression in the deed, must control. Zittle v. Weller; Winter v. Gorsuch, supra.

   It is a cardinal rule in the construction of deeds that "the intention of the parties, to be ascertained from the whole contents of the instrument, must prevail unless it violates some principle of law." Link v. McNabb, supra; Second Universalist Society v. Dugan, 65 Md. 460, 5 A. 415; Zittle v. Weller; Ridgely v. Cross, supra.

   In the present case it is perfectly clear that the purpose of the deeds of March 20th, 1907, by which the appellee, being seized of a fee simple title to the land, conveyed it to a third party for a nominal consideration and had it immediately [*211] reconveyed to himself upon the terms indicated, was to invest himself[***8] with a life estate and to create a trust as to the remainder subject to his power, expressly reserved, to dispose of the property in his lifetime. It is the [**960] duty of the Court to gratify this manifest intention as we find no rule of law to which it is opposed.

   Our conclusion, therefore, is that the title involved in this suit is free from the objections urged against its validity; and the decree of the Court below requiring the specific performance of the agreement of sale will be accordingly affirmed.

   Decree affirmed, with costs. 

WM. F. LEITCH ET AL. vs. THOMAS LEITCH ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
114 Md. 336; 79 A. 600; 1911 Md. LEXIS 15

 January  12, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Order affirmed and bill dismissed with costs.

CORE TERMS:  devise, codicil, attesting witness, attesting witnesses, competent witness, devisee, orphans', regulation, testament, testator, legacy, common law, incompetency, real estate, subscribing, credible, account of interest, express terms, null and void, utterly void, beneficiary, attestation, subscribed, executor, guardian, attested, utterly, heirs, competent to testify, incompetent witness

COUNSEL: Robert Moss, for the appellants.
 
James W. Owens and James M. Munroe, for the appellee.

JUDGES: The cause was argued before BOYD, C. J. BRISCOE, PEARCE, SCHMUCKER, BURKE, PATTISON and URNER, JJ.

OPINIONBY: BRISCOE

OPINION: [*337] [**600] BRISCOE, J., delivered the opinion of the Court. 

   The record in this case shows that Franklin Leitch of Anne Arundel County, died in the month of August, in the year 1909, leaving a last will and testament, which was on the 10th day of May, 1910, duly admitted to probate by the Orphans' Court of Anne Arundel County.

   The testator never married, and left surviving him, as his heirs at law, three brothers, one sister, and several nephews and nieces, the children of a deceased brother.

   By his will, he devised to his brother, Thomas Leitch, "the property known as 'Tracey's Farm,' consisting of a store, stock of goods and dwellings." To his brother, Manton Leitch "the property known as Town Point, consisting of house, store and stock of goods." To his sister, Mrs. Cunningham, his brother Wm. F. Leitch, and the heirs of his brother Columbus[***2] C. Leitch, he gave his "bank accounts" and "a balance of claim of Sam'l Leitch" to be equally divided between them.

   Thomas Leitch, a brother, and Annie E. Leitch, are the two subscribing witnesses to the will, and it was upon their evidence, under oath, that the Orphans' Court of Anne Arundel County admitted the will to probate and decreed it to be the genuine last will and testament of Franklin Leitch, deceased.

   The question for our determination on the record, is the validity or invalidity of the first clause of the will, which devised to Thomas Leitch the farm known and called "Tracey's farm," containing sixty-four acres of land more or less and improved by a store and dwellings.

   This question is raised by a demurrer to a bill in equity, for a sale of this tract of land for purposes of partition, among the heirs at law, of the testator, and the bill avers, that Thomas Leitch, one of the devisees, being a witness to the will, the attempted devise to him of the real estate in question is absolutely null and void. In other words, it is [*338] urged upon the part of the appellants, that because Thomas Leitch is an attesting witness and a beneficiary under [**601] the will, [***3] he can take no interest to the land under it by virtue of the Statute of 25 George II, Chapter 2, which is claimed to be in force in this State.

   There can be no question that if this statute (25 George II) is in force here, that the devise in question would "be utterly null and void" because the statute so declares in express terms. It provides, that if any person shall attest the execution of any will or codicil which shall be made after the 24th day of June, in the year 1752, to whom any beneficial devise, legacy, estate, interest * * * or affecting any real or personal estate other than and except charges on lands, tenements or hereditaments for payment of any debt or debts, shall be thereby given or made, such devise, legacy, estate * * * shall so far only as concerns such person attesting the execution of such will or codicil or any person claiming under him, be utterly null and void; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said Act, notwithstanding such devise, legacy, estate, interest, gift, mentioned in such will or codicil." Alexander British Statutes, 781.

   A legacy to a subscribing witness[***4] to a will or codicil of personalty is held to be good because a will of personalty did not require witnesses at that date. Emanuel v. Constable, 3 Russ. 436; Foster v. Banbury, 3 Sim. 40.

   This statute was passed in 1752, but according to its provisions, did not go into effect, in any of "the Colonies or Plantations, in America," or apply to wills made before the first day of March, 1753. The title of the Act, is, "An Act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates in that part of Great Britain called England and in his Majestys Colonies and Plantations in America."

   No doubt can, then, be entertained, that this was the law of Maryland until the year 1798, when the General Assembly [*339] of Maryland, by Chapter 101 of the Acts of 1798, adopted and passed an entirely new system of laws and regulations concerning last wills and testaments, in lieu of and as a substitute for the existing laws and English statutes then in force, relating to wills.

   This Act (Cap. 101, 1798), is in part, as follows: "An Act for amending and reducing into system the[***5] laws and regulations concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons.

   "Whereas the laws and regulations relative to the estates of deceased persons, comprehending a great variety of subjects, and interesting to citizens of every description not only have become complicated and difficult to be understood but are found by experience to be greatly inadequate to the purposes for which they were framed.

   "Sec. 2. Be it enacted by the General Assembly of Maryland, that every provision, rule, or regulation, contained in any Act of Assembly heretofore passed or in any English statute, introduced, used or practised under in this State, which is inconsistent with or repugnant to anything contained in this Act be and it is hereby repealed and rendered utterly void and of no effect.

   "Sec. 3. And be it enacted, that the following rules, orders and regulations, shall be taken, held and considered, in all Courts, tribunals and offices, and by all Judges, Justices and Officers in this State to be the law of the land.

   "Sec. 4. All devises and bequests of any lands or tenements, devisable [***6]by law, shall be in writing, and signed by the party so devising the same or by some other person in his presence, and by his express direction and shall be attested and subscribed in the presence of the said divisor by three or four credible witnesses or else they shall be utterly void and of no effect."

   Now it appears, by section 309, of Article 93, of the Code of 1860, title testamentary law that every last will and [*340] testament executed in due form of law after the 1st day of June, 1850, should pass all the real estate which the testator had at the time of his death and this section is now section 329 of Article 93 of the Code of 1904.

   Sec. 4 (supra) of the Acts of 1798, will be found in totidem verbis in the Codes of 1860, 1878, 1888, and is now codified as section 317 of Article 93 of the Code of 1904, and provides, that all devises of lands, etc., shall be attested and subscribed in the presence of the devisor by two or more credible witnesses or else they shall be utterly void and of none effect, the only change being in the number of witnesses and its application to both real and personal property. The Codes of 1860 and 1888 were adopted in lieu of and as[***7] a substitute for all the Public General Laws then in force in the State.

   The legal requirements for a valid will to pass real estate in Maryland and the restrictions thereon, now in force, are clearly set out in Article 93, sections 314 to 329 of the Code of Public General Laws (1904) and need not be referred to here, except to say, that there is nothing in any of their requirements, formalities or restrictions to the effect, that an attesting witness cannot be a beneficiary under a will. If the Legislature of Maryland had intended at anytime to have imposed this restriction upon devises to attesting witnesses, it would have so provided in express terms or specially declared by the Act of 1798, Chapter 101, that this restriction should continue to be in force and effect, in this State, as provided by 25 George II, Ch. 6.

   But apart from this, we think, the Act of 1864, Chapter 109, commonly called the Evidence [**602] Act, is a complete answer to the appellant's contention, in this case, because, under this Act a party who takes an interest under a will is clearly competent to prove it.

   In Estep v. Morris, 38 Md. 417, it was said: "But most of the disabilities [***8]imposed by the common law, have been removed by the Act of 1864, Chapter 109, and especially has [*341] incompetency on account of interest been swept away. Unless that Act excepts from its operation witnesses to wills, we think it clear that parties who take an interest under a will are competent witnesses to prove it. That Act provides, that "No person offered as a witness, shall hereafter be excluded by reason of incapacity from crime, or interest, from giving evidence, either in person or by deposition, according to the practice of the Courts, in the trial of any issue joined or hereafter to be joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any Court, or before any judge, jury, justice of the peace, or other person, having by law or by consent of parties, authority to hear, receive and examine evidence; but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offering as[***9] a witness," etc. The Court, further said, in dealing with this question, the only objection urged to the validity of this will, is that Morris was an incompetent witness, he having been named by the will executor and guardian. Persons offering as witnesses in such a "proceeding" or "inquiry" are by the very terms of the Act made competent, notwithstanding they may be interested in establishing the will. Parties having an interest may also, by the express terms of the Act of 1864, testify "on the trial of any issue." If competent to testify on the trial of such issues in the Court, can it be consistently held that they are incompetent to testify in the Orphans' Court, or that they were not competent subscribing witnesses to the will at the time of its execution? We think it clear, that at common law, there could be no incompetency of subscribing witnesses to wills at the time of attestation on account of interest in or under the will, but that persons who took an interest under the will, were incompetent to prove the will after the death of [*342] the testator, solely because they were interested in establishing the will, at the time they offered to testify, and that all incompetency [***10]  by reason of such interest, has been removed by the Act of 1864, Ch. 109.

   It was also urged in that case, that no persons, except those who are disinterested should be permitted to be subscribing witnesses to wills, and this was answered by the statement, that neither LORD MANSFIELD nor JUDGE CHASE supposed that much danger from imposition or fraud, could result from permitting legatees to be attesting witnesses. But be this as it may, we have no power to alter or modify the law, our sole duty being to administer it as we find it upon the statute.

   In Harris v. Pue, 39 Md. 535, it was also held, that under the Act of 1864, Ch. 109, a beneficiary under a will is a legal and competent witness to sustain it, as decided in Estep v. Morris, supra, and that the latter decision was the necessary result of the broad and comprehensive terms of the Act of 1864, Ch. 109.

   In Hammett v. Shanks, 41 Md. 201, this Court, fully approved the decision in Estep v. Morris, and Harris v. Pue, supra, and held, that under the Acts of 1864, and 1868, a party who takes an interest under a will, has been made a legal and[***11] competent witness to prove it.

   Mr. Hinkley, in his excellent work on Testamentary Law, treats the case of Estep v. Morris, supra, as controlling upon this question, in this State. He says, in section 71 of Chapter 5, page 42, one who is the executor of a will, and also guardian thereunder of the infant devisee is competent to attest the will and to prove it, in the Orphans' Court, his incompetency at common law, to prove the will by reason of his interest therein having been removed by the Act of 1864, Chapter 109. By the Act of 1864, Chapter 109, a party who takes an interest under a will is a competent witness to prove it. And in Higgins v. Carlton, 28 Md. 115, it was [*343] held, that credible as used in the statute means competent to testify at the ime of attestation.

   In A. & E. Ency. of Law, 2nd ed., Vol. 18, page 739, it is said, in some States legislation has rendered devisees and legatees competent witnesses and gifts to them as valid, and states, this appears to be the rule in Maryland.

   In 29 A. & E. Ency. of Law, 1st ed., pages 233 and 234, it is said: In many of the States the common law disqualification of witnesses[***12] generally on the ground of interest has been removed, but by express exclusion of statute the law as regards attesting witnesses is allowed to remain unchanged. But by statute in Maryland a person interested, is not an incompetent witness to a will.

   The case of Elliott v. Brent, 6th Mackey, 103, relied upon by the appellant, cannot be regarded as controlling, in the light of our own decisions to the contrary upon the construction of our Maryland statutes. That case was decided by the Supreme Court of the District of Columbia, in passing upon the effect of one of the Revised Statutes of the District of Columbia upon the provisions of the Statute of 25 George II, and has no relation to the construction of our own statutes.

   We hold, then, under our Maryland law and the settled practice in this State, that a beneficial devisee is a competent witness to [**603] prove a will under which he takes an interest, and that a devise of real estate, such as was made in this case, to an attesting witness, is valid and operative. That the clause in the Statute of 25 George II, Ch. 6, in so far as it invalidates devises and legacies to attesting witnesses to wills of realty, and declares [***13]they shall be utterly null and void, is not in force in this State, because it has been annulled and superseded by the Act of 1798, Ch. 101, and by the Act of 1864, Ch. 109, both of which Acts have been adopted and codified as part of the Code of Public General Laws of the State, as Article 93, section 314, title "Wills," [*344] and Article 35, section 1, title "Competency of Witnesses." Erb v. Grimes, 94 Md. 92, 50 A. 397; Montel v. Con. Coal Co., 39 Md. 164; State v. Falkenham, 73 Md. 463, 21 A. 370; Alexander v. Mayor & C. C., 53 Md. 100; State v. Northern C. R. R., 44 Md. 131; State v. Yewell, 63 Md. 120.

    The devise to Thomas Leitch, in this case, being valid, the defendants' demurrer to the plaintiffs' bill was properly sustained and the bill must be dismissed.

   Order affirmed and bill dismissed with costs. 

WILLIAM A. ZELL vs. RYLAND R. DUNAWAY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
115 Md. 1; 80 A. 215; 1911 Md. LEXIS 115

 January  11, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).
 
The prayers referred to in the opinion of the Court are as follows:
 
Plaintiff's 2d Prayer.--If the jury find from the evidence that the defendant assaulted and beat the plaintiff on or about the 25th day of August, 1909, then their verdict must be for the plaintiff, unless the jury further find that the plaintiff first assaulted the defendant or that the defendant in assaulting the plaintiff was acting in self defense, that is to say, that the circumstances under which the defendant assaulted the plaintiff were such as would have induced a reasonable man of average prudence to make a prior assault in order to protect himself. (Granted.)
 
Plaintiff's 4th Prayer.--The Court instructs the jury that if they find from all the evidence in this cause that the defendant struck and beat the plaintiff as alleged in the plaintiff's declaration then in estimating the damages they are to consider his health and condition before the injuries complained of as compared with his present condition in consequence of said injuries and whether they are in their nature permanent and also the physical and mental suffering [***2]to which he has been subjected, by reason of said injuries and they may also consider the condition in life and the pecuniary circumstances of the defendant and allow the plaintiff such damages as in the opinion of the jury will be a fair and just compensation for the injuries which he has sustained. (Granted.)
 
Plaintiff's 5th Prayer.--That if the jury believe from the evidence in the cause that the plaintiff was injured by the defendant as alleged by the plaintiff and that the assault and battery was wanton, unprovoked and excessive in its nature then they can inflict vindictive and punitive damages upon the plaintiff *. (Granted.)

* Should read defendant--REP.

  
Defendant's 2d Prayer.--If the jury believe from the evidence in the case that the plaintiff was struck and injured by the defendant, and do believe that the defendant when he struck the plaintiff was acting for the protection of his own body then their verdict must be for the defendant provided they find that the injury to the plaintiff was not done by the use of unnecessary force and violence. (Refused.)

DISPOSITION: Judgment affirmed, with costs to the appellee.

CORE TERMS:  prayer, self-defense, assault, jury find, struck, legal sufficiency, special exception, assaulted, assault and battery, evidence to support, order to protect, reasonable man, prior assault, practically, distinctly, prudence, induced, reasonable person, unnecessary force, estimating, prejudiced, vindictive, pecuniary, entertain, violence, battery, blow, beat

COUNSEL: A. T. Brady and Jerry L. Smith, for appellant. [***3]
 
Joshua Horner, Jr., and Robert H. Stevenson, for appellee.

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

OPINIONBY: BRISCOE

OPINION: [*4] [**216] BRISCOE, J., delivered the opinion of the Court.

   This is an action for assault and battery brought by the plaintiff against the defendant, on the 15th day of September, 1909, in the Circuit Court for Anne Arundel County. The trial of the case, resulted in a verdict and judgment, in favor of the plaintiff for the sum of $800.00 and the defendant has appealed.

   The record contains a single bill of exception, reserved at the trial of the case, and that is, to the action of the Court, in granting the plaintiff's second, fourth and fifth prayers and in rejecting the defendant's second prayer. 

   The plaintiff's first and third prayers were rejected and the defendant's first prayer was conceded. The Court Reporter will set out the controverted prayers, in his report of this case, that is, the plaintiff's second, fourth and fifth prayers, and the defendant's second prayer.

   The sole question then presented for our consideration, on the record in this case, is the ruling of the[***4] Court, upon the prayers embraced in the defendant's exception.

   As to the propositions of law, contained in the plaintiff's fourth and fifth prayers little need be said. Similar prayers were approved by this Court in Sloan v. Edwards, 61 Md. 89, and subsequently sanctioned by us in the more recent case of Stockham v. Malcolm, 111 Md. 615, 74 A. 569. They were practically damage prayers and contained the legal propositions properly applicable to the facts of the case, in estimating the damages to be awarded, if the jury should find their verdict for the plaintiff.

   It is, however, insisted upon the part of the appellant, that the evidence was insufficient to support the prayers, as granted, and it was error to grant an instruction upon any proposition of law, when there is no proof to sustain it. It appears, however, there were no special exceptions to these prayers in the Court below for the insufficiency of evidence to support them, and it is well settled, that this Court is precluded by Article 5, section 9 of the Code, Public General Laws (Rule 4 of this Court) from examining the legal sufficiency [*5] of the evidence to support a granted[***5] prayer, unless it appear that such question was distinctly made to and decided by the Court below. The objection and the ruling thereon must appear in the record by a special exception, properly signed by the Court. Albert v. State, 66 Md. 325, 7 A. 697; Gambrill v. Schooley, 89 Md. 546, 43 A. 918.

   In Gunther v. Dranbauer, 86 Md. 1, 38 A. 33, it was distinctly said: "No exception, having been taken in the Court below to the granting of the first instruction on the ground there was no evidence to support the facts alleged to be assumed by it, we are not at liberty to consider such an objection made for the first time in this Court." In the case of Annapolis Gas. Co. v. Fredericks, 112 Md. 449, 77 A. 53, relied upon by the appellant, there was a special exception to the prayer for the want of evidence to sustain it, and in the absence of such evidence the Court held the special exception to the prayer should have been sustained and the prayer refused.

   The correctness of the legal propositions contained in these two prayers, we think, are free from criticism, and as the legal sufficiency of the evidence, [***6]upon which they rest, is not before us for review we express no opinion upon it.

   The plaintiff's second prayer is in these words: "If the jury find from the evidence that the defendant assaulted and beat the plaintiff on or about the 25th day of August, 1909, then their verdict must be for the plaintiff, unless the jury further find that the plaintiff first assaulted the defendant or that the defendant in assaulting the plaintiff was acting in self-defense, that is to say that the circumstances under which the defendant assaulted the plaintiff was such as would have induced a reasonable man of average prudence to make a prior assault in order to protect himself."

   This instruction, as granted by the Court, in connection with the defendant's first prayer, which was conceded and which presented the defendant's theory of the assault, we think, fairly instructed the jury as to the law upon the case. We find no such inconsistent ruling or conflict, between the plaintiff's second prayer and the defendant's conceded prayer [*6] as would justify a reversal of the judgment. The defendant's first prayer (the conceded prayer) in effect, instructed the jury that if they found from the evidence[***7] that the defendant struck the plaintiff and they further find that the defendant had reason to believe and did believe at the time he struck him, that the plaintiff was about to deal him a blow then their verdict must be for the [**217] defendant provided the jury find that the injury done the plaintiff was not done by the use of unnecessary force and violence. While the concession of this prayer made the legal proposition which it contained the law of the case, and the insertion in the second prayer on the part of the plaintiff in defining self-defense, "that the circumstances under which the defendant assaulted the plaintiff was such as would have induced a reasonable man of average prudence to make a prior assault in order to protect himself," was not so inconsistent or in conflict with the conceded prayer, as to have misled or confused the jury or to have prejudiced and injured the defendant's case.

   The defendant's belief, that the plaintiff intended to do him a bodily injury to justify a plea of self-defense, must have been such as a reasonable person would entertain under like circumstances, and whether his belief was a reasonable one under the circumstances was clearly[***8] a question for the jury. Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284; Morris v. Platt, 32 Conn. 75; Hulse v. Tollman, 49 Ill. App. 490; 3 Cyc. 1074; R'y. Co. v. Jopes, 142 U.S. 18; Sloan v. Edwards, 61 Md. 89 at 104; Stockham v. Malcolm, 111 Md. 615 at 621. 

   We find no error in the rejection of the defendant's second prayer, as it was practically identical in effect, as the defendant's first prayer. We do not understand it to be seriously urged that the defendant's case was in any way injured or prejudiced by the rejection of this prayer.

   We shall not stop to consider the proof on which the rulings of the Court, on the prayers in this case rest. It is proper, however, to say, that it shows beyond dispute, that a violent assault was committed by the defendant upon the plaintiff and that he was compelled to seek both medical and [*7] hospital treatment from the effects of the injury. The defendant's plea of necessary self-defense, or an assault justified, was fully and fairly submitted to the jury by the prayers we have passed upon.

   There can be[***9] no serious difficulty as to the legal principles applicable to a case like this, and as we fail to find any reversible error, in the rulings of the Court, the judgment will be affirmed.

   Judgment affirmed, with costs to the appellee. 

FRANK M. DUVALL vs. THE MARYLAND ELECTRIC RAILWAYS CO. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
114 Md. 298; 79 A. 192; 1911 Md. LEXIS 3

 January  10, 1911, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.

DISPOSITION: Appeal dismissed with costs.

CORE TERMS:  transmission, clerk, bills of exception, typewritten, omission, prescribed time, deputy clerk, stenographer, neglect, transmitting, transmitted, preparing, asserting, signing, elapsed

COUNSEL: Robert Moss (with whom was James M. Munroe on the brief), for the appellant.
 
J. Wirt Randall, for the appellee.

JUDGES: The cause was argued before BOYD, C. J., PEARCE, SCHMUCKER, PATTISON and URNER, JJ.

OPINIONBY: SCHMUCKER

OPINION: [*299] [**192] SCHMUCKER, J., delivered the opinion of the Court.

   The appeal before us was taken from a judgment in assumpsit against the appellant, as defendant below, in the Circuit Court for Anne Arundel County.

   The final judgment in the Circuit Court was entered on August 19th, 1909, and the appeal therefrom was taken on October the 6th, 1909. After several extensions of the time for signing the bills of exception, made upon the application of the appellant, they were signed and filed on February 3rd, 1910, which was within the limit of the last order of extension. The transcript of the record was not transmitted to this Court until April 16th, 1910.

   A motion has been filed in this Court by the appellee to dismiss the appeal because the transcript of the record was not sent here within the time required by law. In support of the motion there was filed an affidavit[***2] of William N. Woodward the deputy clerk of the Circuit Court for Anne Arundel [**193]County which states:

   (1) That he as such deputy has charge of the dockets of said Court and of the filing of papers in cases thereon and [*300] of making out the transcripts of records for the Court of Appeals.

   (2) That in the present case the bills of exception were filed on the 3rd of February, 1910, and that within a few days thereafter the record in the case was ready for transmission to the Court of Appeals, but its transmission was delayed until the 15th day of April, 1910, because the costs of the record were not paid in the clerk's office of the Court below until the last named day.

   (3) That the delay in the transmission of the record to this Court was not occasioned by the neglect, omission or inability of the clerk or any one connected with his office or of the appellee.

   The appellant filed an answer to the motion to dismiss, in which he averred that the delay in preparing the bills of exception was largely due to the fact that the appellee's counsel retained in his possession a typewritten copy of the testimony, made from notes taken by a stenographer during the trial, for [***3]so long time that it did not come into the possession of the appellant's counsel until January 14th, 1910.

   The answer was accompanied by an affidavit in rather general terms from the stenographer, who made the copy of the testimony, touching its retention by the appellee's counsel, and also one from the deputy clerk Woodward, which did not materially vary the statements made in his previous one. The appellee's counsel filed in reply an affidavit contradicting some of the more important statements of the one made by the stenographer and asserting that the typewritten copy of the testimony had been made for the appellee at its own expense and was its private property.

   We deem it unnecessary to discuss the three last mentioned affidavits because the appellant's answer itself shows him to have been guilty of such laches in transmitting the record to this Court as to require the dismissal of the appeal. 

   [*301] In all appeals to this Court the appellant is responsible for having a transcript of the record duly prepared and transmitted here within the prescribed time. That time under our rules, in appeals from Courts of Law, is within three months from the time of the appeal taken. [***4] Rule No. 16 affords the appellant relief from the consequences of delays for which he is not responsible by providing that no appeal shall be dismissed for failure to transmit the transcript within the prescribed time upon his making it appear to this Court that the delay was caused by the neglect, omission or inability of the clerk or appellee, but such neglect, omission or inability will not be presumed. When the Court below has by granting extensions of the time for signing the bills of exception rendered it impossible to have the transcript prepared within the prescribed three months we have allowed such further reasonable time for its transmission as in our judgment was proper.

   In the present case more than six months elapsed between the taking of the appeal and the transmission of the transcript. The appellant attempts to account for this delay by asserting that the appellee's counsel retained for a long time in his possession a typewritten copy of the evidence in the case which was requisite for the preparation of the bills of exception. Assuming that the appellant was entitled to the possession and use of that copy of the evidence, his deprivation of it for a time affords[***5] no sufficient excuse for his great delay in transmitting the record. He asserts in his answer that he got possession of the copy on January 14th, 1910, which was more than three months before the transcript of the record was sent to this Court. The affidavit of the deputy clerk completely negatives the theory that any portion of the delay is chargeable to the clerk or his subordinates.

   Under these circumstances we feel that it is our plain duty to dismiss the appeal.

   Appeal dismissed with costs. 

WARGARET W. SCHAPIRO ET AL. vs. ELIZABETH W. HOWARD ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
113 Md. 360; 78 A. 58; 1910 Md. LEXIS 79

 June  23, 1910, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Decree reversed in No. 42 and affirmed in 43. The costs above and below to be allowed out of the trust estate.

CORE TERMS:  testator, heirs, remainder, deed, devise, vest, contingency, died, second marriage, deed of trust, contingent, bequeath, next of kin, vested, life tenant, sister, answering, vesting, executor, bequeathed, devised, natural life, conveyance, hindrance, decree, widow, dying, prayer, life estate, testament

COUNSEL: D. K. Este Fisher, for Margaret W. Schapiro, appellant.
 
Charles McH. Howard, for the Safe Deposit and Trust Co., Trustee, appellant.
 
John B. Deming (with whom were Whitelock & Kemp on the brief), for the appellee. 

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

OPINIONBY: PEARCE

OPINION: [*362] [**59] PEARCE, J., delivered the opinion of the Court.

   The two appeals embraced in this record are from a decree of the Circuit Court for Anne Arundel County in Equity, construing the will of John J. Hopkins, deceased, who was a resident of that county at the time of his death.

   The questions presented arise upon a petition filed in a case in said Court, of Mary M. Harding v. Elizabeth W. Howard et al., by the Safe Deposit and Trust Company of Baltimore as trustee under the will of said John J. Hopkins, and also as trustee under the will of Lavinia Hopkins, and as trustee under two deeds, one from Margaret W. Schapiro, and one from Samuel H. Mercer. [***2] By the decree passed March 10th, 1896, in the original cause above mentioned, the Safe Deposit and Trust Company of Baltimore was appointed trustee to receive from Lewis N. Hopkins, executor of said John J. Hopkins an invested fund of about $9,000 to hold the same for the use of Elizabeth W. Howard, the widow of John J. Hopkins, for her life, and for distribution after her death to those held to be entitled under his will, and since the passage of said decree the said trust has been administered in that Court.

   The will of John J. Hopkins is as follows being transcribed in full:

   "The last will and testament of me, John J. Hopkins, of Anne Arundel County, in the State of Maryland:

   First: I will and direct that all my just debts be paid and satisfied by my executor hereinafter named after my decease.

   Second: I will and bequeath unto Louis Hopkins, of Baltimore City, the sum of three thousand dollars, to be invested by him in such stocks or securities as in his discretion shall be most profitable, in trust, for the use and benefit of my wife's sister, Mrs. Margaret E. Warfield, wife of Lot Warfield. The issues and profits thereof to be paid to the said Margaret E. Warfield during[***3] her natural life, and after her death to be [*363] applied to the use and benefit of her children now living, John B. Warfield and Clarence Warfield, and any other children she may have born to her in wedlock, and upon the arrival at age of each of said children above named, I will and bequeath their share, respectively, of the sum of three thousand dollars, to be paid to them by my said trustee, with the right of survivorship in the event of either of them dying during their minority. And in the event of each and all of the children of said Margaret E. Warfield dying before their arrival at age, I bequeath the said sum to my heirs at law.

   Third: I will and bequeath to my nephew, John B. Warfield, my watch and chain that I now wear.

   Fourth: I will and direct that my executor hereinafter named, as soon after my decease as to him may seem practicable, sell all my real estate lying near Millersville, in Anne Arundel County, being the farm whereon I now reside, as also all other estate on said farm, and invest the proceeds thereof in such securities as to him may seem most judicious, in the name of my wife, Elizabeth W. Hopkins, to be held by her, my said wife, Elizabeth, during[***4] her natural life, without impeachment of waste, or let or hindrance, from any person whomsoever, during her natural life, with power to sell and reinvest the same as she may think advisable. And I further will and devise unto the said Elizabeth W. Hopkins all other estate, real, personal and mixed, that I may die possessed of or entitled to by devise or inheritance, or [**60] in any manner whatever the same may be obtained, to be held by her, my said wife, Elizabeth W. Hopkins, during her natural life, she to have sole control of my said estate without let or hindrance from any person or persons whomsoever; and in the event of my said wife having any child or children at the time of her death, I will and devise the whole of said estate to said child or children, equally to be divided if more than one. But in the event of my said wife dying without issue living, then and in that case I devise and bequeath all said estate to my heirs at law.

   Lastly: I do hereby appoint the aforesaid Louis Hopkins, of Baltimore City, sole executor of this my last will and testament, revoking and annulling all other wills by me made, and [*364] ratifying and confirming this and none other to[***5] be my last will and testament.

   Witness my hand and seal this 14th day of June, in the year eighteen hundred and seventy-three.

   JOHN J. HOPKINS.   (Seal)

   Signed, sealed, published, pronounced and declared by John J. Hopkins, the within-named testator, as and for his last will and testament in the presence of us, the subscribers, who, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto. 

   Witnesses:

   A. S. BRYAN,

   E. C. GANTT,

   C. MCCENEY CLAYTON."

   Elizabeth W. Hopkins, after the death of her husband, remarried, and died, Elizabeth W. Howard, October 14th, 1909, without having had issue by either marriage, and the estate of John J. Hopkins, being the fund above mentioned, is now to be distributed to the parties entitled under his will. His heirs at law, answering to that description at the time of his death, were his brother, Mahlon Hopkins, and his sister Ella W. Mercer. Mahlon Hopkins died without issue in 1879 leaving a will by which he devised and bequeathed all his estate to his mother, Lavinia Hopkins, who died in 1884 leaving a will by which she devised and bequeathed the residue of her estate to[***6] the Safe Deposit and Trust Company upon certain trusts declared in said will. This will was construed by this Court in Marshall v. Safe Deposit and Trust Co., 101 Md. 1, 60 A. 476, where it was held that one twelfth part of said residue vested in Marie Henriette Mercer, widow of Samuel H. Mercer; five twenty-fourths in Charles H. Harding, executor and residuary legatee of Mary M. Harding, and the remaining seventeen twenty-fourths in the Safe Deposit and Trust Company under a deed of trust made to it from Margaret W. Schapiro.

   [*365] Ella W. Mercer died in 1879 leaving a will by which she did not attempt to dispose of any interest she might be supposed to have under the will of John J. Hopkins, and leaving two sons, Samuel H. Mercer and George D. Mercer, and two daughters, Mary, wife of Charles H. Harding, and Margaret, now the widow of Salo Schapiro, all of whom except Margaret Schapiro died before Elizabeth W. Howard.

   George D. Mercer died without issue in 1887 leaving a will by which he devised and bequeathed all his property to his wife Jennie W. Mercer, now Jennie Mercer Lake. Samuel H. Mercer died in 1897 leaving a will by which he devised and bequeathed[***7] all his property to his wife Marie Henriette Mercer. Before his death however he had executed a deed of trust to Lewis N. Hopkins, and on the death of Lewis N. Hopkins the Safe Deposit and Trust Company was duly appointed trustee in his place. Margaret Schapiro and her husband in 1899 made a deed of trust to the Safe Deposit and Trust Company of all her property and estate in Maryland "whether in possession, reversion or expectancy * * * including all of her right, title, interest and estate, both at law and in equity in and to that portion of the estate of John J. Hopkins, deceased, which under his will or otherwise, is now or may hereafter be vested in the said Margaret Schapiro as one of the heirs at law of said testator."

   If the date of Mrs. Howard's death without issue is the date at which the heirs entitled to this estate are to be ascertained, then Mrs. Schapiro is the only person answering that description, and is solely entitled.

   If however the date to be taken for that purpose is the death of John J. Hopkins, then Mahlon Hopkins and Ella W. Mercer were the only persons answering that description, if the words "heirs at law" are to be construed in their ordinary sense, [***8] or if they are to be construed as "next of kin," in consequence of the admitted conversion of the property into personalty under the will, then Mahlon Hopkins, Ella W. Mercer and Lavinia Hopkins, were the three persons [*366] answering that description; the shares so vesting, in either aspect of the case, passing to the beneficiaries of the heirs at law, or next of kin, under the various wills, deeds and devolutions of title before mentioned.

   All persons possibly interested in the estate upon any theory were made parties, and have answered admitting the necessity of a construction of the will and the case was heard upon the petition and answers, and an agreed statement admitting all matters and facts alleged in the petition and not denied in the answers, without however admitting any statement as to the construction or legal effect of any instrument referred to.

   The Court below was of opinion that the words "heirs at law" must be construed as next of kin, but no one prejudiced by the decision upon that point has appealed, and both the appellants agree that the question is not material.

   The Court below held that the estate vested immediately upon the death of John J. Hopkins, [***9] in equal shares in his mother Lavinia Hopkins and his brother and sister Mahlon Hopkins and Ella W. Mercer, [**61] as his next of kin, and that "by virtue of the operation of the deaths, wills, deeds and other facts and instruments recited in the proceedings, said shares in remainder should be distributed as follows:

   "To the Safe Deposit and Trust Company as trustee under the deed from Mrs. Schapiro 20/36; to Charles H. Harding 8/36; to Jennie Mercer Lake 3/36; to Marie Henriette Mercer 2/36; and to the Safe Deposit and Trust Company under the deed from Samuel H. Mercer 3/36."

   These appeals thus present two questions:

   (1) Did the remainder after death of Elizabeth W. Howard vest at the death of John J. Hopkins in those persons who then composed the class of heirs at law of the testator meaning in this case in the view of the Court, his next of kin, or did it vest at the death of Elizabeth W. Howard, in Mrs. Schapiro as the only living representative of that class.

   [*367] (2) If this remainder vested in Mrs. Schapiro, at Mrs. Howard's death, then was her deed of trust to the Safe Deposit and Trust Company effective to vest the estate in the trustee.
 
   Upon the first of these[***10] questions, the learned Judge of the Circuit Court reached his conclusion by adopting the view that notwithstanding the testator had said in unambiguous and unmistakable language, that his estate, upon the death of his wife, should go to any child or children of hers, that his intention was that it should only go to her children by him, and that this language, however contradictory of his apparent intention must be so construed as to give effect to his presumed intention. His actual language was, "I will and devise unto the said Elizabeth W. Hopkins all estate that I may die possessed of * * * to be held by her, my said wife, Elizabeth W. Hopkins, during her natural life, she to have sole control of my said estate without let or hindrance from any person whatever; and in the event of my said wife having any child or children at the time of her death, I will and devise the whole of my said estate to said child or children, equally to be divided, if more than one. But in the event of my said wife without issue living, then and in that case, I devise and bequeath all said estate to my heirs at law." In support of this finding of the testator's intention, [***11] the Court in its opinion cites no authority, nor is any cited by the able and diligent counsel of the appellees in their brief in this Court.

   If this intention can be properly deduced from the language of the will, it is unquestionably decisive upon the point now under consideration, since if he intended to designate only children begotten by him, the possibility of such children terminated at his death. He died without issue, and there was then no class or individual answering the description of children, or a child, begotten by him, and therefore the remainder would then vest in his heirs at law as held by the Court. But is this view tenable?

   [*368] We will reproduce here the language of the opinion below upon this point.

   The Court says: "This will was executed June 14th, 1873, and the testator died in 1875. He had no children at the time the will was executed, and none at the time of his death; but he left surviving him a mother and a brother and a sister.

   "If the words of this clause, now the subject of this controversy, be taken literally the result would be that had a child of the tenant for life by the testator, and a child or children of her by a future[***12] husband survived, they would have shared equally in this estate. In other words, strangers to his own blood would have taken what in all reason or justice should go to his own child; and besides, on the failure of a child by him, and the birth of a child by a future husband, strangers to him would have taken in preference to his next of kin or heirs at law.

   "The natural objects of his bounty were: first, his wife and children, if any should be born after the execution of his will; and second, his mother and his brother and sister. There is nothing in the will to indicate an unfriendly feeling toward his next of kin. On the contrary he made provision for them without preference. If there had been an intention on his part to provide for children of his wife by a future husband, and divest the property altogether from his next of kin, it is strange he did not create the ultimate bequest in favor of the heirs at law of his wife."

    Let us see how this method of dealing with the unambiguous language of a will comports with the decisions in this State.

   In Walston v. White, 5 Md. 297, JUDGE LEGRAND said: "The rule is this: where the language of the testator is plain[***13] and unambiguous such language must govern, and therefore extrinsic evidence is inadmissible to show that he meant something different from what his language imports; in other words, the question in expounding a will is not what the [*369] testator meant, as distinguished from what his words express, but simply what is the meaning of his words." That was an action of ejectment, where title depended upon the location of Beaver Dam Branch designated by the testator in his will, as a boundary between two tracts, and the only exception in the case was to the ruling on the prayers. One of the plaintiff's prayers left it to the jury to find the location of the stream mentioned, together with other designated facts necessary to recovery. It was objected that this prayer should have left to the jury the intention of the testator in the use of the words "Beaver Dam Branch," and the trial Court sustained the objection and rejected the prayer, but this Court held that ruling to be erroneous.

   When a Court is expounding a will either at law, where it is sitting as a jury or in a proceeding like that before us, we know of no other rule by which it must be governed than that indicated[***14] above, nor any authority for [**62] allowing greater latitude in the application of that rule, in the one case than in the other.

   In Hawman v. Thomas, 44 Md. 30, JUDGE BARTOL quoting CHIEF JUSTICE SHAW, said: "The general rule certainly is, the intention of the testator is to govern, in the construction, but it is the intention expressed in the will." In Heald v. Heald, 56 Md. 300, JUDGE ROBINSON said: "Whatever may be the general intent of the testator, if it does not appear that he has omitted words intended to be used, it is not competent for the Court by intendment, to reconstruct the will to give effect to such intention.  Brotherton v. Bury, 18 Beav. 65; Martineau v. Briggs, 23 Week. Rep. 889."

   In Demill v. Reid, 71 Md. 175, 17 A. 1014, in considering the question of when a certain remainder vested, JUDGE MILLER said the testator had the clear right to fix the time of vesting, and said "a Court has no right to put other words into his will. or to place upon those he has used any other than their usual and accepted meaning; and clearly not when there is no necessity for [***15]doing so." And the testator in the case [*370] before us had as absolute a right to make the children of his wife by a second marriage the primary objects of his bounty, after his wife's death, as the testator in Demill v. Reid had to prescribe the time when a remainder created by him should vest.

   And in Abell v. Abell, 75 Md. 58, JUDGE FOWLER said: "It will not do to say the intention must govern, and then by some strained or artificial course of reasoning, attempt to place upon the will a construction plainly repugnant to the language used therein by the testator. In other words, we must be governed not by what we may suppose the testator wished, but by what he says. And arguments based upon the supposed or known wishes of a testator in respect to the disposition of his property are not to be considered unless such wishes are expressed in his will. The short answer, says Chancellor Kent, which Courts are so often compelled to make to such arguments, is, voluit, sed non dixit."

    Certain it is, that if the language which the testator has here used, is to govern in the construction of his will, then any children his wife might have left by her second[***16] marriage, must have taken this property upon her death, and the decree of the Court below could only avoid that result by substituting for the will actually made, a reconstructed will to conform to the Court's opinion of what the testator should have been expected to do in making a will. The Court says, this estate, if the testator's wife had left a child by him and also a child by a second marriage would, if the clear language used is to govern, go equally to these two children; but that this would be contrary to "all reason and justice," that is to the opinion of the Court, and therefore the opinion of the Court shall prevail over the intention expressed in the will. Because the cases are rare in which a man makes any provision for the children of his wife by a second marriage, it is not to be assumed when such a provision is made that the testator has said what he did not mean to say, and that the Court is at liberty to undo what he has done.

   [*371] Mr. Underhill in the second volume of his work on Wills, paragraph 551, says: "When the testator devises property to his widow, and after her death 'to her children,' he will be presumed to mean not only those of whom he [***17]is the father, in which case the word 'her' will be exactly synonymous with 'our,' but also those who may be born to her by a subsequent marriage, when 'her' will have its proper meaning. The contrary however has been held in Louisiana, on the ground that a legacy cannot, by the peculiar law of that State be given a child not conceived at the death of the testator. Sevier v. Douglas, 4 La. Ann. 611."

   Twice, in the will before us, the testator gives the broadest expression to his apparent purpose, first providing for "any child or children my said wife may have at her death," and later providing "in the event of my said wife dying without issue" that the estate should go to his heirs at law, showing his purpose not to confine the gift to her immediate children, but to extend it to her more remote issue.

   We have not been referred to any other American decision than that above mentioned from Louisana, in which it does not appear that either the counsel or the Court questioned the intention of the testator, and the sole point of attack being the invalidity under the law of that State of such a limitation over to a person unborn.

   In Barrington v. Tristram, 6 Ves. Jr. 345,[***18] there was a bequest upon trust for the benefit "of all and every the child or children" of the testator's niece "Mrs. Tristram, the wife of the Rev. Thomas Tristram," distribution to be made at a certain period. Before that period, the Rev. Thos. Tristram died, and Mrs. Tristram married again and had a child by her second marriage. When the period for distribution arrived, the Tristram children claimed the whole estate, and the child of the second marriage claimed a distributive share. LORD ELDON held such child entitled to a share, saying that upon the general rule a child by a subsequent marriage was included, "since the testator has given to persons whom the [*372] law makes certain." In the course of his opinion he said: "My private opinion is, he never thought of his niece marrying again, but the object was the children of Mrs. Tristram. The words 'the wife of the Rev. Thomas Tristram,' are merely words of description * * * and notwithstanding a strong conjecture against my judicial opinion, I am bound to declare that every child of Mrs. Tristram shall take." This case is not only a high authority illustrating the general rule applicable to the question, but it emphasizes[***19] the obligation [**63] to give effect to the testator's expressed intentions, and not to indulge conjecture however strong.

   In ex parte The Earl of Ilchester, 7 Ves. Jr. 348, the testator being married, but not then having any children, gave the guardianship of all his daughters born or to be born, to his wife, and of all his sons hereafter to be born, to his wife and his brother or the survivor, and it was held that this testamentary guardianship extended to all the children by that as well as by a second marriage. LORD ALVANLEY delivered an opinion, concurred in by LORD ELDON and by Sir Wm. Grant Master of the Rolls, in which LORD ALVANLEY said: "If I were at liberty to indulge conjecture, I should certainly be apt to suppose he had not in his contemplation any future marriage. I have read this will with an anxious desire to satisfy myself that I could state to your Lordship as my judicial opinion that it would admit of the restrained construction. I have ever thought it imposed upon me not to make any intendment contrary to the plain and usual sense of the words used, unless from other parts of the will, I could plainly see that the testator could not have intended[***20] them to have that extensive operation the words themselves could carry. * * * And I cannot see any decisive inference, that necessarily and unavoidably this testator must have meant to restrain the guardianship to the children of his then wife."

   But apart from the binding authority of the rule of construction established in the cases cited above we think there [*373] are indications in this will that the testator had in his mind the contingency of a second marriage by his wife, in event of her surviving him, and that he used the broad language he did with knowledge of the effect it would have.

   The technical language used in parts of this will indicates that it was drawn by a lawyer and as it is witnessed by Mr. E. C. Gantt, now deceased, but known to this Court as a capable and careful lawyer it is a fair inference that he was the draftsman, and that he did not permit the testator to execute this will without explaining to him the important effect of what is certainly an unusual provision to be made. By the first disposing clause of the will be gave $3,000, the equivalent of one-fourth of his estate, in trust for his wife's sister, Mrs. Warfield, for her life and after her[***21] death to her two children then living, with any other children she might afterwards have. This was a strong manifestation of regard and affection for his wife's sister, and of interest in the blood of his wife's family, and it was a large bequest in view of the comparative amount of his whole estate. By the next clause he bequeaths to Mrs. Warfield's son, whom he designates "my nephew," the watch and chain he wore, articles of personal use, almost always bequeathed to children, or one standing in the place of a child. By the next clause he directed the conversion of all his real and personal property into money and the proceeds to be invested by his executor in securities, not in the name of a trustee, but in the name of his wife, "to be held by her, during her life, without impeachment of waste, or let or hindrance from any person whomsoever * * * she to have sole control. * * * And in event of my said wife having any child or children at the time of her death, I will and devise the whole of said estate to said child or children." In these provisions there is an irresistible suggestion that he knew or believed, that he would have no children of his own, for if he contemplated[***22] or hoped for children, and it was his intention that his own children only if there were any, should take this property on her death, the [*374] provision against impeachment of waste, or let or hindrance by any one becomes unintelligible, being applicable only to personal securities standing in her own name. Without intimating what the legal effect of that provision would have been, if she had encroached upon the corpus of the fund placed so absolutely by the will in her control, it is obvious that it suggested the power of consumption, which is not reconcilable with its preservation for his children, though not irreconcilable with the view that in the absence of children of his own he wished her to have absolute control of the estate not only for her own uses but for those of any children she might have in event of a second marriage. 

   Other considerations tending in the same direction have been suggested in the argument, but we shall not pursue them further, the result of our most careful reflection being that the words "any children" as employed by the testator would embrace children of his wife by any second marriage.

   Having reached that conclusion, it must of necessity[***23] follow, that the remainder limited to the heirs of the testator could not vest until the death of Mrs. Howard. In Demill v. Reid, 71 Md. 175 at 191, 17 A. 1014, JUDGE MILLER says: "It seems to us to be clear law, as well as good sense, that in a case where there is an ultimate limitation upon a contingency, to a class of persons plainly described, and there are persons in esse answering the description when the contingency happens, they alone can take." The contingency upon which the remainder was limited to vest in the heirs at law of the testator was the death of Mrs. Howard without issue, and until her death that contingency was not determined.

   It cannot be denied that the limitations both to the children of Mrs. Howard, and to the heirs of the testator are contingent. They are alternative contingent remainders, dependent upon a contingency with a double aspect. The remainder to the heirs at law is alternative to the remainder to Mrs. Howard's children, and they are both contingent because the persons to take in each are not ascertained.

   [*375] Among the numerous cases in this State [**64] discussing the vexed question of the vesting of remainders[***24] the recent case of Thom v. Thom, 101 Md. 444, 61 A. 193, seems more closely to resemble the present case, and we shall quote from it at some length.

   JUDGE JONES said: "The grantor, Wm. H. DeCourcy Wright first gave to his daughter, Mrs. May, afterwards Mrs. Thomas, an equitable life estate in the property during the joint natural lives of herself and her then husband; then an equitable estate to the survivor of them with power to such survivor to devise and bequeath the estate among the children or descendants of Mrs. May and her then husband; then without here reciting all the terms of the trust he provides for the final full fee simple interest in the property vesting in the children and descendants of Mrs. May and her then husband. Here the first of the alternative fee simple estates provided for in the deed is made to vest if the contingencies should happen to call it into existence; and if it came into existence, it necessarily excluded all other interests and estates in the property. But in case the conditions provided for in his deed should never exist, and necessarily only in case they should never exist, he made the alternative disposition of the[***25] ultimate interest in the property by providing * * * that the property should go to and vest in such persons as would by the now existing laws of Maryland be the heirs at law of the said Wm. H. DeCourcy Wright and for their heirs forever. Here the second of the alternative fees provided for by the deed rested. And it was in entire substitution for and exclusion of all other interests in the property, because it could not come into existence until all previous interests so provided were beyond the possibility of existence. The first fee was provided for under conditions specified. When, and only when the conditions that were to bring that into existence did not exist and could not exist, was the other to be called into existence. The existence of the latter began when all possibility of the other ceased."

   [*376] This exposition of the nature and operation of alternative contingent remainders, and the demonstration of the impossibility of the later vesting while there is a possibility of the vesting of the earlier, is so clear and conclusive, that we shall not prolong this opinion by any reference to, or attempt to reconcile, the many cases involving the general question, and so [***26]fully and ably discussed by counsel in their briefs, and shall content ourselves with declaring that the remainder to Mr. Hopkins' heirs at law did not vest until Mrs. Howard's death, and then only in Mrs. Schapiro, as the sole representative of that class, in esse.

   The remaining question is whether the interest thus taken by Mrs. Schapiro passes under her deed of trust to the Safe Deposit and Trust Company.

   There can be no doubt of Mrs. Schapiro's intention to convey such interest, however acquired, when she executed that deed of trust on July 6th, 1899, but as Mrs. Howard was then living, and as the remainder to the heirs at law was at that time contingent, and the person to take unascertained, it is contended for Mrs. Schapiro that she had but a mere possibility which was not assignable.

   "The common law declares all contingent estates, when the person to take is not ascertained, to be a mere possibility not coupled with an interest, and to be neither devisable, descendible, alienable by voluntary conveyance nor subject to execution. 4 Kent's Commentaries, 261; 2 Wash Real Property 238. Such a naked possibility is in law neither an estate, property, right nor claim. [***27] One having such a possibility may in the future have a right, but cannot be correctly said to have any existing right or claim." In re Banks Will, 87 Md. 425, where the question is discussed at some length.

   In Marshall v. Safe Deposit Company, 101 Md. 1, 60 A. 476, one of the questions was whether a deed of trust made by Samuel H. Mercer to the Safe Deposit Company passed to it an interest in certain property which he afterwards acquired [*377] under the will of Lavinia Hopkins, and JUDGE MCSHERRY said: "Before the deed of trust can be said to include the accruing share with which we are now concerned, it must appear that that share was an existing or contingent interest to which Samuel was entitled when the deed was executed, and that the granting clause of the deed contains apt and sufficient words to transfer that interest."

   In Fisher v. Wagner, 109 Md. 243, 71 A. 999, this Court held that where a contingent remainder after a life estate is limited to a person who is definitely described, it may be devised by him, although he dies before the happening of the contingency which is to vest the estate in him, [***28] but JUDGE BOYD, in delivering the opinion of the Court, said, that "Robert A. Fisher took a transmissible and devisable estate under the will of his father, as the person to take was certain, and there was nothing in the will of the father which indicated his intention that such interest or right as a contingent remainderman may have before the happening of the contingency, should be postponed until the death of the life tenant." The italics are those of the Court. JUDGE BOYD also referred to "a distinction made by some authorities between the case of a person designated to take a remainder upon the happening of a future contingency, and that of persons forming a class which is to take in the same contingency," which distinction he said "has not only been recognized in this State but seems to us to be a logical one."

   For these reasons we are of opinion that Mrs. Schapiro's deed does not operate to convey the estate in question. Where a deed is based upon a substantial [**65] and valuable consideration, and the grantor, in return for such consideration attempts to convey property thereafter to be acquired, a Court of Equity will enforce a conveyance in a proper case, but where[***29] the consideration is merely nominal, equity will not interfere. Miller's Eq., sec. 687, Black v. Cord, 2 H. & G. 103, Cox v. Sprigg, 6 Md. 274, quoting from Atherly on Marriage Settlements. "that as against the settler himself [*378] equity should in no case enforce a voluntary agreement." "The principle of the Court is to withhold its assistance from a volunteer, whether he seeks to have the benefit of a contract, or covenant, or settlement." Snyder v. Jones, 38 Md. 542. "It is not enough that the settlor executed a paper purporting to pass it, if in fact the paper does not have that effect. The intention of the settlor to divest himself of the legal title must be consummated and executed, or the Court will not enforce the trust." Perry on Trusts, sec. 100. Mrs. Schapiro's deed of trust recites by way of preamble her desire to place her property in trust, and the acceptance of the office by the trustee, and then alleges the consideration to be "the premises, the sum of five dollars and other valuable considerations." Without intimating any opinion as to the character of the consideration as expressed in[***30] the deed, we may say that nothing we have said will preclude any appropriate proceeding to enforce a conveyance upon the theory of an adequate consideration therefor.

   For the reasons we have stated the decree appealed from will be reversed, but this will be without prejudice to the right of the Safe Deposit and Trust Company, as trustee under the deed from Mrs. Schapiro to proceed for enforcement of a conveyance of the property acquired by Mrs. Schapiro as a result of this decision.

   Decree reversed in No. 42 and affirmed in 43. The costs above and below to be allowed out of the trust estate. 

THE ANNAPOLIS GAS AND ELECTRIC LIGHT COMPANY vs. OSCARFREDERICKS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
112 Md. 449; 77 A. 53; 1910 Md. LEXIS 129

 February  2, 1910, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (FORSYTHE, J.).
 
Plaintiff's 1st Prayer.--If the jury find from the evidence that on or about the eighth day of August, 1907, defendant owned, maintained, operated and controlled a system of wires in Annapolis and in Eastport in  Anne Arundel  County and upon the bridge spanning Spa Creek and connecting Annapolis and Eastport and that said bridge was a public highway at said time, and that said wires were hung and suspended along the side of said bridge on cross bars attached to the bridge on the top of the iron trusses running along the south side of the bridge, and shall find that said wires were loose and sagging down so close to said bridge that the plaintiff lawfully using said bridge and using due care on his part came in contact with one of said wires, and shall further find that defendant transmitted over or through said wires on said bridge a voltage ranging from five hundred volts to two thousand volts and shall further find that such electric current when coming in contact with human beings is dangerous to life and limb, and shall further find that said electric--were without proper insulation so that the wire transmitting[***2] said electric current was exposed and in a condition dangerous to the life and limb of human beings coming in contact therewith by the exercise of ordinary diligence, ascertained that its wires on said bridge were uninsulated and so sagging as to be dangerous, and shall further find that defendant suffered said wires to be and continue without proper insulation and sagging down, and that said wires were in the said condition on the night of August 8th, 1907, and at the place where the plaintiff was injured as testified by the plaintiff's witnesses, if the jury so find, and that on the said 8th day of August the plaintiff, while lawfully using said bridge and using due care came in contact with said wire and that said wire was then and there charged with a current of electricity ranging from five hundred volts to two thousand volts, and that thereby the plaintiff was then and there greatly shocked and stunned and his right hand burned and injured, then the plaintiff is entitled to recover. (Granted.)
 
Plaintiff's 2nd Prayer.--If the jury find for the plaintiff, then, in estimating the damages, they are to consider the health and condition of the plaintiff before the injuries complained[***3] of as compared with his present condition in consequence of the said injuries; and whether said injuries are in their nature permanent and how far they are calculated to disable the plaintiff from engaging in those business pursuits for which, in the absence of the said injuries, he would have been qualified; and also the physical and mental suffering to which he has been subjected by reason of the said injuries, and to allow such damages as in the opinion of the jury will be fair and just compensation for the injuries which the plaintiff has suffered. (Granted.)

DISPOSITION: Judgment reversed, and a new trial awarded, with costs.

CORE TERMS:  wire, prayer, bridge, former appeal, admissible, repaired, electric light, time to time, new trial, permanent, village, street, storm, question of negligence, misleading, remote, electric wire, question propounded, testimony offered, electric, cross-examination, practically, uninsulated, insulation, suspended, insulated, purports, height

COUNSEL: D. G. McIntosh and James W. Owens, for the appellant.
 
James M. Munroe (with whom was Robert Moss on the brief), for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [**54] [*451] BRISCOE, J., delivered the opinion of the Court.

   This case comes before the Court upon a second appeal. The first appeal will be found reported in 109 Md. 596.

   On the first trial, there was a judgment, on verdict, in favor of the plaintiff for $500 and this judgment[***4] on appeal to this Court was reversed for errors in the ruling of the [*452] Court below and a new trial was awarded. Upon a second trial, the plaintiff recovered a judgment of $400 and the defendant brings this appeal.

   The questions on the record now before us are presented by eight bills of exception reserved and taken by the defendant in the course of the trial in the Court below. Six of these relate to the rulings of the Court upon the evidence, the seventh, to the action of the Court in granting the plaintiff's first and second prayers, and in overruling the defendant's special exceptions to these prayers, and also, to the ruling of the Court in rejecting the defendant's, first, second, fourth and sixth prayers. The eighth exception purports to embrace an objection by the defendant to a line of argument on the part of the plaintiff's attorney in the course of the trial in the Court below. The exception is in these words: "And at the argument of the case, in the course of argument the attorney for the plaintiff stated, that the plaintiff had offered but two prayers both of which had been granted, and that the defendant had offered seven, some of which were granted and some[***5] were rejected, to which line of argument on the part of the plaintiff's attorney the defendant excepted and prays the Court to sign this its eighth bill of exceptions, which is by the Court accordingly done this 28th day of September, 1909."

    We will consider these exceptions in their regular order, in so far as the questions presented by them were not passed upon and determined by us, on the former appeal.

   It will be seen from the record that there was no difference in the pleadings on the second trial, and the essential facts were practically and substantially the same as on the first trial.

   The appellant's counsel insists in his brief that the circumstances under which the plaintiff suffered the injury as set forth in the record are substantially the same as described in the record in the previous case tried in this Court, and reported in 109 Md. 598. And we find this statement is fully [*453]confirmed by an examination and comparison of the two records, and is in no way controverted by the appellee.

   The suit was brought by the appellee against the appellant company on the 13th day of January, 1908, in the Circuit Court for Anne Arundel County to recover damages[***6] for an injury alleged to have been sustained by him by contact with an electric wire charged with electricity, maintained and operated upon a public bridge connecting the City of Annapolis and the village of Eastport, Anne Arundel County.

   The declaration alleges as the basis of the suit that the bridge is a public highway and the wires are hung and suspended over and upon poles controlled by the defendant upon the streets of the city and village and upon the bridge for the purpose of doing a general electric light business in the City of Annapolis and the village of Eastport. It also charges that these wires were permitted to become and be without proper insulation and by reason thereof contact with the wires was dangerous to life, and the defendant while lawfully using and passing over the bridge, without any negligence on his part, came in contact with the [**55]wires and was injured.

   The evidence upon which the plaintiff relies to sustain the judgment in this case is fully set out in the opinion in the former appeal and we shall refer only to such differences as may appear in the record in this case as we may find necessary to determine the question whether or not the Court[***7] committed any error in its rulings on the second trial, as to justify and warrant a reversal of the judgment on this appeal.

   The first exception was taken by the defendant to a question propounded, and the answer given by Judge James R. Brashears, a witness called on behalf of the defendant.

   Judge Brashears testified that he was familiar with the condition of the appellant's electric wires over Spa bridge, because he lived near Eastport and had travelled over the bridge at least twice a day of each week including Sunday. He further testified that he was familiar with the condition [*454] of the wire previous to and up to the time of the accident and the wire seemed to him to be out of the reach of any one, unless a person sprung out and grabbed it, and that it was not dangerous to persons travelling over the bridge.

   He was, then, asked the following question: Q. 4. "Have you recently examined that wire." Answer, "Yes." The record then shows the following entry: "(Objected to by counsel for the plaintiff and objection sustained, to which ruling of the Court the defendant reserves an exception.)"

   Assuming that this objection was presented in time and the ruling of the Court[***8] was upon the question propounded to the witness, we fail to see any error in the ruling of the Court in sustaining the plaintiff's objection. An examination of the wires at the place of accident in September, 1908, could reflect no light upon the position or condition of the wires in August, 1907, the date of the accident. According to the proof, the wires had been repaired along the line from time to time after the accident, and after the storm, on the 4th of March, 1909, they were "all taken down, and new wire put up."

   The second and third exceptions present offers of proof by the defendant along the same line, and will be considered together.

   It appears that after the ruling set out in the first bill of exception, the witness was asked, "did you make an examination of that wire in company with Mr. Owens, counsel for defendant recently," offering to follow up the same by proof that at the time of said examination, the position of the wire on the bridge was the same as it was at the time of the accident.

   And by the third exception, it appears that after the witness Crosby, an electrical constructor, had testified on the part of the defendant that the uninsulated places on the wires[***9] had been repaired from time to time, and that after the storm of March, 1909, he had removed all the wires over Spa Bridge and that he had "that wire" in the Court House, "exactly as it was when he took it down," the defendant offered [*455] to produce the wire in use at the time of the accident and to follow up the same by proof that the wire is now in the same condition as it was at the time of the accident so far as insulation is concerned witness could not say, whether repair to places after accident was not at place of accident for the purpose of contradicting the plaintiff's witnesses as to the extent to which the wire was uninsulated and exposed at the time of the accident.

   The Court sustained the plaintiff's objection to this character of testimony and these rulings form the basis of the second and third bills of exception.

   It is hardly necessary to cite authority to sustain the rulings of the Court on these exceptions under the facts of this case.

   On the former appeal, we said, the general rule is well settled that evidence of the subsequent condition of the place where the accident occurs is not admissible to show a negligent condition at the time of the injury because [***10]the question of negligence is to be determined by the actual condition at the time of the injury. There are certain well recognized qualifications and exceptions to this rule, but as the facts of this case do not bring it within any of these exceptions, they need not be discussed here. We further said this character of testimony was too remote and misleading to reflect any light upon the question of negligence involved in the case. Electric Light Co. v. Lusby, 100 Md. 634; Ziehn v. United Electric Co., 104 Md. 48.

   The case of Brooke v. Winters, 39 Md. 505, relied upon by the appellant, is in no way in conflict with the cases above cited. It was said, in Brooke v. Winters, supra, whether the proposed proof of facts subsequent to the suit, was admissible or not, did not depend upon the time of their existence before or after the suit, but upon their relevancy to the issue and their capability of explaining it.

   The position of the wire upon the bridge in 1909, nearly two years after the date of the accident in this case would afford no fair or reasonable presumption as to the position[***11] of [*456] the wire at the date of the accident, because the whole line had been taken down and a new one put up. The condition of a place or thing at the time of an injury says Mr. Wigmore, in his work on Evidence, page 367, may always be evidenced by showing its condition before or after that time provided no substantial change has occurred.

   Nor do we find any error in the ruling of the Court in refusing to permit the defendant to produce the wire in use at the time of the accident. This wire, as we have seen, had been repaired from time to time after the accident, and had been so damaged by the storm of March, 1909, that it had to be removed, and new wire substituted therefor.

   It would be exceedingly dangerous and obnoxious to the well established rules of evidence, to permit the introduction of this character of testimony, after such a length of time, [**56] and after the wires had been repaired and had been subject to such use, for the purpose of showing that they remained in the same condition as at the date of the accident. It would not be relevant to the issue nor capable of explaining it, but entirely too remote and misleading. Md. D. & V. R. Co. v. Brown, 109 Md. 304, 71 A. 1005;[***12] Columbia R. R. Co. v. Hawthorne, 144 U.S. 202.

   The fourth, fifth and sixth exceptions are practically the same and are to questions and answers, asked of the witness Miller, on cross-examination.

   The exceptions to the admission of this evidence, we think, were properly taken. The questions were improper on cross-examination and the testimony elicited was not relevant to the issue in the case. It was calcuted to mislead the mind of the jury. The height of the wires above the surface of the ground in the streets of Annapolis and their distance above the level of the streets, could furnish no correct guide, in determining the proper disposition of the wires on a bridge over Spa Creek. And whether or not they were suspended like those on Light Street Bridge, Baltimore, had no bearing whatever upon the issue in this case. There was error in these rulings and it would be idle to hold the admission of [*457] this character of evidence was "error without injury." Sims v. American Ice Co. 109 Md. 68.

   We come to the rulings on the prayers and shall request the reporter to set out the plaintiff's prayers in the report of the case. The plaintiff's [***13]two prayers were granted. The defendant's first, second, fourth and sixth prayers were refused, and the third, fifth and seventh were granted. The defendant's prayers contain the same legal propositions presented on the former appeal and what we said in regard to these prayers on that appeal, we find applicable here.

   The defendant's granted prayers we think, gave it all the law to which it was entitled and for the reasons stated on the former appeal its other prayers were properly rejected.

   The plaintiff's first prayer, it will be seen was not properly framed, and the omission of the words "Defendant," and "could have" in the body of the prayer, renders it somewhat vague and unintelligible. The vice of the prayer, however, consists in locating "the place where the plaintiff was injured as testified by the plaintiff's witnesses" alone. The prayer was entirely too general and indefinite. It ignored the theory of the defendant's case, and the testimony offered in its support.

   While the trial Court is not bound to modify instructions submitted by counsel so as to make them correct statements of the law, the Court should refuse an incorrect prayer, not sanctioned by the rules of law. [***14] Dodge v. Hughes Co., 110 Md. 382; Birney v. Tel. Co., 18 Md. 341; Hutzler v. Lord, 64 Md. 534.

   The plaintiff's second prayer was the usual damage prayer, but there was no proof whatever in this case to support the hypothesis of fact stated in the prayer that the plaintiff's injury was permanent.

   The defendant's special exception to this prayer, on the ground there was no evidence that the injuries complained of are permanent in their nature should have been sustained and the prayer refused. There was no evidence upon which this instruction could be based, and it is error to grant an [*458] instruction upon any proposition, when there is no proof to sustain it.

   Similar instructions have frequently been disapproved and held to be erroneous and prejudicial by this Court. Long v. Eakle, 4 Md. 454; Balto. v. Poultney, 25 Md. 18; Wilson v. Merryman, 48 Md. 328.

   The eighth bill of exception purports to present an objection by the defendant to a "line of argument" on the part of the plaintiff's attorney "in the course of the argument of the case," but it does[***15] not state any ruling of the Court thereon. It is, therefore, immaterial for us to express any opinion as to the statement set out in the record.

   For the errors indicated, the judgment will be reversed and a new trial will be awarded.

   Judgment reversed, and a new trial awarded, with costs. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. WILLIAMS. WATTS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
112 Md. 353; 76 A. 82; 1910 Md. LEXIS 101

 January  14, 1910, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Judgment affirmed, the appellant to pay the costs, above and below. 

CORE TERMS:  bridge, piers, declaration, public highway, transport, highway, constructed, demurrer, station, haul, public road, repair, obstructed, distinctly, farm, county road, impassable, construct, railroad, hauling, lumber, prayer, cement, river, sand, well settled, inasmuch, inconvenience, wrongfully, announced

COUNSEL: James W. Owens, for the appellant, submitted the cause on his brief.
 
James M. Munroe, for the appellee.

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

OPINIONBY: BOYD

OPINION: [**82] [*354] BOYD, C. J., delivered the opinion of the Court.

   The appellee sued the appellant for damages sustained by him by reason of its failure to keep in repair a bridge which was a part of the only public highway the plaintiff could use in hauling material to a point where it was bound under penalty to do certain work within a limited time. The declaration alleges that the plaintiff had a contract with the Maryland Electric Railway Company to construct for it some concrete piers in the Patapsco river, in the construction of which lumber, sand, cement and other materials were needed, which the plaintiff was obliged under his contract to provide and convey to the place where the piers were to be constructed; that the plaintiff was required to commence work on the piers within five days from the[***2] date of the contract, and to complete them within twenty working days from that date, there being a penalty of $15.00 per day to be paid by the plaintiff for every day beyond said period required for the completion [**83] of the piers; that the plaintiff had provided [*355] lumber, cement and other materials and deposited the same at Pumphrey's station on said railway company's line of railroad, and had provided sand a short distance below said station, all of which materials he was prepared to haul from said points to the place where said piers were to be constructed, said haul to be over the county public road, thence by a county public bridge to the lands of one Linthicum, through whose lands the plaintiff had made arrangements to haul said materials for the purposes aforesaid; that the said public county road, of which the bridge was a part, was the only public road affording access from said Pumphrey's station and its neighborhood to the place where the piers were to be constructed, and the plaintiff had no other access by a public highway for himself, his servants and agents, his beasts, carts and wagons, to transport the materials from Pumphrey's station to said place. [***3]

   It is further alleged that relying upon the county public road and bridge as the means of access to said place, he entered into the contract to construct the piers and laid out and expended large sums of money in the purchase of lumber, cement and other materials, and in providing sand and in depositing the same at Pumphrey's station, to be from there transported; that the bridge was permitted by the defendant to become wholly impassable, although it had the custody and control thereof and was responsible for the proper maintenance of it for public travel; that the defendant, unmindful of its duty in the premises, and with notice of the bad condition of the bridge, suffered and permitted it to become and to remain out of repairs and broken down so that it was impossible to pass over it with carts and wagons and transport over it the material aforesaid.

   It is then alleged that the situation of the plaintiff was peculiar and different from that of others in respect to the road and bridge and the use thereof, in that the plaintiff was under contract to construct said piers as aforesaid and could not furnish and transport to the place where they were to be constructed material other[***4] than that already provided, within [*356]the time required by his contract and for many days there after, and could not transport by any public highway the material already provided, and was by reason thereof required to lay out and expend large sums of money in and about the transportation of said material greatly in excess of the cost of hauling the same over said public road and bridge, as the plaintiff was entitled to do, and expected to do when he entered into said contract.

   The trial resulted in a verdict for the plaintiff, and this appeal was taken from the judgment rendered thereon. The appellant demurred to the declaration, but the demurrer was overruled. The only ground relied on in the brief is that the allegation in the narr. that the bridge in question was the only means of access to the point where the contract was to be performed was contradicted by the bill of particulars, which appellant contends shows there was a railroad by which the materials could be carried. Without meaning to say that it would have made any difference in our judgment, the record shows that the bill of particulars was not filed until after the demurrer had been overruled, and hence could[***5] not have been considered with the demurrer, even if it could have properly been considered if filed sooner. We will not therefore further refer to the demurrer, except to add that it was properly overruled.

   The defendant excepted to the granting of the plaintiff's prayer and to the rejection of its prayer seeking to take the case from the jury. The two points suggested in the brief are: (1) That the damage sustained by the plaintiff differed only in degree and not in kind from other persons using that bridge; and (2), that there can be no recovery because the appellant cannot be held responsible in action ex delicto. The learned attorney for the appellant, after discussing the first point, states in his brief: "The appellant, however, under a probability of criticism, at its advancing a new doctrine in Maryland, says: that while counties in Maryland can be sued 'ex contractu' that notwithstanding a long [*357] line of decisions to the contrary, the appellant asserts that they cannot be held responsible 'ex delicto.'"

   As the latter point is answered by so many cases in this State it is not necessary to dwell upon it. It cannot properly be said to be merely "advancing [***6]a new doctrine in Maryland," as that doctrine was advanced and rejected in Baltimore v. Marriott, 9 Md. 160, over fifty years ago, and in County Commissioners v. Duckett, 20 Md. 468--forty-five years ago--the rule announced in Baltimore v. Marriott was distinctly applied to actions ex delicto against County Commissioners. Too many cases have followed those to permit us to entertain the suggestion that there is any possible reason for now considering the propriety of adopting the opposite view.

   It is well settled that a public nuisance "is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, which is not experienced in common with other citizens. 9 Md. 178. In such case the actual damage constitutes the gist of the action, and must be averred and proved." Houck v. Wachter, 34 Md. 265. Again it was said in that case: "All the authorities agree that to support the action, the damage must be different, not merely in degree, but different in kind from that suffered in common; hence it has been well settled, that though the plaintiff[***7] may suffer more inconvenience than others from the [**84] obstruction, by reason of its proximity to the highway, that will not entitle him to maintain an action." After setting out at length the averments in the declaration, the Court also said: "It is not averred that the highway, which was obstructed, was the only way to and from his farm, or that it was necessary to enable him to pass and re-pass from his farm to mill, market, etc. The averment is, that it was the most direct and convenient route." It was said by JUDGE ALVEY in Garitee v. Baltimore, 53 Md. 422, after referring to the principle announced in Houck v. Wachter, that: "In the application of this general rule, however, each case must depend, more or less, upon its own special circumstances," [*358] and it may be well to cite some of the cases in which recovery has been allowed.

   In Rose v. Miles, 4 M. & S. 101, cited in Houck v. Wachter and Garitee v. Baltimore, the plaintiff was obstructed in navigating a river by the defendant wrongfully mooring a barge across it; it was held he was entitled to maintain his action, it being alleged that he was[***8] compelled to unload his barges and carry his goods overland, by which he incurred great expense. In Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281, cited in Garitee v. Baltimore, supra, and Crook v. Pitcher, 61 Md. 510, the plaintiff was a bookseller who had a shop by the side of a highway which was obstructed by the defendant, and the declaration alleged special loss in his trade and business. TINDALL, C. J., said: "All who passed had the right of way; but all had not shops * * *. In Baker v. Moore, the refusal of the plaintiff's tenants to remain on the premises was considered damage sufficiently peculiar and private to entitle the plaintiff to sue the defendant for having erected a wall across a common way used by the tenants." In Rose v. Groves, 5 M. & G. 613, cited in Garitee's Case, supra, the declaration alleged that the plaintiff was possessed of a public house abutting on a navigable river, and that the defendant wrongfully and maliciously placed upon the river, and kept there for a considerable time, certain timbers whereby the access to the house was obstructed, and divers[***9] persons were prevented from coming to the house, who would otherwise have done so. The Judges held that the declaration presented a case of special and particular damage to the plaintiff, and that the action was maintainable.

   Other cases might be cited, but that of Bembe v. Anne Arundel County, 94 Md. 321, is conclusive of this. The County Commissioners had allowed a bridge, which was part of a public highway, to become and remain broken down and impassable, and in passing on a demurrer to the declaration this Court said: "Inasmuch, then, as the declaration distinctly alleges that the highway with the bridge in question [*359] was the only means by which the appellant had access to and egress from his farm and buildings, it shows on its face a special and particular injury inflicted on the plaintiff by reason of the non-repair of the thoroughfare; and it shows an injury differing in kind from that which other members of the community can suffer from the same cause. Of course, if the appellant--the plaintiff below--has any other way or road, by which he can get to and from his premises, he cannot maintain this action even though he is put to more inconvenience[***10] or is required to travel a much greater distance in using the other highway."

   As we have seen, this declaration alleges that this was the only county public road leading from Pumphrey's station to the point where the piers were to be constructed, and that the plaintiff had no other access by the public highway to transport the material. It further distinctly alleges that he could not provide and transport to the place where the piers were to be constructed material other than that already provided, within the time required by his contract and for many days thereafter, and that he could not transport by any public highway the material already provided for said purpose to the place where the piers were to be built. The evidence shows that there was no other county road which he could use, and he was required to make arrangements with the railroad company to haul the material, which was done by running handcars between the times of the regular cars coming and going every half hour on a single track, which caused a considerable loss of time and required the employment of more men. It was therefore alleged and proved that the plaintiff was deprived of the use of the only public county[***11] road which passed the points between which the material was to be hauled. It was also shown that the bridge was generally used by all the farmers in that section of the county in hauling their produce to Baltimore, but that there was a road that led from Pumphrey's to Light Street Bridge which they could use, although it was two or three miles longer.

   [*360] No authority has been cited, and we are satisfied that none could be, to show that the railroad which ran between the points named was such a road as would take the case out of the principle announced in Bembe's Case, supra. It might as well have been said that a boat could have been employed by Bembe to cross the waters over which the bridge had stood. The railroad track could not be used as a public highway by the plaintiff, and inasmuch as, according to the allegation in the narr. and the testimony, there was no other road over which the plaintiff could haul the material, the damage to him differed both in kind and degree from that which the general public suffered. There was, therefore, no error in the rulings on the prayers.

   [**85] There were also several exceptions taken to the rulings on the testimony, but[***12] they were not pressed, and we see no error in them.

   Judgment affirmed, the appellant to pay the costs, above and below. 

JAMES F. THRIFT vs. THOMAS M. BANNON. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
111 Md. 303; 73 A. 660; 1909 Md. LEXIS 101

 June  30, 1909, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Order reversed with costs and petition dismissed.

CORE TERMS:  mortgage, deed, injunction, assignee, tract of land, real estate, conveyance, writ of injunction, mortgage debt, advertised, fraudulent, mortgaged, conveyed, one-half, convey, wit, dissolved, fraudulent conveyances, equity of redemption, question presented, petition dismissed, brief of counsel, adjudicated, restraining, cunningly, proceeded, advertise, conniving, borrowed, ruinous

COUNSEL: D. G. McIntosh, Jr., (with whom were Ridgely P. Melvin and James F. Thrift on the brief), for the appellant.
 
Robert Moss, for the appellee, submitted the cause on his brief.

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

OPINIONBY: WORTHINGTON

OPINION: [*304] [**660] WORTHINGTON, J., delivered the opinion of the Court.

   On June 17, 1907, the original bill of complaint in this case was filed by the appellee, Thomas M. Bannon against Charles W. Green and wife, David G. McIntosh, Jr., James F. Thrift, Seth Hance Linthicum, James S. Armiger and James P. Bannon, a lunatic.

   The allegations of the bill material to this appeal, are substantially as follows: That on the 21st day of February, 1891, the plaintiff had purchased a tract of land in fee, consisting of 225 acres, situated in the Fourth Election District of Anne Arundel County, adjoining the lands whereon is located the Maryland House of Correction, and that the said lands were conveyed to the complainant by a deed of that date, which was duly recorded. [***2] A copy of the deed filed as an exhibit to the bill, shows that the consideration recited therein was[**661] the sum of $2,000.

   The bill further avers that on the same day, to wit, on February 21, 1891, the complainant borrowed of John W. Kaufman, the sum of $1,000 to pay the purchase money for said land, giving Kaufman at the same time a mortgage thereon to secure the payment of the sum borrowed, "which mortgage," it is alleged, "is still unreleased and unpaid." No copy of the mortgage appears in the record, however, and its terms and provisions are therefore not before us.

   The bill further avers that on the 20th day of March, 1891, the complainant, Thomas M. Bannon, sold a one-half interest in this farm to James S. Armiger but, that in the year 1894 Armiger sold the one-half interest back again to Thomas M. Bannon, who instructed his brother James P. Bannon, an attorney-at-law, to draw the deed for a reconveyance of the property to the complainant, and also gave his [*305] brother $500 with which to pay Armiger for his interest therein. But that James P. Bannon, against the instructions and wishes of the complainant, and without his knowledge had the said Armiger to[***3] convey said land to himself.

   That the complainant being employed by the United States Geological Survey was frequently called long distances from his home, for long periods of time, and for that reason was induced by his brother to convey said land to Charles W. Green, now one of the defendants in this case, so that in case a sale of the property should be effected, a speedy conveyance thereof could be made to the purchaser.

   A copy of the deed of conveyance to Green appears in the record as an exhibit to the bill of complaint, and shows the deed to have been dated July 16th, 1901, and to have been made and executed both by Thomas M. Bannon and James P. Bannon, the consideration named therein being, "the premises and one dollar," though the premises recite nothing that could be construed as a consideration, beyond the one dollar named therein.

   The bill then further avers, that since the said conveyance to Green he (Green) had frequently acknowledged and recognized the complainant as the owner of the said tract of land, and that the complainant had instructed him not to convey said land to any one as he was holding it in the hope of selling it to the State of Maryland. That notwithstanding[***4] these instrustions, Green and wife on the 11th day of December, 1906, conveyed the property to the defendants David G. McIntosh, James F. Thrift, and Seth Hance Linthicum, in fee, for the nominal consideration of one dollar. That until within the last two months before the filing of the bill the complainant had supposed the title to the whole tract was in himself, since he purchased the half interest of Armiger, during all of which time he had paid the interest upon the mortgage debt and also all taxes on the land.

   The bill then averred, that all three of the deeds above mentioned, to wit: (1) The deed from James S. Armiger to James P. Bannon dated November 14, 1894. (2) The [*306] deed from Thomas M. Bannon and James P. Bannon to Charles W. Green dated July 16th, 1901, and (3) The deed from Charles W. Green and wife to David G. McIntosh, Jr., James F. Thrift and Seth Hance Linthicum, dated December 11, 1906, were without legal consideration, and were fraudulent and void. The prayer of the bill was that these several pretended and fraudulent deeds should be set aside and annulled, and that James A. Armiger be decreed to make a conveyance of his one-half interest in said tract[***5] of land to the complainant.

   Charles W. Green, and wife filed their answer to the bill of complaint on January 27th, 1908, but Messrs. McIntosh, Thrift and Linthicum demurred thereto. 

   On December 5, 1908, the complainant filed a petition in the case, setting forth that the interest on the mortgage from Thomas M. Bannon to John W. Kaufman, mentioned in the bill of complaint, had been paid until Feb. 21, 1909, but the defendant, James F. Thrift cunningly conniving to defeat the just rights of the plaintiff, and seeking to defraud him of his rights in the premises, and of his interest in said real estate had recently, on October 5, 1908, procured from John W. Kaufman an assignment of said mortgage, and had proceeded to advertise the mortgaged tract of land for sale. The petition further alleged, that the property in question was already involved in this equity cause, and that James F. Thrift's rights could be adjudicated herein.

   It was further alleged that the sale of the property in the mortgage proceedings would be ruinous to complainant's rights, and destroy his right to have the Court pass upon the fraudulent conveyances, and that the property with this cloud upon its title would[***6] not sell for one-third its value.

   The prayers of the petition were, that James F. Thrift assignee, be made a party defendant to the cause, and that an injunction might be issued restraining Thrift from making sale of the real estate, as set forth in the advertisement.

   On the same day an order was passed making James F. [*307] Thrift, assignee a party to the proceedings, and although no bond was filed the writ of injunction was granted as prayed.

   On January 22, 1909, James F. Thrift, assignee of the mortgage above mentioned, dated February 21, 1891, without having been summoned to appear, voluntarily appeared and filed his answer to the aforementioned petition, denying that the interest on the mortgage had been paid to February 21st, 1909, but alleging that in fact such interest had been paid only to August 21, 1908, and that both principal and interest were overdue.

   The answer to the petition also denied that there was any fraud in the acquisition of the mortgage, denied that the appellant's rights under the mortgage could be adjudicated in this cause, or that a sale under the mortgage [**662]would be ruinous to the complainant's rights, averring that as assignee of a[***7] mortgage made antecedently to the so-called "fraudulent conveyance," his rights could not be affected by these proceedings, and praying that the order of injunction theretofore passed might be rescinded.

   Without waiting for the action of the Court on this answer, the appellant on the same day, January 22, 1909, entered an appeal from the order of December 5, 1908, making him a party defendant and granting the writ of injunction to restrain him from making sale of the real estate as advertised.

   The only question presented by this appeal is whether the order of Court of December 5, 1908, making the appellant, as assignee, a party defendant and directing the writ of injunction, restraining him from making sale as advertised of the mortgaged premises, was properly passed or not.

   An examination of the petition for an injunction discloses that it contains no averment, as required by Art. 66, sec. 16 of the Code, to the effect that the mortgage debt and interest had been paid, or that the assignee of the mortgage had refused to give credit for any payment thereon, nor was any fraud, stated with particularity, charged in the petition.

   [*308] Neither did the petitioner comply with[***8] section 18 of Art. 66 by filing an approved bond for the protection of the assignee in case the injunction should subsequently be dissolved. Ordinarily, without these provisions being first complied with, no injunction to restrain the sale of the mortgaged premises could properly be granted. The averment in the petition that the interest on the mortgage had been paid was not sufficient, as both principal and interest if due must be paid, or duly tendered before an injunction for such purpose can be lawfully authorized. As was said in the case of Powell v. Hopkins, 38 Md. 1: "The complainant must pay, or bring into Court to be paid, the principal and legal interest, before he can claim the intervention of a Court of Equity."

   As to the question of fraud, the only allegation in the petition in this case that might be considered an allegation of fraud is that, "James F. Thrift, cunningly, conniving to defeat the just rights of the plaintiff, and in fraud of his rights in the premises and seeking to deprive him of his interest in the real estate mentioned, and set forth in the said bill of complaint, has recently, to wit, on the 5th day of October, in the year 1908, [***9] secured from John H. Kaufman an assignment of said mortgage, and has proceeded to advertise said tract of land for sale."

   This is not a compliance with the 16th section of Art. 66, which provides that the fraud "shall be particularly stated in the bill or petition for injunction."

   Besides this, the filing of a bond as required by section 18, is a condition precedent to the granting of an injunction in such cases.

   In the brief of counsel for appellee, it is contended, however, that the above mentioned provisions of the Code have no application to this case, and that a sale under a power in the mortgage should not be allowed to proceed where the title to the property is in dispute, and litigation, so that the sale might either result in a sacrifice of the property, or cloud a title otherwise, sought to be established, citing 27 Cyc. 1457. [*309] But the answer to such contention, is that the mortgage in question antedates, by several years, the deeds alleged to be fraudulent conveyances, which it is sought to have set aside, and therefore any litigation in regard to the latter, affect only the equity of redemption, and cannot affect the rights of the appellant as assignee [***10]of the mortgage, unless such rights conflict with his duty as one of the joint owners of the equity of redemption, as will now be alluded to.

   It is suggested in the brief of counsel for appellee, that the property in question was conveyed to McIntosh, Thrift and Linthicum in trust for the benefit of the creditors of James P. Bannon, and it is argued that the property being held in trust, the presumption is that the mortgage was purchased for the benefit of the trust estate.

   But although the inference could be drawn from the allegations in the original bill, that Green held the property in trust for Thomas M. Bannon, yet there is no suggestion, even, of a trust in favor of James P. Bannon, and under the allegations of the bill, it is not apparent how such a trust could arise, but at any rate, no question of trust is presented by this appeal. Such question may however be inquired into and determined, by a proper petition, fairly presenting such question to the lower Court.

   As we have said, the only question presented for our consideration, by the record, is whether the order of December 5, 1908, was properly granted or not, and we hold that it was not. Such order of the lower[***11] Court will therefore be reversed, the injunction dissolved, the petition dismissed, and the cause remanded for such further proceedings as may be deemed desirable.

   Order reversed with costs and petition dismissed. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. ELIZA S.CARR. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
111 Md. 141; 73 A. 668; 1909 Md. LEXIS 104

 June  30, 1909, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.), where there was a judgment on verdict for the plaintiff for $200.
 
Plaintiff's 2nd Prayer.--If the jury find from the evidence in the case that the road described in the declaration was a public road of  Anne Arundel  County and that the bridge mentioned in said declaration was a part of said County Road; and if the jury further find, that the plaintiff whilst driving on and over the said bridge on or about the 10th of June, 1908, and using due care and caution was injured by reason of the defective condition of said bridge, resulting from the negligence of the defendant in not keeping the same in repair, then the defendant is liable to the plaintiff in this action and their verdict must be for the plaintiff. (Granted.)

DISPOSITION: Judgment reversed with costs and new trial awarded.

CORE TERMS:  bridge, repair, prayer, unsafe, declaration, horse, driving, travel, demurrer, thrown, broke, plank, duty, contributory negligence, public road, work done, repairing, teams, levy, guilty of contributory negligence, entitled to recover, evidence tending, good repair, negligently, supervision, authorize, traveling, breaking, engineer, instruct

COUNSEL: James W. Owens, for the appellant.
 
A. T. Brady, for the appellee.

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

OPINIONBY: THOMAS

OPINION: [*144] [**668] THOMAS, J., delivered the opinion of the Court.

   The appellee brought suit against the County Commissioners of Anne Arundel County[***2] to recover for injuries claimed to have been sustained by her while driving over a bridge on one of the public roads of said county, by reason of the negligence of the defendant in failing to keep the bridge in proper repair. The Court below overruled the demurrer to the amended declaration, and the trial of the case resulted in a verdict[**669] and judgment in favor of the plaintiff for $200 from which judgment the defendant appealed.

   The declaration, which contains two counts, states, in the first count, that one of the public roads of Anne Arundel County, "to wit: A road leading from the Reservoir to Lusby's School House, near Chesterfield, in the Second District of said county, was negligently and carelessly suffered by said defendants to be out of repair and unsafe for travel, and by reason of negligence of said County Commissioners the plaintiff on or about the 10th day of June, in the year nineteen hundred and eight, while traveling over said road, and that while the plaintiff was exercising due, proper care and caution, was greatly injured by reason of the horse she was driving breaking through a bridge on said road and she being thrown from the vehicle in which she was[***3] driving, from which injury the said plaintiff suffered great bodily pain." And, in the second count, "That one of the bridges on the road leading from the Reservoir to Lusby's School House, near Chesterfield, in the Second District of Anne Arundel County, which said bridge was then and there a part of said public road, was negligently and carelessly suffered by said defendants to be out of repair and in an unsafe condition for travel and by reason of the negligence and carelessness of said County Commissioners, allowing said bridge to be out of repair and in an unsafe condition for travel, the [*145] said plaintiff on or about the 10th day of June, in the year 1908, whilst traveling over said road and bridge and whilst using and exercising due care and caution was thrown from the vehicle in which she was riding and was greatly injured, by reason of the horse breaking through said bridge, from which injury the said plaintiff suffered and continues to suffer great bodily pain," etc.

   The ground on which the defendant demurred to this declaration is that under the Act of 1908, Chapter 654, a local law for Anne Arundel County, the defendant is not liable for injuries caused by the[***4] condition of the public roads of the county, and counsel for the appellant relies entirely upon the decision of this Court in the case of Baltimore County v. Wilson, 97 Md. 207. In that case the Court was dealing with the Act of 1900, Chapter 685, and after setting out the several provisions of the Act said: "It is apparent from this synopsis of the Act of 1900, that it not only introduces into the management of the public roads of Baltimore County, many details of administration not found in the general law, but it deprives the County Commissioners of almost the entire charge and control of the roads and imposes that duty upon a new set of officials, for whose appointment it makes provision. It creates a Board of Road Commissioners for each district, and requires them to 'take charge of all the roads and bridges in their respective districts' and keep them free from hindrances and obstructions, to adopt a system for repairing and improving them, and to cause the repairs and improvements to be made and to purchase the materials requisite for that purpose. The Road Commissioners receive a fixed salary and are not made subject to the control of the County Commissioners [***5]in connection with the repair or improvement of the roads or the purchase of materials. On the contrary, the Act directs them to report the condition of the roads and improvements made thereon to the Roads Engineer, an independent official appointed by the Governor, and to make monthly statements of their expenditure for labor and material to the same official, to be by him approved, if [*146] correct, and handed to the County Commissioners, who are then required to order their payment after they have been properly audited. The Road Engineer, and not the County Commissioners, is made the adviser of the Road Commissioners in the exercise of the charge conferred upon them by the Act over all the county roads and bridges. Not only are the persons directly charged with the care of the roads thus made practically independent of the County Commissioners, but the power of the latter to levy taxes for the use of the roads is now so limited and restricted as in effect to deprive them of their former discretion as to the application of the funds raised by those taxes."

   By the first section of the Act of 1908, the County Commissioners of Anne Arundel County "are authorized and empowered[***6] to control and regulate the public roads and bridges" of the county subject to the provisions of the Act. The second section authorizes them to levy taxes for the use of the public roads, etc. The third and fourth sections provide for the appointment, by them, of a road engineer, and for his removal from office for incompetency, neglect of duty, etc., and the fifth section provides that he shall have "charge, control and supervision of the working, repairing and reconstructing of the public roads and bridges," and "charge and control of all teams, carts, wagons, machinery, implements and accessories which may be purchased or provided by the County Commissioners for the purposes of the Act," and that he "shall employ such labor, teams and implements as may be by him and by the County Commissioners deemed necessary in connection with the work on public roads and bridges to be paid for by the County Commissioners;" that "He shall not work out or expend upon the roads and bridges of any district of the county a greater amount in any one fiscal year than the amount levied in such district by the County Commissioners as a district road tax, nor shall he expend in any fiscal year upon county[***7] roads and bridges a greater amount than is levied and appropriated by the County Commissioners therefor without first obtaining the written permission of said commissioners so to do;" [**670] that "He shall appear before the County Commissioners at their first meeting in each and every month and make a full and exact statement to them of all work done or contemplated by him and of all money expended;" that "He shall not purchase or order any materials of any kind whatever without first making requisition therefor upon the County Commissioners and securing their written approval of such requisition, and the County Commissioners may either purchase the materials themselves or direct and authorize the County Road Engineer to do so;" that "He shall make annually in writing a detailed report to the County Commissioners of all work done on the public roads and bridges for the year, together with the names of all persons employed by him or under his direction in performing such work, and the amount certified to be due them," etc.

   From the above recital of the provisions of the Act it is apparent that it does not resemble in any important particular the Act of 1900, relating to Baltimore[***8] County, and does not possess any of the essential features upon which this Court based its decision in Baltimore County v. Wilson. The Act of 1908 not only expressly provides that the County Commissioners shall have the power to "control and regulate the public roads and bridges" of the county, but authorizes them to levy the necessary taxes and to provide all teams, implements and materials, etc., for the use of the roads and bridges, the building and repairing of which is to be done under the supervision of the engineer, who is given charge of the teams and machinery furnished by the County Commissioners, but who is forbidden to purchase or order any materials of any kind without their approval, to whom he is required to make a report every month of the work done or contemplated, and the evident intention of the Legislature was not to relieve the County Commissioners of all liability for the condition of the public roads and bridges, but to secure in their construction, repair and maintenance the benefit of skilled knowledge and experience.

   In the case of County Commr's v. Duvall, 54 Md. 350, [*148] JUDGE BRENT, speaking for the Court, said: [***9] "The County Commissioners are specially charged by law with the duty of keeping these in good repair and safe for the travel of the public. Tyson's Case, 28 Md. 510; Walter's Case, 35 Md. 385, and cases above cited. If they fail to do so, and injury results, they are liable in an action at law, not by virtue of any liability at common law, but because they are made so by statute. They are not permitted to excuse themselves by the fact that the Road Supervisor is also required by law to keep the public road in repair, and may be made liable in a penalty or in damages for a failure to do so. Their obligation is a paramount and pre-existing one, and cannot be discharged by the failure of another to do that which they, the Commissioners, are required by law to do." This statement of the law was quoted with approval in the recent case of Adams v. Somerset County, 106 Md. 197.

   But while we can not give our assent to the construction of the Act in question contended by the counsel for the appellant, we think the declaration bad for a different reason. The averments are, in substance, that the defendant was negligent in allowing a bridge[***10] on one of the public roads of the county to be out of repair and unsafe for use, and that by reason of such negligence, while passing over the same, the plaintiff's horse broke through the bridge and she was thrown out, etc., and are entirely too general. The narr. does not specifically state the negligence complained of, that is to say, in what respect the bridge was out of repair or unsafe. It may have been out of repair and unsafe by reason of faulty construction, broken or decayed timbers or planks, or other conditions, and the defendant was entitled to know the particular negligence for which the plaintiff sought to hold it responsible.

   Mr. Poe says (Vol. 1, sec. 562): "The declaration should always describe--the tort for which redress is sought, with such a reasonable degree of certainty as will give fair notice to the defendant of the character of the claim or demand made against him, so as to enable him to prepare for his defense." In the case of Gent v. Cole, 38 Md. 110, this Court [*149] said: "It is one of the first principles of pleading that facts should be stated for the purpose of informing the Court, whose duty it is to declare the law[***11] arising upon those facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse," and, referring to the declaration in that case, that "The statements of the tortious acts complained of, and of the manner in which they effected the injury to the plaintiff, are altogether too general and indefinite to be good on demurrer." And in affirming the ruling of the Court below, sustaining the demurrer to the declaration, this Court, in the case of Jeter v. Schwind Quarry Co., 97 Md. 696, said of the declaration: "It does not specify in what respect the place provided for work was unsafe, or how the want of safety caused the death; it does not specify what tools provided for work were unsafe, in what respect they were unsafe, or how their unsafe condition was connected with the accident." The remaining questions in the case are presented by the exception to the ruling of the Court on the prayers. At the close of the testimony the plaintiff offered three prayers and the defendant four, and to the granting of plaintiff's prayers and the rejection [**671] of defendants' first, second and third prayers the[***12] defendant excepted.

   Plaintiff's second prayer was approved by the Court in the case of Eyler v. County Comm'rs, 49 Md. 257. Plaintiff's third prayer relates to the measure of damages, and is in the usual form where there is evidence tending to show that the injuries sustained were in their nature permanent. There is no such evidence in the record, but as the prayer was not specially excepted to in the Court below, we must assume that there was sufficient evidence to support it.

   By plaintiff's first prayer the jury were instructed as follows: "If the jury find from the evidence in the case that the bridge on the public road of Anne Arundel County (if they find that the bridge is a part of the public road), mentioned in the declaration, was in bad condition, and not mended and repaired, and that in consequence of such condition of the [*150] bridge, the horse that the plaintiff was driving broke through the bridge while the plaintiff was traveling over the same on or about the tenth of June, 1908, and in consequence of the horse breaking through said bridge, that the plaintiff was thrown out of the roadcart in which she was riding and was injured; then their[***13] verdict must be for the plaintiff; provided they shall further find from the evidence that the plaintiff was using due care and caution at the time."

   That instruction amounted to this, that if the bridge was a part of one of the public roads of the county, and was out of repair, and the plaintiff, while using due care, was injured in consequence of its being out of repair, the defendant was liable, and was clearly erroneous, because of its failure to submit to the jury the question of defendant's negligence.

   County Commissioners, except where their duties and responsibilities are modified by local laws, are required to keep the public roads and bridges in their county in good repair and safe for the travel of the public, and are liable for injuries resulting from their failure to do so. But we know of no case in this State that goes to the extent of holding that their liability is that of insurers against accidents occurring on the public roads and bridges, and they can only be held liable where the unsafe condition of the road or bridge which caused the accident is due to their negligence in respect to the duties imposed upon them by law. Adams v. Somerset County, supra. [***14] 

   The defendant by its first prayer asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and the defendant claims that the plaintiff failed to prove that the bridge in question was on one of the public roads of Anne Arundel County. This contention is fully answered by the testimony of Mr. William K. Boswell, who stated that he was one of the road commissioners of Anne Arundel County, and, as such road commissioner, had charge of the road and bridges in his district, including the road on which the bridge in question was located, and that he rode over and examined the [*151] roads and bridges in his district about once a month, including the road and bridge mentioned in this case, and saw that the same were kept in proper repair. It is not necessary, in this connection, to refer to the other evidence in the case, as it is not claimed that the evidence was in other respects legally insufficient, and we think the prayer was properly rejected.

   Nor do we find any error in the rejection of defendant's second and third prayers. There was no evidence in the case tending to show that the plaintiff had been[***15] guilty of contributory negligence. Plaintiff stated that she had no reason to suspect that the bridge was dangerous, and was not anticipating an accident. There is not a suggestion in the evidence in the record that by the exercise of ordinary care she could have discovered the defect in the bridge, which all the evidence tends to show was a latent defect, or that she was not using due care while driving over it.

   Witness, James Cusak, who was at the bridge immediately after the accident, stated that he examined the plank where the horse broke thorough "and found that it was broken on the edge where the two planks came together. That the appearance of the plank on the exposed side did not seem dangerous, but on looking underneath he found that it was considerably decayed."

   Witness, Morgan, said that he had seen the bridge before the accident and it did not seem to need any great repairs, and that after the accident "he saw the plank that Mrs. Carr's horse broke through, and while it appeared all right on the top, it showed evidence of decay on the other side," and Mr. Boswell the road commissioner, testified, in substance, that he had ridden over the bridge within a month before the[***16] accident and examined it and did not discover that it was out of repair or unsafe. To have instructed the jury under such circumstances that if they found that the plaintiff did not use due care, or that the accident could have been avoided by the exercise of due care, she was not entitled to recover, would have amounted to saying to the jury that there was evidence [*152] in the case from which they could find contributory negligence on the part of the plaintiff, when in fact there was no such evidence.

   Where the plaintiff makes out a prima facie case of negligence on the part of the defendant and injury resulting from such negligence, without any negligence on her part directly contributing thereto, the burden is on the defendant to show contributory negligence, and in the absence of any evidence tending to show it, it would be error to grant instructions to the effect that if the jury find that the plaintiff was guilty[**672] of contributory negligence she cannot recover. B. & O. R. R. v. State, use of Hauer, 60 Md. 449; Tucker v. Johnson, 89 Md. 471; Balt. & Ohio R. Co. v. Stumpf, 97 Md. 78; United Rys. Co. v. Biedler, 98 Md. 564;[***17] Consol. Gas. Co. v. Getty, 96 Md. 683.

   But these prayers are defective for another reason. Because the plaintiff was "well acquainted with the bridge," in the sense that she had frequently driven over it, it would not follow that she knew it was dangerous or did not use due care in crossing it. Nor would it have been proper to instruct the jury that if they found that the accident could have been avoided by the exercise of due care plaintiff was not entitled to recover, without requiring them to further find that she did not use due care.

   It follows from what we have said that because of the errors in overruling the demurrer to the declaration and in granting plaintiff's first prayer, the judgment below must be reversed, and the case must be remanded for a new trial.

   Judgment reversed with costs and new trial awarded. 

JAMES R. BRADY et al. vs. J. ROLAND BRADY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
110 Md. 656; 73 A. 567; 1909 Md. LEXIS 84

 June  28, 1909, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Judgment reversed, with costs, and new trial awarded.

CORE TERMS:  surety, prima facie evidence, bound to pay, deceased, promissory note, maker of a note, co-maker, presumed, one-half, custom, prayer, equal amount, contributed, usual course of business, handwriting, admissible, signatures, intestate, jointly, signer, right to contribution, general rule, individually, co-promisor, inasmuch, promisor, drawer, holder, plaintiffs to recover, entitled to recover

COUNSEL: Richard B. Tippett and E. John W. Revell, for the appellants.
 
A. T. Brady (with whom was Jerry L. Smith on the brief), for the appellee.

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

OPINIONBY: THOMAS

OPINION: [**568] [*657] THOMAS, J., delivered the opinion of the Court.

   On the 22nd of December, 1893, the appellee and the late JUDGE JAMES REVELL executed and delivered to the Farmers' National Bank, of Annapolis, the following promissory note:
 
($500).   ANNAPOLIS, MD., Dec. 22, 1893.

   On demand, we jointly and severally promise to pay to the Farmers' National Bank, or order, Five Hundred Dollars, value received.

   J. ROLAND BRADY,

   JAS. REVELL.
 
   JUDGE REVELL died in March, 1908, and after his death this note was found among his private papers, in his safe deposit box in said bank, endorsed as follows:

   In red ink at the top of the note.

   J. R. BRADY

   Demand

   Dec. 22, 1893.

   [*658] In black ink.

Note                                                     $ 500.00
Interest, Nov. 6, '96                                       86.25
                                                         $ 586.25
Paid Nov. 6, '96, by J. R.                                 100.00
                                                         $ 486.25
Interest to Mch. 10, '97                                    10.04
                                                         $ 496.29
Paid Mch. 10, '97, by J. R.                                 60.51
                                                         $ 435.78
28th Sept., '98, Int. pd. to Sept. 10, '98       $ 39.24
18th Mch., '99, Int. pd. to Mch. 10, '99           13.08
5th Apr., 1900, Int. pd. to Mch. 10, 1900          26.16
Sept. 27, 1900, Int. pd. to Sept. 10, 1900         13.08
Mch. 27, 1901, Int. pd. to Mch. 10, 1901           13.08
Feby. 28, 1902, Int. pd. to Mch. 10, 1902          26.16
Sept. 28, 1903, Int. pd. to Sept. 10, 1903         39.22
Mch. 29, 1904, Int. pd. to Mch. 10, 1904           13.07
Sept. 26, 1904, Int. pd. to Sept. 10, 1904         13.07
Int. to 15th May, 1905                                      17.65
                                                         $ 453.43
Int. to Mch. 10, 1904                                       13.07
Int. to Sept. 10, 1903                                      39.22

 [***2]

   On the face of the note was written:

   "Farmers' Nat. Bank.

   Paid May 15, 1905,

   Annapolis, Md.

   Paid in full by Jas. Revell, 15 May, 1905.

   L. D. GASSAWAY, Teller."

   On the 2nd day of May, 1908, the administrators of JUDGE REVELL brought suit to recover from the appellee, J. Roland Brady, the amounts paid by their intestate on account of [*659] said note, claiming that he signed the note as surety for the appellee.

   The narr. contains the common counts in assumpsit, and a special count, charging the payment of the note and interest by JUDGE REVELL, on the 15th day of May, 1905, as surety.

   The case was tried on issues joined on the pleas of never indebted as alleged and never promised as alleged, and on the replication to the plea of limitations, and during the trial three exceptions were reserved, the first and second to rulings of the Court on the evidence, and the third to the granting, at the conclusion of plaintiffs' testimony, of the defendant's prayer taking the case from the jury.

   As the prayer does not refer to the pleadings, in passing on that exception we have [**569] only the evidence to consider, and it is not necessary to determine whether under the pleadings[***3] in the case the evidence was legally sufficient to entitle the plaintiffs to recover.

   The only witness in the case was Mr. Gassaway, cashier of the bank, who testified that he had been cashier of the bank for six years, and had been connected with the bank for twenty or twenty-five years; that JUDGE REVELL was at the time of his death a director of the bank; that the signatures to the note were the signatures of the appellee and JUDGE REVELL; that the note was in the handwriting of JUDGE REVELL, and that "the memoranda and the receipts on the back of the note" were in the handwriting of former employees of the bank, made in the course of their official duties; that the last two receipts were in his handwriting; that the initials "J. R." after the word paid, on the back of the note, "stood for, he supposed, James Revell," and that the last payment on the note was made to him by JUDGE REVELL on the 15th of May, 1905; that he was one of the appraisers of JUDGE REVELL'S estate, and found the note among his private papers, in his safe deposit box in the bank. The note and endorsements thereon were then offered in evidence, and the witness, when asked "to whom the money was paid when[***4] the said note was discounted," replied: "From the usual course [*660] of business, I would say it was paid to J. Roland Brady," and in reply to the question, "Why do you say it was paid to the defendant, J. Roland Brady?" said: "Because it is and has always been the custom of the bank since I have been connected with it to pay the money to the person whose name appears first on the note, and I find J. Roland Brady, the defendant's name, is signed first on the note which I hold in my hand." He further testified that the note did not show, and that he did not have any knowledge of any payment by the defendant on account of the note or interest, and that the account of the defendant in the bank's ledgers shows that the following deposits were made between Dec. 21, 1893, and February 4, 1894:

1893-   
   Dec.               23         C    $ 35.98
   Dec.               26         C       5.00
1894-   
   Jan.                8         C      12.00
   Jan.                9         C      16.00
   Jan.               23         C      30.00
   Jan.               26         C       5.00
   Feb.                6         C       3.50

 
  
And also "showed the following withdrawals:"

1893-   
   Dec.               23     $ 5.00
   Dec.               26      22.98
1894-   
   Jan.                3       2.50
   Jan.                8       1.50
   Jan.                9       1.00
   Jan.               10       2.50
   Jan.               10      10.00
   Feb.                3       1.96

 [***5]

   On cross-examination the witness testified as follows:

   Q. "In your examination in chief you said 'according to the custom of the bank, the money was paid to J. Roland [*661] Brady.'" A. "Yes." Q. "But as a matter of fact you do sometimes pay the money to persons other than first signers?" A. "Yes, sometimes; but it is not usual, as I said it is not the custom of the bank to do so." Q. "Did you not sometimes pay to JUDGE REVELL the money although his name appeared second on the note?" A. "We may have done so." Q. "Then you cannot say from your own knowledge that the defendant received the money from the bank?" A. "No, not from my own knowledge, but from the usual course of business, I would say that he did."

   The rule as stated in 2 Ency. of Evidence, 462, is that: "Two or more persons signing their names to a note as makers, are presumed to be equally bound as such, and the debt evidenced thereby is presumed to have been created for the equal benefit of the joint makers, in the absence of a contrary showing." See also 7 Cyc., 653, and 10 Ency. of Evidence, 51.

   On the face of the note in this case the appellee and JUDGE REVELL are joint makers, and the burden was[***6] on the plaintiffs to show that the deceased signed the note as surety for the defendant. 2 Ency. of Evidence, 462 and note 46; Keyser v. Warfield, 100 Md. 72; Keyser v. Warfield, 103 Md. 161.

   "The order in which makers sign a note does not, of itself, raise a presumption of suretyship," (2 Ency. of Evidence, 462; 27 Am. & Eng. Ency. of Law, 438), and if it was the custom of the bank to pay the amount loaned on a note to the first signer on the note, without any regard to the relations of the makers, then the fact that the money was paid to J. Roland Brady would not tend to show that he received it as principal.

   We do not find in the Record evidence legally sufficient to overcome the presumption that the signers of the note were joint makers, and as the case was tried on the theory that the deceased signed the note as surety, it was, no doubt, on that ground that the Court below granted the defendant's prayer.

   [*662] But it does not follow because of the failure of the plaintiffs to show that the relation of the parties was that of principal and surety, that they were not entitled to recover on the evidence in the case, and[***7] that the case should have been withdrawn from the jury.
 
   When one joint maker of a note is required to pay the whole amount due on the note he is entitled to recover contribution from his co-maker on the count for money paid, etc. 1 Poe's P. & P., sec. 113. As we have said, on the face of the note the deceased and the appellee were joint makers. It was found after JUDGE REVELL'S death among his private papers, and from the note and the receipts thereon and the testimony of Mr. Gassaway it appears that JUDGE REVELL paid the [**570] balance due on the note May 15th, 1905. Ordinarily if a note is found among the maker's papers after his death it will be presumed to have been paid. 8 Cyc., 247.

   In the case of Heald v. Davis, 11 Cush. 318, where the only evidence offered in support of the plea of set-off was the production by the defendant of the note, the execution of which was admitted, the Court said: "We do not question the correctness of the rule as stated in the cases of McGee v. Prouty, 50 Mass. 547, 9 Met. 547, and Baring v. Clark, 36 Mass. 220, 19 Pick. 220, that when a promissory note or bill of exchange[***8] has been negotiated, and afterward comes into possession of one of the parties liable to pay it, such possession is prima facie evidence of payment by him. But this rule of law does not apply to a possession by one of two joint promisors in an action by him to recover of the other one-half the amount thereof. In the former case, the possession is only to be accounted for, in the absence of evidence in relation to it, by the fact of payment, by the party holding it. Not so, as between co-promisors. The possession by one of them is prima facie evidence of payment of the note by them, or one of them; but inasmuch as the possession could not be by each individually, it would be found with one, although both had contributed equally to the payment. In other words, the possession by one does not, as against his co-promisor, raise that inference of exclusive payment [*663] by the holder that would arise where the note was held by an indorser, or a surety, or a sole promisor." That case is cited and relied on in the case of Bates v. Cain, 70 Vt. 144, where the note was produced by the defendant, "without other evidence as to the fact or manner of payment," [***9] and in the case of Craig v. Craig, 3 Rawle 472 (24 Am. Dec. 390), the Court held in a suit by one obligor against his co-obligor for contribution, that the naked fact that the plaintiff was in possession of the bond was not sufficient to show that he paid the whole debt.

   On the other hand, in the case of Chandler v. Davis, 47 N.H. 462, the Court, in announcing the contrary view, said: "When a note or bill is found, after payment is due, in possession of a party, who was bound to pay it, this is prima facie evidence that it has been paid, and that it was paid by the party who has possession of it. 2 Greenl. Ev., sec. 527; Smith v. Smith, 15 N.H. 55. This is a very familiar rule of evidence applied in every day's practice; and the reason of the rule is obvious, for, in the usual course of business, the note will be delivered on payment to the party that pays it. Brembridge v. Osborne, 1 Stark. 374. And there can be no presumption, till the fact is proved, that two or more persons, who owe a debt secured by a note, made up a common purse and paid it out of a joint fund. If such an arrangement[***10] were made we certainly should not expect the note to be left in the hands of one of them without something to show how the business was transacted; and, therefore, in such case, the presumption will be, till the contrary is shown, that the party to the note, who is found in possession of it, paid it, and the whole of it. Where one of two sureties sues the other for contribution, if he produce the note on trial, it is prima facie evidence that he paid the whole of it. In such case the two sureties are equally bound to pay the note, and I find it quite impossible to distinguish that case from this where two joint and several makers are equally bound to pay the debt. In both cases the natural inference is, that the note would be delivered [*664] on payment to the party that paid it, and remain in his hands till the business was adjusted with the other.

   "If there had been but one note in this case, the general rule would apply, that possession of the note by the plaintiff's intestate was prima facie evidence that he paid it. But the reason of the rule applies still stronger to this case, for here were two notes of equal amount, which the two makers were equally bound to pay.[***11] If each paid his part, and for any reason it was found convenient to preserve the notes uncancelled, why was not one left in possession of the intestate and the other in that of the defendant? And this circumstance, that here were two notes of equal amount, which the two makers were equally bound to pay, distinguishes the present case from Heald v. Davis, 11 Cush. 318, cited for the defendant. That case goes upon the assumption that, as both parties were equally bound to pay, it must be presumed that both contributed equally to the payment, and that "inasmuch as possession could not be by both individually, it would be found with one, although both had contributed equally to the payment;" a reason which evidently does not apply to this case, where there were two notes of equal amount and there was no difficulty, if half was paid by each of the makers, in leaving one of the notes in the possession of each. No authority is cited for the decision in Heald v. Davis, and the reason assigned for it is not such as would induce us to follow it without hesitation. It would apply equally well to the case where one of two sureties, who sued the other for contribution, [***12] produced the note, on which they were jointly and severally liable, as is in conflict with the general rule, which we take to be extremely well established, that the production of a note by a party, who is bound to pay it, is prima facie evidence that it was paid by him. 1 Greenl. Ev., sec. 38; Baring v. Clark, 36 Mass. 220, 19 Pick. 220, 227; M'Gee vs. Prouty, 50 Mass. 547, 9 Met. 547, 551."

   In the case of Ingram v. Croft, 7 La. 82, the Court held that the "possession of a joint note by one of the drawers, with a receipt of payment by the holder or possessor [**571] endorsed [*665] on it by the person entitled to receive it, is prima facie evidence of the liability of the other drawer to refund one-half of the note;" and in the case of Dillenbeck v. Dygert, 97 N.Y. 303, the Court said: "We affirm this judgment upon the ground that the note, which was paid by George W. Snell, although extinguished as such by the fact of its payment, remained in the hands of Snell, the evidence of a right to contribution against his co-sureties, establishing both that they incurred the original obligation[***13] to contribute, and the fact of payment by Snell, which made that obligation operative in his favor."

   In the case of Keyser v. Warfield, 103 Md. 161, suit was brought by one joint maker of two notes to recover contribution from the other, and the claim was resisted on the ground that the defendant signed the notes as guarantor and had been discharged by the action of the bank. The record shows that the plaintiff offered evidence tending to prove the genuineness of the signatures to the notes; that he paid the amount due on them, and that the defendant signed the notes as maker, and the Court held "that the plaintiff had made out a prima facie case."

   In the case at bar, unlike the cases of Heald v. Davis and Bates v. Cain, we have, in addition to the fact that the note was found among the private papers of the deceased, the testimony of Mr. Gassaway to the effect that Judge Revell, on the 15th of May, 1905, paid the amount then due on the note, and we think the evidence was sufficient to establish the prima facie right of the plaintiffs to recover from the defendant one-half of the amount paid by Judge Revell on account of the note and interest[***14] within three years prior to the bringing of the suit, and that the case should not, therefore, have been taken from the jury.

   At the time of the payment of the note, on the 15th of May, 1905, the Statute of Limitations had not attached because of the previous payments on the note (Burgoon v. Bixler, 55 Md. 384; Hooper v. Hooper, 81 Md. 155), and when one joint maker of a note pays the debt before it is barred by [*666] statute the statute begins to run as against his right to contribution from the other joint maker from the date of such payment. 9 Cyc. 802; Hooper v. Hooper, supra; Davis v. Humphreys, 6 M. and W. 164.

   We find no error in the rulings of the Court in the other bills of exception. In the first exception the witness was asked to give his opinion as to the ability of the defendant to pay the note from its date to the date of the last payment, and in the second exception he was asked what knowledge he had of the "financial condition" of Judge Revell between the date of the note and the date of its payment, and the Court properly refused to allow the questions to be answered. It[***15] is said in 1 Wigmore on Evidence, sec. 89, that lack of money or other resources is relevant to show improbability of the making of a loan or payment, but that the possession of money is not admissible "as making probable the payment or loaning of money."

   It follows from what we have said that, because of the error in granting of defendant's prayer, we must reverse the judgment below and grant a new trial.

   Judgment reversed, with costs, and new trial awarded. 

ISAAC S NUTWELL vs. THE COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
110 Md. 667; 73 A. 710; 1909 Md. LEXIS 89

 May  20, 1909, Decided  
 June  30, 1909, Opinion filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (THOMAS. C. J., BRASHEARS and FORSYTHE, JJ.)

DISPOSITION: Order reversed, with costs, and case remanded.

CORE TERMS:  license, streets, licensed, exempt, writ of error, motion to quash, subject-matter, exemption, taxation, convicted, Code of Public Local Laws, invalidity, misleading, fined, jurisdiction to hear, well settled, unconstitutionality, presumed, dollars, void, An Act, constitutional provision, writ of certiorari, tax exemption, large class, rates fixed, invalid, inseparably, violating, connected

COUNSEL: Robert Moss, for the appellant.
 
James W. Owens, for the appellees.

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

OPINIONBY: BURKE

OPINION: [**710] [*668] BURKE, J., delivered the opinion of the Court.

   The County Commissioners of Anne Arundel County, under the authority [**711]supposed to have been conferred upon them by the Act of 1908, Chapter 672, struck from the tax books of that county certain vehicles the owners of which had taken out a license as provided by that Act. The appellant, a resident and tax payer of Anne Arundel County, filed a petition for a mandamus in the Circuit Court for that county in which he alleged that the striking of this large amount of personal property from the tax books of the county would materially lessen the taxable basis, and greatly increase the amount of taxes to be paid by the petitioner and other tax payers of the County, as the fund arising from the licenses issued to owners of vehicles is to be applied under the Act exclusively[***2] to the road tax, and the vehicles so licensed are exempt by the Act from taxation for County, State and School purposes. The petition prayed that a writ of mandamus might be issued directed to the County Commissioners directing them to restore to the assessment books of the tax payers named in the petition the specific property which they had stricken therefrom. The ground upon which the petitioner rests his right to mandamus is that the Act of Assembly is unconstitutional.

   The defendants answered the petition and admitted that they had stricken from the tax books the property specified, and asserted the validity of the Act of 1908, Chapter 672, under which they acted. They further averred in their [*669]answer that the appellant refused to take out the license required by the Act, and was arrested; that he prayed a jury trial, and that thereafter he made a motion in the Circuit Court for Anne Arundel County to quash the writ; that the Court held the Act valid and dismissed the motion to quash.

   It is contended that as no appeal was taken by the appellant from the decision dismissing the motion to quash which was based upon the alleged unconstitutionality of the Act, the question[***3] as to the validity of the Act, so far as the petitioner is concerned, is res adjudicata. It is maintained that it was the duty of the petitioner, if he decided to have the constitutionality of the Act passed upon by this Court to have presented the question here on appeal from the refusal of the Court to grant the motion to quash, and inasmuch as he failed to appeal within the time allowed by law, he is now concluded by the judgment of the lower Court. But this Court would have had no jurisdiction to determine the constitutionality of the Act on an appeal from that judgment.  Rayner v. State, 52 Md. 368; Judefind v. The State, 78 Md. 510; Roth v. The State, 89 Md. 524. In Judefind's Case, supra, the plaintiff in error had been tried, convicted, and fined by a Justice of the Peace for violating the provisions of the law prohibiting working on Sunday. He appealed to the Circuit Court for Kent County, and was convicted and fined five dollars and costs by that Court. From that judgment he appealed to this Court upon the ground that the law under which he was convicted was unconstitutional. A motion was made by the Attorney-General[***4] to dismiss the appeal, because no writ of error lies to this Court from the decision of the Circuit Court on an appeal to it from a judgment of a Justice of the Peace. The Court speaking through JUDGE BOYD said: "That motion must prevail. It is well settled in this State that when the Circuit Court has jurisdiction to hear and decide an appeal from a Justice of the Peace its decision is final, and an appeal or a writ of error to this Court will not lie, unless of course the statute authorizes such an appeal or writ of error to this Court. If the traverser desired to contest [*670] the constitutionality of the law under which he was arrested, and have that question property presented for the consideration of this Court, he could have applied for the writ of certiorari upon the specific ground of the unconstitutionality of the law, and the consequent want of power and jurisdiction of the Justice of the Peace to proceed under it. This Court could then have reviewed the judgment of the Circuit Court on an appeal or writ of error. Nor can we review the decision of the Circuit Court on the question of the alleged defects on the face of the warrant and bond."

   While the decision[***5] of the Circuit Court upon the motion to quash is final and conclusive upon the appellant so far as the proceedings in that matter are concerned, because that Court had jurisdiction to hear and determine the questions raised by the motion, and whether it decided rightly or wrongly its judgment could not be reviewed by this Court upon appeal; but any decision as to the validity of the Act cannot deprive this Court of the jurisdiction to decide upon the constitutionality of the Act in a civil case properly before us in which other parties are concerned.

   We will now consider the main question in the case, which is this: Does the title of the Act of 1908, Chapter 672, sufficiently describe its subject-matter as required by section 29, Article 3 of the Constitution of the State? The title of the Act is: "An Act to add two new sections to Article 2 of the Code of Public Local Laws, title 'Anne Arundel County,' sub-title 'Roads,' so as to require all owners of vehicles using public streets and roads in Anne Arundel County to have a license therefor." Section 1 adds two new sections to Article 2 of the Code of Public Local Laws, title Anne Arundel County, to follow immediately after section[***6] 203 X to be known as sections 203 Y and 203 Z. Section 203 Y declares that it shall not be lawful to run, or suffer to be run upon any of the streets and roads in Anne Arundel County a vehicle of any description whatsoever, except Ox Carts, Horse Carts. Farm Wagons, and Milk Wagons, without first having obtained from the Clerk of the County Commissioners of Anne [*671] Arundel County a license at the rates fixed. [**712] It then provides that the money collected from such licenses, and from fines paid for violation of the Act, shall be expended upon the public roads and streets in the district in which the owner of the vehicle resides. Section 203 Z, after making certain provisions requiring the license to be attached to the vehicle and conferring the power to transfer the license, exempts the owner of the vehicle so licensed from the payment of any other tax upon the same. It makes the violation of the Act a misdemeanor, and upon a conviction therefor directs that a fine not exceeding five dollars and costs of prosecution shall be imposed.

   The object of the constitutional provision to which we have referred has been frequently considered by this Court.

   Cases are[***7] so numerous and a number of them so recent that it is unnecessary to discuss them in this opinion. We will rest our decision in this case upon the cases of Kafka v. Wilkinson, 99 Md. 238, and Baltimore City v. Flack, 104 Md. 107. In Kafka's Case, supra, JUDGE JONES said of this provision of the Constitution: "It has received a liberal construction; and the Courts have been reluctant in any case to give it an operation that would defeat the legislative intent. Yet they have not hesitated to strike down legislative Acts that were clear infractions of its purpose and object. These have been declared to be two-fold: 'The first is to prevent the combination in one Act of several distinct and incongruous subjects; and the second is, that the Legislature and the people of the State may be fairly advised of the real nature of pending legislation.' State v. Norris et al., 70 Md. 91, 95, 96. In agreement with this object it has been held that 'though the title need not contain an abstract of the bill, nor give in detail the provisions of the Act, it must not be misleading by apparently limiting the enactment to a much narrower[***8] scope than the body of the Act is made to compass.' Luman v. Hitchens Bros. Co., 90 Md. 14-23. And that it ought not to be such as to divert attention from the matter contained in the body of the Act.  State v. The Schultz Co., 83 Md. 58-62. It would [*672] seem that if the object of the constitutional provision in question is to be respected and it is to have meaning and effect in controlling legislation, the considerations which have just been mentioned must have a controlling effect in applying it."
 
   The mere statement of the substantial provision of the Act demonstrates its invalidity under the rules stated. Under a title to require all owners of vehicles using the streets and roads of Anne Arundel County, there is contained in one section an exemption of a large class of vehicles, and in the other an exemption from all other taxation upon the vehicles licensed.

   There is not the faintest suggestion in the title of the Act to lead anyone to suspect that such exemptions were, or might be, introduced in the law. In these respects the title is not only too narrow, but it is clearly misleading. Besides this, one of the provisions of[***9] the Act--that which exempts certain property from taxation--is wholly foreign to the subject-matter described in the title. It was urged that the Court might strike down this exemption if it found it was not fairly comprehended in the title, and hold the balance of the Act valid. CHIEF JUDGE BOYD, in Somerset County Com'rs v. Pocomoke Bridge Co., 109 Md. 1, stated the circumstances under which it is proper to apply the rule suggested: "It is well settled that it is not necessary, or proper, to strike down an entire Act because one provision is void, 'unless the provisions are so connected together in subject-matter, meaning or purpose that it cannot be presumed the Legislature would have passed the one without the other.' 26 Am. and Eng. Ency. of Law, 570. That principle has been announced by this Court over and over again, and it has been applied to cases in which the valid and void provisions were in the same section of the Act.  Mayor, etc., of Hagerstown, v. Dechert, 32 Md. 369; Steenken v. State, 88 Md. 708."

   The tax exemption feature of this Act is one of its essential parts, and was no doubt inserted to secure[***10] its passage. It is inseparably connected with the whole scheme of the Act. It is so important that it cannot be presumed that the Act would [*673] have passed without it. Under such circumstances the rule suggested by the appellee cannot be applied. For the reasons assigned we reversed the order appealed from and remanded the case for further proceedings in the per curiam petition filed May 20th, 1909.

   Order reversed, with costs, and case remanded. 

ANNAPOLIS GAS AND ELECTRIC LIGHT COMPANY vs. OSCARFREDERICKS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
109 Md. 595; 72 A. 534; 1909 Md. LEXIS 28

 January  27, 1909, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (FORSYTHE, J.), where there was a judgment on verdict for the plaintiff for $500.
 
Defendant's 1/2 Prayer.--That there is no evidence in this case legally sufficient to entitle the plaintiff to recover and the verdict must be for the defendant. (Refused.)
 
Defendant's 1st Prayer.--If the jury find that the plaintiff was damaged as alleged in the declaration and that said damage was caused by want of ordinary care on the part of the plaintiff, then he is not entitled to recover, although the jury may find that the wires of the defendant company at the time of said damage were out of repair. (Rejected.)
 
Defendant's 2nd Prayer.--The jury is instructed that the uncontradicted facts in the case show that the plaintiff directly contributed to his own injury and the verdict must be for the defendant. (Rejected.)
 
Defendant's 3rd Prayer.--If the jury shall believe from the evidence that the plaintiff, by the exercise of due caution and care, could have avoided the accident complained of, by such exercise of ordinary care and caution, and if they shall find that the plaintiff was guilty of contributory negligence in not [***2]exercising due care and caution, then their verdict must be for the defendant. (Granted.)
 
Defendant's 4th Prayer.--That in order to enable the plaintiff to recover in this action, the conduct of the defendant or its agents must be shown to be grossly careless and that the exercise of the proper and reasonable caution and prudence on the part of the plaintiff would not have prevented him from injury, and that the burden of proving such negligence is on the plaintiff. (Granted.)
 
Defendant's 4 1/2 Prayer.--That if the jury shall find from the evidence that the accident in question could have been avoided by the exercise of ordinary care and caution on the part of the plaintiff, he is not entitled to recover. (Rejected.)
 
 Defendant's 5th Prayer.--That if the jury find from the evidence that the injury complained of would not have occurred if the plaintiff, in crossing the said bridge, had not gone on the driveway, but that he could have crossed said bridge in safety by taking the way provided for pedestrians, that the accident would not have occurred, and if they shall so find, they shall find that he was a trespasser upon the driveway, and that then he is not entitled to[***3] recover in this case. (Rejected.)
 
Defendant's 6th Prayer.--If the jury find that the plaintiff was trespassing on the right of way not intended for pedestrians, their verdict shall be for the defendant. (Rejected.)

DISPOSITION: Judgment reversed and a new trial awarded, with costs.

CORE TERMS:  wire, bridge, prayer, highway, electric wire, strung, lawfully, sagging, driveway, happened, medical expert, south side, constructed, insulation, misleading, one-half, village, street, floor, degree of care, sagged, plants, properly rejected, public highway, next morning, jury to find, new trial, admissible, pedestrian, diligence

COUNSEL: James W. Owens and Joseph C. France, for the appellant.
 
James M. Munroe (with whom was Robert Moss on the brief), for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [**535] [*598] BRISCOE, J., delivered the opinion of the Court. 

   The appellee brought suit against the appellant company in the Circuit Court for Anne Arundel County to recover damages for an injury sustained, alleged to have been caused by contact with an electric wire charged with electricity, maintained and operated upon a public bridge connecting the City of Annapolis and the village of Eastport.

   The declaration charges that the bridge is a public highway and the wires are hung and suspended over and upon poles controlled by the defendant upon the streets of the city and village and upon the bridge for the purpose of doing a general[***4] electric light business in the City of Annapolis and the village of Eastport. That the wires were permitted to become and be without proper insulation, and by reason thereof contact with the wires was dangerous to life, and the defendant while lawfully using and passing over the bridge without any negligence on his part came in contact with the wires and was injured.

   The record contains four bills of exceptions. Three relate to the admissibility of evidence and the fourth as to the rulings of the Court on the prayers. The verdict and judgment were in favor of the plaintiff and the defendant has appealed.

    The first exception was taken to the ruling of the Court in allowing the plaintiff to testify as to the condition of the wires subsequent to the injury. The plaintiff was asked the following question:

   "Did you make any examination of the wires at the place where you were injured after the injury; if so, how soon after?

   "A. I went there early the next morning to see the condition of the wires at the place where I was shocked and burned.

   "Q. What did you find to be the condition of the wires?

   "A. I examined the wires early next morning at the place [*599] where I was burned[***5] and found the wires in very bad condition and uninsulated and also sagging down from a foot to eighteen inches."

   The general rule is well settled that evidence of the subsequent condition of the place where the accident occurs is not admissible to show a negligent condition at the time of the injury, because the question of negligence is to be determined by the actual condition at the time of the injury. There are certain well-recognized qualifications and exceptions to this rule, but as the facts of this case do not bring it within any of those exceptions, they need not be discussed here.

   There was no evidence upon the part of the plaintiff or the other witnesses to the effect that the insulation of the wires was defective or that they sagged down from a foot to eighteen inches at the time of the alleged injury at the point or place where the accident is alleged to have happened. In the case of Electric Light Co. v. Lusby, 100 Md. 634, it was said it was error to admit this character of testimony, because the effect of the testimony as introduced was to show that the insulation of certain of the defendants' wires was defective at other points and on other occasions[***6] than at the point of contact where the accident happened. The testimony therefore was too remote and misleading and presented an issue of negligence not involved in the case. Ziehn v. United Electric Co., 104 Md. 48.

   In this case, the wire was not on or over the highway, but was strung along the [**536] south side of the bridge over the water and at a distance of nine feet and five inches from the floor of the bridge. The evidence tended to show that the wire as originally constructed was properly placed and located as to the safety of the public, because it was beyond the reach of those properly using the bridge. The plaintiff testified that on the night of August 8th, 1907, he went down on the bridge to get the air. While there he was attracted by the sound of a graphaphone and went to the south side of the bridge, and while standing on the floor of the bridge, leaning on the rail, between the second and third truss of the bridge from the [*600] Eastport side, "a puff of wind blew my hat off, and I grabbed for it and grabbed a live electric wire."

   It was clearly incumbent upon the plaintiff to show, by competent evidence, that the wire sagged or slacked[***7] at the time of the accident and at the point where he was injured--that is, between the trusses where he was standing on the bridge--otherwise there could be no recovery in the case. The condition of the wire on the day after the accident, under the facts of this case, was not legally sufficient proof of its location and condition at the time and at the point or place of the injury. There was error in the ruling upon this exception. 

   The second and third exceptions are practically the same, and relate to the admission of the testimony of Dr. L. B. Henkel, who testified as a medical expert. There was no error in the rulings set out in these exceptions, and we do not understand they are seriously pressed by the appellant. Dr. Henkel testified that he was a graduate of the Maryland University School of Medicine and had practiced medicine for five years. A sufficient foundation was laid for the introduction of his testimony and the objections raised on those exceptions were properly overruled.

   The fourth exception embraces the rulings of the Court upon the prayers.

   The plaintiff's first and second prayers were clearly erroneous and should have been rejected.

   The vice of the first prayer[***8] consisted in the omission to leave to the jury to find whether the wire was sagging at the time of the injury at or near the place where the accident occurred, so as to be dangerous to persons, using due care, while lawfully using the bridge, and that the defendant had knowledge or could have, by the exercise of ordinary diligence, ascertained that the wire was so sagging as to be dangerous, provided they found the wire was originally constructed in a proper manner at the place of the accident.

   The second prayer asserted an abstract proposition of law, and was as follows: That the degree of care required by the [*601] law of individuals or corporations using dangerous agencies in the prosecution of their business on the public highways is proportionate to the danger involved in the use of such agency, and that the greater the danger involved to persons lawfully using said highways with due care, the greater the degree of care required in the use of such dangerous agencies, to prevent injury to persons so lawfully using the highway. This prayer was manifestly too general and misleading under the facts of this case, and should have been rejected. McDonald v. Moore, 68 Md. 321; [***9]Md. Central R. Co. v. Neubeur, 62 Md. 391.

   We find no error in the ruling of the Court upon the prayers submitted on the part of the defendant. They will be set out in the report of the case, and need not be fully discussed here. The defendant's third and fourth prayers were granted, so the exception on this branch of the case relates to the rejection of the defendant's prayers number one-half, one, two, four and one-half, five and six.

   The prayer marked one-half was a demurrer to the evidence and was properly rejected. The first, second and four and half prayers submitted the question of contributory negligence on the part of the plaintiff, and was covered by the defendant's third and fourth prayers, which were granted. The fifth and sixth prayers asserted a proposition of law as to trespassing upon the driveway of the bridge not applicable to the facts of the case, and were properly rejected.

   The facts disclosed by the record in this case clearly distinguish it in principle from the case of W. U. Tel. Co. v. State, use of Nelson, 82 Md. 293, 33 A. 763, relied on by the appellee. In Nelson's Case the telephone wire had been hanging[***10] over the feed wire for at least two weeks, and the Court very properly said under the facts of the case: "The privileges so granted, thus to encumber the public highway with appliances so likely to become dangerous to the public safety unless properly employed and controlled, imposed upon them, and each of them, the duty of so managing their affairs as not to injure persons lawfully on the streets. They owed to Nelson [*602] that his lawful use of the street should be substantially as safe as it was before the telegraph and railway plants had so occupied it. It was their plain duty not only to properly erect their plants, but to maintain them in such condition as not to endanger the public."

   In the case at bar the wires were strung along the south side of the bridge, and not on or over the highway. As originally strung, they appear to have been properly located as to the safety of the public properly using the bridge. They were also strung where the accident happened on the driveway of the bridge, and not on the walk-side prepared for pedestrians.

   It follows, the judgment will be reversed because of the errors indicated and a new trial will be awarded.

   Judgment reversed and [***11]  a new trial awarded, with costs. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY AND WALTERW. CROSBY, ENGINEER, ETC., vs. THE UNITED RAILWAYS AND ELECTRIC COMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
109 Md. 377; 72 A. 542; 1909 Md. LEXIS 30

 January  20, 1909, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (BRASHEARS, J.).

DISPOSITION: Order affirmed with costs.

CORE TERMS:  street, track, repeal, charter, paving, brick, constructed, repair, feet, ordinance, vitrified, rail, telford, Shoemaker Law, chief engineer, Shoemaker Road Law, street railway, macadamized, expenditure, pavement, margin, stone, pave, bids, injunction, railway, highways, specifications, supervision, predecessor

COUNSEL: James W. Owens, for the County Commissioners of Anne Arundel County, appellants.
 
Samuel K. Dennis (with whom was James U. Dennis on the brief), for Walter W. Crosby, appellant.
 
Joseph C. France and James M. Munroe, for the appellee.

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

OPINIONBY: SCHMUCKER

OPINION: [**543] [*379] SCHMUCKER, J., delivered the opinion of the Court.

   The appeals in this case are from an order of the Circuit Court for Anne Arundel County overruling the appellants' demurrers to the appellee's bill for an injunction. The bill had been filed by the complainant in its two-fold capacity of a State and County taxpayer and the owner of property especially affected by the proceeding, which it sought to enjoin.

   [*380] The main purpose of the injunction, asked for by the bill, was to restrain the defendants from proceeding with the execution or performance of a contract for the repaving of First street, commonly known as Light street No. 2, in the village of Brooklyn, purporting to have[***2] been made in accordance with a plan and specifications prepared under the supervision of the State Geological and Economic Survey for such repaving. The bill of complaint also prayed that sec. 196 of chap. 654 of the Acts of the General Assembly of 1908 be declared void in so far as it purports to authorize the County Commissioners of Anne Arundel County to compel the appellee to remove and relocate its existing tracks and overhead work on First street and repave certain portions of the street with vitrified brick, and that the County Commissioners be restrained from proceeding thereunder.

   Both defendants demurred to the bill, but their demurrers were overruled by the order appealed from which directed the injunction to issue as prayed. Before the hearing of the demurrers the bill was amended by consent by adding thereto certain additional allegations of fact to be treated as if they had formed part of the bill when it was filed. Those allegations will be treated as part of the bill for the purposes of this opinion.

   The principal allegations of the bill, as amended, are:

   That the complainant, as successor of the Baltimore and Curtis Bay Railway Company, owns and operates a double[***3] track electric railway over the portion of First street sought to be repaved which extends about 1600 feet southerly from the county terminus of the long bridge.

   That the tracks on First street were laid by its predecessor in strict conformity with the provisions of its charter (chap. 505 of Acts of 1890) which required them to be laid on the margin of the streets or roads occupied by them so as to leave a width of at least fourteen feet for vehicular traffic "unoccupied and undisturbed by said track or tracks."

   That at the time the tracks were laid First street was private property and had not become a public road or street [*381] of Anne Arundel County, and therefore the complainant had acquired a private right of way over it by a deed, from its owner, the South Baltimore Harbor and Improvement Co., of which a copy is filed with the bill as an exhibit. At the time the charter of complainant's predecessor was granted and when the tracks were laid on First [**544] street and ever since then sec. 344 of Art. 23 of the Public General Laws of Maryland has provided, that: "In all cases where any passenger railway company uses the road bed or any portion thereof of any turnpike, [***4] street or road in any county of this State, it shall at all times keep in good and proper repair not only the portions of said turnpike, street or road which may be embraced between the rails of its track but also that part which shall extend for a distance of two feet on either side of said rails." That the complainant has fully complied with not only the requirements of its charter as to the location of its tracks but also with the provisions of the law in reference to keeping in repair the streets and roads on which they are located, and it is willing to continue to do so.

   The bill further alleges that the defendants the County Commissioners and Walter W. Crosby as Chief Engineer of the State Geological and Economic Survey have entered into an arrangement for paving the portion of First street, traversed by the complainant's railway tracks, which is now an unpaved country road, with vitrified brick and the County Commissioners have awarded the contract therefor to H. E. Gray in pretended but not real conformity with the provisions of chap. 225 of the Acts of 1904, commonly known as the Shoemaker Road Law. That the said arrangement for so repaving First street is illegal and void[***5] because, the Shoemaker Road Law contemplates the construction or improving of public roads and highways at the joint expense of the State and County with macadamized or telford or other stone road or a road constructed of gravel or other good material, but it neither contemplates nor authorizes the paving of roads with vitrified brick which is far more expensive than either "telford" or "macadam" systems of road construction, which [*382] use broken stone and are similar in character, and that a brick pavement would not be suitable for a road like First street.

   It is further alleged that even if an arrangement for the paving of First street with vitrified brick could be made under the provisions of the Shoemaker Road Law the defendants in their attempted arrangement to utilize that law have failed to comply with its material provisions in that:

   (a) No written notice was given to the Chief Engineer of the Survey on or before the 1st of March, 1908, of the intention of the County Commissioners to improve First street under the provisions of the Act as required by its first section.

   (b) Nor do the records of the Survey show that there was ever any application made to it[***6] for or any consideration or approval by it of the paving or macadamizing of said street as required by section 2 of the Act.

   (c) The advertisement for bids for the paving having run for but twelve days was not made in conformity with the provisions of section 6 of the Act which required it to be published for two consecutive weeks.

   (d) The contract for said paving was awarded by the Commissioners at the price of $12,100.00 (being $506.00 in excess of the estimate therefor of $11,594.00 made by the Chief Engineer of the Survey), in direct violation of section 7 of the Act which provides that "if all bids exceed the amount specified no contract shall be given."

   (e) That there is an agreement between the County Commissioners and the Chief Engineer of the State Geological and Economic Survey under which the County Commissioners are to receive from the State, not one-half of the cost of paving the street with vitrified brick, but one-half of what a macadam road would cost if it were to be constructed in place of the brick pavement and no more.

   The bill further alleges that the County Commissioners, under the assumed authority of the Act of 1908, chapter 654, have served[***7] upon the complainant a written notice requiring [*383] it at its own expense to take up its tracks from the margin of said street and relay the same in the middle of the street with girder rails instead of the "T" rails now in use and to pave between the tracks as relaid and for two feet on the outside of the outer rails with vitrified brick, all of which will involve the new construction of 1600 feet of the railroad at an expenditure of about $16,000 upon a line which is even now operated at a loss. That the portion of said Act under which the County Commissioners assumed to act in serving said notice is found in section 196, and is as follows: "The County Commissioners shall have authority to compel any trolley or street railway company having or laying tracks on the public roads, avenues or streets of Anne Arundel County to change the rails and location of said tracks so as to make said roads, avenues or streets safer or better for travel, and to compel the said company or companies to pave and keep in repair the roads, avenues or streets covered by said tracks and extending two feet on the outer limits of either side of said tracks with the same kind of paving material with[***8] which the remaining portion of said roads, avenues or streets may be paved. The failure of any street railway company to comply with the provisions of this section shall be a misdemeanor and punishable by a fine of twenty dollars a day for each day the said railway company shall neglect to comply with the provisions of this section."

   The bill then charges that the said portion of the Act of 1908, chap, 654, is invalid under sec. 29 of Art. III of the Maryland Constitution because the title to the Act, which is a local law purporting to amend the road law of Anne Arundel County, gave no notice that it embodied an attempt to amend the charter, of complainant's predecessor, by which the location of the tracks on said street is fixed and defined, or to alter the complainant's obligation as defined by sec. 344 of Art. XXIII of the Code of 1904, or to impose upon complainant [**545]the cost and expense of reconstructing its tracks and overhead work, or to attempt to make it a misdemeanor for it to exercise its charter rights. It is further charged that [*384] said portion of the Act of 1908 is unconstitutional because it is special legislation intended to apply to and applicable[***9] at the time of its passage only to the case of the complainant. In that connection it is further alleged that at the Session of 1908 there was introduced on February 21, 1908, a bill known as House Bill No. 273 to require the Baltimore and Curtis Bay Electric Railway Company to move its tracks on First street in Brooklyn and change the same to girder rails and pave and keep in repair the pavement between said tracks and for two feet on either side thereof; and that the said bill failed of passage, and that subsequently the bill, which became the Act of 1908, chap. 654, and which by its title gave no notice to the complainant that its rights were intended to be thereby affected, was introduced and passed as House Bill No. 273.

   The prayer of the bill is for a preliminary injunction restraining the County Commissioners from issuing or attempting to enforce any order requiring complainant to change the location of its tracks or to pave the street with an improved pavement, and the Chief Engineer of the State Geological and Economic Survey from approving the contract for the proposed paving or superintending its execution, and also restraining the County Commissioners from receiving any [***10]State money for the said proposed paving or spending any County money thereon; and that the portion hereinbefore quoted from the Act of 1908, chap. 654, may be declared unconstitutional and void and the defendants perpetually enjoined from proceeding thereunder; and that it may be adjudged and decreed that no State money can be expended under the Shoemaker law for vitrified brick pavement; and for general relief.

   It is apparent from the allegations of the bill that the order overruling the demurrers to it was properly passed and must be affirmed, if for no other reason, because of the failure of the defendants to comply with the requirements of the Shoemaker Road Law in the several respects already mentioned. At the hearing of the appeal the appellants contended [*385] that those requirements of the law were intended to safeguard the interests of the State alone and not be invoked on behalf of private interests; or that they were to be regarded as merely directory, and requiring only a substantial compliance with their terms. They also relied, in support of their proceedings in reference to paving First street, upon the general powers of the County Commissioners in reference[***11] to the construction and repair of public roads, which sec. 15 of the Shoemaker Law declares that its enactment was not intended to abridge. 

   We cannot accept as correct either of these contentions. The Shoemaker Law contemplates the expenditure under its provisions of large sums of both State and County money and its carefully prepared and well considered requirements were intended, as we said in Fout's Case, 105 Md. 545: "to exclude favoritism, jobbery and dishonesty and to insure the application of business principles to the work to be done under the law." They were inserted in the law for the benefit of the public generally and especially the State and county taxpayers, upon whom the burden of providing the money for the contemplated improvement of the public roads must ultimately fall and they cannot be disregarded without endangering the purpose of their enactment. The provisions of other public general and local laws, conferring upon County Commissioners power to construct and repair roads at the expense of the several counties and regulating the exercise of that power, create a distinct system, independent of and different from that introduced by the Shoemaker[***12] Law, which was passed for the improvement of the public roads of the State at the joint expense of the State and the County in which the road lies. Both of these systems are statutory, and for that reason also in order to give validity to proceedings under either one of them the statutory requirements of that particular one must be complied with. 

   No countenance is found in the Code for an attempt to combine the two systems in the opening or improvement of any one road. Not only are the theories upon which the two [*386] systems proceed separate and distinct but the statutory requirements of the one are inconsistent with those of the other. In the construction and repair of roads, under the general statutory powers of the County Commissioners, not only the survey and preparation of the plans for the work but its entire execution is required by the law to be under the "charge, control and supervision" of the County Road Engineer who is required to "make annually in writing a detailed report to the County Commissioners of all work done on the roads and bridges for the year" and the amounts due therefor, for the payment of which the Commissioners are required to make provision. [***13]

   On the contrary, in all roads constructed or improved under the Shoemaker Law, the propriety of the undertaking must be determined and an estimate of its cost made by the State Geological and Economic Survey, and the surveys and plans therefor must be made by its engineer and if, as in the present case, the work is be done by contract such contract must be approved by the Survey and executed and performed under its "immediate supervision," and the completion and cost of the work must be certified by it to the State Comptroller who, upon the compliance with certain specified conditions, pays one-half of the entire cost of the work, not to exceed the [**546] estimate previously made as above mentioned. Section 6 of the Shoemaker Law reserves to the County Commissioners of the county, in which the road to be constructed or improved is located, the right to reject the bids for the work and to have it done, according to the Survey's plans and specifications, by such arrangement as they may deem best, but, as a contract was made by the commissioners for the doing of the work in the present case, we are not concerned with the operation or effect of that feature of the law.

   We might[***14] conclude our opinion at this point, as what we have already said renders it necessary to affirm the order appealed from, but in view of the request made by counsel at [*387] the argument of the appeal we will give expression to our views upon several of the other questions raised by the record.

   Chapter 654 of the Acts of 1908 is technically a local Act affecting only Anne Arundel County, but it is of a general nature in that it provides a complete system for the construction, regulation and control of public roads by the County Commissioners. Its title is "An Act to repeal sections 191 to 203 v, both inclusive, and sections 203 w, 203 x, of Article II of the Code of Public Local Laws, title 'Anne Arundel County,' sub-title 'Roads,' and all other Acts or parts of Acts or provisions of the Code of Public Local Laws and the Code of Public General Laws, in so far as the said Acts or parts of Acts or provisions of said Codes may be inconsistent with the provisions of this Act, and to re-enact with amendments certain sections, to be known as sections 191, 192, 193 194, 195, 196, 197 and 198, of Article II of the Code of Public Local Laws, title 'Anne Arundel County,' sub-title 'Roads. [***15] '"

   This Act ought not in our opinion to be held unconstitutional and void because its subject matter is not described in its title, but it does not therefore necessarily follow that it repeals or was intended to repeal the provision of the charter of the Baltimore and Curtis Bay Railway Company which requires that company to place its tracks on the margin of the streets and roads, along which it runs, so as to leave upon them a clear width of at least fourteen feet for the use of vehicles. The general control by the County Commissioners of the location of trolley and street railway tracks upon the roads, streets and avenues throughout the county is not necessarily incompatible with the continued exercise by one particular street railway company of existing chartered rights as to the position of its tracks upon streets and roads already occupied by it. The Act of 1908 does not either in its title or body designate or specify the Baltimore and Curtis Bay Railway Company or its tracks or the private Act by which it was incorporated or make any provision for compensation to it for the expense which had been incurred by it in constructing its tracks in their present location. Furthermore[***16] [*388] the bill avers as indicative of the legislative intent in passing chap. 654 of Acts of 1908 that, at the same session of the Legislature at which that Act was passed, a bill known as No. 273 which on its face declared its purpose to be to compel the Baltimore and Curtis Bay Railway Company to make the very change in the location and character of its tracks on First street, which the County Commissioners are now seeking to compel it to make, had already failed of passage.

   The fundamental fact to be ascertained, in determining whether a particular Act of legislation operates as a repeal of a former one, is the legislative intent in the passage of the latter Act. The intention to repeal may be manifested by a repealing clause containing a direct reference to the former Act, or it may be implied, with or without the presence in the latter Act of a clause repealing inconsistent prior legislation, from a necessary inconsistency between the provisions of the two Acts. In the many cases in which the Courts have passed upon the question of implied repeals of legislation by subsequent inconsistent legislation they have treated the language used in the Act supposed to effect the[***17] repeal as of the first importance, but they have also regarded the general character of the alleged repealing Act, the circumstances of its passage and the issues of public policy involved, as proper to be considered in arriving at a conclusion. The general principles applicable to cases like the present one, where the issue is between a prior private act and a subsequent one of a general nature, were stated by this Court in the case of the State v. The Northern Cent. R. R. Co., 44 Md. 131, as follows: "It is unnecessary to review the many cases in which Courts have considered how far and under what circumstances a subsequent general act will be held to operate as a repeal of a prior private act. As a general rule, it will be admitted, that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous act, or unless there is a necessary inconsistency in the two acts. Where, however, the provisions of the general act are [*389] entirely inconsistent and irreconcilable with the provisions of a prior, private act, the former must necessarily operate as a repeal of the latter, because it[***18] is impossible for the two acts to stand together. * * *"

   This Court, acting upon the well settled doctrine that every reasonable intendment must be made that it was not the design of the State to surrender the power of taxation, or to exempt any property from its due proportion of the burden of taxation, has in different cases held subsequent general assessment or tax laws to repeal former private Acts granting to particular corporations a total or partial exemption from taxation.  Balto., Ches. & Atl. Ry. Co. v. Wicomico County, 103 Md. 277 which was cited with approval and followed by the United [**547] States Supreme Court in Commrs. of Wicomico County v. Bancroft, 203 U.S. 112, 27 S. Ct. 21, 51 L. Ed. 112; State v. Northern Cent. Ry. Co., 90 Md. 447, 45 A. 465, affirmed by the U.S. Supreme Court in 187 U.S. 258, 23 S. Ct. 62, 47 L. Ed. 167; County Commrs. of Washington County v. Franklin R. R. Co., 34 Md. 159. In the following cases we have also upheld, in the situation there presented, the implied repeal of Acts of the Legislature by subsequent inconsistent legislation.  Willing v. Bozman, 52 Md. 44;[***19] State v. Yewell, 63 Md. 120; Yunger v. State, 78 Md. 574; Md. Agricultural College v. Keating, 58 Md. 580; State v. Falkenham, 73 Md. 463; Webster v. Cambridge Seminary, 78 Md. 193.

   In other instances we have held that the facts there presented did not justify the conclusion that the subsequent Act was intended by the Legislature to repeal the former one.  Frostburg Mining Co. v. C. & P. Ry. Co., 81 Md. 28; Smith v. County Commrs., 81 Md. 513; Garitee v. Baltimore, 53 Md. 422; Salisbury v. Jackson, 89 Md. 518, 43 A. 928. In Garrett v. Janes, 65 Md. 260, 3 A. 597, under circumstances much resembling those of the case at bar, the Court held that there was no repeal by the subsequent Act although it in terms repealed "all inconsistent ordinances." In that case an ordinance of Baltimore City passed in 1858 in pursuance of authority conferred on the Mayor and City Council provided: "It shall not be lawful for any person to erect or set up any [*390]portico, steps or other ornamental[***20] structure whatever on Mount Vernon Place a greater distance into the Place than nine feet measuring from the building line thereof." A subsequent ordinance of the City passed, in pursuance of like authority, in 1874, fixed a shorter distance as a limit to which any steps, porch or portico might encroach from the building line upon any of the streets or alleys of the City, and in terms repealed all "inconsistent ordinances." It was decided that the ordinance of 1874 did not repeal the one of 1854, the Court saying in that connection: "There is no specific reference to the ordinance allowing 'any portico, steps or any other ornamental structure whatever' to extend nine feet into Mount Vernon Place, in that clause of the ordinance of 1874 which repeals 'inconsistent ordinances,' and regarding the former as a special and the latter as a general ordinance they should be considered in pari materia. They are not inherently incompatible. The general rule in the construction of statutes, applicable alike to the Act of 1854 and the Ordinance of 1874--is that a later one of a general nature does not effect the repeal of a special one unless direct reference is made to the latter with that[***21] intent, or in terms they are so irreconcilable that a repeal by implication is manifest."

   In view of the principles of construction of statutes thus announced by our predecessors and the applications made of them in the decided cases, and also in view of the fact that the Legislature refused to pass House Bill No. 273 of 1908, which by direct reference to the Baltimore and Curtis Bay Railway Company would have so amended its charter as to compel it to make the change of the location and character of its tracks, we think it should not be held to have intended, in the passage of chapter 654, known as House Bill No. 315, to do by implication or indirection what it had a short time before refused to do directly, and amend the charter of that company.

   It is of course within the power of the Legislature to so amend the charter of that company, by the passage of an Act appropriate for the purpose, as to require it to remove or to [*391] change the character and location of its tracks. In that event however the removal or change of the tracks could be enforced only upon fair principles of indemnity in respect to expenditures made by the company in good faith in constructing its tracks[***22] and overhead work along the margin of First street in conformity with and in reliance upon the terms of its charter, before the passage of the Act of 1908. As we held in effect in Webster v. Cambridge Seminary, supra, the Legislature could not under the guise of an amendment to the charter of the company divest without compensation its vested property right acquired in the legitimate exercise of the powers conferred by its charter while that instrument remained in force. See also to same effect Lake Roland Ry. Co. v. Baltimore, 77 Md. 352; Wilderman v. Mayor, 8 Md. 551; Bramble v. Twilley, 41 Md. 435; Remington v. Metropolitan Bank, 76 Md. 546; Rock Hill College v. Jones, 47 Md. 1, 17-18; Harris v. Whiteley, 98 Md. 430; Jockey Club v. State, 106 Md. 413.

   Section 4 of the Shoemaker Road Law provides: "That the specifications shall require the construction and improvement, within a reasonable time, of a macadamized or of a telford or of other stone road, or of a road constructed of gravel, or of other good material, in[***23] such manner that the same will be with reasonable repairs thereto, at all seasons of the year, firm, smooth and convenient for travel."

   The appellants contend that the Legislature did not intend by that section to restrict the roads, authorized to be made or improved, to the class known as Telford or Macadamized which are conceded to be similar in character, but intended by the use of those terms to fix a minimum and not a maximum standard of excellence and durability below which the Geological Survey should not descend in drawing specifications for the roads.

   The counsel for the appellee, on the other hand, contends that the phrase "other good material" used in section 4 of the Law [**548] must be construed to mean material ejusdem generis with the material previously specified, as the law was obviously [*392] intended to provide for the construction of county roads and not for the paving of streets in towns and cities, as the expression paving nowhere occurs in the law. He further insists that if vitrified brick is to be regarded as "other good material" within the meaning of the Act then the appellee as a county taxpayer has the right to insist that the State must[***24] pay one-half the cost of paving the streets with such brick in the cases in which that material is selected by the Survey.

   We concede soundness of the last proposition of the appellee, but we do not think the language used in section 4 of the Act, in describing the type of roads to be built and the character of material to be used in their construction, is sufficiently exact or positive to exclude all other kinds of road than Macadam or Telford. The expressions used "of a macadamized or of a telford, or of other stone road, or of a road constructed of gravel or of some other good material" are broad and alternative in character and manifest an intention on the part of the Legislature to confide to the technical skill and practical judgment of the members of the Geological and Economic Survey the selection of the designated types of road construction or their equivalents. The varieties of soil, location and exposure to be dealt with in so broad a scheme of road construction as that contemplated by the Shoemaker Law, and the different degrees of frequency and severity of use to which roads in the various portions of the State would most likely be subjected, necessarily[***25] required the allowance in the provisions of the Act of reasonable latitude in the selection of the type of road to be built in any particular locality and the material to be used in its construction. From such considerations, as well as from the general scheme and the provisions of the Act itself, it is reasonable to conclude that the Legislature in its passage did not intend to limit to one or two similar types all of the roads to be constructed under its authority. It is more rational to interpret the use of the expressions found in section 4 of the Act as manifesting an intention on the part of the Legislature to indicate to the members of the Survey, to which it confided the selection in [*393] each instance of the appropriate character of both road and material to be adopted, that such permanent and durable styles of construction be adopted as would increase the comfort and safety of travel and also yield an adequate return for the expenditure of public funds which they involved.

   For the reasons stated in this opinion the order appealed from must be affirmed.

   Order affirmed with costs. 

PRISCILLA J. WHALEN ET AL. vs. THE BALTIMORE & OHIO RAILROADCOMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
108 Md. 11; 69 A. 390; 1908 Md. LEXIS 59

 April  1, 1908, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Howard County (ROGERS and THOMAS, JJ.)
 
The deed referred to in the opinion of the Court is as follows:
 
This Indenture made this 5th day of May, in the year of our Lord, 1848, between Thomas B. Dorsey and Milcah Dorsey, his wife, of Howard District of  Anne   Arundel  county in the State of Maryland of the first part and The Baltimore and Ohio Railroad Company of the second part.
 
Witnesseth, that the said parties of the first part for and in consideration of the sum of twelve hundred dollars current money, to them in hand paid by the said Baltimore and Ohio Railroad Company at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained and sold, aliened, enfeoffed and conveyed and by these presents doth give, grant, bargain and sell, alien, enfeoff, release, convey and confirm unto the said Baltimore and Ohio Railroad Company, its successors and assigns, all that lot or parcel of land in Howard District of  Anne Arundel  county occupied by the Baltimore and Ohio Railroad which is contained within the outlines of the following description, that is to say:
 
(Then follows a description[***2] of the right of way by metes and bounds, which is omitted.)
 
Together, with all and singular the rights, members, privileges, advantages and appurtenances to the same belonging or in anywise appertaining: To have and to hold the pieces or parcels of land above-described with the appurtenances unto the said Baltimore and Ohio Railroad Company, its successors and assigns, to the only proper use and behoof of the said Baltimore and Ohio Railroad Company, its successors and assigns forever; and this indenture further witnesseth that for and in consideration of the payment aforesaid, the parties of the first part hereto have released, and do hereby release, acquit, exonerate and discharge the said parties of the second part, from all obligations to construct or maintain turnouts and sidings under any contract or agreement heretofore made between the said parties of the first and second parts, except the turnout and siding hereafter mentioned and provided for, and for the same consideration do give to the said parties of the second part, the railroad car now owned by the said parties of the first part, and all the wood belonging to the said parties of the first part and growing upon[***3] the land to be occupied in changing the location of the Baltimore and Ohio Railroad according to the plan now in progress. Together with the privilege of procuring the necessary filling and stone from the lands of the said parties of the first part, in the vicinity of said railroad for making the embankments, culverts and walling in such alterations. And this indenture further witnesseth that the said parties of the second part do hereby covenant and agree in consideration of the premises to and with the said parties of the first part their heirs and assigns to construct and maintain a turnout and siding at Dorsey's run on the main stem of said railroad; to take up and set down at said siding by the passenger cars of said company all persons going to and from the farm now occupied by the said parties of the first part and to leave at said siding to be unloaded any car in which any article or articles weighing at least three thousand pounds shall be laden for the said parties of the first part and on which the cost of transportation shall have been paid at the place of lading. And the said parties of the second part further covenant and agree to construct a crossing place over the said[***4] main stem at a convenient distance from the culvert over McKinsey's branch. And this indenture further witnesseth that the Baltimore and Ohio Railroad Company have constituted and appointed and do hereby constitute and appoint Howard Swain of the district aforesaid to be their attorney for them and in their name and as their act and deed to acknowledge this indenture before any person or persons having authority by law to take the said acknowledgment in order that this indenture may be duly recorded.
 
In testimony whereof the said parties of the first part have hereto set their hands and seals, and Louis McLane, President of said company, hath hereto set his hand and caused the corporate seal of said company to be hereto affixed on the day and year first above written.
 
(Signed sealed, witnessed and acknowledged.)

DISPOSITION: Order affirmed and bill dismissed with costs to the appellee.

CORE TERMS:  covenant, railroad, siding, turnout, passenger, assignee, freight, river, main stem, construct, indenture, train, train service, neglecting, covenantee, specific performance, specifically enforced, covenanted, abandoned, demurrer, prayer, assigns, route, curve, tracks, public policy, crossing, grantor, station, decree

COUNSEL: Bernard Carter and Edward M. Hammond, for the appellants.
 
Jas. A. C. Bond and Francis Neal Parke, for the appellee.

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

OPINIONBY: WORTHINGTON

OPINION: [*14] [**391] WORTHINGTON, J., delivered[***5] the opinion of the Court.
 
   The appeal in this case was taken from an order of the Circuit Court for Howard County, sitting as a Court of equity, sustaining a demurrer to a bill of complaint filed in that Court by the appellants against the appellee, for the purpose of obtaining an injunction to restrain the appellee from neglecting and refusing to properly maintain a turnout and siding at Dorsey's run in Howard County; and from neglecting and refusing to maintain and run a reasonable train service of passenger and freight by or over said Dorsey's run siding; and from neglecting and refusing to take up and set down at said siding, by the passenger cars of defendant company, all persons going to and from the farm of the plaintiffs; and from refusing or neglecting to leave at said siding, to be unloaded; any car in which any article or articles weighing at least 3,000 pounds shall be laden for the plaintiffs, and on which the cost of transportation shall have been paid at the place beginning.

   The bill was filed June 17th, 1907, and sets forth, as the grounds for its prayer for this relief, that on May 5th, 1848, the defendant entered into an indenture with a certain Thomas Beale Dorsey, [***6] formerly for many years a member of this Court, and Milcah Dorsey, his wife, wherein the defendant covenanted and agreed with the said Dorsey and wife, and with their heirs and assigns to construct and maintain a turnout and siding at Dorsey's run on the main stem of said railroad, and also to do certain other things which in the prayer of said bill it is prayed the defendant may be enjoined and restrained from neglecting and refusing to do.

   The bill further alleges that the plaintiffs have become, by mesne conveyances, enfeoffed and seized of a large part of the land owned by said Dorsey and wife at the time of the execution of said indenture, and that they are, as the assigns of said Dorsey and wife, entitled to enjoy the fruits of the covenant therein before recited; the said covenant, as is alleged, being a covenant running with the land. That the defendant was then at the time of the filing of the bill of complaint, constructing a cut-off on the main stem of its railroad, over which it would, when completed, run its passenger and freight trains, and thus divert all passenger and freight trains from that part of its line which theretofore had passed Dorsey's run at the siding[***7] and turnout, which up to that time had been maintained and operated by said railroad company under the provisions of said covenant.

   That the plaintiffs being advised of the intended abandonment of Dorsey's run turnout and siding, communicated with [*16] the defendant and called its attention to the covenants in said indenture contained, to which communication the defendant replied that it would abandon said turnout and siding, but would hold itself in no way liable for a breach of said covenants; because as it claimed it was immune from liability for a breach thereof.

   The bill further alleges that by the change of the location of the road bed of said defendant company, there would be no turnout or siding on the property of the complainants at Dorsey's run, and that they would be entirely without the passenger or freight service from said defendant, which the defendant has covenanted to give the complainants as assignees of said Dorsey.

   That when the complainants purchased the property mentioned, the fact of having a station on their property at which the freight and passenger trains of the defendant stopped, was an inducement and a consideration for them to purchase the said[***8] property, and that they were advised at the time of said purchase that said covenant was one running with the land, and could not be broken by said defendant company.

   That the complainants were advised, and therefore charge that no monetary compensation could recompense them should the defendant be allowed to violate its said covenants, and that a breach thereof would work a great depreciation in the value of the land belonging to them for which they would have no adequate remedy at law.

   That it was not unreasonable to ask the railroad company to run and maintain a certain number of trains, passenger and freight, over its right of way passing by said Dorsey's run, and to maintain the turnout and siding covenanted by [**392]the defendant company to be maintained there, nor would such request be impossible of performance.

   The bill further alleges that the defendant has not abandoned the property of the complainants entirely, but that its tracks were still on the property of complainants for a considerable distance.

   That should the defendants be permitted to violate their [*17] covenants, that the nearest station to the complainants would be Hollofields, which was distant[***9] three miles, whereas from the residence and property of the complainants to Dorsey's run turnout and siding was but one quarter of a mile.

   The bill also alleges in its sixteenth paragraph, "That from the nature of the topography of the ground and situation whereon the new line of railroad would run, it would be impossible to construct and maintain a turnout and siding which would be accessible to the complainants." The prayer of the bill for specific relief, is substantially as herein before set out, and there is also the usual prayer for general relief. With the bill was filed a copy of the deed to Priscilla J. Whalen, one of the complainants, for 567 acres, being a part of 2,200 acres of land owned by JUDGE DORSEY at the time of the execution of the above mentioned indenture; also a plat of the whole tract showing the location of Dorsey's run station, and of the so called new "cut off" of the railroad, and also a copy of the indenture entered into between the railroad company and JUDGE DORSEY in 1848.

   The indenture is set out in the report of this case preceding this opinion. The legal principles involved in this appeal, all of which were elaborately argued by able counsel on both[***10] sides, and all of which are sufficiently involved in the case to require careful consideration, may be appropriately considered under three heads: First. Was the covenant, or rather were the covenants (for while one in form, the covenant involved in this proceeding embraces several undertakings), contained in the indenture of May 5th, 1848, originally valid and binding on the defendant, or void as against public policy? Second: If originally valid as between the parties, are they such covenants as run with the land in favor of the plaintiffs as assignees of Dorsey?

   Third: If valid, and if they enure to the benefit of the plaintiffs, are the plaintiffs entitled to have the agreement specifically enforced?

   1st. As to the first proposition we think the covenants were valid, and binding on the defendant at the time they were entered [*18] into, and capable then of being specifically enforced so far as the facts are disclosed by the record.

   In Green v. West Cheshire Ry. Co., 13 Law Rep. Equity Cases 44, a contract by the defendant railroad company to construct a siding upon plaintiff's land along side the railroad tracks, was specifically enforced. In Lydick v. B. & O. R. R. Co., 17 W. Va. 427,[***11] a right of way through land was granted to the railroad company, and a verbal agreement was made by which the railroad company promised to put in a switch at a certain mill, and stop its trains at the switch. The Court held, because the agreement was verbal, it did not run with the land, but distinctly stated that, if it had been in writing under seal, it would then be a covenant running with the land and capable of being specifically enforced in equity.

   In Aiken v. Albany R. R. Co., 26 Barb. 289, the railroad was required to construct and maintain crossings over or under its tracks for the benefit of the farm land on each side, in pursuance of an agreement to that effect in a deed from the landowners, to the railroad company. See also Murray v. Northwestern Ry. Co., 64 S.C. 520, and Lawrence v. Ry. Co., 36 Hun 467; Pittsburgh, etc., Ry. Co. v. Reno, 123 Ill. 273.

   The case of Sapp v. Northern Central Ry. Co., 51 Md. 115, cited by the appellees, is distinguishable from these. In this latter case the Court was dealing with a question involving the right or power of a railroad[***12] corporation to grant or create an easement for persons to walk along its tracks or by the side of them.

   As the exercise of such a power, if permitted, would be subversive of the very purpose of the railroad's creation, it was held that the corporation possessed no such power.

   In the case at bar we find nothing unreasonable or impracticable for the railroad to perform, contained in the covenant, as originally entered into, and nothing on the ground of public policy to forbid or prevent its execution at the time.

   We think there is a manifest distinction to be made between covenants to establish and maintain stations for the public convenience, [*19] and those to establish and maintain sidings, turnouts, crossings and the like, for private use merely. The former are generally condemned as against public policy, while the latter are to be governed by the circumstances of each particular case. Fuller v. Dame, 35 Mass. 472, 18 Pick. 472; Texas & P. R. R. v. Marshall, 136 U.S. 393; Same, v. Scott, 41 U.S. App. 624; 37 L.R.A. 94-98; Marsh v. Fairburgh Ry. Co., 64 Ill. 414; Northern Pacific v. Washington, 142 U.S. 492;[***13] Lydick v. B. & O. R. R. Co., 17 W. Va. 427; Aiken v. Albany R. R. Co., 26 Barb. 289; Green v. West Cheshire Ry. Co., 13 L. R. Eq. Cases 44, Gilmer v. Mobile Ry. Co., 79 Ala. 569.

   2nd. The next question is, do the covenants run with the land in favor of the plaintiffs in this case?

   By referring to the covenant it will be seen that the railroad company agreed to "construct and maintain" a turnout and siding at Dorsey's run on the main stem of said railroad, and to do certain other things connected therewith; and the agreement is made not only with the original grantors, but also with "their heirs and assigns."

   In Spencer's case, reported in 5[**393] Coke, 16, and also found in 1 Smith's leading cases (9 ed.), at p. 174, the question as to what covenants run with the land and what do not, was fully considered by the whole Court, and it was resolved in that case that when the warranty is made to one, his heirs and assigns, by express words, the assignee shall take the benefit of it, even though the covenant extend to something not then in esse, provided the thing to be done, touch[***14] and concern the land.

   The action in Spencer's case was between a lessor and the assignee of the lessee, but the principles enunciated therein, have been held applicable to covenants between grantor and grantee, and their assigns, in very many modern cases.

   In Green v. Canby, 24 Md. 127, the Court said: "The established doctrine is that a covenant to run with the land must extend to the land so that the thing required to be done will affect the quality, value or mode of enjoying the estate conveyed, and thus constitute a condition annexed or appurtenant [*20]to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be defeated or changed by a performance of it."

   In all cases covenants conferring benefits will run with the land where the rights conferred are of such a character as to attach to the land and pass as incidents thereto. 11 Cyc., 1089.

   The question as to whether the covenant runs with the land does not depend on its being performed on the land itself, but its performance must touch and concern the[***15] land, or some right or easement annexed or appurtenant thereto, and tend necessarily to enhance its value or render it more convenient or beneficial to the owners or occupants. 11 Cyc., 1081.

   A covenant which does not touch and concern the land, as above indicated, is called a personal covenant, and binds only the covenantor, and can be taken advantage only by the covenantee. 2 Black Com., 304; Bouvier's Law Dictionary, title, "Personal Covenant."

   In the deed from JUDGE DORSEY and wife the railroad company expressly covenants to do three things, which are involved in this controversy;

   1st. To construct and maintain a turnout and siding at Dorsey's run.

   2nd. To take up and set down at said siding by the passenger cars of said company all persons going to and from the farm then occupied by the grantors.

   3rd. To leave at said siding to be unloaded any car in which any article or articles weighing at least 3,000 pounds should be laden for the grantors, and on which the cost of transportation has been paid at the place of lading.

   Tested by the aforegoing general principles the third covenant seems to us to be a personal one, while the first and second are covenants real[***16] and enure to the benefit of the plaintiffs as assignees of Dorsey and wife.

   3rd. We come then to the third general head into which the consideration of the case has been divided, that is, are the [*21] plaintiffs entitled to have the covenants which run with the land and enure to their benefit specifically enforced?

   There can be no doubt as to the right of the railroad company to change for the purpose of carrying out the object of its creation, the location of its main stem.

   A railroad is in many essential respects a public highway, and the rules of law applicable to one are generally applicable to the other. Fuller v. Dame, 35 Mass. 472, 18 Pick. 472.

   The counsel for the appellees very well say in their brief, "that a railroad company is a public service corporation, and is obliged to use its powers and privileges for the benefit of the public, and in aid of the public good. It must therefore, from time to time, conform to the requirements of public travel and commerce, and adjust its grades, its route and its curvatures to these needs. No contract on its face can interfere with these public duties.

   "To compel a railroad company to maintain its main[***17] stem on the old location for ever is to render it impossible for the corporation to ever make in conformity with its own needs and the public's interests, any change in its transportation route."

   It appears from the blue print filed with the record in this case, that the main stem of the defendant company where it passed through the lands of JUDGE DORSEY was, at the time of the execution of the indenture in question, located along the south side of the Patapsco river.

   This river which flows a generally easterly course, at that part of it which passes nearest to the mansion house and former residence of the late JUDGE DORSEY, takes a short turn to the south, and then after flowing a short distance turns again to the north and east, forming at this point a loop or curve very much in the shape of the letter U with the open part of the letter toward the north. JUDGE DORSEY'S late residence is located about one-quarter of a mile south of the river at this point, and Dorsey's run and siding was located on the line of the old railroad near the south bend of the U shaped curve thus formed.

   For the purpose of straightening its line and bettering its [*22] road bed and train service,[***18] a cut off was made across the upper part of this U shaped curve in the river, crossing the river twice; and the main stem of the railroad was relocated along this cut off, thus eliminating the sharp curve in the road at Dorsey's run, and leaving the turnout and siding, formerly established, about one quarter of a mile to the south, and on the opposite side of the river.

   The bill of complaint alleges, "that from the nature and topography of the ground and situation whereon the new line of railroad will run, it is impossible to construct and maintain a turnout and siding which will be accessible," to the complainants.
 
   The bill also avers that it is not impossible of performance or unreasonable to ask the defendant still to run a certain number of passenger and freight trains daily over its line passing by Dorsey's[**394] run, and still to maintain the turnout and siding at that place, as a reasonable compliance by the defendant with the terms of the covenant.

   Whether it would be a reasonable requirement to compel the defendant to still run a certain number of trains daily, both passenger and freight, over the old abandoned route passing Dorsey's run, in addition to the train service [***19]required over its main stem as now located, is a question for the Court to determine from all the circumstances of the case, and is not to be taken as admitted by the defendant's demurrer. The demurrer admits the truth of the facts alleged in the bill so far only as they are relevant and well pleaded; conclusions of law deduced by the pleader, and theories as to the effect of the facts are not admitted by the demurrer. Miller's Equity, sec. 133; Felix v. Patrick, 145 U.S. 317.

   There can be no doubt of the right and power of the directors of the railroad company to make the cut off and change the location of its main line as indicated on the blue print, for the purpose of straightening its lines and reducing its grades, and thus improving its service to meet its obligations to the public, and also to increase its earning capacity for the benefit of its stockholders.

   [*23] As was said in New Central Coal C. v. George's Creek Coal and Iron Company, 37 Md. 537, "the managers or directors of the corporation are the sole judges of what is proper or convenient, as well with reference to location, as to the execution of all other powers[***20] granted, as a means of attaining the object of its charter."

   The injunction prayed for in this case would, if granted, accomplish all that a decree for specific performance could effect, and, therefore, all the principles which apply to the case of a bill for specific performance apply with equal force to the case of a bill for perpetual injunction, when that injunction accomplishes all the objects which could be accomplished by a successful prosecution of a formal bill for specific execution. Maryland Telephone Co. v. Simons' Sons Co., 103 Md. 136.

   Specific performance is not a matter of absolute right in the party, but of sound discretion in the Court, and it will not be granted, but the party will be left to his remedy at law when the performance has become impossible, or the decree would be inequitable under all the circumstances of the case.

   Bearing in mind these general principles, and considering all the allegations of the bill of complaint, which are well pleaded and which by the demurrer are admitted to be true, together, we think that to require the defendant to still maintain a train service over its now abandoned line past Dorsey's run, as is sought[***21] to be accomplished by the prayer of the bill, would impose upon the defendant an unreasonable burden wholly out of proportion to any benefit that would thereby accrue to the complainants. The railroad company appears to have faithfully complied with its covenant for nearly sixty years, and so long as its main line remained on the former location, it could perhaps have been compelled to comply there-with, but the very purposes of its creation forbid that it should be tied to the same location forever.

   Whether the plaintiffs are entitled to compensation in damages for the abandonment by the defendant of the turnout and siding, and train service, so long maintained by the appellee at that place, this Court is not called upon now to determine, [*24] but we are all of the opinion that the relief prayed for in the bill of complaint must be denied and that the appellants must be left to seek redress for any injury which they may have sustained by such abandonment, in a Court of law. The order appealed from will be affirmed and the bill dismissed without prejudice to the plaintiff's right to sue at law.

   Order affirmed and bill dismissed with costs to the appellee. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. RIDGELYP. MELVIN. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
107 Md. 533; 69 A. 256; 1908 Md. LEXIS 42

 March  6, 1908, Decided

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

DISPOSITION: Order affirmed with costs.

CORE TERMS:  registration, election, municipal election, municipal, services rendered, levy, mandamus, biennial, conferred, legal services rendered, mandamus to compel, expenses incurred, several counties, order appealed, refused to pay, legal services, discretionary, expenditure, defending, directing, preceding, prisoner, voters, duty

COUNSEL: James W. Owens, for the appellant.
 
Ridgely P. Melvin, appellee, in propria persona.

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

OPINIONBY: SCHMUCKER

OPINION: [*533] [**257] SCHMUCKER, J., delivered the opinion of the Court.

   This appeal was taken from an order of the Circuit Court for Anne Arundel County directing the issue of a mandamus requiring the County Commissioners to pay to Ridgely P. Melvin, Esq., a bill for legal services, rendered to the Boards of Registry and Supervisors of Elections of the County. The services for which the bill was rendered consisted of representing the Boards and Supervisors as counsel in the trial of thirty-nine registration appeal cases at the April Term, 1907, of the Circuit Court.

   After rendering the services charged for in the bill Mr. Melvin, who since 1904 has been continuously employed as counsel by the Board of Supervisors of Elections, and registration officers and Judges of Elections of Anne Arundel County, made out his bill, verified it by his affidavit had it certified to [***2]as reasonable by several reputable members of the bar and approved by the Board of Supervisors of Elections. He then, after having submitted it to the Circuit Court and received their approval endorsed thereon, presented it to the County Commissioners. The Commissioners acting under the advice of their counsel refused to pay the bill. Mr. Melvin thereupon applied for the mandamus to compel them to levy for its payment and, the Commissioners having answered his petition, the Court upon consideration of the matter passed the order appealed from directing the writ to issue.

   The material grounds relied on by the Commissioners in their answer to the petition for the mandamus, were, first, that the bill was properly payable not by them but by the city of Annapolis as part of the expenses of a municipal election because the registration cases in which the services were rendered were those authorized by sec. 38 of Art. 33 of the Code providing for a biennial registration in the city of Annapolis whose City Code provides that the city "shall pay all expenses incurred in said municipal elections including the expenses of the special registration for the city of Annapolis preceding [***3]each municipal election;" and secondly, that the payment of such bills for counsel fees, even after they have been approved by the Circuit Court in conformity with the provisions of sec. 123 of Art. 33 of the Code, is discretionary with the Commissioners until there has been a final judgment against them therefor after a hearing on their part.

   [*535] The questions presented by the record for our consideration are whether the services rendered by Mr. Melvin in trying the registration appeals were within the contemplation of sec. 123 of Art. 33 of the Code, and if so whether the Commissioners had any discretion as to levying for and paying the bill for those services after it had been approved by the Circuit Court.

   Sec. 123 of Art. 33 of the Code provides that "The Boards of Supervisors of elections for the several counties shall have power to employ an attorney, who shall also be the attorney for the judges of election, whether acting as such or as registration officers, to receive such compensation as shall be allowed by the County Commissioners upon the approval of the Circuit Court." Sec. 38 of Art. 33, directs a revision of the registration books of the city of Annapolis [***4]to be made "for the purpose of registering new voters and for the correction of said books" prior to the biennial municipal elections in said city. We have not the Code of the city of Annapolis before us but we will assume for the purpose of this opinion that it does provide that the city shall pay all of the expenses of its municipal elections including those of special registrations for the city preceding such elections, as stated in the appellants answer. [**258]

   We think the services rendered by Mr. Melvin were not only within the spirit and meaning but also within the letter of sec. 123 of Art. 33 of the Code. They were legal services rendered not in the registration office but in Court in the trial of appeals, which the Board of Registry were required by sec. 24 of Art. 33 to attend in person or by counsel. The appeals involved the right of the appellants to have their names appear on the public registration of legal voters at all elections not merely at the approaching municipal election, and also the correlative right of the State to preserve an accurate list of those entitled to exercise the right of suffrage. Although the appeals had their origin in the acts or omissions[***5] of the officers of registration affecting the rights or supposed rights of the appellants to have their names retained or placed [*536] upon the registry lists for all the purposes thereof, the cost of the litigation in the Circuit Court to determine the nature and extent of those rights can not fairly be regarded as an expense of the registration itself certainly not an expense of a mere municipal election.

   We are also of the opinion that when a bill for legal services, of the character here involved, has been approved by the Board of Election Supervisors and also by the Circuit Court and presented to the County Commissioners it becomes their imperative duty to make proper provision for its payment. The written approval of the bill by the board of supervisors of election furnishes appropriate evidence of the exercise by them of their statutory power of employing the counsel and the like approval of the bill by the Court in whose presence the services were rendered sufficiently attests the propriety of the charge made for those services. With those statutory requirements thus complied with the direction appearing in sec. 123 that attorneys compensation shall be allowed by the[***6] County Commissioners becomes operative and imperative. We would have no difficulty in arriving at this conclusion if the legal proposition involved were now presented to us for the first time but it has already been similarly passed upon by us, under a slightly different state of facts in Worcester County v. Melvin, 89 Md. 37.

   In that case the County Commissioners had refused to pay or make a levy for a bill of counsel, which had been approved by the Circuit Court for Worcester County, for services rendered under an appointment of that Court in defending a prisoner who had been indicted for murder. Secs. 7 and 8 of Art. 26 of the Code of Public General Laws authorizes the Circuit Courts of the several counties to appoint assistant counsel for the State to aid in the trial of criminal or other State cases whenever in their judgment public interest requires it; and direct the County Commissioners to levy and pay for the services rendered by such counsel. Sec. 266 of Art. 24 of the Public Local Laws, relating to Worcester County provides that "No compensation for defending any party in any [*537] criminal case shall be allowed to any attorney by the County Commissioners [***7]except on presentation of an order in writing signed by a Judge of the Circuit Court for said county certifying in what case the services had been rendered and the amount to be paid for such services." The bill there rendered by the attorney was certified to and approved by one of the Judges of the Circuit Court and was then filed with the County Commissioners to be included by them in the annual levy. Upon the refusal of the commissioners to recognize or provide for the bill, the counsel applied for a mandamus to compel them to make a levy therefor. In their answer to the petition for the writ the commissioners admitted the facts but insisted that the allowance or non-allowance of the claim was a discretionary matter with them. The Circuit Court ordered the writ to issue as prayed and this Court on appeal affirmed the order. In the very instructive opinion, by the late CHIEF JUDGE MCSHERRY, filed in that case will be found a full consideration, supported by citations from many earlier decisions of this Court, of the functions and authority of boards of County Commissioners and other municipal corporations. We there held that the County Commissioners are governmental agents and[***8] may be required by the Legislature to make expenditures without any discretion on their part as to the amount or subject matter of the expenditure, and that the legislation requiring them to pay the counsel fee allowed by the Court was entirely free from constitutional objection. We regard the principles there announced as conclusive of the present controversy, so far as concerns the possession of any discretion on the part of the commissioners to determine whether or not to pay the bill, after it had been approved by the Circuit Court.

   The question of the propriety of the Circuit Courts' action in approving Mr. Melvin's bill is not before us. That was the exercise by the Court of a special power, conferred on it by statute, to certify to a fact peculiarly within its own knowledge, from which the law has made no provision for an appeal. The power was closely analogous to that conferred by statute [*538] upon the Court to appoint counsel, to defend a prisoner accused of crime, and to fix the compensation for his services which formed the subject of consideration by us in Worcester County v. Melvin, supra.

   For the reasons stated in this opinion the order appealed[***9] from must be affirmed.

   Order affirmed with costs. 

ANNA NORA JOHNS vs. SAMUEL CARROLL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
107 Md. 436; 69 A. 36; 1908 Md. LEXIS 37

 March  5, 1908, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (ROGERS, J.)

DISPOSITION: Decree reversed and bill dismissed--the appellee to pay the costs.

CORE TERMS:  deed, decree, purchase money, resulting trust, conveyance, ownership, precision, conveyed, married, procure, lived

COUNSEL: Jerry L. Smith (with whom was Robert Moss on the brief), for the appellant.
 
Elihu S. Riley, for the appellee.

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

OPINIONBY: PAGE

OPINION: [*437] [**37] PAGE, J., delivered the opinion of the Court.

   The purpose of this proceeding is to procure a decree of the Court providing for the conveyance of the certain tracts of land described in the bill which in 1893 and 1899 were respectively conveyed to one Delilah Johnson.

   It is contended by the appellee that the purchase money for these two parcels of land, was paid by the complainant and that by reason thereof a trust resulted in his favor, which entitles him to the decree he is seeking to procure.

   The law applicable to such a case as this, is not subject to doubt in this State. When it is clearly shown that one has purchased an estate and paid the purchase money therefor but has taken a deed in the name of another, a trust results by construction of law in favor of the party who has so paid. [***2] The payment of the money which is the foundation of the trust can be proved by parol, but the proof of it must be clear and positive. Dorsey v. Clarke, 4 H. & J. 551; Dryden v. Hanway, 31 Md. 254; Plummer v. Jarman, 44 Md. 632; Groff v. Rohrer, 35 Md. 327.

   The questions involved here can therefore be resolved into this--does the evidence clearly establish the fact that Samnel Carroll paid the purchase-money for the property out of his own money, although the deeds were taken in the name of Delilah Johnson?

   These deeds were made respectively in the years 1893 and 1899. The proof that the money paid was the property of Samuel Carroll, seems to be quite unsatisfactory. There was nothing said or done at the time of the transaction which indicates with precision where the ownership was at that time. [*438] Both were present at the time one of the deeds was made by direction, to Delilah and for more than thirteen years thereafter no objection to the title was made and no claim was ever set up by the appellant to an interest therein. During this period Delilah and Samuel were married and lived together[***3] for several years; Delilah raised money on the property by mortgaging it and there is no proof that she did not deal with it as her own. As long as she lived it does not appear that he laid any claim to it. At the time the conveyance was made it appears that Carroll produced the money from his own custody, in Delilah's presence, but when he did so, he directed the title to be made out to her, and so acquiesced in it, as long as she lived.

   There is nothing to show where the money came from and so far as the evidence affects the matter, the ownership of the money, may as well be supposed to be in Delilah, as in Samuel. Certainly there is no such explicit proof, as is necessary to establish with precision and certainty that the money was not Delilah's but Samuel's, and not enough to establish a beneficial interest in the property contrary to the provisions of the deeds.

   For thirteen years the appellee has slept on his rights, if he had any, and it is only after that long lapse of time, when Delilah has died and the facts are no longer fresh in the minds of those who participated in the transaction, that he now comes forward and sets up this secret equity. The decree must be reversed. [***4]

   Decree reversed and bill dismissed--the appellee to pay the costs. 

FREDERICK STEHLE, JR., ET AL. vs. UNITED SURETY CO. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
107 Md. 470; 68 A. 600; 1908 Md. LEXIS 18

 January  15, 1908, Decided

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

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  surety, contractor, attachment, railway, default, sub-contractor, garnishee, claimant, deferred payments, subrogation, abandoned, obligee, suretyship, chattels, stations, abandon, dollars, prayer, owing, principal debtor, substitution, faithful performance, written application, express terms, work done, subrogated, railroad, thirty-nine, fifty-seven, intervened

COUNSEL: James M. Munroe (with whom was James R. Brashears on the brief), for the appellant.
 
If the Surety Company has any right to this four hundred and thirty-nine dollars it must be for the purpose of reimbursing itself for a loss which it has sustained by reason of its suretyship, and it is certainly incumbent upon the claimant as a first step to recovery in this case to prove that it has sustained loss. The testimony in this case was absolutely devoid of any proof or offer of proof to that effect, and therefore the prayer of the defendant, Stehle, the attaching creditor, asking the Court to rule, "That there is no evidence in the case legally sufficient to entitle the plaintiff (claimant of the fund in this case), to recover the assets in this case admitted to be due by the garnishee, for the reason the contract under which the plaintiff claims the said assets is a contract of indemnity and the plaintiff has offered no evidence of any loss or claim against which it is entitled to be or seeks to be indemnified," ought to have been granted.
 
2. In Jones' application for a bond[***2] from the United Surety Company he agrees to pay the company all loss which it might incur by reason of having entered into the bond and also agrees that upon his failure to comply with his contract the bonding company might take possession of all his plant, and tools and complete the same, and further agrees to accept vouchers or other evidence of any loss paid by the said surety company under the aforesaid obligation as conclusive against him both as to fact and extent of his liability. He further agrees that the said company should be subrogated to all his rights as principal in the contract and that any deferred payments or other money or property due to him at the time of any breach or default on his part should be credited upon any claim that might be made upon the surety company. In this connection it must be observed that there is not the slightest evidence that any claim was ever made against the surety company, that it ever incurred any loss which was to be reimbursed in any of the manners set out in the application for the bond, and above all, it must be borne in mind that there was and could be nothing due to Jones under his contract to which the surety company could be[***3] subrogated as principal in the bond unless and until all sub-contractors and laborers who had worked for him in constructing the work agreed to be executed under the contract, had first been paid by the railroad company out of the money earned as certified by the engineer, and this by the express terms of Jones' contract with the railroad company, and of Stehle's contract with Jones.
 
3. When we look at the bond we find that provisions are made as to the rights of the surety company in the event of Jones' abandoning his contract, but as the bond was not made and executed until the 18th day of June, 1906, it could not affect the provisions of the prior contract between Jones and the railroad company made on the 6th day of June, 1906, in reference to the protection of subcontractors and other persons doing the work, nor is there anything in the language of the bond that undertakes expressly so to do, and it should not be given by implication any such construction. Stehle must be presumed to have done the work under the protection of the provisions in the contract between Jones and the railroad company for the security of subcontractors, laborers and other persons, and as by the terms[***4] of the contract any balance in the hands of the railroad company ascertained by the engineer to be due to Jones was first applicable to the claims of Stehle as subcontractor, he had a perfect right to seize it by attachment. The whole bond, as well as the application, proceeds upon the theory that the surety company is to be protected, indemnified, and reimbursed as far as possible against any loss that it might sustain by reason of its suretyship, but the very foundation of any such legal liability to the surety company on the part of anybody is some loss by the surety company, which it is incumbent upon it to show, and it is respectfully submitted that there is not a scintilla of evidence of any loss by the surety company in this case, but, on the contrary, the officer of the surety company, who was put upon the stand by the claimant, when asked the question by attorney for the attaching creditor, Stehle, expressly stated that he did not know and could not tell whether the surety company had suffered any loss without examining the books. There is, therefore, a total and absolute failure to prove the very fact which should be the foundation of the claimant's right to the money in[***5] this case which Stehle has attached.
 
Is the surety company entitled to anything more than reimbursement? If so, upon what principle? Is it possible that the surety company can complete this contract at a profit and the men who did the work, that earned the money, go unpaid, and that too in the face of an express provision in the contract to the contrary? Why compel Stehle to sue the surety company? And in what form of action would he sue? Would his action be at law for "money had and received," or in equity for an "accounting?" Why this unnecessary circuity of action when, as this record shows that the contract is completed, the surety company's employee, Brian, is fully paid, there are no liens and the time for filing liens is past. The surety company has suffered no loss, there are $439.57 in the hands of the railroad company, and everybody paid except Stehle, the man whose labor earned that identical money.
 
4. Whether, therefore, we consider this question from the standpoint of subrogation, suretyship, or indemnity, there is no principle, upon the evidence in this case, under which the claimant is entitled to the money in the hands of the railroad company. It is well[***6] settled that a surety is not entitled to be subrogated to the rights of his principal unless he has paid in full the debt due by his principal. While we have been able to find no case which seems to cover the precise point which is herein involved, and while we confess our inability to properly appreciate the precise difficulty in the mind of the learned Court below in reference to the question herein involved, we beg to refer to the following authorities as seeming to throw light on the principle herein involved: Parrott v. Chestertown Bank, 88 Md. 515; Martindale v. Brock, 41 Md. 578; Orem v. Wrightson, 51 Md. 34; Neptune Insurance Co. v. Howard, 3 Md. Ch. 334.
 
If this be regarded as a contract of indemnity, the article entitled, "Indemnity Contracts" in the 10th volume of American and English Encyclopedia of Law is full on the subject that there can be no right whatever under the contract until loss has been incurred, and no right to recovery unless loss is shown by proper evidence.
 
The express conditions set out in the bond are made conditions precedent to the right of the obligee, the railroad company, to recover against the obligor, the surety company, and have no bearing[***7] whatever on the right of the attaching creditor Stehle, who is expressly protected by the terms of the contract of Jones, with the railroad company, which made whatever sum of money was certified by the engineer to be due by the railroad company, to Jones, under the contract, to be first applicable to the payment of the subcontractors and laborers before Jones could be entitled to any part of it, and it is contended that that provision in the contract between Jones and the railroad company that provided that no part of the money certified by the engineer to be due to Jones by the railroad company should be assignable by act of the party or operation of law, had reference to and must be construed to have reference to assignments of such sums of money to strangers to the contract, and not those who are expressly provided for therein and made in a sense privy thereto by its express terms, such as the subcontractors and laborers, whose labor and toil constructed the work for which the money was paid and for whose protection that provision was inserted in the contract.
 
5. The sum of money attached in the hands of the railroad company by Stehle was not earned by the surety company (appellee), [***8] nor by Brian, to whom the contract to complete the work was sublet by the surety company upon the default of Jones, the original contractor; but this money had been earned by Stehle for Jones, for whom Stehle was working as subcontractor. All the work done by the surety company, through Brian, was paid for, and as far as the evidence shows the surety company suffered no loss, nor does it appear that anyone suffered loss except Stehle. Yet the effect of the judgment below is to take the money away from the man who earned it and who, by the express provision of the contract set out in the record, was entitled to it, and to give the money to the surety company which has no legal, moral or equitable claim to it.
 
Ridgely P. Melvin, for the appellee.
 
 By the terms of the bond and the application for it the parties themselves have settled very clearly and conclusively the question as to who is entitled to just such fund as the one involved in this case. Said fund is nothing more nor less than a credit or "deferred payment" arising out of the contract between Jones and the railways company and is a sum that was due and owing Jones on August 10th, 1906, the time when he abandoned said[***9] contract. Upon Jones' default and the assumption by the surety company of Jones' contract, the parties themselves expressly contracted that "all deferred payments and all other moneys provided by said contract to be paid to the principal shall be paid to the surety at the same time and under the same conditions as by the terms thereof, such moneys would have been paid to the principal, had the contract been duly performed by him," and that the said "United Surety Company shall be subrogated to all my (Jones') rights and properties as principal in said contract." If this sum in the railways company's hands was due and payable to Jones at the time he abandoned the contract, and if the surety company assumed said contract and completed same in accordance with its terms, and became substituted for Jones under said contract, all of which is shown by the uncontradicted testimony in the case, how can the surety company's title to this fund be defeated? And particularly, how can it be defeated by Jones or by any one claiming under him, in the face of his express agreement above recited?
 
Immediately upon the abandonment of the aforesaid contract by Jones and its assumption by the surety[***10] company, the latter became entitled to all of the property and credits that the railways company held as the property of Jones, in precisely the same manner that Jones would have been entitled to them. In other words the surety company upon Jones' default became substituted for him under the contract, and title to all his deferred payments and all his other credits under the said contract with the railways company passed immediately to the surety company. Therefore when on August 16th, 1906, ten days after Jones' default, the aforementioned deferred payment of $439.57 under Jones' contract was attached by Stehle, this fund was no longer the property of Jones, but was the property of the surety company, having become such by express valid assignment from Jones to said surety company under the terms of the bond and the written application therefor aforementioned.
 
Therefore, the surety company is entitled to the fund in question, first of all, by virtue of its subrogation to the rights and credits of the principal debtor (Jones), which credits include said fund, of $439.57. This point alone is sufficient to support the appellee's claim.
 
Furthermore, said surety company, upon[***11] giving full satisfaction to the railways company of Jones' obligation under his contract, as it did give, became subrogated to all the railways company's rights, remedies, equities and securities as against Jones, and all credits which said railways company held or holds on account of this contract with Jones became immediately the property of the surety company upon its full and final completion of said contract, and the surety company's title to said credits as against Jones, dates back to the time when the relation of principal and surety was entered into between it and Jones. Orem v. Wrightson, 51 Md. 34; Freaner v. Yingling, 37 Md. 491; Nally v. Long, 56 Md. 567.
 
Upon furnishing full indemnity to the railways company for Jones' default under his contract, the surety company became entitled not only to be subrogated to the railways company's rights and securities against Jones, but it became entitled, furthermore, to a complete assignment by the railways company of all credits and properties which said company held on account of the contract which was abandoned by Jones. Brandt on Suretyship and Guaranty, vol. 1, pp. 611-12; Frost on The Law of Guaranty Insurance, pp. 456-57; [***12] Am. & Eng. Ency. of Law, vol. 27, p. 208.
 
A surety who pays the debt of his principal is entitled not only to all the equities of the creditor as against the principal, but also against all persons claiming under him, such as subsequent purchasers of the debtor's lands, with notice of his right. And he may also be subrogated to the rights of the principal debtor against third persons. 27 Am. & Eng. Ency. of Law, 209. The surety is entitled to actual possession of all collateral securities immediately on payment of the debt. Ibid, p. 210.
 
Therefore the appellee is entitled to the fund in question not only by virtue of its subrogation to the rights, credits and properties of the principal debtor (Jones) in the hands of the original creditor (the railways company), but it is also entitled to said fund by virtue of its substitution to the place of said creditor under the aforementioned contract and is thus invested with the title to all credits and securities which said creditor held as the property of Jones. 
 
It is difficult to understand on just what grounds Stehle, the attaching creditor, claims title to the above mentioned fund. His contract was exclusively with Jones[***13] and the uncontradicted testimony in the case is that he was not known at all in the contract between Jones and the railways company. The fund in question was purely and simply an outgrowth of this contract., to which Stehle was in no sense a party. He therefore certainly stands in no better position in regard to said contract than does Jones, under whom he claims, and yet he asserts title to a fund which Jones himself, by express agreement, has transferred and assigned to the surety company. And he claims benefits under a contract with which he had no privity whatever.
 
The whole basis of the appellant's claim seems to be that the surety company's title to the fund in question, which in all other respects is admitted to be indisputable, is defeated absolutely because it has failed to show in this case that it has suffered a pecuniary loss by reason of its suretyship for Jones. Or, in the language of the appellant's prayer, which was rejected by the Court below, the surety company is not entitled to recover the assets admitted to be due by the garnishee "for the reason that the contract under which the plaintiff claims the said assets is a contract of indemnity, and the plaintiff[***14] has offered no evidence of any loss or claim against which it is entitled to be, or seeks to be, indemnified."
 
And here the appellee begs to state with emphasis,--for this seems to be the rock on which the appellant and the appellee split,--that it does not contend that it is entitled to receive more than just indemnity or reimbursement on account of the contract of suretyship with Jones and the railway company. But the appellee does contend that the question as to whether or not it has suffered any loss under the aforementioned contract is not in any way involved in this case nor does it in any manner affect the only question which is at issue, namely, the right of the surety company to receive, in the first instance, from the railways company the fund which the latter holds as a credit on account of the contract abandoned by Jones.
  
The appellee fully recognizes the general principle of law that such a contract is a contract of indemnity, pure and simple, but submits that just as the obligee under the bond, after full indemnification, is presumed in law to hold any excess in trust for the surety who has furnished the indemnity, so the surety, being in the first instance[***15] entitled to all credits and properties of the principal debtor in the hands of the obligee, after having received full reimbursement therefrom, holds whatever excess there may be in trust for the principal debtor or whoever may be entitled to the same. Frost on the Law of Guaranty Insurance, 454, 455; Sheldon on Subrogation, 185.
 
But, in the first instance, these credits go to the surety, for immediately upon the abandonment of his contract by the principal debtor and its assumption by the surety, title becomes vested in the latter to all credits and securities which the debtor may have on account of his said abandoned contract. This is so, chiefly, because the contract between Jones and the surety company expressly so provides. The right of the surety company to this fund of $439.57 dates back to the time when Jones abandoned his contract.

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

OPINIONBY: BRISCOE

OPINION: [*479] [**600] BRISCOE, J., delivered the opinion of the Court. 

   On the 16th of August, 1906, the plaintiff, Frederick Stehle, Jr., caused an attachment to be issued out of the Circuit Court for Anne Arundel County against the[***16] defendant, Samuel Jones. The attachment was laid in the hands of The Maryland Electric Railways Company as garnishee a corporation doing business in this State.

   The suit was instituted to recover the sum of three thousand one hundred and eighty-one dollars and fifty cents alleged to be due and owing from[**601] the defendant, to the plaintiff for work done and materials furnished for the B. & A. S. L. R. R. between stations Revell and Arnolds, in Anne Arundel County.

   On the 1st day of May, 1907, the garnishee appeared and pleaded, (1). That there was justly due and owing to the account of Samuel Jones, the sum of four hundred and thirty-nine dollars and fifty-seven cents, as by an annexed account. (2). That the fund was held subject to the settlement of the question, whether Jones or his surety, the United Surety Company, is entitled to the fund attached in its hands.

   On the 12th of April, 1907, the appellee, the United Surety Company, intervened by petition, as claimant of the property attached, alleging in substance that it was a body corporate, [*480] with its home office in the city of Baltimore. (1). That the money, goods and chattels, in the schedule annexed to the[***17] attachment issued in the case, at the time of the laying of the attachment were and ever since, have been, and now are, the property of the appellee corporation, (2). That it is entitled to the money, chattels and credits attached. And it prays judgment as to whether the plaintiff ought to have condemnation of the sum of money at issue, in the attachment, and returned therein as of the money, goods, chattels and credits of the defendant Jones.

   Issue was joined, and from a judgment on finding of Court, in favor of claimant, for assets, ($439.59) admitted by the garnishee with interest, this appeal has been taken.

   The controversy here it appears arises out of the contentions as to the meaning and proper construction of a bond executed by the appellee company, as surety, in favor of the garnishee company, guaranteeing the faithful performance of a contract between the railway company and the defendant, Jones, to do certain grading for the last named company between Revell and Arnold's stations, in Anne Arundel County along the line of the road.

   The questions are presented by a single exception and that is, to the rejection by the Court of a prayer offered by the defendant at the conclusion [***18]of the case.

   The defendant by this prayer asked the Court to rule that there was no evidence in the case legally sufficient to entitle the claimant of the fund to recover the assets admitted to be due by the garnishee for the reason that the contract under which the plaintiff claims the assets is a contract of indemnity, and the plaintiff has offered no evidence of any loss or claim against which it is entitled to be or seeks to be indemnified.

   The vital facts of the case upon which the ruling was asked are practically undisputed and are as follows: On the 8th of June, 1906, the Baltimore and Annapolis Short Line Railroad Company, now the Maryland Electric Railways Company, contracted with the defendant Samuel Jones to do certain grading for the company between Revell and Arnold's [*481] stations, in Anne Arundel County, under a written contract set out in the record.

   By the contract the defendant was required to give bond and upon application the appellee became surety on this bond in favor of the railway company for the faithful performance of the work according to the terms of the contract. The bond was accepted by the company, and contains the following express condition, [***19] as applicable to this case. If the said principal shall voluntarily abandon said contract, or be lawfully compelled by the obligee to cease operations thereunder by reason of his non-performance of any of its terms or conditions, then the surety shall have the right in its option to assume the said contract and to sublet or complete the same, and if the contract shall be assumed by the surety, then as such contract is duly performed, any reserve, deferred payments, and all other moneys provided by said contract to be paid to the principal shall be paid to the surety at the same time and under the same conditions as by the terms thereof, such moneys would have been paid to the principal, had the contract been duly performed by him. And if the said obligee shall complete or relet the said contract, then any forfeitures provided in said contract against the principal, shall not be operative as against the surety, but all reserves, deferred payments, and all other moneys provided in said contract which would have been paid to the principal had he completed the contract in accordance with the terms, shall be credited upon any claim the said obligee may make upon said surety.

   And the written[***20] application for the bond signed by the defendant, Jones, contains this provision: "And I do further agree in the event of any breach or default on my part of the provisions of the contract hereinbefore mentioned, that the United Surety Company, as surety upon the aforesaid bond, shall be subrogated to all my rights and properties as principal in said contract, and that deferred payments, and any and all moneys and properties that may be due and payable to me at the time of such breach or default, or that may thereafter become due and payable to me on account of said contract [*482] shall be credited upon any claim that may be made upon the United Surety Company, under the bond above mentioned."

   It further appears the defendant Jones on or about the 10th of August, 1906, abandoned the work, under the contract. Subsequently in September, 1906, the appellee company, after notice of the defendant's default, assumed the contract and completed the work, in accordance with its terms. The amount of assets confessed by the railroad company to be due and payable at the date (August 10th, 1906), of the discontinuance of work, for work done under the contract, was four hundred and thirty-nine[***21] dollars and fifty-seven cents. That the sub-contractor, Brian, had been paid in full, and the work fully completed in accordance with its terms.

   The plaintiff, Stehle, in the attachment suit was a sub-contractor of the defendant, Jones, and testified that he had done part of the work under the contract between the defendant[**602] and the railroad company prior to the date it was sub-let by the appellee company to its sub-contractor, Brian, and there was due him the sum of $3,181. 50 under this contract.

   It is obvious then that the fund here in dispute is claimed on the one hand by the attaching creditor, the plaintiff below, as the sub-contractor of the defendant, Jones, and on the other by the claimant, the appellee company, who as surety on the defendant's bond, completed the original contract between the defendant and the railway company.

   The solution of the question it seems to us will be found in the contract itself, as evidenced by the provisions of the bond agreed upon by the parties themselves. The bond stipulates that if the principal shall voluntarily abandon the contract, as was confessedly done in this case, then the surety shall have the right in its option to[***22] assume the contract and to sub-let or complete the same, and if said contract shall be assumed by the surety, then as such contract is duly performed, any reserve, deferred payments and all other moneys provided by the contract to be paid to the principal shall be paid to the surety at the same time and under the same conditions as by the terms thereof, such moneys would have been paid to the principal, had the contract been duly performed by him.

   [*483] Now according to the uncontradicted testimony the fund in question was due and payable at the time the contract was abandoned, and it is clear that upon the assumption by the appellee company of the contract and the completion of the work, all of the property and credits of the defendant under the contract passed to the surety company by express assignment to the appellee under the terms of the bond herein set out.

   Manifestly, the defendant, Jones, who abandoned the contract, could assert no title to the fund in dispute, because by the express terms of the bond, and according to the provisions of the agreement executed by him at the time of his application, he stipulated that upon his default the appellee company should be subrogated[***23] to all his rights and properties, as principal in the contract. It is difficult to see upon what legal or equitable principle the plaintiff as sub-contractor under Jones, could be placed in a better position as to this fund than the defendant himself, under whom he claims. Obviously, Jones under the admitted facts, could not set up, or claim title to the fund, because by the express terms of the contract, upon the default, and the assumption of the contract by the appellee, the title to all credits, securities, &c., vested in the appellee.

   The right of the surety in this case is not only "that of subrogation pure and simple, but a right to an assignment by the creditor," under the plain provisions of the contract of suretyship between the parties.

   The principle of subrogation, assignment and substitution, as applied to those standing in the relation of principal debtor and surety, has been fully reviewed by this Court, in a number of cases. In Orem, Ex'x., v. Wrightson, 51 Md. 34, this Court said, so soon as a surety pays the debt of the principal debtor, equity subrogates him to the place of the creditor and gives him every right, lien and security to which[***24] the creditor could have resorted for the payment of his debt. As between the principal debtor and the surety, it is in the nature of a purchase, by the surety from the creditor. It operates an assignment in equity of the debt and all legal proceedings [*484] upon it, and gives a right in equity to call for an assignment of all securities, and in favor, of the surety, the debt, and all its obligations and incidents are considered as still subsisting. Brandt on Suretyship, &c., vol. 1, p. 611; Stump v. Warfield, 104 Md. 530.

   In the present case, the right of the surety company to the fund relates back to the date of the default by the defendant, and cannot be defeated by the defenses sought to be invoked on behalf of the plaintiff. Nally v. Long, 56 Md. 567.

   Mr. Brandt, in his work on Suretyship and Guaranty, supra, says: "In cases where the person paying the debt or performing the obligation of another stands in the relation of surety or guarantor to the person whose debt or obligation has been performed, equity substitutes him in the place of the creditor or obligee as a matter of course, without any special agreement to that[***25] effect and without requiring any further showing to be made of circumstances entitling him to subrogation. It has been said that the surety, upon the performance by him of his contract, is entitled to the original evidences of debt held by the creditor, and to any judgment in which the debt has been merged, as well as to all collateral securities held by the creditor.

   We, therefore, hold, according to the express contract of suretyship between the parties in this case, and upon the well settled doctrine of subrogation and substitution, applicable to the case, that the appellee company is entitled to the fund here in question. There was no error in the rejection of the plaintiff's prayer, and as we approve of the finding of the Court below, the judgment will be affirmed.

   Judgment affirmed, with costs. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. STATE OFMARYLAND, USE OF MATILDA STANSBURY ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
107 Md. 210; 68 A. 602; 1908 Md. LEXIS 19

 January  8, 1908, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Baltimore County, (DUNCAN, J.) where there was a verdict for the plaintiffs for $3,500.
 
Plaintiff's 1st Prayer.--If the jury find that the bridge mentioned in the declaration in this case, was on, and a part of, one of the public roads of  Anne Arundel  County, that it spans the Severn river in said county; that the bridge was constructed with a draw so arranged as to allow vessels to pass through, that when the draw was turned so as to allow vessels to pass a space was left between the sides of the draw and the ends of the bridge next thereto wide enough to allow vehicles passing over said bridge to fall therein, then it became and was the duty of the defendants, the County Commissioners of  Anne   Arundel  County, whenever said draw was thus open to place sufficient safe guards at or over the draw of said bridge, so as to give proper and timely warning to persons driving along and over said bridge at such times that said draw was open, that they might avoid the danger of driving into the same; and if they find, that on or about the twenty-eighth day of September, 1906, James Stansbury the husband and father of the equitable plaintiffs, while driving [***2]along and over said bridge, and using due care drove into the said draw and was drowned because of the neglect of said duty on the part of the defendant, then their verdict should be for the plaintiffs. (Granted.)
 
Plaintiff's 2nd Frayer.--The jury are instructed that negligence on the part of the deceased James Stansbury is not to be presumed, but the burden of proving the same to the satisfaction of the jury, rests upon the defendant. (Granted.)
 
Plaintiff's 3rd Prayer.--If the jury find for the plaintiff, then in assessing the damages they are to estimate the reasonable probabilities of the life of the deceased Stansbury and give to his widow and children the equitable plaintiffs such pecuniary damages not only for past losses but for such prospective damages as the jury may find they have suffered or will suffer as the direct consequence of the death of the said Stansbury and that in awarding the damages to which the plaintiff is entitled, they must apportion the same among the equitable plaintiffs in such shares respective as they find and direct. (Granted.)
 
Defendants' 1st Prayer.--The jury are instructed that upon the uncontradicted facts in this case there is no[***3] evidence legally sufficient upon which the plaintiffs can recover and their verdict must be for the defendants. (Refused.)
 
Defendants' 2nd Prayer.--The jury are instructed that the uncontradicted facts in this case show that the deceased directly contributed to his death and the verdict of the jury must be for the defendants. (Refused.)
 
Defendants' 3rd Prayer.--That the plaintiffs can not recover in this case if the jury believe from the evidence that there was any want of ordinary care on the part of deceased contributive to produce the injury complained of. (Refused.)
 
Defendants' 4th Proyer.--That according to the uncontradicted facts in this case the bridge in question was supplied with reasonable lights to warn the travelling public of the existence of the draw in the bridge over the Severn river where the accident occurred and that said lights were in good condition and burning on the night of the accident and that the night itself was not too dark for anyone approaching the draw to discern it; and if the jury find that the said deceased was accustomed to travel said bridge by night as well as by day and the existence of the draw was known to him and he was familiar[***4] with the lights and the jury shall further find that the deceased drove on the night referred to, from the bridge into the open draw and lost his life in consequence thereof, then the plaintiffs in this case are not entitled to recover. (Granted.)
 
Defendants' 5th Prayer.--And if the jury find that the said deceased was accustomed to travel said bridge by night as well as by day and the existence of the draw was known to him and he was familiar with the lights; and if the jury shall further find that the deceased on the night referred to drove from the bridge into the open draw and lost his life in consequence thereof, then the plaintiffs in this case are not entitled to recover. (Granted.)
 
Defendants' 6th Prayer.--The plaintiffs cannot recover in this action without showing that the defendants or its agents were guilty of negligence in the construction and management of the bridge and draw referred to in the evidence and that the injury to deceased was caused by said negligence and the burden of proof is on the plaintiffs to prove such negligence and that the death of deceased was caused thereby. (Granted.)
 
Defendants' 7th Prayer.--If the jury find that the deceased, [***5] James Stansbury, was accustomed to cross the Severn river going backwards and forwards from his home to Annapolis by the bridge over said river containing a draw in the same, and was familiar with the signal lights on the draw, and when he approached said draw on the evening of the 28th Sept., 1906, it was light enough for him to see that the draw was open, and if they further find that the lights displayed on the draw as described in the evidence showed that the draw was open as said deceased approached the same, and if the jury find that said deceased disregarding the signals drove into the open draw then the plaintiffs can not recover and the verdict of the jury must be for the defendants. (Granted.)

DISPOSITION: Judgment reversed, without awarding a new trial, costs above and below to be paid by the appellees.

CORE TERMS:  bridge, night, boat, traveller, keeper, whistle, vessel, driving, guard, river, team, red, approaching, opened, horse, whip, exhaust, opening, prayer, looked, buggy, drove, approached, deceased, barrier, driver, chain, noise, green, special skill

COUNSEL: James W. Owens and D. G. McIntosh, for the appellants.
 
Robert Moss and Jesse Slingluff (with whom were Jerry L. Smith and John Grason on the brief), for the appellees.

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

OPINIONBY: PEARCE

OPINION: [*213] [**604] PEARCE, J., delivered the opinion of the Court.

   This action was brought[***6] by the State for the use of the widow and children of James Stansbury to recover damages for his death alleged to have been caused by the negligence of the Commissioners of Anne Arundel County. On September 28th, 1906, the deceased was driving in a buggy drawn by a single horse, from the city of Annapolis to his home in the country, and between seven and eight o'clock in the evening he drove upon the Severn river bridge connecting the two shores of that river and forming a part of one of the highways of Anne Arundel County. In this bridge there is a swing draw, which was open at the time of the accident resulting in Stansbury's death, to admit the passage of a ten ton bugeye propelled by a gasoline engine, and just after this vessel had cleared the draw Stansbury drove off the end of the bridge into the opening and was drowned. The negligence of the defendant, as stated in the nar. consisted in allowing the draw "while so opened, to remain unguarded either by its servants or agents to warn travellers of the danger, and to so remain open without guards, chains, ropes, lights, or any notice of any kind, that the draw of said bridge was open." There were no chains or barriers to close[***7] the opening made when the draw was open, but the bridge was equipped with five large lights, described by the bridge keeper as marine lights, such as are used by the Federal Government, all of which were burning brightly at the time of the accident. Two of these lights were green, and three were red. The two green lights are located on the bridge proper, one on each side of draw, just where it connects with the bridge. The draw turns upon a pivot, and when it revolves, the lights upon it also revolve. When the draw is closed, a traveller crossing the bridge, and approaching the draw from either end, has before him all these lights in a line with the length of the bridge, and a vessel approaching the draw when closed has before it all these lights in a line transverse to its line of approach. Thus the traveller on the bridge--and those in charge of an approaching vessel, familiar with the use of the bridge and river, are both informed that the draw is closed.

   When the draw is fully open the traveller on the bridge has before him a single green light on the bridge upon the side of the draw he is approaching, and the three red lights of the draw at right angles to his line of approach; [***8]and a vessel approaching has before it, the two green lights marking either end of the open span and the line of the bridge, and the three red lights of the draw, in the line of its approach to the bridge and thus both the traveller and the vessel are informed that [*215] the draw is open. If the draw is being opened, but not fully open, the rotary motion of the end red lamps on the draw indicate both to the traveller and the vessel that the draw is in motion. It would seem to be difficult to provide a simpler or more efficient system of lighting for the safety both of travellers on the bridge and vessels passing through the draw.

   The bridge keeper testified that at the time of the accident the moon was shining, but the night was a little hazy, and that one could see a good distance, from 150 to 200 yards, that all the appliances for working the draw were in proper condition, and all the lights burning as brightly as they could burn. He said that upon hearing the whistle of a boat for the draw, he started to go from his house on the bridge near the Annapolis shore to help the night keeper open the draw, but hearing him talking with some one, he concluded he already had assistance; [***9] that just at that time a man driving in a buggy passed him on the bridge, driving in a trot towards the draw, that he himself continued to walk towards the draw after this man passed him and that while yet some distance from the draw, he "saw the buggy stop, and then it went over, just like that."

   The night keeper of the bridge testified that he opened the draw when the bugeye blew its whistle, being assisted by Mr. Owens, and that the vessel passed through; that he started to turn the draw back and when he made about three turns of the crank he heard a noise, and asked Owens what that was and Owens said somebody's horse and buggy went over board.

   Owens testified that he and the keeper were closing the draw and when they had made about three turns, "while I was going around, I saw the team come up and stop, and when I was going around again the team was going over board."

   The evidence is that Stansbury was perfectly familiar with the bridge, and was in the habit of using it by night as well as by day, in going to and from his work at the Naval Academy and in bringing his employer, Mr. Walls, from Fort Madison to his home at Annapolis, and the night keeper said he had [*216] [***10]seen him on the bridge when the draw was open waiting near the draw, "like other people for the draw to close."

   During the examination in chief of Mr. Arnold, a witness for plaintiff, and a former keeper of this bridge, he was asked "what was there to guard a traveller from going in?" and he replied "only five lights." He was then asked, "what in your judgment was necessary there to safe guard that bridge when the draw was open in the night?" This was objected to but the objection was overruled and he replied, "Well sir, I think a chain, pole, or most anything like that would have done," and this constitutes the first exception.

   In Hill v. R. R. Co., 55 Me. 438, a witness was asked whether the blowing of a whistle, in the circumstances in evidence was safe and prudent, and the question was held improper "since it asked for a mere naked expression of opinion as to the character and quality of acts open to common observation."

   In Turnpike Co. v. Leonhardt, 66 Md. 70,[**605] it is said, "It is proper to lay before the jury all the facts which are necessary to enable them to form a judgment on the matters in controversy; and when the subject[***11] under investigation required special skill and knowledge, they may be aided by the opinions of persons whose pursuits or studies, or experience have given them a familiarity with the matter in hand. But where the question can be decided by such experience and knowledge as are ordinarily found in the common business of life, the jury are competent to draw the inferences from the facts without having the opinions of witnesses."

   In Ferguson v. Hubbell, 97 N.Y. 507, JUDGE EARL has stated the rule with a clearness and precision which will justify reference to that case, He said, "It is not sufficient that the witness may know more of, or better comprehend the subject, than the jury, but it must relate to some trade, profession, science, or art, in which persons instructed by study or experience, may be supposed to have more skill and knowledge than jurors of average intelligence."

   In Stumore v. Shaw, 68 Md. 11, this Court said, "If the [*217] relation of facts and their probable results can be determined without special skill or study, the facts themselves must be given in evidence, and the conclusions or inferences must be drawn by the[***12] jury." Here, it is manifest that the probable results of the absence of guards or barriers, at this draw, could as well be determined by the jury as by this witness, who was not shown to possess any special skill or knowledge, derived from, or relating to, any trade, profession, or technical pursuit, which would qualify him to instruct the jury, and it was therefore error to admit his opinion.

   The only other exception is to the ruling on the prayers. The plaintiff offered three, all of which were granted, and the defendants offered seven, of which the first, second and third were refused, and all the others were granted. The plaintiffs' third prayer on the measure of damages requires no notice, but we shall request the reporter to set out all the others in full, for the better understanding of the effect upon them of the view we shall express. We have already sufficiently stated the means adopted by the defendants to warn travellers by night, of the existence of this draw, and of its condition as it is approached, and have detailed some of the testimony showing how the accident occurred. In addition to this, the plaintiffs' witness, Weedon, who was at the time about 150 yards further[***13] from the draw than the deceased was, testified that he knew by the lights that the draw was open, and the evidence is uncontradicted that the deceased was familiar with the use of the bridge and draw and with the purpose and plan of the lights on the bridge and on the draw. In addition to the warning given by these lights, Capt. Frank testified that as he approached the draw in his bugeye he blew his whistle to notify the bridge keeper who opened the draw in response, and that his boat had a loud exhaust which could be heard for half a mile; also that it made more noise when passing through a draw, than in ordinary navigation of the river, and that he was not more than seventy feet from the draw after passing through it when he heard a splash on the other span of the draw, and the keeper called to him to come back. 

   [*218] Mr. Chinn, an engineer and surveyor, who was familiar with the bridge, testified that the lights could be seen even on a foggy night at least for a distance of 500 feet.

   Elzey Perry, on the night in question at 7.30 o'clock, was passing through the draw in a small launch, through the span on the Annapolis side, into which the plaintiff fell; that he saw the[***14] draw opening and all the lights on the bridge and draw, and that he heard and saw the team coming, and heard Capt. Frank's whistle, and the exhaust of his boat; that the team came up in a trot and stopped; that he saw the man in the buggy, and saw the horse stop; that he heard something like a whip cutting and "the horse jumped right in;" that he was standing up in his boat; that "the team came right up to the edge; and the horse stopped with his forefeet near the edge; that he himself was about 20 feet from the team, and "looked at the team to see whether it would get into the boat." He said he did not see any whip and could not say whether there was one or not in the carriage, but there was evidence tending to show that the plaintiff did not have a whip at that time. Mr. Tydings testified that he knew the horse the plaintiff was driving, that he was a good road horse, and did not need the whip; that he had often seen him on the road, and that "whenever the reins were drawn on him he would shoot ahead." It is thus not material whether there was a whip or not, or whether the sound heard by Perry was from a whip, or from the drawing of the reins since either cause would account for[***15] the forward movement of the horse.

   There is no contradiction of any of the material facts stated in the foregoing summary of the evidence in the case, and we think it clearly appears therefrom that the plaintiff was grossly negligent and that his death was directly due to his own negligence. He was not a stranger to the premises; he was familiar with the bridge and with the working of the draw, by his use of the bridge in driving across it by night and by day. He was also an oysterman, and as such familiar with the use of the river at that point where oysters are constantly taken. He was therefore necessarily acquainted with significance of the lights used, both for the purposes of travel across the bridge, and for the passage of boats through it. If he had looked when he drove on the bridge, or at any point after he passed Weedon, he must have seen that the position of the red lights indicated that the draw was open. If he had listened, he[**606] must have heard the whistle of Capt. Frank's boat signaling for an open draw, and the noise of the exhaust growing constantly louder as the boat approached. There is no evidence that he was deficient either in the sense of sight or hearing, [***16]yet with the fullest opportunity both to see and hear the signals of his peril, he plunged recklessly into the open draw. The duty of a traveller about to cross a railroad, to stop, look, and listen, both upon principle and authority, is equally imperative when approaching a draw bridge. There is no case in our own Court of Appeals where this rule has been actually applied to a draw bridge, but there is a near approach in principle in County Commissioners v. Burgess, 61 Md. 29, where the Court in considering upon whom lies the burden of showing contributory negligence on the part of a plaintiff, and in holding it to be upon the defendant, said, "This rule has been laid down in suits against rail roads for injuries caused by them, and we see no reason for establishing a different rule as applied to accidents occasioned by defective roads or bridges. The presumption that a man will act prudently and with care for his own safety, and will not recklessly rush into destruction, must exist in the one case as in the other." In Stephanis' case, 101 Wis. 59, the rule was directly declared to be applicable, the Court saying: "It is admitted that the intestate[***17] had crossed the bridge both in the evening and in the daytime; that she must have known it was a swing bridge that it was frequently opened, and that there were no guards, and that the person who walked off from the bridge would go into the river. * * * * Could she say to herself that bridge ought to be closed, or if open, I can assume there is a guard which will prevent my falling into the chasm? Or must she say to herself I must use my eyes and ears to the best advantage to guard against the possibility of walking into [*220] the open draw? Reason and common sense indicate but one answer to these questions, and that is that she must adopt the second course if she would exercise ordinary care. * * *

   "The approach to a swing bridge is an advertisement of danger to one who knows the character of the bridge which speaks as loudly and as logically calls for as great an exercise of care, as the track of a railway. The possible yawning chasm is as great and real a danger as the possible rushing locomotive, and the warning that it may exist is just as emphatic. The requirement of ordinary care in approaching a bridge would not be satisfied by looking down in front, but would require[***18] looking ahead and if, as appears beyond dispute in this case, there was a light immediately ahead which, when looked at, would show that the bridge was open, then the failure to look and observe would be a failure to exercise ordinary care under the circumstances." The language of this well considered case might well have been written upon the facts of the present case, and upon those facts the only rational conclusion is that Stansbury went to his death while negligently sleeping, or while oblivious to the plain peril, or from some other equally negligent act or conduct. It follows from what we have said that the defendants' second prayer withdrawing the case from the jury because of the contributory negligence of the plaintiff, was erroneously refused. and as in this view of the case there can be no recovery, the judgment must be reversed without awarding a new trial.

   We shall not enter into any discussion of the other prayers, but if the plaintiffs first prayer was designed to assert the proposition that the failure to provide barriers at the draw, instead of, or in addition to, the system of lights used to warn travellers at night, constitutes negligence in law on the part of[***19] the defendants, we are not to be understood as committed to that proposition, nor as determining whether there is, or is not, any legally sufficient evidence of any negligence on the part of the defendants.

   Judgment reversed, without awarding a new trial, costs above and below to be paid by the appellees. 

ANNE B. JEFFERS, HESTER A. HARWOOD ET AL. vs. THE MAYOR,COUNSELLOR AND ALDERMEN OF THE CITY OF ANNAPOLIS ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
107 Md. 268; 68 A. 553; 1907 Md. LEXIS 131

 December  4, 1907, Decided  
 January  15, 1908, Opinion filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (ROGERS, J.)

DISPOSITION: Decree affirmed.

CORE TERMS:  street, railway, franchise, ordinance, track, municipality, railroad, municipal, charter, electric railway, motive power, servitude, An Act, express authority, subject matter, new name, connecting, confirm, alley, evils, street railway, electricity, injunction, effectual, passenger, improved, ratified, occupied, ratify, enacts

COUNSEL: James M. Munroe, for the appellant.
 
Ridgely P. Melvin, for the Mayor, etc., of Annapolis, appellee.
 
Geo. Weems Williams (with whom were Frank Gosnell and Robert Moss on the brief), for the Washington, Baltimore and Annapolis Electric Ry. Co., appellee.

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

OPINIONBY: PEARCE

OPINION: [*270] [**554] PEARCE, J., delivered the opinion of the Court.

   A per curiam opinion was filed in this case December 4th, 1907, affirming the decree of the Circuit Court for Anne Arundel County, by which the demurrer to the bill of complaint was sustained, and the bill was dismissed, and we will now state the reasons, with some reference to the authorities, which led to our conclusion.

   The Mayor, Counsellor and Aldermen of the City of Annapolis, by a municipal ordinance passed June 21st, 1907, and by an amendment thereto, passed July 2nd, 1907, granted to the Washington, Baltimore and Annapolis Electric Railway Company, the privilege or franchise to lay a single railway track over and upon certain designated streets in[***2] said city "with the right to perform any work, and to do any manner of things which may be necessary or proper, in order to construct upon said streets the single track as herein provided and the connections connecting the same in accordance with the provisions of this ordinance."

   The consideration for this franchise was the agreement of the said railway company to pay to the Mayor, Counsellor, and Aldermen of Annapolis, in quarterly installments in each year, a tax of 4 1/2 mills for every passenger above the age of 12 years, and of 2 7-10 mills for every passenger between the ages of 4 and 12 years carried over said tracks within the city limits, for a whole or part trip within the existing city limits, or as the same should be extended from time to time, whether said tracks be upon private way or city streets, and provided that the revenues under said ordinances should never be less than $500 per year.

   Provision was also made by said amended ordinance against a monopoly of said streets by said railway company, by reserving to the city the right to grant the use of said streets to any other corporation for any purpose whatsoever, and by a stipulation that said railway company, [***3] should, after three years from the passage of said ordinance, permit any other railway company, not using steam as a motive power, to use its tracks upon payment of reasonable compensation to be determined as provided in said ordinance.

   [*271] The railway company accepted the said ordinance and began the construction of tracks upon the streets of said city,

   The plaintiffs below, property owners upon the line of the proposed route, allege in their bill that the ordinance above mentioned is ultra vires and null and void, and prayed that it be so declared, and that the Mayor, Counsellor and Aldermen of Annapolis be restrained by injunction from approving any plans submitted to them for the construction of said railway, or from permitting the railway company to enter upon said streets, and that the railway company be restrained by injunction from the construction of said tracks, or any work connected therewith.

   The railway company answered the bill, but the city of Annapolis demurred to it, and the demurrer was sustained, and the bill dismissed as to said city.

   In addition to the oral arguments and briefs of the appellants, and of the Mayor and City Council, we have had the[***4] benefit of an elaborate brief of the able counsel of the railway company, to all of which we have given full consideration.

   It is contended for the appellee in this case that the legislative authority for the ordinance in question is supplied through three separate channels.

   1st. Through the general control over its streets delegated by the Legislature to the city.

   2nd. Through the provisions of ch. 307 of 1900, and ch. 361, of 1902, which ratify and confirm all privileges and franchises, granted, or to be granted, by the city of Annapolis to the appellee.

   And 3rd. Through the provisions of sections 255 and 256 of Art. 23 of the Code of Public General Laws of Maryland, authorizing railroad companies, operated by electricity, cable, or other improved motive power, and municipal corporations through which their roads may pass, to agree upon the conditions upon which streets and alleys of said municipal corporations may be used or occupied by such railroad companies, when necessary for their corporate purposes.

   When express authority can be found for the exercise of [*272] delegated power, that alone should be invoked, and we shall therefore not consider the question of implied[***5] power to pass this ordinance, and shall confine ourselves to the express authority which in our opinion is disclosed by the record.

   The Potomac and Severn Electric Railway Company was chartered under the general incorporation law of Maryland on May 19th, 1899, and the charter provided "that the termini of said railroad shall be a point on or near the eastern boundary of the District of Columbia, and a point in, or contiguous to, the city of Annapolis on the Severn river, and that the said railroad shall pass through the counties of Prince George and Anne Arundel, and the city of Annapolis." The Act of 1900, ch. 37, changed the corporate name of the Potomac and Severn Electric Railway Company to the "Washington and Annapolis Electric Railway Company," and enacted that by that new name it should hold all the property, enjoy all the rights, and exercise all the powers possessed by said corporation under its former name.

   The Act of 1902, ch. 361, again changed the name of this corporation from "Washington and Annapolis Electric Railway Company," to "Washington, Baltimore and Annapolis Electric Railway Company," and enacted that it should under that new name[**555] hold and exercise[***6] all the rights possessed under its former name.

   No question is made as to the validity of this last Act, but it is claimed by the appellants that chapter 307 of 1900, is unconstitutional and void, first, because it violates sec. 29 of Art. 3 of the Constitution of Maryland which provides that "every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title;" and second, because, as it is alleged, it undertakes by anticipation to ratify and confirm in advance, any and all rights, powers, privileges and franchises which might be in the future granted to said railway company, by any county, municipality, or the proper officers thereof. The title of that Act is as follows: "An Act to change the name of the Potomac and Severn Electric Railway Company, and to grant certain additional [*273] powers and privileges to said corporation and to confirm certain franchises and privileges granted to said corporation by the Mayor, City Counsellor and Aldermen of the City of Annapolis."

   The preamble of this act recites that certain privileges and franchises had been theretofore granted by the Mayor, Counsellor and Aldermen of Annapolis to said[***7] corporation by its former name for which grants it was desirous of obtaining absolute legal sanction; and that in order to the successful operation of said corporation, it was necessary it should be vested with certain additional rights, powers, privileges and franchises. It then proceeded to change the name as above stated, and to grant certain additional powers and privileges, such as the right to lease its property and franchises to any connecting, but not parallel, line of electric railway, or to lease other connecting, but not parallel, lines of electric railway; to manufacture and sell electric light and power, and to operate telegraph or telephone lines along its railway.

   Section 10, enacts "that any and all rights, powers, privileges or franchises whatsoever which may hereafter be granted or extended to said railway company, by any county, municipality, or the proper officers thereof, shall be as effectual and binding upon the said counties or municipalities so granting the same, as if said grant of powers, rights, privileges or franchises, had been expressly ratified and confirmed by Act or Acts of the General Assembly of Maryland subsequent to the granting thereof." [***8]

   In Baltimore City v. Flack, 104 Md. 107, in considering the requirements of section 29 of Art. 3 of the Constitution, CHIEF JUDGE MCSHERRY, speaking for the Court, said: "This declaration of the organic law has been before the Court of Appeals in no fewer than forty-five cases since its incorporation into the Constitution of 1851; and in less than one-fourth of these instances has an Act of Assembly been stricken down by reason of its being in conflict with that provision. It is only the subject of the Act which must be described in the title, and neither the details of the legislation, nor the means [*274] or instrumentalities by which the subject is to be carried into effect, constitute the subject of the Act. * * * When the cases in which it has been held that legislation was invalid, because in conflict with section 29 of Article 3 of the Constitution, are examined, it will be found, either that something wholly repugnant to the title, or something altogether foreign to the subject described in the title had been attempted to be incorporated in the body of the Act, in flagrant disregard of the principle announced in Davis v. State, 7 Md. 151. [***9]* * * All the cases in our reports show that this Court has never leaned towards a narrow interpretation of sec. 29 of Article 3 of the Constitution, and we are unwilling now after the lapse of more than half a century since the decision of Davis v. The State to bring, by a strained construction, under the penalty of its prohibition, statutes which are not within the obvious evils and mischiefs that its adoption as part of the organic law was designed to obviate."

   Those evils and mischiefs were thus described in Davis v. The State: "A practice had crept into our system of legislation, of engrafting upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction, and actually vote for, such provisions, which, if offered as independent provisions, would never have received their support. Besides, foreign matter matter has often been stealthily incorporated into law during the haste and confusion always incident upon the close of all legislative bodies, and it has not infrequently[***10] happened that in this way the statute books have shown the existence of enactments that few of the members of the Legislature knew anything of before. To remedy such and similar evils was this provision inserted in the Constitution and we think wisely."

   In the Act now under consideration the subject matter of legislation was the charter of an electric railway company, embracing its name, powers, privileges and franchises.

   Every section of the Act refers to, and is germane to, the [*275] subject matter described in its title, and where this is the case, the title need not give an abstract of the contents of the Act, nor need it mention the means and methods by which the general purpose is to be accomplished. Baltimore v. Reitz, 50 Md. 574.

   The first section merely changed the corporate name.

   The second section confirmed to the corporation by its new name, certain franchises and privileges previously granted by the authorities of the city of Annapolis to the corporation by its former name, the corporation desiring to avoid any possible question upon that point as affecting the value[**556] of their securities when issued and placed upon the market. This[***11] would seem to be so plain as to preclude question. But if questioned it has been settled in Mayor, &c., of Annapolis v. State, 30 Md. 112. There the corporation had, without authority of law, closed up an alley. An Act of the Legislature was subsequently passed entitled, "An Act to amend and alter the charter of the city of Annapolis." In it there was contained a provision making valid the defective proceedings. This was held to be a constitutional exercise of power on the part of the Legislature, and the provision itself not foreign to the subject matter declared in the title of the law.

   All the other sections of the Act now before us relate to the additional powers and privileges which the title states it is the purpose to grant.

   Of these, only the tenth section, which we have already quoted in full, is attacked as undertaking to ratify in advance all powers and privileges thereafter granted to the railway company by any county or municipality, through which said railway passes, under the provisions of its charter. This is nothing more nor less than a delegation of legislative power to the municipal subdivisions of the State through which the railway passes[***12] and in which it operates; the granting of express authority to such municipalities to grant franchises to that railway company in its discretion. It is one of the plain and natural modes of granting "additional powers and privileges," stated in the title of the Act to be one of the purposes of its [*276] passage. This delegation of Legislative power is illustrated in the relation of the State to every county and town in the State, constituting a municipal corporation, and the exercise of the power so to delegate authority is written large upon the records of every legislative session.

   We can discover no ground upon which this Act, or any section thereof, can be held to be unconstitutional.

   But apart from the Act of 1900, ch. 307, the Mayor and City Council of Annapolis was abundantly authorized to pass the ordinances granting the franchises now in question.

   Section 255 of Art. 23 of the Code of 1904, enacts that "if it shall be necessary in the location of any railroad, to occupy any road, street, alley or public way or ground of any kind, it shall be competent for the municipal, or other corporation, or public officer, or public authorities, owning or having charge thereof, [***13] and the railroad company, to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied," and then provides, if the parties shall be unable to agree, how the company may proceed by condemnation proceedings, to appropriate so much of said street, road, alley, public way or public ground as may be necessary for the purposes of such road. Section 256 provides that sec. 255 shall apply to all roads operated by electricity, cable, or other improved motive power, and whether incorporated under the provisions of Art. 23, or by a special Act. The record in this case shows that this railway company was by its original charter authorized to construct a railroad and operate the same under the provisions of Art. 23, sec. 158 to 204, inclusive, of Code 1888 (now sections 242 to 300, inclusive of Code of 1904), and that said railroad was required to pass through the counties of Prince George and Anne Arundel and the City of Annapolis. The ordinances in question therefore when duly passed by the authorities of the city of Annapolis, and duly accepted by said railway company as shown by the record constituted the best evidence obtainable of the[***14] agreement provided for by sec. 255 of Art. 23, and of the terms and conditions upon which the streets of the city of Annapolis were to be used by said railway.

   [*277] It being settled in this State that the use of electricity for propelling street cars is only a new and improved motive power, and that its use does not impose a new servitude upon the streets so as to entitle abutting lot owners to additional compensation (Koch v. North Avenue R. R. Co., 75 Md. 222), the plaintiffs in this case are not entitled to restrain by injunction the construction of this railway, and must resort to a proceeding at law for any incidental or consequential injury or damage resulting from its construction or operation.

   It was contended for the plaintiffs that this railway is not a street railway, or even a suburban railway, but an interurban railway, and that as such it imposed an additional servitude upon the streets of the city, and the city could grant no franchise which could be effective as against these plaintiffs. But no authority was produced for this position, and we have found none.

   In Poole v. Falls Road Railway Co., 88 Md. 533, the railway[***15] company which was sought to be enjoined was to run from a certain point within the city of Baltimore to Mount Washington in Baltimore County, but that fact was not allowed to affect the decision that no new servitude was imposed upon the streets of the city, and it is difficult to conceive how such a consideration could affect the question.

   In Newell v. Minneapolis, Lyndale and Minnetonka Railway Co., 35 Minn. 112, the Court said: "If it is in fact, a passenger street railway within the city limits, how can it become anything else there, because it becomes something else elsewhere? * * * It cannot be that a proper use of the streets of the city can be made improper by the fact that the instrumentalities through which that use is enjoyed, are changed as respects their mode of operation after the city boundaries are passed over, or that the use of the streets[**557] of a city for the purpose of going out of it, or coming into it, can be improper or illegitimate, or in any sense the imposition of a servitude additional to the ordinary street easement." This was said in a case where a narrow guage was operated by a steam motor in the city, and by locomotives[***16] beyond the city boundary, the line going to a town eighteen miles from Minneapolis, while in the case before us the motive power and the cars are the same within and without the city. We find no ground for any distinction in regard to this franchise, between electric railways operating wholly within the city streets, and those running over the same streets but also connecting the city with another city or with suburban towns.

   For the reasons assigned the decree was affirmed. 

RACHEL E. STEWART ET AL. vs. THE WORKINGMEN'S BUILDING ANDLOAN ASSOCIATION OF ANNAPOLIS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
106 Md. 675; 68 A. 887; 1907 Md. LEXIS 118

 November  15, 1907, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (ROGERS, J.)

DISPOSITION: Order affirmed in part and reversed in part and cause remanded for further proceedings in conformity with this opinion. The costs below to be paid by the appellant; the costs on this appeal to be paid by the parties equally.

CORE TERMS:  weekly, mortgage, credited, fine, dividend, installment, redeemed, default, shares of stock, par value, usurious, borrower, auditor, stock, mortgaged, weekly payments, neglect to pay, per share, designated, mortgagee, covenants, tendered, borrowed, bonus, entrance fee, borrowing, indebtedness, ratification, conformity, mortgagor

COUNSEL: James W. Owens, for the appellant.
 
Frank H. Stockett, for the appellee.

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

OPINIONBY: PEARCE

OPINION: [**888] [*676] PEARCE, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County as a Court of equity, overruling exceptions to the ratification of a sale of mortgaged premises, made under a power of sale contained in the mortgage. This mortgage was made September 20th, 1898, by Rachel E. Stewart and her husband to "The Workingmen's Building and Loan Association of Annapolis, Anne Arundel County, Maryland," (which will hereafter be designated The Association), a body corporate under the laws of Maryland, to secure an advance made to said Rachel E. Stewart as the holder of certain stock in said Association. It recites that she was at that date a member[***2] of the Association, and the holder of five shares of its [*677] unredeemed stock, and that she had received from the Association an advance of $650, "being the full par value of said five shares of stock when fully paid up and completed, in the contemplation of the object and purposes of said Association * * * in accordance with its present constitution." The mortgagors covenanted therein as follows: "to pay to the mortgagee or its assigns, on the principal sum, the weekly sum of one dollar and seventy-five cents (being thirty-five cents on each share) on every Saturday night in each week, for the period of ten years from the date hereof, or until the aggregate of said weekly payments so made, together with the said shareholder's accredited dividend of the profits of said Association, shall, exclusive of all losses and liabilities, and fines and penalties imposed, amount to the said advanced sum of $650, and to pay as interest on said advanced sum, on every Saturday night during said period the further weekly sum of fifteen cents on each of said shares of stock, the said weekly interest of fifteen cents ceasing on each share only when the par value thereof ($130) clear[***3] of all losses and liabilities, fines and penalties, shall have been repaid."

   They also covenanted to pay all ground rent, taxes and assessments of all kinds upon the mortgaged property, and all fines and penalties imposed upon the said Rachel E. Stewart in accordance with the constitution of the Association, and to insure the buildings on the mortgaged premises to the amount of at least $500 for the protection of the mortgagee.

   The power of sale in event of default in the performance of any of the covenants was in the form commonly used in such mortgages, except that it provided for a fee of $40 to the attorney named in the mortgage or other party making sale thereunder, "in lieu of the commissions usually allowed."

   Default was made by Mrs. Stewart, and on February 2nd, 1907, the mortgaged premises, after due advertisement, were sold by the attorney named therein, for $975, and the sale was duly reported to the Court for ratification, the amount claimed by the mortgagee up to the day of sale being $680, besides costs and commissions to be added, as appears from mortgagee's account A set out in the record.

   [*678] The exceptions of Mrs. Stewart allege that on the day of[***4] sale, and before the sale began, she tendered in legal currency both to the attorney making the sale, and to the president of said association, the sum of $605.15, being, as she alleges, the full amount properly due upon said mortgage, including all costs and commissions, but that the tender was refused, and she filed with said exceptions a statement or account showing how said amount was reached, which is set out in the record and is designated Exhibit R. E. S. No. 4. This account alleges the total amount due on the mortgage to be $539.21, but she tendered $550 to cover any possible error in calculation, and added for costs as stated in the exceptions, $55.15, making the total tender $605.15. The exceptions allege that the claim of the association was "fraudulent, usurious, oppressive, contrary to law, and null and void," and prayed the Court "(a) to set aside said sale; or (b) to refer the papers in the proceedings to a special auditor to be appointed by the Court, to state the accounts between your petitioner and the said association, and report the same to this Court for its final action thereon." The solicitor for the exceptant being the regular auditor of the Court, the[***5] papers were by order of the Court referred to a special auditor to state an account and report the same to the Court with leave to take such testimony as he should think proper.

    An agreed statement of facts was filed by the parties, from which it appears that the said association has "continually, at stated periods since 1898, declared dividends and paid the same or credited the same to the parties entitled thereto on all matured stock, and on the stock of the non-borrowing members," but "that no dividend has ever been paid Rachel E. Stewart on account of her payments to the said association." It was also admitted that the tender was made and refused as alleged, and that the items composing the tender were as alleged in the exceptions, and that the statement filed and designated R. E. S. No. 4, "shows fully all payments made by her during the existence of the mortgage," and that no certificate for said five shares of stock was ever delivered [*679] to her by the association; also that the statement filed by the association, and designated Mortgagors Account A, was a correct statement of her ledger account, so far as the same professes to give her payments and the charges against[***6] her.

   The special auditor reported that he had taken no testimony because counsel had agreed that the statements filed by the contending [**889] parties were arithmetically correct; that he had examined each of them, and had found them to be arithmetically correct, and therefore submitted them both to the Court for its action, and the Court thereupon ordered "that the exceptions filed by Rachel E. Stewart, be and the same are hereby overruled, and that Mortgagees Account A filed March 9th, 1907, be and the same is hereby finally ratified, and that the exceptant pay the costs." The appellants account is made up on the theory that the transaction between the parties is usurious, and in violation of the law regulating advances by building associations to their members, and that in consequence, the relation between these parties is that of borrower and lender, and that the mortgage indebtedness is to be settled accordingly.

   The account of the appellee, on the other hand, is made up on the theory that the transaction is in strict accord with all the requirements of the law regulating such advances; and that the amount due upon the mortgage is to be ascertained by the application of[***7] the rule established by this Court in Oak Cottage Building Association v. Eastman and Rogers, 31 Md. 556. In that case, Eastman and Rogers having received an advance from the association upon certain shares of stock, availed themselves about a year later of the privilege secured to them by the constitution of the association, of redeeming the property mortgaged, by repaying the money due the association, and paid it the sum exacted by it. They then brought suit to recover an alleged excess so exacted, this being before the passage of the Act of 1876, ch. 358, which provides that usury shall not be a cause of action in any case where the evidence of indebtedness has been redeemed or settled for by the obligor, in money or other valuable consideration, except that of a renewal in whole or in part of the original [*680] indebtedness. The constitution of that association provided that any member having taken a loan might obtain a release of his mortgage by paying back the difference between the dues he had paid in and the amount borrowed, together with a bonus on each share, determined by the period during which the association had been in operation, and his[***8] proportion of losses sustained by the association during his membership, and the Court said, "the rule laid down is a very simple one, to deduct the amount of dues paid in from the amount borrowed and to add the bonus; this ascertains the amount to be paid," there being in that case no evidence of any losses sustained by the association.

   We can discover nothing in the constitution of the association in this case, so far as it is set out in the record, nor in the transaction thereunder, which would warrant us in converting the relation of the parties into that of borrower and lender, and in settling the mortgage indebtedness accordingly, and it therefore follows that the tender made by the appellant could not operate to prevent the ratification of the sale, and the tender was properly rejected by the association. The constitution of the association fixes the number of shares of stock at 5,000, and the par value of each share at $130, to be paid in weekly installments of thirty-five cents each, "until the combined weekly payments and profits (credited every six months, or as hereinafter provided) shall amount to $130 per share. * * * In the case of redeemed shares paid up by installments[***9] and dividends of profits according to this Article (No. 2), the mortgaged property shall be released, and the party shall cease to be a member by virtue of such redeemed shares. The profits of the association shall be divided and credited semi-annually pro rata, and the dividends on paid up shares, at the same time shall be paid in cash."

   Art. 11, sec. 1, provides that every member will be entitled to an "Advance or redemption money amounting to $130 for each unredeemed share, provided he offers satisfactory security for the repayment of the same together with the interest, fines, and penalties as herein provided for." Sec. 2 provides that [*681]"each member upon being awarded redemption money, shall be charged interest thereon at the rate of six per cent per annum to be paid in advance, but if such member prefer, for his own convenience, he may pay the interest in weekly installments, at the time of paying, and in addition to his regular weekly dues, in which event the payment of the interest, in weekly installments on the whole amount at the said rate shall continue without rebate until the payment of weekly dues and the credited profits shall amount in the[***10] aggregate to the full value of one share of stock, $130, when the interest and dividends on that amount shall thenceforth cease." Section 5 of Art. 11 provides that if any member whose property has been mortgaged to the association makes default in any of his covenants, and such default shall continue for three months, the property may be sold, and the proceeds shall be applied; "1st, to pay all expenses of sale, arrears of ground rent (if any) taxes, assessments, &c. 2nd, to pay all arrears due the association by such member, and such sums as will be sufficient to liquidate all future payments of dues and interest on the shares redeemed, and the balance, if any, shall be paid to the member, or to his or her legal representatives. Such delinquent's membership shall then cease with reference to the shares redeemed on the mortgage foreclosed."

   Art. 12, sec. 3, provides a different mode of settlement where a member of whose property has been mortgaged to the association desires to obtain a release of his mortgage before his shares are paid up, in which case he must pay to the association "the difference between the installments of dues paid, and the amount borrowed, together with[***11] a bonus of six dollars upon each redeemed share" and his proportion of losses incurred during the period through which such shares have run.

   Art. 14 provides that each member [**890] shall pay a fine of ten cents per share for each failure or neglect to pay any and each of the said weekly dues and installments as they become payable.

   It will be seen by reference to the covenants of the mortgage hereinbefore recited that it conforms strictly to the constitution, [*682] and a simple calculation will show that the weekly payment of fifteen cents as interest on each share, amounts to exactly six per cent per annum upon the par value of each share of $130, which amount was advanced to the mortgagors without premium paid, or deduction of any sort.

   Under that arrangement, if Mrs. Stewart had performed her covenants, she would have paid precisely the same amount to the association for the use of this $650, that she would have paid at the legal rate of interest to any individual from whom she might have procured it, and the transaction is not rendered usurious either by reason of the weekly payment of interest, or by reason offices imposed for neglect to pay dues and interest[***12] as they accrue, weekly payments of interest, and reasonable fines for neglect to pay dues and interest, being expressly authorized by sections 125 and 130 of Art. 23 of the Code of 1904. There is nothing usurious or oppressive in this transaction, and no want of mutuality. Every member stands upon the same footing, and every weekly payment of dues and interest by each member, and every fine imposed and paid for default in such payments of dues and interest, enures to the common benefit of every member in the earlier maturing of the stock.

   We are of the opinion that the account ratified by the Court is stated upon correct principles, in all respects except one.

   It appears from the agreement before referred to, that while dividends have been regularly declared and paid at stated intervals on the stock of non-borrowing members that no dividend has ever been paid or credited to Mrs. Stewart. The counsel of the Association in his brief argued that as she was in default from the beginning and was liable to fines, she could not therefore receive profits, and in support of this contention he cites sec. 149 of Endlich on Building Associations which does apparently sustain that view. But[***13] the same author in sec. 132, qualifies and explains that broad statement, saying, "borrowing members are to be credited only with their actual payments, and not with any profits thereon, unless special statutory enactments, or the rules of the society allow him some share of profits" and he refers for this to Watkins v. Workingmens' Building Association, 97 Pa. 514.

   [*683] In the present case, the constitution expressly so provides, and the mortgage so stipulates. In order to have these profits allowed it will be necessary to reverse so much of the order as ratifiers Account A, and to remand the case to the auditor to take proof as to the dividends of profits to be allowed.

   Section 1 of Art. 2 requires each member to pay an entrance fee of one dollar and an additional fee of fifty cents per share for each share subscribed, and some question was raised whether this should be credited as a payment on the advance of $650, but we do not think it should be so credited, since the same section expressly provides that the weekly dues shall continue to be paid until the combined weekly payments and profits shall amount to $130 per share. Entrance fees are[***14] in no way connected, under the provisions of the constitution, with the subject of advances, and they enure to the benefit of all the members by swelling the funds of the Association and thereby increasing the profits for distribution.

   It is the settled rule that weekly dues and interest constitute but one debt, and that an additional fine cannot be imposed for every week the weekly installment remains unpaid, Shannon v. Howard Association, 36 Md. 383. We assume that this rule has been observed in this case, but if violated by Account A, the error can be corrected in restating the account.

   The order ratifying Account A will be reversed for the reasons stated, but since it cannot be determined, until the proper dividends are ascertained and credited to the appellee, whether the amount due on the mortgage will be brought within the amount tendered, the cause will be remanded without ratifying or setting aside the sale made, that the special auditor may state an account in conformity with these views.

   Order affirmed in part and reversed in part and cause remanded for further proceedings in conformity with this opinion. The costs below to be paid by the appellant; [***15]  the costs on this appeal to be paid by the parties equally. 

BUCHANAN SCHLEY, STATE TAX COMMISSIONER, vs. THE COUNTYCOMMISSIONERS OF MONTGOMERY COUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
106 Md. 407; 67 A. 250; 1907 Md. LEXIS 88

 June  25, 1907, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Order affirmed with costs and case remanded.

CORE TERMS:  book value, shares of stock, market price, stock, undivided profits, capital stock, actual value, ascertaining, one-fourth, ascertain, market value, real estate, gross value, taxation, ascertained, assessing, earning capacity, intrinsic value, valuation, fluctuation, legality, pursued, surplus, deduct, jurisdiction to entertain, shares of capital stock, method of valuation, real estate owned, corporate shares, assessed value

COUNSEL: William S. Bryan, Jr., Attorney-General, for the appellant.
 
Blair Lee and George H. Lamar (with whom was A. T. Brady on the brief), for the appellee.

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

OPINIONBY: SCHMUCKER

OPINION: [**251] [*408] SCHMUCKER, J., delivered the opinion of the Court.

   We have stated in the opinion filed in the case of Blair Lee vs. the present appellant, No. 39 of the present docket that that case and the present one were instituted at the same time in the same Court and for a common purpose. We also there stated that the purpose of both suits was to have the appellant as Tax Commissioner restrained from making his assessment for the year 1907, of the shares of stock of the two national banks there mentioned and the assets of a fire insurance company, in the manner proposed by him and to have him required to make the assessments in the manner set forth as correct. The method of making the assessment about to be pursued by him is alleged in the bills of complaint to be erroneous and unlawful both[***2] in the plan to be adopted by him of ascertaining the gross value of the shares of capital stock of the two banks and also of making deductions from that value in order to arrive at the net or final value of the shares to form their taxable basis. We have already in Blair Lee's case fully disposed of the questions relating to the deductions which the Commissioner proposes to make for real estate and investments of a certain character in arriving at the net or final value of the shares of the banks and the assets of the insurance company. Our consideration will now be given to the plan by which he intends to ascertain the gross value of the shares of the banks from which to deduct the value of the real estate and investments.

   The allegation of the bill in the present case, in that respect, which in so far as it consists of statement of facts is admitted by the demurrer, is as follows, "The defendant proposes, in assessing the shares of stock of each of said banks, to add the [*409] amount of the capital stock, surplus fund and undivided profits, including the sinking, reserved or contingent fund aforesaid, and from the sum thus obtained or so called book value, allow deductions [***3]of one-fourth of the amount so ascertained also the assessed value of the real estate of said respective banks and further the full amount of the par value of the stock debt of Baltimore City so held by said respective banks on January 1st, 1907, as aforesaid and to divide the sum remaining after the deductions aforesaid by the number of shares of capital stock issued of such respective banks and the quotient, so ascertained the defendant as State Tax Commissioner proposes and is about to certify as the basis for State, county and municipal assessment against each share of the capital stock of said banks, * * * That is to say the defendant in assessing the capital stock of said the Montgomery County National Bank proposes to disregard the earning capacity of said shares of stock of more than 17 1/2 per cent. per annum and the market value thereof as demonstrated thereby and by the aforesaid reported sales at $250 to $300 per share, and take the book value of $218,129.57 and arbitrarily and without authority of law deduct one-fourth of said book value or $54,532.39 thus reducing the gross value per share to $163.59." The bill further alleges that after the Tax Commissioner has[***4] carried out his purpose of deducting from this gross value of the shares the value of the real estate and city stock held by the bank the value of each share of stock of the bank will for purposes of taxation be reduced to $15.39 and thus there will in effect result an unlawful exemption, from taxation for county and municipal taxation in Montgomery County, of a large part of the value of the shares of said bank.

   Two questions in reference to the state of facts thus alleged are presented by the record for our determination. The first is whether we have jurisdiction to interfere with or control the plan by which the Tax Commissioner proposes to make the assessment, and the second is the legality or illegality of the plan itself.

   We have no doubt of our jurisdiction to entertain this appeal. [*410] The question presented by it is not one of the judgment of the Tax Commissioner or of the amount of the assessment made by him. It is one of his power to make the assessment in the manner proposed by him, i. e. of the legality of his method of valuation of the shares to be assessed by him. We have already passed upon the question of our jurisdiction in such cases[***5] in our opinion in Blair Lee's case and still more fully in the recent case of the Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 558-9, 61 A. 532, and it is unnecessary to repeat what we there said.
 
   It is to be observed that sec. 159 of Art. 81 which directs the Commissioner to make the assessment contains no specific directions as to the manner in which the value of the shares is to be ascertained. It does not even say, as sec. 210 of the same Article does in reference to the valuation of the stocks therein mentioned, that they shall be assessed "at their actual value in the market;" but as sec. 15 of the Bill of Rights requires taxation to be according to the actual worth of the property it is the duty of the Commissioner to pursue a method which results in the ascertainment of the actual value of the shares assessed by him. The value of an article is ordinarily what it will bring at a fair sale in the market, unless it be of so special a nature that no market for [**252] it exists and then its intrinsic value must be ascertained by a consideration of its cost, nature, utility and other characteristics. It may be safely said as a general rule that[***6] the market price of the shares of stock of the character referred to in sec. 159 is not only a fair index of their value but is the best one obtainable. That is certainly true of stocks which are currently bought, sold and quoted on the stock exchanges and other centres of trade in securities.

   The method pursued by the Tax Commissioner, of ascertaining what is commonly known as the book value of each share of banks and trust companies by adding the capital stock, surplus and undivided profits of the corporation and dividing the total thus obtained by the number of shares into which its capital is divided, is neither a true guide to the value of the shares of a particular corporation nor one that operates [*411] equally when applied to the shares of a number of different corporations. The book value of the stock of a corporation undoubtedly bears an important relation to its actual or market value and in financial corporations it bears a much closer relation to that value than in manufacturing or trading corporations, but the book value alone of the shares is neither a safe nor true measure of their actual value because it leaves out of view the many elements contributing to the[***7] earning capacity of the corporation which, with banks and trust companies, is always an important and often the chief factor in establishing the value of the corporate stock. In corporations of that character whose chief business consists in receiving deposits, discounting paper and making loans on collateral, the current line of deposits which can be utilized for loans or discounts may be and often is many times as great as the combined capital, surplus and undivided profits. It is a matter of common knowledge that the market value of one of two banks or trust companies, located in the same community and having the same total amount of capital, surplus and undivided profits, will be two or three or more times as high as that of the other.

   It is thus apparent that the fixed and uniform method pursued by the Tax Commissioner of accepting the book value alone as the criterion of the worth of the shares of banks and trust companies is inadequate either to ascertain their true value or to effectuate the equality of taxation, as between the owners of shares in different corporations, demanded by the fundamental law of the State. The commissioner in making his assessment should have especial[***8] regard to the market price of those shares, which from the frequency of their sales may be fairly regarded as having a market price, and as to any shares not having a market price he should ascertain and consider all of the elements tending to establish their intrinsic value.

   As the value of corporate shares of the character now under consideration is liable to some fluctuation and the assessment is required by law to be made at the same time in each year, it is not improper for the Tax Commissioner to make a reasonable and just deduction, according to the condition of the [*412]market and of the respective corporations, from what he ascertains to be their value of the shares at the date of the assessment but his practice of making a hard and fast deduction of one-fourth of their value in all cases is not proper. There may be instances in which a deduction to that extent would be justifiable, but to deduct one-fourth from the value of the shares of a well established and prosperous bank or trust company would practically operate to tax the owners of its shares at but three-fourths of the rate imposed upon the owners of other property in the same community. The deduction, if[***9] any, to be made by the commissioner from his original valuation of any corporate shares must be only such as will in his judgment provide against the probable fluctuations in the value of those shares and result in their fair and just assessment. That result cannot be reached by a fixed and inflexible rate of deduction from the estimated value of the shares of all corporations of the classes to which we have referred, but the deduction if any in each case must be founded upon the state of facts there presented.

   It is unnecessary to again state our views upon the question of our jurisdiction to entertain this appeal, or of the necessary parties to the case. We must be understood as making the same ruling here upon those two points that we made in Blair Lee's case.

   The order appealed from will be affirmed and the case remanded for further proceedings in accordance with this opinion.

   Order affirmed with costs and case remanded.

   BRISCOE, J., dissented. 

BUCHANAN SCHLEY, STATE TAX COMMISSIONER vs. BLAIR LEE, ETAL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
106 Md. 390; 67 A. 252; 1907 Md. LEXIS 89

 June  25, 1907, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Order affirmed with costs and case remanded for further proceedings.

CORE TERMS:  stock, taxation, shares of stock, capital stock, real estate, municipal, deduct, assessed value, valuation, taxable value, assessing, annual, owning, aggregate value, joint stock, deducted, corporate shares, settlement, injunction, shareholder, shares of capital stock, fire insurance, treasurer, exemption, reside, burden of taxation, stock owned, proper officer, non-residents, stockholders

COUNSEL: William S. Bryan, Jr., Attorney General, for the appellant.
 
Blair Lee and George H. Lamar (with whom was A. T. Brady on the brief) for the appellee.

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

OPINIONBY: SCHMUCKER

OPINION: [**253] [*391] SCHMUCKER, J., delivered the opinion of the Court.

   This appeal and the following one of the present appellant vs. the County Commissioners of Montgomery County, No. 40 of the present docket, were heard together. The cases in which the two appeals were taken were instituted at the same time, on the equity side of the Circuit Court for Anne Arundel County, for the same purpose and the two records present the same state of pleadings. The only practical difference between the cases is that the present one was instituted by the appellant, Blair Lee, on behalf of himself and the other taxpayers [*392] of Montgomery County, and No. 40 was instituted by the County Commissioners of Montgomery County.

   The common purpose of the two suits was to have the appellant[***2] as State Tax Commissioner restrained from making the assessment for the year 1907 under sec. 159 of Art. 81 of the Code, of the shares of stock of two national banks and the assets of one fire insurance company, in the method which he has heretofore pursued and which he declares it to be his purpose to continue to pursue and to require him to make the assessments in the manner alleged by the bills to be the correct one. The bills of complaint allege his methods to be erroneous and unlawful both in ascertaining the value of the shares of the banks and of the assets of the insurance company and also in making certain deductions therefrom in arriving at their final or assessment valuations. We will consider in this opinion the legality of the deductions which the appellant as Tax Commissioner proposes to make from the value of the shares of stock of the banks and the assets of the insurance company, and will reserve for the opinion in the County Commissioners case the question of his proposed method of ascertaining the respective values from which to make the deductions.

   Upon the filing the respective bills with their exhibits the Court below passed in each case an order for a preliminary[***3] injunction in accordance with the first and second prayers of the bill. The defendant having first demurred to the bill appealed from the order.

   The bill in this case alleges that the plaintiff is a citizen of this State and a resident and taxpayer in Mongomery County and that the defendant is the State Tax Commissioner having his office at Annapolis in Anne Arundel County, and that the three corporations hereinafter mentioned have their principal places of business in Montgomery County. The substance of the further averments of the bill is as follows:

   That shares of the capital stock of the Montgomery County National Bank and the First National Bank of Gaithersburg owned by residents of Montgomery County and by non-residents of this State constitute property taxable in said county, [*393]as do also the property and assets of the Mutual Fire Insurance Company of Montgomery County which has no capital stock divided into shares. The Montgomery Co. National Bank owns real estate assessed for taxation at $30,000, and also $118,200 of the stock or funded debt of Baltimore City on which that city has agreed [**254] to pay the State taxes, and the First National Bank of Gaithersburg[***4] owns real estate assessed for taxation at $3,200 and also $10,000 of Baltimore City stock of the character aforesaid, and that certain of the stockholders of each of said banks reside in Montgomery County and others are non-residents of this State. The said Fire Insurance Company owns $96,500 of the same character of Baltimore City stock and also $13,000 of Montgomery County bonds exempt from county and municipal taxation, but subject to taxation for State purposes.

   The bill further avers that the appellant admits that he, as State Tax Commissioner, is required by law to return to the County Commissioners for county and municipal taxation the identical assessment of the stock of the said corporations that he returns to the State Comptroller for State taxation, and he has informed the appellee that he intends, in making said assessment for the year 1907, to deduct, from the value of the capital stock of each of the said two banks, not only the assessed value of the real estate held by it but also the face value of the Baltimore City stock owned by it, and to deduct from the property and assets of the said Fire Insurance Company the face value of its Baltimore City stock and also[***5] of its Montgomery County bonds. That the assessment which the Tax Commissioner has thus announced his purpose to make will be unlawful and contrary to the duty imposed upon him by the existing law of this State which requires him to ascertain the assessable value of the shares of capital stock of said banks, by deducting only the assessed value at the real estate held by each of them from the aggregate true value of all of the shares of its capital stock and dividing the remainder by the number of the shares, and provides that the quotient thus obtained shall be the taxable value of each share of the stock [*394] for State, county and municipal taxation. That the law also requires him to ascertain the assessable value of the property and assets of said Fire Insurance Company by deducting from their true value only the assessed value of the real estate, if any, owned by it. That the appellant has construed and persists in construing sec. 160, of Art. 81 of the Code, which relates only to credits to be allowed to corporations in the "Settlement of taxes," as forming part of the law relating to the assessment by the Tax Commissioner of the shares of their capital stock for the purpose[***6] of taxation; and that his plan of assessing the shares in question results in the practical exemption of the shares of stock of such corporations, to the extent of the value of said Baltimore City stock from all taxation for county and municipal purposes, as the County Commissioners are required by law to accept his assessment of the said shares for purposes of such taxation. That under the laws of the United States the said Baltimore City stock while held by the said national banks are not subject to assessment or taxation for State, county or municipal purposes, that no State tax has in fact been paid thereon and that therefore such stocks so held cannot be lawfully regarded as tax paying investments or used as credits in the settlement of State, county or municipal taxes. The bill insists that it is therefore beyond the power of the Tax Commissioner to assess the shares of capital stock of the said corporations in the manner proposed by him. With the bill were filed, as exhibits, copies of letters which passed between the plaintiff and the Tax Commissioner, prior to the institution of this suit on the subject of the assessment of the shares of the corporation, about to be made by[***7] the commissioner.

   The bill then further alleges that the proposed action by the Tax Commissioner will, if not prevented, be in violation of the laws of the State and will inflict serious injury upon the plaintiff and the other taxpayers of Montgomery County and that, as the law allows them no appeal from the assessment which will be made in the manner aforesaid unless prevented by the order of this Court, they are without remedy at law to prevent the wrongs complained of.

   [*395] The prayer of the bill is for first a preliminary injunction and in due course a final one preventing the Tax Commissioner from making the assessment in the manner intended by him, and that he may be required to make the assessment and return of the shares of stock of the said corporation without deducting from his valuations thereof the value of the Baltimore City stock held by them, and so that the $13,000 of Montgomery County bonds be assessed against the insurance company for State purposes only, and for general relief.

   The demurrer filed to the bill by the appellee, as Tax Commissioner, assigns for its ground, in addition to the general want of equity in the bill, 1st the want of jurisdiction[***8] in the Court to control the defendant in the exercise of the official discretion conferred on him by law, and 2ndly, the fact that the corporations, mentioned in the bill, whose interests are attempted to be affected by the suit have not been made parties to it. We will now consider the several grounds of demurrer.

   The statute law immediately affecting the question presented by the record is mainly found in secs. 148, 159, 160 and 162 of Art. 81 of the Code of 1904.

   Sec. 148 requires the State Tax Commissioner, before the 15th of May in each year, to assess for State purposes the shares of capital stock of all banks, State or National, banking associations or other incorporated institutions or companies incorporated by or located and doing business in this State whose shares are liable to assessment and taxation, and to report the amount of the basis of the assessment for State purposes, and makes the assessment subject to appeal as provided in sec. 162 by the corporation [**255] whose shares have been assessed.

   Sec. 162 requires the Tax Commissioner to certify and return, his assessment of the shares of stock and banks and other corporations as soon as made, to the Comptroller[***9] who is required to at once notify the president or other proper officer of the corporations of the assessment by transmitting to him an account of the State taxes due by his corporation under the valuation. The right of appeal to the Comptroller and State Treasurer from such valuation is then given to the corporation [*396] for thirty days, after which in the absence of an appeal the assessment becomes final.

   Sec. 159 prescribes the method in which the Tax Commissioner is to make his annual valuation and assessment of the shares of stock of corporations for State purposes and introduces the further provision that such assessment shall also furnish the valuation at which such shares of stock shall be taxed for county and municipal purposes. After directing the president or other proper officer of every corporation, created by or doing business in this State, to procure the assessment, by the County Commissioners or Appeal Tax Court, of any real estate owned by it and to furnish a copy of the assessment to the Tax Commissioner, it further says, "The respective taxable value of the shares of stock in such bank, corporation and joint stock companies shall be ascertained by the State [***10]Tax Commissioner in the manner following. He shall deduct the assessed value of such real property belonging to the said respective banks, corporations or joint stock companies from the aggregate value of all shares of such respective banks, corporations or joint stock companies and divide the remainder by the number of shares of the capital stock or shares of such respective banks, corporations or joint stock companies and the quotient shall be the taxable value of each of such respective shares for State purposes, and all State taxes thereon shall be paid as provided now or hereafter by law, and when the valuation and assessment of the shares of the capital stock or shares of such banks, corporations or joint stock companies shall have been finally determined or made for State purposes, the State Tax Commissioner shall certify to the County Commissioners of each county where any of the stockholders or shareholders may reside and to the Appeal Tax Court of Baltimore City, if any of said stockholders or shareholders reside in said city, and to the County Commissioners of the county in which such bank, corporation or joint stock company is situated or to the Appeal Tax Court of Baltimore[***11] City, if it is situated in said city, the assessed taxable value of such respective shares of stocks or shares so ascertained as aforesaid. And the said [*397] taxable value of such respective shares of stock or shares in such banks, corporations or joint stock companies owned by residents of this State and taxable within this State shall, for county and municipal purposes, be valued to the owner thereof in the county or city in this State in which such owners shall respectively reside and the said taxable value of such of said stock or shares as are held by non-residents of this State shall, for county and municipal purposes, be valued to the owners thereof in the county or city in which said bank, corporation or joint stock company is situated." Sec. 159 further provides that all county and municipal taxes assessed on the taxable value of the shares of stock in said corporations shall be collected from the corporation; and sec. 150 provides that the State taxes thereon shall be paid to the State Treasurer by the corporation for the shareholders. Sec. 159 also provides that the State, county and city taxes on the assessed value of the real estate, thus deducted in assessing the[***12] shares of stock, shall be paid by the corporation owning it as the taxes on other real estate are paid.

   These provisions of the Code provide a simple and effective system, for the assessment and collection of both State and local taxes upon the shares of stock of corporations created by or doing business in this State, and if they were the only provisions applicable to the subject the practical operation of the system would cause neither difficulty nor embarrassment. It is to be observed that under this system the powers and duties of the State Tax Commissioner relate exclusively to making and returning the assessment of the shares of stock and that he is to make but one assessment and is required to certify that to the Comptroller for purposes of State taxation and to the County Commissioners and Appeal Tax Court for purposes of local taxation. As the State and local taxes on the real estate owned by the corporations are required by law to be paid by them in the same manner that other persons pay the taxes on their real estate, it becomes necessary to deduct the value of the corporation's real estate in assessing the aggregate value of its shares of stock in order to prevent double [***13][*398] taxation. Under this system the one valuation and assessment of the shares of stock by the Tax Commissioner forms an equally just basis for both State and local taxation.

   The disturbing element is introduced into the system by sec. 160, which makes provision for the taxation for State purposes of the stock of corporations holding, as investments of their capital, any State or Baltimore City stock, or the shares of any other corporation on which the payment of the State tax is otherwise provided for. The essential portion of that section, as amended by the Act of 1906, ch. 467, is as follows:

   "160. Any corporation having a capital stock divided into shares, and owning as an investment of part of its capital any of the stock debt of this State, upon which the State tax has been deducted by the Treasurer, or of the stock debt of the city of Baltimore on which the State taxes have been paid or are payable by said city, or shares in any bank, or other [**256] corporation of this State upon which the State and county or city taxes are levied and paid, or are payable by such bank or other corporation, may report the same in detail under the oath of the president, cashier, [***14] treasurer or other proper officer, to the State Tax Commissioner, and the amount of such stock debt or debts, or the assessed value of such capital stock so owned, and upon which such taxes are paid or payable as aforesaid, shall be allowed as a credit, in the settlement of the taxes, on the shares of capital stock of such corporation so owning the same; and any corporation not having capital stock divided into shares, and owning as an investment of part of its assets any of the stock debt of this State upon which the State tax has been deducted by the Treasurer, or of the stock debt of the city of Baltimore on which the State taxes have been paid or are payable by said city, or shares of the capital stock of any bank or other corporation of this State, upon which the State and county or city taxes are levied and paid, or are payable by such bank or other corporation, may report the same in detail, under the oath of its president, cashier, treasurer or other proper officer, to the State Tax Commissioner, and the amount of such stock, debt, or debts, or the assessed value of [*399] such shares of capital stock so owned, and upon which such taxes have been paid or are payable as[***15] aforesaid, shall be allowed as a credit in the settlement of the taxes on the assets of such corporation so owning the same; but no credit shall be allowed to any such corporation by reason of any investments on which the taxes are not paid or payable as aforesaid."

   While sec. 160 thus provides that any corporation holding, as an investment of part of its capital or assets, stock of the character therein described, on which provision has been otherwise made for the payment of the State tax, may report it in detail under oath to the State Tax Commissioner and that the assessed value of it "shall be allowed as a credit in the settlement of the taxes" on the shares of the corporation owning it, it does not say how or by whom the "credit" is to be allowed, nor does it in terms authorize or direct the Tax Commissioner to deduct the value of such stock in assessing the shares of the corporation owning it. The commissioner, however, construes this section as in effect directing him to make such deduction in his annual assessment of the shares of corporations, and he asserts in his letter to the appellees, filed as an exhibit with the bill, that such has been the practice of his office. [***16]

   This brings us to the important question, what was the intention of the Legislature in enacting sec. 160? Did it intend by directing the sworn statement in detail of the stock, for which the corporation was to have credit in the settlement of its taxes, to be made to the Tax Commissioner, to give to that official authority to allow such credit in making the annual assessment of the corporate shares under the provisions of sec. 159? The appellant contends that such was the obvious intention of the Legislature because it did not require the report by the corporation of its ownership of the investments mentioned in sec. 160 to be made to any other official than the Tax Commissioner or require him to transmit the report or any information of its contents to any other person. He further insists that this legislative intent becomes more plainly apparent from an inspection of the Journal of the Senate, [*400] which passed that section, upon whose pages appear the record of certain proceedings strongly tending to support his contention.

   We would feel at liberty, upon the authority of James v. The State, 63 Md. 242, and Trinity Church v. The United States, 143 U.S. 457, 36 L. Ed. 226, [***17]and other similar decisions, to resort to an inspection of the proceedings of the Legislature, in an ordinary case, for aid in ascertaining its intention in passing an Act as doubtful in its terms as some of the provisions of sec. 160 are. But we are now dealing with a subject in reference to which it has been held by a long line of decisions that the legislative intent in order to be effective must be expressed "in the clearest and most unambiguous language." Under the laws of the United States, Baltimore City stock and other securities while held by national banks are protected from taxation for any purpose by the States. At the same time the shares of stock in national banks are liable to be taxed to their owners by the State for both State and local purposes.  Owensboro Nat. Bank v. Owensboro, 173 U.S. 664. If under these circumstances the Tax Commissioner were to deduct the Baltimore City stock owned by a national bank, which while so owned had made no contribution to the funds raised by taxation, from the value of the shares of the bank in assessing them for taxation the practical operation of his act would be an exemption from taxation of the shares of the[***18] bank to the extent of the amount of city stock held by it. "The taxing power is so essential to the existence of government that it is never presumed to be relinquished unless the intent to relinquish is expressed in plain terms or in the words of the Supreme Court 'in the clearest and most unambiguous language' and the ascertainment of the intent cannot be left to inference or implication. Every reasonable intendment must be made that it was not the design to surrender the power of taxation or to exempt any property from its due proportion of the burden of taxation." Balto., Ches. & Atl. Ry. Co. v. Wicomico County, 103 Md. 277, and many cases there cited. There being no express direction in sec. 160 to the Tax Commissioner [*401] to deduct the value of Baltimore City stock held by corporations in making the annual assessment of corporate shares required by sec. 159, we are not at liberty to imply such a direction [**257] when the corporation is a national bank as the effect of that deduction would be to cause the practical exemption from taxation to which we have referred.

   Turning now to the case of Baltimore City stock held by corporations other than[***19] national banks, and assuming for the sake of the argument that the Legislature intended by section 160 to require the Tax Commissioner in such cases to deduct the Baltimore City stock from the value of the corporate shares in assessing for taxation, we are confronted with the question of the power of the Legislature to authorize such a deduction.

   Under the system of taxing the property of corporations in force in this State the investments held by them, exclusive of real estate, are not directly taxed, but the contribution of those investments to the funds raised by taxation is made through the taxes levied on the capital stock of the corporation owning them. We decided in Clark Distilling Co. v. Cumberland, 95 Md. 468, 52 A. 661, that the annual assessment of the shares of the capital stock of corporations, required by law to be made by the Tax Commissioner, constitutes the only valuation on which taxes can be levied on them for the State, county or municipal purposes. Any investments therefore, exclusive of real estate, held by a corporation which are deducted from the aggregate value of the shares of its capital stock, by the Tax Commissioner in making his[***20] annual assessment, practically escape taxation unless some other provision has been made by law for the payment of taxes thereon. The law does make provision for the payment of State Taxes on Baltimore City stock, in secs. 104 to 108 of Art. 81, by requiring the City Register to pay them over directly to the State Comptroller, but it nowhere makes provision for the payment of county or municipal taxes on that stock.

   Applying these propositions to the Baltimore City stock held by the fire insurance company mentioned in the bill, which has [*402] no capital stock, as an investment of part of its assets, what do we find? If the Tax Commissioner be permitted in making his assessment of the assets of the insurance company, to deduct from their aggregate value the city stock held by it amounting in all to $96,500, that stock will practically escape taxation for county and municipal purposes and Montgomery County will lose the revenue to which it would otherwise have been entitled from that source. The State would also in that event suffer a practical reduction of its taxable basis to the extent of the $13,000 of bonds of Montgomery County held by the insurance company which[***21] on the same principle would have to be deducted by the Commissioner in assessing its assets. A further, and from a legal standpoint more serious, result that would follow the adoption by the Tax Commissioner of his proposed plan of assessing this company's assets would be an unjust and unlawful discrimination between the liability of Baltimore City stock and like securities to taxation when held by a private person and their practical exemption from that liability when held by a corporation. Such result as that involves a violation of the basic principle of equality and uniformity of taxation, asserted by Article 15 of the Declaration of Rights. which cannot be viewed with the slightest degree of toleration by this Court. The power of the Legislature, when State policy and the public interest require it, to exempt within reasonable limits certain classes of property from taxation has been recognized by numerous decisions of this Court but it has always been held that the power cannot be so exercised as to destroy the equality prescribed by the fundamental law.  Wells v. Hyattsville, 77 Md. 125, 26 A. 357; Prince George's Co. v. Laurel, 70 Md. 443;[***22] Simpson v. Hopkins, 82 Md. 478.

   It was competent for the Legislature to provide, as it did in sec. 159, that in making the annual assessment of corporate shares the assessed value of the real estate held by a corporation should be deducted from the aggregate value of its shares because the taxation of the real estate for both State and local purposes is otherwise providedfor. It would also have been competent for the Legislature to have directed the Tax Commissioner in [*403] making the assessment to deduct the value of those of the investments mentioned in sec. 160 "upon which the State and county or city taxes are levied and paid or are payable" by other persons than the corporations whose shares are being assessed by him. Provisions of that character are free from objection as they simply operate to prevent double taxation and do not in their application result in unjust discrimination between different owners of the same species of property in liability to taxation. So long, however, as the law authorizes but the one annual assessment of corporate shares and makes that assessment the only basis of taxation of those shares for both State and county purposes, [***23] the Tax Commissioner in making the assessment can not deduct from the value of the shares the amount of any investment liable to taxation for either purpose unless its taxation for that purpose has been otherwise provided for.

   We have no doubt of the right of the appellee to resort to equity for relief by injunction in the present case. It is apparent that if the Tax Commissioner be permitted to make the proposed assessment in accordance with his avowed purpose serious loss and injury would result to the taxpayers of Montgomery County through the consequent reduction of the basis of taxation for county purposes. From this unlawful assessment; if it should be made, the tax payer would have no appeal. The right of appeal to the Comptroller and Treasurer from the assessment is given to the [**258] corporation but of that right the taxpayer cannot avail himself. Under such circumstances the right of the taxpayer to relief in equity by injunction to restrain the proposed unlawful act of the public official has been repeatedly recognized by this Court.  Baltimore v. Gill, 31 Md. 375; Baltimore v. Radecke, 49 Md. 217; Mayor, &c., v. Keyser, 72 Md. 106;[***24] St. Mary's Ind. School v. Brown, 45 Md. 310; Wells v. Hyattsville, 77 Md. 125; Peter v. Prettyman, 62 Md. 566.

   In Mayor, &c., v. Keyser, supra, this Court said: "This is a bill to restrain the defendant officials from entering into a contract for lighting certain streets and public buildings in Baltimore [*404] City with electric lights; and to restrain the city authorities from paying any money under said contract. It is filed by taxpayers of the city in their own behalf, and in behalf of all other taxpayers who may see fit to come in as parties. The injunction is asked on the ground that the defendants have no lawful power to make the contract in question and that the contract, if made, will impose upon the complainants an increased burden of taxation. Now, if this be so, if the contract is one which the defendants have no authority to make, and the contract, if made will increase the burden of taxation, then the injunction was properly granted. Since the decision in Baltimore v. Gill, 31 Md. 375, this can no longer be considered an open question. Whilst freely recognizing[***25] the general principle, that public wrongs are not to be redressed at the suit of individuals who have no other interest in the matter than the rest of the public, the Court in that case held, that where the city authorities undertake to make a contract without the lawful power to make it, and the contract, if made will increase the burden of taxation, taxpayers constitute a special class, having a special interest in the subject-matter distinct from that of the general public. In all such cases an injunction is, upon obvious principles, the most convenient and appropriate remedy."

   The question at issue here is not merely one of the amount of the valuation or assessment, as it was in the cases of Baltimore v. Bonaparte, 93 Md. 156, and Consolidated Gas Co. v. Baltimore, 101 Md. 541, cited and relied on by the appellant. It is one not of the judgment but of the power of the Tax Commissioner and that question it is conceded in the cases of Salisbury Assn. v. Wicomico County, 86 Md. 615, 621-2, 39 A. 425, and United States v. Arendondo, 6 Peters 729, and others relied on by the appellant, is not settled[***26] or concluded by the decision made or the acts done by the tribunal or officer. Furthermore we held in Baltimore v. The Canton Co., 63 Md. 218, that the Tax Commissioner in making the abatement, in his assessment of the corporate shares, from their aggregate value of the assessed value of the real estate is a ministerial officer only. With at [*405] least equal propriety it should be said that he is only a ministerial officer in deducting, from the aggregate value of the shares, the Baltimore City stock and other corporate securities specified in sec. 160 of Art. 81.

   The present suit is not defective in its present stage because the two banks and the insurance company, whose shares the Tax Commissioner proposes to assess in an unlawful manner, were not made parties to the proceeding. Under our system we have repeatedly held that the tax on the corporate share is in fact a tax on the shareholder and not on the corporation although the State has made the corporation its agent for the collection of the tax. In Mayor, &c., v. Keyser, supra, the injunction was granted against the Mayor, Comptroller and Superintendent of Lamps from making a[***27] contract which they proposed to execute with the Brush Electric Light Co., yet that corporation was not made a party to the case, although it was in as true a sense interested in the result of the controversy as the two banks and the insurance company are interested in the conclusion reached in the present case. In Lucas v. McBlair, 12 G. & J. 1, the bill was filed against the Commissioners of Lotteries, who were public officers of annual appointment, for an injunction to restrain them from granting licenses for lotteries or sales of lottery tickets. A preliminary injunction was granted as prayed which was subsequently dissolved by CHANCELLOR BLAND upon the ground that the State should have been made a party to the suit as the result of it, if successful, would be to diminish the public revenues. Upon an appeal to this Court the order of the Chancellor was reversed the Court saying in its opinion: "It has been well remarked by an eminent author, in many cases, that the expression, that all persons interested in the subject must be parties to the suit, is not to be understood as extending to all persons who may be consequentially interested. * * * And this leads[***28] us in the next place to suggest, that Courts of equity do not require that all persons having an interest in the subject-matter should, under all circumstances, be before the Court as parties. On the contrary, there are cases in which certain [*406] parties before the Court are entitled to be deemed the full representatives of all other persons. * * * The objection that the State ought to have been a party to the proceeding is of no avail at the present stage of the suit. In other words, it is no ground upon which to claim a dissolution of the injunction. If a necessary party to the cause which it is now not necessary to decide, that defect may be supplied at any time before the final hearing." Lucas v. McBlair, has been cited and relied on in considering who are necessary parties to injunction suits in Gregg v. Baltimore, 14 Md. 479, and Hoffman Coal Co. v. Cumb. Coal & I. Co., 16 Md. 456.

   Inasmuch however as the [**259] present suit constitutes an effort on the part of one taxpayer to procure the regulation or control of the action of the Tax Commissioner in assessing the shares of three specified corporations, and not his[***29] entire assessment of corporate shares, we are of the opinion that those three corporations should be brought into the case as defendants when it goes back to the Circuit Court before any additional steps are taken therein. 

   For the reasons stated in this opinion the order appealed from will be affirmed and the case remanded for further proceedings in accordance with this opinion.

   Order affirmed with costs and case remanded for further proceedings.

   BRISCOE, J., dissented. 

THE SINGER SEWING MACHINE CO. vs. JOSEPH A. LEE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
105 Md. 663; 66 A. 628; 1907 Md. LEXIS 55

 April  24, 1907, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (THOMAS, J.)
 
Defendant's 3rd Prayer.--If the jury find from the evidence that prior to the institution of this suit, the plaintiff had a certain claim against the Wheeler and Wilson Sewing Machine Company for commissions to fall due from time to time in the future for and on account of the sale of the sewing machines mentioned in the plaintiff's bill of particulars filed in this case, which said claim would not be due and payable in full for a period of several years, and which said claim of the plaintiff would be payable only when and as the proceeds of the sales of said sewing machines, were from time to time collected by the Wheeler & Wilson Sewing Machine Company and that the defendant on the 10th day of November, 1905, became and on the 19th day of December, 1905, was the assignee of the said Wheeler & Wilson Sewing Machine Company and assumed to pay all its just debts and liabilities when and as the same might become due and payable, and that the defendant offered to anticipate the times of said payments which might fall due in the future to the plaintiff and settle in full its future liabilities to the plaintiff and that[***2] the said liability was also dependent upon the contingency that the defendant should collect the proceeds of the sales of the said machines mentioned in the plaintiff's bill of particulars which were sold on the installment plan, if the jury so find, by paying to the plaintiff in full settlement of all his claims, present and future, against the defendant as aforesaid, fifty per cent of the amount appearing to the credit of the plaintiff upon the books of the Wheeler & Wilson Sewing Machine Company which said amount was to accrue from time to time, in the future, and that the said plaintiff with the aid of the officers of the defendant examined the books and account of the defendant, and was satisfied that the amount standing to his credit as aforesaid and to fall due to him in the future as testified in this case, was the sum of four hundred and fifty-five dollars, and shall further find that the plaintiff accepted the sum of two hundred and twenty-seven dollars and fifty cents in full settlement of his said claims, present and future, and executed and delivered to the defendant the receipt offered in evidence in this case, and that the execution and delivery of the said receipt by[***3] the plaintiff to the defendant and the full settlement thus made as aforesaid, if the jury so find, was the consideration moving the defendant to pay to the plaintiff the said sum of two hundred and twenty-seven dollars and fifty cents as testified in this case, in anticipation of the defendant's future contingent liability to the plaintiff as testified to in this case, then the verdict of the jury must be for the defendant. (Rejected.)
 
Defendant's 4th Prayer.--If the jury find from the evidence that the plaintiff gave to defendant the receipt offered in evidence in this case, and that same was given by plaintiff as a settlement in full of all accounts between plaintiff and defendant, then due or to fall due in future, as set forth in said receipt and that defendant practiced no fraud or deceit on the plaintiff in procuring said receipt and that the same was given after full investigation by plaintiff of the papers, books and accounts of defendant in reference to the business covered thereby, and that the plaintiff after two separate investigations of his accounts with defendant expressed himself as satisfied with the correctness of the statement, as testified in this case, then[***4] the verdict of the jury must be for the defendant. (Rejected)
 
Court's 1st Instruction.--If the jury shall find from the evidence that the plaintiff was the agent of the W. & W. Co. and that as such agent the plaintiff sold the machines of the company mentioned in the bill of particulars in this case or any of them on commission and shall further find that on or about November 10th, 1905, the Singer Sewing Machine Company, the defendant, became the assignee of the business of the Wheeler & Wilson Sewing Machine Company and assumed the payment of the obligations of the Wheeler & Wilson Sewing Machine Company, and shall further find that the defendant, in order to close up the business of the Wheeler & Wilson Sewing Machine Company, on the 19th day of December, 1905, agreed to pay to the plaintiff fifty per cent. of all commissions and allowances that he was or would be entitled to receive under his contract or agreement with the Wheeler and Wilson Sewing Machine Company on the sales of Wheeler and Wilson Sewing Machines mentioned in said bill of particulars, and on collections made or to be made by him on account of said sales, in full payment of all liability of the defendant to[***5] the plaintiff on account of such sales and collections, and shall further find that the plaintiff agreed to accept fifty per cent of all such commissions and allowances in full settlement of his claim for commissions and allowances on account of such sales and collections, and shall further find that the defendant has not paid to the plaintiff fifty per cent of all such commissions and allowances, then the plaintiff is entitled to recover in this case so much of fifty per cent of such commissions and allowances as the jury shall find the defendant has not paid to the plaintiff, with interest thereon from the 19th day of December, 1905; in the discretion of the jury, notwithstanding the jury may further find that the defendant paid to the plaintiff the $227.50 mentioned in the receipt dated the 19th day of December, 1905, and offered in evidence, and that the defendant signed said receipt.

DISPOSITION: Judgment reversed, and new trial awarded with costs to the appellant.

CORE TERMS:  accord and satisfaction, satisfaction, dollars, settlement, prayer, one-half, twenty-seven, accrue, parcel, larger sum, sum paid, maturity, smaller, machine, accrued, beneficial, entitled to recover, full satisfaction, receipt in full, full settlement, time to time, sewing, fifty-five, indebted, settle, paying, wit, sufficient consideration, original obligation, different time

 COUNSEL: James M. Munroe, (with whom was Wm. J. O'Brien, Jr. on brief), for the appellant.
 
James R. Brashears, for the appellee.

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

OPINIONBY: BURKE

OPINION: [***6]

   [**629] [*666] BURKE, J., deliverd the opinion of the Court.

   Joseph A. Lee sued the Singer Sewing Machine Company in the Circuit Court for Anne Arundel County, and recovered a judgment for the sum of one hundred and ninety-one dollars and ten cents, from which this appeal was taken. The suit was in assumpsit upon the common counts, and attached to the declaration was a bill of particulars, which showed a balance due the plaintiff of two hundred and eleven dollars and four cents. The defendant filed the general issue plea and two special pleas, first payment, and second accord and satisfaction.

   [*667] The plea of accord and satisfaction, under which the only question presented on the record arises, is as follows: "That the defendant at the time of the institution of this suit was not indebted to the plaintiff, but that prior to the institution of this suit the plaintiff had a certain claim against the Wheeler & Wilson Sewing Machine Company for commissions to fall due from time to time in the future for and on account of the sales of certain sewing machines, which said claim would not be due and payable in full for a period of five years, and which said claim of the[***7] plaintiff was payable only when and as the proceeds of sales of said sewing machines were from time to time collected by the Wheeler & Wilson Sewing Machine Company and that the defendant became and was on the 19th day of December, 1905, the assignee of the said Wheeler & Wilson Sewing Machine Company and assumed to pay all its just debts and liabilities, when and as the same might become due and payable, and that the defendant offered to anticipate the times of said payments which might fall due in the future to the plaintiff and to settle in full its future liability to the plaintiff, which said liability was also dependent upon a contingency, to wit; the collection by the defendant of the proceeds of the sales of said machines which were sold on the installment plan, by paying to the plaintiff in full settlement of all his claims, present and future, against the defendant as aforesaid, a certain sum, to wit: two hundred and twenty-seven dollars and fifty cents ($227.50), which said offer the plaintiff accepted, and the defendant accordingly paid to the plaintiff the said sum of two hundred and twenty-seven dollars and fifty cents in full satisfaction and discharge of the plaintiff's [***8]aforesaid claims, present and future, and procured from the plaintiff the following acquittance and receipt in full in the following words to wit:

   Singer Sewing Machine Company Central Agency,

   19 W. Franklin Street, Baltimore, Md.

   December 19th, 1905.

    Received of the Singer Sewing Machine Company the sum of two hundred and twenty-seven dollars and fifty cents in full settlement of all [*668] claims I have against the Wheeler & Wilson Sewing Machine Company for commissions accrued or to accrue, growing out of business done by me for them or otherwise.
 
Witness H. D. Dietz.

   Jos. A. Lee.

   And that in consideration of said payment of said sum in advance of the due dates of plaintiff's aforesaid claim the plaintiff accepted in full satisfaction and in settlement of defendant's contingent liability therefor, as aforesaid, and discharge of all his aforesaid claims, present and future the said sum of two hundred and twenty-seven dollars and fifty cents."

   The plaintiff had been an agent for the sale of sewing machines of the Wheeler & Wilson Sewing Machine Company, and under the terms of his contract with that company, as testified to by him, he was entitled to a commission upon [***9]sales and upon collections made by him, and the account which he filed with his declaration, which account is somewhat obscure and difficult to understand, was intended to show exactly how the balance claimed was arrived at. The correctness of the account was disputed by the defendant, but as that was a matter properly to be determined by the jury, and does not in any manner affect the question here before the Court, we will not discuss it, further than to say that it is made up upon the basis of sales claimed to have been made by the plaintiff while he was in the employ of the Wheeler & Wilson Company.

   The defendant company about the 19th of December, 1905, took over the business of the Wheeler & Wilson Company, and proposed to settle with the agents of the latter company all their accounts against said company. It is as to the terms of this settlement that the real question in this case arises. The contention of the plaintiff was that he was entitled, under the agreement of settlement, to receive from the defendant fifty per cent of the commissions he would be entitled to on sales made by him for the Wheeler & Wilson Company up to the time of the transfer of the business of that[***10] company to the defendant, and as the total amount due him at the time was eight hundred and seventy-seven dollars and seven cents, the defendant was indebted to him under the terms of the settlement [*669] in the sum of four hundred and thirty-eight dollars and fifty-three and a half cents. On the 19th of December, 1905, the defendant paid to the plaintiff two hundred and twenty-seven dollars and fifty cents, which he accepted in full settlement and discharge of all his claims against the Wheeler & Wilson Company.

   The plaintiff's testimony as to the terms of the settlement and the circumstances under which the sum mentioned was paid and accepted is as follows: That when the defendant company took over the business of the Wheeler & Wilson Company they proposed to all their agents, of whom the plaintiff was one, to anticipate the commission accounts of their agents who had formerly represented the Wheeler & Wilson Company by paying to them fifty per cent of the commissions that they would be entitled to upon sales made up to the time of the transfer of the business of the Wheeler & Wilson Company to the defendant company instead of keeping the account running and paying to the[***11] agents fifty per cent of the amounts collected by them from time to time, [**630] and the plaintiff accepted the proposition. That on the 19th day of December, 1905, the plaintiff had a settlement with the defendant on the basis of four hundred and fifty-five dollars of commissions accrued or to accrue in the future on account of the sales made by the plaintiff for the account of the Wheeler & Wilson Sewing Machine Company, receiving the sum of two hundred and twenty-seven dollars and fifty cents, from the defendant company, and giving the receipt which is set out in the defendant's plea of accord and satisfaction. That he expected to receive a larger sum, and that upon returning to his home after the settlement, and after an examination of his accounts, he discovered that he had not been paid by the defendant fifty per cent of the true amount of the commissions accrued or to accrue to him on account of sales made by him, and that he went back to the company to complain of the settlement, "and to demand that he be paid the difference between what he had received and the true amount due him as shown by his accounts."

   [*670] The contention of the defendant is that the plaintiff[***12] agreed with the defendant company to settle in full all accounts for commissions accrued or to accrue for and on account of the sales of the Wheeler & Wilson Sewing Machines made by the plaintiff on the basis of fifty per cent of the amount thereof as shown by a statement thereof taken from the books of the Wheeler & Wilson Company. The defendant offered evidence tending to support this contention, and to show that the settlement made with the plaintiff on the 19th of December, 1905, was in accordance with this agreement. The evidence adduced by the defendant, if believed by the jury, was sufficient to support the plea of accord and satisfaction, and thus defeat a recovery by the plaintiff.

   The defense of accord and satisfaction consists of something given to or done for the defendant, and accepted by him upon a mutual agreement that it shall be a discharge of the cause of action. The agreement is the accord, and the thing done is the satisfaction. The mere payment of a smaller sum is no satisfaction of a larger debt due, but the payment of a smaller sum may be a satisfaction of a larger sum where there is a mutual consideration to support an agreement to that effect. The authorities[***13] are uniform in holding that anticipation of time of payment is a sufficient consideration to support a plea of accord and satisfaction. As early as the case of Pinnell, 5 Co. Reports 117, it was held, that where the whole sum is due by no intendment the acceptance of a parcel can be a satisfaction to the plaintiff; but that payment and acceptance of a parcel before the maturity of the debt in satisfaction of a whole, would be a good satisfaction in regard to the circumstance of time; "for peradventure parcel of it before the day, would be more beneficial to him than the whole at the day, and the value of the satisfaction is not material." In Sibree v. Tripp, 15 M. & W. 34, where the subject of accord and satisfaction was very fully considered, it was decided that a sum of money payable at a different time was a good satisfaction of a larger sum payable at a future day. The reason for the rule that part payment of a debt cannot be taken as a satisfaction for [*671] the whole is that the creditors agreement is without consideration. "The rule, however, supposes the part performance of the original obligation--the payment of part at the time and in the manner[***14] originally stipulated for the payment of the whole; from which payment of a part rather than the whole no benefit can accrue to the creditor. But when a new duty is undertaken by the debtor which is, or may be burdensome to him, or beneficial to the creditor, a new consideration arises out of such undertaking and sustains the agreement; as when the debtor undertakes to pay and pays part at an earlier day, or at another place, or in another article than required by the original obligation." Rose v. Hall, 26 Conn. 392.
 
   In Bowker et al. v. Child's and others, 85 Mass. 434, 3 Allen 434, the facts were that the defendants were indebted to the plaintiffs upon four promissory notes, one of which was nearly due, and the others having sometime to run before maturity. A committee of the defendants' creditors, of which one of the plaintiffs was a member, recommended that they should pay sixty per cent upon all their notes, due or not due, calculating this amount upon the face of the notes, without addition or substraction of interest, twenty-five per cent cash, and thirty-five per cent in notes of a certain Lee Claflin or William C. Claflin, payable[***15] in six months from June 1st, 1857; and upon a final winding up of the defendants' affairs which should be on or before June 1st, 1858, they should pay to the committee from their surplus property, to be distributed among their creditors, such portion as the committee should advise. This recommendation was in writing signed by the committee, and the defendants on the 27th of May, 1858, executed an agreement under seal attached to the writing by which they bound themselves to comply with its provisions. On the 10th of June, 1857, one of the plaintiffs took the notes to Lee Claflin, and gave them up to him, and received the sixty per cent of their amount, the thirty-five per cent not being in a note, but by a separate agreement in cash with a discount of five per cent. The plaintiffs brought suit upon the original notes.

   [*672] The Court, speaking through HOAR, J., said "In regard to the notes, the presiding Judge ruled that the making of the agreement, the taking of the sixty per cent and the giving up of the notes, under the circumstances as testified to at the trial, were a payment of the notes, and a verdict was ordered for the defendants. The expression used by the learned[***16] Judge was not precisely accurate, as the settlement proved was not strictly a payment, but an accord and satisfaction of the note, but no point has been [**631] made of this at the argument, nor do we suppose the contention of the Judge, or the parties was called to any other consideration than whether it amounted to a valid discharge and extinguishment of the notes and a bar to the plaintiff's action. The plaintiffs rely upon two grounds of exceptions; first, that an agreement to take a smaller sum of money in payment of a larger sum is without consideration, and not binding in law; and secondly, that it was a question of fact which ought to have been submitted to the jury, whether the plaintiffs agreed to discharge the notes without a further payment on them. There is no doubt of the soundness of the first proposition, as a statement of abstract law. But, as was said by Mr. JUSTICE DEWEY in Brooks v. White, 43 Mass. 283, 2 Metc. 283: "The same ancient authority which declares the payment and acceptance of a less sum on the day the debt becomes due, in satisfaction of a greater, is no defense beyond the amount paid, also declares that the payment and acceptance [***17]of a less sum before the day of payment has arrived in satisfaction of a whole would be a good accord and satisfaction; for it is said, peradventure parcel of the sum before the day it fell due would be more beneficial to him than the whole at the day; and the value of the satisfaction is not material. Pinnell's case, 5 Co. 117." Here there were four notes given upon payment of the sixty per cent as one entire satisfaction. Three of them were not due, one having more than two years to run. The payment was at a different time, and before the debt was due. This was a sufficient consideration to support an accord and satisfaction at law."

   The defendant having interposed the plea of accord and satisfaction, [*673]and having offered evidence tending to support the plea, was entitled to have had that defense presented to the jury by an instruction embodying a hypothetical statement of the facts upon which it was founded, and in no event was it proper for the Court to have excluded from the consideration of the jury the theory of his defense, or to have ignored it in the instructions granted.  Eureka Fertilizer Company v. Baltimore Copper, 78 Md. 179, 27 A. 1035; [***18] Corbett v. Wolford, 84 Md. 426.

   At the conclusion of the testimony the plaintiff offered one prayer, and the defendant submitted five. The record states that the Court rejected all the prayers, but it was agreed at the argument that this was a mistake in so far as the defendants fifth prayer is concerned, which was in fact granted. That prayer merely told the jury that there was no evidence that the receipt offered in evidence was obtained by fraud, and no exception was taken to it by the plaintiff. The Court, in lieu of the rejected prayers, granted two instructions of its own. To the instructions granted by the Court, and to the rejecting of his prayers the defendant excepted.

   The third prayer of the defendant was intended to present the facts which he had offered in support of the plea of accord and satisfaction, and, except in one respect, is free from objection. It failed to submit to the jury the fact that the sum of four hundred and fifty-five dollars was the amount appearing to the credit of the plaintiff upon the books of the Wheeler & Wilson Company. Instead of requiring them to find that fact, it merely required them to find that the plaintiff was[***19] satisfied that four hundred and fifty-five dollars was the amount appearing upon those books to his credit. For this error, which may be readily corrected at the retrial of the case, the prayer was properly rejected.

   We find no error in the rejection of the first, second, and fourth prayers of the defendant. The first and second ignored the theory of the plaintiff's case and the testimony offered by him in its support, and the fourth asserted that the defendant's right to a verdict, would be defeated if they found the plaintiff gave the receipt offered in evidence, and that the same was [*674] given without fraud practiced upon the defendant and that he gave it after full opportunity to examine the books, &c., of the defendant. If the plaintiff's evidence as to the terms of the settlement be true, he would have been entitled to recover, notwithstanding the facts stated in this prayer.

   The two instructions granted by the Court were fatally defective, because they each entirely ignored the evidence offered by the defendant in support of his plea of accord and satisfaction, which evidence, if believed by the jury, was sufficient, under the authorities cited, to have barred the[***20] plaintiff's recovery in this action. For error committed in these instructions, the judgment must be reversed.

   Judgment reversed, and new trial awarded with costs to the appellant. 

ANNAPOLIS, WASHINGTON AND BALTIMORE RAILROAD CO. vs. STATEUSE OF CLARA E. HICKOX. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
104 Md. 659; 65 A. 434; 1906 Md. LEXIS 217

 December  21, 1906, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL and THOMAS, JJ.)

DISPOSITION: Judgment reversed, without awarding a new trial.

CORE TERMS:  crossing, train, track, station, whistle, railroad, deceased, feet, looked, engineer, signal, blow, listen, yards, obstructed, horse, contributory negligence, listened, duty, evidence of negligence, thirty-five, customary, cross-ties, morning, struck, infant, hear, county road, custom, miles

COUNSEL: Jesse Slingluff (with whom were Frank Gosnell and Robert Moss on the brief), for the appellant.
 
A. T. Brady, for the appellee.

JUDGES: The cause was argued before MCSHERRY, C. J., BOYD, PEARCE, SCHMUCKER, JONES and BURKE, JJ.

OPINIONBY: BOYD

OPINION: [**434] [*659] BOYD, J., delivered the opinion of the Court.

   This is an appeal from a judgment against the appellant for damages sustained by one of the equitable plaintiffs by reason of the death of her father, Clayton E. Hickox, alleged to have been caused by the negligence of the agents of the railroad company. The suit was brought for the use of Mrs. Gould and Clara E. Hickox, children of the deceased, but the jury [*660] was instructed that there could be no recovery by Mrs. Gould and the only damages assessed were in favor of the other daughter, who was under age at the time of the death of her father. Mr. Hickox was killed on a private crossing leading to his home, several hundred yards west of Camp Parole, a station on the railroad. Other questions were presented by the prayers but in view[***2] of the conclusion we have reached, it will only be necessary to consider that of the contributory negligence of the deceased.
 
   Mr. Hickox's residence was seven or eight hundred feet from the railroad and he was familiar with the running of the trains on it. His farm was about two miles from Annapolis and he had driven his son-in-law there, and had gone after him in the evening, nearly every day for three months before the accident. With the exception of a short time, he had lived on that farm a number of years. He was injured on December 30th, 1904, and died in a short time. He was driving from Annapolis when the accident occurred and was struck by a regular passenger train which left there at 8.43 A. M. His son-in-law testified that he "was killed at about 8:45 in the morning," (referring doubtless to the time of the accident), and the evidence of the train men shows that it was running on schedule time. The county road runs close to and parallel with the railroad near Camp Parole, and is about thirty-five or forty feet from it where the private road, leading to the Hickox place, leaves it. The only witness to the accident, excepting the engineer, was a colored girl named Lulu Queen[***3] who was going from Mr. Hickox's place in the direction of the railroad. She testified that "Just as he left the county road he stopped and looked out -- looked up and down" --on cross examination she said "just as he turned in, he stopped, looked and listened." When asked whether he did so when he got to the track she said, "No, sir, he didn't do it when he got to the track," and repeated several times that it was "at the instant" he turned in the road he stopped and looked. The engineer said "the first I saw was a team coming across with a horse, and I looked round and saw the [*661] horse galloping across the track. I reached in and grabbed the air but it struck the buggy between the two wheels." He also testified that he was about fifteen or twenty yards away when he first saw the horse and that he did everything he could to avoid the accident. From the point where Mr. Hickox turned into the private road he could ordinarily have seen down the railroad some distance, in the direction of Annapolis, but the plaintiffs' evidence was to the effect that there was a number of cross ties piled between the county road and the railroad, which obstructed his view. After passing the cross-ties,[***4] and before getting on the railroad, he could have seen at least as [**435] far as Camp Parole station, which was variously stated by the witnesses to be two or three hundred yards, but the superintendent of the company testified that it was ten hundred and eighty feet from the station to the private crossing, by actual measurement. The train was not scheduled to stop at Camp Parole and did not that morning--only stopping there to let passengers off who had by mistake taken it, and it was running thirty-five or more miles an hour. There was testimony on the part of the plaintiffs tending to show that it was customary for all trains to blow a whistle at the crossing, and that it was not done the morning of the accident. That was denied by the witnesses for the defendant-- several engineers and conductors and the superintendent testifying that no such signal was ever given for the crossing, but stating that the whistle was always blown for Camp Parole station, whether the train was to stop there or not. It is altogether probable, therefore, that the witnesses who were in the habit of hearing the whistle for Camp Parole supposed it was for the crossing. Indeed that might be said to[***5] have been conclusively shown, when the evidence is critically examined. Mr. Hardesty, a witness for the plaintiff, who lived about two hundred yards east of the station, said it was the custom of the railroad company in passing his place to blow a whistle. There is no whistling post between that point and the Hickox crossing, and the defendant's witnesses show that it was customary to blow the whistle for Camp Parole [*662] somewhere about that point. The conductor testified that the engineer running the engine which struck Mr. Hickox usually blew three or four hundred yards east of the station, and the engineer who was called by both sides, testified that he blew the whistle that morning about three hundred yards from the station. It would be difficult to reach any other conclusion from the evidence than that the custom was only to blow the whistle for the station, and the statements of the witnesses for the plaintiff that it was customary to blow "for the station and this crossing" does not necessarily mean that it was the custom to blow twice. As the railroad company was under no obligation to give that signal for private crossing, Pumphrey's case, 72 Md. 82,[***6] the omission to blow the whistle for the station would not have been evidence of negligence. The accustomed places to sound the whistle for the station were at least seventeen or eighteen hundred feet from the crossing, and the case of Phila. & Balto. R. R. Co. v. Holden, 93 Md. 417, would be conclusive of that question--the only difference between the cases being that in the latter the whistling post was distant nearly two thousand feet from the point of the accident, while in this case the whistle was usually blown seventeen or eighteen hundred feet from the crossing. It was there held that "the failure of a railroad company to give the required signal at a public road crossing about 2000 feet distant from a private crossing is not evidence of negligence, in an action by a party to recover damages for an injury inflicted at such private crossing where the company is under no obligation to give a signal."

   But without determining that it would be evidence of negligence on the part of the defendant, if we assume that some of the witnesses of the plaintiff did mean to say that another such signal was usually given between the station and the private crossing, the[***7] failure to give it on this occasion, if that be also conceded, could not relieve the plaintiff from the contributory negligence of the deceased. The engineer and fireman both testified that the latter was ringing the bell as he passed the station, and that is not in terms denied by the [*663] plaintiff's witnesses. Although some of them testified that they did not hear any signal, they were not asked as to a bell, and invariably spoke of the whistle, excepting one who said he heard no bell, but he was then speaking of the crossing. But regardless of that, there was no evidence whatever to show that Mr. Hickox was misled by the failure of the engineer to blow the whistle--indeed there was not a particle of evidence to show where the whistle was usually sounded, if it ever was, between the station and the crossing. It is difficult to understand how any one who was not deaf (and there is nothing to show that the deceased was) could have failed to hear the train running thirty-five or forty miles an hour, at such a place, if he had listened. His familiarity with the road was such as to require us to impute to him knowledge of the fact that a train was about due. His daughter, [***8] who was then sick in bed at his house, was familiar with that train and any one living as near the railroad as he did, and especially one accustomed to cross the tracks as frequently as he did, must have known it was due. Indeed the plaintiffs mainly relied on the failure of the company's agents to sound the whistle which they claimed was customary, as evidence of negligence, and unless the deceased was aware of the time the train was due, the plaintiffs could not contend he was misled by the absence of the usual signal, and there could be no other possible ground upon which such evidence was relevant, for as we have seen, the company was under no obligation to give signals at that crossing. If he could see down the track from the point where he "stopped, looked and listened," and did not see or hear the train, it must have been because there was no train close enough to be seen or heard, and if by reason of the obstruction of the cross-ties he could not see down the track, he was required to exercise care when he got nearer the track, where he could see and certainly could have heard the train coming, if he was listening. For it is no excuse for one not to stop, look and listen when[***9] he is near the track because he did so further away, at a point where he could not see, if he looked, and according to the plaintiffs' [**436] [*664] contention could not hear, if he listened. If his view was obstructed, and the sound interfered with, it made it all the more important for him to stop again. There was no difficulty in seeing down the road to Camp Parole station, after he reached a point about fifteen feet from the track. The witnesses differ somewhat as to that distance, between the track and the pile of cross-ties, but the lowest put it at ten or twelve feet, and one as high as twenty-five feet. Lulu Queen, the witness to the accident, said the cross-ties were five or six yards from the track. Even if they were only ten or twelve feet away, if up to that point they obstructed the view from the private road, it was the duty of the deceased to again stop, look and listen for the train, which he had reason to expect.

   In Hatcher v. McDermot, 103 Md. 78, we held that the plaintiff was guilty of contributory negligence for crossing an electric railway on a public crossing without having again stopped, looked and listened for a car, after he[***10] left a point about one hundred and thirty feet distant from the crossing, where he did stop, look and listen, but where his view was obstructed to some extent. In Meidling v. United Ry. Co., 97 Md. 73, we quoted with approval from Keenan's case, 202 Pa. 107, where it was held to be the duty of the plaintiff "to continue to look until the track is reached," and that Court said, in speaking of the contributory negligence of the plaintiff in walking his horse across the track without again looking for a car, after having looked at a point thirty-five feet from the track; "But his misfortune is that he was careful but for an instant, when he should have continued to be watchful until the track--the real point of danger--was reached." This Court has over and over again said that if the view be obstructed it is the duty of the traveller to stop, look and listen before attempting to cross. Price's case, 87 Md. 183; Watson's case, 91 Md. 344; Holden's case, 93 Md. 417; Manfuso's case, 102 Md. 157, and many others cited in them. It had held in a number of cases that it was the duty of a[***11] person about to cross the track of a railroad to "look and listen" for approaching trains, but this Court did not in the earlier cases adopt the [*665] view that it was his duty to stop, look and listen. That doctrine was, however, finally adopted in a case where "the track in both directions is not fully in view in the immediate approach to the point of intersection of the road;" and it was held that in such case "due care would require that the party wishing to cross the railroad track should stop, look and listen before attempting to cross." Hogeland's case, 66 Md. 149. It was said in that case that such rule was necessary for the safety of persons on the trains, as well as for those travelling on the public roads and that it ought not to be relaxed.

   In this case the deceased neglected such precautions as the law required of him, and it should have been withdrawn from the jury on that ground, even if it be conceded that there was negligence on the part of the defendant, which it would be difficult to do. He undoubtedly had the opportunity to ascertain the approach of the train before going upon the track, and, if the evidence on the part of the plaintiff[***12] is correct that his view was obstructed when he turned into the private road, there was all the more necessity for caution before putting himself in the way of the train, for as was said of the plaintiff in Holden's case, supra, the deceased "was perfectly familiar with the crossing and knew or should have known the regular hours for running the trains." The engineer said that the horse was galloping across the track. That is not contradicted and probably explains the unfortunate occurrence. It so often happens that persons in vehicles assume they can cross a track of a railroad before an approaching train reaches the crossing, and take the risk. Mr. Hickox probably miscalculated the speed of the train, or relied too much on that of his horse, but, however that may be, it seems clear to us that it was the duty of the Court, under the authorities we have cited, and many others that could be to the same effect, to have granted the prayer offered by the defendant denying the right of the plaintiff to recover, on the ground of the contributory negligence of the deceased. Having reached that conclusion it would be useless to discuss other questions.

   We do not find from the record that[***13] the infant sued by her [*666]next friend, and although it is too late after verdict to make the objection that the name of the prochein ami should have been inserted, (Albert v. State, 66 Md. 325), a judgment cannot be entered for costs against the infant, and of course cannot be against the State. She cannot recover costs from the appellant, but as a next friend should have been named to secure costs, we will only reverse the judgment without entering judgment for costs in this Court.

   Judgment reversed, without awarding a new trial. 

WINIFRED B. FULTON ET AL. vs. PARLETT & PARLETT. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
104 Md. 62; 64 A. 58; 1906 Md. LEXIS 156

 June  15, 1906, Decided

   PRIOR HISTORY:  [***1] Cross appeals from the Circuit Court for  Anne   Arundel  County (REVELL and THOMAS, JJ.)

DISPOSITION: Decree affirmed with costs above and below. The costs in each case to be paid by the appellant in each case.

CORE TERMS:  notice, decree, mechanics', contractor, lien claim, builder, material men, furnishing, claimant, erected, materials furnished, married woman, designate, founded, lienors, prescribed, continuous, designated, erection, acre, declare, itemized account, failed to state, amount claimed, lot of ground, designation, appurtenant, duck-house, curtilage, adjoining

COUNSEL: James R. Brashears, for W. B. Fulton et al.
 
Frank H. Stockett, for Parlett & Parlett.

JUDGES: The cause was argued before MCSHERRY, C. J., BRISCOE' BOYD, PEARCE, SCHMUCKER and BURKE, JJ.

OPINIONBY: MCSHERRY

OPINION: [**58] [*63] MCSHERRY, C. J., delivered the opinion of the Court.

   This is a mechanics' lien case. Cross appeals were taken from a decree of the Circuit Court for Anne Arundel County by the owner of the property affected by the lien and by the material men who filed the bill in equity upon which the decree was passed. The decree sustained the lien claim and appointed trustees to sell a portion of the real estate described in the proceedings. From that decree the owner appealed and has assigned in this Court four reasons for its reversal. Those reasons are: First, that the notice given by the material men to the owner is defective because it failed to state that the claimants intended to claim a mechanics' lien and omitted to aver that the contractors had been employed [***2]by the owner; secondly, that the lien claim is defective because the itemized account does not show for which of the three several buildings that were erected the different parcels of materials furnished were designed; thirdly, that more land was decreed to be sold than was necessary for the ordinary and useful needs and purposes of the buildings; and fourthly, that the decree erroneously directed the claims of several lienors to be paid out of the proceeds of sale though they were not plaintiffs but had duly filed claims in the Clerk's office and were made [*64] defendants, in the equity proceedings. The appeal taken by the plaintiffs assails the decree because all the land owned by the defendant, Mrs. Fulton, was not adjudged to be sold. Before discussing these various contentions a brief outline of the facts must be given.

   On September the ninth, 1903, Henry S. Mancha and others conveyed to Winifred B. Fulton a small lot of ground containing about sixty-five one-hundredths of an acre, situated one and three-quarter miles from Annapolis. On September the fifteenth of the same year John T. Wilkinson and others conveyed to the same Winifred B. Fulton a parcel of land containing[***3] about six acres adjoining the first named lot. On the first day of October, 1903, Edward M. Fulton, the husband of Winifred B. Fulton, entered into a written contract with Wells & Ward by which the latter agreed to erect and complete for him a two-story frame cottage on the six-acre lot of his wife and to furnish all the labor and material necessary therefor in consideration [**59] of the sum of twenty-nine hundred and eighty-dollars. At the same time, though the date does not definitely appear, but undoubtedly it was just before or as the work was begun on the house, Mr. Fulton entered into a verbal agreement with Wells & Ward to erect for him on the same property a stable to cost one hundred and seventy-five dollars and a duck-house for which no price was stipulated, but which cost "about two hundred and fifty or three hundred dollars." The contractors procured much of the materials as they were needed for all three structures from Parlett & Parlett, and the latter began furnishing those materials on October the third and finished on December the first, the deliveries being continuous and almost daily. All of the materials so furnished by them went into the three buildings, but[***4] were not ordered specifically for the separate buildings, and the itemized account appended to the lien claim does not indicate what parts of the materials were used in the different structures. They were all furnished under one continuous contract with the builders. On December the thirty-first, 1903, Parlett & Parlett duly served upon Mrs. Fulton, [*65] the owner of the land, a written notice informing her that they "claim and shall forthwith file their claim in the office of the Clerk of the Circuit Court for Anne Arundel County * * * their lien in the nature of mechanics' lien under the provisions of Art. 63, Code of Public General Laws" in the sum of thirteen hundred and seventy-eight dollars and forty cents for materials furnished Wells & Ward contractors and used by them "in and about the building and erection of your dwelling and outbuildings" on the lots or parcels of land conveyed by the deeds that have already been referred to. On the same day the claim for a mechanics' lien was duly filed in the office of the Clerk of the Circuit Court for Anne Arundel County. On March 28th, 1904, the bill of complaint now before us for the enforcement of the lien was filed. On this[***5] state of facts the questions which are involved and which have been mentioned ahove, have arisen.

   First. Was the notice given by Parlett & Parlett to Mrs. Fulton defective because it failed to state that the lienors intended to claim a mechanics' lien, and omitted to aver distinctly that Wells & Ward were contractors who had been employed by Mrs. Fulton to erect the buildings? The objections to the decree embodied in the above inquiry are founded on secs. 11 and 19 of Art. 63 of the Code of 1904. By sec. 11 it is provided that if the contract for furnishing work or materials shall have been made with a builder or with any other person except the owner of the land on which the building is to be erected or his agent the person so doing work or furnishing materials, "shall not be entitled to a lien unless within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien." The notice actually given, as hereinbefore pointed out, advised Mrs. Fulton that Parlett & Parlett "claim and shall forthwith file their claim" of a mechanics' lien in the office of[***6] the Clerk of the Circuit Court; but because it omitted to say that the lienors intended to claim such a lien it is alleged to be defective. This contention is founded on a very [*66] narrow and literal interpretation of the words of sec. 11 without the least reference to the purpose which the enactment was designed to subserve. The notice prescribed by sec. 11 of an intention to claim a lien is required to be given to the owner by the material man to enable the owner to retain under sec. 13 from the amount due to the contractor or builder the sum which the contractor or builder may owe to the material man, and any phraseology which clearly and distinctly apprises the owner of the intention of the material man to claim the lien will gratify the terms of the section and effectuate its design though the word intention be not used at all. A notice that the material men "claim and shall forthwith file" a mechanics' lien claim under Art. 63 of the Code is quite as definite in respect to the intention of the material man to claim the lien as would have been a notice couched in the precise language of the section. It is difficult to perceive how one can declare that he[***7] claims and shall forthwith file a mechanics' lien unless he means by that declaration that it is his intention to claim such a lien. The intention to claim a lien could not be more definitely expressed than by the statement that the lien is claimed and will be forthwith filed. The owner was just as fully informed by the notice given that the claimants intended to file a lien claim, as she would have been had the notice specifically stated that it was the intention of the lienors to claim such a lien. The cases cited by the appellants' counsel do not support their contention because the facts in those cases are radically different from the facts in this case. In Hess, Reid et al v. Poultney & Brown, 10 Md. 257, the notice consisted of a letter addressed by the counsel of the material man to one of the owners wherein the latter was informed that a lien had been laid but neither the amount claimed nor the kind of materials furnished was mentioned and in conclusion the writer stated: "I have learned since, that you had an interest in this property, and I shall not, of course, issue a sci. fa. until I see you upon the subject." The notice was held insufficient[***8] because among other reasons it omitted to state the lienor's intention to claim the benefit of the lien. [*67] The Court said: "Although the lien laws are to be construed independently of the rule of the common law which requires all acts in derogation of it to be interpreted strictly, nevertheless the words of the law must be substantially complied with, and in a case like this where [**60] the precise words are furnished by the statute and are wholly omitted, the omission is fatal." In the case at bar there has been a substantial compliance with the requirements of the section and such a compliance is all that is requisite. In Thomas v. Barber & Barber, 10 Md. 380, the notice was held to be defective because it gave no description of the materials furnished, was silent as to the amount claimed and made no reference to a claim filed. In Trustees, &c., v. Heise & Bruns, 44 Md. 453, a notice was ruled to be insufficient because it failed to state what the claim was for--whether work or materials.
 
   But there is a still more conclusive answer to the contention of the appellants, and that answer is to be found in sec. 10 of Art. [***9]  63 of the Code. That section declares: "Where a building shall be erected on a lot of ground belonging to a married woman by her husband or some person by him employed, the said lien shall not attach unless notice thereof be given to such married woman in writing within sixty days after doing such work or furnishing such materials or both, as the case may be." The facts disclosed by the record bring the case at bar directly within the above quoted section. The land belonged to Mrs. Fulton. The house and outbuildings were contracted for by her husband. He was to pay for them himself and then to present them to his wife. He did not act as her agent or for her in contracting for the erection of the buildings. In these circumstances the notice was required to be given to her and that was done. Now this section does not contain the word "intention" as sec. 11 does; and hence even if a strict adherence to the words of the statute were necessary in the notice which the tenth section requires, there would be no occasion to include in the notice given thereunder a declaration of an intention to claim the lien. A notice that the lien is claimed and would be forthwith filed would fully[***10] and exactly comply with the provisions of the tenth section.

   [*68] Sections 10 and 11 were adopted at different times. The whole mechanics' lien law system as first enacted was a local measure applicable only to Baltimore City. Act of 1838, ch. 205. By various subsequent statutes it together with its numerous supplements was extended to many of the counties and finally was incorporated in Article 61 of the Code of Public General Laws of 1860. Now, section 11 of Art. 63 of the Code of 1904, being also section 11 of Article 61 of the Code of 1860 was taken from the proviso contained in sec. 9 of ch. 205 of the Acts of 1838 as amended by the proviso in sec. 1 of ch. 176 of the Acts of 1845, and as originally enacted and afterwards amended did not in terms apply to a situation which was later on covered by a part of sec. 7, ch. 287 of the Acts of 1845, now forming sec. 10 of Art. 63 of the Code of 1904--that situation being the instance of a husband building on his own account and not as the agent of his wife, upon real estate owned by her. Section 10 of Art. 63 of the Code follows the wording of a part of sec. 7 of ch. 287 of the Acts of 1845, and in[***11] neither is the notice which is directed to be given to the wife required to be a notice of an intention to claim a lien, whilst under sec. 11 and the antecedent Acts from which it was transcribed the notice prescribed in the wholly different contingencies therein embraced must indicate an intention to claim the lien.

   But little need be said with respect to the objection founded on sec. 19 of Art. 63 of the Code. That objection is that the notice does not state in clear and express terms that Wells & Ward were the contractors employed by Mrs. Fulton. The case of Reindollar v. Flickinger, 59 Md. 469, is cited to sustain the objection. That case was decided against the claimant on the ground that there was no distinct and explicit statement in the notice as to who was the owner or reputed owner of the building. It would not have been possible for the material men to state that Wells & Ward were the contractors employed by Mrs. Fulton, because they were not-- they had been employed by her husband. The notice fully complied with the terms and requirements of sec. 19.

   [*69] Secondly. Was the lien claim defective because the itemized [***12]account does not distribute among the buildings the materials furnished, and does not designate which materials were used in each structure? The contract between the builders and the material men was one entire contract and the materials were furnished as needed without reference to the particular building in which they were to be used. In such circumstances it was impossible for the material men to know what portion of the materials was intended for the dwelling, what portion for the stable or what portion for the duck-house. Where, as here, the contract between the builders and the material men was entire and indivisible and provided for the continuous furnishing of materials for all the structures, it would be exceedingly unreasonable to require the person who furnishes materials for all the buildings to ascertain how much of the material is placed in each house, even if such a requirement could possibly be complied with. This Court has so decided in Maryland Brick Co. v. Spilman, 76 Md. 337. But apart from that decision there is no provision in the mechanics' lien law which declares the lien claim defective or the lien inoperative because of a mere failure[***13] to apportion the claim when more structures than one are built. Section 31 of Art. 63 enacts: "In every case in which one claim for materials shall be filed by the person preferring the same against two or more buildings owned by the same person, the person filing such joint claim shall at the same time designate the amount he claims to be due him on each of said buildings, otherwise such claim shall be postponed to other lien [**61] creditors; and the lien of such claimant shall not extend beyond the amount so designated as against other creditors having liens by judgment, mortgage or otherwise." A failure to apportion the claim when an apportionment ought to be made, does not defeat the claim but postpones it "to other lien creditors."

   Thirdly. It is insisted that the decree is wrong because more land was directed to be sold than was necessary for the ordinary and useful purposes of the buildings. Not only does a mechanics' lien attach to the buildings but it extends also to [*70] the ground covered by such buildings and to so much other ground immediately adjacent thereto and belonging in like manner to the owner of such buildings as may be necessary for[***14] the ordinary and useful purposes of such building. Code, Art. 63, sec. 4. The manner in which the quantity and the boundaries of such contiguous ground shall be ascertained is prescribed by secs. 5, 6, 7 and 8. By sec. 5 the owner of the land may, prior to the commencement of the work on the building, define in writing the boundaries of the curtilage appurtenant to the building and file the same with the Clerk of the Circuit Court for the county in which the land lies, "and such designation of boundaries shall be obligatory upon all persons concerned." In default of such designation by the owner, then under sec. 6, "it shall be lawful for the owner * * * or for any person * * * entitled to a lien by virtue of this article, to apply by petition in writing to the Judge of the Circuit Court for the county * * * to designate the boundaries;" and sec. 7 directs what shall be done when such a petition has been filed. In the pending case the owner did not designate under sec. 5 any boundaries prior to work being commenced on the buildings; nor did the owner or the claimant file a petition under sec. 6 to have the boundaries defined in the manner prescribed[***15] in sec. 7. By sec. 8 it is declared that "if any proceedings shall be instituted to enforce any lien under this article before the boundaries of the lot, land or curtilage which ought to be appurtenant thereto shall be designated, it shall be lawful for the Court upon application to stay such proceedings until such designation shall be made * * *." No application was made to the Court under this section. There was three opportunities open to the owner for marking the boundaries of the curtilage which ought to be appurtenant to the buildings, and not one of them was availed of. If the decree should be reversed because the boundaries had not been designated, then the failure of the owner to exercise a right in this particular which she ought to have resorted to before the decree was signed, will be treated as an error in the decree itself. The owner's own default [*71] would then vacate the decree. It was within the power of the owner before the decree was passed to prevent its passage until after the boundaries had been defined if she had proceeded under sec. 8; and her neglect to rely on the provisions of that section cannot be assigned as a valid reason for reversing[***16] the decree. There was evidence adduced tending to prove that the whole of the tract of land owned by Mrs. Fulton was necessary for the ordinary and useful purposes of the buildings and improvements, and there was also evidence to the contrary. The decree directed only the six acre parcel to be sold. We cannot say there was any error in this; and the owner must be held to have waived all objection to the decree founded on the omission to demark the boundaries, because she neglected to invoke in due season the provisions of the sections to which we have alluded.

   Fourthly. The other lien claims of the parties who were made co-defendants were not disputed and no reason has been suggested why they should not have been directed to be paid.

   As respects the cross-appeal of the plaintiffs based upon the contention that both lots of ground should have been ordered to be sold nothing need be said other than that the two lots though contiguous are wholly distinct and the buildings are not located on the smaller parcel, nor is that parcel necessary for the ordinary and useful purposes of the buildings.

   There being no error in the decree it will be affirmed with costs.

   Decree affirmed [***17]  with costs above and below. The costs in each case to be paid by the appellant in each case. 

THE MARYLAND AGRICULTURAL COLLEGE vs. GORDON T. ATKINSON,COMPTROLLER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
102 Md. 557; 62 A. 1035; 1906 Md. LEXIS 19

 January  11, 1906, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (JONES, C. J. and THOMAS, J.)

DISPOSITION: Order reversed, and cause remanded with costs to the appellant.

CORE TERMS:  appropriated, appropriation, fiscal year, treasury, fiscal year ending, board of trustees, first payment, sums of money, declare, duty, authorized to issue, purposes specified, writ of mandamus, time of payment, yearly payment, sum of money, general law, ex officio, per annum, young men, fiscal, practically, stockholders, expiration, manifested, lawfully, one-half, mandamus, dollars, advice

COUNSEL: The cause was submitted to the Court on briefs by:
 
Charles H. Stanley, for the appellant.
 
William S. Bryan Jr., Attorney-General, and Thos. A. Whelan, Jr., for the appellee.

JUDGES: BURKE, J.

OPINIONBY: BURKE

OPINION: [**1036] [*558] BURKE, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County dismissing a petition for a writ of mandamus to be directed against the appellee requiring him to draw his warrant upon the Treasury of the State for the payment of the sums of money specified in the petition.

   The Maryland Agricultural College was incorporated by the Act of 1856, ch. 97. The purpose of its creation was the instruction of young men in those arts and sciences indispensable to successful agricultural pursuits.

    The people finding that industry greatly neglected, and believing it to be the duty and within the power of the Legislature to encourage and promote the farming interests of the State, by the Act above-mentioned constituted the plaintiff an Agricultural[***2] College, whose duty should be, in addition to the usual course of scholastic learning, to instruct young men attending the college, theoretically and practically, in those arts and sciences, which, with good manners and morals, should enable them to become intelligent, successful, and scientific farmers, and elevate the State to the position its advantages in soil and climate, and the moral and mental capacities of its citizens entitle it to occupy.

   By the Act of incorporation, six thousand dollars per annum were appropriated to the payment of salaries of professors, and for such other purposes as should be found reasonably necessary to promote the welfare and success of the college. 

   The legislation of the State indicates that the people have [*559] manifested a deep and abiding interest in the welfare of the college, and have aided its work by generous appropriations, and by other measures calculated to increase its efficiency, and to enable it to accomplish more fully the useful and beneficent purposes of its foundation. Under the Act of 1864, ch. 90, the State Board of Education became ex officio members of the board of trustees of the college. By the Act of 1866, ch. [***3] 53, the State purchased a one-half undivided interest in the college property. By the Act of 1868, ch. 326, the Governor, the Comptroller, the Treasurer, the President of the Senate, the Speaker of the House of Delegates, and the Attorney-General of the State became ex officio members of the board of trustees, and represented the State's interest in said board, which consists of eighteen members. This board is constituted as follows: The six State officials mentioned above; five members elected by the private stockholders of the college, one person from each Congressional District of the State, appointed by the Governor by and with the advice and consent of the Senate, and the United States Secretary of Agriculture.

   The State holds a mortgage of fifteen thousand dollars on the stockholder's one-half interest. The college is controlled by the State, and is practically a State Institution.

   In pursuance of what appears to be a settled policy on the part of the State to contribute to the support of this institution, the General Assembly passed the Acts of 1902, ch. 625 and 1904, ch. 557.

   The first of these Acts set apart various sums for the use of the college, but in this case[***4] we are concerned only with secs. 5 and 6 of that Act. These sections read as follows:

   "Sec. 5. In order to provide for the maintenance, repairs and improvements of the buildings of the experimental station, to provide for the printing of bulletins, showing the results of the work, and also to provide for the investigation of the tobacco crop, meat production, and irrigation, an appropriation of five thousand dollars ($5,000) is hereby provided for and made.

   Sec. 6. The Comptroller be and he is hereby authorized to [*560] issue his warrant upon the Treasury of the State for the several sums hereby appropriated, the same to be paid out of any funds not otherwise appropriated; that said sums of money shall be payable to the Maryland Agricultural College, and shall be expended under the direction of the board of trustees of said institution, and the first payment shall be made during the fiscal year ending September 1st, 1902." [**1037]

   By sec. 4 of the Act of 1904, ch. 557, it was provided as follows: That the sum of six thousand dollars per annum be and the same is hereby appropriated for the formation and support of Farmers Institutes in this State; and[***5] that the Comptroller be and he is hereby authorized to issue his warrant annually upon the Treasury of the State for said sum of money out of any funds not otherwise appropriated; that the said sum shall be payable to the order of the Maryland Agricultural College on, or after the 1st of October of each fiscal year, and that the first yearly payment shall be made during the fiscal year ending September 30th, 1904."

   It is admitted that the work contemplated to be done by the College by sec. 5 of the Act of 1902, ch. 625, has been done by its officers, but the appropriation therein made has not been paid. It is also admitted that two thousand dollars of the appropriation of six thousand dollars made by the Act of 1904, ch. 557 remains unpaid. It is further admitted that said sum of five thousand dollars and said sum of two thousand dollars, appropriated by the Acts aforesaid, are in the treasury of the State, and not appropriated for any other purpose.

   On July 17th, 1905, demand was made by the Maryland Agricultural College upon the Hon. Gordon T. Atkinson, Comptroller of the Treasury, for the payment of said several sums of money. Upon the advice of the Attorney-General, the Comptroller[***6] declined to pay the money, whereupon the petition for mandamus was filed.

   The respondent, instead of answering the petition, filed a general demurrer, which the Court sustained, and dismissed the petition. By agreement of parties, all errors in pleading [*561] have been waived. The Comptroller rested his refusal to pay these sums upon the ground that neither of these sums nor any part thereof could be lawfully drawn from the State treasury after the expiration of the fiscal year for which they were appropriated, and as it appeared that these sums were not paid during the fiscal year for which the appropriation was made, there was no warrant of law by which they could now be paid.

   This contention raises the question of the proper construction of the Acts of Assembly hereinbefore mentioned under which the appropriations were made. If the position of the respondent is not well founded, and, if the allegations of the petition could be supported by evidence, it must be admitted that the writ of mandamus should issue as prayed. Upon a question of statutory construction, the principles which should guide the Court have been repeatedly declared by decisions in this State and[***7] elsewhere. The underlying principle of all construction is that the intent of the Legislature should be sought in the words employed to express it, and when found it should be made to govern, not only in all proceedings which are had under the law, but in all judicial controversies which bring those proceedings under review. Beyond the words employed, if the meaning be plain and intelligible, neither officer, nor Court is to go in search of legislative intent; but the Legislature must be understood to intend what is plainly expressed, and nothing then remains but to give the intent effect. If the words of the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in order to ascertain what was the legislative mind at the time the law was enacted; what the circumstances were under which the action was taken; what evil, if any, was meant to be redressed; what was the leading object of the law, and what the subordinate and relatively unimportant objects. Cooley on Taxation, 2 ed. 264; Gill v. Cacy, 49 Md. 243; Smith v. State, 66 Md. 215; Commercial Building Association v. Mackenzie, 84 Md. 195.[***8]

   There is no general law which declares that money not [*562] drawn in the fiscal year for which it has been appropriated cannot be drawn thereafter, but it is argued that it was the intention of the Legislature that these appropriations should fail, unless drawn during the time mentioned in the Acts.

   It was undoubtedly within the power of the General Assembly to have provided that the money should not be paid after the expiration of the fiscal year. That it did not so declare in express, or unquestionable terms must be conceded, but it is contended that this intention is manifest, first, because the appropriations were annual, and secondly, because the first payments were directed to be made during the fiscal years named.

   It is to be noted that there is no duty imposed by either Act upon the Maryland Agricultural College to make application for the payment of the appropriations within a specified time, but the authority is given to the Comptroller to draw his warrant upon the Treasurer for the payment of the several sums appropriated to the order of the College, and he is directed to draw his warrant for the first payment during the fiscal years named.

   This direction, given[***9] in express terms in the Act, was not followed, and it is difficult to say how the failure to pay the money in the manner and at the times provided should operate to defeat the plain and evident intent of the Legislature respecting these appropriations. It is clear that the Legislature intended that the College should receive each year from the State treasury, out of any funds not otherwise appropriated, the several sums mentioned for the purposes specified in the Act, and it indicated the time in which it became the duty of the financial officers of the State to see to the payment.

   To construe these directions as to the time of payment to be a limitation, or a denial of the power to pay after the close of the fiscal year would be to frustrate the leading and evident purpose of the Acts, under consideration, as manifested by their language, and as gathered from the [**1038] foundation, the history, and the relation and settled policy of the State respecting this College.

   [*563] We are, therefore, of opinion that the Court committed an error in dismissing the petition.

   The order of the lower Court will be reversed, and the case remanded for further proceedings in accordance[***10] with this opinion.

   Order reversed, and cause remanded with costs to the appellant. 

FRANK S. REVELL ET AL. vs. W. MEADE HOLLADAY ET AL., BOARDOF SUPERVISORS OF ELECTIONS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
102 Md. 82; 61 A. 1081; 1905 Md. LEXIS 132

 October  19, 1905, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (JONES, C. J., and THOMAS, J.)

DISPOSITION: Order affirmed with costs to the appellees above and below.

CORE TERMS:  convention, county convention, candidate, election, ballot, clerks, supervisors, nominated, appointed, delegate, nominees, nomination, precincts, postponement, conformity, postponed, postpone, nominate, faction, printed, voters, public office, chairman, demurrer, notice, voted, reasonable grounds, political parties, writ of mandamus, order to comply

COUNSEL: Alonzo L. Miles and Robert Moss, for the appellants.
 
By the Act of 1904 primary elections in Anne Arundel County were placed upon the same high plane as a general election, to be conducted with all the regularity and legal formalities as such general election. Indeed, it seems to have been the policy of most of the States of the Union, as shown by recent legislation, to throw the same safeguards around the holding of a primary election to nominate candidates for office as apply to general elections.
 
The pleadings and the testimony in this case show conclusively that everything required by the Act of 1904, pre requisite to the holding of a primary election was done in this case, that is to say, on the 6th day of June, 1905, the Democratic State Central Committee for Anne Arundel County, issued a call to the Democratic voters of said county to hold a primary meeting on Saturday, July 22nd, 1905, for the purpose, among other things, of nominating candidates for the offices for which the appellants were subsequently nominated; [***2] this call was published for at least fifteen clear days in two newspapers published in Anne Arundel County; each of the two contesting factions of the Democratic party, within five days from the call, filed with the Supervisors of Elections the names of two persons for judges and two persons for clerk in each election district or precinct where the primary was to be held. From the list submitted by each faction the Supervisors of Elections of Anne Arundel County on June 13th, 1905, appointed one judge and one clerk and adjourned to June 26th, when the list of judges and clerks for the entire county was completed; official ballots, containing the names of the delegates in each election district of the county, were printed in the manner prescribed by law; the judges and clerks of the primary so appointed all qualified, by taking and subscribing the prescribed oath, the ballot-boxes and poll-books were actually delivered to the judges; the primary was actually held by the said judges and clerks; the Democratic voters assembled and voted in pursuance of the call, and the result ascertained; returns were made by the judges of each election precinct to the Supervisors of Elections, as required[***3] by law; the delegates elected assembled in convention on July 26th, and nominated the appellants for the respective offices above stated. The certificate of nomination was duly made out and signed by the president and secretaries of the convention and delivered to the defendants.
 
Notwithstanding all this, the defendants refused to print the names of the appellants upon the official ballot, and assign in their answer the reason that on July 21st, 1905, a majority of the State Central Committee for Anne Arundel County postponed the primary.
 
Had the committee the right to so postpone, or call off the primary of July 22nd, is the material inquiry in this case? If they had a right to postpone it once, after all the machinery provided by the law had been put in motion, they would have the right to postpone it again and again, as long as they might have any selfish purpose to accomplish. Such a power placed in the hands of a local State Central Committee would be dangerous and at once make the committee, instead of the servants of the Democratic voters of a county, a tyrant to oppress them. Given such a power a State Central Committee of the county could fix a day for a primary[***4] and wait until the ballots were in the boxes, and when they found that the faction of the party represented by them was defeated, call off a primary just before the votes were counted. In this connection it should be remembered that the chairman of the local committee for Anne Arundel County was himself at the head of one of the factions contesting the primary (and the Act of 1904 in terms recognizes factions). The committee was without authority to change the date first fixed for holding the primary. Neal v. Young, 75 S. W. Rep. (Ky.) 1082; Young v. Beckham, 72 S. W. Rep. 1092; Brown v. Republican County Committee, 68 S. W. Rep. 622.
 
If the Court shall take the view that this is a political question which should be determined by the highest governing authority of the party, whose candidates the appellants claim to be, and will follow that determination, the question arises, who constitutes the highest governing authority of the Democratic party? It is alleged in the bill and not denied in the answer that the Democratic State Convention of the State of Maryland constitutes the governing power of the Democratic party of the State, and that said Democratic Convention on the 28th [***5]day of September, 1905, composed of delegates from every county of the State, after due consideration, decided that the primary election held in Anne Arundel County on July 22nd, 1905, was held and conducted in compliance with the party custom and the provisions of ch. 603 of the Acts of 1904, of the General Assembly of Maryland.
 
If the Court treats this as a political question, will it accept the action of the Democratic State Convention, constituting as it does the governing power of the Democratic party of the State, as the ultimatum, or will it abide by the decision of the local committee for Anne Arundel County, who are the creatures of the Democratic State Convention appointed by said convention and deriving all their powers therefrom? This is a political question. In re Fairchild, 151 N. Y. 359; People v. District Court, 18 Colo. 26.
 
Wm. Pinkney Whyte and Ridgely P. Melvin, for the appellees.
 
On June 6th, 1905, the Democratic State Central Committee of Anne Arundel County, issued a call for the Democratic primary election in said county, and designated Saturday, July 22nd, as the date therefor, and Wednesday, July 26th, as the date for the county convention. The[***6] call was duly published and within 5 days from the issuance thereof each of the two contesting factions in the county filed a list of names with the Board of Supervisors of Election, at that time composed of Messrs. Revell, Davidson and Werntz, from which lists said board appointed the judges and clerks to conduct said primary election. The appointment of eleven of the judges and two of the clerks, however, was not made by said board until June 20th, 1905, fourteen days after the date of the issuance of the aforesaid call by the State Central Committee. The other judges and clerks were appointed on June 13th. In the third district of the county none of the judges appointed was selected from the list of recommendations submitted by one of the two factions of the Democratic party.
 
The qualification oaths of some of the judges were returned to the office of the supervisors along with certain of the ballot-boxes and poll-books after July 22nd, 1905, the date of the first primary.
 
On July 17th, one of the "Old Board" of Supervisors resigned, and another member was removed from office, and two members of the present board, Messrs. Holladay and Watkins, were appointed to fill the[***7] vacancies. On July 20th, a change in the clerkship of the board also took place. After Messrs. Holladay and Watkins had been commissioned they found that the combination of the safe in the supervisor's office had been changed, so that it became necessary to send to Baltimore for an expert to get it open before said "New Board" could get possession of the muniments of office. This was accomplished on the afternoon of July 20th. On Friday, July 21st, the Democratic State Central Committee of Anne Arundel County, issued and published a proclamation postponing the date for holding the Democratic Primary Election from July 22nd, to some subsequent date, and setting forth certain reasons for said postponement. On the same day, and acting in accordance with said proclamation, the Supervisors of Election (the appellees) sent out a formal notice to all of the judges and clerks appointed to conduct the said primary election, informing them of the aforesaid postponement of date and instructing them accordingly; which notices were served by the Sheriff of Anne Arundel County upon every one of the said judges and clerks before the hours named for holding said primary in the first instance.
 
Notwithstanding[***8] the above-mentioned transactions, an alleged Democratic primary election was held in a majority of the voting precincts of the county on July 22nd. As a result of said primary, no returns at all were received by the Supervisors from two precincts and no ballot-boxes or poll-books were received from three precincts. From another precinct a ballot-box, not of the official kind, was received. In one of the precincts a ballot-box and poll-book issued by the president of the Board of Supervisors to one of the judges for said precinct were returned to the office of the Supervisors by said judge after the aforesaid postponement of date and before the hour set for holding said primary of July 22nd. From the remaining precincts ballot-boxes and poll-books, and alleged returns, were delivered to the Board of Supervisors within two days from the holding of said primary. In pursuance of this primary election of July 22nd, an alleged Democratic convention was held on July 26th. This convention, however, was held without having in its possession at any time any of the returns from said primary of July 22nd. This was owing to the fact that the chairman of the Democratic State Central Committee for[***9] Anne Arundel County declined to receive said alleged returns, when offered to him by the president of the Board of Supervisors, on the morning of July 26th, on the ground that they were not recognized by him as returns from a regular Democratic primary election legally held. The position taken by said chairman in all these matters was that also of five of the six members of said committee. Upon the refusal of the said chairman to accept said alleged returns they were kept in the possession of the Board of Supervisors. The convention of July 26th then made use of alleged duplicate returns in its organization for business
 
The petitioners' demurrer to the answer in this case admits the fact, alleged in said answer, that both the primary election of August 12th and the convention of August 15th, were held in compliance with chapter 603, of the Acts of 1904, in every particular. On August 22nd, 1905, a certificate of nomination was presented to the Board of Supervisors of Elections (the appellees) as coming from the aforesaid convention of August 12th, with the identical demand made on behalf of the nominees mentioned in said certificate as that made on behalf of the certificate coming[***10] from the convention of July 26th, aforesaid; namely, that they be placed upon the official ballot as the duly and legally nominated candidates of the Democratic party for the several offices named in said certificates.
 
On August 24th, 1905, the Board of Supervisors of Elections (the appellees) passed a resolution announcing that they had decided to place the nominees of the convention of August 15th upon the official ballot as being the legally nominated candidates of the Democratic party; and that the nominees of the convention of July 26th would not be placed upon said official ballot.
 
On September 28th, 1905, the State convention of the Democratic party of Maryland had before it two contesting delegations from Anne Arundel County, each claiming the right to be seated in said convention as the regular and legal delegates of the Democratic party from said county. One set of delegates had been nominated by the aforesaid convention of July 26th, and the other set of delegates had been nominated by the aforesaid convention of August 12th. Said State convention awarded seats therein to the delegates from the county convention of July 26th as having been named in accordance with[***11] party custom, and in compliance with the provisions of the primary election law for Anne Arundel County (chapter 603 of the Acts of the General Assembly of Maryland of 1904.)
 
The appellees contend: 1. That neither the primary election of July 22nd, nor the convention of July 26th, was held in pursuance of the provisions of the Primary Election Law for Anne Arundel County (chapter 603 of the Acts of 1904, of the General Assembly of Maryland) in several vital particulars; that therefore, the claims of the appellants that they are the legally nominated candidates of the Democratic party is unfounded, and consequently, they have no right to a place upon the official ballot as such candidates.
 
In no respect was the convention of July 26th held under the Act of 1904. The alleged delegates to said convention at whose hands the appellants received their nomination, did not have even a prima facie right to seats therein, inasmuch as said convention was never at any time in possession of the returns from the primary election of July 22nd, which returns had not been delivered to the Supervisors of Elections within two days from that date, as prescribed by law, and retained exclusively[***12] by them upon the refusal of the chairman of the State Central Committee to recognize said returns as coming from a regular or legal Democratic primary election. Said convention was held, therefore, contrary to party authority (the State Central Committee at that time being the highest governing body in the party as far as Anne Arundel County was concerned) and held, also, contrary to the provisions of the statute law.
 
2. That the selection of a date for holding a primary election in Anne Arundel County is purely a party matter, to be determined by the governing body of the party in said county, namely, by the State Central Committee, and is not controlled or affected by any provisions of law. Therefore, it is competent for the highest power in the party, so far as concerns Anne Arundel county, to select, change or postpone the date for holding the party primaries in said county. On July 21st, 1905, the day when the primary election hereinbefore referred to was postponed to some subsequent date by the Democratic State Central Committee for Anne Arundel county, said committee was the highest power of the party then and there in existence, and was recognized by the Supervisors of[***13] Elections as being duly authorized to speak for the party. Therefore, when in consequence of such postponement of date the operations of the principal election law for Anne Arundel County became affected and a primary election and a convention were held, each in strict compliance with the provisions of said law, it was not within the power or province of a State convention, held nearly two months later, to decide that the local State Central Committee had exceeded its party authority and had no right to postpone the date aforesaid, if by so deciding it sought to nullify and render ineffectual the operations of said primary election law which took place subsequent to the mere postponement of date.
 
It is not denied that as to all questions of purely party government and party regularity, the highest tribunal in the party is supreme; but it is emphatically denied, on behalf of the appellees, that as to any matters regulated by statute law a decision of such tribunal can have any binding effect whatever upon Boards of Supervisors of Elections, or upon the Courts. Before the passage of the primary election law aforesaid, the Supervisors of Elections had no criterion to go by, in deciding[***14] between two rival tickets, except the decision of party tribunals as to the question of regularity. Upon the passage of said law, however, it became the criterion, and the supervisors are now bound to put upon the official ballot that ticket only which, in their judgment, was nominated under the provisions of said law, and not otherwise.
 
3. If no question of fraud be involved (and there is none in this case), a collateral attack will not be permitted upon a certificate of nomination or upon the action of a Board of Election Supervisors in deciding that a certain ticket should go on the official ballot, unless the candidates themselves are called upon to appear and defend their rights.
 
The candidates on the ticket known as that certified to by the convention held under the authority of the State Central Committee for Anne Arundel County, are not before the Court. They have not been served with process or voluntarily appeared and become parties. If the action of the appellees in their behalf should be set aside in this proceeding they might be seriously injured and their rights abridged without having the opportunity of being heard. That such a result would violate elementary[***15] principles of jurisprudence need not be said. Re-nomination papers of Frank S. Thomas, 6 Pa. Dist. Rep. 652; McDonald v. Huntley, 114 Cal. 485.
 
4. That the appellees are not required, as a matter of clear, unequivocal, ministerial duty to place upon the official ballot to be voted at the election to be held on November 7th, 1905, any alleged candidates of the Democratic party except those nominated under the provisions of the primary election law for Anne Arundel County (ch. 603, Acts of 1904), and not otherwise; and that they are not bound to place a ticket upon the official ballot merely because its certificate of nomination happens to be made out in proper form; and that when there are two sets of nominees presented for a place upon said official ballot, setting up rival claims to recognition as the legally nominated candidates of the Democratic party, Supervisors of Elections are called upon to exercise judgment and discretion in determining which one of the two sets of nominees presented is entitled, under the law, to a place upon said ballot, as claimed; and that having once exercised their judgment and discretion adverse to one set or the other the Courts have no power[***16] to review or reverse such decision. Wailes v. Smith, 76 Md. 476; State ex rel v. Latrobe, 81 Md. 233; McCrea v. Roberts, 89 Md. 250; Duvall v. Swann, 94 Md. 618.

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

OPINIONBY: PEARCE

OPINION: [**1081] [*91] PEARCE, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for [*92] Anne Arundel County, dismissing the petition of the appellants for a writ of mandamus against the Board of Supervisors of Elections for that county, commanding them to cause to be printed upon the official ballots to be cast at the election to be held in that county on November 7th, 1905, the names of the several petitioners, as candidates for the offices for which the petition alleges they had been respectively nominated by a convention held in the city of Annapolis on July 26th, 1905, as candidates of the Democratic party, in compliance with the party custom and with the provisions of ch. 603 of the Acts of Assembly of 1904, entitled "An Act to legalize primary elections in Anne Arundel County."

   This Act provides that political parties which, at the general election [***17]in November, 1903, polled ten per cent of the entire vote of the county, should thereafter nominate their candidates for public office, and elect their delegates to conventions, under the provisions of that Act, and not otherwise.

   It requires fifteen clear days notice of the time and place of holding any primary, and publication of the call therefor for at least two weeks in two newspapers published in that county.

   It forbids the holding of the primaries of two different parties on the same day, and gives the preference of the day selected to that party whose call is first inserted in the two papers.
 
   It requires the Supervisors of Election within seven days from the issuance of any such call to appoint three judges and two clerks of election to conduct such primary, and prescribes the manner of their appointment, the character of the ballots to be used, the necessary machinery and rules for conducting the primary, and for returning [**1082] and certifying the result thereof to the Supervisors of Election, and for the delivery of said returns by them to the chairman of the State Central Committee of the county, for the party holding such primary, on the day when the county convention[***18] is to be held; and it makes said returns prima facie evidence of the right of any delegate to a seat in the convention.

   It requires the judges and clerks of election appointed [*93] thereunder to take an oath in the usual form prescribed for judges and clerks of election under the general law of this State, and provides penalties for the violation by any person of the provisions of the Act.

   The above is a brief summary of all the provisions of the Act.

   The petition in this case alleges that the Democratic State Central Committee of the county, on June 6th, 1905, issued a call for primaries to be held in the several election districts on July 22nd to choose delegates to a county convention to be held on July 26th, at the court house in Annapolis, to select delegates to the state convention, and to nominate candidates for public offices to be filled at the election on November 7th, 1905; that all the requirements of law relating to said primaries and county convention were complied with, and that the petitioners were duly nominated by said county convention for the respective offices as stated in said petition, and that the returns of the said primaries were duly certified[***19] to the Board of Supervisors of the county, and by them duly offered to be delivered to the chairman of the State Central Committee of the Democratic party in that county, who refused to receive the same,

   The petition then alleges that notwithstanding the premises, and notwithstanding the fact that the Democratic State Convention constituting the governing power of the Democratic party in the State, and which met on September 28th, 1905, decided that the said primaries and the said county convention had been held in compliance with party custom and with the requirements of ch. 603 of 1904, the Board of Election Supervisors of the county have declined, and refuse to cause the petitioners names to be printed as candidates for said offices for which they were nominated, upon the official ballots which, under sec. 53 of Art. 33 of the Code of Public General Laws of Maryland, it is their duty to provide for use by the voters at the election on November 7th, 1905.

   The Board of Election Supervisors answered said petition, denying that the convention of July 26th was held in conformity [*94] with ch. 603 of 1904, and denying that any of the nominations then made, or attempted to be made, [***20]were duly and legally made. The answer alleges that on July 21st, 1905, the Democratic State Central Committee of the county rescinded the call of June 6th, 1905, for primaries to be held on July 22nd and for a county convention to be held on July 26th; and issued a new call for such primaries to be held on August 19th, 1905, and for a county convention to be held on August 22nd, 1905, and assigned the following reasons for their action:

    1st. That the Election Supervisors failed to appoint all of the judges and clerks within seven days from the date of the call, and appointed others contrary to the provisions of law.

   2nd. That since the date of the first call, one of said supervisors had been removed by the Governor, and another had resigned, and these vacancies had been filled by the Governor.

   3rd. That after such removal one Democratic member, and the Republican member of said board, met without authority of law and made additional appointments of judges and clerks of election for such primaries.

   4th. That the newly appointed members of the board had not been able to get possession of the records of the office, and it was impossible to ascertain who were the legally and who were[***21] the illegally appointed judges and clerks, and,

   5th. That the State Central Committee for the county deemed it best to postpone the primaries under these circumstances "in order that they might be legally held, and that the Democratic voters might have the privilege of expressing their honest will." After issuing the call on July 21st postponing the primaries to August 19th, it was discovered on July 24th that it became necessary in order to comply with a resolution of the Democratic State Central Committee of the State requiring the primaries throughout the State to be held not later than August 12th, to change the date from August 19th to August 12th, and the State Central Committee for the county accordingly on July 24th issued a new and corrected [*95] call for primaries to be held on August 12th and a county convention to be held on August 15th, 1905.

   The answer further alleges that the Supervisors recognizing the State Central Committee of the county as duly authorized to speak for the party in matters pertaining to party government, not regulated by law, notified all the judges and clerks previously appointed, of this action of the committee, by notices served by the[***22] Sheriff of the county before the hour set for holding the primaries originally called for July 22nd.

   The answer further alleges that in certain precincts, the judges and clerks, in obedience to the postponed call did not attend the primaries originally called for July 22nd, and that in other precincts no ballot-boxes or poll-books were furnished by the Supervisors as required by law, and that from some precincts they had received no returns of said primaries, and that for these and other reasons the county convention held July 26th had no power or authority to nominate candidates for public office, and that when the Supervisors offered to the chairman of the State Central Committee for the county the returns which they had received, he declined to accept them on the ground that the primaries had been held involution of the law.

   The answer admits that a paper purporting to be [**1083] a certificate of nomination of the petitioners by a Democratic convention held July 26th was filed with the Supervisors on August 15th, 1905, but alleges that on August 22nd, 1905, a certificate of nomination of candidates for the same offices was filed with them purporting to have been made by a[***23] Democratic convention held August 15th, 1905, in pursuance of said postponed call for primaries to be held, and actually held on August 12th, 1905, and for a county convention to be held and actually held on August 15th, 1905.

   The answer admits that the Supervisors have declined to cause the petitioners names to be printed on the official ballot, because they allege they can only legally print thereon one set of nominees by a Democratic convention, who must be those nominated and certified by a Democratic convention [*96] held under ch. 603 of the Acts of 1904, and that they have already determined that the candidates certified by the convention held August 15th are those legally nominated under the provisions of said Act, and that they so informed the petitioners through a resolution to that effect passed August 24th, 1905, a copy of which was filed as an exhibit by the petioners with their petition.

   The answer further alleges that the primaries of August 12th and the convention of August 15th were held in strict conformity with the requirements of ch. 603 of 1904, and that in determining that the nominees of that convention were entitled to be placed on the official ballot[***24] as Democratic nominees, they acted in the exercise of the judgment and discretion reposed in them, and are not liable to the writ of mandamus.

   The petitioners replied to so much of the answer as denies the legality of their nomination, that they were made as set forth in paragraphs 2 to 7 of their petition.

   As to paragraph 4 of said answer which relates to the nonattendance of judges and clerks in certain precincts on July 22nd, and the failure of the Supervisors to furnish ballot-boxes and poll-books in other precincts, the petitioners joined issue on such allegations as traverse any facts alleged in the petition, and demurred to all the other allegations of the answer.

   The respondents joined issue on the first paragraph of the replication, and on the demurrer of the petitioners to the residue of the answer, and the case was heard before the Court by agreement of counsel.

   In the view which we take of this case there is but one question which need be considered, and that is whether the State Central Committe for the county had the power to postpone or change the call for holding the primaries, and the county convention, and if so whether the power was properly exercised under [***25]existing circumstances, or whether the power was exhausted when the call was issued for holding the primaries on July 22nd and the convention on July 26th. If they had that power, and have exercised it in good faith and for good and valid reasons, then the primaries of July 22nd and the [*97] convention of July 26th were not legally held, and the petitioners are not entitled to have their names placed upon the official ballot; and, e converso, the nominees of the convention of August 15th are entitled to have their names placed upon the official ballot, provided the primaries and the county convention held under the postponed call were conducted in technical conformity with the requirements of the Act of 1904, ch. 603, which is admitted by the demurrer to the answer.

   We think it is clear that the power of the State Central Committee for the county is not exhausted by the mere issuance of a call selecting a day for holding primaries and a county convention.

   Before the passage of ch. 603 of 1904, this committee was unquestionably the sole governing power of the party as to the selection of the time for holding primaries and the county convention, subject perhaps to any controlling [***26]authority which the State Central Committee might possess to prescribe a date for the State convention, and to fix a period within which the county primaries should be held, as was done in this instance, though we are not to be understood as expressing any opinion upon the power of the State Central Committee for the State in that regard, that question being a purely political question with which we have nothing to do. That Act in nowise limits or restricts the power and authority of the county committee in that regard. Before its passage, the power to fix these dates necessarily implied the power to change them by a new selection, made in the honest exercise of judgment and discretion for the welfare of the party, and we can discover nothing in the letter or spirit of this Act which can be held to take away or limit the discretion theretofore vested in the committee, further than may become necessary in making any such change in order to comply with the requirements as to notice of the changed date, and any other requirements applicable to any call whether original or changed.

   There may be many adequate reasons for changing a call of this sort after it has been issued. The outbreak[***27] of an epidemic of disease in the county; the absence from their homes [*98] for any unusual cause of considerable numbers of party voters; the pressure of needful labor, as in harvest or in seeding time which cannot be neglected without serious injury to agricultural communities, these, and other reasons which might be mentioned would amply justify such a postponement in order to insure fuller and freer expression to the will of voters in the party.

   If it were alleged and shown in the present case that the change of date was intended to work some fraud upon one element or faction in the party, or to aid in the perpetration of some political trick upon some candidate or set of candidates, a different question, would arise. But there is no such charge here, and [**1084] it will be time enough to consider such a question when it does arise. The facts alleged in the resolutions of the State Central Committee for the county at the time of the postponement, referred to in respondent's answer and admitted by the demurrer, in our opinion constitute reasonable grounds for the postponement and are fairly within the discretion which we think should be, and is, committed by a fair and[***28] reasonable construction of the Act of 1904 to the committee as the governing body of a political party in the county. It is not charged, and does not appear that this postponement intentionally or otherwise gave any advantage to one faction over another. Each stood alike under its terms, and it was as important to one as to the other, that the nominations when made should be lawfully and regularly made, so that they could not be excluded from the official ballot, either by the voluntary action of the supervisors, or at the instance of any objector. The sole material question raised upon the pleadings and the evidence is the question of the power to postpone for proper cause, and being convinced that this power existed before the passage of the Act of 1904, and is not taken away thereby, and may still be exercised honestly and in good faith, it follows that the petitioners are not entitled to have their names printed as Democratic nominees upon the official ballot and that the order dismissing their petition must be affirmed.

   Order affirmed with costs to the appellees above and below. 

EDWIN WARFIELD, GOVERNOR OF MARYLAND, vs. MURRAY VANDIVER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
101 Md. 78; 60 A. 538; 1905 Md. LEXIS 66

 March  23, 1905, Decided  
 April  5, 1905, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL and THOMAS, JJ.)

DISPOSITION: Order affirmed with costs above and below.

CORE TERMS:  ballot, voter, printed, constitutional amendment, proposed amendment, election, veto, proposing, prescribed, elect, amend, three-fifths, signature, submitting, franchise, General Laws, general law, candidate, declare, elected, prescribe, authorize, For Constitutional Amendment, next general election, organic law, Against Constitutional Amendment, general election, approve, repeal, cross-mark

COUNSEL: William S. Bryan, Jr., Attorney-General, and Edgar H. Gans, for the appellant.
 
What we contend for is (supposing for the sake of the argument, the provision in Art. 14 for a modal regulation governing the submission to the people to be eliminated), that in Maryland a proposal to amend the Constitution must be passed with all the checks and safeguards which the Constitution provides for enacting a bill into a law. Not that the proposal itself is a law, but just as the Constitution prescribes that a bill shall be passed in a certain way to be a valid law, so a bill shall be passed in the same way before it can be validly submitted to the people in a proposal to amend the Constitution. The whole question is one of intention. Any examination of the cases on this subject will make it very clear that each Constitution is construed in accordance with its own phraseology, taken in connection with the history and policy of the particular State whose Constitution is being construed. The Constitutions differ very materially in the various States, and a decided case[***2] in one State construing its own Constitution would not have much authority in another State having a different provision in its Constitution, and a different history and policy. We insist upon this point, as most of the authorities cited by the appellee, as conclusive on this question can be readily distinguished on this ground alone.
 
 Prior to the Constitution of 1851, all amendments to the Constitution were made by the General Assembly, by Act passed at one session, and by a confirmatory Act passed at the next session. There was no submission to the people. Hinkley's Notes to Const., 1851; Constitution of 1776, secs. 59, 60.
 
By Art. 11 of the Constitution of 1851, the Legislature was required at its first session immediately succeeding the returns of every census of the United States, to pass a law for ascertaining at the next general election of delegates, the sense of the people in regard to the calling a convention for altering the Constitution. Under the Constitution of 1851, the law, to take the sense of the people, could not pass without the Governor's approval.
 
By the Constitution of 1864, Art. 11, it was provided:
 
"Section 1. The General Assembly may propose[***3] any amendment or amendments to the Constitution which shall be agreed to by three-fifths of all the members elected to both Houses. Such proposed amendment or amendments, with the yeas and nays thereon, shall be entered on the journal of each House, shall be printed with the laws passed at the same session, and shall be published by order of the Government," etc.
 
"Section 2. Whenever two-thirds of the members elected to each branch of the General Assembly shall think it necessary to call a convention to revise, amend or change this Constitution, they shall recommend to the electors to vote at the next election for members of the General Assembly for or against a convention," etc.
 
Now, when the convention of 1867 met, it had these models before it. It will be seen how fully the Legislature and the Governor had part in making or proposing amendments. Before 1851, they had the whole power of making the amendment. By the Constitution of 1851, the two Houses and the Governor passed the law for ascertaining the sense of the people, and by the Constitution of 1864, the distinction between the two Houses, acting in conjunction with the Governor as "The General Assembly," and a simple[***4] concurrence of two-thirds of the members elected to each House in making a recommendation to the electors, was clearly marked.
 
By sec. 1, the General Assembly proposed, acting by three-fifths of its members, and their action was printed with the laws passed at the same session.
 
By sec. 2, the "General Assembly" do not act; two-thirds of the members of each branch were to act; their action was not to be printed with the laws; they were not acting as the General Assembly, but as men selected to make recommendations simply because their being in the General Assembly was supposed to give them special opportunity to pass upon the desirability of such a recommendation. They were selected just as a judge has sometimes been selected to appoint a school board, not because he is judge, but because he is a man who has shown that having been elected to so responsible position as judge, has intelligence, integrity and good judgment. So that in 1867, the distinction had been already sharply drawn between the "General Assembly" acting as such, and a concurrence of individuals who happened to be members of the General Assembly; and that distinction has been stated in the prior Constitution[***5] by apt and expressive phraseology.
 
 Now, it will be seen, as the argument progresses, that this distinction of itself differentiates most of the authorities cited by the appellee from other States from the case at bar.
 
A number of proposals have been made in Maryland to amend the Constitution of 1867. The list follows:
 
1. 1874, ch. 364. Removal of cases.
 
2. 1880, ch. 417. Election of judges.
 
3. 1890, ch. 194. Art. 2, sec. 17. Veto of district items of appropriation bills.
 
4. 1890, ch. 195. Art. 3, sec. 48. Amending charters of corporations.
 
5. 1890, ch. 242. Art. 15. D. of R. Taxation.
 
6. 1890, ch. 255. Art. 7, sec. 1. Election of county commissioners.
 
7. 1890, ch. 426. Art. 3, sec. 51. Situation of personal property for taxation.
 
8. 1890, ch. 362. Art. 12, sec. 3. Sale of works of internal improvement.
 
9. 1892, ch. 313. Art. 4. Additional Judge to Supreme Bench.
 
10. 1896, ch. 459. Art. 15. Civil Service.
 
11. 1900, ch. 185. Art. 5, sec. 9. Compensation of State's Attorney.
 
12. 1900, ch. 432. Art. 3, sec. 4. Reapportionment of House of Delegates.
 
13. 1900, ch. 469. Art. 3, sec. 2. Senatorial representation from[***6] city.
 
These are all the proposed amendments since the Constitution of 1867. In all of them without exception, the proposed amendment was in the form of a bill, with a title, an enacting clause, a section containing the amendment as it would read as amended, another section containing a modal provision for submission to the people. They were all passed just as laws are passed, read three times, engrossed, had the great seal, were signed by the Governor recorded with the Clerk of the Court of Appeals, and published with the printed laws.
 
This unbroken precedent gives us the strongest kind of legislative construction of Art. 14 of the Constitution. All the cases hold that a continuous legislative construction has great if not controlling weight with the Court. "A contemporaneous construction placed upon a particular provision of the organic law by the legislative department of the government, acquiesced in and acted upon without ever having been questioned * * * furnishes a very strong presumption that the intention is rightly interpreted." Catholic Cathedral v. Manning, 72 Md. 130; State v. Mahew, 2 Gill, 487; Worman v. Hagan, 78 Md. 163; Koehler v. Hill, 60 Iowa, 557; People[***7] v. Supervisors, 100 Ill. 495, 504; Sutherland, Stat. Construction, secs. 307-311; State v. U. S. Fidelity Co., 93 Md. 318.
  
Even this Legislature of 1904 in passing this bill intended to conform to the precedent, for the bill has a title, an enacting clause, and was intended to be submitted to the Governor and published in the printed volume of the laws of the State. These two Acts are chapters 96 and 97, and the published laws of the State skip from chapter 95 to 98. There is a gap left where these other two enactments were intended to be placed. See Acts of 1904, pp. 173-5.
 
It will not do to say that this construction amounts to nothing because no objection was ever made. The drafting of a proposed amendment is a serious matter, and it cannot be supposed that the form which, as a matter of fact, was continuously adopted was not regarded as essential. Legislative constructions do not, as a rule, grow out of contested points, for, if contested, the point would be decided by the judiciary. Such constructions are based upon unbroken, uninterrupted usage, and such we have in this case. The presumptions, therefore, are all in our favor.
 
What is meant by "The General Assembly" [***8] in section 14 of the Constitution?
 
The appellee contends that "General Assembly" means only the two houses, the Senate and the House of Delegates. The appellant contends that it means "The General Assembly" in its organic capacity, of which the Governor is a part. A reference to the other parts of the Constitution in which the expression is used, shows its real meaning.
 
It is well settled that "the executive is by the Constitution a component part of the law-making power. In approving a law, he is not supposed to act in the capacity of the executive magistrate of the State, whose duty it is to see that the laws are properly executed; that is a part of the legislative branch of the government. This power is a unit though distributed, and the parts can only act in unison." Fowler v. Peirce, 2 Cal. 172; Cooley, Const. Limitations, sec. 153.
 
Let us apply the construction in pari materia. The point to be decided is--what is meant by "The General Assembly" in Art. 14? In this same article the same expression is used. It is provided in Art. 14 that the proposed amendment "shall be submitted in a form to be prescribed by the General Assembly." The expression there manifestly[***9] means the General Assembly in connection with the Governor, that is, the General Assembly in its organic character as a Legislature. For it will be conceded that any Act passed by the General Assembly prescribing the form of submission of the proposed amendment must be signed by the Governor, though his name is not mentioned. He is necessarily included in the expression "General Assembly," and is a component part thereof. As stated by Cooley: "The power of the Governor as a branch of the legislative department is almost exclusively confined to the approval of bills." Cooley, Const. Lim., sec. 155.
 
In sec. 2 of Art. 14 of the Constitution the same expression is used:
 
"Sec. 2. It shall be the duty of the General Assembly to provide by law for taking * * * the sense of the people in regard to calling a convention, etc." It cannot be denied that in this section the expression "General Assembly" includes the Governor, for no law to take the sense of the people would be valid without his signature. In accordance with this, the Act of 1886, ch. 112, was passed.
  
So in Art. 11 of the Constitution, entitled "City of Baltimore," sec. 9 provides: "Sec. 9. The General Assembly may[***10] make such changes in this Article * * * as it may deem best." Here, too, "General Assembly" includes the Governor, and in accordance therewith the following Acts of Assembly were passed: 1870, ch. 116; 1888, ch. 397.
 
In each of the following sections of the Constitution the expression "General Assembly" includes the Governor, for without his concurrence its action would be invalid: Art. 1, secs. 4, 5; Art. 3, secs. 4, 29, 31, 32, 33, 34, 35, 36, 37, 39, 40, 42, 44, 45, 46, 47, 48, 49, 50, 52, 53, 55; Art. 4, sec. 39; Art. 11, sec. 9; Art. 12, secs. 1, 3; Art. 13, secs. 1, 5, 6; Art. 15, sec. 1.
 
We see, therefore, by an examination of other parts of the Constitution, that the words "General Assembly," as a rule, mean the General Assembly in its organic legislative capacity, including the Governor, and not simply the two houses.
 
As a rule, in the various States where amendments are to be proposed by the members of the two houses acting as a sort of convention, it is so expressly provided.
 
Jamison on Constitutional Conventions, sec. 541, gives the provision contained in the constitutions of most of the States. The language generally used is--"Any amendment or amendments[***11] to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by * * * of the members elected to each of the two Houses, etc. In those States, the amendment is not to be proposed by the Legislature, but by certain members in each house. Their concurrence is not expressed by an enactment, or any other legislative form, but by a mere agreement.
 
It is to be noted that the cases cited by the appellee, were constructions of Constitutions, which gave the power of proposing amendments not to the Legislature, or the General Assembly, but to a certain number of the members in each house, agreeing together. Comm. v. Griest, 50 L.R.A. 568; In re Senate File 31, 25 Neb. 864; Green v. Weller, 32 Miss. 650; Nesbit v. People, 19 Col. 441; Koehler v. Hill, 60 Ia. 546.
 
It was largely because the amendments to the Constitution were to be proposed in these States by a certain number of members in one house, agreed to by a certain number in the other, and not by the Legislature, that the authorities cited hold that the Governor has nothing to do with the question of proposing amendments.
 
The argument we have made above is not conclusive. [***12] The expression "General Assembly" may possibly mean the two Houses to the exclusion of the Governor, and is undoubtedly used in the Constitution of Maryland in this sense in a few instances. But in the great majority of instances, in fact, in nearly all the instances, it is used in the sense for which we have been contending.
 
But the argument is made conclusive when we see that an amendment is not only to be proposed by the "General Assembly," but by bill. In passing a bill, the Legislature always acts in its organic capacity as a legislative body. Not that the bill becomes a law in this case. It becomes a proposed amendment. But being required to be passed by bill, it necessarily goes through all the processes fixed by the Constitution for the enactment of a law.
 
The form of proviso that the amendment shall be by bill, is even more clearly seen in the original report of the Committee to the convention of 1867 before it was revised as to its style. The report read: "Any specific amendment or amendments to the Constitution may be proposed by the General Assembly, provided the same be by bill, proposing a separate amendment, which shall embody the entire article or section[***13] as the same will stand when amended." Proceedings of Convention, p. 349.
 
Why did the Constitution insist that all proposed amendments must be by bill? If the mere concurrence of a number of the members of each House were all that were necessary, why should not a separate resolution in each House, or a resolution in one House concurred in by the other, or a joint resolution passed by the requisite number in each house, be sufficient? If the proposition of the appellee be correct, all that is necessary in proposing an amendment would be to introduce it into one house, pass it by a three-fifths vote, and have it concurred in by three-fifths of the other house. The concurrence of three-fifths in each house is the essential thing according to the appellee. No checks or safeguards against improvident or hasty proposition of amendments, he argues, were within the contemplation of the Constitution.
 
But it is well settled that the provisions of the Constitution as to the mode of proposing amendments must be strictly followed in order to make the submission valid. Koehler v. Hill, 60 Iowa, 546. It is also well settled that whenever the Constitution requires a bill, a joint resolution[***14] is void. Henderson v. Collier, 2 Col. App. 251; May v. Rice, 91 Ind. 546; Boyns v. Crane, 1 W. Va. 176.
 
So that the proposed amendments in this case could not be validly submitted by a resolution. They must be submitted by bill. But why? A resolution would evidence the concurrence of the requisite three-fifths of the members elected to each house, as well as a bill. There must be something in the method of passing and preserving a bill, as distinguished from a resolution which caused the convention to insist that an amendment should be proposed in this way and in no other. And this is just our contention. A bill in passing into the form of a law is surrounded by well-known checks and safeguards. It is authenticated in a definite way, and preserved in a certain way. In the passing of a bill there are three things to be considered. (a) The checks and safeguards in passing it. (b) The authentication. (c) Its preservation.
 
When the Constitution provided that amendments should be proposed by the General Assembly by bill, it meant that these amendments should be passed, authenticated and preserved as bills are for the plainest reasons of public policy.
 
Article 14 of the Constitution[***15] does not stand by itself, as do corresponding articles in other Constitutions, but uses the expression "in a separate bill," which requires of necessity a reference to Art. 3 of the Constitution to see what a bill is and how it is passed. Art. 3, sec. 29, of the Constitution provides that "all laws shall be passed by original bill," just as Art. 14 provides that all proposed amendments shall be by separate bill.
 
Of the provisions relating to bills, we note the following:
 
 1. Shall have a title. Art. 3, sec. 29.
 
2. Shall begin. "Be it enacted."
 
3. May originate in either house and be altered, amended or rejected by the other. Art. 3, sec. 27.
 
4. Shall not originate in last ten days of session, except on two-thirds vote. Art. 3, sec. 27.
 
5. Shall be read on three separate days in each house. Art. 3, sec. 27.
 
The purpose of these clauses is to prevent hasty and improvident legislation and to compel the careful examination of proposed laws. Cooley, Con. Limitations, p. 199.
 
Is it less important that proposed amendments to the Constitution should be carefully and critically examined before they issue from the Legislature? The people are called to pass[***16] upon them, it is true, but the people cannot in any way change the form in which they are submitted. They can only vote yea or any. Again, by our Constitution, the General Assembly is obliged to submit the amendment in the precise form it will have when amended (a power the Legislature would not have unless expressly given. Gabbert v. C. R. T. & P. Co., 171 Mo. 95.) This is the usual legislative work. The amendment is put into form just as a law is, and requires, if anything, more care in its preparation than a law. Jamison, Const. Conventions, sec. 538.
 
We, therefore, pointedly ask these questions: Would the proposed amendment have been valid if it had been passed
 
1. Without a title. 2. Without the enacting clause. 3. If introduced within the last ten days of the session without a two-thirds vote. 4. Without three separate readings in each house?
 
As a matter of fact, it was passed with all these prescribed forms. But why? Was it not because passing by bill means and requires all the things necessary to transform a bill into a law?
 
The Constitution provides for the authentication of a bill, so that the measure actually passed by the Legislature should be correctly[***17] applied, and not a false or fictitious or altered or changed measure. And therefore we have the following provisions:
 
1. Every bill shall be engrossed before its third reading. Art. 3, sec. 27. Engrossment is an essential part of legislation. Dowling v. Smith, 9 Md. 279.
 
2. Every bill shall be sealed with the great seal. Art. 3, sec. 30.
 
3. Shall be signed by the Governor in the presence of the presiding officers and Chief Clerk of the Senate and House of Delegates. Art. 3, sec. 30.
 
This is the only method prescribed for authenticating a bill, for securing its integrity. It is a very effective method and was obviously within the meaning of the Constitution when it prescribed that amendments shall be proposed by bill. 
 
Article 14 of the Constitution does provide that the yeas and nays shall be "entered on the journals with the proposed amendments." Now if the proposed amendments were required to be entered on the journals by being entered in full, e. g., spread out on the journals, there might be at least some method of compulsory authentication, though far inferior to the method prescribed in case of a bill. But it has been flatly decided in Maryland that entry[***18] in the journals does not mean entry in full, and that an entry by titling is sufficient. Worman v. Hagan, 78 Md. 163.
 
So that by the contention of the appellee there is no method of authenticating a proposed amendment. Surely this cannot be the intent of the framers of the Constitution.
 
It was just this difference between a resolution and a bill that led the Supreme Court of Iowa, in Koehler v. Hill, 60 Iowa, 549, to decide, contrary to the Maryland decision, that entry in the journal meant entry in full. The Court in that case, pp. 554-59, fully reasons out the distinction between a bill and a resolution proposing an amendment to the Constitution, and shows that a bill must be enrolled, signed by the President of both Houses, signed by the Governor, and its custody provided for, and therefore is fully authenticated; but a resolution proposing an amendment to the Constitution requires none of these things, and that, therefore, the journals would be the only official authoritative evidence of the amendment.
 
To the same effect is the case of Oakland v. Hilton, 69 Cal. 490, where the great purpose of entry on the journal was declared to be "to preserve in permanent and[***19] enduring form authentic and recorded evidence of the contents of the amendment proposed, that is, in the form in which it appears on such record it may be submitted to the electors for ratification."
 
The Court then distinguishes the case of a bill and shows the necessity for entry in the journal as follows: "Here the point arises as to a proposed amendment to the Constitution, and the law as to enrollment, authentication and deposit with the Secretary of State does not embrace it."
 
In Maryland, the framers of the Constitution of course saw the necessity of authorizing a proposed amendment to the Constitution and fully provided for it in requiring the amendment to be proposed by bill. This, of itself, carried with it all the provisions of the Constitution we have just cited as to the method of authenticating bills.
 
In this case the Legislature of 1904 felt the force of this argument. They did engross the bill, and did have it signed by the president of each house. But they did not have the great seal of the State affixed, nor secure the signature of the Governor. Why? Why did they follow some of the authenticating provisions and neglect others? They are all equally prescribed[***20] and most of them in the same section of the Constitution. No rational answer can be given to this question.
 
Article 3, sec. 34 of the Constitution provides that "every law shall be recorded in the office of the Court of Appeals and in due time be printed, published and certified under the great seal, to the several Courts, in the same manner as has been heretofore usual in this State." It is true that the Constitution says "every law," but a law is nothing but a bill which has been passed. The document recorded is really the enrolled bill. In its effects it is a law, but the document still remains a bill, though one which has been passed and enrolled. "When a bill is duly passed by a legislative body, it becomes an act of that body, that is, a thing done." 1 Am. & Eng. Ency. of Law, 2 ed. 575.
 
In Constitutions, the word "bill" is often used as synonymous with the word "law" or "Act." Thus where a Constitution provided that no local or private bill should embrace more than one subject, it was held that the word bill was used in the sense of law or Act, an Act being merely a perfected bill. Durkee v. Janesville, 26 Wis. 703; Sedegewick County v. Bailey, 13 Kan. 608; Com. v. [***21]Greist, 50 L.R.A. 572.
 
Again it is stated in 26 Am. & Eng. Ency., 2 ed., p. 555: "The enrolled bill is the original Act. It is to be looked to when the Act, as printed in the statute book, is attacked, and if the two differ, the bill as enrolled holds." This Court has very clearly shown that a bill which has passed and become a law is still a bill; that is to say, that the engrossed document which has received the signature of the Governor and the presidents of the two houses, and which furnishes the evidence of the law, is still a bill. In Berry v. Baltimore & Drum Point Ry. Co., 41 Md. 460, JUDGE ALVEY used this language: "It is contended by the appellant that the law must be taken to be as we find it evidenced by a bill filed in the office of this Court under the great seal and the signature of the Governor, while, on the other hand, it is insisted by the appellee that it is competent for this Court to examine the journals of the two houses of the General Assembly and the original engrossed bill with the endorsements thereon."
 
There are also cases of proposed amendments to Constitutions where the Act passed by the Legislature was distinctly called a bill after its being [***22]filed in the appropriate office. For example, the case of Green v. Weller, 32 Miss. 650, the Court says: "The record of a public Act of the Legislature of this State is the enrolled bill clothed with the solemnities required by the Constitution, and filed in the office of the Secretary of State." And again, in the case of Nesbitt v. People, 19 Col. 441, the Court, speaking of a proposed amendment, and passed in the form of an Act, said, "The amendments were preserved by the enrolled bill."
 
When the Constitution provided that amendments should be proposed by the General Assembly by bill, they, therefore, meant in addition to the safeguards used in passing a bill and in authenticating it, precisely the same provisions for preservation of a bill should also be applied to amendments. Otherwise, there would be no place of custody for the document, no safeguards thrown around its integrity, no method of securing a precise copy for publication by the Governor. Just as a bill which eventuates in a law is recorded in the office of the Clerk of the Court of Appeals, and when so recorded is still an enrolled bill, so a bill which eventuates in a proposed amendment, and for the same reasons, [***23]is recorded in the Clerk's office of the Court of Appeals.
 
The Senate of 1904 seem to have realized at least this much, for by their resolution they directed this document to be recorded in the Clerk's office of the Court of Appeals. Manifestly, there was no authority for this of any kind, unless derived from sec. 30 of Art. 3 of the Constitution.
  
It is objected that amendments to the Constitution are not law-making but constitution-making; that, therefore, the only parties interested are the two houses of the Legislature and the people, and this seems to be the main argument in the case of Commonwealth v. Greist, 50 L.R.A. 568. We have already partially answered this objection. We conceded that the proposal of amendments to the Constitution is not law-making in the ordinary sense, but evidently there can be no constitutional objection to having the Governor join in a proposal for amendment with the houses of the General Assembly. It all depends upon the intention of the Constitutional convention in passing Art. 14. If they had said in express terms, that every proposed amendment shall be passed by three-fifths of each house of the Legislature, with the approval of the Governor, [***24] there, of course, would be no question. The only point in issue is as to how the proposed amendment shall issue from the Legislature, whether with or without the approval or interference of the Governor. The argument thus far made in this brief shows that in Maryland it was intended that the Governor's signature should be on the proposed amendment in order to validly submit it to the people, because of the special terms of Art. 14, to wit., that the amendment should be proposed by the General Assembly and by bill.
 
It is objected that it would be irrational to submit a proposed amendment to the Governor for his approval, because it must be passed by three-fifths of the members elected to each house, and three-fifths of the members of each house is the precise number authorized to repass a bill over the Governor's veto. This argument is more plausible than sound. If it were sound, it would be unnecessary to present any bill to the Governor for his approval which had passed each house by the vote of three-fifths, or more, and yet, it is well known that every ordinary bill, even though passed unanimously by both houses, must of necessity, be presented to the Governor for his approval, [***25] and it has happened in the history of Maryland legislation that bills which have been unanimously passed by both houses of the Legislature, when submitted to the Governor were vetoed by him, he giving his reasons therefor, and upon reconsideration the veto was unanimously sustained.
 
An illustration of this principle is found in State v. Crouse, 20 L.R.A. 265, wherein it was decided that a bill required the approval of the Governor even though it was of a character which required a two-thirds vote to pass it, and even though under the Constitution a veto could be overridden by a three-fifths vote.
 
It is argued that the Governor has no right to get between the two houses and the people. This, however, is merely begging the question. The Governor has nothing to do with the ratification of the amendment or its adoption. His duty is simply in reference to its proposal to the people, whether it shall be proposed, and the form in which it shall be proposed. It is not rational, therefore, to speak of the Governor usurping the power of the people to ratify a proposed amendment. In addition to this, it is conceded that when the sense of the people is to be taken in regard to calling[***26] a convention for altering the Constitution, the matter cannot be proposed to them without the approval of the Governor or overriding his veto, because sec. 2 of Art. 14 provides "it shall be the duty of the General Assembly to provide by law for taking at the general election to be held in the year 1887, and every twenty years thereafter, the sense of the people in regard to calling a convention for altering the Constitution, and assuredly, the question of taking the sense of the people to revise the whole Constitution is a very much more important matter than submitting a single change to the people. The history, therefore, of constitutional amendments in the State of Maryland, shows that the Governor was intended to be a party to the proposition. This, as we have already seen, has been reinforced by a continuous, uninterrupted usage.
 
It is objected that Article 14 of the Constitution provides that "The bill or bills proposing amendment or amendments shall be published by order of the Governor," and that this means a bill as distinguished from an Act. The unreasonableness of any such distinction between bill and act has already been fully discussed.
 
We maintain that the[***27] authorities cited by the appellee are not applicable because they construe Constitutions that are essentially different from the Constitution of Maryland.
 
In Hollingsworth v. Virginia, 3 Dallas Reports, 378, it was held that a joint resolution of Congress, proposing an amendment, did not require the signature of the President. An examination of Article 5 of the Constitution of the United States, however, shows that the intention of that Constitution was to require nothing more than an expression of opinion that amendments were necessary. Article 5 of the Constitution provides: "That Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part of this Constitution when ratified by the Legislature of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or other mode of ratification may be proposed by Congress."
 
Article 5 did not provide how the amendment should be proposed, whether by bill or by resolution, or how. Jamison on Constitutional Conventions, in sec. 557, explains this case, and shows precisely why it was that the[***28] decision was reached. He says in section 557, after speaking of the question of submitting a joint resolution to the Executive: "On the other hand, a close examination of Article 5 shows that it contemplates nothing but a mere expression of opinion that amendments to the Constitution are necessary. That body being a numerous one, and representing the people, it is deemed probable that, whenever two-thirds of both its branches pronounce particular organic changes to be expedient, such is the sense of the people at large. There is to be no submitting of propositions to a vote of the people, consequently no directions for conducting an election, or making returns of votes--in short, no prescribing of a rule of action to officers or citizens, for the reason that all action upon the subject is to be taken by separate agencies fully organized under State laws. In this view of the Constitution, then, the necessity of executive approval seems to be very doubtful; and of this opinion are the authorities generally."
 
The argument already made is much strengthened by another provision of Article 14 of the Constitution. After providing for the publication of the bill proposing the amendment[***29] to be voted for at the next ensuing general election, the Article proceeds: "At which the said proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection."
 
This Article 14 provides, therefore, not only for passing the proposed amendment and publishing it, but also provides that the General Assembly shall prescribe the form of submission." This, of course, must be by a law which must be presented to the Governor for his signature.
 
(a) The question now arises--was it not the intent of the Constitution that the proposed amendment and the form of submission should be contained in the same bill? If so it would seem conclusive of the question at bar, for in that event the entire bill, section 1, containing the proposed amendment and section 2, prescribing the form of submission, e. g., how the ballots were to be prepared and marked, should be presented to the Governor for his signature. The modal regulations contained in section 2 is clearly a law, for its provisions govern the voters and all the officers of election. Section 2 requires no ratification by the people. On[***30] the contrary, it is to be effective as a law governing the voters and officers of election in the very election at which the proposed amendment is submitted to the people. This construction has behind it and in its favor the uninterrupted usage of the Legislature, since 1867. In every case of a proposed amendment, since 1867, the bill proposing the amendment had two sections--section 1 containing a proposed amendment, and section 2 containing the method of balloting as prescribed by the General Assembly. This construction also has in its favor the high authority of Jamison on Constitutional Conventions, secs. 547, 548, 556.
 
In New York the proposal, if in the form of a resolution, is not submitted to the Governor, but if in the form of a bill, it is submitted to the Governor.
 
In Michigan and Minnesota the proposed amendments are accompanied by clauses submitting them to the people in a single Act. It is the practice to present to the Governor for his approval. See sec. 561.
 
But suppose it was not intended by the Constitution that the Legislature should necessarily present a proposed amendment and the method of submission in a single Act. Suppose the Legislature could, [***31] if it saw fit, propose an amendment in one bill and prescribe the form of submission in another bill or provide for it in the general election law, how would the case be affected under that construction?
 
We must observe that in the concrete case at bar we are discussing, the Legislature did, as a matter of fact, combine the proposed amendment with the method of submission, and it is the validity of this single Act which we are discussing. If the Legislature had proposed the amendment in one bill alone and provided for the method of submission in another, or left the method of submission to the provision of the general election law, then another question would have arisen. But it did not do this.
 
Now when a proposal for an amendment is contained in sec. 1, and a method of submission in sec. 2, does this not, of necessity, require that the entire Act should be presented to the Governor? The Act was intended by the Legislature to be an entirety. It was not intended by it to be broken up piecemeal.
 
This matter has been precisely decided in California. It is not necessary under its Constitution that the proposed amendment and the method of submission shall be embraced in[***32] the same Act of the Legislature. Martin v. Commissioners, 126 Cal. 419. But when in that State these two things, as a matter of fact, were embraced in a single Act, the Court held the signature of the Governor to be necessary. Hatch v. Stoneman, 66 Cal. 632. The Court say, "It will be remarked that the power to propose an amendment to the Constitution is vested in the two houses--Senate and Assembly--and if two-thirds of all the members elected to each of the two houses vote in favor thereof, it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people to be voted on. The proposal of the amendment or amendments is not by the Legislature as such in the ordinary enactment of a law, and with the proposal the Governor has nothing to do. The Act is that of two-thirds of each branch of the Legislature. But the matter of submitting the proposed amendment or amendments to the vote of the people is quite different. That it is to be done by the Legislature, by a law to that effect, and in the enactment of a law the Governor is part of the law-making power."
 
This ought to be conclusive of the question at bar.
 
(c) But it is argued by the appellee, [***33] and this is his main contention on this branch of the case--that sec. 1 is good without signature of the Governor, as it is only a proposed amendment; sec. 2 may be invalid, as it is essentially a law and requires the Governor's signature; but the invalid section may be disregarded and sec. 1 may be allowed to stand by itself.
 
This argument is fallacious. 1. It was never intended by the Legislature that sec. 1 should stand alone. It was connected with sec. 2 in one Act, and the Legislature intended them to be connected as one integral whole. More than this, it is evident, when the Act passed each house, it was intended that the whole should be submitted to the Governor for his approval. This is conceded by the appellee. In the presence of these facts there is no room for the principle that part of the law should be allowed to stand and other part be declared void.
 
2. The principle of declaring one section valid and another void applies only when the sections are severable, and when it can be seen that in the intention of the Legislature it would make no difference whether they were separated or not. But when the intent of the Legislature is clear that they were intended as [***34]inseparable parts of the same thing, mutually dependent on each other, then if one section is void the whole is void. State v. Benzinger, 83 Md. 488.
 
The appellee argues it makes no difference in the intention of the Legislature whether sec. 12 stands or not. That it can be declared void and the proposed amendment may be submitted to the people under the terms of the general election law. There might be some force in his argument (though we do not think even then it would be entitled to much weight), if the method of submission provided for in sec. 2 of the Act and the method provided for under the general election law were the same.
 
By the general election law it is provided:
 
51. If at any election there be a constitutional question or any other question to be submitted to the popular vote, the said question shall be placed upon said ballot in the following form: "For Constitutional Amendment," "Against Constitutional Amendment," "For Proposition," "Against Proposition," and said respective questions shall be placed in a column, as hereinbefore mentioned, so that the same shall form a parallelogram or space where the voter may clearly indicate, in the way hereinafter[***35] pointed out, whether he shall wish to cast his ballot for or against the Constitutional Amendment, or proposition or propositions submitted. Acts 1901, ch. 2, sec. 51.
 
By this section it is clear that in voting for Constitutional Amendments: (1) The ballot should have "For the Constitutional Amendment" and "Against the Constitutional Amendment." (2) These two expressions were to be on the same ballot. (3) A space is provided in which the voter is to make his mark.
 
Now, if anything is clear in this case it is that the Legislature of 1904, by the Act of 1904, chap. 96, sec. 2, intend to repeal the general election law, so far as the submission of this proposed amendment is concerned. By section 2, the vote "shall be by ballot, and upon each ballot there shall be written or printed the words 'For the Constitutional Amendment,' or 'Against Constitutional Amendment,' as the voters shall elect."
 
This is a return to the old system of voting and is copied verbatim from Article 15 of Constitution of Maryland, subtitle "Vote on the Constitution," prescribing how the Constitution of 1867 was to be voted for.
 
The method differs from the method prescribed in the general election[***36] law as follows: 1. Voter may furnish the ballot himself. 2. On the ballot he may write or have printed "For the Constitutional Amendment" or "Against the Constitutional Amendment." 3. Both these expressions cannot be on the same ballot. 4. No space or square provided for mark. 5. Ballot not official.
 
Now, when the Legislature proposes an amendment to section 1, and in section 2 of the same Act provides a special method of submission, entirely different from that contained in the general law, it cannot be successfully argued that the Legislature did not intend the two sections to stand together. It cannot be maintained that in the intention of the Legislature one section might stand and the other fall.
 
Bernard Carter and John Prentiss Poe (with whom was Alonzo L. Miles on the brief), for the appellee.
 
Our contention is that Article 14 is a plain, clear and unambiguous provision for the whole subject of amendments to the Constitution, dealing distinctly, separately and specially with that single subject--that by its plain words and manifest intent it provides that amendments may be proposed by the General Assembly--meaning thereby the Senate and House of Delegates, each[***37] house acting by a vote of three-fifths of all the members elected to it--that each amendment shall be in a "separate bill"--that "bills" proposing amendments are wholly distinct in their very nature from ordinary measures of legislation, and that, accordingly, they are not required to be submitted to the Governor for his executive consideration as in the case of ordinary legislation, but that when duly passed in the shape of "bills" by the prescribed vote in each house, they "shall be published by order of the Governor" in the mode and for the period prescribed, and that in relation to bills proposing amendments to the Constitution, the only function to be exercised by the Governor is to order them to be published as prescribed, for adoption or rejection by the people.
 
We find support for our contention in all the adjudicated cases, without one single exception, where the question has been raised. Some of these cases are Hollingsworth v. Virginia, 3 Dallas (U.S.) 381; In re Senate File 31, 25 Neb. 864; Green v. Weller, 32 Miss. 650; Hatch v. Stoneman, 66 Cal. 632; Koehler v. Hill, 60 Ia. 543; Commonwealth v. Griest, 196 Pa. St. 396; State v. Mason, 43 La. Ann. 590, 649; see also[***38] Debates, Mass. Convention, 1820, p. 407; Debates, Va. Convention, 1829, p. 887.
 
The whole subject is quite fully considered in Jamison's Constitutional Conventions, secs. 556-565, and the view contended for by us declared to be correct, and sustained by all the authorities.
 
In Commonwealth v. Griest, 196 Pa. St. Rep. 396, the bill in accordance with the uniform practice in Pennsylvania was presented to the Governor and he vetoed it by a pocket veto.
 
And in State v. Mason, 43 La. Ann. 590, the bill was in like manner presented to the Governor and he vetoed it, sending his veto message to the house in which the bill originated. In that house it was passed over his veto, but in the Senate his veto was not overcome by the required vote.
 
In each of these two cases, however, the Supreme Court of the State held that bills proposing amendments to the Constitution are not required to be sent to the Governor like ordinary measures of legislation, and that consequently the executive veto was ineffectual.
 
We freely concede that the question is one depending for its solution upon the true meaning of our own Constitution, but we insist that the provisions of our Constitution[***39] are so similar in terms and so identical in meaning with the provisions of the Constitution of the United States and of the several States considered and passed upon in the adjudications cited and relied on by us, that these adjudications cannot fail to be followed by this Court as conclusive of the questions in controversy here.
 
The whole argument of the learned counsel for the appellant is built upon the word "bill" in Article 14. They claim that by the use of this word the framers of the Constitution and the people who adopted it meant an ordinary legislative bill, which, before it could be finally operative, must go through all the formalities requisite to the complete development of a "bill" into a "law," or an "Act" including executive approval or due passage by each of the two houses over executive veto.
 
Now we might very well insist that a question of this character cannot properly be settled upon what may fairly be treated as a mere verbal criticism, but that it must be determined upon a broad view of the object and effect of a proposal to the people by their representatives in the Legislature to amend the Constitution--upon a consideration of the intrinsic nature[***40] of such a proceeding by the two houses of the General Assembly and upon the effect of the approval or disapproval of the Governor of what after all is obviously and necessarily a mere tentative proposal to the people without any operative force whatever unless ratified by them.
 
Looking at the question in this light, an argument founded almost exclusively on the effect of one single word might not unreasonably be claimed to rest upon too slender a foundation to be accepted as sound. And we accordingly insist that it cannot be treated seriously.
 
 Under Constitution, Art. 2, sec. 17, and Art. 3, sec. 30, the obvious and indeed the only purpose was to make the Governor an integral and essential part of the law making power of the State, precisely as the President of the United States is of the law making power of Congress. Indeed, with the exception of four preliminary lines in sec. 17 of Art. 11 (which lines serve to make more plain that its purpose was to limit executive consideration to bills, which when approved by him or passed over his veto, should become laws), this section is taken bodily from sec. 7 of Art. 1 of the Constitution of the United States.
 
There is no[***41] suggestion in Art. 14 of the necessity of executive approval before the General Assembly can even be permitted to propose to the people a change in our organic law.
 
There is, on the contrary, a special requirement (found in no other Art. of the Constitution), that the vote necessary to such proposal is a three-fifths vote. If the design had been to give to the Governor the power to thwart the will of the General Assembly and to disable them, without his consent, from even proposing to the people an Amendment to the Constitution, is it not manifest that the provision in relation to Amendments would not have been thus made special and peculiar as to the vote necessary to propose them, but would have been left to be controlled by the regulations governing ordinary legislation? Why require a three-fifths vote in each house in the first instance if the Governor's approval was intended to be necessary, or if this same three-fifths vote in each house was required to overcome his veto? Why require a three-fifths vote twice?
 
Again, inasmuch as a three-fifths vote of each of the houses, which constitutes together the General Assembly, is required for the passage of a measure proposing[***42] a Constitutional Amendment, and as such measures as are contemplated to be presented to the Governor for his approval before they become laws by sec. 16 of Art. 2, and sec. 30 of Art. 3 only require, for passage over his veto, a vote of three-fifths of the members elected to each of the houses, what reason could there be, in the minds of the framers of the Constitution, for subjecting a proposed Constitutional Amendment to the process of being sent to the Governor for his approval (independently of all other consideration applicable to the subject), when the same vote is required to secure, in the first instance, the consent of the two houses of the General Assembly to a proposed amendment to be submitted to the people, as would be required to overcome a veto by the Governor of the action of the two houses of the General Assembly?
 
We must insist that the subject is wholly covered by Art. 14 as it stands, and that when the Article declares that the "bill or bills" shall be published, its framers and the people who adopted it meant precisely what these words in their plain, natural and ordinary sense mean.
 
It does not say the "law or laws proposing amendment or amendments, [***43] " or the "Act or Acts proposing amendment or amendments," shall be published by the Governor, but the "bill or bills proposing amendments."
 
The framers of the Constitution and the people who adopted it knew the distinction and difference between a "bill" and a "law" or "Act." They knew perfectly well that a proposed measure of legislation is ordinarily, as well as technical, called a "bill," until by executive approval it has ripened into a "law" or an "Act." When approved by the Governor or passed over his veto it ceases to be a "bill." It is no longer called a "bill," but has developed into a "law" and is usually called "An Act." Indeed, the word "a bill," which precede every proposed piece of legislation are omitted when it has passed through all the steps necessary to make it a law, and it is then styled "An Act." Hence, when we find Art. 14 directing the Governor to publish "the bill or bills proposing amendments," we see clearly that it meant proposals passed by the General Assembly by the specially designated vote in each house, not treated as legislation necessary to be submitted to the Governor in order "to guard against hasty and partial legislation," but as proposals[***44] submitted to the people by their representatives in the Senate and House of Delegates, and as to which the Governor has no function whatever to perform except to publish them. He is the chosen ministerial officer to order them to be published for the information of the people, but inasmuch as they do not constitute legislation, which his approval would make operative, so they do not and cannot constitute legislation which his veto may obstruct or defeat.
 
Upon the face of Art. 14, it is, therefore, apparent that the claim made that the Governor's concurrence in proposals from the General Assembly to amend the Constitution passed by each house by the specially exacted vote of three-fifths of their elected members, respectively, is necessary, cannot be sustained by any proper interpretation of that Article.
 
In the Court below the suggestion was made that the two bills now under consideration, in addition to setting out the proposed Amendments in the form prescribed by the General Assembly, contained a section directing that they should be submitted to the people, and that this provision made them something more than mere bills outside of executive power, and brought them within [***45]the area of legislation subject to revision by the Governor.
 
No stress was apparently put upon this suggestion; but as it may be again presented here it may be proper to notice the point. It will be found, we submit, that there is no such additional matter of legislation in the bills.
 
But if there were, its introduction could not invalidate the complete and perfect proposed amendments properly formulated by the General Assembly in each separate bill.
 
The well-established maxim of utile per inutile non vitiatur would in such view be distinctly applicable and controlling. But sec. 2 is only a repetition of a requirement of Art. 14, and, moreover, as the learned Judges of the Court below in their opinion well say, the mode of submitting proposed constitutional amendments to the people is already abundantly provided for in our general election law (Code, Art. 33), and hence a total failure to make any provision for submission to a vote of the people on the bills would not at all affect their validity.
 
The counsel for the appellant point to the fact that since the adoption of our present Constitution there have been proposed about eighteen amendments to the Constitution, [***46] and that in every one of these cases the "bills" were submitted to the Governor and made "Acts" by his approval, and they rely on this practice as a strong argument in support of their contention. Such was the fact in Pennsylvania and Louisiana; but a mere practice or even a legislative interpretation of the Constitution was held in the two cases of Commonwealth v. Greist, 196 Pa. St. 396, supra, and State v. Mason, 43 La. Ann. 649, supra; not to be sufficient ground to control the judgment of the Court. And so, here, silent acquiescence in a plainly erroneous construction of the Constitution cannot lead this Court to perpetuate an error on a question never heretofore raised.
 
In the details regulating the mode of proposing and adopting amendments there is some variety; but so far as the origination of them and the absolute and exclusive power of the two branches of the Legislature over them are concerned there is a striking and impressive uniformity, to which we find now but one exception.
 
Thus in Delaware: The General Assembly, whenever two-thirds of each house shall deem it necessary, with the approbation of the Governor, may propose.
 
And in Louisiana (under the Constitution[***47] of 1845), the approval of the Governor to all proposals of the amendment by the "General Assembly" was required; but in the successive Constitutions of 1852, 1864 and 1868, this provision was omitted, and it is omitted also in the Constitution of 1875; and the language now is that "the General Assembly may propose," etc.
 
The Constitution of Delaware and that of Louisiana of 1845 are the only cases in which the approval of the Governor has ever been required.
 
In every other instance there seems to have been a clear and unmistakable purpose to exclude the Governor from participation in proposals to amend the Constitution.
 
Missouri (1820--also 1875): "The General Assembly may at any time propose amendments." Edwards v. Leuser, 132 Miss. 433. Alabama: "The General Assembly, whenever two-thirds of each house, etc., may propose." Arkansas (1836): "The General Assembly, etc., may propose." (1868): "Either branch of the General Assembly may propose." Illinois (1818): "Whenever two-thirds of the General Assembly, etc." (1848 and 1870): "Whenever two-thirds of all the members elected to each branch of the General Assembly," etc., etc. Kansas (1885): "All propositions for amendments[***48] shall be made by the General Assembly." Prohibitory Amendment Cases, 24 Kan. 700. Rhode Island (1842): "The General Assembly may propose amendments." Texas (1845, 1866, 1868, 1876): "The Legislature, when two-thirds of each house shall deem it necessary, may propose." Nebraska: "Either branch of the Legislature may propose amendments." In re Senate File 31, 25 Neb. 864. Iowa: "Any amendment or amendments may be proposed in either house of the General Assembly." Koehler v. Hill, 60 Iowa, 543. Mississippi: "Whenever two-thirds of each branch of the Legislature shall deem any change, alteration or amendment necessary to this Constitution, such proposed change, etc." Green v. Weller, 32 Miss. 650. California (1849): "Any amendment may be proposed in the Senate or Assembly." (1862): "If at any time two-thirds of the Senate and Assembly, etc." Hatch v. Stoneman, 66 Cal. 532; Oakland v. Paving Co., 69 Cal. 514. Colorado: "Any amendment may be proposed in either house of the General Assembly." Nesbit v. People, 19 Col. 441. Florida: "May be proposed in either house, etc." Georgia: "By bill read three times in each house on three several days." Indiana (1851): "May be proposed in either branch[***49] of the General Assembly." Michigan (1835, 1850): "May be proposed in the Senate or House of Representatives." Minnesota (1857): "Whenever a majority of both houses of the Legislature, etc., they may propose such alterations and amendments which shall be published with the laws. Julius v. Callahan, 63 Minn. 154. Nevada (1864): "May be proposed in the Senate or Assembly." State v. Davis, 20 Nev. 220. New Jersey (1844): "May be proposed in the Senate or General Assembly." New York (1821 and 1846): Same substantially as New Jersey. North Carolina (1868): "By bill read three times in each house," etc. State University v. McIver, 72 N. Car. 76. Ohio (1851): "Either branch of the General Assembly may propose." Oregon (1857): "May be proposed in either branch of the General Assembly." Pennsylvania: Fully stated in Commonwealth v. Griest, 196 Penn. St. 396, supra. South Carolina (1790 and 1865): "No part of this Constitution shall be altered unless a bill to alter the same shall have been read three times in the House and three times in the Senate, etc." (1868): "May be proposed in the Senate or House of Representatives." Tennessee (1834-1870): "May be proposed in the Senate or House of Representatives. [***50]" Virginia (1870): "May be proposed in Senate or House of Delegates and ratified by next General Assembly." West Virginia (1872): "May be proposed in other house and ratified, etc." Wisconsin: "May be proposed in either house and ratified, etc." Massachusetts (1780): "Provision for taking the sense of the people under a call to be made by the general Court in 1795." New Hampshire (1792): "Substantially as in Massachusetts." Kentucky (1850); "When a majority in each house shall concur in passing a law for the calling of a convention, etc."

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

OPINIONBY: MCSHERRY

OPINION: [**538] [*108] MCSHERRY, C. J., delivered the opinion of the Court.

   In March, 1904, the General Assembly of Maryland by a three-fifths vote of all the members elected to each of the two houses adopted two proposed amendments to the State Constitution. One was the proposition to amend sec. one of Art. one relating to the elective franchise; and the other was a proposition to amend section thirty-four of Article three, and is known as the good roads amendment. Neither of these proposed amendments was submitted to[***51] the Governor for his approval or disapproval, but both, duly certified by the presiding officers of the two houses and by the Secretary of the Senate and the Chief Clerk of the House of Delegates, were, in obedience to a resolution passed by the Senate placed in the custody of the Clerk of the Court of Appeals. Thereafter the Governor sent a message to the Senate in which, amongst other things, his Excellency stated that he did not approve of the elective franchise amendment, and that as it had not been presented to him for his approval or disapproval, it could not be lawfully submitted to the qualified voters of the State for their adoption or rejection. He expressed his willingness to sign the good roads amendment. It being made the duty of the Governor under Art. 14 of the Constitution to order the publication of the bill or bills proposing an amendment or amendments, for at least three months preceding the next ensuing general election at which any proposed amendment is to be submitted to the qualified voters of the State for adoption or rejection; the Hon. Murray Vandiver addressed to his Excellency a letter on November the twenty-second, nineteen hundred and four, asking him[***52] whether the opinion he entertained, [*109] to the effect that a proposal to amend the Constitution could not be submitted to the people until it received his approval or until it had been adopted by the General Assembly over his veto, would lead him to refuse to cause the franchise and the good roads amendments to be published prior to the general election of nineteen hundred and five. In reply the Governor stated: "I will not cause to be published the proposed Constitutional amendments referred to * * because they have not been submitted to me for my approval as Governor and hence are not operative." On November the thirtieth Mr. Vandiver filed in the Circuit Court for Anne Arundel County a petition against the Governor and prayed therein that a writ of mandamus might be issued commanding him to publish the two proposed amendments in accordance with the requirements of Art. 14 of the Constitution. To this petition an answer was filed by the Governor. No issues are raised by the answer save the single one as to whether a proposition to amend the Constitution, though duly emanating from the General Assembly, must be approved by the Executive, or be passed over his veto, before[***53] being submitted to the vote of the people. The Circuit Court ordered the mandamus to issue and the respondent has appealed to this Court.

   The primary and fundamental question is this: Does a proposal to amend the Constitution, after having been adopted by the General Assembly in accordance with the provisions of Art. 14, require the approval of the Executive, or must it be passed [**539] over his veto if he disapproves it, before the people are entitled to vote upon it? There is a second and subordinate inquiry which will be stated and discussed later on.

   The case was argued with marked ability before the eight Judges of this Court and after mature deliberation we all agree that a proposition to amend the Constitution when formulated by the General Assembly in the manner prescribed by, and according to the requirements contained in Article 14, and when no measures which are distinctively and essentially legislative in their nature are appended to it, does not require the approval of the Governor before it can be voted on by the [*110] people; and that the Governor has no authority whatever to veto it. The conclusion just stated is sustained by both reason and authority. [***54]

   As much of the discussion will hinge on the language employed in Article 14, that article, in so far as it relates to the pending questions, will now be transcribed. "Section 1. The General Assembly may propose amendments to this Constitution; provided, that each amendment shall be embraced in a separate bill, embodying the article or section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two houses, by yeas and nays, to be entered on the journals with the proposed amendments. The bill or bills proposing amendment or amendments shall be published, by order of the Governor, in at least two newspapers in each county, where so many may be published and where not more than one may be published then in that newspaper, and in three newspapers published in the city of Baltimore, one of which shall be in the German language, once a week for at least three months preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection." The remaining provisions of the section refer[***55] to the duties of the Governor with respect to proclaiming the results of an election after the votes cast for and against a proposed amendment have been returned to him.

   Upon the part of the appellee it is contended that the term "General Assembly," as used in the above-cited section, means only the two houses of the Legislature--the Senate and the House of Delegates; whereas on behalf of the appellant it is insisted that the term signifies the General Assembly in its organic capacity, of which the Governor is a part. "The General Assembly may propose amendments to this Constitution." Unless the term "General Assembly" wherever used in the Constitution universally and invariably includes proprio vigore, the Executive, it cannot be affirmed that it, of necessity and without more, embraces him when employed [*111] in Article 14. It must first be established that the term never excludes him before it can be predicated of it that it always includes him. Now, even a casual reading of the Constitution will show that something in addition to the words "General Assembly" is requisite to include under that term the Governor. In fact section one of Article three of [***56]the Constitution defines the term General Assembly. It reads thus: "The Legislature shall consist of two distinct branches--a Senate and a House of Delegates--and shall be styled the General Assembly of Maryland." This constitutional declaration as to what constituents or component factors make up the General Assembly explicitly excludes the Governor. But this is not all. Section fourteen of the same Article three provides that "The General Assembly shall meet on the first Wednesday of January, 1868, and on the same day in every second year thereafter and at no other time, unless convened by proclamation of the Governor." Section fifteen declares that "The General Assembly may continue its sessions so long," etc.; and section twenty-four provides that "The General Assembly shall create, at every session thereof, a joint standing committee of the Senate and House of Delegates, who shall have power to send for persons and examine them on oath, and call for public or official papers and records, etc." Section four of Article four declares that: "Any Judge shall be removed from office by the Governor * * * on the address of the General Assembly, etc." Here, then, are several instances, [***57] and there are quite a number of others that might be mentioned, in which the General Assembly is spoken of as wholly distinct from the Executive; and hence it demonstrably follows that the term "General Assembly" does not of itself or implicitly comprehend the Governor. In other words the General Assembly, composed of the Senate and House of Delegates, may exercise some powers without the concurrence or co-operation of the Governor; and, therefore, when it, the General Assembly, is authorized by the Constitution to perform a designated function there is involved no necessary inference that the Governor shall participate therein in order to give the Legislature's action potency.

   [*112] If we go one step farther and examine the phraseology of Art. 14 in contrast with prior constitutions of this State, it will become apparent that the Governor has nothing to do with a proposed Constitutional Amendment except to order its publication for the period and in the manner designated in that article and to proclaim its adoption after it has been approved by the people. Under the Constitution of 1776 the method of amending its provisions was by an Act of Assembly passed at one session[***58] and signed by the Governor, who then had no veto power and who was required to affix his signature to all enactments adopted by the Legislature; [**540] the publication of that Act before the next general election, but no vote upon it by the people, and its ratification by the succeeding General Assembly. Amendments of the Constitution thus framed needed the signature, but not the approval, of the Executive, because it was made his imperative duty to sign all Acts of the Legislature. To that extent, but with no discretion whatever, he participated in propounding and in adopting amendments of the organic law. He had no power to withhold his signature from any proposed amendments. By the Constitution of 1851, which was the second one adopted in Maryland, its provisions could only have been amended by a convention assembled for that purpose pursuant to Art. 11. The Governor was given no veto power. The Constitution of 1864 contained two modes by which amendments could be made, both of which were contained in Art. 11. By sec. 1 of that Art. it was declared that the "General Assembly may propose any amendment which shall be agreed to by three-fifths of all the members elected to [***59]both houses." The section then required the proposed amendment to be published and subsequently to be voted on by the qualified electors at the next general election. By the second section amendments were permitted to be made by a convention convened for that purpose but before any amendment so proposed could become effective it was necessary, under section three, that it should be adopted by a vote of the people. Under the Constitution of 1864 the Governor had no veto power. In not a [*113] single instance had the Governor under the Constitutions of 1776, 1851 and 1864 any authority whatever to veto a proposal to amend the organic law; and it was not until the Constitution of 1867 went into effect that "to guard against hasty or partial legislation," not hasty or partial amendments to the Constitution, the Executive was clothed with a veto power.

   Upon turning to and reading Art. 14 it must be conceded that its language is clear; explicit and unambiguous. It does not say that the General Assembly and the Governor, or the General Assembly with the approval of the Governor, but "The General Assembly may propose amendments to this Constitution, provided, that[***60] each amendment shall be embraced in a separate bill, etc." Such a proposal is not legislation. It is required to be passed by "three-fifths of all the members elected to each of the two houses," whilst a majority only is needed for the adoption of legislative measures; and even after receiving the prescribed number of votes in both houses it continues to be a bill and never becomes a law, though if adopted by the vote of the people it is thereafter incorporated in the Constitution. "The bill or bills proposing amendment or amendments shall be published by the order of the Governor, etc." The thing to be published is a bill proposing an amendment. Now, whatever legislation the Governor has a right to sign and does sign, ceases when signed by him, to be a bill and becomes a law. There are three ways in which a bill may become a law. First, by being signed by the Governor; secondly, by being passed over his veto; and thirdly, by his failure to return the bill within six days after receiving it, unless by adjournment the General Assembly prevents its return. To make this more clear it may not be amiss to quote sec. 17 of Art. two of the Constitution. It is in these[***61] words: "To guard against hasty and partial legislation and encroachments of the legislative department upon the co-ordinate executive and judicial departments, every bill which shall have passed the House of Delegates and the Senate shall, before it becomes a law be presented to the Governor of the State; if he approve he shall sign it, but if not he shall return it with his objections [*114] to the house in which it originated, which house shall enter the objections at large on its journal and proceed to reconsider the bill; if, after such reconsideration, three-fifths of the members elected to that house shall pass the bill, it shall be sent with the objections to the other house by which it shall likewise be reconsidered, and if it pass by three-fifths of the members elected to that house, it shall become a law * * * If any bill shall not be returned by the Governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he signed it, unless the General Assembly shall, by adjournment, prevent its return, in which case it shall not be a law * * *." The distinction between a bill and a law is carefully[***62] maintained throughout the aforegoing section; and the plain and clear provisions of the section make it morally certain that it has no application to a proposed Constitutional Amendment. This is the only provision in the organic law except section thirty of Article three, which confers upon the Governor authority to sign or veto a bill. If a proposal to amend the Constitution is not embraced by either of those sections, then Article 14 is unaffected by them; and as its terms do not include the Governor he has no power to approve or veto a measure propounded under it. The right which the Governor has to sign or to veto is strictly confined to bills which when signed, or if vetoed, when passed by the requisite vote over the veto, become laws. Hence, the test as to whether a particular measure adopted by the General Assembly is one which the Governor must sign to give it efficacy, is the fact that when signed it becomes, at once and in virtue of being signed, a law and thereupon ceases to be a bill. "Every bill * * * shall, before it becomes a law, be presented to the Governor, etc." If he sign it, it will become a law. If he does not approve it, and the two [***63]houses pass it by a three-fifths vote over his veto it will also become a law. Obviously, then, the measures which the Governor has the authority [**541] to sign or veto, are only such as when signed, or when passed over his veto become laws. A bill proposing an amendment to the [*115] Constitution and nothing more, would not become a law if signed by the Governor nor would it become a law if passed by three-fifths vote over his veto; because it is required to be submitted to the people for their adoption or rejection; and not until it shall appear that a majority of the votes cast at the polls on such proposed amendment are in favor thereof can the Governor proclaim that it has been "adopted by the people of Maryland as part of the Constitution." It is not operative unless adopted by the people--it is a mere proposal to amend until sanctioned by them; and when adopted by their votes it becomes, not a law in the sense in which that word is used in the Constitution, but a "part of the Constitution." To hold otherwise would lead to an anomalous situation, for if the bill proposing an amendment must be signed by the Governor before[***64] being submitted to a vote of the people, then the moment it is signed by him, it becomes, under sec. 17, Art. 2, a law with all the incidents and consequences which that term carries and conveys, notwithstanding the fact that it is wholly inoperative as a law or in any other way unless and until adopted by the people. 

   The people are the source of power. It is they who make and abrogate written constitutions, and when in the organic law which they have chosen for themselves they have designated the General Assembly, consisting of a Senate and a House of Delegates and nothing more, to be the agency for propounding amendments to the Constitution; no Executive has the right to step in between that agency and the people themselves and to say that without his approval they shall not be permitted to express their views on measures amendatory of the organic law. Unless the express language of the Constitution has unequivocally clothed the Governor with such an authority, in relation to proposed Constitutional Amendments, as is the case in Delaware, but in no other State, it cannot be borrowed from some other provision pertaining to a wholly different subject. Whilst[***65] the Governor is entrusted with power to protect the people against hasty legislation, he is not given a prerogative to guard them against themselves in [*116] the matter of amending the organic law. He is not superior to them. It is their will which he must obey--it is not his will which they must subserve.

   Article 14 is a separate and distinct sub-division of the Constitution. It deals, in its first section, exclusively with the process of amending the Constitution and has no relation whatever to legislation. The other provisions in other articles to which allusion has been made are confined to law making--this article is restricted to Constitution making; and the two subjects are widely disconnected in location and in substance.

   The fact that other amendments heretofore propounded have been submitted to and have been signed by the Governor is of no weight in translating the provisions of the Constitution. As already stated, prior to the Constitution of 1851, every amendment was made under Art. 59 of the Constitution of 1776 by an Act of Assembly which, under Art. 60, the Governor was obliged to sign. No amendments were made to the Constitution[***66] of 1851 but it was abrogated in 1864. The Constitution of 1864 was superseded by that of 1867. The first amendment of the latter was in 1874. Between the date of the last amendment of the Constitution of 1776 and the year 1874 no amendments had been adopted, and though the method of amending had in the interim undergone material changes, it was not at all strange that the practice of having the Governor sign the bill, as he had been required to do under the Constitution of 1776, should have been continued under the Constitution of 1867, especially as no question was ever raised in regard to the matter, and his signature, being a nugatory act, could do no harm.

   In every jurisdiction, where the right of the President of the United States and of the Governor of a State to sign or to veto a proposed constitutional amendment has been drawn in question, the Court's have, without a single exception, denied the existence of such a right. By the second paragraph of sec. 7, Art. 1, of the Federal Constitution it is provided that, "Every bill which shall have passed the House of Representatives [*117] and the Senate, shall, before it becomes a law, be presented to the President[***67] of the United States; if he approve he shall sign it," and the section continues in practically the same terms as those contained in sec. 17, Art. 2, of the Maryland Constitution. The concluding paragraph of sec. 7 is in these words: "Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." Art. 5 declares that "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, etc." The Third Congress proposed to the States the Eleventh Amendment on September 5th, 1794, and on the 8th of January, 1798, the President in a message to Congress declared that the amendment had been ratified. Annotated Con. 28. By the amendment it was provided that the "Judicial power of the United States shall not be construed to extend to any suit[***68] in law or equity, commenced or prosecuted against one of the United States by citizens of another [**542] State, or by citizens or subjects of any foreign state." In Hollingsworth v. Virginia, 3 Dall 378, the question arose whether the Eleventh Amendment destroyed the jurisdiction of the Federal Courts in cases to which it applied and which were pending at the time of its adoption. It was contended that the amendment had not been proposed in the form prescribed by the Constitution and was void. It appeared that it had never been submitted to the President for his approval, and it was argued that it was inoperative because the Constitution declares that "every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary * * * shall be presented to the President * * * and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be passed by two-thirds [*118] of the Senate and House of Representatives." The Attorney-General, Mr. Lee, was about to reply to this argument when he was interrupted by MR. JUSTICE CHASE with this statement; "There can surely be no necessity[***69] to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution." On the following day the Supreme Court delivered a unanimous judgment that the amendment had been constitutionally adopted.

   The Thirteenth Amendment to the Federal Constitution was by inadvertence submitted to the President, but when it was learned that this had been done a resolution was introduced in the Senate asserting that such presentation was improper and unnecessary and that it ought to be so declared in order that it might not thereafter be treated as a precedent. The late Mr. Reverdy Johnson strongly supported the resolution, which was adopted.

   The precise question we are now discussing has been decided adversely to the contention of the Governor, by the Supreme Court of Pennsylvania in Commonwealth, ex rel. Elkins v. Griest, 196 Pa. 396; s. c., 50 L.R.A. 868; by the Supreme Court of Louisiana in The State, ex rel. Morris v. Mason, 43 La. Ann. 590; in Nebraska in the case of Re Senate File 31, 25 Neb. 864.[***70] See also Green v. Weller, 32 Miss. 650; Koehler v. Hill, 60 Iowa 543; Hatch v. Stoneman, 66 Cal. 632; Jamison's Con. Conv., sec. 556 et seq.

   The Pennsylvania and Louisiana cases are elaborate, full and exceedingly able discussions of the subject. In both of those cases the proposed amendment had been submitted to the Governor and had been vetoed, but had not been passed over the veto; and yet in each a mandamus was ordered to issue requiring the publication of the measures. Under the Constitution of Pennsylvania provision is made in Art. 18 for proposing amendments to the organic law. In the course of its luminous judgment the Supreme Court of that State in 196 Penn. said: "It will be observed that the method of creating [*119] amendments to the Constitution is fully provided for by this article of the existing Constitution. It is a separate and independent article, standing alone and entirely unconnected with any other subject. Nor does it contain any reference to any other provision of the Constitution as being needed or to be used in carrying out the particular work to which the 18th Article is[***71] devoted. It is a system entirely complete in itself; requiring no extraneous aid either in matters of detail or of general scope, to its effectual execution. It is also necessary to bear in mind the character of the work for which it provides. It is Constitution making; it is a concentration of all the power of the people in establishing organic law for the Commonwealth; for it is provided by the article that, 'if such amendment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the Constitution.' It is not law making, which is a distinct and separate function, but it is a specific exercise of the power of a people to make its Constitution." The Court then proceeds to point out the successive steps which must be taken in originating and perfecting an amendment. We again quote: "These are the several stages in the proceedings to create an amendment. A proposal of the amendment in either house; an agreement to the same by both houses; a publication thereof by the Secretary of the Commonwealth; a second agreement by the two houses; a second publication by the Secretary; a vote of the people, which, if a majority vote[***72] favorably, causes the amendment to become a part of the Constitution. In the orderly and logical sequence of such preceding facts, it follows, with apparently an unanswerable certainty, that an amendment thus originated, proceeded with, and terminated, becomes an integral part of our State Constitution." These observations are strikingly apposite to the case at bar. By Article 14 of our Constitution the following, and no other, requirements must be complied with: A proposal of an amendment by the General Assembly in the form of a bill; its passage by three-fifths of all the members elected to each house by a yea and nay vote [*120] to be recorded on the journal; the entry of the proposed amendment on the journal; the publication of the bill by order of the Governor for an least three months before the next general election; a vote of the people, and if a majority of the votes cast thereon are favorable to its adoption, a proclamation by the Governor declaring the amendment to have been adopted, "and thenceforth said amendment or amendments shall be part of said Constitution." Not a word or a syllable is to be found in any of these provisions even [**543] suggesting that[***73] the Governor is entitled to participate, in any way, in formulating and proposing amendments to the Constitution.

   In the Louisiana case, supra, it was contended in behalf of the Secretary of State, who had refused to publish the proposed amendment, that he was not obliged to publish it because it had never acquired the force and effect of law, inasmuch as it had been vetoed by the Governor and had failed to pass over the veto. In dealing with that proposition MR. JUSTICE WATKINS said--and upon this point the Court was unanimous: "It may be at once conceded that the proposed amendment 'never acquired the force and effect of law, and never become operative as a law; not, however, because the measure represented by House Bill 214 did not receive the sanction and approval of the Executive; not because it failed to pass over the veto, as required by the Constitution and laws of this State, as the respondent returns, but because the 256th Article of the Constitution declares that a proposition for the amendment of the Constitution shall be submitted to the electors for their approval or rejection, and if a majority voting on said amendment, shall approve and ratify the same, [***74]then such amendment so approved and ratified shall constitute a part of the Constitution. The proposed amendment is a proposition merely, until approved and ratified by the votes of a majority of the electors of the State, cast at an election for representatives; and when so approved and ratified it constitutes--not a law--but a part of the Constitution. It is perfectly manifest, then, that neither the signature of the Governor [*121] approving the measure, nor the passage of the same by a two-thirds of the respective houses of the General Assembly could in any way affect it, in any manner or degree. Neither the one nor the other could give the proposition the force and effect of law." The Court then turned its attention to the contention that Art. 73 of the Louisiana Constitution, which combines the provisions contained in sec. 30, Art. 3, and sec. 17, Art. 2, of our Constitution, and that Art. 75, which is almost a literal transcript of the third paragraph of sec. 7, Art. 1, of the Federal Constitution, conferred upon the Executive the authority to veto the proposed amendment; and this is the summary way in which it disposed of the matter: "Each of these[***75] articles relates to the duties of the executive in respect to his approval or disapproval of ordinary 'Acts of State,' or resolves of the General Assembly in respect to their becoming operative and effective as laws without ratification by the electors. But Article 256 of the same organic law, under the heading 'Amendment and Revision of the Constitution,' confides to the Executive but one trust and imposes upon him but one duty. It says: "The result of said election--that is, the election at which a proposed constitutional amendment is submitted to the electors for their ratification or rejection--shall be made known by the proclamation of the Governor. This delegation of a single, specific duty in respect to such proposition would seem under ordinary rules of construction to exclude every other * * *. Our conclusion is that the signature of the Governor to the proposition for the amendment to the Constitution under discussion is not required by the Constitution, and that his disapproval of it did not affect its validity."

   We need not prolong this opinion by further citations from adjudged cases and we will now proceed to note and consider the second or subordinate inquiry [***76]which in the outset we stated would be dealt with later on. That inquiry is this: Does the second section of the franchise amendment bill contain distinct legislative provisions which to be effective require the signature of the Governor? A majority of us are of opinion [*122] that it does not: whilst all of us agree that the second section of the good roads amendment bill contains no provisions needing the Governor's approval.

   The second section of the franchise amendment bill is in these words: "And be it further enacted, That the foregoing section, hereby proposed as an amendment to the Constitution of this State, shall be, at the next general election for members of the General Assembly to be held in this State, submitted to the legal and qualified voters thereof for their adoption or rejection, in pursuance of the directions contained in Art. 14 of the Constitution, and at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall be written or printed the words, "For the Constitutional Amendment," or "Against the Constitutional Amendment," as the voters shall elect; and immediately after said election due returns[***77] shall be made to the Governor of the vote on said proposed amendment, as directed by the said 14th Article of the Constitution." Now, it cannot be pretended that the clause directing the amendment to be submitted to the legal and qualified voters of the State at the next general election for members of the General Assembly, is distinctively and essentially a legislative provision requiring the Governor's approval, because it is precisely what Art. 14 prescribes shall be done; and if the clause had been entirely omitted from the section the Constitutional mandate would have been operative, as it still is effective, in this particular. Nor is the requirement that the vote on the proposed amendment shall be by ballot a legislative enactment, because the Constitution itself in sec. 1, Art. 1, declares that "all elections shall be by ballot." The direction that immediately after the election, due returns shall be made to the Governor, is simply a repetition of the terms of Art. 14, under which identically the same thing would have been done if the section had been altogether silent on the subject. The [**544]phrase, "as the voters shall elect," refers, not to the remote but [***78]to the immediate antecedent--not to the "written or printed," but to the "For" or "Against"--because the voter has nothing to do with making the ballot, and, [*123] therefore, it is impossible for him to elect whether words shall be written or printed thereon. Hence, of necessity, the phrase must mean precisely that which is implied and included in the equally comprehensive provisions of the general law; unless it be assumed, either that the General Assembly purposely intended to mislead and confuse the voters by inserting a clause in conflict with the then existing general law; or, that the General Assembly obviously designed to repeal the then existing general law in this particular and to substitute a different provision in its stead. No middle or intermediate attitude exists. Either one or the other, or neither, of the two alternatives just indicated must be accepted. "Comity and a proper respect for a co-ordinate branch of the government." (Mayor, &c., v. Board, etc., 15 Md. 475), forbid the adoption of an hypothesis which imputes to the General Assembly such an unworthy motive as the first of the two alternatives includes; and that [***79]alternative must be rejected. There was obviously no intention to repeal the general law, because the General Assembly in passing the good roads amendment concurrently with the franchise amendment--they were both adopted by the house on March tenth, 1904--expressly invoked and reaffirmed the general law; and it cannot with propriety be said that as to one amendment the general law was to govern, whilst as to the other a totally different system was to prevail. The specific affirmance of the general law in the second section of the good roads amendment excludes the idea that the General Assembly designed to repeal that law by the second section of the franchise amendment, for it cannot be presumed there was an intention to have two different methods in operation at the same time. Neither alternative can, therefore, be invoked. As the voters shall elect they will vote for or against the amendment. This is what the phrase means and that is exactly in accord with what the Code prescribes. Sec. 56, Art. 33, Code of 1904 (Acts of 1896, ch. 202, sec. 51; 1901, ch. 2), enacts; "If at any election there be a constitutional question * * * to be submitted to the popular vote, the said[***80] question shall be placed upon said ballot [*124]in the form following: 'For Constitutional Amendment,' 'Against Constitutional Amendment,' * * * and said respective questions shall be placed in a column, as hereinbefore mentioned, so that the same shall form a parallelogram, or space where the voter may clearly indicate in the way hereinafter (?) pointed out" [in secs. 54 and 55, Code 1904] "whether he shall wish to cast his ballot for or against the Constitutional Amendment * * *." As the voter shall elect, and whether he shall wish, are equivalent terms or expressions. Secs. 54 and 55 declare: "Ballots shall be so printed as to give to each voter a clear opportunity to designate by a cross (X) in a square * * * at the right of each question * * * his answer to such questions." It is clear from this brief examination of some of the provisions of the general election laws that the phrase "as the voters shall elect" is identical in meaning and effect with the clause "whether he shall wish" just cited from the Code. Eliminating from the second section of the franchise amendment all the terms thus far considered, nothing remains but the direction contained[***81] in the words "and upon each ballot there shall be written or printed the words, 'For the Constitutional Amendment, or Against the Constitutional Amendment." Do these words, which we have italicized, embody such an unquestionable legislative enactment as to be inoperative without the Governor's approval; and do they defeat, by reason of the absence of that approval, the design of the General Assembly with respect to submitting the proposed amendment to the vote of the people? A majority of this Court answer that inquiry in the negative, and they thus answer it for the following reasons.

   The departure, or apparent departure, in section two of the proposed franchise amendment, from the requirements of the general election law, is found in the words "written or," and in the word "the" between "For" and "Constitutional," and the same word "the" between "Against" and "Constitutional," and finally in the word "or" between "Amendment" and "Against." "Upon each ballot there shall be written or [*125] printed the words, etc." This is in the alternative. The language of sec. 56, Art. 33, Code 1904, which is a transcript of part of sec. 51, Art. 33, [***82]  Sup. to Code (Act of 1896, ch. 202, and Act of 1901, ch. 2), is, "the said question shall be placed upon said ballot in the form following, etc." If written there it would be placed there; and if printed there it would be placed there. As the direction that there shall be written or printed on the ballot the words indicated, is in the alternative, the designated words cannot be both written and printed; and as in every instance in which since the adoption of the Act of 1896, ch. 202, and the prior Act of 1890, ch. 538, an amendment has been submitted and adopted, the question has been placed on the ballot by being printed thereon, notwithstanding the second sections of the various bills proposing amendments, contained the words "written or printed," (1890, ch. 194; 1890, ch. 195; 1890, ch. 242; 1892, ch. 313; 1900, ch. 185; 1900, ch. 432; 1900, ch. 469), it may be regarded as settled that the alternative method of placing the amendment on the ballot by printing is the appropriate [**545] one to follow; especially in view of the requirements of sec. 54 and sec. 55, Art. 33, Code of 1904, to the effect[***83] that "a constitutional amendment * * * shall be printed in a separate column to follow immediately after the names of the candidates."

   Surely the article "the" where it occurs in the phrases "For the Constitutional Amendment" and "Against the Constitutional Amendment," when the terms used in the general law are "For Constitutional Amendment," "Against Constitutional Amendment," can not be said to import such a distinct and obvious feature of legislation as to require the signature of the Governor to give the measure validity. The term "For the Constitutional Amendment" is identical with the term "For Constitutional Amendment." The disjunctive "or" where it occurs between the phrases "For the Constitutional Amendment" or "Against the Constitutional Amendment," simply means and--that is to say, both terms must be printed on the ballot. Prescinding from section two of the franchise amendment the provisions which the Constitution itself supplies; and [*126] finding that there is in the remaining requirements of the section nothing that is not in accord and complete harmony with existing enactments contained in the Code, both now, and at the time[***84] the General Assembly proposed the amendments; there is, in reality, embodied in that second section nothing whatever which requires the signature or approval of the Governor; and the fact that he did not sign the bills cannot deprive the people of the right to vote for or against the proposed amendments.

   Section two of the good roads amendment bill is in the following language: "And be it further enacted by the authority aforesaid, that the aforegoing section hereby proposed as an amendment to the Constitution shall be, at the next general election held in this State, submitted to the legal and qualified voters thereof for their adoption or rejection, in pursuance of the directions contained in Article 14 of the Constitution of this State, and at the said general election the vote on said proposed amendment to the Constitution shall be by ballot, and upon each ballot shall be printed the words: "For Constitutional Amendment" and "Against Constitutional Amendment," as now prescribed by law, and immediately after said election due return shall be made to the Governor, of the vote for and against said proposed Amendment as directed by said fourteenth Article of the Constitution." This[***85] phraseology is slightly different from that used in the other bill, but the legal import of it is the same. The two are substantially similar.

   There is another view of the subject which was discussed at the Bar and is considered in the briefs. And it is this: Article 14 not only gives the General Assembly, as defined in sec. 1, Art. 3, heretofore quoted, the sole and exclusive authority to propose amendments to the Constitution, but it further, and in equally emphatic terms, declares that the proposed "amendments shall be submitted in a form to be prescribed by the General Assembly." Obviously this means, according to the contention of the appellee, that the same body which may propose amendments may also prescribe the form, that is the [*127] method, in which they shall be submitted; and section two of the franchise amendment does nothing more than prescribe a form for the submission of the amendment to the vote of the people. But as the conclusion we have reached on the other branch of this feature of the controversy is decisive of the case, we do not deem it necessary to pass upon the contention last alluded to. We may add this observation, that had section two[***86] been wholly omitted, or if it were now stricken out, the Code would supply all the details and machinery needed to place the amendment on the official ballot at the next general election.

   The conclusions we have reached are: First, that a proposal to amend the Constitution, pure and simple, does not need the approval of the Governor and that he has no authority to veto it. To this we all agree. Secondly, the majority of us hold that there is nothing in the second section of the franchise amendment requiring the Governor's approval. Thirdly, that the second section of the good roads amendment contains nothing needing the Governor's sanction. To this we all agree. Fourthly, that the order appealed against must be affirmed and that the mandamus must issue as prayed.

   Order affirmed with costs above and below.

DISSENTBY: BOYD

DISSENT: BOYD, J., dissented and delivered the following opinion in which PEARCE and SCHMUCKER, JJ. concurred.

   The opinion filed in this case by the Chief Judge relieves me of the necessity of discussing what is therein spoken of as "The primary and fundamental question," not only because I cannot add anything of importance to that very able opinion, but as the members[***87] of the Court are unanimous on that branch of the case, it would be useless to do so. As the decision of the majority settles the question concerning which some of us differed, as effectually as if the Court had been unanimous as to that, I would not do more than note my dissent, did I not deem it proper to state more fully and distinctly [*128] the points on which we differed, and my reasons for the conclusion I reached.

   What is called the "subordinate" inquiry is thus stated in that opinion: "Does the second section of the franchise amendment bill contain distinct legislative provisions which, to be effective, require the signature of the Governor?" While I may not confine myself strictly to an answer to that inquiry, it is sufficiently comprehensive to indicate the main point upon which we differed. Of course I assume that the Chief Judge, in the above inquiry, intended to include the [**546] other ways provided by the Constitution, by which a law may be enacted by the Legislature without the signature of the Governor--passing it over his veto, or by the Governor's failure to act within the time prescribed--as elsewhere referred to in his opinion. I do not understand any[***88] one to deny that if a bill of the General Assembly proposing an amendment to the Constitution contains provisions which can fairly be said to be legislation, such provisions cannot be effective unless submitted to the Governor. All of the authorities on the subject that I am aware of concur in that view, unless, of course, there be some special provision in a constitution that would make it unnecessary, but any controversy about it has usually arisen from the difference of opinions as to whether certain provisions amount to legislation.

   The title to this bill in question is "An Act to amend section 1 of Article 1 of the Constitution of this State, and to provide for the submission of said amendment to the qualified voters of this State for adoption or rejection." The latter part was intended to follow the provisions of section 1 of Art. 14 of the Constitution which says "the bill, or bills, proposing amendment, or amendments, shall be published by order of the Governor * * * once a week for at least three months preceding the next ensuing general election, at which the said proposed amendment, or amendments, shall be submitted, in a form to be prescribed by the General Assembly, [***89]  to the qualified voters of the State for adoption or rejection." In section 2 of this bill it is provided that the proposed [*129]amendment be submitted at the next general election for members of the General Assembly and "at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall be written or printed the words 'For the Constitutional Amendment,' or 'Against the Constitutional Amendment,' as the voters shall elect," (italics are mine). This bill passed the Senate on March 3rd and the House on March 10th, 1904. The other bill before us, known as the "Public Roads Amendment" passed the Senate on March 2nd and the House on March 10th, and in sec. 2 of that Act it was provided that the vote shall be by ballot," "and upon each ballot shall be printed the words, 'For Constitutional Amendment,' and 'Against Constitutional Amendment,' as now prescribed by law." It is impossible for me to understand how it can be said that the language thus used in these two bills is substantially similar. When the members of the Senate on two successive days (March 2 and 3) and the members of the House on the same day (March 10) solemnly[***90] enacted that in the one case there shall be written or printed upon each ballot "'For the Constitutional Amendment,' or 'Against the Constitutional Amendment,' as the voters shall elect," and in the other there shall be printed upon each ballot "For Constitutional Amendment" and "Against Constitutional Amendment as now prescribed by law," they certainly did not prescribe the same form for submitting these amendments, if plain, unambiguous language is to be given its ordinary meaning. To say that one of two expressions shall be written or printed on each ballot, is the same thing as saying that both shall be printed on each ballot, would seem to be going very far under any circumstances, but the general laws of this State, relating to elections, show that the distinction is not one of mere words, but is regarded as one of substance and of great importance. Prior to the adoption in this State of what was called "The Australian Ballot," it was lawful to have on the ballot the names of candidates voted for, and the affirmative or negative vote on a constitutional amendment or other question submitted, either written or printed. A change was made[***91] by ch. [*130] 538, p 614, of Laws of 1890, applicable to Baltimore City and all but nine counties. By sec. 137 of that Act it was provided that "whenever a constitutional amendment or other question is submitted to the vote of the people, such question shall be printed upon the ballot after the list of candidates, with the words 'For' or 'Against' as each political party may determine." The cross-mark (X) was then adopted as the means of indicating the voter's choice. By ch. 236 of Laws of 1892 that law was made applicable to the whole State, and sec. 137 was amended, providing amongst other things that constitutional amendments should be placed in a column to the right of the ticket, with two boxes or squares placed in the margin, in the upper of which "shall be printed the word 'For' and in the lower of said squares or boxes the word 'Against.'" The Act of 1896, ch. 202, was then passed, making many changes, which was from time to time amended, and the general law now in force has various provisions, some of which I will refer to.

   Sec. 53 of Art. 33 of Code (1904) requires the Board of Supervisors of Elections of each county and of the city of Baltimore to provide[***92] ballots, and amongst other provisions it says "Each ballot shall contain a statement of every constitutional amendment or other question to be submitted to the vote of the people at any election. Ballots other than those printed by the respective boards of supervisors of elections, according to the provisions of this article, shall not be cast or counted in any election, except as hereinafter provided. Nothing in this article contained shall prevent any voter from writing on his ballot and marking in the proper place the name of any person other then those already printed for whom he may desire to vote for any office, and such votes shall be counted the same as if the name of such person had been printed upon the ballot and marked by the voter."

   Section 54, applicable to Baltimore City and twelve of the [**547] counties, provides that "A constitutional amendment, or any question to be submitted to the popular vote, shall be printed in a separate column, to follow immediately after the names of [*131] candidates," and sec. 55, applicable to the other counties, that it "shall be printed in the same column with the names of the candidates." Section[***93] 56 requires "For Constitutional Amendment" and "Against Constitutional Amendment" to be placed on the ballot "so that the same shall form a parallelogram or space where the voter may clearly indicate, in the way hereinafter pointed out, whether he shall wish to cast his ballot for or against the constitutional amendment." Section 66 provides that the voter shall mark, with an indelible pencil, "in the appropriate space, a cross-mark (X) against the answer which he desires to give," and sec. 71 that "If the voter has marked more names than there are persons to be elected to an office, or if there shall be any mark on the ballot other than the cross-mark in the square opposite to the name of a candidate, or other than the name or names of any candidate written by the voter on the ballot, as provided in sec. 53, his ballot shall not be counted."

   Without referring to other provisions, it will be seen from the above that the election laws of this State require official ballots to be furnished, on which shall be printed the names of candidates and Constitutional Amendments and other questions to be submitted, and that they shall be so prepared as to enable the voter to place[***94] a cross-mark in the space or square opposite the names of candidates and opposite the "For" or "Against" the Constitutional Amendment, as he may elect. The only writing permitted is the name or names of some person or persons other than those printed on the ballot, and, with that exception, any mark other than the cross-mark requires the ballot to be rejected, as is expressly stated in the statute, and held by this Court in Duvall v. Miller, 94 Md. 697, and Coulehan v. White, 95 Md. 703. This bill does not authorize placing on the ballot "For the Constitutional Amendment" and "Against the Constitutional Amendment," but only the one or the other, "as the voter shall elect," and it authorizes that one to be written or printed, while the general law invalidates the whole ballot if either be written on it. As the proposed "Public Roads Amendment" provides that it shall be submitted [*132] "as now prescribed by law"--that is to say, under the General Laws--and we have seen how utterly at variance those laws are with the form proposed by this bill, in some of the most material provisions, I am unable to agree[***95] with the majority that "the two are substantially similar." One in effect says that one may be written or printed, the other that the two shall be printed and if either is written the ballot shall be void. Can provisions affecting ballots well be more dissimilar in their results? It seems therefore to me that the two houses of the General Assembly not only did not use language that authorizes the construction of the majority, but it must in justice to the members of the General Assembly be assumed that they did not intend this bill to be submitted on the ballot prepared under the general laws, unless they also intended to repeal the general laws, in so far as they conflicted with this bill. That they could not do that without submitting it to the Governor, and having his approval or what the Constitution makes equivalent to that, seems to me to be beyond all possible doubt, and indeed I do not understand the majority of the Court to hold the contrary. For conceding that the two houses of the General Assembly have the power to prescribe the "form" in which a proposed amendment shall be submitted, surely it cannot be said that they can so far change the General[***96] Laws as to authorize placing on the ballots provided for by those laws anything directly contrary to their provisions, without either obtaining the approval of the Governor for such change, or passing the bill over his veto. In short, a law can only be repealed by a law, and the two houses of the General Assembly themselves admittedly cannot pass a law, but must submit it to the Governor.

   The title to this bill quoted above referred to the Act as one to amend sec. 1 of Art. 1 of the Constitution, "and to provide for the submission of the said amendment to the qualified voters of this State for adoption or rejection," and the title to the other bill before us is only "An Act to amend section thirty-four of Article three of the Constitution of this State." The latter seems to be the form of title usually [*133] adopted in this State, for out of the seven Acts submitting amendments referred to in the majority opinion, only one of them (1900, ch. 185), used the form adopted in the elective franchise bill. Whether there was any special reason for the difference I do not know, but certain it is that this title gave special notice to the members of the General Assembly[***97] that the bill not only proposed to amend this section of the Constitution, but to provide for the submission of it to the voters, and when it did provide that "upon each ballot there shall be written or printed the words 'For the Constitutional Amendment,' or 'Against the Constitutional Amendment,' as the voters shall elect," upon what authority can this Court strike out the words "written or?" If the bill had been submitted to the Governor, and he had approved it, could a ballot have been thrown out because a voter wrote "For the Constitutional Amendment" or "Against" it, instead of relying on a cross-mark? Upon what grounds could it have been done? The theory of the appellee is that the two houses of the General Assembly, by virtue of Art. 14 of the Constitution, have the power to propose an amendment and to submit it "in a form to be prescribed by the General Assembly." As they said the choice of the voter [**548] could be written or printed, if the Governor had approved the Act it would have been to that extent a repeal of the provisions of the General Laws, prohibiting writing the voter's choice on the ballot to be provided at the next November election,[***98] and I can see no reason why it would then have invalidated a ballot to have thus written the voter's choice on the question. But in order to do that it required legislation--the action of the Legislature and Governor--and that is precisely what this part of sec. 2 of this bill was apparently intended to be when it was passed.

    The majority of the Court eliminate the words "written or," as indeed they were required to be in order to place the interpretation on the bill given it by them. Of course after that is done, the words "as the voters shall elect" can well be confined to the "For" or "Against,"--but if the words used by the General Assembly--"written or printed"--are given any [*134] consideration, the voter not only had the right to elect which he would vote for, but also which of the two ways he would vote, as the General Assembly had authorized him to do. The form of this bill, especially when taken in connection with the universal practice of submitting bills proposing amendments to the Governor, which had prevailed since the adoption of the present Constitution, makes it reasonably certain that it was intended to submit this to the Governor when it was introduced, [***99] and when it was passed, and, although I agree with the rest of the Court that it was not necessary to do that in order to submit the proposed amendment to the people, still when it was determined not to send the bill to the Governor, it should have been put in such shape as the two houses of the General Assembly were authorized to adopt. The Public Roads Amendment was so drawn as to have it submitted under the General Laws and if such was the intention of the General Assembly, this bill could likewise have been so submitted, but they did not follow that plan. Of course none of us supposed that the use of the article "the"--"For the Constitutional Amendment," etc.,--could affect the question, but I am not prepared to agree with the majority when they say "or" means "and" in the connection in which it is used, although I do not deem it necessary to say more on that subject.

   It was argued with great force by the attorneys for the appellee that inasmuch as the Constitution provides that a proposed amendment is to be submitted "in a form to be prescribed by the General Assembly," the same body which can propose amendments can also prescribe the "form." The majority opinion does[***100] not base its conclusions on that ground and it seems to me that it is clear that this bill cannot be sustained on that theory. For conceding that to be authorized by the Constitution, still if the General Assembly adopts a "form" which cannot be used on the ballots provided for under the General Laws, without repealing the provisions of those laws applicable to those ballots, there must be legislation to enable that to be done. Under the existing General Laws, as we [*135] have seen, there can be no writing on the ballot, excepting such as we have indicated, and if any voter does put any other writing on his ballot it would invalidate the whole ballot. Surely the framers of the Constitution never intended to give the two houses of the General Assembly such power as that. The officers of election appointed under the general laws are sworn to support those laws, and could not count a ballot which had any writing on it not authorized by law. When I speak of repealing the provisions of the general laws, I do not mean to repeal them absolutely, so that they can no longer be of effect, but only in so far as necessary to make the changes on the ballot to be used at the election at[***101] which such amendment is to be submitted.

   If it be conceded that the provision of the Constitution above mentioned would authorize the General Assembly to provide that the amendment be submitted on separate ballots, that would not meet the difficulty, for no machinery has been provided for such submission--neither ballots, ballot-boxes, nor officers of election are provided for at the election to be held in November next, excepting such as the General Laws authorize, and of course the ballots and the ballot-boxes must be such as those laws authorize and the election of officers appointed under those laws must be governed by them and not by a bill in conflict with them which did not become a law. Or if it be conceded that sec. 2 might have been omitted altogether (which would be going quite far) and that the General Laws would then determine the method of submitting the proposed amendment, the simple answer to that is that the General Assembly did not see proper to adopt that plan, but on the contrary did include sec. 2 and did undertake to prescribe a different form in which this amendment should be submitted. And having passed sec. 2 with sec. 1, I cannot understand how this [***102]Court can reject that, or, as suggested in the majority opinion, strike it out, with any more propriety than it could sec. 1. As the Constitution provides that the proposed amendment shall be submitted "in a form to be prescribed by the General Assembly," and as the General Assembly did [*136] attempt to prescribe the form, it does seem to me that this Court is getting on dangerous ground when it says, as it in effect does by the decision in this case, that although the Constitution says that the General Assembly (not the Court) shall prescribe the form, still as it has prescribed one which cannot be carried out under existing laws, this [**549] amendment can be submitted in a form different from that the General Assembly prescribed. With great respect for the opinion of those that differ with me it does seem to me that such course results in not only submitting a proposed amendment without the action of the Governor, but in so far as the method of submitting it, without the authority of the General Assembly, or to speak more accurately, contrary to its intention, plainly expressed.

   I cannot be influenced by the argument that the form used in this bill is the same[***103] as that generally heretofore adopted in submitting proposed amendments to the Constitution--even since the present election laws have been in force. For, as I have already said, every one of them had the signature of the Governor attached, and thereby removed all questions as to whether the bills proposing those amendments embraced legislation, for, if they did, they were adopted in accordance with the constitutional provisions which must be followed in order to enact laws. They could therefore be construed to authorize the change of the General Laws to the extent necessary to place such forms on the ballot prepared under the General Laws. But beyond that, no question was raised in the Courts as to them, and the question was therefore never passed on. If some voter had written "For" or "Against the Constitutional Amendment" as he elected, on the ballot, and the question had been raised whether that was valid, or whether it invalidated his ballot, the Courts could have been called on to determine it, but as no such question was ever raised, so far as I am aware, it has never been heretofore decided.

   The form used in this and other bills seems to have been taken from the provision in[***104] the Constitution of 1867, submitting it to the people. It was there said "At the said election [*137] the vote shall be by ballot, and upon each ballot there shall be written or printed the words 'For the Constitution' or 'Against the Constitution,' as the voter may elect." At that time, and for over twenty years afterwards, there was no official ballot provided, and the voter could cast a ballot upon which there was either written or printed his choice as to candidates and questions submitted. No one can doubt that the framers of the Constitution meant what they said, when they provided that when the Constitution was voted on, there should be written or printed the words "For the Constitution" or "Against the Constitution,' as the voter may elect," and when the General Assembly said in this bill "written or printed' why should we say they only meant printed? Surely we are not authorized to reach that conclusion merely because they have not provided the means for using the "written"--especially as it is perfectly manifest that when they passed the bill they expected to submit it to the Governor and thus authorize the choice of the voter to be either written[***105] or printed.

   It is scarcely necessary to add that the action of the General Assembly is not self-executing. The case of Munroe v. Wells, 83 Md. 505, would seem to settle that question. There the election of Clerk of the Circuit Court was contested, and decided against Dr. Wells by the House of Delegates, which under sec. 12 of Art. 4 of the Constitution heard the contest, and, having determined it against him, ordered a new election within thirty days, as required by that section. But inasmuch as the new election law had repealed the former one, in such way as to make it "absolutely inoperative for any purposes whatever," and as the former election officers did not hold over, and the new officers did not go into office until after the time fixed for the special election, there was no machinery by which it could be held, and we said "That the order of the House of Delegates, although in accordance with the Constitution, was not self-executing, but required affirmative legislation in order to be carried out, since the special election could not be held without registration, supervisors, judges or ballot-boxes provided for by a statute in force." The result [*138] [***106]was there could be no special election as required by the Constitution, because the machinery for holding it had not been provided. So in this case, as the General Assembly has attempted to submit this amendment in a way that in my opinion could not be done under our existing election laws, and did not provide the machinery for submitting it in the form prescribed by them, I thought it could not be submitted. For these reasons I was unable to agree with the majority of the Court as to the effect of sec. 2 of this bill.

   I am authorized to say that Judges PEARCE and SCHMUCKER concur in this opinion. 

WILLIAM H. RULLMAN ET AL. vs. GEORGE WINTERLING ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
101 Md. 35; 60 A. 468; 1905 Md. LEXIS 63

 March  22, 1905, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Decree reversed and cause remanded, the costs to be paid out of proceeds of sale of the real estate.

CORE TERMS:  widow, real estate, decree, life estate, deceased, repay, loaned, promised, deed, proceeds of sale, dwelling-house, appropriation, conversation, reimburse, reserving, consented, testator, mortgage, dollars, built, heirs, rents

COUNSEL: James R. Brashears, for the appellants.
 
Daniel R. Randall, for the appellees.

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

OPINIONBY: BRISCOE

OPINION: [**468] [*35] BRISCOE, J., delivered the opinion of the Court.

   This is a creditors bill, filed in the Circuit Court for Anne Arundel County by the appellees against the appellants to procure a sale of the real estate of Frederick Rullman, deceased, for the purpose of paying his creditors; the personal estate being insufficient to discharge the debts against the estate.

   The real estate consists of a tract of land containing five and one-half acres, improved by a dwelling-house and five [*36] small frame tenement houses, and situate near the city of Annapolis in the Second Election District of Anne Arundel County, and represented to be worth about $3,500.

   The defendant, Adeline W. Rullman, the widow, holds a life estate in the property under and by virtue of a deed dated the 27th of March, [***2] and under a will dated the 7th day of September, 1882, in which the grantor and testator conveyed and devised the lot of land described in these proceedings to his wife during her life, she to receive the rents and emoluments arising from the property.

   The plaintiffs below, and appellees here, are judgment creditors and Mrs. Rullman, the widow, who claims to be a creditor of the estate to the extent of fifteen hundred dollars.

   The defendants below and the appellants here are Mr. Robert L. Werntz, a mortgagee to the extent of six hundred and fifty dollars, and the heirs at law of the deceased.

   The prayer of the bill, in addition to one for general relief, is that the real estate of Frederick Rullman, or so much thereof as may be necessary for the purpose, be sold for the payment of the claims of the unsatisfied creditors of his estate.

   There is no objection urged to the granting of a decree for the sale of the property as thus prayed by the bill.

   Now, it is admitted that the mortgage and judgment claims filed herein are proper debts to be allowed against the estate, so this brings us to the consideration of the claim set up by the widow, Mrs. Rullman, which appears to be the only[***3] matter in dispute and controversy in the case.

   This claim, as set out in the record, appears to be made up of the following items:

   The estate of Frederick Rullman To Adeline W. Rullman

For sums of money advanced by her for the construction of
  dwelling and out houses in Second District, under promise of
  repayment by deceased                                               $ 902 80
For sums of money advanced by her for repairs to property of
  the deceased in the Second District, under agreement to repay.         75 00
For money due her from rents, issues and profits of real estate
  under deed of March 27th, 1882                                        522 20
                                                                     $ 1500 00

 

   [*37] It will be seen that the contention of Mrs. Rullman for the allowance of her claim is based upon the allegation contained in her answer to the bill, that after the date of the deed to her she advanced out of her own money and loaned to her husband, under a promise on his part to repay, various sums of money to be used by him for the construction of buildings and repairing the houses on the lot of ground mentioned in these proceedings; that she also loaned him a further sum, towit the sum of $522.20, upon a similar promise to repay or to secure to her, collected[***4] by him from her rents derived from her property.

   The law is well settled in this State beyond any controversy that a wife may become a creditor of her husband, but to establish the relation of debtor and creditor between them growing out of the appropriation [**469] by the husband of the wife's money, being her separate estate, where the receipt and appropriation are with her knowledge and consent, there must be an agreement or promise on his part to repay the money.

   In this case we think that it is clear from the proof contained in the record that the sum of $855.21 was paid by the wife for the construction of the dwelling on the lot in question and it was a loan from the wife to the husband and that he promised to repay it.

   The witness Lloyd, testified, that he was present during a conversation between Mr. and Mrs. Rullman when the former said to the latter, "if you will build the house on the farm, then I will guarantee to secure you for the money." He also testified, that in a conversation between Mr. Rullman and Capt. Saunders, the former said, "what would have been the use of us spending any more money in extra lots when we have plenty of ground, I will secure her by [***5]a mortgage or any way she wants, the ground is worth the money." He also testified, that subsequently he built the house according to the contract, entered into in the presence of and with the consent of Mr. Rullman.

   There was other testimony to the effect that the dwelling-house was built with the wife's money and that the husband [*38] promised at the time to reimburse and to secure her for the outlay.

   The proof as to this portion of the wife's claim is amply sufficient we think, for a Court of equity to grant the relief asked by the bill. It will however be denied as to remaining portion of her claim, as not established by the evidence in the case.

   It does not appear that the rights of creditors will be at all affected by the conclusion reached by us as to this claim. On the contrary, it is admitted that the property will sell for a sufficient sum to reimburse all the creditors. The controversy here involved being confined to the wife's claim, and the rights of the heirs at law of the deceased.

   It appears, however, by the decree of the Circuit Court for Anne Arundel County, that only the reversionary estate of Frederick Rullman, deceased, in the real estate mentioned in[***6] the proceedings was decreed to be sold, whereas the widow and life tenant, consented that the real estate should be sold clear of her claims under the deed and will, and as widow of the testator, reserving the value in cash of her interest in the property in lieu of her interest as widow, and under the deed. Inasmuch, then, as it may be to the interest of all persons interested, that the property be sold, in its entirety, free and clear of the widow's interest and claim, we shall reverse the decree appealed from and remand the cause for a new decree, according to the right of the parties, as indicated by this opinion.

   Decree reversed and cause remanded, the costs to be paid out of proceeds of sale of the real estate. 

THE COUNTY COMMISSIONERS OF ALLEGANY COUNTY vs. EDWINWARFIELD, GOVERNOR OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
100 Md. 516; 60 A. 599; 1905 Md. LEXIS 47

 March  21, 1905, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL and THOMAS, JJ.)

DISPOSITION: Order affirmed, with costs to the appellee.

CORE TERMS:  signature, erased, clerk, misapprehension, approving, gone, inadvertence, admissible, approve, prayer, oral testimony, signing, recorded, sealed, asking

COUNSEL: James W. Owens and Albert A. Doub, for the appellant.
 
The Court declined to hear William S. Bryan, Jr., Attorney-General, for the appellee.

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

OPINIONBY: FOWLER

OPINION: [**600] [*517] FOWLER, J., delivered the opinion of the Court.

   The County Commissioners of Allegany County filed a petition in the Circuit Court for Anne Arundel County against the Governor of Maryland asking for a writ of mandamus to compel him to forward to the Clerk of this Court a certain statute which they allege was duly passed by both Houses of the General Assembly and approved by the Governor by signing the same as required by the Constitution. They also allege that this statute was duly signed by the President of the Senate and the Speaker of the House of Delegates after the Governor had duly signed and approved the same. The petition was answered by the defendant. No question arises upon the pleadings. The sole question presented is whether when the Governor of Maryland signs[***2] a "bill by inadvertence and under a misapprehension as to what the paper is and without having [*518]gone through the mental operation of approving said bill and having immediately thereafter erased his signature, can be said to have indicated and expressed his approval as required by sec. 30 of Art. 3 of the Constitution of Maryland?

   The section just referred to provides that "Every bill when passed by the General Assembly and sealed with the Great Seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates. Every law shall be recorded in the office of the Clerk of the Court of Appeals, and in due time be printed, published and certified under the Great Seal, to the several Courts, in the same manner as has been heretofore usual in this State."

   The case was tried before the Circuit Court for Anne Arundel County without a jury. During the trial two exceptions were taken to the rulings of the Court, one of them relating to the admissibility of testimony and the other to the rejection of the plaintiffs prayer. The result of these rulings was that [***3]the petition was dismissed with costs and the plaintiff has appealed.

   First Exception.--The plaintiff having offered testimony showing that the bill in question was duly passed by the General Assemby and presented to the Governor and that he signed the same on the 12th day of April, 1904, in the presence of the presiding officers and chief clerks of the Senate and House of Delegates, the defendant offered to prove by the oral testimony of the Governor "that he signed the bill which is the subject of this proceeding by inadvertence and under a misapprehension as to what the paper being signed was, and without ever having gone through the mental operation of approving said bill, and that he immediately thereafter erased his name from the bill."

   It should be stated in the first place that this objection assumes that this is not a case in which the Governor has intentionally signed a bill and thereafter changes his mind, but the objection of the plaintiff to this offer of the defendant is upon the theory that assuming that the intention to sign never existed and that the Governor when he wrote his name upon [*519] that bill did not intend to sign it, but[***4] some other paper, still it is contended the testimony set forth in the offer is inadmissible.

   In our opinion the testimony is clearly admissible not only to show the real intent with which the Governor wrote his signature, but also to show as necessary result of his failure to approve that the bill in question had no legal existence.

   What other or better testimony could have been offered than that of the Governor himself to show the intent with which he signed his name? Certainly such testimony would be admissible in the ordinary transactions of life, and unless we are prepared to say that the signature alone is conclusive proof of approval, we must admit the testimony. For from the nature of the case, the Governor, and he alone could say whether he had gone through the mental process of approving the bill. But this testimony is admissible not only because it was the best evidence that could be offered of a want of approval, but also because it was not an offer of parol testimony to alter, change, vary or modify the language of a law. On the contrary its effect was to show that the law never had any existence in the absence of the Governor's approval.

   Second Exception.--At[***5] the close of the case the plaintiff offered a prayer asking the Court to declare, as matter of law, that if the bill in question had been duly passed by both Houses of the General Assembly and was duly presented to the Governor and signed by him in the presence of the proper officers, such signature was conclusive, and the bill thereby became a law of the State of Maryland, in spite of the facts and conceding the facts, first, that the Governor signed the bill by inadvertence, under a misapprehension as to what the paper being signed was and without ever having gone through the mental operation of approving said bill; second, that the Governor erased his signature from said bill after having so signed the same, and before said bill left [**601]the Executive Chamber in which bills were being signed.

   Of course there may be cases where a bill has been approved by mistake or misapprehension, and the point of time beyond [*520] which such mistake may be corrected by the Governor has passed. But this, as we have seen is not such a case. It is conceded here by the plaintiffs under their contention in the first exception, that the Governor erased his signature immediately[***6] after writing it, and under the second exception that the signature was erased before the bill left the Executive Chamber.

   We are not able to agree with the contention of the plaintiff that the bill, under the testimony in this case had ever passed beyond the control or out of the custody of the Governor after he signed it. It was still in the Executive Chamber as set forth in the prayer, or as stated in the testimony, in the hands of the Secretary of State. Neither the Constitution nor the law provides for or contemplates any possession of a bill after it is signed by the Governor other than his, until he causes it to be sent to the Clerk of the Court of Appeals for record, as provided by sec. 30, Art. 3 of the Constitution.

   We, therefore, have no difficulty whatever under the facts of this case in holding, that the Governor never did approve the bill as contemplated by the Constitution, and that the placing of his signature to the bill was absolutely null and void, in so far as it affords any evidence of his approval thereof.

   This is as far as we need go in order to dispose of this case, and it follows that the order appealed from will be affirmed.

   Order affirmed, with [***7]  costs to the appellee. 

JANE A. THOMPSON ET AL. vs. WILLIAM G. WILLIAMS ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
100 Md. 195; 60 A. 26; 1905 Md. LEXIS 31

 January  13, 1905, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (THOMAS, J.)

DISPOSITION: Decree affirmed with costs above and below.

CORE TERMS:  dollars, deed, mortgage, daughter, conveyance, grantee, decree, grantor, conveyed, three hundred, personam, indicia, acres of land, indebted, acre, real estate, indebtedness, seventy-five, loaned, moral delinquency, promissory note, probative value, express trust, total amount, secret trust, bona fide, sixty-three, appearance, omission, assailed

COUNSEL: James M. Munroe, for the appellants.
 
Robert Moss, for the appellees.

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

OPINIONBY: MCSHERRY

OPINION: [**26] [*196] MCSHERRY, C. J., delivered the opinion of the Court.

   This appeal is from a decree of the Circuit Court for Anne Arundel County. By that decree, dated on the 7th day of July, 1904, a bill of complaint filed by the appellants was dismissed and the relief sought thereunder was denied. The proceedings were instituted to procure the annulment of a deed executed on the 3rd day of August, 1900, by Dr. William G. Williams and his wife, Matilda D. Williams, and which conveyed to their daughter, Carrie G. Williams, about four hundred and sixty acres of land. The grantors and the grantee are the defendants in the suit. It was alleged that the deed was fraudulent and void as against the complaining creditor and that the consideration was pretended and not real. It appears that in February, 1884, the above-named grantors being indebted to William H. Thompson in the sum of[***2] two thousand dollars secured the payment thereof by mortgage upon two hundred and seventy-five acres of land other than that conveyed to their daughter; and that after the death of Thompson, the mortgagee, the executrices of [**27] his estate, sold the mortgaged property under a power of sale contained in the mortgage, for eleven hundred dollars, and on the 21st of February, 1901, procured a decree in personam against the mortgagors for the sum of fourteen hundred and thirteen dollars, the amount of the deficiency after crediting the net proceeds of sale upon the mortgage indebtedness. This decree in personam was entered up after the date of the conveyance to Carrie G. Williams, and it is that indebtedness which the plaintiffs aver the deed was intended to prevent the creditor from collecting.

   The deed which is assailed purports to be founded on a consideration of one thousand dollars and love and affection. In point of fact there was a money consideration of three thousand three hundred and sixty-three dollars and sixty cents to support it. The undisputed testimony adduced by the plaintiffs themselves quite satisfactorily establishes the following state of facts: [***3]Carrie G. Williams taught school in Anne Arundel county for fourteen years and received a salary of [*197] three hundred and fifty dollars a year, except for two years during each of which there was a reduction of one month's pay. She deposited her earnings in the Eutaw Savings Bank of Baltimore. She was evidently a very economical, thrifty and prudent girl. Her father was a practicing physician with considerable landed property; but his practice fell off, his land deteriorated and his resources became greatly reduced. He was finally forced to borrow money and the mortgage for two thousand dollars was placed upon one parcel of his real estate. Conditions did not improve thereafter and he then began to borrow from his daughter. The first loan she made him was the sum of one hundred dollars on May 12th, 1895, for which he gave his promissory note of that date. The accrued interest on that sum up to the date of the deed to her was thirty-one dollars and thirty-five cents. The next loan she made him was on May the 4th, 1896, and the amount was fifteen hundred dollars, which was secured by a mortgage on the real estate subsequently conveyed to her by the deed which these proceedings[***4] seek to impeach. No interest was paid by the mortgagor and the amount thereof which had accrued up to the date of the deed was three hundred and eighty-two and twenty-five cents. In 1897, 1898 and 1899 she advanced to her father four hundred and fifty dollars with which to pay taxes and other pressing claims, and she took his promissory note therefor. A certain Sophia Kaiser held a mortgage dated July 14th, 1897, for eight hundred and fifty dollars on two tracts of land described in the deed of August the third, 1900, and she instituted proceedings to foreclose in the summer of the year just named. Thereupon Carrie G. Williams advanced the sum of nine hundred dollars to prevent a sale, and took an assignment of the mortgage. Thus, the total amount of actual cash which Miss Williams had loaned to her father was two thousand, nine hundred and fifty dollars; fifteen hundred dollars of which were secured by a mortgage and eight hundred and fifty dollars more were secured by the Kaiser mortgage which she held by assignment. The accumulated interest on the whole indebtedness due by [*198] her father to Miss Williams increased the sum he actually owed her to three thousand, three hundred[***5] and sixty-three dollars and sixty cents. The difference between the principal sums thus secured and the total amount due was just about one thousand dollars. As the mortgages which she held were liens on the property subsequently conveyed to her, and were merged in the title she acquired under the deed unless she elected, and manifested an intention, to take the estate and keep up the charge, Polk v. Reynolds, 31 Md. 106; it was entirely accurate to set forth the consideration in the deed at one thousand dollars, that sum being the amount due over and above the principal of the debts named in the two mortgages.

   But was the consideration adequate? Much stress was laid in the argument upon the assessed valuation of the land for the purposes of taxation; but an assessment for such purposes is by no means controlling as a standard by which to ascertain actual values of property. The two hundred and seventy-five acres sold under the Anderson mortgage were assessed at $3,300 and the improvements at $610, or a total of $3,910 and yet the whole property, land and improvements, brought at public sale only eleven hundred dollars, or, considerably less than one-third[***6] of the assessment. The testimony of Benjamin Watkins values the three hundred acre tract at seven dollars per acre or twenty-one hundred dollars for the whole; and he estimates the one hundred and sixty acres to be worth eight dollars per acre, or twelve hundred and eighty dollars. According to his testimony the whole four hundred and sixty acres are worth only three thousand, three hundred and eighty dollars. Edward Hall of B valued the property at three thousand dollars. One witness, it is true, places a value of $6,240 on the land--that is the sum at which it was assessed; but the actual sale made under the Anderson mortgage demonstrates the unreliability of that assessment.

   The father being incontestibly indebted to the daughter in the amount already named, he had a clear legal right, apart from the provisions of the insolvent laws, to prefer her to any [*199] other creditor by conveying the property to her, if that conveyance was made in good faith. A debtor has the right, at common law, to prefer one creditor to another by a bona fide conveyance of his property. Cole v. Algers & Runge, 1 Gill 142; Cunningham v. Dwyer, 23 Md. 219; [***7]Totten v. Brady, 54 Md. 170. It is a fallacy to assume that a sequence of events, of necessity, indicates an interdependence of the one upon the other or a causal relation between them. It would be an error to insist that merely because the deed to the daughter ante-dated the in personam decree by a space of six months and a few days, that theretofore, the deed was made by the grantors and accepted by the grantee with the design and intent to hinder and delay the enforcement of the decree. The two events have inherently no connection with each other. But even if this were not the case, there would be nothing either reprehensible or illegal--laying out of view the insolvent system--in the debtor preferring, by that method of settlement, the one creditor over the other, if the transaction was grounded on good faith and was not a [**28] mere subterfuge and device to hinder and delay creditors, in which both grantors and grantee knowingly participated. And this brings us to the only remaining inquiry, which is, whether the deed was made and accepted in good faith.

   When a deed is assailed for fraud, the onus of proof is on the party attacking it. The deed[***8] itself is prima facie evidence of what the consideration was upon which it was executed. Glenn v. Grover & McColm, 3 Md. 212. To overcome the presumption which always exists in favor of innocence, when the fact to be proved involves moral delinquency (Corner v. Pendleton, 8 Md. 337), various circumstances, usually denominated indicia or badges of fraud, have been relied on. These indicia are open to explanation, and they are, therefore, not necessarily conclusive, as is an irrebuttable legal presumption. In many instances they furnish strong and satisfactory evidence of the existence of fraud; but as they are relative and not absolute as respects their probative value, the special circumstances accompanying each inquiry must be known and considered [*200] in order that the weight properly attributable to those indicia may be given to them. Ordinarily, when a grantor who is heavily indebted remains in the possession and apparent control of property which he has conveyed away, and the rights of creditors are prejudiced by the conveyance, such possession and control will be considered an evident badge of fraud. Watkins[***9] v. Stockett, 6 H. & J. 435; Stewart v. Iglehart, 7 G. & J. 132. Secrecy in the transaction, unusual clauses in, and an artful and forced dress or appearance given by the parties, to the instrument; its execution pending an action against the grantor; and above all, the existence of any secret trust in favor of the debtor, or of any express trust or incumberment of his property which may make the remedy of the creditor more difficult, are the common indicia of fraud. There is literally no evidence of a secret trust in favor of the grantor; there is no express trust in his behalf; there was nothing clandestine in the transaction and no unusual clause in and no artful dress or appearance given to, the conveyance by the parties. The only circumstances which are relied on to prove the alleged fraud are the continued possession of the property by Dr. Williams; his apparent control over it; the omission to have it transferred to the grantee on the assessment books; the failure to assign to Miss Williams the policy insuring the buildings against loss by fire, and the execution of the deed a few months prior to the entering of the in personam decree. Do these[***10] circumstances in this case establish the bad faith imputed to the defendants by the bill of complaint?

   It must be borne in mind that before the execution of the deed, Dr. Williams, his wife and children, including the grantee, Miss Carrie, all occupied the dwelling-house on the premises which were subsequently conveyed by that deed. Is it to be assumed that because Miss Williams did not turn her father and mother out of the house after she had purchased the property, the whole transaction was a sham and was devoid of good faith? Is it a legitimate inference that the sale was pretended and not real because the daughter after acquiring the property permitted her father to remain under the shelter of the roof [*201] which had been his for years? Unless it be an unbending and inexorable requirement of the law of evidence that when a child buys from a parent property owned by the latter, the child, to avoid the imputation of fraud in the transaction, must at once and for all time close the door of her home against the father from whom she purchased it; the mere fact that he continued to reside on the premises after the conveyance, as he had done prior thereto, cannot impeach her good [***11]faith in acquiring title to the land. The law exacts no such unfilial and unnatural conduct to vindicate the integrity of the transaction. There must be something more to convict the grantee of fraud.

   The evidence abundantly shows, and shows without a syllable of contradiction, that the management and control of the property by Dr. Williams was not in his own interest, but solely in behalf of his daughter. He rented portions of the property to tenants for her; he collected the proceeds of the crops and turned over to her every cent of those proceeds.' and the supervision he gave to the property was for her benefit and was such as she was unable herself to bestow. There is nothing in all this, in view of the entire surroundings, to indicate bad faith or moral delinquency on the part of the grantee. The failure to have the property transferred from the grantor to the grantee on the assessment books, is not a circumstance having any probative value at all. The entry on the assessment books is no evidence of title adverse to Miss Williams. Chew v. Beall, 13 Md. 348; Smith v. Wood, 31 Md. 293. The omission to correct the entry so that it would[***12] correspond with the fact of ownership can, therefore, furnish no basis for a presumption that the grantee is not the bona fide owner of the property. The two hundred and seventy-five acres sold under the Thompson mortgage in 1900 still remained charged to Dr. Williams on the assessment books in 1902, and yet it can hardly be inferred from that fact, that there was any bad faith on the part of the purchaser of that tract of land. How the neglect to transfer the policy of insurance can indicate mala fides we do not perceive. If the [*202] buildings should be destroyed by fire neither the grantee nor the grantor could recover on the policy. That is all we need say upon the subject. The mere proximity in point of time between the execution of the deed and the rendition of the decree has already been alluded to and we have said that in this case no inference of fraud could be fairly drawn [**29] from the circumstance. Malcolm v. Hall, 9 Gill 177. We may add, however, that the explicit testimony adduced by the plaintiffs themselves upon the examination of Miss Williams and her father, both of whom the plaintiffs called as witnesses, not only negatives[***13] any semblance of fraud on the part of either, but conclusively establishes the utmost good faith throughout the entire transaction on the part of both.

   The conclusion we have reached is in accord with the one arrived at by the Circuit Court, and, for the reason herein set forth the decree appealed against will be affirmed.

   Decree affirmed with costs above and below. 

WALTER SNYDER vs. WILLIAM E. JONES. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
99 Md. 693; 59 A. 118; 1904 Md. LEXIS 103

 November  17, 1904, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (REVELL, J.)

DISPOSITION: Decree affirmed with costs above and below.

CORE TERMS:  life estate, tenancy, died intestate, married, marriage, curtesy, real estate, common law, belonging, surviving husband, married woman, seizin, dower, real property, intervening, fee-simple, remainder, vested, seized, decree, personal property, die intestate, belonged, daughter, devise, sister, woman, died, property belonging, undivided interest

COUNSEL: The cause was submitted to the Court on briefs by:
 
Frank H. Stockett, for the appellant.
 
Robert Moss, for the appellee.

JUDGES: MCSHERRY, C. J.

OPINIONBY: MCSHERRY

OPINION: [**118] [*693] MCSHERRY, C. J., delivered the opinion of the Court.

   This is a case stated under equity rule 47, as embodied in sec. 184, Art. 16 of the Code of Public General Laws. The facts are as follows: Charles Clagett died intestate in 1847, seized and possessed of real estate and leaving a widow and three children. His widow, whose name was Eliza, married in 1850, M. S. Robinson. The children were, Mary R., Annie C., and Samuel T. Clagett. Samuel T. Clagett died in 1852 intestate and unmarried and his one-third undivided interest [*694] in his father's real estate thereupon vested in his two sisters, subject to the dower of his mother. In September, 1860, Mary R. Clagett, who then owned by descent from her father and brother a one-half undivided interest in the real estate left by her father, married Walter Snyder, and on May 23rd, 1863, she died intestate, leaving her[***2] husband and an infant daughter named Carrie, surviving her. In 1865, Annie C. Clagett filed a bill in equity in the Circuit Court for Anne Arundel County against her mother and the latter's second husband, and against Walter Snyder the surviving husband of her deceased sister, Mary R., and against Carrie Snyder, the infant daughter of that deceased sister, praying for a partition of the lands of which Charles Clagett had died seized and possessed. In that proceeding, amongst other things, it was adjudged, ordered and decreed that Walter Snyder in right of his late wife, Mary R. Snyder should hold in severalty and not jointly, or in common with the other parties to the suit for and during his natural life, with remainder in fee to Carrie Snyder, the infant child and sole heir at law of the said Mary R. Snyder, deceased, all that parcel of land in the proceedings mentioned, which was described in the return of the Commissioners and the plat and the certificate of survey accompanying the same, as lot No. 1; fifty-one and a half acres, part thereof, being encumbered with the interest of the widow, Eliza Robinson, therein. Annie C. Clagett afterwards married Richard T. Hardesty and died[***3] March 19th, 1899, without children, but leaving her husband surviving her. Carrie Snyder, the granddaughter of Charles Clagett, married William E. Jones in February, 1881, and died intestate and without issue in December of the same year. In July, 1900, a bill was filed to procure a decree directing the sale [**119] of the real estate of Annie C. Hardesty, formerly Annie C. Clagett, and all her right, title and interest in lot No. 1, above alluded to, was sold to Walter Snyder, who already had a life estate therein in virtue of his survivorship as the husband of Mary R., and under the decree in the partition proceeding. The question for decision is, what interest, if any, has William E. Jones, the surviving husband [*695] of Carrie Snyder, in lot No. 1, which had been awarded to Walter Snyder for life with remainder in fee to his aforesaid daughter, Carrie?

   Carrie Snyder as the sole heir at law of her mother, Mary R., took, upon the latter's death, a vested fee-simple estate in an undivided one-half of her grandfather's property, subject to the dower of her grandmother in part thereof and also subject to the life interest of her father, Walter Snyder. When the decree of partition[***4] was passed in 1866 she was allotted in severalty a fee-simple estate in lot No. 1 in remainder, subject to the same life estate and, as to a part, subject to the dower of her grandmother. She subsequently married and thereafter died intestate. The title having descended to her on the part of her mother, when she, Carrie, the daughter of Walter Snyder and the wife of William E. Jones, died intestate, the estate which she thus acquired vested in her aunt, her mother's sister, Annie C. Article 47 of Code of 1860. The interest of the latter was sold after her death and the question is, Did the absence of a seizin, or actual possession by Carrie Snyder, together with the intervening life estate of Walter Snyder, her father, and the intervening dower of her grandmother prevent her husband, William E. Jones, from acquiring a life estate in lot No. 1, subject to the prior life estate expressly allotted to Walter Snyder, the surviving husband of Mary R. Snyder and the father of Carrie? 

   If the common law prevailed there would be no difficulty in answering the question in the affirmative. A tenancy by the curtesy of England is defined by Blackstone to arise where a man marries a woman seized[***5] of an estate of inheritance, that is, of land and tenements in fee-simple or fee-tail, and has by her issue born alive, which was capable of inheriting her estate. 2 Bl. Com. 126. The same learned commentator, observes page 127, there are four requisites necessary to make a tenancy by the curtesy; marriage; seizin of the wife; issue, and death of the wife. The marriage must be canonical and legal; the seizin of the wife must be an actual seizin; the possession of the land must not be a bare right to possess, which [*696] is a seizin in law, but an actual possession, which is a seizin in deed. And therefore, a man cannot be tenant by the curtesy of a remainder or reversion.

   When Mary R. Clagett married Walter Snyder in September, 1860, she owned, as stated above, a one-half undivided interest in the real estate of which her father died, seized and possessed, subject to her mother's dower. At that time the Code of 1860 was in force. By secs. 1 and 2 of Art. 45 of that Code it was enacted that the property, real and personal, belonging to a married woman at the time of her marriage, or which she might subsequently acquire in the modes there mentioned, she should hold for her[***6] separate use with power of devising the same as fully as if she were a feme sole, "provided that if she die intestate and leaving children her husband shall have a life estate in her property, real and personal, but if she die intestate leaving no children her husband shall have a life estate in her real property and her personal property shall vest in him absolutely." This legislation completely destroyed the common law tenancy by the curtesy; Mason v. Johnson, 47 Md. 347, though earlier enactments protecting the property of the wife from seizure to satisfy debts of the husband did not interfere with that tenancy. Logan v. McGill, 8 Md. 461. She had the right to devise her real estate as fully if she were a feme sole. Schull v. Murray, 32 Md. 9. That right was wholly inconsistent with such a tenancy, because it permitted her to give her property, by will, to whom she pleased, to the total exclusion of her husband. The right to thus dispose of her property continued uninterruptedly until the adoption of the Act of 1898, ch. 457. But the power to exclude, by devise, the husband from any interest in the wife's real estate,[***7] was not the only feature of the legislation embodied in the Code of 1860. If she died intestate and leaving no children her husband took a life estate in her realty and her personal property vested in him absolutely, and this, too, without reference to her ever having had issue or ever having been seized in deed. A statutory life estate was thus substituted for the common law tenancy by the curtesy. [*697] And that interest is now called the husband's dower. Act 1904, ch. 151. If the tenancy by the curtesy no longer exists by reason of the legislation to which we have alluded, then the qualities and characteristics incident to and inseparable from such a tenancy at the common law, are not included in the components of the distinctly different statutory life estates created by the Code of 1860. Indeed they are of necessity prescinded from it. It follows, therefore, that only such conditions must exist as the statute prescribes, to support the last-named estate, and that the attributes which are predicable of the common law tenancy are no longer requisite. What then was necessary after the Code of 1860, and prior to the adoption of the Act of 1898, ch. 457, to entitle the husband[***8] to a life estate in the real property owned by the wife? The inquiry is confined to the period of time just named, because whatever rights accrued to William E. Jones, the surviving [**120] husband of Carrie Snyder, arose under the statute law then in force.

   The Code of 1860 dealt with the real and personal property "belonging" to a woman at the time of her marriage. A vested fee-simple estate in remainder, the title to which she held, was real property "belonging" to her, notwithstanding an intervening life tenancy deferred her actual possession of it. It was an estate which she could devise and which, if she died intestate, would descend to her heirs at law. But further than that the statute declared without qualification that if a married woman to whom real property "belonged" died intestate, her husband should have a life estate in that property which thus belonged to her. There was no provision that she should be seized in deed, or that she should have had issue born alive during coverture, to entitle the husband to a life estate. The property, real and personal, belonging to a woman at the time of her marriage, is a universal proposition or declaration and must, [***9] according to well understood methods of reasoning, be taken in its widest sense, and therefore, must be held to exclude every qualification, restriction or exception. It is equivalent to saying, all the property, real and personal, "belonging" [*698] to a married woman, and consequently includes a vested remainder in fee, as well as a fee-simple estate in possession, because the former is just as certainly property belonging to a married woman as is the latter, though the one differs from the other only in the single circumstance, not of ownership, but of possession.

   We conclude then that according to the plain terms of the Code of 1860, the statutory life estate created thereby superseded and took the place of the common law tenancy by the curtesy in instances where marriages were solemnized after the Code went into effect. As it went into effect on January 12th, 1860, and was in full force in September of that year, when Mary R. Clagett married Walter Snyder, its provisions were applicable to the property, real and personal, then belonging to her, and measured and determined his marital rights with respect to that property. As the same provision of the same Code, slightly [***10]modified, but not in a way to affect the pending question, was the law of the State when Carrie Snyder married William E. Jones in February, 1881, and when she died in December of that year, the right of William E. Jones, the surviving husband, to a statutory life estate in the property which belonged to his wife, Carrie, must be also measured and determined by its terms; and as those terms gave him a life estate in the property, real and personal, belonging to her at the time of her marriage to him, he became entitled, upon her death intestate, to a life estate, notwithstanding the property which belonged to her was only an estate in remainder, though a vested remainder in fee, and notwithstanding there was an intervening life estate in her father.

   Major Venable in his Syllabus on Real Property takes the same view we have stated with respect to the effect of the Maryland legislation on the common law tenancy by the curtesy. The Court below held that Jones was entitled to a life estate and we affirm that decree for the reasons we have given.

   Decree affirmed with costs above and below. 

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY vs. THEBALTIMORE SUGAR REFINING CO. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
99 Md. 481; 58 A. 211; 1904 Md. LEXIS 85

 June  9, 1904, Decided

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

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

CORE TERMS:  machinery, real estate, personal property, taxation, shares of stock, demurrer, valuation, mandamus, admit, aggregate value, subject to taxation, assessor, valued, taxable value, capital stock, manufacturing, assess, reside, realty, writ of mandamus, inclusive, legal remedy, common law, illegal assessment, properly assessable, proper remedy, ascertained, inseparable, stockholder, abatement

COUNSEL: E. C. Gantt (with whom was Jas. P. Bannon on the brief), for the appellant.
 
James M. Munroe and Robert P. Graham (with whom was James E. Ingram, Jr., on the brief), for the appellee.

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

OPINIONBY: PEARCE

OPINION: [**211] [*482] PEARCE, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County, commanding the County Commissioners of that county to strike from their assessment books, an alleged illegal assessment. The petition of the Baltimore Sugar Refining Company alleges in its first paragraph, that it is a corporation of the State of Maryland, having a capital stock divided into shares which are subject to taxation under the laws of this State; in its second paragraph, that it owns a parcel of land in Anne Arundel County improved by buildings, worth one hundred thousand dollars, and that it also owns certain personal property in said county, of the value of two hundred thousand dollars; in its[***2] third paragraph, that its real estate in Anne Arundel County is assessed by the Commissioners of that county at three hundred and six thousand dollars, and that its personal property in said county is assessed by said Commissioners at four hundred and twenty-five thousand dollars, and that it appears from Exhibit B, filed with said petition, being a copy of said assessment, that said personal property is machinery used in said buildings; in its fourth paragraph, that sec. 4 of Art. 81 of the Code of Public General Laws of Maryland, providing for the assessment of real and personal property, does not apply to personal property owned by corporations of Maryland, having shares of stock subjected to taxation under the laws of Maryland; and in its fifth paragraph, that the petitioner has requested the County Commissioners of Anne Arundel County, to abate, and strike from its assessment books the assessment of said machinery as personal property, which they have refused to do.

   [*483] To this petition the County Commissioners entered a general demurrer, and this being overruled an answer was filed.

   The answer admits the averments of the first paragraph of the petition, and so much[***3] of the averments of the second paragraph as refer to the land and buildings thereon, but denies that the petitioner owns any personal property in said county, assessed on respondents books.

   It does not admit the averments of the third paragraph of the petition, and charges that the schedule of [**212] property assessed and valued to the petitioner, mentioned in Petitioners Exhibit B, was made and returned by the assessors appointed under the Act of 1896, ch. 120, and was approved by the said County Commissioners as the Board of Control and Review for Anne Arundel County as directed by law; and also avers that "the property so scheduled and assessed, consists of lands and buildings thereon, and certain machinery therein and thereto attached," and that, "said machinery, so assessed, is actually and in fact an inseparable part of the real estate * * * and is united, joined and connected therewith, in an absolute, permanent and inseparable manner."

   Answering the fourth paragraph of the petition, it admits that the personal property of a corporation, having a capital stock subject to taxation, is exempt from assessment, but it proceeds to make the following averment; "that the petitioner, [***4] in making its returns of the value of its shares of stock to the State Tax Commissioner, transmitted to him, as authorized by law, a duplicate of the aforesaid schedule and assessment, including the item 'machinery,' all of which valuation, at the instance of the petitioner, was deducted from the aggregate value of the shares of stock of the said petitioner, as directed by law, such being claimed as real property."

   In answer to the fifth paragraph of the petition, the respondent admits the demand for and the refusal of the abatement.

   The petitioner joined issue on the second paragraph of the answer, demurred to the third and fifth paragraphs, and replied to the fourth, denying its allegations. Issue was joined upon these demurrers and upon the replication, and the case was [*484] tried before the Court without a jury. Three prayers were offered by the petitioner, which were granted, and the demurrers to the third and fifth paragraphs of the answer were sustained, and the mandamus was ordered to issue. There was no exception to the ruling on the prayers and this is therefore not open for review, though if it were, we should have no difficulty in sustaining it. We have only[***5] to consider the ruling upon the two demurrers, both of which present the same two questions for decision; first, whether the machinery in question is personal property included in the valuation of the shares of stock of the corporation, and which therefore could not be legally assessed by the County Commissioners of Anne Arundel County; and if so, then second whether, the writ of mandamus is the appropriate remedy.

   The classification of property for taxation, as real or personal, is usually made on common law distinctions, though by statute it may be otherwise provided. Cooley on Taxation, p. 366. "At common law, fixed and movable machinery are alike regarded as personal property." Steere v. Walling, 7 R.I. 317. In that State, a statute so far altered this rule of the common law in that respect, as to declare that for purposes of taxation, fixed machinery should be regarded as real estate when owned by the owners of real estate to which it is affixed. But in Maryland there is no such statute. The doctrine of fixtures, as between vendor and vendee, lessor and lessee, mortgagor and mortgagee, though recognized here as to these parties, has never been imported[***6] into the law of taxation. We do not doubt that as between these, this machinery would be held to be part of the realty, but it by no means follows that it should be so held here. The mere fact that a building is constructed and adapted expressly to receive certain machinery, does not necessarily make the machinery part of the realty. 13 Am. & Eng. Ency. of Law, 2 ed., p. 608; Rahway Sav. Inst. v. Irving Street Baptist Church, 36 N.J. Eq. 61. So, also, there is a clear distinction running through the best considered cases, between machinery furnishing the motive power of the establishment, and that [*485] which is accessory only to the business then carried on. 13 Am. & Eng. Ency. of Law, 2 ed., p. 614; Teaff v. Hewitt, 1 Ohio St. 511; Hill v. Wentworth, 28 Vt. 428, and this distinction seems to be suggested in M'Kim v. Mason, 3 Md. Ch. 186, where CHANCELLOR JOHNSON cites the language of BARON PARKE in Hellawell v. Eastwood, 3 Eng. Law & Eq. 562, in which he says "the question depends principally on the object and purpose of the annexation, whether it was for the permanent[***7] and substantial improvement of the building, in the language of the civil law, perpetui usus causa, or merely for a temporary purpose, or the more complete enjoyment and use of the machine as a chattel." So that, as respects the taxation of this machinery, there seems to be no sufficient ground for holding that the common law rule is not applicable.

   But apart from this view, the whole system of assessing and taxing corporations, as disclosed by Art. 81 of the Code, refutes the contention that this machinery is part of the real estate. Sec. 4 of that Article expressly exempts from taxation, in specie, the personal property of any corporation of this State, having capital stock divided into shares, when said shares are subject to taxation under the laws of this State, and the petition in this case expressly declares that this is such a corporation. Section 141 requires the president of every corporation to furnish to the County Commissioners of each county in which such corporation owns real estate, a true statement of all such real estate, and requires the same to be valued and assessed by the County Commissioners, who must transmit a duplicate of such assessment to[***8] the State Tax Commissioner. It also requires the assessed taxable value of all such shares of stock to be ascertained by the State Tax Commissioner, who, in order to avoid double taxation, is required to deduct, from the aggregate value of all such shares of stock, the assessed value of all the real estate [**213] of each corporation. Real estate only being deducted, all machinery, as personal estate, is thus necessarily estimated by the State Tax Commissioner in determining the aggregate value of all the stock, from which aggregate the realty is deducted.

   [*486] Again, section 143 provides generally, that where any county shall have been exempted the machinery of a manufacturing corporation from county taxation, the president of such corporation shall furnish to the County Commissioners a true statement of all such machinery, and that the County Commissioners shall value and assess the same, and shall send to the State Tax Commissioner a certificate of such valuation and assessment, and that he shall deduct such valuation from that determined by him for State taxation, and that this final valuation, thus ascertained, shall be the basis of taxation for shares of stock[***9] held in that county. It is obvious that if manufacturing machinery were properly assessable as part of the realty, there would be no room for the operation of this provision of sec. 143.

   Chapter 340 of 1896, pursuing this general scheme of sec. 143 of Art. 81, provides that the County Commissioners of Anne Arundel County, for the encouragement of manufactures, may abate all taxes levied in any year for county or school purposes upon any machinery owned and used by any person or corporation engaged in manufacturing in said county, but forbids any abatement of taxes levied upon any property properly assessable and taxable as real estate, thus emphasizing in a peculiar manner, for Anne Arundel County, the common law rule before mentioned as to taxation of machinery, and the distinction to which we have referred between machinery accessory merely to the business carried on, and that designed and adapted especially for the permanent improvement of the building in which it is located.

   The third and fifth paragraphs of the answer do not aver as a fact that this machinery is real estate, but argue that it is such, because it is there asserted to be united with the building in an[***10] inseparable manner. As a demurrer only admits facts well pleaded, and not conclusions of law, the appellants are in error in contending that the demurrer to these paragraphs admits this machinery to be real estate, and as such properly assessable by the County Commissioners to the petitioner, and it follows from what we have said, provided mandamus [*487] is the proper remedy to be invoked, that the demurrer to the petition was properly overruled, and the demurrers to the third and fifth paragraphs of the answer were properly sustained.

   Was the writ of mandamus the proper remedy?

   JUDGE COOLEY in his work on Taxation, p. 732, says, "The writ will lie to compel assessors to strike from the assessment roll non-taxable property which they have included in it. Here is a clear case of excess of jurisdiction; nothing is submitted to their discretion, because, by the law, the subject-matter of the controversy is put beyond their authority, and they can neither lawfully list it, nor value it. It will lie also where property is assessed to the wrong person, both the public and the individual assessed being concerned in having the assessment so made that a legal and just tax can [***11]be levied upon it." In County Commissioners v. Winand, 77 Md. 522, 26 A. 1110, this passage was cited as a correct exposition of the law, though it was held that the writ was improperly allowed in that case, because what the County Commissioners there did, "was not in excess of their jurisdiction, but was an erroneous exercise of conceded authority." The appellants admit that when that case was decided there was no adequate legal remedy provided for the abatement of an unauthorized assessment. Since that time, however, ch. 120 of 1896, has been enacted, and its 184th section, now sec. 184 of Art. 81 of the Supplement to the Code provides that the owner of property to whom it is valued, and who claims that it is exempt from valuation and assessment may file a petition against the County Commissioners, within thirty days after the return is made by the Board of Control and Review to the County Commissioners, or within thirty days after valuation to the owner and notice to him, setting forth the facts of the case, and the ground upon which exemption is claimed, and that upon hearing, if the Court shall determine that the property is not subject to valuation and assessment, [***12] it shall direct the County Commissioners to strike said property from the list, and sec. 186 of Art. 81 gives either party an appeal from the order passed, to [*488] the Court of Appeals. The appellants contend that this Act provides a full, adequate, and specific legal remedy framed directly to effect the desired end, and that mandamus therefore will not lie. In Bembe v. Anne Arundel County, 94 Md. 330, the Court said "there must be a clear legal right in the relator, and there must be an absence of an adequate legal remedy for the vindication of that right before redress by mandamus can be accorded." The writ compelling the County Commissioners to repair a defective county bridge was accordingly refused, because secs. 19 to 34 of Art. 25 of the Code, provide a complete and adequate procedure for that purpose; and the Court added, "Should a Court of law upon an application for a writ of mandamus, undertake to order the County Commissioners to repair the bridge, it could only do so by deliberately disregarding and repudiating the statutory remedy especially provided to meet just the contingency here presented."

   The question here therefore is whether[***13] sec. 184 of Art. 81 is applicable to this case, for if it is, it excludes recourse to mandamus; [**214]but we are of opinion it is not applicable. Under our system of assessment of property for taxation, all real estate is assessed to the owner in the county in which it lies, and all personal property belonging to natural persons resident in this State is assessed to the owner in the assessment district in which he resides, with the exception of goods and chattels (taxable as such) permanently located in any other city or county, which are assessed to the owner where they are so located. The personal property of corporations of this State, not having a capital stock, whose shares are subject to taxation, is assessed in like manner to such corporations. All existing assessments of property in this State were made either by assessors appointed in each assessment district under the last General Assessment Act, ch. 120 of 1896, or have been added by the County Commissioners since that time under powers conferred by that Act, and by subsequent enactments; the real property of all corporations is taxed by the county assessors, or County Commissioners, but these have no power to[***14] value or assess the personal property of corporations [*489] having a capital stock whose shares are subject to taxation. The State Tax Commissioner alone is authorized to value and assess such shares, and may examine on oath any officer of such corporation as to the aggregate value of such shares. This aggregate value is the value of all the taxable property of every description owned by said corporation. The taxable value of such shares is ascertained under the law by deducting from their aggregate value, the certified taxable value of the real estate of the corporation and dividing the residuum by the number of the shares, the quotient showing such taxable value. The State Tax Commissioner certifies this taxable value to the County Commissioners of each county, in which any stockholder resides, and the shares of any such stockholders are valued, for county and municipal purposes to the owners in the counties in which they respectively reside.

   Here we have two distinct and independent systems of assessment, the powers of one being vested in county assessors, or County Commissioners, and those of the other in a State Tax Commissioner.

   In Monticello v. Baltimore City, 90 Md. 416,[***15] in referring to sec. 145 of Art. 81, which requires the County Commissioners to give notice to the owner before they proceed to increase the valuation of previously assessed property, and before they undertake to add any new property, not valued or returned by the proper assessor or collector, the Court said: "This section has relation only to property which the County Commissioners have the right to assess," and this is equally true of sec. 184. The County Commissioners have no power to assess the personal property of a corporation of this State, having taxable shares of stock, because such personal property is fully represented and included in the shares of stock, which the State Tax Commissioner alone is authorized to assess and which he is required to assess and certify to the County Commissioners of each county where any such stockholder resides. Assessment of such shares by the County Commissioners, or of any personal property which forms a constituent part of the value of such shares would necessarily result in double taxation. [*490] As sec. 184 had no relation to the personal property of such corporations, or to the shares of their stock, the authority of Winand's case, [***16]  supra, could in no event have been impaired by its enactment, and that decision would control the present case.

   But there is another equally convincing and conclusive reason why sec. 184 affords no remedy which would forbid resort to mandamus.

   We think it is manifest that this section has relation exclusively to appeals from the Boards of Control and Review, and does not apply to cases where the assessments have been made by the County Commissioners, and not by assessors appointed under the Act of 1896. The appeal therein provided for to the Circuit Court must be taken within thirty days after the return is made by the Boards of Control and Review to the County Commissioners. An examination of secs. 182 and 183 of that Act, which are not reproduced in the Supplement to the Code, makes it clear, we think, that these sections, as well as secs. 173 to 191 both inclusive, are merely a part of the machinery relating to the first assessment under the Act of 1896, that they have been completely executed, and have no further vitality or effect.

   It will be seen that in the Supplement of 1900, the learned codifier, Mr. Poe, omitted secs. 165 to 170 both inclusive, and secs. 172, 182[***17] and 183 of the Act of 1896 and in a foot note on p. 556 of that supplement, states that they were omitted because they had been completely executed. In the Code of 1903, Mr. Poe has also omitted secs. 173 to 180 both inclusive, and secs. 184 to 191 both inclusive, upon the ground as we are informed by him, that upon a re-examination of that Act, he regards all those sections as referring only to the reassessment ordered to be made by the Act of 1896, ch. 120, and as being completely executed, and possessing no further efficacy. Upon careful consideration, we entirely concur in this view, and it follows therefrom that there was no error in granting the mandamus in this case.

   Order affirmed with costs to the appellee above and below. 

EDWIN F. MARTIN, JR., BY NEXT FRIEND vs. J. JESSE MOORE ETAL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
99 Md. 41; 57 A. 671; 1904 Md. LEXIS 69

 March  23, 1904, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Judgment affirmed with costs.

CORE TERMS:  assault, superintendent, inflicted, night, assault and battery, photograph, cross-examination, punished, punish, lash, disorderly conduct, relation of master, legally sufficient, action to recover, man named, flogged, withdrawing, correctness, instituted, breakfast, adjoining, preceding, malicious, excessive, entitle, tending, servant, morning, prayer, brutal

COUNSEL: James W. Owens and John L. G. Lee, for the appellant.
 
The undisputed evidence shows that J. Jesse Moore ordered Martin "punished and beaten" and that immediately thereafter he was taken in execution of said order by Derr the agent of Moore, and beaten as above. And although Moore did not witness Derr doing the beating, he was in the next room with the door open between and could hear the victim's screams, and the victim could hear him eating his breakfast. "Everybody present aiding and abetting the assault is responsible." Sellman v. Wheeler, 95 Md. 751. Presence means on the spot, and hearing denotes presence as well as seeing. Riggs v. Riggs, 135 Mass. 241. A traverser was present when in the next room. Lynch v. Commonwealth, 88 Pa. 189.
 
A master is liable for the tortious acts of his agent. Mechem Agency, sec. 741; Cooley Torts, 625. Master is liable even where agent acts in disobedience of order. P. & L. R. R. v. Derby, 14 Howard, 467.
 
Officers of Eleemosynary Institutions must respond individually in damages. Perry v. House of Refuge, 63 Md. 20. Public officers[***2] are liable individually. Story Agency, sec. 319. He who commands the act as well as he who commits the trespass may be joined. Hewett v. Suift, 3 Allen, 420; Moore v. Fitchburg R. R., 4 Gray, 467. For direction of House of Correction. Code P. G. Laws, secs. 27, 305.
 
 Daniel R. Randall, State's Attorney for Anne Arundel County (with whom was Isidor Rayner, Attorney-General on the brief), for the appellees.
 
The photograph was not admissible in evidence: (1) Because no testimony was offered on the part of the plaintiff in verification of the photograph and no one was present at the trial who could testify that the process of taking such photograph was conducted with skill and that the result was a fair resemblance of the object; the plaintiff's unsupported statement of the fact that that photograph was taken, of which the one offered was a copy, being the only evidence offered on this point. Blair v. Pelham, 118 Mass. 421; Hynes v. McDermitt, 82 N. Y. 41; Cowley v. The People, 83 N. Y. 464; Reddin v. Gates, 52 Iowa, 210; Alberti v. N. Y. L. E. & W. R. R., 118 N. Y. 77; Dorsey v. Habersack, 84 Md. 117.
 
(2.) Because a photograph offered under the circumstances of this case[***3] was but secondary evidence at best, was not needed for purposes or identification, was not instructive to the jury, and its only purpose and object was to heighten the dramatic effect of the plaintiff's testimony. Verran v. Baird, 150 Mass. 142; Fore v. State, 75 Miss. 727; Selleck v. Janesville, 104 Wis. 570.
 
(3.) Because the admission of a photograph in evidence is wholly in the discretion of a trial judge, and his ruling on the matter is not open to exception. Verran v. Baird, 150 Mass. 142; Gilbert v. West End R. R., 160 Mass. 403; Harris v. Quincy, 171 Mass. 472; Carey v. Hubbardstown, 172 Mass. 106.
 
In Massachusetts the rule as above cited has been established by numerous decisions, i. e., that the sufficiency of the preliminary proof of the correctness of the photograph offered in evidence cannot be reviewed upon exceptions. In some other States the higher Courts have undertaken to pass upon the general question of the value of photographs in evidence, confirming the Massachusetts rule, however, upon the narrower question as to the sufficiency of the preliminary proof. In the only decision in Maryland (Dorsey v. Habbersack, 84 Md. 117), the Court admitted the photograph[***4] purporting to show the condition of a house wall, because there was sufficient evidence of the experience, etc., of the photographer to justify the Court in admitting it, and as both sides had photographs in evidence, the jury could judge of their accuracy from the testimony of witnesses examined upon this very point. The case now before the Court should be distinguished from that in 84th Md. in view of the fact that all preliminary proof is wanting to show the authenticity, etc., of the photograph offered in evidence.
 
The second and third exceptions of the plaintiff to questions asked the plaintiff by defendants' counsel and allowed by the Court are not well taken. In their opening statement to the jury the plaintiff's counsel took pains to narrate the circumstances under which their client, unjustly of course, was tried before a Justice of the Peace and committed to the House of Correction, all of which statements they said would be abundantly proven.
 
In his direct testimony young Martin stated that he was at the House of Correction on September 2nd, 1902, the date alleged in the declaration; that he was charged, unjustly of course, with disorderly conduct and brought before [***5]the Superintendent where charges were laid against him and where he heard his punishment pronounced; he then described most minutely the character of that punishment and its after effects. But nowhere did he state why he was at the House of Correction at all, nor how long he had been there, until defendants' counsel asked the two questions to which exception was taken.
 
What more pertinent inquiry then could there be than to ask this party "What were you doing in the House of Correction on September 2nd, 1902?" and "How long had you been there?" They were both the legitimate subjects of cross-examination, not only in view of the opening statement of the plaintiff's counsel, but because it was material to the proper understanding of the case for the jury to know whether the party was a guest of an official, an official himself of the institution, a chance visitor or a convicted prisoner. Moreover, he had testified in chief that he was released from custody by a habeas corpus, and the two questions asked him naturally followed. Poe "Piactice" sec. 279-80; Reynolds "Evidence," sec. 101. Again it could not possibly work an injury to the plaintiff's case with the jury that he should[***6] be compelled to admit that he was a prisoner at the institution held under an unjust (and defective as it proved) commitment.
 
Admitting all the testimony to be true, because unrebutted, that the defendant Moore ordered the plaintiff to be beaten, and that as a direct result from such beating the plaintiff suffered all the injuries testified to, yet the defendants could not be held responsible in damages;
 
(a) Because as to the defendant, Cunningham, no testimony connects him with the affair at all; he was not present in person, or constructively, and the granting of the defendants' prayer as to him was almost obligatory upon the Court. Neither Mitchell nor Gehr had ever been summoned, and were not represented in Court by counsel.
 
(b) The law of the State, (Code, Art. 27, sec. 315), provides that any person committed to the House of Correction who shall be guilty of misconduct "shall be punished in such manner as the regulations prescribed by said board of managers shall provide;" and by sec. 317 of the same Article of the Code, the board may reward those prisoners whose conduct has been good, by gifts of money or a shortening of their period of confinement.
 
Rules[***7] were adopted by the board for a breach of which a prisoner for his first offense should receive five lashes. These rules and the punishment following upon their breach, as well as the rewards for their proper observance, the plaintiff testified were read to him by an official upon his first day of imprisonment. The plaintiff, according to his own unsupported testimony, was brought before the defendant, Moore, charged with a violation of the rules and was ordered to be taken away and beaten. He admits the punishment prescribed for such an offense was five lashes, and these he received and no more.
 
Can the Superintendent of a public reformatory be liable in damages for carrying into effect rules prescribed by the State itself through its board of managers, even though he personally inflicted the punishment in a harsh or brutal manner? How much less could he be held liable where the punishment was inflicted out of his sight by another official? If that servant went beyond the proper scope of his authority and willfully became a wrongdoer the master is exempt from liability for his acts. Brown v. Purviance, 2 H. & G., 316; Central Ry. Co. v. Peacock, 69 Md. 257; Consolidated Ry. Co. [***8] v. Pierce, 89 Md. 503; Ritchie v. Waller, 63 Conn. 155.
  
(c) Even if it had been proven that an assault committed upon the plaintiff by a man named Gehr had taken place in the presence of the defendant Moore (and as to this the statement of the trial Judge and five members of the jury, attached to the record, is convincing that such evidence was not offered), Mr. Moore could not be held liable, unless he distinctly ordered or countenanced such an assault. The plaintiff's own testimony, is that Moore after hearing the charge of misconduct ordered the plaintiff to be taken away and punished and then went to his breakfast. Is there, in that order of Moore, an officer of the State, sitting as a Judge over the offenders within his jurisdiction, anything from which Gehr or anyone else could claim the authority to commit an assault? On the contrary his order was direct, clear and right according to the rules of the institution. He had heard the evidence in the case and he ordered his subordinate to take the offender away and mete out to him in the proper place and manner the punishment that the rules of the institution, well known to the plaintiff, required.

JUDGES: The cause was argued before[***9] MCSHERRY, C. J., FOWLER, BRISCOE, PAGE, PEARCE, SCHMUCKER and JONES, JJ.

OPINIONBY: BRISCOE

OPINION: [**671] [*46] BRISCOE, J., delivered the opinion of the Court.

   The appellant on the 25th day of October, 1902, brought an action to recover damages for an alleged assault and battery against the appellee, and others, in the Circuit Court for [*47] Anne Arundel County. The suit was instituted against the Board of Managers of the Maryland House of Correction, J. Jesse Moore, its Superintendent, and George T. Mitchell, W. Randolph Cunningham and Thomas Gehr, employees of the institution.

   On the 23rd of October, 1903, a demurrer to the declaration was sustained and the narr. was amended by striking out the Board of Managers of the Maryland House of Correction as a party defendant. Mitchell and Gehr, two of the defendants, were returned non sunt, and the case proceeded to trial against the appellees. The judgment being for the defendants, the plaintiff has appealed.

   Four exceptions were reserved by the plaintiff during the trial of the case. Three of these were to the admissibility of testimony and the fourth as to the ruling of the Court upon the prayer, granted at the conclusion[***10] of the plaintiff's case, which instructed the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover against the defendants.

   The principal question presented by the appellant in his brief, and urged in argument in this Court, is whether or not the Court committed an error in granting the prayer which withdrew the case from the jury.

   The facts of the case, as set out in the record, are as follows: The plaintiff, a minor, had been committed to the Maryland House of Correction by a Justice of the Peace of the State for a period of thirty days. On the 2nd day of September, 1902, he was brought before Mr. Moore, the superintendent, charged with disorderly conduct in his cell at night, and was directed to be punished for the offence, as prescribed by the rules of the institution. According to the plaintiff's testimony, as stated in the record, "I was taken at seven o'clock in the morning, before the defendants and the two men named Mitchell and Gehr (I think), and was accused of yelling out in the cell during the preceding night. Mr. Moore told Mitchell and Gehr to take me back an "punish me and beat me." I protested that I was not guilty of[***11] making [*48] the noise in the night, but Mr. Jesse Moore directed his subordinates Mitchell and Gehr to take me back and punish me and beat me. Mr. Moore then went to his breakfast in the next room. He further testified that he was taken in a room, stripped of his clothing and given five lashes with a cat-o'-nine tails, each lash made nine welts; that the punishment [**672] was administered in a cruel and brutal manner by a man named Gehr, and that he sustained severe and permament injuries from the punishment.

   There are other facts contained in the record but these appear to us all that are material to dispose of the questions presented in the case.

   As to the defendant Cunningham, the record contains no testimony whatever tending to show that he was present or was in any way connected with the alleged assault, and we do not understand that it is seriously contended that there can be a recovery against him.

   The appellant, however, insists that the Court below committed an error in withdrawing the case from the jury, because according to the evidence, Moore, the Superintendent, not only directed the punishment of the plaintiff, but was present aiding and abetting the assault.[***12] The testimony, however, fails to support this claim. Conceding the truth of the whole testimony on the part of the plaintiff, we do not think it was legally sufficient to entitle the plaintiff to recover.

   The plaintiff testified that the punishment was inflicted by a man named Gehr, and the direction of the Superintendent was that he should be taken back and punished for a violation of the rules. And that after giving the order, the defendant (Moore) went to his breakfast in an adjoining room. There is nothing in the evidence in this case to show, even if it be admitted that the punishment was inflicted in a willful, malicious and excessive manner, that the defendant (Moore) was responsible for the wrongful act.

   The theory of the appellant's case is that the relation of master and servant existed between Gehr, and the defendant, Moore, and not withstanding the fact that the latter did not [*49] direct or witness the alleged assault, being in an adjoining room, he is liable for the tortious acts of his agent. We fail to perceive upon what ground, it can be urged, that the relation of master and servant existed between these persons. But the answer to this contention is that there[***13] is nothing in the evidence here tending to show that the defendant either authorized or sanctioned an assault, as charged in the case.

   The principle enunciated by our predecessors in the case of Perry v. The House of Refuge, 63 Md. 20, and relied upon by the appellant has no application to the facts of this case. In that case it was held that the House of Refuge, being a corporation instituted for charitable purposes, cannot be made liable in an action for damages for an assault committed by one of its officers, on one of its inmates, but they must be recovered from the wrong-doer. In this case there is no evidence that an assault was committed by either of the defendants, or was authorized by them, and the Court below committed no error in withdrawing the case from the jury. It is well settled by all the cases that whenever the testimony adduced by the plaintiff is so light and inconclusive that no rational mind can infer from it the fact which it is offered to establish, it is the duty of the Court to withdraw the case from the consideration of the jury.

   Nor do we find any reversible error in the rulings of the Court embraced in the first, second and third[***14] bills of exception. These exceptions were not pressed in the argument of the case and are not alluded to at all in the appellant's brief.

   There was no proof of the correctness of the photograph taken of the plaintiff on the day of the alleged assault, and which was offered as evidence on the part of the plaintiff. This constitutes the first exception, and there was no error in the ruling of the Court in sustaining the objection. Dederichs v. Salt Lake City R. R. Co., 35 L.R.A. 802, and cases there cited.

   The second and third exceptions were taken to the following questions asked the plaintiff on cross-examination: "What were you doing in the House of Correction on September 2nd, [*50] 1902, and how long had you been there?" The Court overruled these objections and allowed the questions to be answered, and the witness replied, "I was taken to the House of Correction by a detective on a commitment of a Justice of the Peace, and was there thirty-four days."

   It appears that the plaintiff had testified in his examination in chief, that he was in the House of Correction on the 2nd of September, 1902, and had been released after the whipping on a writ of habeas [***15]  corpus. The answers to the questions objected to could not in any way have injured his case. Besides this, they were proper questions on cross-examination.

   It follows from what we have said, that the judgment will be affirmed.

   Judgment affirmed with costs. 

JAMES H. MURDOCH vs. ROBERT E. STRANGE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
99 Md. 89; 57 A. 628; 1904 Md. LEXIS 61

 February  19, 1904, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (THOMAS, J.)

DISPOSITION: Order affirmed.

CORE TERMS:  ballot, blank, election, elector, common law, counted, candidate, quorum, voted, appointment, voting, ordinance, charter, voter, votes cast, custom, assent, assembly, elected, elect, duty, piece of paper, definite, rule of procedure, total number, municipal, estimating, common council, effective, et seq

COUNSEL: Isaac Lobe Straus, for the appellant.
 
The usage, or rule of practice, proved without any dispute at all, requires that in an election of city officials by the corporate body of Annapolis, a blank paper, deposited by one of the electors as a ballot, is to be counted as one of the ballots cast, but shall not be counted in favor of any of the persons voted for in the election. In other words, it is a vote of dissent, and not of assent; a negative vote, and not an affirmative vote. The testimony thus establishing that a blank ballot, under the usage, practice and rule of procedure of the body in question, is to be given full force and effect, a member casting a blank ballot cannot be regarded as taking no part, or doing nothing, and thereby, because of his mere presence, acquiescing in the action of the majority of those whose several ballots contain a definite name.
 
The proof moreover shows that in more than thirty ballotings, held at various times on the 20th, 23rd and 30th of July, the usage as a rule of proceeding was invariably recognized and applied in practice with the unanimous acquiscence [***2]of all the members of the corporation, the whole elective assembly repeatedly acting upon it without any question or exception taken by anybody and with a united ratification of the results of the numerous ballotings as declared in accordance with it by the presiding officer.
 
Finally the explicit and positive proof is that the corporate elector who cast the blank ballot did it upon the faith of the usage, which the proof shows was not merely a matter of record and constant practice for thirty years or more, but virtually of common notoriety at Annapolis, and with the deliberate understanding and intention, after making sure he was right by taking the advice of a former counsellor of the city and a leading member of the Annapolis bar, that the blank vote which he cast should be counted as one of the whole number of ballots cast, but not as a vote for Mr. Stange.
 
The usage, as proved above, being neither unreasonable nor repugnant to the Charter of Annapolis, establishes the law of the municipality as to the counting of a blank ballot and disposes of this case by ascertaining that the balloting for Market Master at the meeting of July 20th, did not result in the election of [***3] any successor to Mr. Murdoch. The effect to be given to a blank ballot in the election of its officers is in the absence of contrary statutory provision a matter properly determinable by the usage or practice of the corporation of Annapolis, and if the usage dealing with that subject is reasonable and not repugnant to the charter of the city, it is not to be set aside because not in harmony with the law in some other places; but should be upheld as ascertaining the law upon the subject in question.
 
The usage, confessedly, is not in conflict in any respect with any provision, express or implied, of the Charter of Annapolis. On the contrary, the charter confers upon the corporation, in unqualified terms, full plentitude of power over the appointment af its officers; including specifically the Market Master. (Hooper v. New, 85 Md. 583-5; 1 Dillon Mun. Corp. sec. 212), accompanied with the further power to "settle its rules of proceedings" in the performance of its business and functions. Neither is it, nor indeed it could be, fairly suggested that the usage established by the testimony is unreasonable. It has been observed for many years without any complaint whatever in regard to[***4] it, and its maintenance by so many successive councils can only indicate that it must have operated to the satisfaction and advantage of the people of Annapolis, and is therefore both equitable and salutary.
 
That the law of a given locality or elective assembly upon such a subject is, in the absence of explicit statutory provision, determined by usage or customary practice is an elementary principle announced by all the authorities without dissent. Cushing Law, etc., Legis. Assem., sec. 1826, p. 708; sec. 283, p. 109.
 
And the author shows that the whole of the parliamentary law, with all its forms and methods of proceeding, springs from the very sources from which the law and practice in the present case, as constituting the procedure of the corporate assembly of Annapolis, are shown by the witnesses and the testimony to have been drawn, namely, "partly in usages which are nowhere recorded in express terms on the journals, but are constantly recognized and practiced upon," "partly in precedents of proceedings which are considered as declaratory of the law and usage of Parliament, etc."
 
The case of Yulee v. Mallory, 1 Bartlett Election cases, 608, a decision of great[***5] weight upon a question of this sort, deals precisely with the point under consideration, showing that the effect to be given to blank ballots in ballotings by elective assemblies is, in the absence of statutory provision, to be determined by usage and customary practice. The decision was rendered by the unanimous report of a Select Committee of the Senate of the United States, of which committee the late distinguished Maryland jurist, the Hon. James Alfred Pearce, was a member. The report in question was adopted by the unanimous vote of the whole Federal Senate. It decided that where Mr. Yulee, the contestant for a seat in the Senate, had received in the joint convention of the Florida Legislature 29 votes, and 29 blank ballots were cast, that the blank ballots were to be counted as negative ballots, so that Mr. Yulee, not having received a majority, was not elected, and the election was a nullity.
 
The case of the contested election of Mr. Stockton, which was decided in the United States Senate in 1866, presented the question whether it was competent for the joint convention of the two Houses of the Legislature of New Jersey, in absence of a statute or resolution passed by the[***6] Legislature itself, to adopt a valid resolution providing that "any candidate for the United States Senate receiving a plurality of the votes of the members present shall be declared duly elected." The Judiciary Committee of the Senate, embracing some of the foremost lawyers of that generation, include Judge Lyman Trumbull as its chairman, and also the late Reverdy Johnson, decided and reported the question affirmatively, and sustaining the report of the committee upon the floor of the Senate, Judge Trumbull, Mr. Johnson, Mr. Hendricks, Mr. Stockton and others relied upon the usage of the joint conventions of New Jersey, which had obtained from 1794 until 1865, and under which they had always assumed and exercised the right to determine, without legislative enactment or resolution, the manner of electing Senators from that State.
 
It is well settled that a statute or ordinance may be construed according to the custom or usage of the place where it applies. Thus, speaking of the inspection Act for Baltimore City, the Court in Frazier v. Warfield, 13 Maryland, 303, laid down the rule as "founded in reason and common-sense" that "when a statute is applicable to a particular place[***7] only, such words may be construed by usage at that place." And in Sherwin v. Bugbee, 16 Vt. 444, JUDGE REDFIED, in passing on the validity of a school meeting, declared that in construing statutes applicable to public corporations "Courts will attach no slight weight to the uniform practice under them." In King v. Salway, 9 B. & C. 435, LORD TENTERDEN said: "A usage, not inconsistent with a charter, nor repugnant to it, may continue, notwithstanding the acceptance of a charter." LORD KENYON said in Rex v. Bellringer, 4 Term, 821, "that contemporaneous usage had always been considered as of great importance in the construction of charters, a variety of cases at all times abundantly evince."
 
In King v. Hoyte, 6 Term. 432, "The uniform usage for the last 40 years is laid before us, which unopposed, is evidence of a usage from all time; and such prescription usage is evidence of a charter conferring such a right of election on the majority of the existing burgesses." See also Rex v. Varlo, per Ld. Mansfield, Cowper, 250; Miller v. Eschbach, 43 Md. 1, 6-8; Ins. Co. v. Farquhar, 86 Md. 672-3; Union Bk. v. Ridgely, 1 H. & G. 324; 3 Clark & Marshall Corp., p. 1782 note; Library Hall Co. [***8] v. Library Assn. Co., 173 Pa. St. 30; Newling v. Francis, 3 Term R. 189; Scales v. Key, 11 A. & E. 819.
 
There can be no doubt that the determination of the effect to be given to a blank ballot in the election "by ballot" held by the corporate body of electors is a subject properly regulated by a rule of procedure of the corporate body. It seems simply supererogatory to argue this plain truism. The sum and substance of the matter is this: A rule of procedure, as defined in Heiskell's case, 65 Md. 148, is "a rule adopted by a legislative body as to the mode and manner of conducting the business of the body." To appoint or elect its city officers is the business of the body corporate of Annapolis. To prescribe what effect a blank ballot shall have in this particular business is to prescribe that particular detail of the mode and manner of conducting the business in question. 
 
That a rule of procedure, governing municipal elections, may be established by usage. See Rex v. Johnson, 6 C. L. & F. (H. of L.) 41, affirming 5 A. & E. 488; Rex v. Westwood, 4 Bligh. (H. of L.) 217; Rex v. Ashwell, 12 East. 22; Rex v. Bird, 13 East. 367.
 
The authorities are almost too numerous for[***9] citation, showing that a matter of this nature may be properly controlled and disposed of by a rule of procedure. Regina v. Griffith, 17 A. & E., N. S. 164 (directly in point); State v. Hoyt, 2 Oregon, 246; Atkins v. Phillips, 8 So. Rep. 430; Swindell v. State, 134 Ind. 155; Armitage v. Fisher, 74 Hun. 171; People v. Cahill, 39 N. Y. Sup. 375; Coleman v. Dobbin, 8 Ind. 160; Morrison v. Lawrence, 98 Mass. 221; Davies v. Saginaw, 87 Michigan, 439; Cushing Legislative Assemblies, secs. 794, 1480, 1491.
 
Even in the absence and irrespective of usage or settled practice the blank ballot cast on July 20th, was properly counted by the Mayor and the Municipal Assembly as one of the ballots cast in the election, but not as a ballot in favor of the appellee, so that, as declared at the time, there was no election. It is conceded in this case that as there were eight present at the meeting of July 20th, it required a majority of those present to elect a Market Master. Without citation of further authorities, which are exceedingly numerous, if there could be any doubt on that point, such doubt is dismissed by the case of Hooper v. Creager, 84 Md. 195.
 
Legislative and judicial authorities[***10] agree that in elections by a definite or select assembly, blank ballots are to be counted as non-concurring votes in estimating whether any candidate has received a majority of the votes cast. A case explicitly decisive of the question occurred in the election of a Speaker on May 22nd, 1809, at the first session of the Eleventh Congress. A quorum consisting of a majority of the whole number being present, the House proceeded by ballot to the choice of a Speaker. The tellers reported that the result of the ballot was that there were for Joseph B. Varnum, 60; Nathaniel Macon, 36; Timothy Pitkins, Jr., 20; Roger Nelson, 1; C. W. Goldsborough, 1; blank ballots, 2.
 
John Randolph, the leader of the House, declared that "he conceived that there was no question that they had not elected their Speaker, and that it was their business to proceed to an election. They were certainly competent to elect the officers of their own body, and he hoped they would do it more majorum--after the fashion of their ancestors." Mr. Randolph then moved that the House proceed to ballot a second time for Speaker, which having been done, Mr. Varnum had a clear majority of votes (65 against 54), and was declared[***11] elected. Benton's Abridgement, Debates of Congress, vol. 4, p. 125.
 
This remained the acknowledged law of the House of Representatives until September 15th, 1837, when it was expressly changed by the following rule of procedure, adopted by the House upon motion of Levi Lincoln (formerly Mr. Jefferson's Attorney-General): "In all ballotings, blanks shall be rejected and not taken into the count in enumeration of votes or reported by the tellers." This remains the rule of the House, as reported in the revision of 1880, at the present time. See Hinds' Parliamentary Precedents of the House of Representatives, sec. 1125, p. 597. And so the Code of Massachusetts expressly provides "blank pieces of paper shall not be counted as ballots." Rev. Statutes, ch. 4, sec. 13.
 
The case of State, ex rel. Cole v. Chapman, 44 Connecticut, 595, is an explicit and positive adjudication upon the subject of this inquiry. Lawrence v. Ingersoll, 88 Tennessee, 52; 17 Am. St. Rep. 870, also decides the point in question flatly in favor of the appellant, and lays down precisely the doctrine of the United States Senate, the House of Representatives and the Supreme Court of Connecticut, and of the other[***12] authorities upon the effect of a blank ballot in elections by a select and definite electorate. See also Keough v. Holyoke, 156 Mass. 403; People v. Conklin, 7 Hun. 188; Com. v. Wickersham, 66 Pa. St. 134; Anniston v. Davis, 98 Ala. 626; 39 Am. St. Rep. 94; Queen v. Griffiths, 17 Ad. & Ellis N. S. 164.
 
Price v. Brock, 79 N. C. 600, presents an almost complete analogy to the case under consideration; the Board of Aldermen of the city of Wilmington consisted of ten members, and in an election of a Chief of Police for that city, on the sixth ballot, all the members being present, five votes were cast for the plaintiff, four votes for the defendant and one blank ballot was deposited. The clerk of the board announced that the plaintiff was elected; but the board decided to take another ballot upon which the defendant received six votes and was declared elected. The Court without deciding how the blank ballot was to be regarded, held that it was the exclusive province of the Board of Aldermen of the city to declare the result of a ballot for Chief of Police, and that as they had not declared the plaintiff elected, and for that reason the plaintiff was not elected.
 
In State v. Deliesseline[***13] (2 McCord, S. C. 52), it was held, p. 62, that where eleven constitute a quorum of a board of trustees of a college "six constitute a majority of that quorum, and the concurrence of that number, when eleven are present, has always been held conclusive in the whole body," and where twenty constitute the majority or a quorum of the whole number of a select body, the Court held, p. 63, that "if a majority of the whole number be required and a bare majority meet, they must be unanimous," but that if a majority of the whole number is not required, where the eleven are present, "the concurrence of a majority only should be required." And so in Labourchette v. Municipality, 2 La. Am. 519, in the able argument of counsel, which was adopted by the Court, it is said: "The lex majoris partis is the law of all councils, elections, etc., where not otherwise provided. The majority here means the major part of those who are present at a regular corporate meeting." Citing Bacon's Abr., Title Corp. E., No. 7; 2 Kent Comm., 293; 12 Kyd Corp., 308, 400, 424; Jefferson's Manual, sec. 41.
 
The two cases last referred to are cited and adopted by JUDGE DILLON as the authority for his rule, which he lays[***14] down that "the majority of those present must concur." 1 Dill. Mun. Corp., sec. 282, as follows: "In the absence of a special provision the major part of those present at a meeting of a select body must concur in order to do any valid act." See also sec. 283.
 
And that learned author expresses a dissent from or at least a serious doubt as to the doctrine laid down in Rushville Gas Co. v. Rushville, 121 Ind. saying: "The Court held that the resolution having received the vote of a majority of a quorum, although not of a majority of all present, was legally adopted. It deserves further consideration whether this result is consistent with the majority rule applicable to definite bodies." 1 Dillon, Mun. Corp., 4 ed., note at foot of p. 369.
 
And similarly the latest work on the Law of Corporations in dealing with the subject of corporate meetings lays down the rule on the authority of Com. v. Wickersham, 66 Pa. St. 134, and People v. Conklin, 7 Hun. 188, as follows: "If a director who is present does not vote at all on a resolution he is bound to be counted in the negative for the purpose of determining whether the resolution has been carried by a majority vote." 3 Clark and Marshall[***15] on Corporations, sec. 681; see also sec. 676. See also 10 Am. & E. Ency., p. 760, sec. 6.
 
The cases relied on by the Court below and by counsel for the appellees are:
 
(1) Cases of popular elections by indefinite constituencies, such as Walker v. Oswald, 68 Md. 150, and Cass Co. v. Johnson, 95 U.S. 360, in which the doctrine, which is not at all involved in this case, is laid down that those who, in such elections, absent themselves or abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting; or
 
(2) Cases where, in different assemblies, only a single proposition or candidate is proposed and there is an absolute and willful (some of the Judges say "contumacious") refusal on the part of some of the electors to take any part or vote at all in the election or other proceeding of the body, such conduct is considered as an acquiescence in the action of those who do take part. Such are the cases of Oldnow v. Wainwright, or Rex v. Foxcroft, 2 Burrow's, 1017; Gosling v. Veley, 4 H. L. Cas. 679; Green's case, 37 Ohio St. 227; Atty-Genl's case, 62 N. H. 383; City of Rushville case, 121 Ind. 106; Morton v. Youngerman, 89 Ky. [***16]; Wheeler v. Crum, 98 Ky.
 
Between such cases and the present case of an elector attending a meeting of the corporate assembly, voting in favor of a motion to proceed to the election of corporate officers, taking part in the election wherein several candidates are proposed and casting a blank ballot upon the faith of the uniform and long-settled practice of the corporate body to give effect to such a ballot as a non-concurring vote, and having moreover observed such an effect repeatedly given, with the acquiescence of the whole assembly, to blank ballots cast in numerous previous elections for corporate officers at the same meeting, the distinction is so broad and obvious that it would seem to be impossible to overlook it.
 
The Journal of the Municpal Assembly, approved and adopted by all its members, declares that the appellee was not elected Market Master, and conclusively rebuts his claim, as presented in this case, to the office in question. It is the exclusive province of the municipal body itself to declare the result of its elections, and as the journals of its proceedings declare that the appellee was not elected, their declarations in this respect are conclusive upon[***17] him and upon this Court, and outside of every other question raised in these proceedings, effectually dispose of the claim of the appellee as presented herein to the office in question. The case of Price v. Block, 79 N. C. 600, is flatly decisive of this proposition. And to the same effect are: Mayor, etc., v. Davis, 98 Ala. 629; Keough v. Holyoke, 156 Mass. 405; Putnam v. Langley, 133 Mass. 204; Baker v. Cushman, 127 Mass. 195.
 
The minutes of the proceedings of a public corporation required by law to be kept in writing make up a public record importing absolute verity. They are evidence of all that was done, and that nothing more was done; and they cannot be attacked or contradicted in a collateral action to which the board are not made parties. Price v. Brock, 79 N. C.; Mayor, &c., v. Davis, 98 Ala. 629; Keough v. Holyoke, 156 Mass. p. 405; State v. Simmons, 40 La. Ann. 758; Gaither v. Tax Collector, 40 La. Ann. 362; Gilbert v. New Haven, 40 Conn. 102; Cabot v. Brit, 36 Vt. 349; Bradbury v. Bluton, 69 Me. 194; People v. Zeyst, 23 N. Y. 140; Hallect v. Boylston, 117 Mass. 469; Lawyer v. R. R. Co., 62 N. H. 135. The Council has full power to correct its minutes at a subsequent[***18] meeting. 1 Dillon, sec. 293, sec. 297 and notes; 15 Am. & Eng. Ency. 1077, sec. 7 and note; Mayor v. Davis, 98 Ala. 634.
 
If the appellee were duly elected he has his remedy. By direct proceedings for that purpose he may have the minutes of the corporation corrected so as to declare that he was elected, it being the province of the corporate body exclusively to declare the result of its elections. But, as said in Davis v. Mayor, 98 Ala. 635-6, "So long as the minutes of the Council, they cannot be impeached or varied in a collateral proceeding by parol testimony.
 
Under the decision in Maryland the provisions of the City Code of Annapolis requiring the giving of bond within a prescribed time are mandatory, and the appellee having failed to tender or present a bond within ten days after his alleged election on July 20, the office remains in the possession of the appellant.
 
The peremptory language in which they are expressed show that they are mandatory. It has been decided in a large number of the American States and in a multitude of cases that the failure to take the oath or give the bond within the prescribed time vacates the office, so that it cannot be restored by[***19] a subsequent compliance with the statute. This has been decided in 37 Ark. 486; 52 Ala. 66; 57 Cal. 620, 35 Cal. 509; 14 Fla. 277; 27 Ind. 496, 100 Ind. 489; 7 Kan. 372; 83 Ky. 142; 19 Nev. 370; 60 Pa. St. 136; 77 Va. 518, 265, 347, 300, 78 Va. 116; 58 Miss. 556; 4 Cranch. Ct. Ct. 255; England, 2 Bro. P. C. 289. In Maryland this is undoubtedly the rule. Hecht v. Coale, 93 Md. 692, 695; Archer v. State. 74 Md. 443; Thomas v. Owens, 4 Md. 189; Baltimore & Drum Point R. R. Co. v. Pumphrey, 74 Md. 112, 113.
 
The whole doctrine upon this subject is briefly stated in 23 Encyclopedia of Law, pp. 357, 358-9; where the learned editor states that in Maryland a statutury provision requiring bond within a prescribed time as a qualification for office is absolutely mandatory, and cites the case of Archer v. State, 74 Md. 443.
 
James W. Owens and Carroll T. Bond, for the appellee.
 
Casting a blank, upon taking a vote by ballot, is a refusal to vote, and the member casting it is regarded as having assented to the result of the votes cast.
 
By sec. 17 of the Charter of the city of Annapolis, the corporate body was empowered to provide for the appointment of its officers; and in the [***20]City Code, Art. 29, sec. 1, of that municipality, provision is made that about the time of this meeting of July 20th, 1903, the body shall elect "by ballot" its officers, including the Market Master, the office for possession of which this suit is brought.
 
A ballot is one form of voting, different from other forms only in that of the voter, to maintain secrecy, writes his wish or choice on a piece of paper and deposits the paper along with the other votes cast. Like all other forms of votes, it is an expression of the voter's wish in respect to the matter to be determined. Authority in support of this definition is hardly necessary, but is found in Anderson's Law Dict., "Ballot;" Cooley's Const. Lim. (6 ed.) p. 760; Bourland v. Hildreth, 26 Cal. 194; Brisbin v. Cleary, 26 Minn, 108-109.
 
Anyone entitled to vote who deposits simply a blank piece of paper, does not, of course, express his wish or choice, and therefore refrains from voting. Any other construction would be reading upon the paper what is manifestly not there. Instead of voting, the one who deposits the blank deposits his voting material only.
 
It is argued that casting a blank ballot amounts to something more[***21] than refraining from voting, in that it is a more positive act and is at least a declaration of intention not to vote for the candidates proposed; that it notes the presence of the member casting it, and therefore requires that he be counted among those present in determining the number necessary to elect, and is a tacit expression, if such a thing can be, of a wish to prevent election by insisting upon being counted in determining the result. The act is clearly nothing more, however, than abstaining from voting; no more positive than would be an oral declaration of an intention not to vote. The presence of the member is already sufficiently noted; and mere presence of a member who takes no part in the business in hand will not count to defeat action by the other members. The business in hand at the meeting on July 20th, it must be remembered, after it had been resolved to hold an election, was solely to obtain the name of a candidate from each member so that the choice of the greater number might be ascertained.
 
In this body there are eight members, all entitled to votes, and if all had voted, five would have been necessary to a choice. Alderman Martin expressed no choice, wishing[***22] by such silence, as he himself testifies, to prevent election at the time, so that he was lending his efforts, not to the accomplishment of the object resolved upon and the business in hand, but to the accomplishment of his wish on the question whether or not an election should be held; a question already disposed of by the body. Cushing's Law of Legislative Assemblies (1874), sec. 114.
 
It has been held by this Court, and in all but two or three of a large number of cases elsewhere, in which the question has arisen, that when a quorum of a body has assembled, and the body duly proceeds to the election of officers, the refusal of some of the members present to vote for the candidates proposed, will not prevent the election by the votes actually cast, even though those voting are less than a majority of all members present. This rule obtains in assemblies of a definite number of members, or "definite assemblies," as they are called. According to this strong preponderance of authority, Strange, having received four votes against three for Murdoch, was elected, notwithstanding Mr. Martin's refusal to vote for either candidate. Walker v. Oswald, 68 Md. 150; Willcock on Municipal Corporations, [***23] sec. 546; Grant on Corporations, 204, 206.
 
And it seems clearly reasonable that mere bodily presence of a member at a meeting in which he makes no effort to assist in the determination of matters to be acted upon, should not be permitted to hinder the other members present and acting, any more than if he were not present. Cooley's Constitutional Limitations, (6 ed.), p. 893, n.; Horr & Bemis, Municipal Police Ord. 42; 1 Beach Public Corporations, sec. 157; Golsing v. Veley, 4 House of Lords Cases, 679; State v. Green, 37 Ohio St. 227, County of Cass v. Johnson, 95 U.S. 360.
 
The rule was applied in the following cases also: United States v. Ballin, 144 U.S. 1. In which a vote in the House of Representatives was, yeas, 138; nays, o; not voting 189. State v. Yates, 19 Mont. 239, 37 L. R. A. 205; Rushville Gas Co. v. Rushville, 121 Ind. 206, 6 L. R. A. 315; State, &c., v. Dillon, 125 Ind. 65; State v. Vanosdal, 131 Ind. 388, 15 L. R. A. 832; Attorney-Gen. v. Shepard, 62 N. H. 383; People v. Clute, 50 N. Y. 451, 461, cited in Walker v. Oswald; State v. Parker, 32 N. J. Law, 341; Launtz v. People, 113 Ill. 137; Booker v. Young, 12 Gratt, 303; Smith v. Proctor, 130 N. Y. 319, 14[***24] L. R. A. 403; Wheeler v. Commonwealth, 98 Ky. 59; Citizens, &c., v. Williams, 40 La. Ann. 422, 439, which cites Walker v. Oswald.
 
All those authorities which hold that votes knowingly cast for ineligible persons are to have no greater effect than if the intended voter had made no effort to vote, are decisive of this question. Certainly the appellant cannot contend that Mr. Martin's blank should have any greater effect given to it than if his blank actually contained the name of some ineligible person. The latter would be much more clearly a dissent from the choice of one of the other candidates being voted for. Yet votes cast for persons known to be ineligible are lost and cannot defeat an election. Cooley's Constitutional Limitations, (6 ed.), p. 932, n. 1; Price v. Baker, 41 Ind. 572; King v. Hawkins, 10 East. 211; King v. Parry, 14 East. 549.
 
In Reg. v. Coaks, 3 Ellis & Blackburn, 249, &c., LORD CAMPBELL, C. J., said: "Now it is the law, both the common law and parliamentary law, and it seems to me also common sense, that, if an elector will vote for a man who he knows is ineligible, it is as if he did not vote at all, or voted for a non-existent person; as it has been[***25] said, as if he gave his vote for The Man in the Moon." See People v. Clute, 50 N. Y. 463.
 
The City Code of Annapolis requires that within ten days of his election, each officer shall file a bond, or else his election shall be considered of no effect and shall be vacated. There is a dispute among the authorities whether such a provision is mandatory or directory. Similar provisions have been held directory only. Clark v. Ennis, 45 N. J. Law, 69; 1 Beach Public Corporations, secs. 312 and 313.
 
But for the purposes of this case, it is sufficient to note that imperative as such a statute is, in terms, it will not be construed as requiring the impossibility and absurdity of filing a bond during a contest over the election, and during the time when the person required to receive the bond would not consider it. For this reason, the provision of the Code must be construed as requiring the bond to be filed only within ten days after the election of Strange was acknowledged, and the municipal officers were ready to consider it. Mechem on Public Officers, sec. 266, notes; Throop on Public Officers, sec. 172; State v. Kraft, 20 Oregon, 28; State v. Johnson, 100 Ind. 489, 491; Flatan [***26]v. State, 56 Texas, 93, 99; Ross v. Williamson, 44 Ga. 501, 504; State v. Barnes, 51 Kans. 688, 691.
 
This requirement of the law Strange complied with. On August 24th, after the vote on Mr. Riley's appeal on August 19th, from the refusal of the Mayor to declare Strange elected, Strange offered his bond, but as half of the body considered he had not been elected, the bond was not received. On October 1st, when the mandate of the Circuit Court for Anne Arundel County, directing the corporate body to declare Louis S. Clayton elected, and to receive his bond, was served on the assembly, the election of Strange and all the other city officers voted for on July 20th, was then acknowledged by the body, and Strange's bond was presented and approved by a vote of five to three. He therefore filed his bond as soon as was permitted, and sooner than the Code required.

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

OPINIONBY: PAGE

OPINION: [**628] [*104] PAGE, J., delivered the opinion of the Court.

   By the Charter of the City of Annapolis, the Mayor and City Council have power "to provide for the appointment and define the duties"[***27] of various officers, including that of Market Master. By Art. 29, sec. 1 of the City Code, it is enacted, that the Market Master shall "be chosen by ballot," on the second Monday of July in each and every year, to serve until the second Monday in April next ensuing, or, "in case of failure on the part of the corporation then to elect, until another election shall take place thereafter."

   On the 20th July, 1903, the Mayor, Counsellor and Aldermen, [*105] constituting the City Council, and numbering in all eight members, met, and by resolution, regularly offered and adopted, agreed to proceed at once to elect officers of the city corporation. The appellant and the appellee were thereupon put in nomination for Market Master; and upon a vote by ballot being taken, R. H. Strange received four votes, J. H. Murdoch received three votes, and there was one blank ballot. The Mayor thereupon declared there was no election. On July 23rd, 1903, and again on 30th July, the same persons were balloted for, with like results; that is, at each of the ballotings, Murdoch received three votes, Strange four, and there was one blank ballot, and on each occasion the Mayor declared there had been no[***28] election.

   The main question raised by these proceedings is presented by the contention of the appellant that by the proof taken and set forth in the record, there exists a usage and practice of the Corporation of Annapolis whereby a blank ballot shall not be counted for any of the persons voted for in the appointment of the city officials by the corporate electors; but shall be counted as a ballot in estimating the total number of votes cast and in determining whether any person voted for has received a majority. If it be admitted, for the sake of the argument, that a rule or by-law of a corporation may be established by proof of custom long maintained and acquiesced in by its members, yet it is clear, (Miller v. Eschbach, 43 Md. 1), that inasmuch as the M. & C. C. of Annapolis are a municipal corporation established for political purposes and possessing no powers except such as have been expressly, or by necessary implication, given by the law creating it, no by-law or rule can be established by custom, which is beyond its authority to adopt by resolution or ordinance. Admitting, therefore, further, for the sake of the argument, that the custom contended for[***29] by the appellant has been fully established (which however we do not decide), there arises the pertinent inquiry, how far the corporate authorities of the city of Annapolis have power to adopt as a rule of procedure, in the election of its officers, a rule whereby a blank ballot is to "be [*106] counted as a ballot in estimating the total number of votes cast;" or in other words, may it under its conceded power of establishing a rule of procedure, declare by resolution, or in any other manner, not only that a blank ballot, shall be counted, but also that it shall be counted as a vote of dissent. We are not inquiring, just now, whether such a rule would be reasonable; but [**629] whether it is in conformity to the proper exercise of the power granted by the charter. By the 17th section of that instrument, the power to the Council is, "to provide for the appointment" of Market Master and certain other officers. It may be clear, that the particular method of the appointment is left to the judgment and discretion of the corporation; that is, whether the method of appointment should be by resolution of the Council, or by a a viva voce vote, or by ballot. However the Council[***30] may decide, in this respect, the method itself and the several steps by which the final choice is to be determined, must be in harmony with the fundamental principles, recognized and understood by the common law to be applicable. For instance, if the Council provided by its ordinance, as it has done here, that the appointment shall be by ballot, the Council could not establish a rule, by custom or otherwise, whereby a minority of the votes cast would be effective to elect, or whereby a number less than a quorum could transact the business. It seems to be clear, as was said in Trowbridge v. Newark, 46 N.J.L. 140, that a power to provide for the appointment, granted to a municipal corporation, merely authorizes the "Common Council to pass ordinances prescribing a mode and manner of manifesting their will, whether to do so, by ballot or resolution or ordinance, or by mere motion adopted viva voce."

   The municipal body may make such rules, as conform to or are not in conflict with the essentials of law making; but such rules must not be in derogation of the law of the land, whether common law or statutory. Cooley Const. Lim. (6 ed.), 187; Heiskell v.[***31] Mayor, &c., 65 Md. 125; 1 Dillon on Munci. Corp., sec. 319 (4 ed). Or to state the proposition with reference to the particular facts of this case, if the method [*107] of appointing the Market Master be fixed by the ordinance of the Council to be by ballot, then all the common law rules that apply to that method of acting must be observed; and no rule can be established by custom or otherwise, that will substantially affect the determination of the majority, otherwise than according to the principles of the common law. The power conferred upon the City Council by sec. 17 of the Charter, was therefore completely exercised by the passage of sec. 1 of Art. 29 of City Code, in respect to the method of the selection of Market Master, whereby it was provided that he should be chosen by ballot. How the ballots shall be counted, and the majorities determined, where matters fixed by the principles of the common law. In Heiskell v. Mayor (supra), it was stated in substance, that where the Charter is silent, the common law fixes the majority as the legal body, and for the Municipal Council to undertake to make a greater number, is to attempt to change the[***32] common law; and by a parity of reasoning, it would seem to be equally clear, that when a municipal body without special authority from the Charter or from some legislative enactment, under the pretence of making a rule of procedure, undertakes to affix to the ballots cast, or to any one of them, or to a blank ballot, a significance, other than that given or allowed by the principles of the common law, whereby the final result of the balloting is or may be entirely changed, it is in fact neither more nor less, than an attempt to change the common law; and such an undertaking would be illegal and void.

   The matter then amounts to this, is it in accordance with the principles of the common law, that the blank ballot in a case like this, should be counted in estimating the total number of votes cast, and therefrom determining, whether any person voted for has received a majority.

   The "blank ballot," referred to in these proceedings, was a blank piece of paper, having on it no words or marks of any kind whereby the meaning and intent of the person who deposited it, may be ascertained. To denominate such a paper a ballot, would seem to miscall it. It is in fact nothing; it cannot [*108] [***33]be expressive of any intention; no rule or method of interpretation can relieve it of its dumbness. It no more indicates a preference for one of the candidates, than for another. If there is but one candidate, there is nothing to indicate assent to the one; nor where there are two or more candidates, as a vote of assent or dissent, as to either candidate. In the case of Yulee v. Mallory, 1 Bart. Election cases, 608, the report of the committee referred to the "blank ballots as beyond doubt nullities," and in Stockton's case, they were regarded only because of a rule of the State Legislatures that cognizance should be taken of such ballots. It is true, that in some jurisdictions, it has been held, that "a blank vote cannot be in a technical sense a ballot, but is nevertheless an act of negation--affirmative in showing that another voter acted, and negative in determining the majority," Lawrence v. Ingersoll, 88 Tenn. 52, 12 S.W. 422. In this case C. J. TURNEY dissented; holding that "a blank vote was only an expression of indifference;" and in this opinion he is supported by much authority, and it seems to us by principle. A ballot is a form of expression[***34] for a candidate to be voted for. If the paper falls short of expressing such a wish, it is defective; certainly, if it expresses nothing, it lacks all of the essential elements of a ballot. If it contains the name of a man, who is known to the voter to be ineligible the ballot cannot be counted, because the object of ballot then would be not to elect, but to prevent an election. People v. Clute, 50 N.Y. 451; Reg. v. Coaks, 3 Ellis & Blackburn 249.

   It is not easy to perceive how a blank ballot can be given any significance. If it expresses nothing and therefore cannot be counted for or against either of the candidates [**630] voted for, how can it serve to indicate assent to the person receiving a plurality of the other votes cast, or of dissent? How can a blank piece of paper, be construed to express an intent of any kind? If it be regarded as an expression of dissent, it may be asked to what does he dissent? Is it to the holding of the election? And if this may be so, how can the person who deposits it, by a mere arbitrary interpretation of the [*109] act of placing a blank piece of paper in a ballot-box, be permitted to defeat the votes of electors,[***35] who are endeavoring to perform an important public duty. "As all electors have the same right, it follows, that each of them is bound to exercise his particular right, in such manner, as to allow to every other elector, the free and full exercise of the same right on his part; which would not be the case if one elector had the power by means of a blank, to defeat the vote of another for a particular candidate, without himself voting for anybody." Cushing's Law of Legislative Assemblies, (1874), sec. 114.

   There are some cases when an effective action of the legislative body requires a majority of all the members, or of all the members present. In such a condition of legal requirement, the question of the significance of a blank ballot cannot arise; for there must always be at least the concurrence, of a fixed number of votes. In Yulee v. Mallory, it required a majority of all the members to elect. In People v. Conklin, 7 Hun 188, the statute rendered indispensable a majority of the trustees present. The Court said in that case referring to the blank ballot "if a presumption is to be entertained on the subject it is just as reasonable that it should[***36] be indulged in the defendant's as in the relator's favor." In Swartz v. Wickersham, 66 Pa. 134, a majority of the whole number of directors present must concur. These and like cases, do not throw much light upon the subject of the significance to be attached to a blank ballot.

   It would seem therefore, impossible and if not so, at least not reasonable, to make any presumptions with reference to the meaning of the voter who deposits a blank ballot. It is a safer principle, it seems to us, and one more in harmony with sound reasoning, to hold that the voter who deposits a blank piece of paper in the ballot-box throws away his vote;--because the paper he has voted is not expressive of any meaning whatever and therefore utterly null and void. It is true, that a blank ballot may sometimes operate as a vote of assent; not that any presumption as to its meaning may properly be drawn, but because, being ineffective for every purpose, the [*110] person casting it, has left unopposed the votes of the other electors, and thereby, it may be said, assents to the election of the candidate, who receives a majority of votes. Grant on Corporations, 204 et seq.; Willcock [***37]  on Mun. Corp., sec. 546; Cooley Const. Lim., 771, (6 ed.); where it is said: "A blank ballot being of such a character, and not to be counted, it follows, that a candidate may be chosen without receiving a majority or plurality of votes of those who actually participate in the election."

   In this State it is settled that in elections where there is an indefinite number of voters, "those absenting themselves and those who being present abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting, even though, in point of fact, but a minority of those entitled to vote, really do vote." Oswald v. Walker, 68 Md. 146-150, 11 A. 711. This principle is supported by the overwhelming weight of authority in this country and England. From Oldknow v. Wainwright, 2 Burr. 1017, decided in 1760, down to United States v. Ballin, 144 U.S. 1, there is hardly a single decision to the contrary. Cooley Const. Lim., 6 ed., p. 771; County of Cass v. Johnston, 95 U.S. 360; Reg. v. Coaks, 3 Ellis & B. 249; Price v. Baker, 41 Ind. 572;[***38] Willcock on Mun. Corp., sec. 546; Grant on Corp., p. 204, et seq.; Citizens, &c., v. Williams, 49 La. Ann. 422; Smith v. Proctor, 130 N.Y. 319; People v. Clute, 50 N.Y. 451. We do not understand the counsel for the appellant to assail this doctrine, as applicable to elections by an indefinite number of voters; but he contends it does not apply to elections by definite assemblies, where he contends a different rule should prevail.

   To constitute a corporate assembly at common law, there must always be present, a quorum, consisting of at least a majority of the number of all the members, and no valid act can be done without a majority of a quorum. Dillon (supra), in his work on corporations says: "The common law rules as to quorums and majorities, established with reference to corporate bodies consisting of a definite number of corporators, have also been applied [*111] to the common council, or select governing body of our municipal corporations, where the matter is not specially regulated by the charter or statute. Thus,--if the body consist of twelve common councilmen, seven is the least number[***39] that can constitute a valid meeting, though four of the seven (the seven being duly assembled and present), may act,. It was held that the legal effect of their refusal to vote while remaining present, was an acquiescence in the action of those voting." (See reference in note.)

   It was contended, however, by the counsel for the appellant that there was something in conflict with this statement, in the following citation from the same work, sec. 279. "So if a board of village trustees consists of five members and all or four, are present, two can do no valid act, even though the others are disqualified by interest from voting, and therefore omit or [**631] decline to vote; their assenting to the measure voted for by the two will not make it valid. If three only were present they would constitute a quorum, then the votes of two, being a majority of the quorum would be valid; certainly so when the three were all competent to act." This was regarded in Lawrence v. Ingersoll, 88 Tenn. 52, as an authority for counting a blank ballot for the purpose of showing that no person received a legal majority. But in the case of The Rushville Gas Co. v. The City of Rushville, 121 Ind. 206,[***40] the Indiana Court conclusively shows, that it should have no such significance. In the first sentence, by reference to the case of Coles v. Trustee, 10 Wend. 659, it is clear that the author was referring to the effect of the presence of disqualified persons, whereby there was no valid quorum present, so far as the voting was concerned. In the second sentence, he but announced the well-known principle, that where only a bare quorum was present a majority may bind the quorum. Buell v. Buckingham, 16 Iowa 284; Rex v. Monday, Cowper, 538.

   It is difficult to assign any sufficient reason why this rule concededly applicable to indefinite assemblies, should not apply also to definite. Upon what principle should a member of the Council of Annapolis by simply depositing a blank ballot [*112] be enabled to prevent others from acting, who are willing to perform their duty of making an election? As was said in Grant on Corporations, p. 204, et seq., the elector is present as an elector, his presence counts as such to make up the requisite number of electors where a certain number is necessary, but he attends only as an elector to[***41] perform the duty which is cast on him by the franchise he enjoys as an elector; he can speak only in a particular language; he can only do certain acts; any other language means nothing; any other act is merely null; his duty is to assist in making an election. If he dissents from the choice of A who is qualified, he must say so by voting for some other who is qualified; he has no right to employ his franchise merely in preventing an election, and so defeating the object for which he is empowered and bound to attend the elective assembly of the corporation."

   The overwhelming weight of authority is in favor of these views. They have been applied at least as far back as the leading case of Oldknow v. Wainwright, 2 Burr 1017. The election there, was of a town clerk by the Mayor, Aldermen and Common Council, the entire number of electors being twenty-five, twenty-one assembled, nine of whom voted for the candidate, but twelve did not vote at all. LORD MANSFIELD said: "Whenever electors are present and don't vote at all, they virtually acquiesce in the election made by those who do." This case and other English cases were reviewed in Gosling v. Veley, 4 H. [***42] of L. Cases, 679, and the doctrine of LORD MANSFIELD in Oldknow's case was approved. The following were cases of elections by definite assemblies, where the same principles were affirmed. State v. Parker, 32 N.J.L. 341; Wheeler v. Commonwealth, 98 Ky. 59; State v. Young, 19 Mont. 239; Atty.-Genl. v. Shepard, 62 N.H. 383; Rushville Gas. Co. v. Rushville, 121 Ind. 206; State v. Vanosdal, 131 Ind. 191; Ib. v. Dillon, 125 Ind. 65; Booker v. Young, 53 Va. 303, 12 Gratt. 303; Launtz v. People, 113 Ill. 137; State v. Green, 37 Ohio St. 227; see also Willcock on Mun. Corp., sec. 546.

   We are therefore of opinion, that the appellee should have been declared elected.

   [*113] The point was also raised that the appellee did not file or tender a bond within ten days after his alleged election on 20th July, and therefore his election is of no effect, and was vacated under the provisions of sec. 5 of Art. 29 and sec. 17 of Art. 26 of the City Code, which requires the Market Master[***43] to give bond, &c., to be approved by the Mayor, &c., within ten days after his election." The facts show that the Council by its presiding officer declared the appellee not elected--and thereby rendered the filing a bond impossible so long as that position was maintained. Subsequently, upon the Circuit Court of Anne Arundel County, deciding that Louis S. Clayton, whose case was substantially like that of the appellee, was duly elected, the Council so far retracted its position, that it became and was willing to accept the bond of the appellee. The appellee thereupon presented his bond to the Council, and it was approved by them.

   It must be noted, that no objection is now made to the form or sufficiency of the bond, but that it was not presented in time. It is not within the case of Hecht v. Coale, 93 Md. 692, where a person claimed the office, without having filed a sufficient bond. Nor is it within Archer's case, 74 Md. 443, where the appellant had wholly failed to qualify, within one month, and the question was, could a suit be maintained on a bond, filed by the appellant at a time when he had no right to the office.

   Here the question is, [***44] did the appellee by failing to present his bond within ten days after the 20th July thereby forfeit his claim to the office of Market Master.

   First. It may be seriously questioned whether the appellee after he had been declared not elected, erroneously it is true, by the presiding officer of the Council, was in a position in which he could make any effective tender of his bond, until the Council or some Court having authority in the matter, should decide that he had been elected; and the ten days fixed for the filing of the bond should be reckoned from the date of that decision.

   [*114] Second. But apart from this, it [**632] may be asked how could he file his bond, any sooner than he did.

   On the first day of October, 1903, the Anne Arundel Court decided upon the legal principles to be applied to the case of Clayton who was one of the candidates for the various municipal offices. Then the position of the Council underwent a change, and on that day they voted to and did approve the appellee's bond.
 
   Whether the requirement of the Code be considered as mandatory or directory, it would certainly be a harsh construction of it, to decide that under these circumstances[***45] the appellee had forfeited his claim to the office. He was prevented from filing the bond, by the conduct of the officers appointed to receive it. He was not bound to do the nugatory act of tendering it, as long as he was substantially informed it would not be received. It is his own failure that will operate against him, and not that of others who prevented. Culver v. Armstrong, 43 N.J. 776. The provisions of the law requiring the bond in a fixed time, do not apply as long as a contest is pending to determine who is elected. People v. Potter, 63 Cal. 127; Pearson v. Wilson, 57 Miss. 848. If this were not the rule, a person entitled to an office could be defeated of his right, by the mere refusal of an officer appointed to approve the bond declining to receive it. Throop on Public Offices, sec. 172.

   It follows from what has been said that the order must be affirmed.

   Order affirmed. 

MELVIN S. DUNLAP vs. JACOB GIPSON. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
98 Md. 119; 56 A. 363; 1903 Md. LEXIS 199

 December  4, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Judgment reversed with costs without awarding a new trial.

CORE TERMS:  deed, recorded, deprived, prayer, declaration, conveyed, lying, acre, acres of land, trespass, promised, bought, offered evidence tending, entitled to recover, legally sufficient, land sold, grantor, vendor, convey

COUNSEL: James M. Munroe, for the appellant.
 
The sole cause of action set out in the declaration is that plaintiff was deprived of his land by the acts of the defendant set out therein, viz: 1st, not delivering for record a deed; 2nd, delivering for record an erroneous deed.
 
How the plaintiff was "deprived of his land" by the acts complained of, there is no attempt to show. The fact that the plaintiff was deprived of his land at all, nowhere appears in the evidence. On the contrary, all the evidence shows conclusively that the plaintiff was at all times in full, complete and exclusive possession of the very land he says he bought and for which he claims he should have received a deed. Plaintiff says "that he entered into possession of the land purchased by him from Edwards and built a house on that part which lies near Edwards' private road, &c., and dug a well on the further end of the land up near Mr. Frank S. Revell's land." There was never any doubt about what land he bought; Edwards never objected to his having possession of the property; Colson[***2] knew perfectly well that he had bought that property because he had seen him in possession of it."
 
The aforegoing is part of the plaintiff's own testimony.
 
It is further shown by the evidence that one H. Colson, who also claimed an acre of the tract of land claimed by the plaintiff Gipson, sent Gipson, through the defendant, notice not to trespass further on that acre of land, and that he (Colson), did not desire him (Gipson), to clear it up or work it. This also shows that appellee was in possession of that land; else there would have been no occasion for such a notice. So far from appellee having been deprived of his land, he never even knew until 1902, six years after his purchase, that any one else had any claim to any part of his purchase.
 
In this state of proof by the plaintiff, what possible relevancy under the pleadings in this case, could there be in the question? "State whether or not anybody has filled up your well, and if so, who did it and when?" Non constat but that some third party committed this trespass. In point of fact the answer shows that a third party did do so. Non constat but that said trespass may be the subject of another suit. In point of fact, [***3] so it is. The Court should not have permitted the question to be asked. But the evidence was admitted subject to exception and to be stricken out if, after all the testimony was in, the Court determined that this testimony was inadmissible. As the record is silent as to motion to strike out that testimony and that of the ruling of the Court thereon, no comment is made on that subject. But appellant insists that he does not lose the benefit of his exception to the question on account of his failure to except to the refusal or omission of the Court to strike out the answer to the question aforesaid, which was duly excepted to; and further insists that whatever may be the rule as to the admission of evidence, subject to exception, and to be stricken out on motion, yet where testimony is absolutely irrelevant to any issue made by the pleading and cannot in any view or under any circumstances become relevant, and where express objections is made to its admissibility when offered under the pleadings, the appellant does not lose the benefit of his exception, properly noted, by subsequent failure to move to strike out such testimony.
 
But suppose all the testimony in the record is properly[***4] before the Court, and admitting all the plaintiff's evidence to be true and all defendant's evidence to be false, how, under the pleadings in this case, can the plaintiff recover?
 
No appearance for the appellee.

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

OPINIONBY: SCHMUCKER

OPINION: [**363] [*121] SCHMUCKER, J., delivered the opinion of the Court.

   This is an appeal from a judgment against the appellant, as defendant, in an action brought by the appellee in the Circuit Court for Anne Arundel County.

   The declaration contains two counts. The first count avers that the defendant failed to have recorded among the land records of Anne Arundel County a deed from George Edwards to the plaintiff which the latter had left with him for that purpose and which he had promised to have so recorded, "whereby the plaintiff is deprived of his property." The second count avers [*122] that in March, 1902, the defendant without the knowledge or consent of the plaintiff procured to be recorded in said land records a deed from George Edwards to the plaintiff purporting to convey a certain parcel of land ("not describing or identifying it") lying[***5] in the third election district of said county but that the deed "did not contain in its description the property that was intended to be conveyed" by said Edwards to the plaintiff and that both Edwards and the defendant were aware that the deed did not contain the property to be conveyed, "whereby the plaintiff has been deprived of his property."

   To this narr. the defendant pleaded that he did not commit the wrong alleged. 

   At the trial of the case the plaintiff offered his own and other evidence tending to prove that in September, 1896, he had bought for $25 from one George Edwards, who had since then died, a piece of land containing a little over two acres in said third district lying in front of Edwards' house and extending from the intersection of his private road with the Marley Neck Road up to Frank S. Revell's land. That the land so purchased by him had been measured off for him by the grantor's son Oliver and a surveyor named Mancha and that he had therefore entered upon and had ever since retained possession of it without any objection from Edwards and that he had erected a house on it, and had also sunk a well on the part of it lying near Revell's line. That having[***6] paid for the land he went with Edwards to the office of the defendant, who was a Justice of the Peace, and attended to Edwards' business, to have a deed drawn for the land, and that the defendant then gave him a receipt as follows: "Received October 3rd of Jacob Gipson a deed from George Edwards to the said Gipson for 2 acres of land more or less said deed to be recorded on or before the 2nd of April, 1897."

   There is no evidence that a deed for the land had in fact been executed to the plaintiff when the receipt was given. On the contrary the plaintiff himself testified that the defendant sometime afterwards told him that there was some trouble about his getting a deed on account of Edwards' wife, but that the receipt he had given him was as good as a deed.

   [*123] The plaintiff further offered evidence tending to prove that in the summer of 1902, one Carter H. Colston had filled up the plaintiff's well and had notified him not to trespass on his, Colston's land. That he then upon inquiry found out that in February, 1902, Edwards had, by a deed prepared by the defendant, sold for $100 to Colston, thirteen acres of land including one acre, lying next to Revell's line, of the[***7] land sold in 1896 to the plaintiff. And further that in March, 1902, Edwards had also executed a deed, prepared and recorded by the defendant, to the plaintiff for only a portion of the land sold to him omitting therefrom the one acre lying next to Revell's line. The plaintiff also testified that the well was worth $100 to him and the acre of land was worth $50.

   The defendant offered evidence tending to prove that Edwards did not sell to the plaintiff the acre of land lying next to Revell's line and that the deed actually executed by Edwards to the plaintiff conveyed all the land which he had sold to him.

   The plaintiff offered no prayers, but the defendant offered three, all of which were rejected by the [**364] Court.

   The defendant's prayers asked the Court to instruct the jury that the plaintiff was not entitled to recover in the case because, as asserted in the first prayer, there was no evidence by which the jury under the pleadings in the case could assess any damages suffered by the plaintiff; and because, as asserted in the second prayer, there was no evidence legally sufficient under the pleadings in the case to entitle the plaintiff to recover; and because, as asserted[***8] in the third prayer, the plaintiff under the undisputed evidence in the case had not been deprived of the land in the declaration mentioned.

   These prayers of the defendant should have been granted. The injury for which the plaintiff sues, he declares in his declaration, arose from having been deprived of his property. Yet by his own testimony he has been in possession and enjoyment of the lot, which he insists that Edwards sold him, ever since the date of its purchase in 1896. It is true that he avers, in the second count of the declaration, that the deed [*124] which Edwards executed to him did not contain in its description the property which he purchased, but he did not offer in evidence either the deed or a copy of it so that the jury could see what land it did in fact convey. Nor does the record contain any evidence that the defendant induced Edwards not to convey the correct lot to the plaintiff or that Edwards was ignorant of the contents of the deed to the plaintiff when he executed it.

   There is no evidence that the defendant was employed or paid by the plaintiff to prepare the deed. The plaintiff himself testified that the defendant when he drew the deed was attending[***9] to the business of Edwards, the grantor, and there is no evidence that he did not draw it according to the instructions of his principal.

   Nor is there any evidence connecting the defendant with alleged trespass of Colston in filling up the plaintiff's well, nor could damages for that trespass be recovered under the pleadings in this case.

   Whatever may be the equitable rights of the plaintiff against Edwards and those claiming under him relative to a correction of the alleged erroneous deed, there is no legally sufficient evidence in the record to hold the defendant for damages under the pleadings in the case.

   The judgment appealed from must be reversed.

   Judgment reversed with costs without awarding a new trial. 

THE B. F. SMITH FIRE PROOF CONSTRUCTION CO. vs. FRANK A.MUNROE ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
97 Md. 370; 55 A. 315; 1903 Md. LEXIS 147

 June  29, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.)

DISPOSITION: Decree reversed with costs above and below and bill dismissed.

CORE TERMS:  levy, vault, property owned, public records, impliedly, power to contract, decree appealed, want of power, sum of money, court house, needful, literal, decree

COUNSEL: James M. Munroe, for the appellant.
 
Frank H. Stockett, for the appellees, submitted the cause on his brief.

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

OPINIONBY: MCSHERRY

OPINION: [**315] [*370] MCSHERRY, C. J., delivered the opinion of the Court.

   The bill of complaint in this case was filed by certain residents and taxpayers of Anne Arundel County against the County Commissioners of that county and the B. F. Smith Fire Proof Construction Company of Washington, District of Columbia. The County Commissioners entered into a contract with the Fire Proof Construction Company for the erection by the latter of a fire proof vault in which the records entrusted to the custody of the Clerk of the Circuit Court were intended to be kept. The cost of the vault as agreed upon was five thousand, nine hundred dollars. The relief sought by the bill was an injunction to restrain the County Commissioners from making a levy to pay for the structure. [*371] The sole ground upon which that relief was asked is the [***2]alleged want of power in the County Commissioners to levy upon the taxpayers the amount of money required for the purpose named unless previously authorized by the Legislature to build the vault and to levy the necessary tax to provide for the payment of the stipulated price. The Court below decided that the County Commissioners did not possess the power to contract for the work or to pay for it; and accordingly granted the injunction for which the plaintiffs asked. From that decree this appeal was taken.

   The question thus brought up is exceedingly narrow. By the Code of Public General Laws, Art. 25, sec. 1, it is provided that "the County Commissioners of each county in this State * * * shall have charge of and control over the property owned by the county." By sec. 7 of the same Article it is enacted that they "shall levy all needful taxes on the assessable property within the county liable to taxation * * * and shall pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law." We do not understand the language just quoted to be so restricted in its meaning as to deny to the County Commissioners the power which they undertook[***3] to exercise. The public records are the property of the county and it obviously is as much the duty of the Commissioners to protect them from destruction or injury by fire, as it is to insure the court house against a similar disaster. And if the Commissioners may lawfully levy on the taxpayers a sum of money sufficient to keep the public buildings insured--and they certainly may--why should they be prohibited from making a like levy to pay for the construction of a fire proof vault for the safe keeping of the public records, which, if burned, cannot be completely restored no matter how heavy the insurance on them might be. It is undoubtedly true that the County Commissioners could not issue bonds for the purpose of raising money to do the work unless empowered by the General Assembly to do so. But the want of power to issue bonds is quite a different thing from the want of a power to do the act that has been enjoined. [*372] It is too constricted a construction of the statute to limit the powers of the Commissioners to the literal meaning of the words quoted from the Code. The language of the enactments must be interpreted, not by the aid of a dictionary alone, but by the plain[***4] purpose and intention of the Legislature; and the purpose and intention are ascertained by considering the whole situation and surroundings, and by looking to the results which would necessarily follow a construction too literal or too narrow. If the decree appealed against is right then no change however urgent, could be made by the County Commissioners in any public building under their control unless such change were first authorized by appropriate legislation. If the heating plant should prove inadequate they would be powerless to augment it. If the ventilation were defective, they could not improve it. If the sanitary condition of the court house were such as to be injurious to health, they could not remedy it. And they could do none of these things because none of them falls within the literal signification of the terms "charge of and control over the property owned by the county." It is perfectly clear that each of the things just indicated could be done without antecedent legislative authorization, because they are all within the general and necessary powers of the local governmental body. Debts contracted for the preservation of the property owned by the county are undoubtedly[***5] claims "impliedly authorized by law." To that category belongs the debt incurred for the construction [**316] of a fire proof vault wherein the public records are to be kept.

   The County Commissioners had the power to enter into the contract, of which a copy was filed with the answer of the County Commissioners; and they have the power to levy such a tax as may be necessary to raise the sum of money stipulated to be paid to the appellant. We, therefore, reverse the decree appealed against and dismiss the bill of complaint.
 
   Decree reversed with costs above and below and bill dismissed. 

WILLIAM O. NELSON vs. GEORGE P. WILLEY, ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
97 Md. 373; 55 A. 527; 1903 Md. LEXIS 175

 June  29, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for Howard County (THOMAS, J.) The agreement referred to in the opinion of the Court is as follows:
 
This agreement made this 8th day of April, in the year 1897, by and between George P. Willey, hereinafter styled the principal, and William O. Nelson, hereinafter styled the agent:
 
Witnesseth: Whereas the principal is about to engage in the business of manufacturing canned goods at his factory, situate at Patuxent,  Anne Arundel  County, Maryland, and desires to constitute the agent as his sole representative for the sale of the manufactured products; Now, therefore, the said principal and agent hereby mutually covenant and agree as follows:
 
1. That the principal shall can fruits and vegetables at his said factory in a first-class manner, and in as large quantities as possible consistently with the capacity of his factory and the demands of the market, paying all the expense of said factory and the conduct of the said business; and that he shall give the agent free access to the said factory at all times, free supervision of all books and papers relating to the said business, including his correspondence, and a full report of the condition of[***2] the said business whenever the agent shall see fit to demand it; and that he shall also give the agent an advisory position in the management of the said business, if the said agent shall desire.
 
2. That the agent shall purchase for the principal, at the beginning of the ensuing canning season, that is to say, on or before the first day of August, 1897, the following goods, to wit: Twenty-five pounds of tomato seeds, fifty bushels of sugar corn seed, ten bushels of lima bean seed, ten bushels of red valentine bean seed, one hundred tons of fertilizer, and one thousand dollars worth of stock for the use of the factory store, the said goods to be bought for account of the principal and in his name, and delivered at Patuxent, Maryland, the agent making advances if necessary, to pay for the said goods and their freight, and that thereafter the agent shall purchase and forward to Patuxent such goods or stock as may be necessary to meet the demands of the said factory, and such cans, solder, acid cases and labels as may be needed, and to make advances of cash if needed by the principal, provided however and it is hereby specially agreed, that the aggregate amount advanced by the agent[***3] as herein provided, whether for the purchase of goods or in cash, shall not exceed at any one time, the net cost of the canned goods manufactured up to that time, and in no case shall be more than sixty-six per cent of the market or selling value of the said goods:
 
3. That the principal shall transfer to the agent by means of warehouse receipts the title to the said goods as fast as they are manufactured, for the purpose of securing the said advances, and shall give to the agent the exclusive control of the same, and the exclusive right to sell the product of his factory at prices in the discretion of the agent; that the principal shall pay to the agent a commission of five per cent on the price of all goods purchased by the said agent on account of the principal, five per cent on the price of all manufactured goods sold by the agent, and six per cent per annum upon all sums of money advanced by the agent, under the terms of this agreement. The agent on his part agrees to sell the canned goods manufactured by the principal as rapidly as the demands of the market will allow, and to pay over to the principal all monies collected by him from such sales, after deducting the commissions[***4] herein specified, and the amount of all bills contracted for by him on behalf of the principal as herein provided, such payment to be made to the principal only upon settlement of accounts at the end of each canning season.
 
4. That the goods purchased by the agent and forwarded by him to Patuxent for the use of the said factory shall be exchanged only for labor or materials used in producing the said canned goods, and shall at all times be represented by checks given out by the principal, for labor done, or material furnished to the said factory, which checks shall be forwarded weekly to the agent as vouchers.
 
5. That the principal shall give to the agent a bond of indemnity signed by the principal and his wife jointly for the faithful performance of his part of this agreement and shall have the improvements on property belonging to the principal or to his said wife insured for the agent's benefit and to the agent's satisfaction against possible losses by fire.
 
Witness the hands and seals of the said parties the day and year above written.
 
Geo. P. Willey,   [Seal.]
 
Wm. O. Nelson,   [Seal.]
 
Test: Wm. H. Buckler.

DISPOSITION: Judgment reversed with costs[***5] to the appellant above and below and new trial awarded.

CORE TERMS:  admissible, canning, canned goods, declaration, lease, parol evidence, express terms, memorandum, manufactured, factory, recital, styled, season, corresponding, lessees, stone, bind, Taylor's Law of Evidence, faithful performance, parol testimony, writing signed, furnish proof, satisfaction, thereunder, omission, presume, obligee, obligors, prayer, owing

 COUNSEL: R. R. Boarman (with whom was J. J. Lindsay on the brief), for the appellant.
 
The agreement and the bond constitute but one and the same contract, and must be construed together as one executed and consummated agreement, and the bond is a security for the money advanced and goods furnished by the plaintiff to George P. Willey. The bond refers to the furnishing of goods by the plaintiff and the advance of money to George P. Willey; it refers to the contract entered into by the plaintiff with George P. Willey for the purpose of canning goods. The condition is that the obligees are responsible for the money advanced and the goods so furnished. Both papers were executed of even date and delivered at the same time. The intention of the parties is sufficiently plain, and the intent of the parties must govern the contract. The rational interpretation is that the bond refers to the agreement.
 
The agreement required this bond to be given by Willey and wife, and that the bond was given. George P. Willey is worth nothing and if the defendants succeed they will have gotten over $4,000 of the plaintiff's money, without any redress. [***6] The Court clearly erred in taking from the jury the agreement and not permitting it to go to the jury, in connection with the bond. Marvin v. Brewer, 30 Md. 247; Diven, &c., v. Emery, &c., 7 Gill, 309; Adams v. Hill, 16 Maine, 215; Rogers v. Kneelam, 13 Wendell, 114; Sibly v. Holden, 10 Pickering, 302; Hunt v. Shermore, 5 Pickering, 395.
 
James R. Brashears (with whom was John G. Rogers on the brief), for the appellees.
 
1. The Circuit Court was correct in striking out the agreement offered by the plaintiff, in evidence. (a) Because it was not a part of the bond sued on in this case. (b) Because the bond sued on makes no reference to said agreement. (c) Because the parties to said agreement of April 8th, 1897, and those to the bond of April 8th, 1897, the cause of action, are not the same. (d) Because the parties defendant, not being the original parties to the agreement of April 8th, 1897, offered in evidence by the plaintiff in this suit, the said agreement was inadmissible. Taylor on Evidence, p. 977, sec. 1148, (8th English ed.) 1 Greenleaf on Ev., p. 355, sec. 300, (13th ed.) Morgan v. Morgan, 4 Gill & Johnson, 395; Beall v. Greenwade's Ad'mrs., 9 Md. 185; Howard County[***7] v. Hill, 88 Md. 111.

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

OPINIONBY: PEARCE

OPINION: [**528] [*376] PEARCE, J., delivered the opinion of the Court.

   This suit was brought by William O. Nelson against George P. Willey and Alice E. Willey, his wife, upon a bond in the penalty of $10,000 executed by them to him, and bearing date April 8th, 1897. The recital and condition of this bond is as follows: "Whereas the said George P. Willey is about to engage in the canning business, and the said William O. Nelson has agreed to make certain advances of money to him in [*377] connection with said business, as well as to pay, if necessary, for certain goods to be used by the said Willey in connection with the same;
 
   "Now, therefore, the condition of this obligation is such that if the said George P. Willey shall well and truly repay to the said William O. Nelson the said advances with interest, and shall also reimburse to him the sums of money expended in the purchase of goods as aforesaid, then this obligation to be void; otherwise it is to remain in full force and effect in law."

   The declaration set forth a verbatim copy of[***8] an agreement under seal entered into between the said Nelson and George P. Willey, of even date with said bond, in which the said Willey was styled the principal and the said Nelson was styled the agent. We shall request the reporter to set out the agreement in full in reporting the case. This agreement recites that whereas the principal is about to engage in the business of manufacturing canned goods at his factory situate at Patuxent, Anne Arundel County, Maryland, and desires to constitute the agent as his sole representative for the sale of his manufactured products; "Now, therefore, the said principal and agent hereby mutually covenant and agree as follows:" Then follow a number of detailed stipulations, the substance of which may thus be condensed: 1st. That the principal shall can fruits and vegetables in as large quantities as the capacity of his factory will permit; 2nd. That the agent should purchase for the principal on or before August 1st, 1897, certain quantities of tomato, sugar corn, and bean seed; one hundred tons of fertilizer, and $1,000 worth of stock for the use of the factory store, all to be bought for account of the principal and in his name, and to be delivered[***9] at Patuxent; and thereafter to purchase and forward such goods, and make such advances as may be necessary to conduct said business for the season of 1897, provided the aggregate amount so furnished and advanced shall not at any one time exceed the net cost of canned goods then manufactured, nor more than 66 per cent of the market value thereof. 3rd. That as fast as the canned goods are manufactured the title shall be transferred [*378]to the agent by warehouse receipts to secure advances; that the agent shall have the exclusive right to sell the manufactured goods; that from the proceeds of sale he shall deduct all advances and the cost of all goods furnished, and shall pay the surplus to the principal; 4th. Not material to this case; 5th. "That the principal shall give to the agent a bond of indemnity, signed by the principal and his wife jointly, for the faithful performance of his part of said agreement, and shall have the improvements on the property belonging to the principal, or to his said wife, insured for the agent's benefit, and to the agent's satisfaction against possible losses by fire."

   The declaration further set forth that Willey and wife, in accordance with [***10]said agreement, and at the same time it was made, executed the above-mentioned bond for the faithful performance of said agreement; [**529] also that Willey did engage in canning in said county in pursuance of said agreement; that Nelson did make him large advances and pay for large amounts of goods furnished him, all of which were used in carrying on the business under said agreement, and amount-to $15,368.23, and that Nelson had received from Willey under said agreement, $8,892.15, showing a balance due under said agreement $6,476.08, and there was filed with the declaration, an account styled a bill of particulars, showing in detail all the charges and credits, and the balance due under said agreement.

   The defendants pleaded, 1st, non est factum; 2nd, payment and satisfaction; 3rd, that plaintiff prevented performance by defendant of his contract; 4th, that plaintiff broke and repudiated his contract with these defendants; 5th, that defendants had performed their part of said contract mentioned in the declaration.

   Issues were then joined, and at the trial the bond was put in evidence, and the plaintiff offered the agreement mentioned which was admitted subject to exception. [***11] The plaintiff himself testified, subject to exception, that he purchased the goods and advanced the money mentioned in the bill of particulars, and that the agreement and the bond were made on the same [*379]day, and it was proved by another witness that a large quantity of such goods as were described in the bill of particulars was received at Willey's canning house during the season of 1897. One of the firm of Kirwan and Tyler, can makers, testified that they sold Nelson that season about 6,000 cases of cans which were shipped to Willey, and Mr. Shriner, a canned goods broker, testified that he sold for Nelson and Willey a large part of the goods canned by Willey in the summer of 1897, and that the goods were not in condition.

   The plaintiff then closed his case, and the defendants moved to strike out the agreement of April 8th, 1897, and all testimony of Nelson in reference to the agreement, and to the purchase of goods and the advance of money thereunder. The Court granted this motion and the first exception was taken to this ruling.

   The defendants then offered the following prayer: "The defendant prays the Court to instruct the jury that under the pleadings in this case, [***12] the plaintiff has offered no evidence legally sufficient to entitle him to recover, and their verdict must be for the defendants;" which the Court granted, and the second exception was taken to this ruling.

   It was not distinctly stated, either at the argument or in the briefs, upon what ground the Court struck out the agreement of April 8th, 1897, and the testimony of Nelson in reference to the money advanced and the goods furnished thereunder, but we infer from the appellee's brief that it was upon the view that the bond did not refer in express terms to the agreement so as to identify it, and that parol testimony was not admissible to supply the connection. But we cannot agree with this view. Where the parties have put their contract in writing, it is true as stated in Taylor's Law of Evidence, sec. 1026, that "the entire contract must be collected from the writings, verbal testimony not being admissible to supply any defects or omissions in the written evidence." But it is also true, as stated in the same section, that "it will suffice if the contract can be plainly made out in all its terms from any writings of the party or even from his correspondence. Nay, a signed letter[***13] [*380] will be sufficient, though it does not contain in itself any one of the terms of the agreement, if it distinctly refers to and recognizes any writing which does contain them all, for in such case the well-known maxim of the law, verba illata in esse videntur will be held to apply."

   In Cave v Hastings, L. R. 7 Q. B. Div. 128, the Court said: "The only document in this case that was signed by the defendant was the letter of the 11th of February, which does not in itself contain the terms of the agreement. Now I adopt the statement of the law on this subject contained in Dobell v. Hutchinson, 3 A. & E. 355. LORD DENMAN, C. J., there says: 'The cases on this subject are not at first sight uniform; but on examination it will be found that they establish this principle, that when a contract in writing or note exists which binds one party, any subsequent note in writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them. The letter in this case refers to 'our arrangement.' It was argued that that might refer to some other [***14]and different parol arrangement, but it seems to us that this reference to the former document is sufficient, in accordance with the principle laid down in Ridgway v. Wharton, 6 H. L. C. 238. In that case, instructions were referred to, and it was held that parol evidence might be given to identify the instructions referred to with certain instructions in writing."

   The principle applied in Ridgway v. Wharton, is very clearly stated in Taylor's Law on Evidence, sec. 1024, where it is stated that if one agrees in writing to liquidate the debt of another, the memorandum need not specify the amount of the debt. The author says: "If it be contended that the memorandum is insufficient as two or more debts may be owing from a third party, and it does not appear to which of these the writing applies, the answer is clear;--namely that the Court will not presume the existence of more debts than one, but will call upon the party impeaching the document to furnish proof of that fact."

   Here the bond does not in express terms refer to the [*381] agreement by its date, or otherwise in itself identify it, but it does expressly refer to an agreement by[***15] Nelson to make certain advances of money to him in [**530]connection with the business of canning in which he was about to engage, and to pay, if necessary, for certain goods to be used by him in connection with said business. An agreement in writing, corresponding in its terms with the recital of the bond, and bearing even date therewith, was offered in evidence, and upon the principle stated in Taylor's Law of Evidence, and in Cave v. Hastings, supra, it should have been admitted. The Court will not presume the existence of more than one agreement, but will call on defendant to furnish proof that there was some other agreement to which the bond did or might refer. And upon the same authority parol testimony was properly admissible here to identify the agreement referred to in the bond, as the same offered in evidence.

   These principles were recognized and applied in Owings v. Emery & Gault, 7 Gill 405. In that case Owings, on July 11th, 1840, leased to Emery & Gault his Fox Rock Quarry for six years, to commence November 10th, 1840; the lessees to get out yearly 40,000 cubic feet of stone at one and a quarter cents per foot, or pay[***16] for that amount in quarterly instalments. On July 5th, before the execution of the lease, the lessor gave the lessees a receipt stating that he had received from them $866 "to be returned to them in granite stone to the amount of 169,300 feet between November 1st, 1840, and November 10th, 1846, from my quarry, known by the name of Fox Rock Quarry." The Court held that the two papers must be taken together as one contract; must be construed with mutual reference to each other, and that the amount mentioned in the receipt must be considered as advanced on account of rents to accrue under the lease, saying: "The receipt is open to no rational interpretation unless it can be made to refer to the subsequent lease." In this case we may say with equal confidence, that the bond is open to no rational interpretation unless it can be made to refer to the agreement of even date corresponding in its essential stipulations with the recitals of the bond.

   [*382] The case of Marvin v. Brewer, 30 Md. 247, is a very analogous case, though there the bond referred to the agreement by its date, without however containing in itself any one of the terms of the agreement, and without [***17]even stating the amount secured by the bond, which omission the Court said was supplied by reference to the agreement, and held that "the two papers constituted in fact one executed and consummated agreement" and that they "effectuated the obvious intention of the parties."

   The reference in this bond to the essential stipulations of the agreement, in connection with the fact that the two papers were concurrently executed, are quite as satisfactory identification of the agreement, as was the express reference to the date of the agreement in Marvin v. Brewer.

   For these reasons we are of opinion that the Court erred in striking out the agreement of April 8th, 1897, and the testimony of Nelson in reference thereto, and it necessarily follows that there was error in granting the defendant's prayer.

   Judgment reversed with costs to the appellant above and below and new trial awarded. 

ROBERT SHRIVER vs. JOSHUA W. HERING, COMPTROLLER OF THESTATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
97 Md. 19; 54 A. 651; 1903 Md. LEXIS 130

 April  1, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (JONES, C. J., and THOMAS, J.)

DISPOSITION: Order affirmed with costs above and below.

CORE TERMS:  colored, apportionment, several counties, apportion, proportion, public schools, judicial construction, appropriated, school age, school tax, apportioned, levied, amount appropriated, distributable, deliberate, mandamus, pursued, levy

COUNSEL: Albert A. Doub (with whom were D. James Blackiston and Jas. W. Owens on the brief), for the appellant.
 
Isidor Rayner, Attorney-General, for the appellee.

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

OPINIONBY: PEARCE

OPINION: [**651] [*20] PEARCE, J., delivered the opinion of the Court.

   Robert Shriver, a citizen and taxpayer of Allegany county, on May 15th, 1902, filed a petition in the Circuit Court for Anne Arundel county against Joshua W. Hering, Comptroller of the State of Maryland, praying for a writ of mandamus commanding said Comptroller, in the distribution to be made December 15th, 1902, and at each succeeding quarterly distribution, to apportion the State school tax levied in each county and in the city of Baltimore, for the support of public schools therein, in proportion to their respective white population between the ages [**652] of five and twenty years, instead of apportioning the same according to their respective entire population between said ages, as had always been[***2] the method of apportionment since the institution of the public school system in eighteen hundred and sixty-five.

    The defendant answered alleging that the method of apportionment pursued was that required by the statute regulating the same, and that he proposed to observe the statute as heretofore.

   The petitioner demurred to this answer; issue was joined on the demurrer, and after argument the writ was refused and the petition dismissed, from which order this appeal was taken.

   The case was very earnestly and zealously argued in behalf of the petitioner, but we do not think there should be any hesitation in affirming the order of the Circuit Court. Counsel on both sides unite in stating that the question at issue is simply the construction of sections 98 and 102 of Art. 77, of the Code of Public General Laws, which are as follows:

   Section 98. "The Comptroller shall apportion the sum appropriated for the support of the colored schools of the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years; said apportionment to be made at the time he apportions the levy for the white schools."

   Section 102. "As[***3] soon as the Comptroller shall have received from the city of Baltimore and the several counties, returns of the amount of the State school tax, levied in each [*21] county and the city of Baltimore, he shall immediately thereafter apportion the amount of the whole levy to the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years."

   The petitioner's counsel was explicit in his oral argument, in declaring that these sections of the law are valid and constitutional enactments, and in his brief says they "are word for word the same and the plaintiff merely asks that they be given the same construction."

   The construction for which the petitioner thus asks, we must understand to be purely a judicial construction since that is the only one we have the power to make, and such construction must be made upon the language of these sections, and not upon the practice which may have been pursued by the Comptroller in the absence of a previous judicial construction. Now looking to the language of these two sections as they stand, it cannot be doubted that they should, and must, receive the same construction, and that[***4] the only construction that can be placed upon them by a Court, which is precluded from the exercise of legislative power, is that placed by the Comptroller upon section 102. The word "their" which in each of these sections precedes the words "respective population," grammatically and logically can only relate to their immediate antecedents, "the several counties and the city of Baltimore." No sound argument to the contrary can be based upon anything to be deduced from either of these sections, and accordingly the petitioner has been forced to resort to what he regards as equitable grounds for a different construction of section 102, based upon alleged unequal and unfair results from the method of distribution directed therein. But however his proposition may be disguised in the fervor of argument, it resolves itself, when analyzed, into this, that the Court should read the word "white" into section 102, and this we cannot do. The petition alleges, and the answer admits, that in distributing the sum appropriated to colored schools, it has been the Comptroller's practice to make the apportionment in proportion to the respective colored [*22] population of the several[***5] counties and the city of Baltimore between the ages of five and twenty. This the petition does not ask us to change, and if we should grant the writ prayed for here, we should be compelled in order to give the same construction to the same language in both sections, to read into section 98, the word "colored" and thus to impose an erroneous judicial construction upon both these sections, because another department of government, possessing no power to make a judicial construction, had adopted, in its administration of its functions, an erroneous construction of one of these sections. The answer to the whole argument of the petitioner is, that the question argued by him is a question of policy, while the question we have to decide is one of construction of the law as it stands. An examination of the legislation of this State upon the subject will render it clear, moreover, that the Legislature meant exactly what it has said in these two sections.

   The Act of 1865, ch. 160, for the first time established a uniform system of free public schools in Maryland. It provided that the State school tax should be distributed "to the Boards of School Commissioners of the city of Baltimore and [***6]of the several counties in proportion to their respective population between the ages of five and twenty years," conforming thus to the requirement of section 5 of Art. 8 of the Constitution of 1864; and that language has remained unchanged in both the repealing and re-enacting Acts since that time; viz. 1868, ch. 407, and 1872, ch. 377.

   As respects colored schools, the Act of 1865, ch. 160, provided that "the total amount of taxes paid for school purposes by the colored people of any county and the city of Baltimore, together with any donations that may be made, shall be set aside for the purpose of founding schools for colored children, to be established under the direction of the School Commissioners;" and the law today requires that these sources of income "shall be devoted to the maintenance of schools for colored children." The Act of 1872, ch. 377, provided for the establishment of one or more public schools [*23] in each election district for colored children, and directed [**653] the sum appropriated for colored schools to be apportioned according to their respective colored population. The first appropriation for that purpose was made by chapter 252 of 1872, [***7] the amount being fifty thousand dollars, which has been increased from time to time, until it is now one hundred and fifty thousand dollars. The original apportionment of the amount appropriated for colored schools, was therefore correctly made according to the respective colored population, though the distribution of the residue of the State tax was still required to be apportioned according to the entire respective school population of the several counties and of the city of Baltimore, thus emphasizing the intention then to provide different modes of apportionment. When the Code of 1888 was framed and adopted, the word "colored" was omitted in providing for the apportionment of the amount appropriated to colored schools, thus making the mode of apportionment uniform. Whether this was deliberate, or inadvertent, we do not know in fact, but the legal presumption is it was deliberate, and in any event the adoption of the Code is conclusive upon the Court. The adherance by the different Comptrollers to the former mode of distribution among the colored schools may have been from inadvertence, or it may have been due to the tender consideration of the comparative poverty[***8] of that race; certain it is however that no effort has been made to disturb this arrangement by any one, while it was conceded at the argument that repeated fruitless efforts had been made to induce the Legislature to make the change now sought to be effected by mandamus. Elaborate tables were filed with the petition to show the alleged injustice done by this method of apportionment to the counties having small colored population, but with these considerations our judgment is not concerned. 

   There are, however, obvious difficulties in adopting any method of distribution which will produce equality of burden and participation while ensuring a system of approximate uniform excellence throughout the State. Counties are separate [*24] organizations established for public political purposes, connected with the administration of government, chiefly for purposes strictly local in character and interest, but the youth of all the counties, are the wards of the State, and it is for the Legislature to determine how its bounty, extended for this paramount purpose, shall be apportioned so as to work the greatest good to the greatest number irrespective of locality. Speaking of the rights[***9] of counties in the case of the State, use of Washington Connty v. B. & O. R. R. Company, 12th G. & J. 436, the Court said: "She (Washington County) as a member of the political family has a right to participate in the legislative councils of the country; but the will of the majority, when expressed according to the forms of the Constitution, is binding and obligatory upon her, and to that will, as the rule of her conduct, she is bound to submit with be coming deference and respect."

   Order affirmed with costs above and below. 

CHAS. B. HENKEL vs. DAVID R. MILLARD ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
97 Md. 24; 54 A. 657; 1903 Md. LEXIS 131

 April  1, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (JONES, C. J., REVELL and THOMAS, JJ.)

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  registration, certificate, pharmacist, duty, pharmacy, actively engaged, ministerial, compounding, qualification, registered, mandamus, manager, description contained, prescriptions, dispensing, retail, laid down, exercise of judgment, reviewable, twenty-one, authorize, confided, declares, skilled, cancel, decree, exercise of discretion, ministerial duty, honestly, mandamus to compel

COUNSEL: Isaac Lobe Straus, for the appellant.
 
J. Wirt Randall and Reuben C. Foster (with whom was A. D. Foster on the brief), for the appellees.

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

OPINIONBY: SCHMUCKER

OPINION: [**657] [*25] SCHMUCKER, J., delivered the opinion of the Court.

   The appeal in this case is from a decree of the Circuit Court for Anne Arundel county sustaining a demurrer to and dismissing a bill in equity filed by the appellant.

   The purpose of the bill is to procure a mandatory and prohibitory injunction against the Maryland Board of Pharmacy to require them to rescind and cancel their proceedings under the Act of 1902, chap. 179, in registering Charles G. Feldmeyer as a Pharmacist and granting him a certificate of such registration; and to prohibit them from hereafter so registering him or granting him any such certificate. The bill also prays that the registration and certificate already granted to him be decreed by the Court to be illegal and void. The appellant [*26]is himself a member[***2] of the Board of Pharmacy, and he filed his bill in that capacity and also as a resident of Annapolis, against the other four members of the board and Feldmeyer.

   In order to make clearer the discussion of the issue before us we will first call attention to the material portions of the Act of 1902 creating the Maryland Board of Pharmacy and prescribing its powers and duties. This Act is one of a comparatively recent class of statutes regulating the conditions upon which persons shall be permitted to pursue certain occupations. Its title declares its purpose to be to regulate the practice of pharmacy in Maryland. To carry out this legislative purpose the Act creates a board of skilled pharmacists and requires all persons, whether then in that business or intending to enter it, to apply to the board for registration as pharmacists, and such registration is made a condition precedent to the right to practice pharmacy in Maryland.

   Sec. 2 of the Act provides that no person on or after July 1st, 1902, shall open, conduct or keep a pharmacy in this State either as principal or agent unless he shall have obtained a pharmacist's certificate as in the Act provided, and declares a violation of[***3] the Act to be a misdemeanor and prescribes a penalty therefor.

   Sec. 3. Declares what species of stores shall be considered pharmacies among which are retail drug stores.

   Sec. 4 of the Act directs the Governor to appoint "five persons who are skilled and competent pharmacists, who have had ten years active pharmaceutical experience, are actively engaged in the retail drug business and not connected with any school of pharmacy or medicine * * * to constitute the Maryland Board of Pharmacy," and directs them to qualify by taking an oath for the faithful discharge of the duties conferred upon them by the Act.

   Sec. 5. Directs the board to organize, to fix the times and places for the examination of applicants for registration, and give ten days public notice of the same, and provides that "it shall be the duty of the board to receive all applications for [*27] examination and registration submitted in proper form, to grant certificates to such persons as may be entitled to the same under this Act," &c., &c.

   Sec. 8 provides "That any person who at the passage of this Act is actively engaged as owner or manager, or is and has been so engaged as clerk for five years or more and has[***4] reached the age of twenty-one years in compounding drugs and dispensing physicians' prescriptions in one of the counties of this State and who shall on or before the first day of July next [**658]following the passage of this Act forward to the Maryland Board of Pharmacy an affidavit to that effect together with a fee of one dollar shall be entitled to registration as pharmacists and to a certificate of such registration."

   The subsequent sections of the Act provide that certain other persons therein described "who after examination by the Maryland Board of Pharmacy shall be by it deemed competent," shall also be registered as pharmacists and given certificates of such registration.

    It is thus apparent that the Act authorizes the Board of Pharmacy to grant registration and certificates to two classes of persons and upon different terms, and imposes upon the board slightly different duties with reference to the respective classes of applicants.

   They are required to grant the registration and certificate to an applicant answering to the description contained in sec. 8, when they have ascertained that he was at the passage of the Act twenty-one years of age and actively engaged[***5] as owner or manager in compounding drugs, &c., &c., and that he has forwarded to them an affidavit to that effect without any examination of him as to his professional competency. The law gives to that class of applicants the benefit of the presumption of professional competency arising from the fact that they are already in business as pharmacists. It however imposes upon the Board of Pharmacy the duty of determining that the applicant in fact answers to the description contained in sec. 8, because it does not authorize or direct them to grant him the registration and certificate merely upon his making the affidavit "to that effect."

   [*28] The board are not required to grant the registration and certificate to any person of the other class unless after an examination of him they regard him as competent. The examination spoken of in that connection in the Act is manifestly intended to relate to his technical fitness to practice pharmacy.

   The Act does not authorize the board to cancel or revoke a registration or certificate that has once been granted by them nor does it provide for an appeal from their action or decisions to any other body of persons or tribunal. The apparent[***6] purpose of the Legislature in that respect was to create in the board itself an agency composed of persons possessing the technical skill and experience requisite to the discharge of the duties committed to them and to let their action conclude the matters confided to them by the law.

   The bill of complaint in the record now before us alleges the appointment and qualification of the appellant and his associates as the Board of Pharmacy, quotes certain portions of the Act of 1902 pertinent to the issue and then avers that on August 14th, 1902, the four appellee members of the Board of Pharmacy "constituting, acting and proceeding as said board" registered Feldmeyer as a pharmacist and granted him a certificate thereof without subjecting him to an examination or test as to his qualifications, against the protest and objection of the appellant. The bill charges that this action of the board was in violation of their powers and duties and therefore void because Feldmeyer, although a partner in the drug business of Feldmeyer Brothers conducted in the city of Annapolis and financially interested therein, was not at the passage of the Act of 1902 and never has been actively engaged as owner[***7] or manager in compounding drugs and dispensing physicians' prescriptions and was therefore "not eligible to be registered or awarded a certificate as pharmacist under said Act of 1902."

   The bill abounds in charges that Feldmeyer is not acquainted with the nature and operation of noxious and poisonous drugs and is without education or skill as a pharmacist and sets out in strong terms the dangers to which the citizens [*29]of Annapolis would be exposed if he were permitted to conduct a pharmacy at that place. We do not deem it necessary to further discuss the allegations of that kind contained in the bill because it is apparent on the face of the Act of 1902 that it does not require persons who were, at its passage already engaged in the drug business in the manner described in sec. 8, to submit to any examination as to their technical knowledge or skill to entitle them to registration and a certificate. As we have already said the Act gives to such persons the benefit of the presumption of the possession of the requisite qualifications for continuing in the business. The Legislature may also have considered the recognition of that presumption as but a reasonable concession to [***8] those persons who had already embarked their labor or capital in the occupation of pharmacists when the Act was passed.

   According to the allegations of the bill, Feldmeyer forwarded to the Board of Pharmacy prior to July 1st, 1902, a written application signed by him and verified by his oath in the following form: "Maryland Board of Pharmacy. Gentlemen. I wish to make application for registration under secs. 8 and 10, chapter 179, General Law 1902. I am engaged as a pharmacist at Annapolis, Maryland, and have been so engaged for twelve years. Am forty-eight years old. Enclosed find fee $1.00."

   He afterwards on August 4th, 1902, furnished to the board, at whose suggestion it is not alleged, a further sworn statement to the effect that he was, at the passage of the Act of 1902, part owner of the drug store conducted at Annapolis under the firm name of Feldmeyer Brothers and that he was and has been and still is actively engaged in compounding drugs and dispensing physicians' prescriptions in said city of Annapolis. Subsequently at a meeting held on August 14th, 1902, the board registered Feldmeyer and issued his certificate without, as the bill alleges, subjecting him to any examination [***9]or test as to his qualifications.

   The bill nowhere alleges or even intimates that this [**659] action of the board was fraudulent or corrupt or that it proceeded [*30] from improper motives of any kind or that the board neglected to consider and pass upon the fact that Feldmeyer answered to the description contained in sec. 8 of the Act and had complied with its conditions. In fact the bill inferentially alleges that they did actively consider and pass upon his qualifications because it avers that the appellant always opposed and protested against his registration.

   Without pausing to inquire whether, upon the case presented by the bill, the appellant was entitled to institute this suit to contest the validity of Feldmeyer's registration, we pass to the consideration of the vital question whether the action of the Board of Pharmacy in his case as set out in the bill was reviewable at all by the Circuit Court. Although this is not a proceeding at law for a mandamus to compel the Board of Pharmacy to reverse its action in Feldmeyer's case and reject his application for registration as a pharmacist, it is an application in equity for a mandatory injunction to accomplish[***10] that purpose. We therefore think we should be governed by the former decisions of this Court upon applications to it to control either by mandamus or injunction the action of public officers or boards.

   It is well settled in this State that although the Courts will, in a proper case, exercise their mandatory power to require a public official to perform a strictly ministerial act or to exercise a discretion conferred upon him by the law, they will not interfere with or control the method of the exercise of such discretion or of the performance of any duty requiring the exercise of judgment or discretion nor will they correct errors of judgment or discretion which have been honestly made in the discharge of such duty. Brown v. Bragunier, 79 Md. 234; State v. Latrobe, 81 Md. 222; Wailes v. Smith, 76 Md. 469; Madison v. Harbor Board, 76 Md. 395; Wiley v. School Commrs., 51 Md. 401; Alberger v. Mayor, &c., 64 Md. 1.

   In Wailes v. Smith, supra, the Court, after again announcing the principle that the Courts will exercise their mandatory powers[***11] only to enforce the performance of a strictly ministerial duty, go on to say "And by 'ministerial' we mean where [*31] one is entrusted with the performance of an absolute and imperative duty the discharge of which requires neither the exercise of official discretion nor judgment. As for instance where a specific sum of money is appropriated by law for the payment of a certain defined service rendered the State no one questions that in such a case the payment for such services by the proper officer may be enforced by mandamus. Where however the duty is one which necessarily requires the exercise of discretion and judgment it is well settled that mandamus will not lie to control or reverse the decision of one to whom the discharge of such duty is confided." Then, after referring to the conflict of opinion appearing in the cases as to what is a ministerial duty as distinguished from a discretionary one, the Court further say: "Be that as it may we take it to be settled by the best considered cases that where the duty is such as necessarily requires the examination of evidence and the decision of questions of law and fact such a duty is not ministerial and not being ministerial[***12] the decision of a public officer to whom the discharge of such duty has been confided cannot be reviewed or reversed in a mandamus proceeding.

   "In the leading case of the United States v. Seaman, 58 U.S. 225, 17 How. 225, where the relator a printer to the United States Senate applied for a mandamus to compel the Superintendent of Public Printing to deliver to him certain public documents, the printing of which he claimed to be entitled to under an Act of Congress, Mr. CHIEF JUSTICE TANEY said: 'Now it is evident that this case is not one which the superintendent had nothing to do but to obey the order of a superior authority. * * * * He was therefore obliged to examine evidence and form judgment before he acted and, whenever that is to be done it is not a case for a mandamus.' And the rule thus laid down, was approved and adopted by this Court in Green v. Purnell, 12 Md. 329, where it was laid down that 'the Comptroller having the exclusive power under the Constitution of adjusting and settling public accounts was not a mere ministerial officer and could not therefore be compelled by mandamus to [*32] perform any act [***13]in the discharge of his duties which involved the exercise of discretion and judgment.'"

   Applying the principles thus laid down to the present case we are forced to the conclusion that the action of the Board of Pharmacy in Feldmeyer's case was not purely ministerial but that it required such use of judgment and discretion as to bring it within the category of the transactions which, when honestly made, are not reviewable by the Courts. Sec. 8 of the Act of 1902, under which the board evidently acted in this case, requires that the applicant shall be an adult and shall have been at the date of its passage actively engaged as owner or manager in compounding drugs, &c., &c., and that he shall make an affidavit "to that effect," before he is entitled to registration and a certificate. Other sections of the Act provide for the appointment of a board of "skilled and competent pharmacists" who are themselves "actively engaged in the retail drug business" to pass upon the fact of the applicant's answering to the description contained in sec. 8, and of his having made an affidavit to that effect. Surely the duties thus imposed upon the board are not strictly ministerial. Their discharge[***14] necessarily requires the examination into evidence [**660] and the exercise of judgment and discretion.

   As it was neither alleged nor contended that the action of the board had not been taken in entire good faith the learned Judges below properly sustained the demurrer and dismissed the bill and their decree must be affirmed.

   Decree affirmed with costs. 

EAST BROOKLYN BOX CO. vs. ALOYSIUS NUDLING. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
96 Md. 390; 54 A. 132; 1903 Md. LEXIS 83

 January  22, 1903, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.

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

CORE TERMS:  declaration, demurrer, machinery, premature, train, guilty of contributory negligence, care and caution, ascertained, prematurely, unskillful, starting, entitle, erected, prayers, split, fault, steam

COUNSEL: Daniel R. Magruder and Robert Moss, for the appellant,
 
James W. Owens and Wm. J. Kennedy, for the appellee.

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

OPINIONBY: PEARCE

OPINION: [*390] [**132] PEARCE, J., delivered the opinion of the Court.

   There is but a single narrow point for determination in this appeal arising upon a demurrer to the declaration, and it is not without interest, though it may be briefly disposed of. While affirming the ruling appealed from, it is due to the appellant's counsel to say that their views of the law were presented with much force.

   This suit was brought by the appellee to recover damages for injuries alleged to be due to negligence of the appellant in prematurely starting a steam split saw, while the appellee, one of its employees, was engaged in filing the saw. The trial resulted in a verdict for plaintiff under instructions to which no exceptions were taken by either party. The declaration alleges that plaintiff's injuries were received "through the premature running and[***2] operation of the saw; that the premature running and operation of said saw, was due to the defective and unskillful manner in which the same, and the connecting pulleys, belt, and shafting had been erected and suffered to remain, of which the plaintiff then had no knowledge or information, and which, the plaintiff, from lack of knowledge of machinery, could not, by the exercise of due care, have ascertained; and that the accident was not due to any fault or want of care on the part of the plaintiff, who used due care and caution."

   The demurrer is based upon the insertion in the declaration of the words we have italicized, and the contention is that the effect of these words is to charge the plaintiff with contributory negligence in undertaking a service which resulted in injury to him by reason of his self-confessed "lack of knowledge of the machinery" which he undertook to put in order.

   It is true that one entering an employment, impliedly represents "that he is competent to perform the duties of the position which he seeks, and competent to apprehend and avoid all dangers that may be discovered by ordinary care and prudence," provided he is "apparently, of sufficient age, physical[***3] ability, and mental caliber to perform the service." Bailey's Masters Liability for Injuries to Servants, 133. And where there is an opportunity for proof, it may be presumed-- in the absence of proof to the contrary--that the plaintiff comes within these requirements. But there is nothing in the declaration to show the plaintiff's age, intelligence, or physical capacity; when he was employed, or for what service, or what [*392] opportunity he had to acquire any knowledge of the condition of the machinery which operated the saw. He may have been an intelligent adult, and have been for a long period in the service of the defendant, and may have been familiar with all the alleged defects which rendered it dangerous to file the saw while at rest, though the demurrer admits that he had not such familiarity, but for aught the declaration discloses, he may have been an infant of immature years and understanding, or he may have been employed for the first time for that particular service without any knowledge, or means of knowledge, of the risks incident thereto.

   If the testimony in the case warranted the claim that he was guilty of contributory negligence, or that his injuries[***4] were due to the negligence of a fellow servant barring his recovery, these questions could, and should have been, raised by prayers.

   Where the declaration clearly shows that the plaintiff was guilty of contributory[**133] negligence, advantage may be taken by demurrer; an allegation in the declaration that he used due care will not save the declaration from being bad. 5 Ency. Plead. and Prac., 10.

   But the true rule for this case, the rule indicated by sound reason, we think is well laid down in Rumpel v. Oregon Short Line R. Co., 22 L.R.A. 725, which is closely analogous to the present case in its legal aspect. There, the plaintiff, in his complaint, alleged that he was compelled to, and did, pass under one of the cars of a train which was blockading a street crossing, and that the train suddenly started and injured him. The Court said, at first sight it would appear that the plaintiff had pleaded himself out of Court, as it would be difficult to conceive a condition of things existing, where it would not be negligent to pass under one of the cars of a freight train; but upon full consideration the Court concluded by saying: "We are not prepared to say[***5] however, that under this complaint, a state of facts could not be proven which would entitle the plaintiff to recover, and therefore we sustain the Court in overruling the demurrer." We think this decision [*393] was grounded on common sense and in sound legal discrimination.
 
   In the case before us when the proof was gone into, a state of facts was developed as appears from the prayers incorporated in the record, with which we have nothing to do, but which resulted in a verdict for plaintiff, without any exceptions being taken by either party, either as to the admission of testimony, or as to any instructions offered, and it would be difficult to imagine stronger confirmation of the reasoning of the Nevada Court in the case cited.

   Judgment affirmed with costs to the appellee above and below. 

THE WASHINGTON NATIONAL BUILDING AND LOAN ASSOCIATION vs.WM. R. ANDREWS, TRUSTEE, AND WM. T. DAVIDSON. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
95 Md. 696; 53 A. 573; 1902 Md. LEXIS 206

 November  20, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.)

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  premium, mortgage, mortgagor, stock, monthly, usurious, by-law, shares of stock, installment, per share, usury, definite, borrower, matured, grantee, deed, rate of interest, legal interest, mortgage debt, par value, redeemed, dollars, mature, strict construction, incumbrances, appearing, stood, proceeds of sale, monthly payment, money advanced

COUNSEL: James M. Munroe, for the appellant.
 
James W. Owens (with whom was Robt. Andrews on the brief), for the appellee.

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

OPINIONBY: SCHMUCKER

OPINION: [*697] [**573] SCHMUCKER, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County ratifying one and rejecting the other of two alternative auditor's accounts which distributed the proceeds of land sold[**574] under a building association mortgage. Neither the validity of the mortgage nor the regularity of the sale is challenged. The sole dispute is over the distribution of the proceeds of sale the main question being whether the mortgage transaction was or was not usurious.

   Account A, which was ratified, allowed the appellant as mortgagee only the amount loaned, with interest at six per cent less the sum of the payments made on account and awarded the balance of the fund to the appellee as owner of the equity of redemption. Account B, which was rejected, distributed the proceeds [***2]of sale in accordance with the terms of the mortgage which made the fund insufficient to pay the appellant's claim.

   The appellant was incorporated in the State of Virginia but it has its principal office in Washington and also does business in Maryland. Its charter does not appear in the record, which contains only a few extracts from its by-laws, but we will assume that it is a building or homestead association within the contemplation of the laws of this State. It appears from the by-laws that the corporation from time to time advanced, to such of its members as applied for it, the matured or par value of their stock upon acceptable mortgage security. The by-law authorizing the making of the advances distinctly provides "that the rate of interest thereon shall be six per cent per annum with such monthly premium as may be bid therefor." [*698] Stock was regarded as matured when the payments standing to its credit in the loan fund together with its apportioned share of the profits of the association amounted to one hundred dollars per share that being its par value. The recipient of the advance was required at the time of its receipt to transfer the shares of stock, upon which [***3]it was made, to the corporation. The time requisite for the stock to thus mature was of course uncertain depending mainly upon the success of the enterprise, but the borrowing member was in some measure protected by a by-law providing that the payment of monthly dues upon redeemed stock would not be exacted for more than 84 months on each share.

   In the present case William T. Davidson, having subscribed for twelve shares of the stock of the appellant, applied for an advance of $1,200 thereon offering in his application to pay a premium of fifty cents per month per share of stock in addition to six per cent interest on the money to be advanced. The advance was granted to him on March 25th, 1895, and he secured its repayment by his bond to the appellant with a mortgage on two lots of ground in Anne Arundel County. Both the bond and the mortgage require Davidson to pay into the association the lump sum of $19.20 per month until the stock matures, not exceeding 84 months, after which time if the stock has not then matured he is to pay interest at six per cent on the sum advanced to him until the stock does mature. Neither the bond nor the mortgage discloses the items which make up the [***4]gross monthly payment of $19.20, but the pass-book issued to the mortgagor indicates that it consists of $7.20 dues and $12 interest and premium.

   Davidson held the mortgaged property until August, 1895, when he sold it to Timothy D. Keleher, who held it until 1901, when he was adjudicated a bankrupt and the appellee Andrews, was made his trustee. Both the trustee and Davidson, the original mortgagor, came into this case by leave of Court and filed exceptions setting up the defense of usury. While Keleher owned the property he made payments to the appellant, which were accepted by it on account of the mortgage [*699] debt, sufficient to meet all of the payments called for by the terms of the mortgage up to May 31st, 1899. The property was sold for a failure to make the payments thereafter falling due.

   In The Log Cabin Assn. v. Gross, 71 Md. 456, and Hough v. Horsey, 36 Md. 181, it was held that where it appeared on the face of the deed or by evidence aliunde that the grantee of property subject to an usurious mortgage had agreed specifically to pay the mortgage debt he would not be permitted to set up the defense of usury to the[***5] mortgage, although the right of the original mortgagor to make that defense was there recognized. The present case differs from the two just cited in that the deed from Davidson to Keleher does not specifically mention either the mortgage or the debt thereby secured. The only reference in that deed to liens on the property conveyed by it appears in the covenent of warranty which warrants the title "subject to certain incumbrances aggregating the full sum of twenty-two hundred dollars ($2200) which incumbrances the said party of the second part hereby agrees to assume." It does not appear what portion of the $2200 represented the Davidson mortgage and therefore it cannot be said what amount the grantee assumed to pay in that connection. Furthermore, as both the original mortgagor and his grantee set up the defense of usury in the present case we think the Circuit Court was right in admitting and passing upon it, and we will now consider the propriety of its disposition thereof.

   Assuming that the monthly installment of $19.20 which the mortgagor was required by the terms of the mortgage to pay included the premium of fifty cents per month, that he offered to pay on each of his[***6] twelve shares of stock in addition to interest at six per cent when he applied for the advance of $1200, we are confronted with the question whether that monthly sum of fifty cents per share constituted a premium within the meaning of sec. 98 of Art. 23 of the Code, or, being a payment in excess of legal interest for the use of the money advanced, was an usurious exaction from the mortgagor.

   The distinction[**575] between an ordinary loan of money and the advancement by a building association to its member of the ultimate value of his shares by way of redemption has been clearly recognized by this Court in numerous cases, but the privilege accorded by law to such corporations of charging a premium or bonus in addition to the legal interest on the amount of such advances has always been strictly construed. In Birmingham v. Md. &c., Homestead Assn., 45 Md. 541, it is said "the privilege thus granted is a very unusual and extraordinary one and no contract should be brought within its operation unless made and executed in strict conformity with the very terms of the law. Clearly no latitude or liberality of construction should be indulged in, in order to extend[***7] the operation and effect of such a provision but on the contrary its extraordinary character * * * justly subjects it to a rigid and strict construction." The doctrine thus early laid down has been recently reasserted by us in the case of White v. Williams, 90 Md. 719-727.

   Sec. 98 of Art. 23 of the Code, as it stood prior to the passage of the Act of 1894, authorized building associations to charge their members "such premium as may be agreed upon" for advancing to them the matured value of their shares of stock. In construing that state of the law this Court held, in Geiger v. The 8th German Building Assn., 58 Md. 569, 573-4, that a by-law and a mortgage made in pursuance of it, requiring a member whose shares of stock had been redeemed to pay in addition to his dues and interest, thirty cents per week as premium for each share of stock, were usurious and the Court by its decision relieved the member from the payment of the premium. In the more recent case of White v. Williams, supra, we again had occasion to consider the effect of a mortgage to a building association (made prior to the Act of 1894, ch. 321) which[***8] required one of its members whose shares of stock had been redeemed to pay in addition to dues and interest a monthly premium of $7.50 during the continuance of the mortgage. We held in that case that the word "premium" as used in sec. 98 of Article 23, as it then stood meant a sum of [*701] money rendered fixed and definite by agreement of the parties, and did not include a monthly sum such as was called for by that mortgage.

   The only change in sec. 98 of Art. 23 made by the Act of 1894, so far as it relates to the premium, is the addition of a provision that the borrower, instead of paying the whole amount of the premium in advance or having it deducted from the sum advanced to him by the association, may pay it in such weekly, monthly or other installments as may be agreed upon and its payment may be secured by the mortgage given to the association for the repayment of the advances.

   The change thus effected in the law relates solely to the time and method of payment of the premium and affords no warrant for substituting an indefinite or variable amount for the fixed and definite sum that we held in White v. Williams, to be the meaning of the words "such premium[***9] as may be agreed upon" which still remain in their original place in the amended statute. Nor can we in adhering to the strict construction hitherto applied to the exercise of the right to charge premiums by such associations, hold that the mere provision that no more than 84 installments shall be exacted of the mortgagor brings the premium in the present case within the fixed and definite sum required by the statute. It is not a fixed premium payable in installments. On the contrary although the amount of each installment is specified the total premium is uncertain and indefinite depending, within the 84 months, upon the success of the association and it is therefore not such a premium as that body is by law authorized to charge.

   A premium payable in an indefinite number of small installments would be a delusive thing appearing to the borrower to be a lighter burden than it in reality is and tempting him to yield to its imposition with a readiness which he would not display if he were compelled to face it as an aggregate sum. The law should not make it easy to run in debt. It should at least require building associations, when exercising the exceptional privilege of exacting a premium [***10]in addition to legal [*702] interest for the use of money, to take from the borrower an obligation for the payment of only such a premium as clearly falls within a strict and literal construction of the law. It is further to be observed that this Court has in several cases condemned as evasive, and tending to elude the restrictions which the statute imposes upon parties to transactions such as the one before us, the practice of combining in one gross sum in the mortgage all of the obligations to be met by the mortgagor without disclosing the respective amounts of principal, interest and premium which enter into its composition. Waverly Mut. L. & L. Assn. v. Buck, 64 Md. 338; The Peter Building Assn. v. Jaecksch, 51 Md. 198.

   As the so-called premium in this case was to be paid in addition to six per cent interest for the use of the money advanced it was an usurious charge and the appellant is not entitled to be allowed it out of the proceeds of the mortgage sale.

   It does not appear from the face of either the mortgage or the bond what portion of the monthly payment of $19.20 to be made by the mortgagor, was interest but Article 4, [***11] of the by-laws of the appellant appearing in the record, distinctly provides that the rate of interest on advances to members shall be six per cent. Auditor's account A, allowed interest at that rate on its advances but disallowed the premium. We therefore think that its ratification by the Circuit Court was proper and the decree appealed from should be affirmed.
 
   Decree affirmed with costs. 

THE STATE OF MARYLAND vs. WILLIAM WARD. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
95 Md. 118; 51 A. 848; 1902 Md. LEXIS 155

 April  1, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL, J.) The case of The State v. C. A. Crandall, involving the same question as this case was argued with it and the judgment therein was reversed for the reasons assigned in this case.

DISPOSITION: Judgment reversed.

CORE TERMS:  jury trial, peace, confer, blind, alleged offender, conferred, party charged, shooting, fine, duty, hear, right to demand, wild fowl, misdemeanor, licensed, commit, pray, jurisdiction to hear, imprisonment, indictment, punishable, thereupon, possessed, omission, jurisdiction to try, assault and battery, right of appeal, right to claim, deemed guilty, three hundred

COUNSEL: Isidor Rayner, Attorney-General, for the appellant.
 
First. The State claims that the Circuit Court of Anne Arundel County was without any jurisdiction to entertain the appeal, and that therefore, having given a judgment without jurisdiction, an appeal lies to this Court to reverse the same. The statute provides for no appeal whatever from the judgment of the Justice of the Peace, under the law in question, and an appeal, being a statutory remedy, there being no statute allowing the appeal, the Court had no power to hear the case and decide it. The appellee took the ground in the Court below that the statute was unconstitutional, not having made provision for a jury trial, and that the magistrate had no right to try the case after a jury trial was prayed for. The proper way to have had this question tested was, either, in case of imprisonment, by habeas corpus, or otherwise to have the record removed by writ of certiorari. [***2] This point appears to be conclusively settled by the Maryland cases, and the State therefore claims that the Circuit Court of Anne Arundel County proceeded without any jurisdiction in the premises and its judgment must be reversed. Lancaster v. State, 90 Md. 211; Messick v. State, 82 Md. 585; Judefind v. State, 78 Md. 510; Webster v. Cockey, 9 Gill, 93; Jackson v. Bennett, 80 Md. 76; Roth v. State, 89 Md. 524; Clark v. Vannort, 78 Md. 216.
 
 Second. It is submitted that even if the case had been properly in the Circuit Court by writ of certiorari, that its judgment is erroneous and that the Act in question is a valid Act and not liable to any constitutional objection. The statute is a local police regulation of Anne Arundel County, and the violation of it comes within a class of cases for which it is not necessary to provide a jury trial, and over which it was lawful to give the Justice of the Peace absolute and final jurisdiction. This question has been so thoroughly and exhaustively argued and so fully decided by this Court, that it is unnecessary to cite any other authorities except the case of the State v. Glenn, 54 Md. 572. 
 
The same reasoning that was followed by the Court[***3] in this case, and the authorities that were there cited apply to this, and it is therefore submitted that if this case had been properly before the Circuit Court of Anne Arundel County, the Court would have been bound to have declared that a failure to provide for a jury trial under the provisions of this statute did not invalidate it, and that a Justice of the Peace had a perfect right to try the case, and to proceed to judgment therein.
 
Robert Moss, for the appellee.
 
The question involved in this appeal is--does the Act of 1896, ch. 128, sec. 11A, Art. 52 of the Code apply to this case. The appellee will contend that it does and that this question is settled by the opinion of the Court of Appeals in the case of Kane v. State, 70 Md. 546.
 
The offense is a misdemeanor of which the magistrate has jurisdiction, and the practice under the sections is regulated by sec. 11A, Art. 52, of the Code, which section is applicable to Anne Arundel and other counties.
 
Chapter 359, Acts of 1884, regulating the criminal practice of Justices of the Peace while it provided for a jury trial did not give the party after submission to the jurisdiction of the Justice the right of appeal; [***4] but at the next session of the Legislature after the opinion in the Kane's case was rendered, the law regulating the criminal practice of Justice of the Peace was amended so as to give the party accused the right of appeal even after waiver of a jury trial and submission to the Justice of his case. Act of 1890, ch. 618.
 
In the Court below the State contended that the local Act now before the Court was a mere police regulation and that the Act was constitutional, notwithstanding right of jury trial and appeal was not given; but the State will hardly contend that the Legislature has not the power to provide for jury trial and appeal as it has done in this case.

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

OPINIONBY: PAGE

OPINION: [*121] [**848] PAGE, J., delivered the opinion of the Court.

   The appellee was arrested under a warrant issued by a Justice of the Peace of Anne Arundel County, charged with a violation of sections 253, 254, 255 and 256 of the Public Local Laws of Anne Arundel County as amended by chapter 582 of the Acts of 1892. When brought before the Justice he prayed a jury trial, which was refused. The[***5] trial having resulted in the conviction of the appellee an appeal was taken to the Circuit Court. In that Court the State's attorney moved to dismiss the appeal on the ground "that the offense charged in the warrant is one that is not the subject of appeal from the Justice of the Peace;" and the prisoner moved to quash the warrant and reverse the judgment because the Justice had refused a jury trial. The Circuit Court reversed the judgment and the State appealed.

   The only points claiming consideration are, first, had the prisoner a right to claim a jury trial, and second, having been denied this, had the Justice jurisdiction to try and finally determine the matter before him.

   The sections of the local code to which we have referred regulate the shooting of wild fowl in Anne Arundel County. The 253rd, 254th sections provide for the obtaining of licenses to place blinds and shoot therefrom; the 255th makes it unlawful to establish blinds or put out decoys within three hundred yards of an already licensed blind; and by the 256th, "if any person shall violate any of the provisions of preceding sections, he shall be deemed guilty of a misdemeanor, and upon conviction thereof before[***6] any Justice of the Peace in Anne Arundel County shall be fined a sum not less than five nor more than twenty dollars for each offense, with the costs of prosecution for the same: provided that an additional fine of five dollars shall be imposed upon the owner of any blind who[**849] shall establish the same at a point nearer than three hundred yards from a blind already established and licensed for each week said blind shall remain after due notice has been given to remove the same by the owner of the blind first established and licensed." These sections were originally enacted in 1882, ch. 400, amended in 1886, ch. 366, and again amended in 1892, ch. 582. The 256th section, which provides the penalty, remains as enacted by the amendment of 1886. There is nothing in the original Act or any of its amendments that confers upon the defendant the right of claiming a jury trial or places any limitation upon the authority of the Justice of the Peace to try and determine all persons who may be brought before him charged with a violation of any of its provisions.

   It is contended however that the case is within the provisions of section 11A of Article 52 of the Code of Public General Laws, [***7] which provides that if any person, when brought before a Justice having jurisdiction, shall before trial pray a jury trial, it shall then be the duty of the Justice to commit the alleged offender for trial in the Circuit Court. That section was first enacted in 1880, ch. 326. It has remained substantially the same up to the present time; the only material amendment thereto being by the Act of 1890, ch. 618, whereby the right of appeal from the Justice to the Circuit Court was extended to the alleged offender, and the State even after there had been before the Justice a waiver of a jury trial. But section 11A, Art. 52, cannot be held to include all criminal cases over which Justices of the Peace have jurisdiction. It was not intended to change or limit the jurisdiction which they then possessed or which thereafter might be conferred upon them, "by or under the laws of this State." Its purpose was not to interfere with that jurisdiction but, as the title of the Act of 1880 sets forth, "to confer additional jurisdiction." What that "additional jurisdiction" should be is clearly stated, viz. first concurrent jurisdiction with the Circuit Court in all cases of assault without any felonious[***8] intent and all cases of assault and battery, and all misdemeanors not punishable by [*123] confinement in the penitentiary; and second, all prosecutions or proceedings for the recovery of any penalty for doing or omitting to do any act, the doing of which or the omission to do which, is made punishable under the laws of this State within their said jurisdiction by any pecuniary fine or penalty, or by imprisonment in jail or in the Maryland House of Correction, all of which acts or omissions are hereby declared to be criminal offenses." Prior to the passage of this statute, Justices had no criminal jurisdiction except such as was conferred by the Act which created the offense and imposed the penalty. Cases in which the Justices were not in specific terms authorized to hear and determine, were cognizable only in the Criminal Court after indictment and before a jury, unless the alleged offender waived his right to a jury trial. Section 11A conferred upon the Justices of the Peace jurisdiction to hear and determine all cases of the nature and character particularly described therein; but it also preserved to the party charged the opportunity and right of a trial by a jury by providing[***9] that before proceeding to the exercise of his jurisdiction it shall be the duty of the Justice to inform the alleged offender of his right to a jury trial; and if either he, or the State's Attorney, should pray a jury trial, his authority to hear and determine thereupon ceased, and it thereupon became his duty to commit the party for trial in the Circuit Court. The application of these provisions is in plain terms limited to the jurisdiction conferred by the section. It is provided that the Justice shall have power to issue all process and to do all acts, which may be necessary to the exercise of their "said jurisdiction;" that is to the exercise of the jurisdiction that the Act confers and not to any other. There is therefore no warrant to be found in the words of the section, nor we may add derivable from considerations of public policy, as stated in State v. Glenn, 54 Md. 572, for the contention that this section was designed to have the effect of depriving Justices of the Peace of the exercise of summary jurisdiction in a large class of cases. In the case just cited it is said that the "needs of society" require that the Justices shall in many cases be [***10]possessed [*124] of such a jurisdiction. "If all cases of a penal or criminal nature, where conviction may involve as a consequence either directly or alternatively the imprisonment of the party, must be tried upon indictment and by a jury, how is the police power in the hands of the various municipal corporations to be enforced?" The jurisdiction belonging to the Justices at the time of the adoption of the section as well as that which has since been conferred upon them by legislative enactment, is not within the purview of the section. Where the jurisdiction has been conferred by special statute the alleged offender has no legal right to call for a jury; and if he should do so the authority of the Justice to hear and finally determine the case is not thereby ousted; unless there is something in the Act directing to the contrary.

   There being nothing in the Act regulating the shooting of wild fowl in Anne Arundel that confers upon the party charged the right to demand of the Justice a jury trial it follows that the Justice had jurisdiction to hear and finally determine the charge set out in the warrant. The jurisdiction of the Justice is special and extraordinary, created by[***11] statute, and the statute under which this case was prosecuted provides for no appeal; therefore no appeal could be taken from the judgment of the Justice to the Circuit Court[**850] and the Circuit Court therefore had no jurisdiction to entertain the appeal, and enter judgment. Webster v. Cockey, 9 Gill 92. The judgment of the Circuit Court for that reason may be reviewed in this Court. Messick v. State, 82 Md. 583, 34 A. 537.

    It follows from what has been said that the judgment of the Circuit Court must be reversed.

   Judgment reversed. 

GEO. T. BEASLEY, SHERIFF OF ANNE ARUNDEL COUNTY, vs. WEEMSRIDOUT ET AL., VISITORS TO THE JAIL, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 641; 52 A. 61; 1902 Md. LEXIS 54

 March  7, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.)

DISPOSITION: Order reversed with costs above and below.

CORE TERMS:  duty, appointment, jail, appointed, custody, mandamus, common law, visitors, prisoners, clerk, execute, appoint, prescribed, warden, expediency, ministerial officer, non-judicial, incumbent, conferred, demurrer, election, enlarge, legislative power, acquiescence, elected, jailer, Act of Assembly, judicial function, county jail, supervision

COUNSEL: E. C. Gantt, for the appellant.
 
1. There was no sufficient proof of the allegations of the petition. The Act of 1901, ch. 15, provides that the Judges of the Fifth Judicial Circuit shall appoint three persons, who with the State's Attorney and physician elected by them shall constitute the Visitors to the jail. The second section of the Act provides that the three persons, so appointed, with the State's Attorney of Anne Arundel County, shall meet, organize and shall elect one physician, one warden, one watchman, etc. Sec. 5, provides that the physician, warden and watchman shall each qualify by taking the usual oath. And that the warden and watchman shall each give bond of one thousand dollars. Sec. 6 provides that the warden shall take charge of the prison and prisoners in the jail.
 
The relators allege in their petition that they had elected a physician to the jail as required by the Act, of which election there is no proof offered and the qualification of Dr. Wm. S. Welch is merely an assumption of his having been duly elected. And having so effected[***2] organization they proceeded to elect a warden, night watchman and other officers. There is no proof offered of the election of a warden and watchman, or of the qualification of any person as such, which is required by the Act, nor is there any allegation in the petition that a warden or watchman had qualified by giving bond and taking the oath of office. Under the Act (section 6), "the warden of said jail" shall take charge of said prison and prisoners therein. It is manifest that, under the Act, it was to such warden (duly elected and properly qualified), that the surrender of the jail should be demanded by the relators. And there is nothing in the proceedings "to satisfy the mind of the Court" that the allegation of the petition that the respondent "refused to turn over to the said board and the officers duly elected and qualified by said board the custody of the said jail building and of the prisoners therein or thereto committed."
 
The facts above set forth in detail are alleged generally in the answer of the respondents and are admitted by the demurrer. Legg v. Mayor, &c., of Annapolis, 42 Md. 203.
 
2. The office of Sheriff is a constitutional office and an elective office. [***3]The Constitutions since 1776 have all provided for the election of a Sheriff by the people. When the framers of the Constitution of 1776 provided that there should be elected by the people a Sheriff in each county without prescribing in express words the duties and functions of the office, they must have intended that the designation of the office eo nomine should carry with it all essential powers and functions appertaining to it at common law.
 
From the earliest period of the history of England the Sheriff possessed certain essential powers and duties of office, namely: Service of process: Execution of process and making execution, and the keeping of the peace. The Sheriff had by virtue of his office the custody of all prisons taken by virtue of any precept or authority and had the care, custody and keeping of the county jail. By 14 Edward III, Stat. 1, ch. 10, passed A. D., 1340 of force in this State it is enacted "Item in the right of the gaols which were wont to be in ward of the Sheriffs and annexed to their bailiwicks, it is assented and accorded that they shall be rejoined to the Sheriffs and the Sheriffs shall have the custody of the same gaols as before this time they[***4] were wont to have." Alexander, Brit. Stats, 169.
 
That the common law acknowledged this custody of the jails as a function of the office of Sheriff. See Coke on Littleton, 167 b. n. 7; 2 Hawk, P. C. 182-184; 1 Hale, P. C. 585-597; 2 Hale, P. C. 69-410; 1 Blackstone, 344; Bacon's Ab., vol. 4, tit. Sheriff, 430-444; Burns Justice, vol. 5, tit. Sheriff, 234; Viner's Ab., tit. "Gaols;" Impey's Sheriff, 2; Murfree Sheriffs, 251, 40-41.
 
The Constitution being silent as to the functions and duties appertaining to the office of Sheriff, acknowledged by it as an office, it cannot in reason be assumed that the office of Sheriff has not some distinct character, different from other constitutional offices. In the same manner as other constitutional offices, have distinctive functions pertaining to each and characteristic of each, independent of the absence of any particular designation of the respective functions by the Constitution.
 
And to ascertain what are the fundamental characteristics of the office of Sheriff, or other office, where the Constitution does not define them specifically, we are relegated to the common law to find out what the framers of the Constitution meant by[***5] designating the office of Sheriff as a necessary office in the machinery of government. And what the name of the office meant, which the people reserved to themselves the right to fill by popular election.
 
The conclusion is irresistible that there are certain functions characteristic of the office of Sheriff and that it was not the purpose of the framers of the Constitution to create or recognize an office with no fundamental qualities, duties or powers. Admitting that there are such inherent functions of the office as defined by the common law, it is not within the power of the Legislature to take away from the Sheriff the trust reposed in him by the people and transfer them or either of them to some other authority by it created. If the Legislature has the power to take away from the Sheriff one function of his office, it can take away all, and transfer them to other recognized officers or to such authority as it might see fit to create, thus strip the office of Sheriff, elected by the people, of all powers, duties and functions belonging to that office. Warner v. People, 2 Denio, 272; McEwan v. Keeler, 29 Hun. 175; State v. Brunst, 26 Wis. 412; Aller v. Wayne Co., 43 Mich. 76; [***6] Virtue, Sheriff v. Freeholders Essex Co., 50 Atl. Rep. 360.
 
3. The contention of the appellant is not weakened, nor is the reasoning of the authorities cited above of any less force in supporting the underlying principles involved, because the Constitution of 1867, Art. 4, sec. 44, provides that the Sheriff "shall exercise such powers and perform such duties as now or may hereafter be fixed by law." The same provisions are made to apply to Coroners, Elisors and Notaries Public in the succeeding section. And to Justices of the Peace in section 42, and in a number of other officers mentioned in the Constitution. But it would hardly be contended for that the Legislature could transfer from the Sheriff to the coroners the duties of serving process from the Courts, or levying and making execution.
 
Art. 4, sec. 20, provides that the Circuit Courts shall have and exercise all the powers, authority and jurisdiction which the present Circuit Courts of this State now have and exercise or which may hereafter be prescribed by law. Can the Legislature, under this provision, give to the Circuit Courts the authority and power to appoint a bailiff or other irresponsible person to serve process [***7]of the Court or to execute its judgments? These duties pertain to office of Sheriff, and are ascertained and designated as such by the common law. But not any more clearly defined as functions of the office of Sheriff than is the custody of the jail and prisoners therein, both are ascertained and derived from the same source. By the Act of 1901, these powers and duties are taken from the office of Sheriff and placed in the hands of the Judges of the Circuit Court.
 
4. The power of the Legislature to impose other duties on the Sheriff than such as strictly pertain to his office has been decided by this Court in the case of The Mayor, &c., v. Board of Police, 15 Md. 376. The Chief Justice says in his opinion: "There is nothing to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as Sheriff." The necessary implication follows that the Legislature can not take away from the Sheriff any powers or duties in conflict with the inherent functions of his office. Or in effect abolish the office by transferring its legitimate functions to some appointing power.
 
J. Wirt Randall and Daniel R. Randall, for the appellees. [***8]
 
The appellant's contention rests upon the hypothesis that the office of Sheriff, as it exists today in Maryland under the Constitution, is clothed practically with all the powers and prerogatives of that office under the common law of England at the date of the Revolution and before. That among such prerogatives, he claims, was that of the care and custody of persons confined in the county jail, and the care of the jail building itself. That such being the common law right, not altered or modified by the Constitutions since adopted, no Act of Assembly could deprive the Sheriff of these ancient rights, and what to him is equally important, their emoluments; and hence that the Acts of 1901 are unconstitutional.
 
The New York, Wisconsin and New Jersey cases quoted in support of the appellant's contention are possibly good law in those States where the duties of the Sheriff's office are not prescribed or limited by the Constitution, but exceptions even to this rule are frequent. Article 10 of the New York State Constitution of 1894, Article 6, of the Wisconsin Constitution of 1848 and Article 7 of the Constitution of New Jersey, simply provide for an election of Sheriff by the[***9] people and regulate his eligibility to re-election, amount of bond, etc.; but in each case the Constitution is silent as to the duties pertaining to the Sheriff's office, or the rights of that officer derived from the common law of England. Yet in New Jersey under an Act of 1857 the care of the jails in Hudson and Essex counties was vested in a board of chosen freeholders, and the Supreme Court declared such Act to be constitutional. Daubman v. Smith, 47 N. J. L. 200; Stiles v. Union County, 50 N. J. L. 9.
 
On the contrary in Maryland, California, Florida, Louisiana, Oregon and West Virginia, the Constitutions specifically provide that the Sheriff's powers and duties shall be those that the supreme power of the State, vested in the Legislature, shall enact. In Georgia, where the Constitution is silent as to this officer's duties, the Supreme Court declared in the case of the State v. Dews, R. M. Charlton, 433, that the adoption of the word "Sheriff" into the Constitution in no sense fixed and established as the fundamental law the duties of the office enjoyed under the common law of England.
 
The Supreme Court of California has gone so far as to declare that in the United States[***10] generally the office of Sheriff is purely a ministerial one, without any of the judicial and few of the executive functions guaranteed under the common law. Merrill v. Gorman, 6 Cal. 41; Attorney-General v. Squires, 14 Cal. 15. In Tennessee the Supreme Court declared that the care of the jail and its prisoners was a common law prerogative of the Sheriff's office which "cannot be abridged or given to another unless the purpose so to do be clearly expressed by the Legislature." Felts, Sheriff, v. Mayor, &c., of Memphis, 2 Head (Tenn.) 659.
 
In Maryland our Court of Appeals has declared in no uncertain terms that the Legislature may add to or diminish the duties of the office of sheriff at its will. Mayor, etc., of Balto. v. State, etc., 15 Md. 488; People v. Draper, 25 Barbour, 374.
 
The language of Art. 4, sec. 44 of the Constitution, can have but one interpretation; namely, that the Legislature may abridge entirely, do away with or add to the duties of sheriff. That the office of sheriff in Maryland has been stripped of the many functions and prerogatives of the common law can not be gainsaid, and the Acts of Assembly yearly teem with statutory provisions adding to or diminishing[***11] the duties of that office, as well as its emoluments.
 
Today he possesses but one quasi-judicial function in the State, that of presiding at condemnation proceedings, and this last prerogative is to be taken from him, if a bill recently introduced in the present General Assembly passes. The care of prisoners and the jail was a common law duty of the office, but our General Assembly has never hesitated to deprive him of this, when the will of the people, expressed through their representatives, demanded such a change. This was notably so in Baltimore City, where for many years past the care of the jail and its inmates has been a thing apart from the Sheriff's office and vested in another constitutional officer. So in Baltimore county, by virtue of chapter 224, of the Acts of 1826, for many years in operation, though now repealed, a Board of Visitors to the county jail was appointed by the Governor, whose duties were nearly identical with those of the appellees in this case and the administration of the jail was exclusively committed to their care.
 
Many States whose Constitutions are silent as to the special functions and duties of the office of Sheriff have passed special Acts[***12] vesting in that official the care of the county jail and its inmates. 19 A. & E. Ency. of Law, 90.
 
Acts of Assembly will be held to be constitutional unless so manifestly in conflict with some provision of the Constitution of the State that no discretion is left in the Court but to decide otherwise. Mayor, etc., v. State, 15 Md. 376; Davis v. Helbig, 27 Md. 452; County Coms., etc., v. Meekins, 50 Md. 281; Jackson v. State, 87 Md. 191.

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

OPINIONBY: PEARCE

OPINION: [*648] [**62] PEARCE, J., delivered the opinion of the Court.

   By ch. 15 of the Acts 1901, the charge, control, and supervision of the Anne Arundel County jail, and of all persons committed thereto, was taken from the Sheriff of the county, and was vested in a Board of Visitors provided by that Act. The immediate care and custody of the jail, and of all the prisoners is committed to a warden appointed by, and subject to the direction of, said Visitors, but with the same powers in that regard as were possessed by the Sheriff, and with the same liability for escapes or other neglect of duty.

   Upon the appointment[***13] of said Visitors, demand was made by them upon the Sheriff for the possession and custody of the jail and of the prisoners therein, which was refused by the Sheriff, who alleges that the Act of Assembly in question is unconstitutional and void. Thereupon the Visitors applied for a mandamus commanding the Sheriff to deliver possession, which being ordered by the Circuit Court, the Sheriff has brought this appeal.

   The proceedings under the petition for the mandamus have not been conducted in the manner prescribed by the Code, no proof having been offered to sustain its allegations, although the Judge must be satisfied these allegations are founded in truth, whether the petition is heard on general demurrer by [*649]the respondent, or answer denying the allegations of the petition, or ex parte for want of answer.  Legg v. Mayor of Annapolis, 42 Md. 203; Sudler v. Lankford, 82 Md. 142, 33 A. 455.

    The respondents pleading is somewhat equivocal in form, but if it be regarded as an answer, it does not admit the facts alleged, and if it be regarded as a demurrer, or as in part an answer and in part a demurrer, the facts are not thereby[***14] admitted, that not being the effect of a demurrer in a proceeding for a prerogative writ like mandamus. Sudler v. Lankford, supra, 149. 

   Subsequently certificates of the qualifications of the Visitors were filed, together with an agreement of counsel that all questions of law and fact should be submitted to the Court without the intervention of a jury. Assuming for the present purposes that the judges were in the discharge of a judicial function, they would take judicial notice of their own appointment of three Visitors in compliance with the Act of Assembly, but the agreement mentioned could not supply proof of their meeting with the State's attorney as the fourth member, their organization as required by the Act, and the election of Dr. Welch as the physician and the fifth member, all of which was indispensable to a legal demand upon the Sheriff but none of which was admitted by the pleading. In the opinion of the Court however, it is stated that "at the hearing the questions of fact at issue were waived or admitted," and we think this statement by the Court should be given the effect of an admission of record, and as equivalent to full proof.

   Whether an Act[***15] of Assembly is a valid exercise of legislative power, is, in all cases, a question, not of expediency or policy, but of power alone, as determined by the Constitution. "Questions of expediency, or utility, are matters for the exclusive decision of the Legislature, and cannot be regarded by the judiciary in testing the power to pass laws." There is a presumption, moreover, that every Act of the Legislature is within its power, and before any Act should be declared unconstitutional, its repugnancy to the provisions, or necessary implications of the Constitution should be manifest and free [*650] from all reasonable doubt. If its character in this regard be questionable, then comity and a proper respect for a coordinate branch of the government, should determine the matter in favor of the action of the latter. These are the rules laid down by our predecessors in Mayor of Balto. v. State, ex rel., Board of Police of Balto., 15 Md. 376, and by which we must be guided in our consideration of this case.

   The sole ground of objection to the validity of the Act in question made in the appellant's brief, and the only one argued at the hearing, was that the office[***16] of Sheriff is a constitutional office; that the Sheriff was an officer of the common law, and that when the Constitution of 1776 provided for the election by the people of a Sheriff for each county, without prescribing in express terms the powers and duties of the office, it must have been intended that the office should carry with it eo nomine, all the duties, powers and [**63]privileges appertaining to it at common law; and that as the custody of the county jail, and the care of the prisoners therein, was the clear common law right of the Sheriff, the Legislature could not destroy or abridge that right, and confer it, in whole or in part, upon any other person designated by it--or by its delegated authority.

   There is certainly high authority for this contention where the Constitution is silent as to the powers and duties of the office.

   In Sewell on the Law of Sheriff, page 7 (in 46 Law Library), it is said: "The custody of the gaols of counties is inseparable from the Sheriff; and therefore if the King grants the custody of such gaol to another, it is void; for the Sheriff, being the immediate officer of the King's Courts, and answerable for escapes, and subject to[***17] amercements, ought to have the appointment of such gaolers for whom he will answer. And he cannot be restrained himself in any part of his own power by the King."

   In Murfree on Sheriffs, sec. 41, it is said: "When the office of Sheriff is a constitutional office in any State, recognized and designated, eo nomine, by the Constitution, as a part of the machinery of the State government, the Sheriff, ex vi termini, [*651] must possess in that State, all the substantial powers appertaining to the office by common law. It is competent for the State Legislature to impose upon him new duties growing out of public policy or convenience, but it cannot strip him of his time honored and common law functions, and devolve them upon the incumbents of other offices created by legislative authority;" though the author admits that "it would be competent for the British Parliament to modify, limit or enlarge the rights and duties of Sheriffs within that kingdom, or to abolish the office altogether, and distribute its functions among other officers; and that a like power is no doubt vested in constitutional conventions of the several American States, by which the constitutions and organic[***18] laws of those States are from time to time changed and amended."

   The views thus expressed are sustained by Courts of high authority.

   In New York the Constitution of 1821 provided that clerks of counties, including the city and county of New York, should be chosen by the people, but made no reference to their powers and duties. The Act of 1843 provided that the clerk of the Court of Common Pleas for the city and county of New York should be appointed by the Court, and should act as county clerk. The question arose in Warner v. People, 2 Denio 272, whether the Act was constitutional, and it was held that it was not.

   JUDGE BRONSON said: "In effect, the statute divides the office of the clerk of the city and county of New York into two parts, and as to the largest share in point of duty and emolument, takes the choice of the officer from the electors of the county, and gives the appointment to the Court. If this can be rightfully done, I do not see any security for the rest of the office." CHANCELLOR WALWORTH said: "When the Legislature assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is[***19] to be appointed in a different manner, and to hold the office by a different tenure than that which is provided by the Constitution, it is not a legitimate exercise of the [*652] right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment."

   In People v. Albertson, 55 N.Y. 50, the Court of Appeals said: "The Constitution cannot be evaded by a change in the name of an office, nor can an office be divided and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner, except as authorized by the Constitution." The Constitution of New York of 1844, then in force, did not mention the powers and duties of Sheriff, and the Act of 1882 provided that the Albany County Penitentiary should thereafter be the county jail, and required the Sheriff to remove the prisoners from the jail to the penitentiary, and made the superintendent the jailer, requiring him to give bond to the Sheriff for the discharge of the duties as jailer, but did not release the Sheriff from liability for escapes or from amercements. This Act was drawn in question in People v. Keeler, 29 Hun 175,[***20] and was held unconstitutional, because it deprived the Sheriff of common law powers and duties pertaining to his office, and violated the provision requiring the Sheriff to be elected by the people.

   The same was held in Wisconsin as to a Sheriff, in State ex rel. Kennedy v. Brunst, 26 Wis. 412, for the reasons stated in Warner v. People, and People v. Keeler, supra; and as to a constable, in Allor v. Wayne County, 43 Mich. 76, for analogous reasons.

   All those cases were reviewed in the recent case of Virtue v. Board of Free Holders of Essex County (N. J.), 50 At. Rep. 360, and the principles there announced were approved and adopted, and an Act transferring the custody of the Essex County Jail to the Board of Free Holders, was held unconstitutional, notwithstanding it had been assumed to be constitutional in this regard, in several other decisions, where this particular objection had not been raised.

   In all of these cases it will be seen that the Constitutions of the several States made no reference whatever to the powers and duties of the office, while in Maryland, the Constitution of 1864 introduced the language, [***21] retained in the present Constitution, which after requiring the election of a Sheriff for each [*653] county every two years, directs that "he shall exercise such powers and perform such duties as are now or may hereafter be fixed by law."

   But before entering upon the consideration of the effect of this change in the language of the Constitution, there are two cases which should be noticed, taking the opposite view from those we have already cited. The first of these is Hoke v. Henderson, 4 Devereaux 1, [**64] decided in 1833 by the Supreme Court of North Carolina when that Court was presided over by CHIEF JUSTICE RUFFIN, and in which he delivered an opinion of great ability and learning. It was there held, contrary to the established rule at the present day, and to the current and weight of authority at that time, that an office is the property of the incumbent. The office in question was that of Clerk of the Superior Court of Lincoln County, an office recognized in the Constitution, but not having the tenure prescribed thereby. In 1806, Superior Courts were established by law, and the Judges were authorized to appoint clerks to hold during good behavior. Hoke held[***22] under such an appointment. The Act of 1832 provided that these clerks should be elected, and Henderson was returned elected under the Act, but was denied the office by the Court. The purpose of referring to the case, is to show that while holding Hoke could not be so ousted, it was also held that "prescribing the duties of officers, their qualifications, their fees, their powers, and the consequences of a breach of duty, including punishment and removal, are all political regulations and fall within the legislative province. * * * * That the creation of an office is a question of political expediency, and so are the duties, perquisites and punishment of the officer. * * * By consequence they are the subjects of legislative regulation. If the Legislature increase his duties and responsibilities, or diminish his emoluments, he must submit, except in those cases where the Constitution has itself declared the duty and fixed the compensation, because in the nature of things, these are the subjects of such regulations as the general welfare may from time to time dictate, and the office must therefore have been conferred and accepted subject to such regulation."

   [*654] The second[***23] case is The State v. Dews, R. M. Charlton's Rep. 397, in which an exhaustive and able opinion was delivered, holding that a Sheriff in Georgia was entirely a ministerial officer whose province is to execute duties prescribed by law, and which duties may be contracted or enlarged at the will of the Legislature. The Constitution was silent as to the powers and duties of the Sheriff, but the custody of the Chatham County Jail was vested by the Act of 1822, in the Sheriff. In 1834 an Act was passed appointing the Mayor and Aldermen of Savannah, Commissioners of the jail, with power to appoint a jailer. The Sheriff refused to surrender possession, which the Court ordered in proceedings for mandamus. Speaking of the rights and duties of the office of Sheriff, the Court said: "Those duties, which are the mere creatures of the law, resulting from the legislative sense of the public interests, are not his private concern, and may be modified, increased, or diminished at the pleasure of those in whom the power of legislation resides; and since such increase or diminution does not interfere with his title to the office, nor trench upon his right to execute its duties, no injury is[***24] done him. If he sustains loss, or incurs a burden, in consequence of such alteration of its duties, it results from the application of those principles by which the public good is to be consulted and promoted, and is damnum absque injuria. The Sheriff, as relates to the jail, is a ministerial officer, and as such has no power independent of his duties. * * * The rights of a ministerial officer flow from his duties, not his duties from his rights."

   It is not necessary to say how far our conclusions would be influenced by these two cases, if they had never been considered by this Court. The North Carolina case, in so far as it declared the power to enlarge or diminish the powers or duties of public officers, was adopted in the Georgia case which dealt directly with the identical powers and duties of the Sheriff involved here, and the latter case was emphatically approved by our predecessors in Mayor of Balto. v. Board of Police, 15 Md. 376. The opinion of the Court in that case [*655] was delivered by JUDGE TUCK, a very learned and careful Judge. One of the objections made to the validity of the Act establishing the Board of Police as now substantially[***25] organized, was that it infringed upon the constitutional powers of the Sheriff. He disposed of this objection very briefly saying "the supposed improper interference with the duties of the Sheriff would not vitiate the law if the point was sustained." A separate concurring opinion however was delivered by CHIEF JUDGE LE GRAND, in which he treated that branch of the case with his accustomed force and clearness, saying: "The 20th section of the 4th Article of the Constitution, which mentions the office, and provides for filling it, does not specify or describe the powers or duties of the Sheriff. These are left to the common law and the Acts of Assembly. The charge of the other conservators of the peace, is nowhere in the Constitution given to him. There is nothing to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as Sheriff. And what was said in Georgia of the office of Sheriff in that State, is equally applicable to that officer and his duties in Maryland. In the case of State v. Dews, R. M. Charlton's Rep. 404, it was said by the Court: "It is true that the appointment of Sheriff confers upon[***26] him the right to execute the duties of the office, but from the nature of the office those duties may be changed by law. It is, in this State, a purely ministerial office, whose function and province it is to execute duties prescribed by law. From the very nature of such an office its powers are the results of its duties. In reference to it, the maxim is strictly true, that power and duty are correlative, but its powers do not extend beyond, they are the mere consequence of its duties. The holder of such office has power only to execute its duties, [**65]and because such duties are prescribed to and imposed upon him. The idea that the duties of a ministerial officer cannot be changed will involve an inversion of the order of things and be a flagrant absurdity; it would invest him, who is a mere minister and servant, with authority to limit the power [*656]of, and exercise an overmastering control over, those from whom he is to receive the law. Those duties are the mere creatures of law, and are, in their very essence, changeable by the law-making power; and his rights which are derivative only from those duties, cannot prevent their creation or change. His rights, which are[***27] the consequence of his duties, cannot intercept the authority of the Legislature to act on those duties." That this concurring opinion of the Chief Justice carries with it the same authority upon this point, as if he had pronounced the opinion of the Court, is made clear by the language of JUDGE TUCK, who immediately follows the passage we have cited from his opinion, with these words: "The views presented in the opinion of the Chief Justice, as well as that of the Court below show that these objections (the interference with the Sheriff's duties) are not well taken."

   The views thus expressed are in accord with those of JUDGE STORY, who said in Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, "The State Legislatures have power to enlarge, repeal, and limit the authorities of public officers in their official capacities, in all cases where the Constitutions of the States respectively do not prohibit them; and for the very reason, among others, that there is no express or implied contract that they shall always during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the Legislature."

   Notwithstanding, [***28] then our sincere respect for the authority of those Courts which hold otherwise, and the strong presentation of the reasons by which they are controlled, we should be compelled to hesitate long before we could decline to follow the adjudication of the principle involved made by this Court in 15 Md., supra, even if our Constitution stood now as it then stood. But that is not the situation here. Under the present Constitution, the powers and duties which the Sheriff is to exercise and perform are not such alone as were then determined by the common law, but were those--save and except as then or thereafter fixed by law, whether the effect of such law was to repeal, enlarge, or limit those powers. The language [*657] could not have been more explicit or plainer in meaning, if the Constitution said "The powers and duties of Sheriffs shall be such as now are or may hereafter be conferred and prescribed by legislative enactment." The present language first appears in the Constitution of 1864, framed only four years after the decision in 15 Md., supra, and it may be reasonably supposed that it was introduced to effectually set at rest the question raised in that case, though[***29] reference to the debates of that convention throw no light on the matter.

   Long before that time however it appears from an examination of the Acts of the General Assembly, that the system now proposed for Anne Arundel County was in force in the State. Chapter 284 of 1826 created a Board of Visitors for the jail of Baltimore County with authority to appoint a warden of the jail. The preamble of that Act set forth that "by reason of multiplicity of business the Sheriff cannot pay that personal attention to the safety of prisoners which is desirable, and for this cause, and for reasons of economy, this Act is enacted." The passage of such an Act serves to show that the legislators of that day who were usually men of affairs, and certainly not less regardful of constitutional limitations than those of the present generation, believed that it was within their rightful power. This Act continued in force until 1832, when by ch. 58 of that year, the Governor was authorized to appoint a Board of Visitors of the jail of Baltimore City and county with authority to appoint a warden to whom the custody of the jail of said city and county and the prisoners therein was committed, and the Act of[***30] 1826 was then repealed. Ever since that time, the jail of Baltimore City has been in the custody of such a board and of a warden appointed by them. Almost all the sections of Art. 4 of the Code of Public Local Laws of 1860, relating to the jail of Baltimore City are codifications of the provisions of the above Acts of 1826 and 1832, and these were amended and re-enacted in the successive Codes of the State, and were again re-enacted in ch. 123 of 1898, known as the New Charter of Baltimore. The continuance of this Act upon the statute book unquestioned for nearly forty years [*658] prior to the Constitution of 1864, and unquestioned for nearly forty years since that date is most significant and creates a strong presumption in favor of its validity based upon the acquiescence of the people, of the numerous Sheriffs who have been immediately affected thereby, and of the several departments of government, in the system which it established. We are not to be understood as intimating that an Act clearly transcending the legislative power can be rendered constitutional and valid by subsequent acquiescence, no matter for how great a period, but in a doubtful case, long and willing acquiescence [***31]might serve to turn the scale. JUDGE COOLEY says in his Constitutional Limitations, 4 ed. 204: "The rule of law upon this subject appears to be, that, except that where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case." And in People v. Draper, 15 N.Y. 532, cited in 15 Md. supra, the Court[**66] said: "Plenary power in a Legislature for all purposes of civil government is the rule." Both these statements of the law are cited with approval in Trustees of Catholic Cathedral Church v. Manning, 72 Md. 116, 19 A. 599, and whatever our view may be, or that taken by the public of the expediency of extending to the counties of the State, the system in force in the city of Baltimore, we can not doubt that it is our duty as a Court to sustain this law against the objection urged in this case.

   There is, however, an objection to the validity of this Act, which we are not at liberty to pass sub silentio because in our judgment it is an insuperable objection, and that is the provision that three of[***32] these Visitors shall be appointed by the Judges of the Fifth Judicial Circuit, thus converting the Court, for the purposes of that Act, into an appointing agency. No argument is needed to show that the duty thus sought to be imposed is not judicial, and that in making these appointments the Judges were not performing a judicial function. In the very recent case of Robey v. Prince George's County, 92 Md. 150, 48 A. 48, it was held that a statute which requires Judges of the Circuit Courts to approve the accounts of certain officers before [*659] payment of such accounts by the County Commissioners, imposes upon the Judges a duty not judicial in its nature and is unconstitutional under the Declaration of Rights, Art. 8, which ordains "that the legislative, executive and judicial powers ought to be forever separate and distinct from each other, and no person exercising the functions of one of said departments, shall assume or discharge the other." In that case, it was said, "The mere fact that a Judge is called on by statute to execute a certain function, does not make it a judicial function. Its character is dependent on its qualities, not on the mere accident[***33] as to the person designated to do it. * * * If the Act is judicial when conferred on a Judge, and non-judicial when not conferred on him, the same Act would be in one county judicial, whilst in an adjoining county it would not be." And, as was pointed out in that case, so here, "the statute contains intrinsic evidence that the duty which it imposes on the Judges is not judicial." It requires the appointments to be made by "the Judges of the Fifth Judicial Circuit," which requires that at least a majority, if not all of them, must unite in making the appointments. "Were this duty judicial, one Judge would have under the Constitution, as much authority to discharge it as a majority (or all) would possess, because sec. 21, Art. 4 of the Constitution provides that one Judge in each circuit shall constitute a quorum for the transaction of any business." And our decisions, which precede that case, are clear that Judges cannot be compelled to perform services not of a judicial nature.  State v. Chase, 5 H. & J. 297; McCrea v. Roberts, 89 Md. 238, 43 A. 39.

   Courts are naturally and properly reluctant to disregard the wishes of the Legislature expressed in the form[***34] of laws, and doubtless the Judges who made these appointments were influenced by this feeling. But there has always been among the Judges of this State a grave doubt as to the validity of similar appointments under the law which formerly required the appointment of School Commissioners to be made by them, and some of these Judges refused to unite in making such appointments in their circuits, because they regarded the [*660]power of appointment as a non-judicial, and therefore as a prohibited power. Officers so appointed, when once inducted into power, are doubtless regarded as de facto officers, and their official acts upheld pro bono publico. Their title even may be recognized in proceedings against indifferent parties, necessary to the conduct of the office, but we are aware of no case in which the title of officers so appointed has been sustained in a proceeding like the present seeking to oust an incumbent, who but for the Act in question, must be conceded to be the lawful incumbent. The rule of physics is the rule of law, that no stream can rise higher than its source, and an Act which violates a constitutional provision cannot confer valid title upon one whose[***35] title is traced to, and must depend upon, the very feature of the Act which renders it obnoxious to that charge. This Court has said in 15 Md. supra, 453, that "when the Court is satisfied that the Legislature has exceeded its authority, we should no more falter in denouncing the Act as void, than we should hesitate in deciding the most unimportant matter within our jurisdiction."

   For the reason which we have assigned, the order directing the mandamus to issue will be reversed.

   Order reversed with costs above and below.

   BOYD, J., dissented on the second proposition in this opinion. 

JAMES P. BANNON vs. JOHN R. SHEKELL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 738; 51 A. 836; 1902 Md. LEXIS 50

 March  6, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (REVELL, J.)

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

CORE TERMS:  blind, license, waters, river, yards, clerk, licensed, three hundred, shoot, wild fowl, demurrer, priority of right, license fee, shooting, distance, definite, select, fine, injunction to restrain, construed to mean, point of land, year to year, shore line, sole right, establishment, destruction, regulating, sustaining, conforming, injunction

COUNSEL: E. C. Gantt, (with whom was Jas. P. Bannon on the brief), for the appellant.
 
Robert Moss, for the appellee.

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

OPINIONBY: PEARCE

OPINION: [*739] [**836] PEARCE, J., delivered the opinion of the Court.

   The appellant filed a bill in the Circuit Court for Anne Arundel County for an injunction to restrain the appellee from placing a ducking blind "at or off the place or point in the waters of South river, known as 'Round Point' or 'Blacksmith's Hammer,' and from shooting wild fowl therefrom." [**837] The appellee demurred to the bill, and the Court sustained the demurrer and dismissed the bill.

   Sec. 254 of the Local Law of Anne Arundel County regulating the shooting of wild fowl provides that before any person shall place any blind in the waters of South river and shoot therefrom, he shall obtain a license therefor from the Clerk of the Circuit Court, upon payment of $2.50-100, and "the holder of such license shall have the right[***2] over any other person to renew his license from year to year," provided he secures a new license on or before May 15th, in each year.

   Sec. 255 provides that "after said blind has been licensed," no blind shall be established at a point nearer to said blind than three hundred yards.

   Sec. 256 imposes a fine of from $5.00 to $20.00 for violation of sec. 255, and an additional fine of $5.00 upon the owner of any blind who shall establish a blind within three hundred yards of another already licensed and established, for each week it remains after notice to remove by the owner of the blind first established.

   Sec. 259 provides that all licenses shall begin on May 1st and continue for one year.

   The bill alleges, 1st. That Geo. W. Duvall, on May 1st, 1899, obtained a license in accordance with law to place a blind in the waters of South river "at a place or point on said river known as 'Round Point' or 'Blacksmith's Hammer,' and to shoot therefrom."

   [*740] 2nd. That Duvall died in the year 1900, without having renewed his license.

   3rd. That sometime in April, 1900, and after Duvall's death, plaintiff applied to the Clerk of the Court for a license to place a blind "at said place [***3]on the waters of South river, formerly occupied by said Duvall, and to shoot wild fowl therefrom," and then paid the proper license fee to said Clerk, who declined then to issue him a license either for the unexpired year ending May 1st, 1900, or for the ensuing year.

   4th. That on May 1st, 1900, the Clerk issued to the appellant the license applied for.

   5th. That on the same day, the Clerk unlawfully issued to the defendant a similar license to place a blind and to shoot therefrom, "at the same place or point on said waters as that described in the license to plaintiff."

   6th. That defendant "is about to place said blind off said 'Round Point' or 'Blacksmith's Hammer,' and to shoot therefrom, to the injury and destruction of plaintiff's rights."

   7th. That plaintiff "is entitled to the sole right of placing a blind at or off 'Round Point' or 'Blacksmith's Hammer,' by reason of his having made application therefor before the application of defendant, and having paid the license fee therefor, and that he is entitled to have the defendant restrained, &c."

   There was filed with the bill, as an exhibit, the license issued to the plaintiff, which it will be seen does not mention the[***4] place formerly occupied by Duvall, but confers general authority to place one blind "off Round Point or Blacksmith's Hammer, in the waters of South river," so that the license granted neither creates any specific right in, or preference to, the precise location established by Duvall, nor restricts the appellant to that precise location. Under it, he had the right to establish his blind at any point in the waters of South river off Round Point or Blacksmith's Hammer, which he might select, provided only he did not establish the same at a point less than three hundred yards from any blind previously licensed. The license issued on the same day to the appellee, is averred by the bill to be "similar" to that issued [*741]to the appellant, and these two licenses therefore conferred equal rights upon the licensees. It was the duty of the clerk to issue as many licenses as were applied for by qualified persons, leaving them to establish their blinds, and thereby to fix and determine their respective rights thereunder in accordance with the provisions of the law, since there is no requirement, either that the applicant shall select, or that the license shall specify, any particular[***5] point or spot for the location of his blind. The authority contemplated by the language of the law embraces all the waters of South river. As between any two licensees therefore, if the licenses are issued in conformity with the general terms of the law, priority of right must depend upon priority of establishment, and the prohibition against establishing a blind within three hundred yards of one which has been licensed, must be construed to mean one which has been licensed and established. Indeed both these words are used in sec. 256, in imposing an additional fine for the maintenance of a blind within the prohibited distance, after notice to remove it.

   It is obvious that from any given point, (using the word in its geometrical sense), off "Round Point" or any designated shore locality, numerous blinds, might be established, all conforming to this requirement of law, but varying in number with the conformation of the shore line and the area of adjacent waters. Thus, "off of" a long projecting point of land taking its extremity as the centre of a circle, a larger number of blinds conforming to the distance limit could be established, than upon a long stretch of straight shore[***6] line, or "off of" some short and insignificant point of land.

   The bill predicates a claim of prior right upon the priority of application accompanied by payment of the license fee, but we cannot perceive how, in view of the necessity of establishing a blind, as the foundation of right to a location, these circumstances can create any priority of right. There is no averment in the bill that the appellant had established any blind, though the bill was not filed until September 11th, more [*742] than four months after his license was issued, and until he did so, we cannot perceive how he could sustain an averment that the appellee was about to establish a blind which [**838]would result in the injury or destruction of his rights. Moreover, the bill does not charge that the appellee was about to establish a blind within three hundred yards of his location, which is the only prohibited act, but merely that he was about to establish it "off Round Point," and we have already shown this might well be, without offending against the prohibition of the law. Even if the appellant had established his blind, it would be necessary to allege distinctly that the appellee was about to establish[***7] his within three hundred yards, in order to show any threatened invasion of the appellant's rights. The vague and indefinite allegations of fact made in this bill do not establish any such clear and definite right in the appellant as it is essential to show, and even if they did so, there is no sufficiently clear and definite averment of any purpose of the appellee to invade such right. The demurrer admits only such facts as are so pleaded as to establish a clear and definite right in the appellant, and a threatened violation of that right, for which no adequate legal remedy could be had. With respect to the sufficiency of the facts alleged in the bill, the cases all hold that a clear prima facie case demanding redress must be made by the allegations of the bill, to warrant the granting of an injunction. Miller's Equity, sec. 581, and note 5.

   And this rule is strictly observed in cases seeking preventive relief, not against the continuance or repetition of a wrong, but against the anticipated or threatened commission of a wrong. Suit v. Creswell, 45 Md. 529.

   It is at least extremely doubtful whether under any bill which could be framed for the purpose[***8] sought by this bill, an injunction could be granted, since it is difficult to perceive why the appellant could not recover in an action at law, full and ample compensation for any injury he might suffer from the erection of a blind within three hundred yards of his blind. Whalen v. Dalashmutt, 59 Md. 250.

   [*743] We think the Circuit Court was entirely correct in sustaining the demurrer and dismissing the bill.

   Decree affirmed with costs to the appellee, above and below. 

THOMAS M. PLUMMER ET AL. vs. OWEN SHEPHERD ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 466; 51 A. 173; 1902 Md. LEXIS 24

 January  17, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County, (JONES, C. J.), by which it was directed that the funds representing the real and personal estate of the testatrix be distributed among such of the children of the brothers and sisters of the testatrix as were surviving at her death by a per stirpes distribution.

DISPOSITION: Order reversed and cause remanded that distribution may be made according to this opinion. The costs in this Court to be paid ratably by the two funds involved.

CORE TERMS:  heirs, testatrix, real estate, sister, residue, deceased brother, residuary clause, share and share alike, stirpes, deceased, personal estate, bequeath, nephew, niece, personal property, devised, per capita, predeceased, devisees, dispose, devise, technical meaning, testator, true construction, first place, distributing, bequeathed, one-fifth, preceding, disposing

COUNSEL: James W. Owens, for T. M. Plummer et al.
 
E. C. Gantt, for John Shepherd et al.
 
James R. Brashears, for Owen Shepherd et al.
 
Richard M. Duvall, filed a brief for M. A. Bevan et al.

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

OPINIONBY: FOWLER

OPINION: [*467] [**174] FOWLER, J., delivered the opinion of the Court.

   The questions presented by these three appeals will be disposed of in one opinion. They arise upon a bill filed in the Circuit Court for Anne Arundel County, for the partition of certain real estate of the late Misses Elizabeth and Susan Shepherd which they owned in common. The bill was filed by John and Joseph[***2] Shepherd, sons of the late Joseph Shepherd, and it is only necessary to mention that after proper proceedings Mr. E. C. Gantt was appointed trustee to sell the various tracts of land mentioned therein. The sale was made and the funds arising therefrom are in the hands of the trustee for distribution. By an agreement of counsel which is found in the record it appears that there is no question as to the moiety of proceeds of sale allotted by the auditor's account to [*468] Elizabeth Shepherd's devisees and distributees; that the personal estate of Susan Shepherd was administered--all debts and pecuniary legacies paid by the executor--and the balance of the personal estate, by order of the the Circuit Court, was brought by him into this case for adjudication and distribution; that William Shepherd, a brother of the testatrix, Susan Shepherd, was living at the date of the will, but died before the testatrix; and that the only questions involved in these appeals relate to the true construction of Susan Shepherd's will.

   The auditor has filed two accounts, Schedule A and Schedule B, distributing Susan Shepherd's share of proceeds of the real estate upon two different theories, and three[***3] accounts, namely, Schedule A No. 2, Schedule B No. 2 and Schedule C, distributing the proceeds of her personal property according to the theories suggested by counsel. It will not be necessary, however, to discuss in detail these various distributions, but we will proceed at once to ascertain, if we can, the true construction of Susan Shepherd's will, and having thus discovered her intention, the distribution must be made accordingly.

   By the first item of the will the testatrix thus disposes of her real estate: "I give and bequeath all my real estate to my brother William and his heirs, to my deceased brother, Samuel Shepherd's heirs, and the heirs of my deceased brother Joseph Shepherd; also, all the heirs of my deceased sisters, Eliza Bevan and Mary Plummer, share and share alike."

   Then follow nine separate and distinct "items" in each of which she gives and bequeathes to a niece or nephew (in each case giving the name of such nephew or niece) certain named furniture or a sum of money varying from $1200 to $300. The residuary clause then follows and is in these words:

   "And the residue of my property, real and personal, I give, bequeath and devise to all my heirs, herein named, [***4] equally share and share alike."

   It seems to us that the first clause of the will disposing of the real estate, and all of it, requires but little consideration, [*469] unless its plain and manifest meaning is controlled by some subsequent clause. In the first place let us inquire what is the intention of the testatrix as declared in the first item of her will without regard to the residuary clause by which the learned Court below thought the first clause should be governed.

   The testatrix had three brothers and two sisters. One of those brothers, William, was living at the date of the will, but predeceased the testatrix; both of her sisters also predeceased her. She divided all of her real estate, share and share alike, between her brother William "and his heirs," her deceased brother Samuel's "heirs," "the heirs" of her deceased brother Joseph, "the heirs" of her deceased sister Eliza Bevan, and "the heirs" of her deceased sister Mary Plummer, thus clearly, as we think, constituting five classes and devising one-fifth of all her real estate to each class. The word "heirs" as used in this clause does not necessarily bear its technical meaning, but it may here, as is frequently[***5] done, be construed as meaning "children." 2 Jar. on Wills, top page 614, &c., 5th Am. ed.; Conger v. Lowe, 9 L.R.A. 165, 169; s. c. 124 Ind. 368; Albert v. Albert, 68 Md. 352, 12 A. 11. It is apparent from an examination of the whole will that it was not drawn by a professional or skilful hand, and under such circumstances it would not be reasonable to give the word "heirs" its strict technical meaning. The testatrix appears to have had the intention, and to have given expression to it in her will, to provide for her only living brother (the only brother living at the time her will was executed) and his children, and the children respectively of her deceased brothers and sisters. To a number of these she gave legacies of money and to one furniture. If, therefore, the proceeds of the real estate are distributed equally to the five classes--we think her intention as expressed in the first item will be substantially carried out. That is to say, each class will take per stirpes, and the members of each class will take per stirpes an equal share of the part awarded to his or her class. In arriving at this conclusion[***6] we do not overlook such cases as Maddox v. The State, 4 H. & J. 539, where the [*470]testator directed the residue of his estate "to be equally divided between his brother Justinian and his brother George's children," the Court holding that the one class thus created took as tenants in[**175] common and that distribution was to be made per capita and not per stirpes. See also to same effect Brown v. Ramsey, 7 Gill 347; Thompson v. Young, 25 Md. 450, and Brittain v. Carson et al., 46 Md. 186. But in the case at bar the testatrix has herself clearly created five classes, each class designated as "the heirs" or children of a deceased brother or sister--thus indicating that the share of her estate which would otherwise have been given to such brother or sister shall go to his or her children. In other words we are of opinion that this case should be governed rather by the cases of Alder and others v. Beall, 11 G. & J. 123, and Levering, &c., v. Levering, 14 Md. 30--where it was held that it is apparent from the will itself that it was the intention[***7] of the testators that the distribution shall be per stirpes and not per capita.

   Having arrived at the conclusion that the real estate or the proceeds thereof should be divided per stirpes among the five classes above named, we will consider what is the rule of distribution as declared by the testatrix in the residuary clause.

   We have already transcribed this clause in the former part of this opinion.

   It will be observed in the first place that although all of the real estate had been fully and clearly devised by the first item, yet in this residuary clause the testatrix undertakes to dispose of the residue of her real as well as the residue of her personal property. Confessedly there is, in fact, no residue of the former, and we think it is clear that the distribution provided for in this clause was intended by the testatrix to apply alone to the residue of her personal estate. Here as in the case of Douglas v. Blackford, 7 Md. 8, and indeed in very many instances, the word "residue" as to the real estate was merely precautionary to meet, in this particular case, the almost impossible contingency of having omitted to devise some part of it in[***8] the previous part of the will. We may safely, therefore, assume that when the testatrix said, "I give bequeath, &c., to [*471] all my heirs herein named equally, share and share alike" she was in fact disposing of the residue of her personal estate and had no reference to her real estate, all of which had already been devised.
 
   The bequest is "to all my heirs herein named." Who are they? Of course the expression "all my heirs" would have included all those to whom she devised her real estate in the first item. But with the exception of her brother William none of those devisees were mentioned or named. They are described not by name, but as the heirs of this brother or that sister. Hence, we cannot say that they are heirs of the testatrix "herein named," even if it be conceded they are her general heirs, and not being her heirs named in the will, they do not come within the class described by the testatrix. It is suggested that her brother William is named and that therefore he should be considered as one of the class to whom the residuary clause refers. But in our opinion this conclusion does not follow. William's name is mentioned, it is true, but only for the purpose [***9]of designating one of the classes to which the proceeds of the real estate is to go, and a far more reasonable construction is that the testatrix by using the words "my heirs herein named" referred to her nephews and nieces named in the nine preceding clauses and to whom she had bequeathed in various sums the bulk of her personal estate.

   It follows therefore that the order appealed from will be reversed.

   Order reversed and cause remanded that distribution may be made according to this opinion. The costs in this Court to be paid ratably by the two funds involved. 

ALTON R. ARNOLD, EXECUTOR, vs. JOSEPH O. FOWLER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 497; 51 A. 299; 1902 Md. LEXIS 31

 January  17, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County (REVELL and REIFSNIDER, JJ.)
 
The plaintiff's first prayer, which was granted, declared that if it should be found as facts that the plaintiff, as sheriff, under the instruction of the defendant, levied the writ of fi. fa. on the growing crops of the execution debtor, Wilson, the defendant agreeing that he would order and arrange for the hands and teams to gather the crop of peaches, and that before the day fixed by defendant for gathering the peaches, the defendant instructed plaintiff to release the crop so levied on from the operation of the writ, which plaintiff forthwith did; that thereafter Wilson brought an action on the official bond of the plaintiff as sheriff for alleged losses sustained by Wilson in his peach crop during the time that the same was subjected to said levy, and for making an excessive levy in the premises, that the defendant, Arnold, had notice of said action, was present at the trial thereof, and assisted in its defense by counsel retained and paid by him; that the plaintiff, the said Fowler, contested said action both in the lower Court and in the Court of Appeals; that the lower Court practically took[***2] the case from the jury on question of law, but that the said Wilson took an appeal, and the Court of Appeals reversed the lower Court and sent the case back for a new trial; that the said Arnold, thereupon, refused any further to contribute to the defense of the said suit of Wilson against the bond of the said Fowler, that thereafter Fowler, on the advice of the Hon. Robt. Moss, the attorney who had been paid in the case of Wilson against said bond, by the said Arnold, compromised the suit of Wilson against him and his bond by confessing a judgment therein in favor of Wilson for $250, and costs of suit, which judgment Fowler, the plaintiff in this suit, has paid, together with certain costs of suit in said case of Wilson, both in the lower and in the higher Court, and certain counsel fees incurred therein; and if the Court shall further find from the evidence that the said compromise was judicious and reasonable, so far as the said defendants in the said compromised action were concerned, and shall further find that the said Fowler and his deputy, in their proceedings under the said fieri facias, acted in good faith and without any design or intention of violating the law, or of injuring [***3]the defendant in said execution, but on the contrary, as the said Fowler and his deputy honestly believed, by the lawful authority and direction of the said Arnold, the judgment creditor therein, then the plaintiff in this action is entitled to recover the amount so paid by him as the judgment, costs and counsel fees in the said suit of Wilson against him and his bond, whether the defendant did or did not expressly promise to indemnify the plaintiff in the premises. (Granted.)

DISPOSITION: Judgment affirmed with costs.

CORE TERMS:  levy, prayer, indemnify, peach, excessive, judgment creditor, narr, crop, demurrer, notice, recovered, supposed, judgment debtor, legally sufficient, lawful authority, perishable, declaration, oppressive, duty, writ of fieri facias, right of action, loss suffered, general rule, deputy, execution creditor, entitled to recover, parties interested, confessed judgment, bond of indemnity, express contract

COUNSEL: James M. Munroe, for the appellant.
 
The facts stated in the narr., if they constitute a contract of indemnity, express or implied, or a contract of any kind, constitute a contract manifestly unlawful, for surely if the official acts of the sheriff are properly done, they create no liability; but if neglected, or improperly done, or if in the doing of them discretion is abused, the sheriff and his sureties are liable. State, use of Wilson, v. Fowler, 88 Md. 601. We have, therefore, (1) an alleged contract to protect the sheriff against the evil consequences of the proper performance of his lawful duty, which is impossible of execution, because no evil consequences can[***4] result in such a case, and is, therefore, no contract at all; or else we have (2) an alleged contract to protect the sheriff against the evil consequences of his unlawful conduct; for it is only from such conduct in the performance of a legal duty that evil consequences can flow. But such contract is null and void, the consideration being illegal. This is not a case of contribution between joint tort-feasors, but a case where the tort-feasor seeks to recover upon a contract which he alleges was the inducement to the tort committed by him.
 
Briefly stated, the narr. alleges: (a) That Arnold instructed Sheriff Fowler to levy upon Wilson's peach crop. (b) That Arnold agreed with the sheriff to supply baskets, and labor and teams necessary for properly picking the peaches and hauling them to the wharf, under the supervision and in the name of Fowler, sheriff, the net proceeds thereof to be applied towards satisfaction of the fieri facias. (c) That as Arnold was a resident of the neighborhood and a raiser and shipper of such fruit, this arrangement was agreed to. (d) That Arnold failed to supply the baskets, hands and teams to pick and haul away to the wharf said peach crop. (e) That[***5] afterwards, Arnold directed the sheriff to release the peach crop from his levy, which he did, and so notified Wilson. (f) That the judgment recovered by Wilson against Fowler for his conduct in executing said writ of fieri facias was the result of the instructions Arnold gave to Fowler in the premises, and of Annold's failure to supply the baskets, hands and teams for the purpose aforesaid.
 
Now the only instruction alleged to have been given by Arnold to Fowler was to levy upon the peach crop. This was a lawful levy, and the instruction was, therefore, proper. State, use Wilson v. Fowler, 88 Md. 601.
 
But the plaintiff converts his "harsh, oppressive and illegal conduct" into a meritorious cause of action against the defendant on these two grounds: (1) because defendant gave plaintiff a lawful instruction as to what he should levy upon; (2) because defendant declined to furnish teams, &c., to haul away the peaches to a wharf, thence to be shipped for sale, contrary to law. It is idle for plaintiff to say that his narr. does not allege the peaches were to be shipped away for sale, and, therefore non constat, but that the sheriff was to comply with sec. 3 of Art. 83 of Code, [***6] title "Sales and Notices," regulating sales of personal property taken in execution. If the words used in the narr. are to be given their usual and ordinary meaning, then the agreement, here the ground of suit, "to pick and haul the peaches to the wharf, in the name and under the supervision of the plaintiff, the net proceeds (of sales) to be applied toward satisfaction of the fi. fa. which said arrangement was assented to by the plaintiff because said Arnold was himself a raiser and shipper of such fruit," unquestionably was to pick and haul that fruit to the wharf and ship it away to be sold, as Arnold did his fruit, without any regard to the provisions of Code, Art. 83, sec. 3. How meaningless and illogical it would be to say the agreement was to haul the fruit down to the wharf there to be sold according to the provisions of the Code, because Arnold was himself also a raiser and shipper of such fruit! Code, Art. 83, sec. 3, "Sales and Notices;" 10 Am. & Eng. Ency., 405, title: "Indemnity Contracts," paragr. 3, "Illegality," cases cited in Note 1, on page 406.
 
An agreement to indemnify one from liability for an illegal act is void. Collins v. Blantern, 1 Smith's Ldg. cases, [***7] 689.
 
The sheriff is required to follow specific instructions as to execution of process, if he can lawfully do so. Murfree on Sheriffs, sec. 111A.
 
Sheriff must follow instruction of plaintiff, if reasonable and he can lawfully do so; from specific instructions to serve a writ in a particular manner, a promise will be implied in law from the plaintiff to the officer to hold the latter harmless of the natural results of obeying his instructions. Hence, it sheriff follows plaintiff's instructions in doing an act not known to him to be unlawful and is thereafter compelled to respond in damages because of the act, he may recover from plaintiff the amount so recovered from him. Murfree on Sheriffs, p. 463, sec. 890A; 2 Freeman on Executions, sec. 275.
 
In this case Fowler is not suing Arnold for the consequences which befell him (Fowler) in carrying out the plaintiff's instructions as to the making of the levy and the manner of executing the writ; but he is suing him for the consequences of Arnold's failure to supply him with the means agreed upon, as alleged, to carry out his instructions as to the execution of the writ. It is not alleged that he (Fowler) executed the writ[***8] as instructed by Arnold and agreed upon between them, but it is alleged that Fowler did not execute the writ as instructed and agreed upon because Arnold failed to supply the means thereto. This, therefore, is a very different case and presents the question whether or not Arnold is responsible for failure to provide the means to enable the sheriff to execute a writ in a manner known to the sheriff at the time to be unlawful.
 
The defendant's first prayer is a demurrer to the evidence, asking the Court to rule that, under the pleadings in the case, there is no evidence legally sufficient to entitle the plaintiff to recover in this action. If the narr. states a good cause of action, and if the plaintiff is entitled to recover in this action at all, then it must be because Arnold made an agreement with Fowler to furnish the means to enable him to pick and haul away the peaches but failed to keep his agreement, and that as a result of Arnold's failure so to do, Fowler was unable to pick the peaches and suffered damage on that account. It is respectfully contended that there is not a word of testimony in the Record to support such a contention.
 
J. Wirt Randall (with whom was Daniel[***9] R. Randall on the brief), for the appellee.
 
Directions and orders carried out establish the relation of principal and agent and raise an implied promise to indemnify against the consequences of obeying the instructions; even where there is no duty on the part of the supposed agent to obey the orders of the technical principal. Bullen's N. P., 146; Murfree on Sheriffs, sec. 621 (p. 292); 1 Parsons on Contracts, (8th ed.) p. 35; Merryweather v. Nixon, 8 Term R. 186; Adamson v. Jarvis, 4 Bingham, 66, 72; Betts v. Gibbins, 2 Adol. & Ellis, 57, 64, 73; Woolley v. Battle, 2 Car. & P. 417; Jacobs v. Pollard, 10 Cush. 287-8, &c.; Drummond v. Humphreys, 39 Me. 347; Dugdale v. Levering, Law Rep. 10 Com. Pl. 199.
 
But if a mere stranger, who is under no obligation to obey such orders, but who does so to his detriment, is thus protected by an implied promise to indemnify; how much more should an officer, whose duty it is to obey the commands of the execution creditor, be so protected? For the execution creditor's control over his execution is almost absolute. He directs its issuance; he may direct that it be temporarily suspended; enforced or not enforced; what levied upon and how proceeded[***10] with. The officer is bound to follow the instructions of the execution plaintiff, or his attorney, and refuses or neglects so to do at his peril. Murfree on Sheriffs, sec. 111A, (bottom p. 67, q.) (1890 ed.); Evans' Practice, 485; Kent v. Richards, 4 Md. Ch. 395; Sasscer v. Walker, 5 G. & J. 109; Root v. Wagner, 30 N. Y. 9, 17; Ball v. Badger, 6 N. H. 409.
 
Of course the sheriff could recover if a bond of indemnity had been asked for and given him,--even if the execution had been levied on the goods of an entire stranger (the usual case for a bond), but a parole promise to indemnify is equally effective. 1 Viners Ab., 299, sec. 27; Murfree on Sheriffs, secs. 635A, 635, 685; Stone v. Hooker, 9 Cow. 154; 4 Robinson's Practice, 350, 356; Cook v. Merrifield, 139 Mass. 139; Avery v. Halsey, 14 Pick. 174; Coventry v. Barton, 17 Johns, 142.
 
But in the absence of a bond of indemnity or an express promise to indemnify, there is an implied promise in law from the execution plaintiff to the officer, to hold the latter harmless from the natural results of obeying the instructions of the plaintiff as to the mode of executing the writ. Murfree on Sh'ffs (1890 ed.), bottom p. 463, sec. 890A; [***11] Ibid, sec. 621, bottom p. 292; 2 Freeman on Executions (2nd ed.), sec. 275, (end) p. 894; Humphreys v. Pratt, 5 Bligh, 154, (164); Stoyel v. Cady, 4 Day (Conn.), 226; Bailey v. Bussing, 28 Conn. 455; Gower v. Emory, 18 Maine, 79, 82, 83; Sanders v. Hamilton, 3 Dana (Ky.), 550; 2 Hilliard on Torts (4th ed.), p. (top) 170; 2 Greenleaf's Ev. (15th ed.), sec. 115; Simpson v. Mercer, 144 Mass. 413, 414.
 
The general doctrine has been fully recognized in our own State. Craig v. Aukeny, 4 Gill, 225; Smith v. Anderson, 18 Md. 520; Richardson v. Hall, 21 Md. 404; Percy v. Clary, 32 Md. 246; Corner v. Mackintosh, 48 Md. 386; C. &. O. Canal Co. v. Co. Comrs. Al. Co., 57 Md. 224.
 
This Court in Wilson v. Fowler, supra, held that a growing crop of peaches was taken in execution lawfully; that it was an act done virtute officii and not colore officii; it is also held, however, that if the officer having thus made a lawful levy on a growing crop, neglects to gather and ship, so that the crop is lost or destroyed, he thereby executes the writ in a wrongful and oppressive manner, and his bond is responsible. It was the delay, the neglect to pick and handle the peaches, that caused the loss[***12] to Wilson; it was that for which he sued Fowler and his bond, and for which Fowler had to pay him damages; and that delay and neglect, the testimony proves conclusively, were Arnold's defaults. He, as the execution creditor interested, had a right to delay or suspend the execution of the writ, which he did until the Monday following the Thursday on which it was levied. He had a right to discharge or release the peach crop from the levy, which he did by going before sunrise on the intervening Saturday to his attorney's house in Annapolis and ordering the peaches released from the levy.
 
The appellant took the whole management of his execution absolutely into his own hands, from its levy to its dismissal; and then admitted his responsibility through his counsel and by his words and actions at the trial of the suit on the bond. To make the officer under these circumstances the one who is ultimately to bear the loss; on the ground of pari delicto would seem to be most unfair and unreasonable.
 
The appellant contends also that after the case of Wilson against the bond was sent down by this Court for a new trial, Fowler confessed a judgment in it in favor of Wilson, instead of fighting[***13] it; and that Arnold should not be bound by a judgment so confessed. The evidence of Fowler and of Mr. Moss shows why the case was compromised, and that it was the wisest and, in fact, the only wise thing to do; the evidence of the witness, John R. Arnold shows that Fowler confessed the judgment for a less amount than Wilson would certainly have recovered against him, if there had been a second trial of the suit on the bond--to say nothing of the additional costs and counsel fees that the new trial would have involved. Whatever one may be compelled to do by suit, he may do without suit, or contested suit, and be in no worse position to recover over. Murfree on Sheriffs, sec. 895; Betts v. Gibbins. 2 Adol. & Ellis, 57; Randall v. Kaper, 96 Eng. C. L. 88; Train v. Gold, 5 Pick. 387; Gray v. Boston Gas Lt. Co., 114 Mass. 153.
 
Fowler was also entitled to recover from Arnold in this case the counsel fees and costs which he had paid in defending Wilson's suit on his bond in both Courts. C. & O. Canal v. Co. Commrs., 57 Md. 224; New Haven v. Northampton Co., 117 Mass. 437.

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

OPINIONBY: FOWLER

OPINION: [***14]

   [*505] [**300] FOWLER, J., delivered the opinion of the Court.

    The late Thomas H. Arnold, of Anne Arundel County recovered a judgment for $148.29 against Samuel T. Wilson of the same county and caused a writ of fieri facias to be issued thereon. The writ was executed by Joseph O. Fowler, then sheriff of said county, and the judgment debtor, the said Samuel T. Wilson, subsequently brought suit on the sheriff's official bond and after failing to recover in the Circuit Court he took an appeal to this Court, and it was held in the case of Wilson v. Fowler, 88 Md. 601, 42 A. 201, that he was entitled to recover damages for the illegal and oppressive, because excessive, levy made upon his growing peach crop. Accordingly the judgment of the lower Court was reversed and the cause was remanded for a new trial. However, before a second [*506]trial was had the parties to that suit agreed to a compromise and the defendant in that suit, who is the plaintiff and appellee in this case, confessed judgment for the sum of $250 and paid the same. Thereupon said plaintiff in this suit sued the said judgment creditor, to recover damages to indemnify him for loss[***15] suffered and sustained by reason of the execution of the fieri facias above mentioned in accordance with the directions and instructions of said execution creditor. The defendant interposed a demurrer to the narr., which having been overruled, he pleaded, and issue having been joined, the case was by agreement tried before the Court without a jury. At the conclusion of the plaintiff's testimony the defendant filed demurrer thereto which was overruled. At the conclusion of the whole testimony the plaintiff offered one prayer and the defendant two. The Court granted the plaintiff's prayer and rejected the two offered by the defendant--and judgment having been given for the plaintiff, the defendant has appealed. The first question, therefore, which is presented by this appeal arises on the demurrer to the narr. 

   The declaration contains two counts--the first being based upon an express agreement of the defendant "to save harmless and indemnify the plaintiff from any loss or damage on account of the plaintiff's proceedings aforesaid under said writ of fieri facias and in the premises; that the said Arnold urged this plaintiff to contest the aforesaid action brought by the[***16] said Wilson, both in the Circuit Court and the Court of Appeals, and promised to stand by this plaintiff and to save him from loss and injury by reason of said action against this plaintiff's bond." The second count is based upon an implied contract on the part of the defendant, Arnold, to indemnify the plaintiff.

   The general principle is well settled that when a sheriff under instructions of the judgment creditor makes a levy in the manner and upon the property directed by him, the sheriff may, if he does not knowingly act in an unlawful and illegal manner recover damages from the judgment creditor to indemnify him even in the absence of a bond of indemnity or an express contract to indemnify. Thus in section 275 of 2 Freeman [*507] on Execution it is said "if the sheriff follows the plaintiff's directions in doing an act not known to him to be unlawful, and is thereafter compelled to respond in damages because of the act, he may recover from the plaintiff the amount so recovered from him."

   So far from the levy in question having been in itself wrongful or illegal, we held in 88 Md. 601 that a growing crop of peaches or other fruit requiring periodical cultivation[***17] are fructus industriales and personal property and may be taken in execution as such. The narr. alleges that the defendant Arnold gave the plaintiff positive instructions as to what property should be taken in execution, and it is not to be inferred, without any proof to the contrary, that the plaintiff or his deputy knew, what was afterwards decided by this Court, that the levy was executed in an illegal and oppressive manner, because it was excessive. And if excessive it was so because this defendant (Arnold) who is alleged to have known the property, &c., gave directions to the plaintiff to take it under the writ. In section 621, Murfree on Sheriffs, it is said: "The general rule is that a cause of action does not arise until there has been some loss suffered by the plaintiff, and upon this principle it has been held that an officer is not entitled to sue an execution plaintiff, upon an implied contract to indemnify him for taking the goods of a third person under an execution against the defendant, until the officer has actually suffered the loss which he apprehended, * * * When an officer sues for an indemnity, his action is in the nature of an action on contract, [***18] not in the nature of an action for a tort, because there is no right of action between co-trespassers for either contribution or indemnity. The action must be founded on a contract, express or implied, to indemnify the officer against loss, and cannot be sustained until the loss has been suffered." We have thus quoted at length these general observations, because we think[**301] the general rule which should govern in cases like the one at bar is therein fairly stated by the learned author. Upon an examination of the narr. we think it clearly alleges that the levy was made according to the directions of [*508] the defendant Arnold and, as we have already said, it is not to be supposed that the plaintiff, the sheriff, had knowledge that the value of the property taken was excessive when compared to the amount of the judgment. It follows, therefore, that there was no error in overruling the demurrer to the narr.

   2. This brings us to a consideration of the rulings upon the prayers. The plaintiff's prayer which was granted is objected to on the grounds that "there was no legally sufficient evidence to find the facts therein stated as the ground of the plaintiff's[***19] right to recover in this action; (2) because there was no evidence in the record to prove the fact that Wilson had recovered damages against this plaintiff for an excessive levy; (3) because the Court is asked to find that the action of Fowler, as sheriff, in the case against Wilson, was done by the lawful authority and direction of said Arnold, whereas, if it be found that Arnold did give Fowler the instructions alleged they were unlawful; and lastly, (4) because the prayer asks the Court to find for the plaintiff whether the defendant did or did not expressly promise to indemnify the plaintiff in the premises."

   First then, does the record disclose evidence legally sufficient to enable a jury or the Court, if they believe it, to find the facts alleged in the narr. Without going into the details of the testimony it is sufficient to say that in our opinion it fully sustains every material averment of the declaration.

   Without undertaking to determine whether or not there is any evidence in the record to show that the damages recovered in the former case were for an excessive levy, it is sufficient in answer to this objection to say that no special objection was filed to the[***20] prayer on this ground, and hence that defect, even if it exists, cannot be taken advantage of here. We do not think the prayer can be properly construed as asking the Court to find that the action of the sheriff in levying the execution, was done by the lawful authority of Arnold; on the contrary, what it does ask the Court to find was that the sheriff and his deputy believed that they were acting by such authority. If they honestly believed, as the prayer puts [*509] it, that they were acting under the lawful authority of Arnold, then the fact which was subsequently ascertained by the decision of this Court in the former case, viz., that the levy so ordered by Arnold was excessive and therefore unlawful, will not prevent a recovery in this case. Nor do we think the prayer is defective because it asked the Court, if it should find all the other facts in the case, to say in effect that it was immaterial whether the promise to indemnify the plaintiff was express or implied. Murfree on Sheriffs, supra; 2 Freeman on Executions, supra.

   We have already said that in our opinion there is legally sufficient evidence in the case to entitle the plaintiff to recover. Indeed, if the[***21] evidence on the part of the plaintiff was believed by the Court it was impossible to arrive at any other conclusion. Hence it follows that there was no error in granting plaintiff's prayer nor in rejecting defendant's first prayer.

   Defendant's remaining prayer asks the Court to declare, as matter of law, that the contract alleged in the declaration is illegal. This illegality, as the defendant contends, consists in the supposed fact that the contract provided, contrary to the provisions of the Code, Art. 83, sec. 3, "Sales and Notices," that the peaches after being picked and hauled to the plaintiff's station on the railroad were to be transported to the city of Baltimore. But the contract does not so provide. It is probable that such was the intention, but, if so, such intention never was carried out. But in addition to this, the provisions of sec. 3 as to ten days' notice, as well as to the supposed requirement that the sale should be made in the county where the goods are located when seized in execution cannot be applied to a perishable crop of peaches. It would be the duty of the sheriff to ask and obtain from the Court authority for an immediate sale at such place as it could[***22] be effected to the best advantage of all parties interested. Thus it is said in Poe's Prac., sec. 669: "If the levy is made upon a cargo of perishable articles * * * * and the sale is delayed until they become altogether or partially valueless, the plaintiff's right of action against the sheriff for the consequences [*510] of his neglect of duty, will be plain. The duty of the sheriff, in brief, is to execute the writ promptly and in such a way as will be most advantageous to all parties concerned." It is to be presumed that after removing the peaches from the orchard of the defendant to the farm of the plaintiff, the sheriff would, as he was in duty bound, have sought and obtained from the Court the necessary authority to so make the sale as to yield the best possible price. On the whole case we find no reversible error, and the judgment appealed from will be affirmed.

   Judgment affirmed with costs. 

ALICE V. BOURKE ET AL. vs. GRAFTON BOONE ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 472; 51 A. 396; 1902 Md. LEXIS 32

 January  17, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (JONES, C. J.)

DISPOSITION: Decree affirmed, costs to be paid out of the estate.

CORE TERMS:  heir, testator, real estate, bequeath, devise, belonging, introductory clause, testatrix, devised, niece, died intestate, heirs forever, adjoining, disposing, possessed, dispose, seised, died, necessary implication, disinherit, plainly, personal property, residuary clause, ground rent, words used, disposed, remainder-man, disinherited, remainder, declare

COUNSEL: Robert Moss and James R. Brashears, for the appellants.
 
The after acquired real estate passed under the will of Georgie Linstid by virtue of the provisions of Code, Art. 93, sec. 321. Dalrymple v. Gamble, 68 Md. 524; Ruckle v. Grafflin, 86 Md. 630. The first item of the will fully disposed of all the real estate, but if "the intention of the testatrix does not clearly appear from the words used in a clause of the will which is to be construed, then resort may be had to the introductory clause, if there be one, to explain their meaning." Chamberlain v. Owens, 30 Md. 454; 29 Am. & Eng. Ency. of Law, 344.
 
So reading the introductory clause in connection with the other parts of the will, the testatrix says in effect: "I give all my real and personal estate to my brother, John Linstid, for and during his natural life, and then to my niece, Alice V. Boone." Dalrymple v. Gamble, 68 Md. 526; Ruckle v. Grafflin, 86 Md. 631; Cheston v. Cheston, 89 Md. 466.
 
By omitting the words of description of the land, which we claim should be rejected[***2] as surplusage, then there is a complete devise of all her real estate--thus: "I give and bequeath to my brother, John Linstid, all the land belonging to me, (being my part which I obtained from my father, and adjoining the lands of Thomas Robinsons' heirs, and James Stallings' heirs), to have and to hold so long as he may live, and at his death * * *." The first clause of this item gave all the land belonging to her in express terms, and, that being so, it cannot be defeated by the words of description that follow: 1 Jarman on Wills, 444 to 448; 29 Amr. & Eng. Ency. of Law, 371; 1 Jarman on Wills, 742 to 744; Colton v. Stenlake, 12 East. Rep. 515; Cheston v. Cheston, 89 Md. 466.
 
If the testatrix had owned the same two adjoining tracts of land at the time of the execution of her will the words of description would not have defeated the devise, because the implication would have been too strong--considering the express devise by the first clause in the first item.
 
It will be observed by reference to the whole will that technical words are not used, and it clearly appears that the draftsman did not understand the difference between real estate and ground rent, for if he had[***3] understood the difference, or had known that ground rent was real estate, it is natural to presume that he would not have made two items in the will, but would have been satisfied with the words "all the land belonging to me" used in the first item, which of themselves would have passed all the real estate the testatrix had, wheresoever situated, and also after acquired lands. In the case of Dalrymple v. Gamble, supra, this Court held that the words "all my personal property" carried the after acquired personal estate, and it seems reasonable that in this case the words "all the lands belonging to me" will pass the after acquired real estate --the two wills being similar in form.
 
The fact that the will of her brother was executed the same day and attested by the same witnesses, and, as the learned Judge below remarked, "bearing evidence of having been prepared by the same draftsman," raises a conclusive presumption that she knew the provisions of her brother's will; and then having lived ten years after the death of her brother without making any change in her will there can be no reasonable doubt as to her original intention of disposing of all the property she had at the time[***4] her will was executed, and what she might take under her brother's will if she should survive him. This event was evidently in her "contemplation when the will was executed." Tayloe v. Mosher, 29 Md. 450. "The natural and reasonable presumption is that when a will is executed, the testator did not intend to die intestate as to any part of his property." 29 Amr. & Eng. Ency. of Law, 354; Dulaney v. Middleton, 72 Md. 76.
 
E. J. W. Revell, for the appellees.
 
If the contention of the appellants be right sec. 321, Art. 93 of the Code would prevent a testator, who has executed a will in due form of law, from leaving any portion of his estate undisposed of, notwithstanding there was a clear intention shown by the will to do so. It would also change the well-established rule of law that when a testator devises by a will the same estate to his heir at law that the heir would take by inheritance, he shall be held to take by inheritance and not by the will. If this section of the Code were understood literally, its effect would be to make every will pass the real estate of the testator without regard to its provisions whether they relate to real estate or not and so prevent the possibility[***5] of any one who leaves a will, duly executed, to die intestate of his lands. Such construction would be wholly untenable. Whether the real estate passes under the will or not must depend upon the terms of the will itself and not exclusively upon the words of the Code. It seems perfectly clear in view of the limitations in the second and third clauses that even if she had the title to this property, now in dispute, vested in her at the time of the execution of the will the same would not have passed to her devisee but would have descended to her heirs at law.
 
If this case can be brought within the purview of the Code, Art. 93, sec. 321, it must be by force of the introductory clause, to-wit: "What property it has pleased God to bless me with in this life, &c." This clause cannot be segregated and interpreted alone but must be taken in connection with the following clauses of the will, and in the very next clause we find this expression limited and restricted "to the land belonging to me, being my part which I obtained from my father and adjoining the land of Thomas Robinson's heirs and James Stallings' heirs," and by the third clause of the will this expression is limited and restricted[***6] and made to embrace only "the rent of all that lot of ground lying in the city of Baltimore and described in a deed which I hold, and conveyed to me by W. C. Pitcher and others; which will describe more fully, &c." These two clauses contain a full description of all the real estate which it appears the testatrix had in mind to devise or intended to devise.
 
The heir at law is not to be disinherited except by express terms or by necessary implication, and unless the real estate is specifically devised the title of the heir must prevail unless the intent to the contrary is satisfactorily established. Rizer v. Perry, 58 Md. 112; Rea v. Twilly, 35 Md. 409; Berry v. Berry, 1 H. & J. 258.

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

OPINIONBY: PAGE

OPINION: [*475] [**396] PAGE, J., delivered the opinion of the Court.

   This appeal comes up from the decision of the lower Court [*476] made on a case stated, under Rule 47 of the Equity Rules. On the 13th of April, 1875, Georgie Linstid made and executed her last will and testament, the disposing clauses of which are as follows:

   "Item. I give and bequeath to my brother, John Linstid, [***7] all the land belonging to me; being my part which I obtained from my father, and adjoining the lands of Thomas Robinson's heirs, and James Stalling's heirs, to have and to hold so long as he may live, and at his death, then the said land, I give and bequeath to my niece, Alice V. Boone, and her heirs forever.

   "Item. I give and bequeath to my brother, John Linstid, the rent of all that lot of ground, lying in the city of Baltimore, and described in a deed which I hold, and conveyed to me by W. C. Pitcher and others; which will describe more fully, to have and to hold said ground[**397] rent so long as he may live, and at his death, the said ground rent to go to my niece, Alice V. Boone and her heirs forever.

   "Item. I give and bequeath unto my brother, John Linstid, my half of all personal property, that we may have, both personal and mixed, to have and to hold as long as he may live, and at his death, I give and bequeath to my niece Alice V. Boone and her heirs forever."

   On the same day her brother, John Linstid, also made his will by which he devised and bequeathed to his sister Georgie, all the land on which he lived, as well as all the personal property that he should[***8] have at the time of his death.

   John Linstid died in the year 1880, without revoking or cancelling this will. Georgie died in 1900. At the time of her death, in addition to the property she had at the time of the execution of her will, she was seised and possessed of the real estate which passed to her under the devise in the will of her brother, John. She left surviving her, as her heirs at law and next of kin, four nephews and one niece, the latter being the Alice V. Boone mentioned in her will. The question submitted to the Court was whether, "the said Georgie Linstid died intestate as to the tract of land which [*477] she took under the will of her brother John; or did it pass to the said Alice V. Boone, the remainder-man mentioned in the will of the said Georgie Linstid?"

   It is contended that under the provisions of sec. 321 of Art. 93 of the Code, this after acquired property passed under her will to Alice V. Boone. The effect of that section of the Code was stated by JUDGE ALVEY in Rizer v. Perry, 58 Md. 112. In his opinion, he said, that by that section, "the will is simply made to speak as of the time of the death of the testator, and in that respect[***9] changed the former rule of construction or operation of wills. But it has never been supposed that it was the design of that provision to pass the real estate of the testator, irrespective of his real intention."

   And this Court in its opinion, in the same case, (p. 137) said: "The effect of the decision in Rea v. Twilley, (35 Md. 409), is to reassert the presumption in favor of the heir, and to restate the doctrine, that the intention is the main object of search in the construction of wills." We take it to be clear, (notwithstanding anything in this statute) that what we must ascertain in this case, as in all others for the construction of wills, is to learn what the testator intended; such intention to be collected from her own words; and if we cannot find she has given the estate to some one else, it must go to her heirs. Zimmerman v. Hafer, 81 Md. 347, 32 A. 316.

   Though there should appear an intention to disinherit the heir, yet as was said in the case just mentioned, citing from LORD MANSFIELD, the heir "must inherit, unless the estate is given to somebody else; and the reason is, that the law provides how a man's estate at his death[***10] shall go, unless he, by his will, plainly directs that it be disposed of differently." Ridgely v. Bond, 18 Md. 433.

   In Rea v. Twilley, 35 Md. 409, it was said, that the heir is not to be disinherited, "except by express words or by necessary implication." And further, in arriving at the meaning of the testator, we must not confine our intention to parts of the instrument, but "must look at the whole will, and read it in the light of the circumstances in which the testator was [*478] placed, and the nature of her property and estate." Stannard v. Barnum, 51 Md. 440. There is no residuary clause in this will, and the several disposing clauses contain specific descriptions of the property that was intended should be passed by them.

   The first item devises to John Linsted for life, with remainder to Alice V. Boone, "all the land belonging to me, being my part of what I obtained from my father, and adjoining the lands," etc.

    We cannot regard this as a general devise or equivalent thereto, for she proceeds to declare specifically and particularly what it is she intends shall pass. The words, "all my land," do not stand[***11] alone, and they must be taken in connection with the words that immediately follow; which are, "being my part of what I obtained from my father," etc. If the words, "being my part" (which merely serve to connect what precedes with words that follow) be omitted, the devise would then be, "I devise all the land belonging to me, which I obtained from my father," etc.

   If she had been seised and possessed of other real estate at the time she executed the will, or had employed words sufficient to convey other real estate, the case would not have been like the one with which we now have to deal. But when she grants all her land, and in the same item specifically declares what she meant by all her lands, and the lands so described are in fact all she then had, there is no room for doubt; the words themselves, according to their ordinary grammatical meaning, cannot be interpreted but in one way.

   If we regard the circumstances under which the will was made, this construction is fully supported. Her own and her brother's will were made on the same day, and from the similarity of phrase contained in them, were probably drawn by the same person.

   John Linstid by his will gave her all the property[***12] of which he was seised and possessed, and she gave to him all she then had for life. Is it possible to believe that she then had in her mind the intention of disposing to John his own property, [*479] which she could only receive from him at his death? To entertain that belief we would be forced to hold that she intended to give him a life estate in property which she could not devise until after his death. What she must have intended, [**398] therefore, was merely to make disposition of what she then had. Her will is effective for that purpose, according to a plain construction of its terms; but to construe it so as to make the property pass under it which she subsequently acquired by the will of John Linstid, would be not only to strain the language employed but to suppose that she could have had it in her mind, to dispose to John Linstid of that which she could not have acquired during his life.

   It is contended further that the words of the first item of the will must be read in connection with the introductory clause in which are found the words, "what property it hath pleased God to bless we with in this life, I give and bequeath in manner and form following to-wit," [***13] &c.

   But it is well settled upon authority, and in reason, that it is only when the intention of the testator does not clearly appear from the words used in a clause of the will to be construed, that resort may be had to the introductory clause. Chamberlain v. Owings, 30 Md. 447. And even if these words would indicate an intention not to die intestate, yet they would be ineffective to pass the estate and thereby disinherit the heir, unless the will plainly, or by necessary implication, directed to whom the estate should go. (Supra.)

   But these words do not necessarily import a different intention than that we have ascribed to the testatrix. They may indeed be as well understood as having reference to the property she had when the will was made, as to that she was afterwards to acquire. It is true a will ordinarily speaks as of the death of its maker, but that would not be the case, if by a fair construction of its terms a contrary intention was indicated.  Hammond v. Hammond, 55 Md. 575.

   Hence we think it clear from the terms of the will, when read in the light of the circumstances under which it was executed, or without such aid, that [***14]the testatrix intended to dispose [*480] of only such property as she specifically described and that therefore the real estate devised to her by John Linstid, does not pass under the will, and that she died intestate thereof. The decree will be affirmed.

   Decree affirmed, costs to be paid out of the estate. 

JOHN T. HALL ET AL. vs. THE COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 282; 51 A. 86; 1902 Md. LEXIS 16

 January  16, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County, (JONES, C. J.), dismissing the bill of complaint. The form of the certificates referred to in the opinion of the Court is as follows:
 
No.    
 
Office of County Commissioners of  Anne Arundel  County.
 
Annapolis, -   
 
This is to certify, That ----- has the sum of ----- dollars standing to his credit on the books of this office, on account of roads, D. 8, to be levied for in the levy of 1901.
 
$-   
 
-   ,
 
-   ,
County Commissioners.
 
Attest:
 
-   ,
Clerk.
 
By order of the Board, this Certificate draws interest from the date of its issue.--CLK.

DISPOSITION: Decree affirmed with costs to the appellees above and below.

CORE TERMS:  certificates, levy, work done, repair, duty, election district, paying, good cause, levied, certificates of indebtedness, advertisement, subordinate, restrained, supervise, appointed, answered, chairmen, suitable, levying, map, manner prescribed, permanent improvement, expenses incurred, required to keep, persons employed, preceding year, lowest bidder, local law, unauthorized, recommended

COUNSEL: Edward Hall, Jr., (with whom was Thos. Ireland Elliott on the brief), for the appellants.
 
E. C. Gantt, for the appellees.

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

OPINIONBY: PEARCE

OPINION: [*283] [**86] PEARCE, J., delivered the opinion of the Court.

   The appellants, being taxpayers upon real estate owned by them in the eighth election district of Anne Arundel County, [*284] filed[***2] this bill in equity against the County Commissioners and the County Treasurer of said county charging that said County Commissioners had issued county paper called "certificates of indebtedness," aggregating over $4,000, for work done upon public roads in said district during the fiscal year beginning July 1st, 1900, and to be levied for in the county levy of 1901; that this work was done, not only without authority of law, [**87] but in violation of express provisions of ch. 531 of the Act of 1898 governing the construction, improvement and repair of public roads in the county; that a large part of these certificates had been transferred by the original holders to persons unknown to the plaintiffs, and that said certificates could not be legally paid by said County Commissioners or Treasurer; the bill prayed that the defendants be restrained from paying the certificates so issued, from issuing any other certificates for such unauthorized work, and from making any levy therefor.

   A preliminary injunction was granted, and subsequently the Annapolis Savings Institution, The Farmers' Nat. Bank of Annapolis, and George Forbes intervened by petition alleging that they were holders of[***3] these certificates in large amounts and praying to be made parties defendants for the protection of their rights.

   They were made parties and answered the bill, stating the amount of certificates held by each, alleging that they were purchased in good faith and for valuable consideration from the parties to whom they were issued, and that it would be unjust and unconscionable to restrain the payment thereof under these circumstances.

   The County Commissioners answered, admitting the issuing of certificates for work done upon the roads of the Eighth District and to be levied for in the levy of 1901. They admitted also that the work for which said certificates were issued was not done under such contracts as are provided for in the Act of 1898 referred to in the plaintiff's bill, but alleged that it was lawfully done by the authority of the County Road Commissioners under section 203G of said Act, and that they had [*285] no authority to control the action of the County Road Commissioners in employing persons to repair the roads under that section in the event of their making no contract for such work, but were bound to provide for the payment thereof, at a reasonable cost, and[***4] that having approved the cost and having issued the certificates, they were bound to provide by levy for their payment.

   The County Treasurer answered that he had no control over the levy to be made nor any discretion as to paying said certificates, which he was expressly required by law to receive in payment of taxes, or to pay upon the order of the County Commissioners.

   There is no replication in the record, nor any docket entry showing that one was filed, but the opinion of the Court states there was a general replication, and we shall assume this to be correct and that all the averments of the answers were thus put in issue. Testimony was taken and the material averments of fact in the bill were substantially established. The intervening defendants were represented by counsel at the taking of the testimony, but confined their examination to the proceedings of the Road Commissioners, and did not produce the certificates held by them, nor offer any evidence of their transfer to them. Not having shown any interest in the subject-matter of this proceeding, we are not required to consider their connection therewith.

   Whether the bill can be sustained against the other defendants depends [***5]upon the construction to be given to the Act of 1898, ch. 531, which repealed and re-enacted with amendments all the provisions of the Local Law of Anne Arundel County relating to roads. Prior to the Act of 1892, ch. 645, the County Commissioners were the only organization exercising any authority over the roads of the county, but that Act created certain subordinate agencies called trustees of public roads, who were appointed by the County Commissioners, and who were to supervise and direct the work on roads in their respective districts. Under this Act the County Commissioners were authorized either to let out the roads by contract, or to have the work done by persons employed by them. [*286] Ch. 464, of 1896, pursuing the same general plan, provided for one road commissioner in each election district, and that all the district road commissioners acting together should constitute a board of county road commissioners.

   The Act of 1898, ch. 531, elaborated this system, going minutely into detail in prescribing the qualifications of the three persons who now constitute the Board of Road Commissioners for each election district, the classification of the county roads, and the powers[***6] and duties of the Boards of District Road Commissioners, and the Board of County Road Commissioners which is composed of the chairmen of the several District Boards. It is not necessary here to go into all this detail. It will be sufficient for the proper disposition of this appeal to state in general terms the scheme and purposes of the Act as made apparent by a careful reading and analysis.

   The chief purposes of the Act were two; first to provide a plan for systematic and permanent improvement of the public roads, and second to secure economy by substituting as far as possible the contract system for that of day labor. With these purposes in view it provided that there should be three Road Commissioners in each election district, one from each of the two larger political parties as indicated by the last preceding election, to be appointed by the County Commissioners, and one to be chosen by the two thus appointed; all to be selected with special reference to their fitness and skill in managing the public roads. These District Road Commissioners are required to divide their election districts into not less than ten road districts to be designated upon a suitable map to be prepared[***7] or adopted by them; to classify all public roads either as "County High Roads"--"First-Class Roads"--or "Second-Class Roads," and to locate the same upon said map distinguishing the class by color or some other distinctive method, and to file a copy of this map in the office of the County Commissioners for their use and for public inspection. The chairmen of the District[**88] Boards are constituted a Board of County Road Commissioners. The District Road Commissioners are required at stated times to investigate [*287] and report to the County Road Commissioners the repairs and improvements needed in their respective districts together with an estimate of the cost of the same. Such work as is recommended by the County Road Commissioners upon the report of the District Road Commissioners, is submitted to the County Commissioners, and if approved by them, the work so recommended and approved is required to be given out by the Board of County Road Commissioners by contract and after advertisement, to the lowest responsible bidder, who must give bond for faithful performance in double the amount of the contract, and all such contracts and bonds are required to be delivered to the[***8] County Commissioners. All contractors and employees are put under the supervision and control of the District Road Commissioners. Provision is made for permanent improvement of any section of road upon the petition of one-third of the land-holders fronting on that section, with the approval of the County Commissioners, provided the cost thereof shall not exceed in any one year one-half of the road tax in the district for the preceding year, and provided all the estimated contracts awarded in one year by the County Road Commissioners shall not exceed the road tax assessed by the County Commissioners for the preceding year.

   From this summary of the chief features of the Act, it will be seen that the District Road Commissioners originate and report to the County Road Commissioners all plans and estimates for work upon the roads, that the latter report the same, with such recommendations of their own as they think proper, to the County Commissioners who approve, reject, or modify the same in their discretion, and that all work so finally approved by the County Commissioners is directed to be let out by contract.

   It was foreseen, however, that it might not always be practicable to contract [***9] for such work, and accordingly by sec. 203G. of the Act, it was provided that if the County Road Commissioners should fail for any good cause to make a contract for any district, section, or road, it should be their duty to employ suitable persons to perform such work as they [*288] should deem necessary, and on such terms as they should think best for the interests of the county, and the answer of the County Commissioners alleges, and the proof is, that the certificates in question were issued for work done under this section.

   By sec. 201 of the Act of 1898 the County Commissioners are required to keep a separate account of all road expenses and to provide for the same by levying a suitable tax in each election district, not less than ten cents in the $100, and not more than one per cent of the total assessment of the district. By sec. 202 they are authorized to provide for emergency repairs, and to levy a general road tax for that purpose, in addition to the district road tax, not to exceed $7,000 per year, and all such work is directed to be done by contract as in other cases.

   All these provisions clearly indicate that the County Commissioners retain all their former power[***10] and authority not only as to the ultimate determination of the work to be done, but as to the levy to be made therefor, the subordinate agencies being required to supply them with accurate information as to what is needed and the probable cost thereof, and to supervise the work when approved and ordered by the County Commissioners according to their discretion.

   In the case before us no contract was made such as is provided for by the Act of 1898, but the work for which the certificates were issued was done by the day by persons employed by the County Road Commissioners under sec. 203G.; and under sec. 201, the County Commissioners are required to levy and pay for all road expenses incurred under that Act. They have determined that the cost of this particular work is reasonable, and have issued their certificates therefor, and we are now asked to restrain them from levying for their payment, in other words to direct and control them in a matter committed to their judgment and discretion. There is on fraud charged against them, nor indeed against anyone. It is not charged that the work done was not such as was necessary and proper, that it was not well and faithfully performed, [*289] [***11] or that the charges were either excessive or unreasonable. The only charge is that the contracts of hiring under which the work was done, and for which the certificates were issued, are not such contracts as the law contemplates, and that for this reason they cannot be legally paid or levied for. But to this there are two sufficient answers. First, that sec. 203G provides for a situation where no contract in strict conformity with law has been made; and, second, that under sec. 1 of the Code of Public General Laws, the County Commissioners in each county have charge of and control over the public roads, and by sec. 7 they are required to levy all needful taxes on the assessable property within the county, and these sections are not repealed nor made inoperative in Anne Arundel County by anything contained in the Act under consideration. If, therefore, sec. 203G were not contained in said Act--or if it could be held applicable in this case, only upon proof showing a good cause for failure to contract in the manner prescribed by the law, the duty to put and keep the road in repair and to provide for payment of the work done would be imperative under the provisions of the Public General[***12] Law above mentioned. Since the decision in Duckett's case, 20 Md. 468, the liability of a county for special damages resulting from non-repair of the county roads has been established, and their power and authority to put and keep the roads in repair[**89] has been adjudged to be duty and obligation. If therefore it could be held that by reason of failure to contract in the manner prescribed (even without good cause) for work done, or proper to be done, on the roads, the County Commissioners could be restrained from levying or paying for the same, the county would not thereby be relieved from liability for injuries resulting from neglect of the roads, and the burdens of the taxpayers would thus be increased rather than diminished. All laws should be faithfully executed by those charged therewith, and wherever it is possible, the contracts contemplated by this Act should be made and carried out, but we are compelled to say that the testimony in this case shows that the Boards of District and County Road Commissioners have been [*290] neglectful of their duties in many respects, and apparently in their efforts to procure such contracts as it was their duty to[***13] seek; but the remedy for this wrong is not to be sought in an injunction to restrain the County Commissioners from paying for needed work actually done, but in some direct proceeding against the officials in default for dereliction in duty.

   Inasmuch as the proceedings disclose that these certificates are made payable with interest from the date of their issue, the careful Judge of the Circuit Court very properly noticed this fact, and declared that he could find no warrant or sanction for the issue of interest-bearing certificates by the Commissioners, and that in his opinion the payment of interest will be an unauthorized payment, and we think it proper to say we concur in this view.

   Decree affirmed with costs to the appellees above and below. 

FRANK BEMBE vs. THE COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 321; 51 A. 179; 1902 Md. LEXIS 25

 January  16, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.

DISPOSITION: Judgment reversed with costs above and below and new trial awarded. 

CORE TERMS:  highway, bridge, obstruction, declaration, farm, shut, special damage, public nuisance, non-repair, mill, public road, inconvenience, public highway, municipal, differing, deprived, demurrer, entitle, good cause of action, particular injury, circuitous route, public way, thoroughfare, obstructed, answerable, proprietor, subjected, inflicted, lawfully, abutting

COUNSEL: James M. Munroe, for the appellant.
 
The Act of 1886, ch. 483, conferred upon the defendant the authority and power to erect the bridge in question for the general convenience of the public and authorized and empowered the defendant to repair and maintain the said bridge in proper condition for public travel. Now where a statute confers powers upon a municipal corporation to be exercised for the public good, the exercise of the power is not discretionary, but imperative, and the words "power and authority" in such case mean "duty and obligation." Mayor, &c., of Balto. v. Marriott, 9 Md. 160; Board of School Commis. v. Co. Commis., Allegany Co., 20 Md. 449; Sifford v. Morrison, 63 Md. 15.
 
We are met by the objection, raised by demurrer to the declaration, that "where a party sustains an injury which is experienced in common with all citizens, then the source of complaint is a nuisance, and the remedy must be by indictment." (Mayor, etc., of Baltimore v. Marriott, 9 Md. 160.) There is no controversy about the correctness of this legal proposition, [***2] but its application to the case at bar is denied. The narr. not only expressly states that the "Plaintiff suffers a distinct and peculiar loss * * * and not a loss in common with the other citizens of the county," etc., * * * but also alleges the specific facts which show that loss and how it is peculiar and distinct from this common loss of the whole community, leaving the money value of his damage to be assessed by a jury. Elliott on Roads and Streets, p. 413, sec. 403; p. 735, sec. 686; Ches. and Potomac Tel. Co. v. Mackinzie, 74 Md. 36-49.
 
The defendant seems to proceed upon the theory that it can allow public roads to be washed away and public bridges to fall into decay, thereby being rendered impassable, and thus abandon and vacate a public highway without liability to the plaintiff for the destruction of his "easement of access." But the Code provides a different way of closing public roads, (Art. 25, secs. 83-99); and the fact that plaintiff may secure a private way under the provisions of Art. 25, secs. 100 to 117 of Code, in no wise affects his remedy for the injury of which he here complains. Such dereliction of duty by the County Commissioners as is alleged in the[***3] declaration in this case amounts to a "taking" of private property without compensation. In Evansville, etc., Co. v. Dick, 9 Ind. 433, the word "Taking" was said to mean "Seized, injured, destroyed, deprived of" and it is this signification which the cases generally give to the word, for it is held that any material impairment of a property right is a taking. Elliott on Roads and Streets, p. 217, sec. 204, note 4; Barnett v. Johnson, 15 N. J. Equity; Indiana, &c., R. R. Co. v. Eberle, 110 Ind. 545-6; Transylvania University v. Lexington, 3 B. Monroe 25; City of Chicago v. Union Bldg. Asso., 102 Ill. 379.
 
Special attention is called to the fact that the plaintiff is an "Abutting owner," and that this fact is expressly set forth in the declaration. The Courts have recognized a right in the adjoining owner distinct from his rights as a member of the general public, namely, the right of access to his premises, or as it is called the "easement of access." This is so far regarded as private property that not even the Legislature can take it away and deprive the owner of it without compensation. Elliott on Roads and Streets, (2nd ed.) p. 749, sec. 695, and cases cited in Note 4.
 
A[***4] street once opened and dedicated to public uses by a municipality especially where abutters have acquired lots and made improvements on the faith that the way will remain a street, cannot be abandoned and closed without compensation for the loss sustained by an abutting owner. Elliott on Roads and Streets, p. 23, sec. 22, p. 158, sec. 150; Common Council v. Croas, 7 Ind. 9; Story v. Elevated R. Co., 90 N. Y. 122; Town of Renselaer v. Leopold, 106 Ind. 29.
 
"Once a highway always a highway," is an old maxim of the common law, and so far as concerns the rights of abutters who have lawfully and in good faith invested money or obtained property interests in the just expectation of the continued existence of the highway, the maxim still holds good. Not even the Legislature can take away such rights without compensation. Elliott on Roads and Streets, p. 955, sec. 871; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488; McQuigg v. Cullins, 56 Ohio St. 649.
 
E. C. Gantt, for the appellee.
 
The object of the Act of 1886 was to give authority to the County Commissioners to build a bridge over a navigable water which, in the construction of a public road from Eastport to Bay Ridge, the County[***5] Commissioners could not do without such power from the Legislature. There being nothing in the nature or intent of the Act of 1886, making it a mandatory duty resting on the County Commissioners to keep the bridge in repair if the public necessities or conveniences ceased, from any cause, to require or justify its maintenance. Under the provisions of Article 25 of the Code, "charge and control over the public roads and bridges" is given the County Commissioners (sec. 1.) This authority necessarily implies the power to open, alter or close any public road and to build, repair or abandon any bridge in connection therewith which it has authority to build.
 
The declaration of the plaintiff, appellant, alleges that the plaintiff is the only person injured or cut off from access to the highways by reason of the non-repair of the bridge, and claims that because his situation is thus peculiar he is entitled to be indemnified by the taxpayers of the county. The authority of the County Commissioners to repair the county road, and the bridge forming part of the same, can only be exercised on the ground that the public convenience requires it. This is the spirit of the law. There is no power [***6]vested in the County Commissioners to impose the whole public burden on a single person, under pretence of taxing him, nor by like reasoning can the County Commissioners impose by taxation a burden on the whole people for the benefit of one individual. Co. Comms. Talbot Co. v. Co. Comms. Queen Anne Co., 50 Md. 259; Mayor, &c., of Balto. City v. Marriott, 7 Md. 160.
 
The appellant lays great stress upon the fact that the appellant is the only person cut off from communication with the outside world by the abandonment of this highway. Attention is called to the ample provisions of the Code, Art. 25, sections 100 et sub., which acknowledge in terms that "any owner of any lands has the right to a road and way from his land to church, mill, market, &c.," and may obtain a private road by application to the County Commissioners. If the cause of action in this case had set out that by reason of such abandonment of the said highway the plaintiff had been put to costs and expense in the procuring of a private right of way, the only claim of the plaintiff for damages would have been presented.

JUDGES: The cause was argued before MCSHERRY, C. J., FOWLER, BRISCOE, PAGE, BOYD, PEARCE and SCHMUCKER, [***7] JJ.

OPINIONBY: MCSHERRY

OPINION: [*324] [**179] MCSHERRY, C. J., delivered the opinion of the Court.

   This suit was brought against the County Commissioners of [*325] Anne Arundel County to recover damages alleged to have been sustained by the appellant in consequence of the non-repair of a county road and a bridge forming part of that road. The declaration asserts that the bridge ran from the village of Eastport to the land of the plaintiff and there connected with the public highway running along the shore of the Severn river; that the plaintiff relying on the premises, that is, the existence of the road and bridge, laid out large sums of money in the purchase and improvement of a considerable tract of land adjoining the highway, which highway, including, as a part, the bridge, was the only means of access that the plaintiff had from his property to markets, mills, churches and stores, and generally to communicate with his fellow-men for the transaction of his lawful business: That the highway was suffered and permitted by the defendant to become utterly impassable and the bridge was negligently suffered and permitted to become and remain out of repair and broken down so [***8]that it cannot be used: That the situation of the land of the plaintiff is peculiar and different from the situation of the land of other persons residing in the county, inasmuch as the land of other persons there residing is not cut off from access to a public highway as is the land of the plaintiff, whereby the plaintiff suffers a distinct and peculiar loss by reason of the action of the defendant and does not suffer a loss in common with others, he being entirely shut up and shut out from markets, mills, churches, stores and generally prevented from communicating with his fellow-men for the transaction of his business, and being thus shut up and shut[**180] out by reason of the non-repair of the highway and the bridge. To the declaration, of which the substance has just been stated, the defendant demurred. The Circuit Court for Anne Arundel County sustained the demurrer and judgment being entered thereon for the defendant the plaintiff took this appeal.

   The question is: Do these facts constitute a good cause of action? There has been no formal closing of the highway. Under the Code the method by which the County Commissioners may close a public thoroughfare is definitely prescribed; [***9][*326] but there is no specific provision made for awarding damages to an abutting proprietor for the injury he may sustain, though as to the closing of a street in Baltimore City there is such a provision. Local Code, Art. 4, sec. 806; Van Witsen v. Gutman, 79 Md. 405, 29 A. 608. Whether a public road can be lawfully closed by the County Commissioners without compensating individuals who may be injuriously affected by the discontinuance of the highway is a question not now involved, and, therefore, not calling for a decision. Nor is this action at all akin to those wherein attempts have been made, but unsuccessfully made, to hold municipal authorities answerable in damages for injuries inflicted by a change in the grade of a street or highway; and consequently with the principles applicable to that distinct class of cases we have no concern in this.

   The pending suit is founded on the alleged total obstruction of a public road including as a part thereof a public bridge. Had the obstructions, which are alleged to consist in a condition of negligent disrepair, caused an injury to the person of the plaintiff whilst attempting with due care to use the road there[***10] could be no doubt of his right to maintain an action therefor and to recover compensation for the injury. And so too had his horse or his carriage or other vehicle been in like manner injured he could sustain a suit against the defendant. The books are full of adjudged cases on these subjects; the cases are familiar and have been of frequent occurrence and there is no need to pause for the purpose of alluding to them. The ground upon which such actions are supported is the negligence of the defendant in failing to keep the road or bridge in proper repair. The duty being upon the county to keep its roads and bridges in a safe condition for use by the public, and the county authorities having at their command the means and the money with which to maintain its roads and bridges in a condition of safety, the failure to perform the duty is actionable negligence if injury results therefrom to one lawfully and with due care using the road or bridge. But the acts complained of in the declaration now under examination [*327] do not bring this case within the principle just announced, because this is not a suit for a personal injury or for an injury to personal property sustained whilst[***11] in actual use of the road, but it is a suit by an abutting proprietor for the maintenance of a public nuisance by the defendant whereby the plaintiff was injured not merely in being deprived of the ability to use the road at all, but in being deprived of access to and egress from his property. It is true that mere deprivation of the use of a highway because of its defective condition will furnish no ground of action, 15 Am. & Eng. Encyclo. L. (2 Ed.) 463; but here the averment goes farther and alleges that the plaintiff has been shut in from the outside world by reason of the non-repair of the highway.

   Ordinarily and generally the remedy applicable to a public nuisance is by indictment, though a private action will lie at the suit of an individual who has sustained a special damage differing, not in degree, but in kind from that to which the community has been subjected. Crook v. Pitcher, 61 Md. 510; Garitee v. Baltimore, 53 Md. 422; Houck v. Wachter, 34 Md. 265. And the question is: Does this case under the averments of the declaration fall within this doctrine? We do not recall at the moment any precisely similar[***12] case in our own reports; but the principles which ought to control the solution of the question are perfectly clear and there can be no serious difficulty in their application to the facts as admitted by the demurrer. The case of Houck v. Wachter, supra, will throw some light on the controversy now before us. That was a suit between two individuals. Wachter sued Houck to recover damages for the obstruction of a highway. The special damage alleged was that by reason of the obstruction which Houck had erected Wachter was obliged to go from his farm to his market-town, to mills and to the Court House by a very circuitous route, and the question was whether that was such special damage as would support the action--was it different in kind from the damage inflicted upon every other person who used the same public road. In the course of the judgment delivered by this Court it was said: "All the [*328] authorities agree that to support the action, the damage must be different, not merely in degree, but different in kind from that suffered in common, hence it has been well settled that though the plaintiff may suffer more inconvenience than others from the obstruction,[***13] by reason of his proximity to the highway, that will not entitle him to maintain the action." Proceeding the Court further said: "The special damage alleged is that having gone to Frederick City by the highway in question, as he was returning home, he met the obstruction, was withheld by the defendant from removing it, and in consequence, was obliged to proceed to his farm by a very circuitous route." To show that such a damage was not special and not sufficient to sustain the action the Court further said: "It is not averred that the highway, which [**181]was obstructed, was the only way to and from his farm or that it was necessary to enable him to pass and re-pass from his farm to mill, market, &c. The averment is that it was the most direct and convenient route." A recovery was denied to Wachter because the damage of which he complained was of the same kind as that which other persons using the highway sustained by reason of the obstruction placed there by Houck. It would seem from the line of reasoning pursued that if Wachter had had no other highway over which he could have passed from his farm to markets and other public places, he could have maintained the action, [***14] because, in that event, the damage caused him would have been wholly different in kind from that sustained by the public generally. This conclusion is fortified by the decision in Gore v. Brubaker, 55 Md. 87. That was an application by Gore for an injunction to restrain Brubaker from erecting obstructions on a strip of land alleged to be a public way contiguous to Gore's lot in the village of Uniontown, Carroll County. It was insisted that the obstructions if erected would deprive Gore of reasonable access to his buildings on his lot and would thereby subject him to loss and damage. This Court said: "If the allegations of the bill were true, and the plaintiff had done nothing to preclude him from invoking the aid of the Court, there could be but little [*329]difficulty in affording him relief. For if, by reason of the obstructions complained of, in the public way or alley, the plaintiff had been obstructed or deprived of reasonable access to his buildings on his lot, and thereby subjected to loss and inconvenience, that would be such special and particular injury to the plaintiff as would entitle him to remedy from a Court of Equity. Roman v. Strauss, 10 Md. 89;[***15] Georgetown v. Canal Co., 12 Peters 98; Irwin v. Dixion, 9 HOW 10, 13 L. Ed. 25; Cook v. Corp. of Bath, L. R. 6 Eq. Ca., 177; Higbee v. C. & Am. R. Co., 19 N. J. Ch. 278."

   If an individual had caused the obstruction of the highway mentioned in the declaration now before us, he would assuredly be answerable in an action at the instance of the plaintiff if the facts relied on in the narr. were shown to be true; and there is no reason why the County Commissioners should not be liable under the same state of facts if the obstruction has resulted from their negligent or persistent refusal to make the highway fit for travel. The fact that the County Commissioners have caused or are responsible for the continuance of the nuisance, can be no reason for defeating the action if it be otherwise maintainable, for public officials or municipal corporations have no more right to create or maintain a public nuisance than a private individual has. Co. Comm. v. Wise, 71 Md. 43, 18 A. 31. And the liability of the one, in such an instance, is similar to that of the other. Baltimore v. Brannan, 14 Md. 227.[***16]

   Inasmuch, then, as the declaration distinctly alleges that the highway with the bridge in question was the only means by which the appellant had access to and egress from his farm and buildings, it shows on its face a special and particular injury inflicted on the plaintiff by reason of the non-repair of the thoroughfare; and it shows an injury differing in kind from that which other members of the community can suffer from the same cause. Of course, if the appellant--the plaintiff below--has any other way or road by which he can get to and from his premises he cannot maintain this action even though he is put to more inconvenience or is required to travel [*330] a much greater distance in using the other highway. As we are dealing exclusively with the case made by the declaration we must confine our discussion to its legal sufficiency; and upon the case there stated we are of opinion, for the reasons we have assigned, that a good cause of action has been set forth. There was consequently error in sustaining the demurrer of the defendant, and the judgment entered in its favor must be reversed and the record will be remanded so that pleas may be filed and the cause may be[***17] brought to trial on its merits.

   Judgment reversed with costs above and below and new trial awarded. 

FRANK BEMBE ET AL. vs. THE COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 330; 51 A. 183; 1902 Md. LEXIS 27

 January  16, 1902, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL and REIFSNIDER, JJ.)

DISPOSITION: Order affirmed with costs above and below.

CORE TERMS:  bridge, repair, writ of mandamus, navigable river, built, build, repairing, river, legal remedy, non-navigable, draw-bridge, repaired, adequate remedy, single question, mandamus, prescribed, undertake, specially, relieved, redress, deprive, notice, creek, levy

COUNSEL: James M. Munroe, for the appellants.
 
E. C. Gantt, for the appellee.

JUDGES: MCSHERRY, C. J.

OPINIONBY: MCSHERRY

OPINION: [*330] [**183] MCSHERRY, C. J., delivered the opinion of the Court.

   This is an application for a writ of mandamus. The purpose for which the relators seek the writ is to compel the [*331] County Commissioners of Anne Arundel County to repair a county bridge over Back creek. The bridge was constructed some years ago. It is a draw-bridge over a navigable river. Its erection was authorized by the General Assembly under the Act of 1886, ch. 483. The draw in the bridge has become defective and cannot be operated. It stands open and the bridge is consequently useless. The defect is conceded and the single question is: Will a writ of mandamus lie to require the County Commissioners to make the needed and proper repairs?

   As has been repeatedly said by this and other Courts, the writ of mandamus is a prerogative writ and does not issue ex debito justitiae. There must be a clear, legal right in the relators[***2] and there must be an absence of an adequate legal remedy for the vindication of that right before redress by mandamus can be accorded. If, then, there be an adequate legal remedy to which the relators may appeal, there would be no authority for ordering the writ to be issued. In this view the controversy is materially simplified, as it hinges on the single question as to whether there is an adequate legal remedy for the redress of the wrong complained of and practically conceded. The Code furnishes an answer in the affirmative to that question; and we are consequently relieved from the necessity of commenting on the reasons assigned for the non-repair of the bridge, and we are likewise relieved from discussing many questions which would otherwise demand consideration.

   By sec. 13, Art. 25 of the Code it is provided that the County Commissioners of the several counties "may build and repair bridges and levy upon the property of the county therefor." By sec. 19 to and including sec. 34 of the same Article the method of proceeding relating to the building and repairing of bridges is particularly prescribed. In brief outline this method is as follows: Whenever it is deemed[***3] necessary that a bridge should be built or that a bridge already built should be repaired, application must be made by petition to the County Commissioners, after the publication, for thirty days, of a notice that the petitioners intend to make application [*332] for the construction or repair of the bridge. After the County Commissioners have heard the reasons and evidence for and against the application they are required to determine the case, as in their judgment, will best promote the public convenience; and they are also directed, when they have determined to build or repair a bridge, to levy on the assessable property of the county a sum sufficient to defray the expense of the work. All bridges are required to be built or repaired by contract, except where the cost of building or repairing does not exceed two hundred dollars. In the latter instance the manner of letting the work is placed in the discretion of the County Commissioners. In all cases where the County [**184]Commissioners have determined to build or to repair a bridge any citizen or citizens of the county, before a contract to build or to repair has been made, may in writing file a representation that the[***4] determination to so build or repair is inexpedient, and may request an appeal from such determination to the Circuit Court for the county. Upon such appeal being taken all the records, papers and proceedings in the case must be transmitted to the Circuit Court, "and thereupon the Circuit Court shall proceed to try and determine the matter according to justice and right, with or without the aid of a jury, as the parties may agree or the Court may order." By sec. 31 it is enacted that "nothing contained in this Article shall authorize any County Commissioners to build or order to be built any draw-bridge, or any bridge across a navigable river." The section last quoted deprives the County Commissioners of authority to build any draw-bridge or any bridge across a navigable river, and as Back creek is a navigable river, it was necessary that the commissioners of Anne Arundel County should be specially empowered by the Legislature to construct the bridge in question; and this was done by the Act of 1886, ch. 483, but beyond giving that authority the Act does not go. The Act is merely a legislative assent to the bridge being built and is not a mandatory direction that it should be[***5] built. But whether this be so or not is wholly immaterial, inasmuch as the question here involved has relation [*333]not to the building but to the repairing of a bridge. It will be observed that sec. 31, Art. 25 of the Code does not make a different provision for the repair of a bridge which has been built over a navigable river, from the provision which obtains in regard to the repair of a bridge over a non-navigable river. Whilst by reason of sec. 31 the County Commissioners are not authorized to build, under the other sections of Art. 25, any bridge over a navigable river, the general provisions of Art. 25 in relation to repairing a bridge previously built across such a river are in no way interfered with or modified; and it is obvious that precisely the same proceedings must be pursued with respect to the repairing of a bridge over a navigable river as are required to be followed in repairing a bridge over a non-navigable river, unless the statute authorizing the construction of the bridge over the navigable river specially points out and enjoins some other and different method for doing the work. This being so, all bridges, whether over navigable[***6] or non-navigable rivers, must be repaired pursuant to the method prescribed in Art. 25 of the Code. The method is a statutory method and must be followed. If followed there is a full, complete and adequate remedy provided in a Court of law on appeal by the relators from the decision of the County Commissioners, and the judgment of the Court of law in such appeal would be final and conclusive. If the relators in this case, instead of applying for a writ of mandamus, had given a thirty days' public notice of their intention to petition the County Commissioners for the repair of the bridge in question; and if after the lapse of the notice the petitioners had filed their petition asking for such repair; then the County Commissioners would have been bound to pass upon the request, and if they had decided adversely to the prayer of the petition an appeal could have been taken to the Circuit Court for Anne Arundel County, and that tribunal is clothed with ample jurisdiction to review the decision appealed against and "to try and determine the matter according to justice and right." Thus the statute in explicit terms gives to the relators an adequate and complete remedy, adapted to [***7] [*334] the precise condition of which they complain and moulded by the Legislature to fit the exact circumstances of the case. Should a Court of law upon an application for a writ of mandamus undertake to order the County Commissioners to repair the bridge it could only do so by deliberately disregarding and repudiating the statutory remedy especially provided to meet just the contingency which is here presented. In the face of this specific remedy neither the Court below nor this Court on appeal could, in the light of settled legal principles, undertake to interpose by the writ of mandamus, and thereby deprive the Circuit Court of the clearly defined appellate jurisdiction exclusively conferred upon it. The Circuit Court refused to issue the writ of mandamus, and in view of what we have said it is quite apparent that its action was entirely right. The order dismissing the petition will therefore be affirmed.

   Order affirmed with costs above and below. 

CHARLES H. SEICK vs. STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
94 Md. 71; 50 A. 436; 1901 Md. LEXIS 91

 November  22, 1901, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.

DISPOSITION: Judgment reversed, with cost, to the appellant above and below.

CORE TERMS:  indictment, previous conviction, former conviction, demurrer, heavier, surplusage, convicted, selling, fermented liquor, offense charged, spirituous, traverser, stricken, attach, similar offense, prejudicial, overruling, insertion

COUNSEL: Robert Moss (with whom was A. Theo. Brady on the brief), for the appellant.
 
Daniel R. Randall, State's Attorney for Anne Arundel County (with whom was Isidor Rayner, Attorney-General, on the brief), for the appellee.

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

OPINIONBY: PEARCE

OPINION: [*72] [**436] PEARCE, J., delivered the opinion of the Court.

   The appellant was indicted for selling spirituous and fermented liquor to one Richard Bland, a minor, in violation of sec. 86 of Art 56 of the Code. This section does not provide any increased penalty for a second offense (as is provided by sec. 248 of Art. 27, for selling or giving away spirituous or fermented liquor on Sunday), nor does it allude at all to a second conviction for its violation. The State alleged, however, that the appellant had been previously convicted of a similar offense in the same Court, and each of the two counts of the indictment set out this former conviction as required in Maguire v. State, 47 Md. 485, a[***2] case arising under the Sunday law, Act of 1866, ch. 66, now sec. 248 of Art. 27. The traverser demurred to each count of the indictment, and the demurrer being overruled, he went to trial and was convicted and sentenced to pay a fine of $100, from which judgment this appeal has been taken.

   Counsel for the State, in their brief, allege[**437] that sometime after overruling the demurrer, the Court instructed the jury to make no reference in their verdict to a previous conviction, but this does not appear in the record which discloses nothing more than we have stated above.

   We have not been referred to, nor have we discovered any [*73] reported case precisely in point, but the principles by which we must be governed, we think, are neither obscure nor doubtful. The contention of the State is, that as the former conviction is no part of the offense here charged, and was introduced only with a view to attach a heavier penalty to the actual offense charged than would otherwise be imposed, the averment of a former conviction must be regarded as surplusage, and therefore not injurious, while the appellant contends that as the averment was not stricken out, and the indictment went[***3] to the jury with that averment as part of the record, after the demurrer was overruled, he was thereby prejudiced, his character being thus practically brought before the jury as a bad character, without his character having been put in issue in any manner sanctioned by the law, and we cannot doubt that this is a correct position. We have carefully examined all the cases cited by the appellee in support of its contention, and we find that all except one are cases in which the alleged surplusage consisted in the description of the offense charged, and that the single exception, State v. Moore, 121 Mo. 514, 26 S.W. 345, arose under a statute providing a heavier penalty for a second offense, in which the objection was that the indictment was bad for duplicity in setting out the first offense at all, the Court overruling the objection on the same ground taken by this Court in Maguire's case, supra. If the averment in this case could be regarded as surplusage, it should have been stricken out, which was not done, and the alleged direction of the Court to the jury to make no reference in their verdict to the former conviction, is very different from a[***4] direction not to regard the averment of conviction in considering the guilt of the traverser.

   In Queen v. Summers, 1 Crown Cases Reserved 182, the Judge before whom the case was tried said it was not the practice under the Act under which the indictment was found "to insert a previous conviction for felony without some authority by statute, as in such case it would be error in the record." The Larceny Act and the Coinage Act, he said, both recognized the insertion in the indictment, of the previous conviction, [*74] but in the Act in question there was no such recognition, though it prescribed a heavier penalty for a second offense. The conviction was affirmed by the Court for which the case was reserved, though the practice was not considered; it must however be regarded as correct practice, not having been condemned, and if in such case, the insertion of a previous conviction would be error, a fortiori must it be error, where the statute attaches no increased penalty to a second offense.

   In Regina v. Clark, 6 Cox. Crim. Cases 210, where the statute permitted a previous conviction to be alleged for the purpose of aggravating the punishment, [***5] several previous convictions were alleged, and upon conviction, it was objected, on motion in arrest of judgment, that it was error to allege more than one previous conviction. The Court held that any number might be alleged, but that even if it were otherwise, the objection should have been raised by demurrer.

    Wharton in his Crim. Prac. and Plead., sec. 938, commenting upon the English practice under the Act of Parliament, directing the prior conviction not to be committed to the jury until they had found the defendant guilty of the subsequent charge, unless he himself puts his character in evidence, says: "In several of the American States similar restrictions exist, and where they do not, it would be well for Courts in charging juries, to direct them scrupulously to avoid considering the conviction in the prior case as in any way affecting the question of guilt in the case on trial." It cannot be questioned that the averment of a previous conviction tends to prejudice the accused, but it is difficult to perceive how this can be avoided in view of the great weight of authority, and as held in Maguire's case, that the indictment must contain an averment of every fact essential[***6] to justify the punishment inflicted. In Johnson v. People, 55 N.Y. 512, CHURCH, C. J., said: "The objection that the evidence of a former conviction may affect the prisoner's character has no force when such evidence relates to the issue to be tried," and this is clear; but it is equally clear that the objection is an insuperable one when, as in this case, there is no relevancy to the single issue for trial. If the [*75] evidence is not relevant, the averment cannot be proper, and as it affects the defendant's character when that is not in issue, it is plainly prejudicial, and proper ground of demurrer.

   Judgment reversed, with cost, to the appellant above and below. 

JOHN N. DAVIS vs. CHARLES H. O'BERRY ET AL. BOARD OFREGISTRY, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
93 Md. 708; 50 A. 273; 1901 Md. LEXIS 72

 October  29, 1901, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.) The record in this case contained a petition alleging that the Board of Registers had improperly registered a certain man as a voter. This was followed by an order for a summons and setting the case for hearing and then by an order of Court dismissing the petition. Next came an order for an appeal and an "agreed statement of the case" as follows: "It is agreed in the above case that Thomas Davis was a registered voter in the Second Precinct of the First Election District of  Anne Arundel  County; that on the 8th of October, 1901, he presented a certificate of erasure from said precinct and district to the aforesaid Board of Registry and demanded registration in the Third Ward (or precinct) of the Sixth Election District of said county, and was duly registered therein. Both of said registers testified that they administered to him the oath which he had already taken, as shown on the certificate of erasure offered in evidence, and filed in these proceedings; that they did not require him to take the oath required by section 16, of Article 33 of the Code, to be taken by applicants for original registration, and[***2] that the only questions asked the applicant was as to the location of his residence and the length of time the said applicant had resided in the said Third Ward of the said Sixth District.
 
"Thereupon, the applicant was entered on the registries of said ward and district as a qualified voter. On appeal from the action of the Board of Registry to the Circuit Court, the said Court dismissed the same and affirmed the action of the Board of Registry. From this decision of the Court this appeal is taken this October 19th, 1901. James W. Owens, attorney for petitioner; Jas. R. Brashears, attorney for Board of Registry; W. Hallam Claude, attorney for Thos. Davis."

DISPOSITION: Appeal dismissed.

CORE TERMS:  registration, precinct, certificate, removal, voter, registered, register, registry, sworn, language used, same manner, intermediate, interrogate, formerly, endorsed, struck, oath

 COUNSEL: The cause was submitted to the Court on briefs by:
 
James W. Owens, for the appellant.
 
Jas. R. Brashears and W. Hallam Claude, for the appellee.

JUDGES: SCHMUCKER, J.

OPINIONBY: SCHMUCKER

OPINION: [*710] [**273] SCHMUCKER, J., delivered the opinion of the Court.

   This is an appeal from an order of the Circuit Court for Anne Arundel County dismissing a petition asking to have the name of Thomas Davis erased from the registration books of the Third Ward of the Sixth Election District of that county. [***3]

   According to the allegations of the petition and the statement of facts contained in the record it appears that prior to October 8th, 1901, Davis was a duly registered voter in the Second Precinct of the First Election District of the same county. Having removed to the Third Ward or Precinct of the Sixth District he applied to its Board of Registry for registration on their books, producing at the time a certificate of removal in due form from the Board of Registry of the precinct in which he had formerly been registered. This certificate contained copies of all of the entries concerning Davis which appeared upon the books of his former precinct and had constituted the evidence of his being a duly qualified voter thereof.

   When he presented himself for registration to the Board of Registry of the Third Ward of the Sixth District they administered an oath to him, but instead of putting to him the interrogatories required by sec. 16 of Art. 33 of the Code, to be put to an applicant for registration they examined him as to the truth of the statements of the affidavit endorsed on his certificate of removal and his replies being in the affirmative they registered him on their books. That[***4] affidavit was that the applicant was the party to whom it was issued and that he had removed to the precinct and district in which he now sought to be registered.[**274]

   The first question presented by the record is whether sec. 26 of Art. 33 of the Code, which provides for changing the place of registration of a voter who has moved from a precinct in which he was already registered to another precinct or district, contemplates his registration de novo in his new precinct or a mere transfer of his former registration. The section under consideration relates to what are sometimes called intermediate registrations i. e. to those occurring between the times [*711] fixed by law for general registrations of all of the voters of the State. It provides that at the times therein mentioned "names may be added on the registers in the same way upon sworn application as in the case of a general registration and all the same forms and requirements shall be observed. If it shall appear that any applicant had been upon the registry in any other precinct of any county at any time since the beginning of the last general registration for such precinct, his name shall not be added[***5] to the registry where application is made until he produces a certificate of removal given him by the Board of Supervisors of said county or by the Board of Registry for such other precinct."

   The language used in this section is plain and unambiguous. It does not even suggest that the certificate of removal is to operate as a transfer of registration. It directs that the new names be added to the registry in the same way upon sworn application as in the case of a general registration and distinctly declares that all the same forms and requirements shall be observed. The purpose of requiring an applicant whose name already appears upon the books of some other precinct to produce a certificate of its removal therefrom as a condition precedent to registration is obvious. It is to prevent the duplication of names upon the registration books and thus remove the opportunity for fraudulent voting.

   It may be contended that practically the same result would be obtained by using the certificate of removal as a transfer and transcribing from it into the new registry the same entries which when they were upon the old books secured to the person to whom they referred the right to vote in the[***6] precinct in which he then resided, but the language used in the statute is too clear to admit of any such construction.

   When Davis made application to be registered in the Sixth District and produced his certificate of removal the registers should have sworn and interrogated him in the same manner as if he had for the first time presented himself for registration.

   We think, however, that if he in fact possessed the qualifications [*712] entitling him to register he should not be deprived of his registration or his vote by the failure or mistake of the registers in dealing with his case. He should have been permitted to show in the Circuit Court under the present proceeding that he was entitled to be registered and if he did so, and in the absence of anything to the contrary in the record we would presume that he did, the petition was properly dismissed.

   Inasmuch, however, as there is no bill of exceptions in the record and the statement as to the facts signed by counsel was obviously prepared after the trial of the case the appeal is not properly before us and will be dismissed.

   Appeal dismissed. 

JAMES R. BRASHEARS, EXECUTOR OF THOMAS P. ORME, vs. WALLACEG. ORME ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
93 Md. 442; 49 A. 620; 1901 Md. LEXIS 49

 June  13, 1901, Decided

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

DISPOSITION: Rulings reversed, cause remanded and new trial awarded.

CORE TERMS:  testator, horse, deed, admissible, mental condition, kill, replied, testamentary capacity, connected, shot, executing, objected, insanity, peculiarities, shoot, jurors, testament, framed, bills of exception, question and answer, mental capacity, objectionable, conversation, twenty-five, fifty-five, reflecting, calculated, excepted, noticed, sanity

COUNSEL: J. Wirt Randall and James R. Brashears, for the appellant.
 
Robert Moss and James W. Owens, for the appellees.

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

OPINIONBY: BOYD

OPINION: [*444] [**620] BOYD, J., delivered the opinion of the Court.

   This is an appeal from the rulings of the Court below on the admissibility of evidence offered at the trial of issues sent from the Orphans' Court of Anne Arundel County on a caveat to the last will and testament of Thomas P. Orme. Three issues were sent to the Circuit Court, but the first and third were abandoned, which left as the only one for trial: "Was the said Thomas P. Orme at the time of the signing of said paper writing purporting to be his last will and testament of sound and disposing mind and capable of executing a valid deed or contract?" The jury rendered a verdict in favor of the caveators and the appeal was taken by the executor named in the will. There are thirteen bills of exception in the record, but as the answers to the questions in the ninth, tenth, [***2] eleventh, twelfth and thirteenth are not given we cannot consider them, for when a question is permitted to be asked, we cannot determine whether it was prejudicial to the party objecting, unless the answer appears in the record. It has, therefore, been held in a number of cases that this Court will not review the ruling of the Court below when the answer to a question, which has been allowed, is not stated. Among others are Lawson v. Price, 45 Md. 123, and Devoe v. Singleton, 80 Md. 68, 30 A. 614.

   [*445] It was also contended on the part of the appellees that the first and third exceptions could not be considered, because the answers to the questions were given in the second and fourth bills of exception, respectively, and they were not sufficiently connected. It is true that bills of exception "must be considered wholly distinct from each other, unless they contain sufficient words of connection," Armstrong v. Thruston, 11 Md. 148. But these were sufficiently connected. The first states the question objected to, that it was overruled and that the ruling of the[**621] Court was excepted to and then concludes[***3] in the usual way. The second begins by stating "The witness then, in answer to the said interrogatory excepted to, replied," etc. The third and fourth are connected substantially in the same way. Under the decision in Rowe v. B. & O. R. R. Co., 82 Md. 493, 33 A. 761, and the cases there cited, those bills of exceptions were sufficiently connected to permit us to refer to the second to ascertain what was the answer to the question in the first and to the fourth to find the answer to the one in the third. We must, therefore, consider the eight bills of exception.

   Richard P. Sellman testified that he had known Thomas P. Orme for fifty-five years, he went to school and college with him, their houses were about a mile apart, and he saw the testator every day or two and was on friendly terms with him. After speaking of some incidents in his life, his characteristics, etc., he was asked, "Did Thomas P. Orme ever make any admissions to you as to his treatment of his wife on the first night after they were married," which was objected to and is the subject of the first bill of exceptions. The answer to the question; which we need not state, reflected more on the character[***4] of the testator than the condition of his mind. There is nothing in the record to show whether what he said was true or untrue, but if true, it indicated that he was a coarse, vulgar man, and, if he was, it would not necessarily throw any light on his mental condition. But if he was not a man of that character, it would reflect upon the question at issue, as a man of perfectly sound mind would not likely speak of [*446] such things concerning his wife, unless he was exceedingly coarse and vulgar, if not depraved. But it was possible that the question asked might have called for an answer that would have been relevant, as his treatment to his wife might have been such as would indicate that his mind was not sound at that time, and, as the Court could not know what answer would be given, it was not error to permit the question to be asked. Practically the same question was asked another witness, which is presented in the sixth exception, and what we have said is likewise applicable to it.

   The witness Sellman, after answering the question embraced in the first bill of exceptions, stated that he spent days and nights at the house of the witness and they would also meet at a store, [***5] which was the postoffice. He was then asked, "From your knowledge of Thomas P. Orme, do you consider him to have been competent to execute a valid deed or contract?" which was objected to, but the Court permitted it to be answered, and that ruling is presented by the second bill of exceptions. The form of that question is objectionable. The issue before the jury was whether the testator was of sound and disposing mind and capable of executing a valid deed or contract, at the time of executing the paper writing purporting to be his last will and testament. The will is not in the record and its date is not given, except in the issues it is said to be dated the 20th day of December, 1890. Nor does the record show when he died, but the issues were framed on the 8th of October, 1900. The will was therefore apparently made about ten years before the death of the testator. A witness who knew a testator for fifty-five years might be of the opinion that he was not capable of making a valid deed or contract at some particular period or periods of his life, while he might, in his opinion, have been perfectly competent at other times. It cannot be necessarily inferred from the testimony that[***6] the witness considered Orme incapable of making a valid deed or contract throughout the whole time he knew him, for a part of the time he was at school and two years he was at St. John's College with him. Then he said the testator "had a [*447] remarkable memory for horses; he could tell you the pedigree of every horse he had ever heard of; that the testator was himself a breeder of horses and dealt in horses." So it is not likely, that during all that time he considered him incompetent, and it is impossible to say from the question and answer that he referred to the time the will was made, or what time he did have reference to. It might result in great injustice in many cases to permit a question of that kind to be asked without fixing any time. In Townshend v. Townshend, 7 Gill 10, cited by the appellees, the question was asked of a witness, who had known the testator for twenty-five years, as to his mental condition "during all the period of the witness' acquaintance with him." And our predecessors held that it ought to have been allowed. But there the witness' opinion during all the period of his acquaintance with the testator was asked for.

   The fourth[***7] exception presents a similar question, but is still more objectionable. A witness had been asked to relate an incident that had occurred about four years after the date of the will, which he was permitted to do; and "the counsel for the caveators then asked the witness if, in his opinion, the testator was able to make a valid deed or contract?" Although the witness had known the testator for over fifty years and spoke of a number of peculiar things he had done, one of them in 1889, it is impossible to say that he understood this question to refer to the date of the will or to what time it did refer, and following immediately after the inquiry about the incident which happened four years after that date, it might well have been understood by the witness to refer to the time of that incident and not to the date of the will, but no time was named. It is true, that on cross-examination the time might have been ascertained, but the question asked was not relevant, unless it reflected upon the testamentary capacity of the testator at the time he executed his will, and [**622]to permit a question, thus indefinite as to time, is calculated to mislead a fair witness and to give one who[***8] is not so, an opportunity to impose on the jury and it might mislead the jury. As reflecting [*448] upon the mental condition of a party at the time of the act in question, evidence of the condition of his mind at other times, both before and after the act, may be admitted, but only for the purpose of enabling the jury to determine its condition at the time of the act. Although opinions of witnesses who are not experts are admissible under proper circumstances, it is a character of evidence that should be very carefully guarded and is liable to do great harm unless it is. A question calling for an opinion of that nature should be so framed that there can be no doubt as to the time it refers to and if it is not it should not be permitted to be propounded.

   These questions are also objected to on the ground that sufficient foundation had not been laid to show that these witnesses were competent to express opinions on the subject of the testamentary capacity of the testator. There is unquestionably great danger in allowing witnesses to express opinions on such subjects unless they fully measure up to the standard required by law to make them competent to do so. Cases resulting in[***9] setting aside wills are apparently much more frequent than formerly and it may be owing in some measure to the fact that witnesses have been permitted to express their opinions too freely as to the capacity of testators. Jurors are sometimes greatly influenced by the opinions of witnesses they happen to know, and in whose judgment they have confidence, and such an opinion should not be based on insufficient evidence. There were only two incidents related by Mr. Sellman which could possibly indicate that the testator's mind may have been affected. One of them was that the testator asked the witness to shoot him, and the witness explained the transaction as follows: "I shot at him with both barrels; the shot hitting about six inches above his head; he never flinched but said, 'Dick Sellman, I believe you are fool enough to kill me.'" The latter remark certainly showed that the testator did not suppose that the witness would shoot at him and it would be rather a partial conclusion to reach to say that a party who would be thus shot at was mentally weak, but the one who did the shooting was of sound mind [*449] and capable of passing on the sanity of the other. Then he said that a[***10] year or two before that "he stabbed himself with a knife, and about a year after that he tried it again." But that was "about the year 1865 or 1866"--a quarter of a century before the will was made, and there is nothing to show that he continued in that condition. It was said in McElwee v. Ferguson, 43 Md. 479, "But strange and unaccountable as the phenomenon may appear to most persons, the act of self-destruction cannot be judicially regarded as a proof per se of insanity. After all it is but a fact, together with all other facts in the case, from which the Court or the jury are to determine the testamentary capacity of the testator, not at the time of committing suicide, but at the time of the execution of the will in question." In that case the will was executed the day before testator committed suicide, but the Court sustained it. Such being the law, the mere fact that a man attempted to commit suicide twenty-five years before he made his will is not sufficient evidence to justify any one in reaching a conclusion that he was not, at the time of the execution of the will, capable of executing a valid deed or contract. If that be insufficient in law to declare[***11] a man insane, then a witness should not be permitted to give his opinion from that act alone. There is nothing else stated by this witness which tends to show insanity, for, as we have seen, the expression used in connection with the shooting incident shows that the testator in reality had no idea that the witness would shoot him, and the only other statement of the witness that could possibly have any bearing on the subject is that "he had noticed peculiarities about the testator." That is immediately followed by the statement of his knowledge of the pedigree of horses and the shooting and stabbing incidents. Apparently they were the peculiarities referred to, but if every man about whom some person, who had known him all his life, "had noticed peculiarities" is to be deemed incapable of making wills but few of them could stand such a test. It is true that a witness is not required to mention everything upon which his opinion is founded, but when there is nothing stated by him [*450] which is sufficient in law to justify such an opinion he should not be permitted to express it. A non-expert witness must not only show that he was acquainted with the facts, but he must state the[***12] facts, as far as he can, and disclose what has led to his conclusions. We do not mean that he must quote the language or give every incident that transpired upon which he bases his opinion, for that would often be impossible, especially for a witness who knew the party for many years, but when the whole testimony of the witness fails to show any facts or fact to justify the conclusion reached by him, he should not be permitted to express an opinion. With the exception of the incidents we have mentioned there is nothing in the testimony of this witness, as given in the record, which could make the sanity of this man a proper subject for argument, much less justify the conclusion that he was insane. Under the law the presumption is that a testator is sane and no one not an expert, or witness to the will, is competent to express an opinion contrary to that presumption unless he first states facts which are sufficient to base an opinion on. We think therefore there was error to permit this question to be asked[**623] of the witness Sellman, because he did not show himself to be qualified to answer it.

   If the question propounded to witness Lee had been confined to the specific times[***13] referred to there was evidence given by him which was sufficient to let him express an opinion. On one occasion Orme met him on the road, grabbed his horse and asked him what he was doing for his soul; he told the witness that he, Orme, was converted and asked the witness to get off his horse and pray. When witness afterwards spoke of the incident to him he denied it. Then again he asked the witness to kill him; that he would make a will leaving everything to him. When the witness asked him "what good would that do me, I would be hung," he replied that he would sign a paper exonerating him from blame and drew up such a paper and signed it. When the witness refused to kill him he burst out crying and said he had nothing to live for. That conduct was not such as we usually expect [*451] from a rational man, and as the appearance, demeanor, etc., of Orme, and the impressions that would be made on the witness by such conduct could not otherwise be fully disclosed to the jury, the opinion of the witness could be given. If, therefore, the question had been so framed as to apply to such times, it would have been competent, but it was not, because it did not show to what time it referred. [***14]

   We do not see any reversible error in the third exception. The question was asked if the witness remembered an incident that occurred about four years after the date of the will. As we have said, testimony may be offered reflecting upon the mental condition of the testator before and after the execution of the will, so that the jury can determine from all the facts as to his mental condition at that time. There was nothing in the answer that materially reflected upon the question, unless it was that he told the witness that he had been poisoned. If that was not true, but was merely a delusion, it had some bearing on the subject in controversy. The record does not show whether or not it was true, but the question might have called for an answer that was material and the Court could not tell what the answer would be. The proper practice is when a question is asked that may call for an answer which is relevant and material but the answer given is irrelevant and improper, to then ask the Court to strike out the question and answer, and if it be calculated to do harm the Court should instruct the jury not to consider it. That may sometimes result in getting something before jurors which[***15] they ought not to hear, but if the question be in proper form and may be relevant the trial Court cannot assume that the answer will not be.

   Nor does the fifth exception present any reversible error. The witness was asked whether he had any talks with the testator on the subject of religion, the Bible and death. Evidence as to religious belief is not generally admissible, and if it refers to opinions on that subject which rational men might hold, it is not competent and is calculated to do harm. It might result in jurors being influenced by the fact that the testator had [*452] different views from their own. But the witness merely replied that the testator was very fond of talking on those subjects and we cannot see that any injury was done by the question, even if it be conceded to be irrelevant. Under some circumstances such questions might be relevant. For example, in the seventh exception, the witness was asked what the testator would say on the subject of religion, and he replied "that sometimes the testator would believe in God, and the next day he would not." That would show such a vacillating mind as would be proper to be submitted with other facts in an inquiry of this[***16] kind.

   In the eighth exception the question was whether any of the conversations the witness had with the testator related to death. He replied, "That the testator would say in such conversations that he wished he was dead, or could die." That of itself would not prove insanity, but it was a circumstance which showed the state of mind the witness was in, which might have reflected on other subjects. As we have seen, suicide is not itself evidence of insanity, but it is a fact to be submitted to the jury. If a man is anxious to die he is in a condition that does not usually prevail with men and might, in some cases, indicate a condition of mind that together with other circumstances, might reflect upon his testamentary capacity. A particular fact may, of itself, be weak and inconclusive testimony, but if it is anywise pertinent to the issue, it is generally admissible in connection with other evidence in the cause which it may help to make clearer or in some way apply to.

   For error in the rulings included in the second and fourth exceptions the case must be reversed.

   Rulings reversed, cause remanded and new trial awarded. 

WILLIAM H. TALBOTT ET AL. vs. WILLIAM T. LEATHERBURY ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
92 Md. 166; 48 A. 733; 1900 Md. LEXIS 22

 December  13, 1900, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (REVELL, J.)

DISPOSITION: Decree reversed and cause remanded.

CORE TERMS:  deed, necessary parties, deed of trust, grantor, cestuis que trust, heir, conveyed, grantee, decree, want of proper parties, property conveyed, admitting, mortgagee, recorded, mortgage, subject to a mortgage, faithful performance, failure to comply, person interested, sale of property, incidental power, duly executed, legal title, net income, common law, co-defendant, contingency, fraudulent, appointed, answered

COUNSEL: James R. Brashears for the appellants.
 
James W. Owens and James M. Munroe for the appellees.

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

OPINIONBY: SCHMUCKER

OPINION: [*167] [**733] SCHMUCKER, J., delivered the opinion of the Court:

   This is an appeal from a decree which set aside a deed as fraudulent because it hindered and delayed the creditors of the grantor.

   On the 28th of April, 1898, the appellant, William H. Talbott, jointly with his wife conveyed a parcel of land lying in Anne Arundel County, subject to a mortgage to C. Morris Cheston, in trust to hold it for the use of Talbott's six children named in the deed until the youngest of them became twenty-one years of age. The trustee was by the terms of the deed directed to collect the rents of the property and after defraying taxes and expenses to pay over the net income to the children, and he was given power to mortgage or sell the property whenever he should deem it necessary to do so for the protection of the estate or the parties interested in it. [***2]

   The deed was duly executed and acknowledged and was promptly recorded. It did not contain an acceptance of the trust on the part of the grantee but the record contains evidence that he had knowledge of and assented to its execution. The trustee Cheston, died during the year 1898 without having filed any bond or having entered upon an active discharge of the duties of his trust.

   On April 28, 1899, during the vacancy in the trusteeship, caused by Cheston's death, the appellees filed the creditor's bill in the present case, averring that Talbott had made the deed of trust to Cheston without the knowledge or assent of the latter and without consideration for the purpose of stripping himself of all his property in order to hinder, delay and defraud his creditors. The bill prayed that the deed might be set aside and the property conveyed by it sold for the benefit of Talbott's creditors. H. S. Ridout, the mortgagee of the land, was made a co-defendant to the suit, but neither the cestuis [**734] que trust nor the heir at common law of the deceased trustee were made parties.

   [*168] The appellants answered the bill admitting the indebtedness of Wm. H. Talbott to the appellees[***3] and the making of the deed of trust by him and his wife to Cheston, but denying the other allegations of the bill. No demurrer was filed to the bill nor did the answer set up the defense of the want of proper parties to the case, but the opinion of the Circuit Court, which is in the record, shows that objection to the non-joinder of the cestuis que trust and the heir of the trustee in the suit was made by counsel in the argument and was passed upon by the Circuit Court. Ridout, the mortgagee, also answered the bill admitting the existence of his mortgage, but neither admitting nor denying the other allegations.

   The Circuit Court being of the opinion that the deed of trust was one of those contemplated by sec. 205 of Art. 16 of the Code, held that no title passed to the grantee, because of his failure to comply with the requirements of that section by filing a bond, and that therefore neither his heir nor the cestuis que trust were necessary parties to the case. That Court being also of the opinion that the deed was made with intent to hinder and delay the creditors of the grantor passed the decree setting it aside and directing the property to be sold for the payment of his[***4] debts.

   We think that the bill of complaint was defective for want of proper parties. The deed of trust from the appellants to Cheston was regular in form and was duly executed and recorded and was therefore prima facie a valid deed. The testimony in the case does not support the allegation of the bill that the deed was made without the knowledge or consent of the grantee, but so far as its bears upon that question the evidence tends rather to establish the fact of such knowledge and consent on his part when the deed was made although it indicates that after his interview with the appellee Leather-bury, he showed a disinclination to continue to act as trustee.

   The deed may have been fraudulent in fact and may have been executed under such circumstances as to have induced a Court of equity to set it aside upon a proper application made for that purpose by the creditors of the grantor. Before, [*169] however, a decree to set it aside could have properly been passed, the well-settled principles of equity pleading required that all parties having any interest in the property under the terms of the deed should have been brought before the Court and have had an opportunity to answer[***5] the bill and be heard in their own behalf. Cromwell v. Owings, 6 H. & J. 10; Ridgely v. Iglehart, 6 G. & J. 49; Ward v. Hollins, 14 Md. 158.

   The provisions of sec. 205 of Art. 16 of the Code were, in our opinion, not intended to apply to deeds like the one now under consideration. That section requires "every trustee to whom any estate real, personal or mixed shall be limited or conveyed for the benefit of creditors or to be sold for any other purpose" to file a bond with the clerk of the Court in which the deed may be recorded before any title to the property conveyed shall pass to him, with the proviso that if the sale is to be made in a contingency no bond need be given until the contingency happens. This section was obviously intended to apply only to deeds creating trusts for the sale of property whether the sale was to be made for the benefit of creditors or for any other purpose. It would involve an unwarrantable stretch of construction to hold this section applicable to a deed like the one now before us, which creates a trust to hold the property until a given time and then convey it absolutely to the cestuis [***6]  que trust, because an incidental power of sale is conferred by the deed upon the trustee.

   The cases of Cohen v. Barton, 73 Md. 408, and White v. Pittsburgh National Bank, 80 Md. 1, 30 A. 567, upon which the appellee relied in support of the contention that sec. 205 applies to the present deed, were both of them cases of deeds of trust for the benefit of creditors, as were also the later cases of Fidelity and Deposit Co. v. Haines, 78 Md. 454, 28 A. 393, and Moore v. Title and Trust Co., 82 Md. 288, 33 A. 641, in which the same section was held to apply.

   The deed now before us falls within the contemplation of sec. 203 of Art. 16 of the Code, which provides that, "In all cases where a trustee has been appointed by will or deed to [*170] execute any trust," any person interested in its execution may apply to the Court to require the trustee to give bond for the faithful performance of his trust, and that upon his failure to comply with an order requiring him to give bond the Court may remove him and appoint a new trustee. Ample protection is afforded by this section to the persons interested[***7] in the execution of the trusts created by the deed in this case.

   The title to the property in controversy having passed to Cheston under the deed of trust from the appellants to him, his heir at common law, on whom the legal title was cast at his death, as well as the cestuis que trust named in the deed, were necessary parties to the case.

   The appellants should have raised the issue of want of proper parties to the bill by their pleadings, but when the absence of necessary parties to enable the Court to finally settle the issue so as to bind all persons in interest appears upon the face of the proceedings as it does in the present case, objection upon that ground may be made at the trial in the lower Court, or according to some of the authorities at the argument in the appellate Court. Salmon v. Clagett, 3 Bland 125; Tartar v. Gibbs, 24 Md. 323; Hawkins, Trustee, v. Chapman, 36 Md. 83; Hoe v. Wilson, 9 Wall. 501; Coiron v. Millaudon, 19 HOW 113, 15 L. Ed. 575.

   The decree appealed from [**735] will be reversed and the case remanded to the end that proper additional parties[***8] may be made to the case by amendment and further proceedings had in accordance with this opinion.
 
   Decree reversed and cause remanded. 

BENJAMIN R. DAVIDSON vs. R. TILGHMAN BRICE 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
91 Md. 681; 48 A. 52; 1900 Md. LEXIS 77

 November  15, 1900, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County, (JONES, J.)

DISPOSITION: Order affirmed with costs above and below.

CORE TERMS:  oath, elected, declaration of rights, oath of office, prescribed, election, treasurer, qualification, successor, qualify, oath prescribed, county treasurer, declaration, appointed, vacancy, fill, prescribe, collector, next general election, duly elected, religious, general election, gave bond, convention, appointment, surrender, office of trust, faithfully, religion, execute

COUNSEL: Robert Moss, for the appellant.
 
The office of County Treasurer of Anne Arundel County was created by the Legislature, "and by the Legislature it can be controlled, modified or abolished." Davis v. State, 7 Md. 151; Anderson v. Baker, 23 Md. 627; Warfield v. County Commrs. 28 Md. 84; Baltimore v. State, 15 Md. 376. It was a constitutional exercise of legislative power for the Legislature to prescribe the oath to be taken by the County Treasurer of Anne Arundel County, even if the oath materially differed from the constitutional oath; the office was of its creation, and it had the right to prescribe the manner in which the person elected to fill the office should qualify. Martin v. Barbour, 34 Fed. Rep. 703. Framers of the several Constitutions of this State have recognized the wisdom of delegating to the Legislature of the State, the power to prescribe for certain officials provided for by the Constitution an oath other than the oath prescribed by the Constitution; (see section 1, Art. 6, of the present Constitution, Thomas v. Owens. 4 Md. 189); and at[***2] this late day, after a long line of legislative precedents, where oaths different from the constitutional oaths have been required to be taken by persons elected or appointed to offices created by the Legislature, it can no longer be doubted that the Legislature has this power, and that it is wise and prudent for it to exercise it.
 
The appellant has failed to find any reported case deciding that a person about to be inducted into an office, created by the Legislature, could take the constitutional oath and ignore the oath prescribed by the Legislature. Many reported cases decide that mere informalities in taking the oath are not fatal, but they can have no bearing on this case, as it is admitted the appellee never attempted to take the oath described. In fact, took a different oath. It therefore follows, that the appellee having failed to qualify as required by law, and the appellant being rightfully in possession, and discharging the duties of the office, is entitled to hold the same until his successor is qualified. Branham v. Long, 78 Virginia, 365; Robb v. Carter, 65 Md. 321.
 
The Courts will follow a legislative construction that has been continually exercised for a long[***3] period of time. State v. Mayhew, 2 Gill, 341. It was necessary for the Legislature to construe Article 37 of the Declaration of Rights before it could reach the Courts, as the prohibition is upon the Legislature. Since the adoption of the Constitution of 1867, the Acts of Assembly will show that the successive Legislatures have construed this article only to apply to offices created by the Constitution and laws made pursuant thereto; and since the adoption of the Constitution until the present time not a session of the Legislature has passed without some office being created and oath prescribed. This effort on the part of the Legislature to bind the conscience of a public official as to the specific duties to be performed by him has, in many of our Acts, become the leading feature of the law; such as the oath of the Police Commissioner of Baltimore City and the oath of election officials under the Australian Ballot Law.
 
E. C. Gantt and James P. Bannon, for the appellee.
 
The appointment of Benjamin R. Davidson was till the next general election of county officers; the election held November 7th, 1899, was certainly such an election contemplated by the statute; for general[***4] elections in Maryland are those at which the great body of State, county and township officers are chosen. Acts of 1894, ch. 615, sec. 223; Paine on Elections, sec. 284; Constitution of Maryland, Art. 3, sec. 6; Mackin v. State, 62 Md. 246. The certificate of the Clerk of the Circuit Court, filed May 9th, 1900, shows that R. Tilghman Brice qualified by taking and subscribing to the oath required by law within the time required, the question being, what oath must he take? All other questions of qualification being admitted. That is, is the constitutional oath sufficient, and was he required to take a special oath as directed in section 223 similar to that of collector of taxes, except as to title of office, which oath is set out in section 36, of Article 81, of Code of Public General Laws or both? There was and is but one oath that must be taken and subscribed to, and that one is the constitutional oath; others can and may be taken in addition: Declaration of Rights, Article 37; Thomas v. Owens, 4 Md. 223; Anderson v. Baker, 23 Md. 531; Mayor, etc., v. State, 15 Md. 376; Archer's case, 74 Md. 443; Maryland Constitution, Article 1, section 6; Harwood v. Marshall, 9 Md. 83.
 
The constitutional[***5] oath is required of all officers, either under the Constitution or created by statute; this provision of the Constitution is mandatory, except as to the Comptroller and State Treasurer. Maryland Constitution, Art. 6, sec. 1; Thomas v. Owens, 4 Md. 223; Harwood v. Marshall, 9 Md. 83; Archer's case, 74 Md. 443; Code of Public General Laws, Art. 19, sec. 1. 
 
 If R. Tilghman Brice had failed to take and subscribe to the constitutional oath he would have forfeited his right to the office, although he may have taken the special oath in addition. Maryland Constitution, Art. 1, sec. 7; Archer's case, 74 Md. 443. The statute does not limit or restrict the exact words of the oath to that of the collectors--shall take an oath similar in form. Now, the constitutional oath is certainly more comprehensive and sufficiently broad to include this special oath, and within the bounds of the maxim, "Omne majus continet in se minus." State v. Mazon, 90 N. C. 676. The Legislature had no power to designate this special oath; it transcended its powers when it did so; as the oath did not apply to the Comptroller or State Treasurer, the only exception, coming clearly within the provision of the Constitution. [***6] Being the creature of the Constitution and acting within circumscribed sphere, the Legislature is not omnipotent and cannot rightfully exercise any power but that which is derived from that instrument. Whittington v. Polk, 1 H. & J. 236; Thomas v. Owens, 4 Md. 189.

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

OPINIONBY: MCSHERRY

OPINION: [*685] [**52] MCSHERRY, C. J., delivered the opinion of the Court.

   By an Act of Assembly--chapter 615 of the session of 1894--it was provided that the County Treasurer of Anne Arundel County should be elected by the people on the Tuesday after the first Monday in November, 1897, and on the same day in every fourth year thereafter. It was declared that he should hold his office for four years from the first Monday of May next after his election "or until his successor is duly elected and qualified." By sec. 223 of the same statute it was enacted that the person elected should give bond and take an oath before the Clerk of the Circuit Court "in form similar to that heretofore taken by collectors of taxes, except as to the title of office;" and that in the event of his failure to give the bond and[***7] to qualify within thirty days after his election, the County Commissioners should declare the office vacant. The same section further provided that in the event of the treasurer's death the County Commissioners should proceed to fill the vacancy by the appointment of a suitable person to serve as treasurer until his successor shall be elected "at the next general election thereafter to be held for county officers in said county, and qualified as hereinafter required." At the election of 1897, Dr. C. Morris Cheston was elected treasurer. He gave bond and qualified and subsequently entered upon the discharge of his duties. In December, 1898, he died. Thereafter the County Commissioners appointed Dr. Benjamin R. Davidson to fill the vacancy. Dr. Davidson duly bonded and qualified. At the general election of 1899, Dr. Davidson and R. Tilghman Brice were candidates for the office and the latter was returned elected. Within thirty days after the election he gave bond and took the oath of office prescribed by sec. 6, Art. 1, of the Constitution, [*686] but did not take the oath "heretofore taken by collectors of taxes," which is [**53] an oath exacted, not by the Constitution, [***8] but by Art. 81, sec. 36, of the Code. Dr. Davidson refused to surrender the office to Mr. Brice and based that refusal upon two grounds; viz., first, that the appointment made by the County Commissioners was for the unexpired portion of Dr. Cheston's term of four years, wherefore there had been no vacancy to be filled by an election, and would be none until 1901; and secondly, that the failure of Mr. Brice to take the oath prescribed for collectors of taxes was a "default * * * to * * qualify within thirty days" and rendered him ineligible even though he had taken and subscribed the constitutional oath. Application was thereupon made by Brice for a writ of mandamus requiring Davidson to surrender the office. The Circuit Court for Anne Arundel County held that Brice was legally entitled to the office and ordered the writ to issue, and from that order Davidson entered this appeal.

   The case is, in our opinion, entirely free from difficulty. The first of the two grounds upon which Davidson's refusal to vacate the office rests is completely and effectually swept away by the very statute which fixed the term of office and provided for the election of a county treasurer.[***9] The term is, by that statute, declared to be for four years from the first Monday of May succeeding the treasurer's election "or until his successor is duly elected and qualified." An incumbent duly elected and qualified, if he lives, or is not removed, or does not cease to reside in the county, or does not resign, is entitled to hold the office for four years from the first Monday of May ensuing his election, or longer, if his successor is not duly elected and does not qualify. But it is obvious that any of the contingencies just named might happen; and if one of them should occur the incumbent's tenure would terminate prior to the expiration of the four years; and accordingly the Legislature provided that in the event of the death of the treasurer, the County Commissioners should declare the office vacant and should fill [*687] the vacancy, not for the residue of the original term, but until a successor should be elected at the next general election and should qualify. The appointee's tenure cannot, under the express words of the statute, reach beyond the general election next ensuing his appointment and the point of time thereafter when his successor chosen at that election[***10] shall qualify.

   The election of 1899 was a general election, and it was the next general election which occurred after the appointment of Dr. Davidson had been made. It was, therefore, the election at which, according to the mandate of the statute, a county treasurer was required to be chosen by the people. This being so, and Mr. Brice having at that election received a majority of the votes cast, is entitled to the office if he gave bond and properly qualified. Now, did he properly qualify?

   The only oath which he took was the one prescribed by sec. 6, Art. 1, of the Constitution. That oath reads as follows: "I ----- ----- do swear * * * that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and laws thereof; and that I will to the best of my skill and judgment, diligently and faithfully without partiality or prejudice execute the office of ----- ----- according to the Constitution and Laws of this State * * *." The oath provided by the Code to be taken by collectors of taxes is in these words: "I, ----- -----, collector of ----- -----, do swear that I will well and [***11]truly execute the duties imposed upon me by law, and that I will justly and impartially value all property which I shall be authorized to value, according to the best of my skill and judgment; and that I will not, either directly or indirectly, make any profit of the money collected by me, by the use thereof in any manner whatever." Does his failure to take this latter oath disqualify him? Varying this question somewhat so as to present the controlling inquiry more sharply, we may ask, has the Legislature the [*688] authority to prescribe as a qualification for the office of county treasurer any other oath than the one which sec. 6, Art. 1, of the Constitution imposes? If it has, then Mr. Brice did not legally qualify; if it has not, then he did legally qualify.

   Sec. 6, Art. 1 of the Constitution is a mandatory provision. It emphatically requires that "Every person elected or appointed to any office of profit or trust under this Constitution, or under the laws made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation," and then comes the oath which has been transcribed above. But this is[***12] not all. Not content with prescribing the precise oath to be taken, the Declaration of Rights, in Art. 37, prohibits any other oath from being exacted, for it declares: "That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any oath of office than the oath prescribed by this Constitution." Here, then, is an explicit limitation on the power of the Legislature. In the face of this positive and plain inhibition how can it be insisted that the Legislature may impose as a qualification for a public office some other and additional oath "than the oath prescribed by the Constitution?" If it may require the county treasurer to take the oath prescribed by the Code for tax collectors, it may with equal propriety superadd some other and widely different oath and completely nullify the restrictive clause of Article 37 of the Declaration of Rights. It was the obvious purpose of the people who adopted the Constitution of 1867, to deprive the Legislature of any power to formulate or impose an oath of office, except as respects [**54] [***13] the State Comptroller and the State Treasurer, each of whom, under sec. 1, Article 6 of the Constitution, is required to "take such oath and enter into such bonds * * * * as are now, or may hereafter be, prescribed by law."

   [*689] The significance of the restrictive clause in Art. 37 of the Declaration of Rights is conspicuous, if antecedent Constitutions of the State are consulted, and if the history of the disturbed period covering the Civil War and just preceding the adoption of the Constitution of 1867 be recalled. If we turn to the Declaration of Rights of 1776 we find Art. 35 reading in this way: "That no other test or qualification ought to be required on admission to any office of trust or profit than such oath of support and fidelity to this State, and such oath of office as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion." Art. 34 of the Declaration of Rights of 1851 was in these words: "That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of office as may be prescribed by this Constitution, or by the laws of [***14]  the State, and a declaration of belief in the Christian religion; and, if the party shall profess to be a Jew, the declaration shall be of his belief in a future state of rewards and punishments." Art. 37 of the Declaration of Rights of 1864 declared: "That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of allegiance and fidelity to this State and the United States as may be prescribed by this Constitution; and such oath of office and qualification as may be prescribed by this Constitution, or by the laws of the State, and a declaration of belief in the Christian religion, or in the existence of God, and in a future state of rewards and punishments." Under the power thus conferred upon the General Assembly various oaths in addition to the oaths prescribed in the several Constitutions were adopted by the Legislature and were required to be taken by different officers. Among them was that part of the tax collector's oath requiring him to faithfully act as assessor, imposed by by the Acts of 1841, ch. 23, and 1847, ch. 266, though the last part of the oath prohibiting him from making any personal profit[***15] out of the public funds was enacted in 1874, [*690] ch. 483. There can be no doubt that the Legislature had under the Declaration of Rights of 1776, 1851 and 1864 the authority to prescribe oaths of office, and in many instances this authority was exercised. When the Convention of 1867 assembled it was a common belief that many of the official oaths which the Legislature had previously prescribed in the exercise of an undoubted power were needlessly stringent, and this sentiment found expression in that provision of the Declaration of Rights which, by prohibiting any other official oath than the one set forth in the Constitution itself, took away from the General Assembly the power to adopt or require an additional one. The omission from the Declaration of Rights of 1867 of the authority contained in every antecedent Declaration of Rights, giving the Legislature the power to impose an official oath was deliberate, and to give emphasis to the design of the framers of the Constitution a positive prohibition, introduced for the first time, was substituted for the rejected clause.

   If we turn to the proceedings of the convention of 1867 it will be found that Article 37 of[***16] the Declaration of Rights was, when reported from the committee to the convention, worded precisely as is Article 34 of the Declaration of Rights of 1851; but upon motion of Mr. Bernard Carter the following substitute was adopted: "That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, nor shall the Legislature prescribe any oath of office than the oath prescribed by this Constitution." This was amended by adding after the word State "other than a declaration of belief in the existence of God." Thus the old provision which gave to the Legislature the power to exact official oaths not prescribed by the organic law was not only deleted, but a new clause was put in which denied to the Legislature the authority it formerly possessed in this particular.

   Article 37 of the Declaration of Rights is not confined to offices created by the Constitution. It contains a broad [*691] prohibition declaring that no oath of office except that prescribed by the Constitution shall be exacted. It is wholly immaterial whether the office be of constitutional creation or of statutory origin. The origin of the office is not the[***17] test as to what form of oath is to be taken. No office, however created, can be assumed until an official oath is taken, and no official oath other than that set forth in the Constitution can be required because that is the only one prescribed by the Constitution, and all others are prohibited by the Declaration of Rights. Art. 37 does two things. It prohibits any religious test as a qualification for any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibits any oath of office other than the one set forth in sec. 6, Art. 1, except as respects the Comptroller and Treasurer. By no known rule of interpretation can these prohibitions be confined to offices specifically created by the Constitution; nor can they be restricted to a narrower scope than their plain words indicate. If the last of the two prohibitions does not apply to an office created by statute then neither does the first, because the first is no more comprehensive than the second; and therefore if the Legislature may require a county treasurer to take an oath in addition to the constitutional oath, it may require some other religious test than a belief in the[***18] existence of God as a qualification for the same office. It has never been [**55]pretended that the Legislature could prescribe a religious test for a statutory office, but it has just as much power to prescribe one as it has to disregard the equally broad and emphatic prohibition against exacting any other official oath than the constitutional oath.

   Without discussing the cases relied on by the appellant's counsel, it is only necessary to say that they all arose on statutes passed prior to the adoption of the Constitution of 1867, and therefore passed when the Legislature had the authority to prescribe an additional official oath. Cases from beyond this State can have no influence on the interpretation of our own organic law.

   [*692] It results from what we have said that the Legislature was without authority in 1894 to exact the additional oath required of the county treasurer, and as the exaction of it was unwarranted, the failure of Brice to take it cannot defeat his right to the office.

   For the reasons assigned we think the order appealed from was right and it must be affirmed with costs.

   Order affirmed with costs above and below. 

THE BOARD OF COUNTY SCHOOL COMMISSIONERS OF WORCESTER COUNTYvs. PHILLIPS L. GOLDSBOROUGH, COMPTROLLER, &c. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
90 Md. 193; 44 A. 1055; 1899 Md. LEXIS 106

 December  9, 1899, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit for  Anne   Arundel  County (REVELL and JONES, JJ.), overruling a demurrer to defendant's answer to petition for mandamus and dismissing the petition.

DISPOSITION: Order affirmed with costs above and below.

CORE TERMS:  governor, school commissioner, appointed, appointment, duty, appoint, elected, civil officer, body corporate, clothed, public schools, organic law, incompetency, oath, public officer, power to remove, misconduct, conferred, vacancy, removal, vested, recess, fill, transaction of business, public school system, writ of mandamus, administer, personally, supposed, tenure 

COUNSEL: Edgar H. Gans and W. Calvin Chesnut (with whom was Adlai P. Barnes on the brief), for the appellants.
 
I. The Procedure.--As the Board of County School Commissioners is constituted a body politic and corporate by section 19 of Article 77 of the Code P. G. L., the petition was properly filed in the corporate name. Jones v. Keating, 55 Md. 145; School Com. of Wicomico County v. School Com. of Worcester County, 35 Md. 201; O'Neal v. School Com., 27 Md. 227. As the secretary of the board is a necessary party to the drawing of the draft on the treasurer, and as the money is to be paid to him, it has been thought proper, though perhaps not necessary, to join him as a co-petitioner. As under sections 101, 102 and 103 of Article 77, P. G. L., the act of the Comptroller here sought to be enforced is purely a ministerial one, mandamus is the proper remedy. Allegany County School, etc., v. Maffit, 22 Md. 121, 134; Leonard v. Wiseman, 31 Md. 201; McPherson v. Leonard, [***2]29 Md. 377; Wailes v. Smith, 76 Md. 476.
 
II. The Power of Removal by the Governor.--Has the Governor of this State the power to remove, for incompetency and misconduct in office, a member of a County Board of School Commissioners? This is the principal, substantial and important question involved in this case. On the part of the appellants, it is contended that he has and that the power is given to him by Article II, section 15 of the Constitution of the State.
 
The contention of the defendant, as set forth in his answer, is that a member of a Board of County School Commissioners "can only be removed by the vote of a majority of the members of the Board of School Commissioners * * * in the manner prescribed by section 25 of Article 77 of the Code of Public General Laws of this State, as re-enacted by the Act of 1892, chapter 341."
 
A careful reading of sec. 15 of Art. 2 of the Constitution, shows that to justify a removal thereunder, three elements must exist. (1). The removal must be for incompetency or misconduct. (2). The person removed must have received appointment from the Executive for a term of years. (3). The person removed must have been a civil officer. The[***3] appellants contend that the removal of Quillin in this case gratifies all three of these requirements. Considering them in their order:
 
(1). Quillin was removed for incompetency and misconduct. This is admitted in the answer of defendant. The mode of procedure upon the trial of charges of incompetency and misconduct is provided for by sections 12 and 13 of Article 41 of the Code of Public General Laws. That this mode was followed is alleged in a general way in the petition and admitted by the answer.
 
(2). Quillin, as a member of the county school board, received appointment from the Executive for a term of years. As has been seen, members of the county school boards are now appointed by the Governor by and with the consent of the Senate. And the term "Executive," as employed in section 15 of Article 2 of the Constitution, has been construed to include appointments by the Governor with the co-operation of the Senate. Harman v. Harwood, 58 Md. 1. Of course an appointment for six years, or for any definite time, is for a term of years within the meaning of Article 2, section 15 of the Constitution. Townsend v. Kurtz, 83 Md. 331, 342, 343; Cantwell v. Owens, 14 Md. 215.
 
(3). [***4] A member of a Board of County School Commissioners is a civil officer. The term "civil," as used in Article 2, section 15 of the Constitution, is evidently contrasted with military, as used in the same section. Cantwell v. Owens, 14 Md. 215. In general, the phrase civil officer embraces all who are engaged in the service of government distinct from those engaged in the military or naval service. Ency. Law, vol. 19, 392; And. Law Dict., title, "Officers;" Black's Law Dict., title, "Civil Officers;" 1 Story, Const., sec. 792; Mechem, Pub. Off., sec. 24; Crawford v. Dunbar, 52 Cal. 36; State v. Valle, 41 Mo. 29.
 
Thus, members of municipal boards, like a board of public works, are public officers. People v. Hurlbut, 24 Mich. 59. And a member of a Board of Water Commissioners of St. Louis is a civil officer. State v. Valle, 41 Mo. 29, 31. And a school superintendent of a county is a "civil officer" under the Constitution of California. Crawford v. Dunbar, 52 Cal. 36. And school directors, treasurers and trustees are public officers. Mechem, Pub. Off., sec. 55; Commonwealth v. Morissey, 86 Pa. St. 416; Ogden v. Raymond, 22 Conn. 379; Sanborn v. Neal, 4 Minn. 126; McCoyer v. Cortice, [***5] 9 Wend. (N. Y.) 17. 
 
It will thus be seen that the removal of Quillin gratifies all the requisites of Article 2, section 15 of the Constitution. But it may be suggested that this section has reference only to those civil officers provided for in the Constitution itself, or, in other words, that the section is not prospective and does not give to the Governor the power to remove officers created by appointment under Acts of the Legislature, passed subsequent to the Constitution. This suggestion, if made, is at once answered by the case of Harman v. Harwood, 58 Md. 1, in which the power of the Governor, under Article 2, section 15, to remove a register of voters appointed by the Governor and Senate under the Act of 1874, chapter 490, was distinctly affirmed. See also the similar case of Lane v. Commonwealth, 103 Pa. St. 481.
 
We are now brought to a consideration of the effect of section 25 of Article 37 of the Code of P. G. L., as amended by the Act of 1892, chapter 341. Can this section be construed or allowed to nullify or modify the Governor's constitutional power of removal? Conceding, for the sake of the argument, that section 25 of Article 77 is inconsistent with Article[***6] 2, section 15, of the Constitution, the proposition of the appellants is, very broadly, that whenever an Act of Assembly vests in the Governor the power of appointment to an office created by said Act, for a term of years, then the power of removal given the Governor by section 15 of Article 2 of the Constitution attaches; and no provision in said act in reference to the power of removal, even an express denial thereof to the Governor, can infringe upon or interfere in any way with the power given by section 15 of Article 2. The wisdom of and necessity for this power in the Governor is sustained by many considerations of public policy, and especially by the provisions of section 9 of Article 2 of the Constitution, whereby it is enjoined upon the Governor that he shall take care that the laws are faithfully executed. It is competent for the Legislature in creating a new office to be filled by appointment of the Governor to enlarge his powers of removal of appointees thereto, but not to detract from said power given him by the Constitution. Townsend v. Kurtz, 83 Md. 321.
 
The construction sought to be placed upon the last clause of Article 2, section 15 of the Constitution, making[***7] it inoperative in this case, on account of the existence of a method of removal provided by section 25 of Article 77, P. G. L., could only be maintained by adding an additional phrase to section 15, so that it would read "and may remove for incompetency or misconduct, all civil officers who received appointment from the Executive for a term of years, unless a different mode of removal be prescribed by the law creating the office. By reference to section 10 of Article 2 of the Constitution, it will be seen that a similar phrase was included in said section upon the power of appointment by the Governor, and if the framers of the Constitution had desired the same limitation put upon the power of removal, it would certainly have been added. As it is, section 15 is plain as it stands, and cannot be changed in meaning by the addition of words not used, but rather, apparently, expressly and intentionally omitted. Cantwell v. Owens, 14 Md. 215.
 
But is section 25 of Article 77, P. G. L., necessarily inconsistent with Art. 2, section 15 of the Constitution? The appellants submit that it is not, but that both methods of removal can very well stand. They provide different grounds for the[***8] removal. Under section 15 the removal must be for incompetency or misconduct; under section 25 of Article 77 the grounds are "in case of inefficiency, refusal to act, or breach of trust." It may very well be that the Legislature thought it well to provide a double remedy. It may have thought the power of removal by the majority would be more speedy and efficacious in certain cases than the constitutional power given the Governor. There is nothing anomalous in law in there being two methods of removal of an officer. Lutz's case, 8 Pa. Co. Ct. Rep. 133; Manker v. Faulhaber, 94 Mo. 430.
 
In Ash v. McVey, 85 Md. 119, this Court decided that the power of appointment to fill a vacancy for the unexpired term, when the Senate is not in session, bestowed on the Governor alone by the first part of section 25 of Article 77, did not conflict with Article 2, section 11 of the Constitution, which provides for recess appointments by the Governor.
 
John H. Handy, for the appellee.

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

OPINIONBY: MCSHERRY

OPINION: [**1055] [*198] MCSHERRY, C. J., delivered the opinion of the Court.

   The ultimate question[***9] for decision on the record before us is this: Has the Governor, under sec. 15, Art. 2 of the [*199] State Constitution, the power to remove a county school commissioner from office for incompetency or misconduct? That question comes up in the following way: Laban T. Quillin, one of the three school commissioners of Worcester County, after due notice and opportunity to be heard was removed by the Governor on the sixteenth of August, eighteen hundred and ninety-nine. On the same day the Governor appointed Harry P. Dale in place of Quillin. On the next day Dale qualified and a meeting of the school board was held. Quillin attended the meeting and refused to recognize the validity of his removal by the Executive. Under the statute the board consists of three members. Edgar W. McMaster, who had in August, 1898, been elected president of the board, and Asbury C. Riley were, with Quillin, the members of the board when the last named of the three was removed. At the meeting on August the seventeenth Riley and Dale, acting together, deposed McMaster as president, and elected Riley in his place. They continued in office Straughn, who had been elected secretary, treasurer and examiner[***10] the preceding year. McMaster recognized Quillin as a member, and Riley recognized Dale. There were thus two hostile boards, each claiming to be the rightful board and both having the same secretary, treasurer and examiner. In this situation Riley, acting as president, and Straughn, acting as secretary, drew a draft on the Comptroller of the State Treasury for the funds apportioned by him to the school board of Worcester County; but the Comptroller, not recognizing Riley as president, refused to pay the draft. Thereupon a petition was filed in the name of the Board of County School Commissioners against the Comptroller praying that he might by mandamus be required to pay the draft. The Comptroller filed an answer, to which the relator demurred. This demurrer was overruled and the petition was dismissed, and hence this appeal.

   If the Governor had no authority to remove Quillin, his appointment of Dale in the place of Quillin was a nullity, [*200] and Dale did not by that appointment become a member of the board. If Dale did not become a member of the board, the deposing of McMaster as president by Riley and Dale was futile and of no effect, and the election of Riley by Dale, [***11] and Riley to succeed McMaster as president, was no election at all; and if Riley was not president then the draft drawn by him as president was a draft that the Comptroller was not bound to pay. If the Comptroller was not, in law, bound to pay that draft, then a mandamus compelling him to pay it cannot be issued. Thus the controversy reaches back to the inquiry which was stated at the beginning of this opinion.

   On the one hand, it is contended that the Governor has under sec. 15, Art. 2 of the Constitution, the power to remove a school commissioner. On the other hand it is maintained that a school commissioner can only be removed under sec. 25, Art. 77 of the Code of Public General Laws. Section 15, Art. 2 of the Constitution provides: "The Governor may suspend or arrest any military officer of the State for disobedience of orders or other military offence; and may remove him in pursuance of the sentence of a court-martial; and may remove for incompetency or misconduct, all civil officers who received appointment from the Executive for a term of years." Section 25, Art. 77 of the Code enacts: "In case of the death of any county school commissioner, or his resignation, [***12] or removal from the county or disqualification from any legal cause during the recess of the General Assembly, the Governor shall have power to appoint a qualified person to fill the vacancy for the unexpired term; in case of inefficiency, refusal to act or breach of trust, the board may by a vote of a majority of its members declare the office vacant and give notice to the party concerned. An appeal may be taken to the State Board of Education, whose decision shall be final, but if [**1056] no appeal be taken within ten days, the vacancy shall be filled as hereinbefore provided." This section of the Code provides in terms for the removal of a school commissioner. It professes [*201]to deal with that subject; whilst sec. 15, Art. 2 of the Constitution does not expressly include a school commissioner, and is applicable to him only in the event that he is a "civil officer" within the meaning of that phrase as used in that and other sections of the organic law.

   The public school system, as it now exists, was framed by the Legislature pursuant to the requirements of Article eight of the State Constitution. By the statutes at present in force on that subject as embodied in Article[***13] seventy-seven of the Code, the School Commissioners are appointed by the Governor with the approval of the Senate, for a term of six years--the beginning of the term being fixed in the month of August following the appointment. By section nineteen of the Article just named, it is expressly declared that the school commissioners for each county shall be and constitute a body corporate; and all the property, funds and effects belonging to the public schools of the respective counties are declared to vest in these boards or bodies corporate. To these boards, to these corporations, and not to the individual school commissioners, is committed the whole management and control of the public schools. Now, the question is, are these school commissioners "civil officers" within the meaning of section 15, Art. 2 of the Constitution; or are they merely members of public corporations exercising, not personally as civil officers, the duties imposed upon the Boards of School Commissioners, but discharging those duties solely through and in the name of the corporate entity of which, by their appointment, they become members? There is a sense in which, if they are officers at all, they may be said[***14] to be civil officers, and that is as contradistinguished from military officers; but still the question recurs, are they civil officers within the meaning of the Constitution when all the provisions of that instrument bearing upon the inquiry are brought together and interpreted, not in the way a statute would be read, but in the way those provisions must have been understood by the people who adopted them. Mayor v. State, 15 Md. 376.

   [*202] If we turn to sec. 13, Art. 2 of the Constitution, we find that the terms of "all civil officers appointed by the Governor and Senate * * * * except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless removed from office)." Now, if the phrase "civil officers" used in sec. 15 is to be understood as meaning the officers which the same phrase employed in sec. 13 applies to; then if a school commissioner is under sec. 15 a "civil officer," the Act of 1892, ch. 341, which created a term of six years to begin in August, is void under sec. 13, because sec. 13 limits the term to two years and fixes its beginning[***15] in May. Thus the alternative is presented of declaring the Act of 1892 unconstitutional, and striking down with it the present organization of the public school system, or of treating the school commissioners as not being civil officers within the meaning of sec. 15. In the face of such an alternative a strict rather than a liberal construction must be placed on sec. 15. The term "civil officers" obviously cannot have different meanings in these two closely connected sections of the same Article of the Constitution; nor can it be construed more rigorously in the one than in the other. "Where the same language is used in different clauses of the Constitution upon the same or similar subjects it must receive the same construction, unless some particular reason to the contrary can be assigned." Roberts v. Gibson, 6 H. & J. 116. No satisfactory reason can be given for assuming that the people who adopted the Constitution as a whole understood that the term "civil officers" was to have a wider signification in the fifteenth than in the thirteenth section.

   Originally the school commissioners were under the Act of 1865, ch. 160, named by the State Board of Education and their[***16] terms, beginning in June, were fixed at four years. Then under the Act of 1868, ch. 407, they were elected by the people for a term of two years, commencing in January. Afterwards they were selected by the Judges of the Circuit [*203] Courts and finally the power to appoint them was conferred upon the Governor. However chosen, they were clothed with no power to be exercised by them as individuals. With the single exception of the authority given to them to administer an oath in matters pertaining to public schools, every duty to be performed is imposed, and every power to be used in respect to the public schools is conferred, not upon the persons appointed commissioners, but upon the corporate entities of which those persons are merely the members. In defining and prescribing the duties imposed and the powers given, the Code particularly refers not to the persons called school commissioners but to the "Board of County School Commissioners." Thus in sec. 19, Art. 77, as amended by the Act of 1892, ch. 538. "The Board of County School Commissioners is hereby declared to be a body politic and corporate by the name, style, &c.," and "by that name shall have perpetual[***17] succession, and shall be capable to sue and be sued, to have a common seal * * * and to exercise all the powers and privileges hereby granted to or vested in them." Sec. 21 gives to the board the general supervision and control of all schools of the county. Notably in secs. 6 and 18, as re-enacted by the Act of 1892, ch. 341, is the Legislature careful to declare that the power given is not to the individuals but to the corporation. The first of these sections directs the Governor to appoint not officers, but "a Board of County School Commissioners for each county, to be composed" in certain counties "of six persons, and in each [**1057] of the other counties of three persons, * * * *. The member or members of each board who shall serve two, four and six years respectively, to be designated by the Governor." And the eighteenth section directs that "the Board of County School Commissioners shall meet for organization on the first Tuesday of August next succeeding their appointment * * * *. The board shall meet once in every school term, and at other times if necessary for the transaction of business." The primary purpose of the Legislature was[***18] to create boards--bodies [*204] corporate--and through and by these agencies the business of the school system was designed to be conducted; and there is not the faintest manifestation of an intention to clothe the persons composing those boards with any of the duties or any of the powers of a public officer. It is the board that shall meet for the transaction of business, aud the business to be transacted is the business of the body corporate. The individuals who compose the board are called in the statute members of the board, and in that capacity, and in that capacity alone, are they competent to act at all. And so on throughout the whole of Article seventy-seven, wherever power is given or duties are prescribed, it is declared that they are given not to commissioners, but to the board--the body politic and corporate. "The members of the board, acting individually and separately, and not as a board convened for the transaction of business, cannot make a contract that will bind them as a corporation." Honaker v. Board of Education, &c., 42 W. Va. 170, 24 S.E. 544; s. c., 32 L.R.A. 413. It is obvious, then, that the individuals who[***19] are school commissioners have, as individuals, no authority; but because they are school commissioners they become members of a board, and that board as a corporate entity exercises the power and performs the duties described in the statute. Is it then correct to say that the school commissioners are civil officers--the civil officers referred to in sec. 13 of the Constitution, whose tenure cannot extend beyond two years and whose term must begin in May?

   In the case of Ash v. McVey, 85 Md. 119, 36 A. 440, we held that sec. 11, Art. 2 of the Constitution, had no relation to a school commissioner. That section provides that "in case of any vacancy during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur, &c." Under the Act of 1892, fixing [*205] the tenure of school commissioners at six years, but providing that the first appointees should be classified so as to hold for two, four and six[***20] years, Governor Brown appointed Mr. Biddle for a term of four years from August, 1892. In December, 1892, Biddle resigned, and the Governor appointed Mr. Ash for the residue of Biddle's term--that is, up to August, 1896. In January, 1896, Governor Lowndes nominated to the Senate, S. G. Bye, to succeed Ash, but the Senate adjourned without acting on the nomination. In July, 1896--during the recess of the Legislature--the Governor appointed McVey to succeed Ash. Ash refused to surrender the position to McVey, and the latter applied for a writ of mandamus, which the lower Court granted. Upon appeal the order directing the writ to issue was reversed and we held that Ash was entitled to hold, not only for the residue of Biddle's original term of four years, but until his successor should be appointed by the Governor and confirmed by the Senate. Now, it is apparent, that no such conclusion could possibly have been reached by this Court had it been supposed that a school commissioner was a civil officer within the meaning of sec. 13, Art. 2 of the Constitution; because had that section been applicable, Ash would have had no right to a four years' term, ending July 31st, 1896--his[***21] appointment by the Governor for such a term would have been unconstitutional. But we distinctly said: "We are * * * * of opinion that the appellant (Ash) was lawfully appointed school commissioner for a term of office ending July 31, 1896, and until the qualification of his successor." If a school commissioner is an officer--if the position is an office--within section 13, then sec. 11 would have restricted the duration of the commission of Ash to the end of the Legislative Session of 1894, and we could not have held that his term extended to July 31, 1896. If the position of school commissioner is not an office within the meaning of the word "office" in sec. 11, why is it a "civil" office, or why is the incumbent a "civil officer," within secs. 13 and 15 of the same Article of the Constitution? 

   [*206] Speaking generally, it may be said that "a 'public office' is an agency for the State, and the person whose duty it is to perform this agency is a 'public officer.' This we consider to be the true definition of a 'public officer,' in its original broad sense. The essence of it is the duty of performing an agency; that is, of doing some act or acts, or series of acts, for the[***22] State." State v. Stanley, 66 N.C. 59. Similar definitions might be almost indefinitely multiplied; but after all it is rather a narrow view to lay down a general definition of the term "public officer," and then to measure by it the meaning of that same term, no matter under what conditions it may be used. The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depository of the power conferred and the whole surroundings must be all considered when the question as to whether a position is a public office or not is to be solved. By an Act of Congress, approved April 20, 1836, providing for the establishment of a Territorial Government of Wisconsin, it was enacted that the Governor shall nominate, and by and with the advice of the Legislative Council appoint judges [**1058] * * sheriffs * * "and all civil officers not otherwise provided for." By an Act of the Legislative Assembly of the Territory adopted in July, 1839, the Governor, with the advice of the council, was empowered to appoint a board of three canal commissioners to hold their office for the term of one year. They were required to give bond; they[***23] were authorized to administer oaths and to examine witnesses touching any applications for the registry of lands under the provisions of the Act. They were empowered to make sales of the lands which had been granted by Congress to the Territory for aiding in the opening of a canal between Lake Michigan and Rock River. Three commissioners were appointed under the Act of 1839. On January eleventh, 1840, the Legislative Assembly adopted an Act providing that the canal commissioners should be elected annually on joint ballot by the council and House of Representatives. Under [*207] the organic law authorizing the Governor to appoint all civil officers--and that organic Act of Congress was as binding on the Territorial Assembly as a State Constitution is on the State Legislature--one Noyes was in February 1842, appointed a canal commissioner by the Governor; but just four days previously one Hatch had been elected on joint ballot of the assembly to the same position. The question was, which of these two appointments was legal. If the office was a civil office, Noyes, the Governor's appointee, was entitled under the organic law. If the office was not a civil office the assembly had[***24] the right to fill it. The mandamus applied for by Noyes to compel Hatch to surrender the place to him was refused because a canal commissioner, with all the powers given to him, was not a civil officer. The Court observed: "It may be inferred that the term civil officers was intended to embrace such offices as in whom part of the sovereignty or municipal regulations or general interests of society are vested." U. S. ex. rel. Noyes v. Hatch, 1 Pin. 182.

   Civil officers, therefore, are governmental agents--they are natural persons--in whom a part of the State's sovereignty is vested or reposed, to be exercised by the individuals so entrusted with it for the public good. The power to act for the State is confided to the person appointed to act. It belongs to him upon assuming the office. He is clothed with the authority which he exerts, and the official acts done by him are done as his acts and not as the acts of a body corporate. It was said in Collins v. N. Y., 3 Hun 680: "Probably the true test to distinguish officers from simple servants or employes is the obligation to take the oath prescribed by law." And in Bunn v. People, 45 Ill. 397,[***25] it was held that commissioners to build a State-house were not officers, because, amongst other things, there was "no intention manifested in the Act itself to establish an office." "They are not," the Court went on to say, "required as they would have been if the law-makers supposed they were officers, to take an oath to support the Constitution [*208] of the United States or of this State." There is no provision in the whole school law requiring the school commissioners to take an oath of office.

   In 1822 the Supreme Judicial Court of Maine was asked by the Governor whether "the office of agent, under the resolve * * * * authorizing the Governor to appoint one or more agents for the preservation of timber on the public lands and for other purposes, is a civil office of profit under this State, within the meaning of Art. 4, part 3, sec. 10 of the Constitution, so that no senator or representative of the present Legislature can constitutionally be appointed as agent." The judges replied "that the terms office and officers used in the Constitution of Maine where it prescribes an oath of office to all legislative, executive and judicial officers, imply a delegation of a[***26] portion of the sovereign power to and possession of it by the person filling the office, and that a person clothed by a resolve of the Legislature with no other powers than those of superintending the public lands and performing certain acts concerning them, under the discretionary regulation of the Governor, was not an officer, and therefore was not required to take the oath." 3 Greenl. R. 481. In Com. ex rel. Reynolds v. Bussier, 5 Serge. & Rawle 451, in speaking of the Governor's power of appointment under the Constitution of Pennsylvania, CHIEF JUSTICE TILGHMAN said: "It is to be understood that in what I have said I do not mean to include certain officers (so called when that word is taken in its largest sense) of a local, limited or a corporate nature, which have not been supposed to be comprehended in the Governor's power of appointment." And in an earlier case it appeared that Thomas Cooper whilst acting as a commissioner under a statute of Pennsylvania to settle the compensation to claimants to lands in Luzerne County, was appointed president-judge of the Court of Common Pleas, and it was insisted that his acts thereafter as commissioner[***27] were void because the Constitution of the State declared that a judge should "not hold any other office of profit under this Constitution." But the [*209] Court, TILGHMAN, CHIEF JUSTICE, held that the office of commissioner was not within the meaning of the Constitution. "It was rather the execution of a special commission than the holding of an office, and this certainly was the opinion of the Legislature," because, as the Chief Justice went on to show, the Legislature named the commissioners, a thing it would have had no right to do if the position had been an office, for under the Constitution the Governor alone had the authority to appoint to an office." Shepherd v. Com., 1 Serge. & Rawle 1.

   It was manifestly not the purpose of the Legislature to confer upon the school commissioners, as individuals, the powers, or to impose upon them, personally, the duties which in explicit terms, and by the use of exact language, the General Assembly committed to boards that were called into corporate existence expressly to conduct the school system. As we have pointed out already there is not [**1059] conferred upon the members of these boards a single power[***28] to be exercised by them personally, save the right to administer an oath in matters relating to the schools. A commissioner can do nothing but that which a majority of the board orders, and no matter what his individual views or judgment may dictate he is powerless to put those views or that judgment in force if he happens to be in the minority. Alone he can do nothing--he has no power whatever. The scheme of this legislation was designed to make the management of the schools impersonal; and in no better way could that end have been reached than by creating a body corporate which, and which only was clothed, not only with the title to the school funds and property, but was invested with all the authority needed to make the system harmonious and effective. It could not have been contemplated that the members of the boards were to be independent civil officers or the Legislature would scarcely have disregarded sec. 13 of Art. 2 of the Constitution, and made the tenure six years and fixed the beginning of the term in August.

   But, when, superadded to all this, it is remembered that [*210] the county school boards are, themselves, subject, in many respects, to the control of the State[***29] Board of Education, which, under sec. 11, Art. 77 of the Code, as amended by the Act of 1898, ch. 221, has power to enact by-laws for the administration of the public school system and to suspend or remove an examiner elected by the county boards, and which, also, under sec. 12 has the general care and supervision of the public school interests of the State; it becomes apparent that the agents or individuals selected to be members of these subordinate local school boards were never intended to be, and do not in fact become civil officers, as that term must have been understood by those who adopted the organic law.

   Viewed, then, in the light of all the surroundings, and taking into consideration all the provisions of the Constitution, to which allusion has been made, we hold that a school commissioner is not a civil officer within the meaning of that term as it is used in secs. 13 and 15 of the organic law, no matter how broadly the same term may have been defined in cases relating to a different state of circumstances. This being so, the Governor had no power to remove Quillin, and necessarily, therefore, he was without authority to appoint Dale in Quillin's place. [***30] Dale and Riley had, consequently, no right to depose McMaster; and the drafts signed by Riley, who was not the president of the board, were drafts which the Comptroller was not obliged to pay, and of course, then, the application for a writ of mandamus to compel him to pay them was properly dismissed.

   Whether the power of removal given by sec. 25, Art. 77 of the Code is as broad as it ought to be, is for the Legislature to decide. If, in the wisdom of the General Assembly, it is thought that the Governor should be clothed with that power, the section can easily be amended so as to confer it.

   For the reasons we have assigned the order refusing the writ of mandamus and dismissing the petition will be affirmed.

   Order affirmed with costs above and below. 

D. MURRAY CHESTON vs. SALLY C. CHESTON. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
89 Md. 465; 43 A. 768; 1899 Md. LEXIS 41

 June  21, 1899, Decided

   PRIOR HISTORY:  [***1] Appeal from a pro forma decree of the Circuit Court for  Anne Arundel  County.

DISPOSITION: Reversed and remanded.

CORE TERMS:  residuary clause, testator, devise, judiciously, precatory, believing, residue, manage, residuary devisee, absolute estate, absolute title, purchaser, bequeath, dispose

COUNSEL: Daniel R. Randall, for the appellant.
 
No appearance for the appellee.

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

OPINIONBY: FOWLER

OPINION: [**768] [*466] FOWLER, J., delivered the opinion of the Court.

   The late Dr. C. Morris Cheston died in December, 1898. His widow, Mrs. Sally C. Cheston, and five infant children survive him. His last will, dated January 13th, 1886, executed in due form to dispose of real estate, was admitted to probate in the Orphans' Court of Anne Arundel County, on the 6th of December of the same year.

   To his son, Edward Murray Cheston, the testator bequeaths his gold watch and chain under certain conditions, and then disposes of the residue of his estate as follows: "All the rest and residue of my property, real, personal and mixed, I give, bequeath and devise to my dear wife, Sally C. Cheston, believing that she will manage it judiciously, and perfectly satisfied that she will make a fair distribution of it among our children at her death." With the exception of the last paragraph of the will, which[***2] confirms and ratifies it and appoints his wife as executrix, the above bequest and residuary clause constitutes the whole will.
 
   Mrs. Cheston, believing that, under the residuary clause she was the absolute owner and sole beneficiary of the land owned by her husband at his death, entered into an agreement with her brother-in-law, Dr. D. Murray Cheston, of Philadelphia, to sell to him for $10,000 the old Cheston home, in Anne Arundel County, known as "Hawthorne Ridge." The agreement is in writing, and there is no suggestion that it is not a valid and binding contract, provided Mrs. Cheston takes an absolute title under her husband's will.

   The purchaser, Dr. Cheston, has filed a bill for specific performance, and Mrs. Cheston has answered it. She alleges that she entered into the contract with Dr. Cheston in good faith, but she has since been advised that the residuary clause is ambiguous in its terms, and that it possibly [**769] creates a trust in favor of her children, and that for this reason she refuses to convey the property in question to the purchaser.

   [*467] The only question, therefore, presented by this appeal is as to the true construction of the residuary clause,[***3] which we have transcribed, and the nature and extent of the title which was thereby intended by the testator should be taken thereunder by Mrs. Cheston.

   Independent of authority and without regard to canons of construction, it would seem to be perfectly clear that the residuary devisee took an absolute title. The testator in so many words devises his estate to her absolutely--and then explains that he does so because he believes she will manage it judiciously and distribute it fairly. In other words, his motive for giving the estate absolutely to his wife, without making any provision for their children, is his conviction, his belief, that she will provide for them judiciously and fairly. It is as though the testator had said: "Believing that my wife will make a just and fair distribution of my estate, I devise the same to her."

   The words which, it has been suggested, may possibly create a trust in favor of Mrs. Cheston's children, are not precatory in their character, and therefore the doctrine of precatory trusts cannot be properly applied to them. The testator makes no recommendation and expresses no wish as to the final disposition of his residuary estate to be made by[***4] the residuary devisee. He leaves that absolutely to her, because he has entire confidence in her discretion, and believes she will do what is fair and just. If this be the fair construction of the clause under consideration, we think it unnecessary to discuss the application of the doctrine of precatory trusts to the language here used.

   The pro forma order of the Court below dismissing the bill must be reversed because we are of opinion that, under her husband's will, Mrs. Cheston took an absolute estate in the land she agreed to sell to the plaintiff, and he is entitled, therefore, to a conveyance of the same upon the payment of the purchase money.

   Reversed and remanded. 

STATE OF MARYLAND, USE OF SAMUEL T. WILSON vs. JOSEPH O.FOWLER ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
88 Md. 601; 42 A. 201; 1898 Md. LEXIS 238

 December  21, 1898, Decided

   PRIOR HISTORY:  [***1] Appeal from a judgment of the Circuit Court for  Anne Arundel  County (JONES and REVELL, JJ.).

DISPOSITION: Judgment reversed with costs above and below, and cause remanded for a new trial.

CORE TERMS:  sureties, officii, duty, peach, crop, levy, deputy, virtute, colore, declaration, oppressive, execute, pick, constable, growing crop, acts done, levying, fructus, malfeasance, writ of fieri facias, industriales, faithfully, neglected, fruit, ship, misconduct, trespass, satisfactory, demurrer, prayer

COUNSEL: James M. Munroe (with whom was John P. Poe on the brief), for the appellant.
 
Daniel R. Magruder (with whom was Robert Moss on the brief), for the appellee.

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

OPINIONBY: PEARCE

OPINION: [**202] [*602] PEARCE, J., delivered the opinion of the Court.

   This is a suit upon the official bond of Joseph O. Fowler as sheriff of Anne Arundel County. The declaration alleges that Thomas H. Arnold on the 14th of May, 1897, obtained judgment in the Circuit Court for Anne Arundel County against Samuel T. Wilson, the equitable plaintiff in this case, for the sum of $148.29 and $8.15 costs of suit; that on August 31, 1897, a writ of fieri facias upon this judgment was issued out of the same Court, to the said sheriff, in virtue of which, on the 1st of September, 1897, he seized and took in execution the growing crops of corn of said Wilson upon forty acres of land, and the growing peach crop of said Wilson on about 600[***2] peach trees, said corn and peaches being of much greater value than was necessary to satisfy said judgment and costs; that the sheriff forbade the plaintiff to pick, ship or sell the said crop of peaches, or any part thereof, and failed and neglected himself to pick, ship or sell, or to provide for picking, selling, or shipping the same, though said crop of peaches was then ready to pick and ship, and was perishable in its nature; that the sheriff so held said peach crop from the 1st to the 4th of September, when he released the levy thereon, as not necessary to protect the judgment, during which time he suffered the fruit to fall from the trees and rot upon the ground, so that the crop of peaches became utterly worthless and was wholly lost; and that the conduct of the sheriff in the execution of the writ of fieri facias was wrongful, illegal, and oppressive, and the plaintiff was thereby greatly damaged, and an action had accrued to him upon said official bond.

   The sheriff and his sureties pleaded that the sheriff [*603] did well and faithfully execute the said office of sheriff, and did not wrongfully, illegally and oppressively execute the writ of fieri facias, and[***3] issue was joined upon this plea. Without going into the details of the testimony, it is sufficient to say that it fully sustained every averment of fact in the declaration. At the close of the testimony, the defendants offered a prayer that there was no evidence legally sufficient to enable the plaintiff to recover under the pleadings and evidence in the case, and the verdict of the jury must be for the defendants; and the Court granted the prayer, to which ruling of the Court the plaintiff excepted and has brought up this appeal. The gravamen of this declaration is the wrongful, illegal and oppressive manner in which the sheriff executed the mandate of the writ of fieri facias, and a question of law as to the liability of the sureties in this action is thus presented, which is one of first impression in this Court. In view of the complete correspondence in this case of the allegata and probata, it would seem that this question would have been better raised by a demurrer to the declaration than to the evidence, but the defendants preferred, for reasons doubtless satisfactory to them, to rest upon the denial as presented by their plea.

   We were advised by the argument of[***4] counsel that the defence was based, and the Court below rested its decision upon, the opinion of this Court in State v. Brown, 54 Md. 318, and it becomes necessary therefore to give to that decision, and to the principles and authorities upon which it is founded, careful consideration. That case was a suit upon a bond of a constable to recover damages for the taking of plaintiff's property under an execution against a third party. There was a demurrer to the declaration which was sustained, and this Court affirmed the judgment on the demurrer, holding that the taking of a stranger's property under an execution was not a wrong done in the discharge of the constable's official duty, and was not within the terms of the contract entered into by the sureties. Whatever deductions may be drawn from that decision, or from the [*604] language used in the opinion, there is a marked distinction between that case and the present one. There, CHIEF JUDGE BARTOL said: "The only question presented by the appeal is whether an action can be maintained against a constable and his sureties on his official bond, for a trespass committed by him in taking the goods of the equitable[***5] plaintiff on an execution issued against the property of another person"; whereas, here, the only question is whether an action can be maintained against a sheriff and his sureties on his official bond, for wrongful and oppressive conduct in executing his writ according to the mandate thereof, upon the property of the same person against whom the execution issued, and in the taking of which no trespass can be committed. The Code prescribes the same condition for the bond of sheriffs and constables, viz., "that he shall well and faithfully execute the office of ----- in ----- County, in all things appertaining thereto"--and there is no other statute explaining or affecting the liability of their sureties. The decision in 54 Md. turned upon the distinction between acts done virtute officii, and those done colore officii--the act complained of in that case being held to belong to the latter class. Upon the soundness of that distinction as there applied, Courts of high reputation and judges of great distinction have differed, and still differ, widely. In Lammon v. Feusier, 111 U.S. 17, 28 L. Ed. 337, 4 S. Ct. 286, where a conclusion was reached different from[***6] that of 54 Md., many of the cases are cited and reviewed. When such eminent judges as CHIEF JUDGE GREEN of New Jersey, JUDGE COWEN of New York, and JUDGE RUFFIN [**203] of North Carolina, are found in accord with the view expressed in 54 Md., and CHIEF JUDGES SHAW of Massachusetts, TILGHMAN of Pennsylvania, BRONSON of New York, and THURMAN of Ohio, with JUDGE MILLER of the Supreme Court, are found opposed to that view, it is apparent that the question is one of much difficulty. We think, however, that the view expressed by JUDGE BARTOL must be admitted to be in accord with the principles announced in the earlier cases in this State where trespasses by sheriffs have been considered, and to be [*605] supported by some strong practical considerations of public policy, and we have therefore no disposition to question or weaken its legitimate authority in similar cases. So far as the liability of sureties rests in contract, as expressed in the condition of the obligation, we have, in the recent case of Hill and The Fidelity Co., ante p. 111, emphasized our continued concurrence in the doctrine that such liability is not to be extended beyond the terms of the obligation. [***7] But we do not think the case in 54 Md. can by any fair process of reasoning be made to control the case before us. In that case the Court quotes with approval from Alcock v. Andrews, 2 Esp. 542, note, the distinction drawn by LORD KENYON "between wrongful acts by an officer done virtute officii and such as are done colore officii." LORD KENYON says: "The former are where a man, doing an act within the limits of his official authority, exercises that authority improperly, or abuses the discretion placed in him. The latter are where the act complained of is of such a nature that the office gives him no authority to do it. In the doing of that act he is not considered an officer." Within the limits of this extract, thus approved by this Court, we think, abundant warrant can be found to maintain this action, and this conclusion, we think, is fortified by authority. If this be not so, then, as was argued in this case, the sheriff is well nigh an irresponsible autocrat, liable indeed officially for his failure to perform some positive duty enjoined for the benefit of the plaintiff in execution, but liable to no one else officially for any wrong he may[***8] perpetrate thereunder virtute officii. Treating of the duties of a sheriff in executing a writ, JUDGE COOLEY uses the following language: "A sheriff's officer must so execute writs entrusted to him, as to do as little damage as possible to respondent debtors, and where it is important to the debtor's business to have the benefit of his exemptions, the officer is bound to act promptly in setting them off to him. In levying, an officer has no right to seize and hold the whole of a debtor's property to satisfy a debt, which, even if all exemptions were allowed, would be more than secured [*606] by the remainder; and if he thereby precludes the debtor from engaging in his customary business, his action is oppressive and unjustifiable. The officer is, or should be, a minister of justice, and not of oppression." Handy v. Clippert, 50 Mich. 355, 15 N.W. 507.

   The application of the above passage to the case at bar is not less apparent than is the sound common sense of the doctrine which it asserts.
 
   In Knowlton v. Bartlett, 1 Pick. 274, the action was against the sheriff for the malfeasance of his deputy, and the Court said, "an official [***9]  act does not mean what the deputy might lawfully do; if so, no action would ever lie against the sheriff for the misconduct of his deputy." That is to say, if only lawful acts are official acts, then the sheriff is never responsible for the acts of his deputy, since by a lawful act of the deputy no one can be injured in legal contemplation, while for an unlawful act--since not an official act--the person who is thereby in fact injured, is not permitted to sue the sheriff. It may be that the same rule cannot safely be applied between the sureties and the sheriff, as between the sheriff and his deputy--he and his deputies being regarded in law as one person--but this cannot impair the force of the language employed by the Court to define an official act. We find nothing in 54 Md. inconsistent with this expression of the Court in 1 Pick. On the contrary, we think the language of the opinion, by fair and logical deduction, entirely consistent therewith. JUDGE BARTOL says: "If he commits an act, not in the discharge of his official duty, he is personally liable, but his sureties cannot be held responsible therefor; it is not within the terms of their contract." Surely it is a just[***10] inference from the above that if he commits a wrongful act in the discharge of his official duty, his sureties are responsible, and it is within the terms of their contract. Again, JUDGE BARTOL refers to the dissenting opinion in People v. Schuyler, 4 Comst. 173, as more satisfactory in its reasoning than the majority opinion in that case by which ex parte Reed, 4 Hill 572, was overruled. He also refers approvingly to the reasoning of the able [*607] opinions rendered in State v. Conover, 28 N.J.L. 224, which are in accord with 54 Md. Let us see then how these opinions thus commended will affect our consideration of the case at bar. In both these cases the question before the Court was precisely the same as in 54 Md. In People v. Schuyler, JUDGE PRATT, who delivered the dissenting opinion, concurred in by two other judges, using this language: "The question therefore in this case is not whether the sheriff has not done some act colore officii for which he may be liable to an action; but the question for our consideration is whether the declaration shows any misconduct in his office, any want of fidelity [***11] to the trust reposed in him as sheriff or any failure in his official duty as such by which the plaintiff has suffered damage. The authorities recognize a principle or rule by which the acts of the sheriff for which his sureties may be held liable, can be distinguished from those acts for which they will not be held liable. The former are termed acts done virtute officii, and the latter colore officii. The distinction is this. Acts done virtute [**204] officii are where they are within the authority of the officer, but in doing them he exercises that authority improperly or abuses the confidence which the law reposes in him; whilst acts done colore officii, are where they are of such a nature that his office gives him no authority to do them. This distinction is as old as the common law, and has been acted upon and recognized in numerous cases . . . It is based upon correct legal principles and is supported by abundance of authority. In the one case, the inquiry relates entirely to the official conduct of the officer, whether he has neglected any duty which the law imposed upon him, or whether in doing any act which the law requires him to do, he has acted[***12] faithfully and honestly; whilst in the other case, his care, or diligence, or faithfulness, is not a subject of inquiry at all, the inquiry being limited exclusively to his power or authority to do the act."

   So in State v. Conover, 28 N.J.L. 224, CHIEF JUDGE GREEN said: "The complaint against the sheriff is, not that he did not perform his duty, nor that he performed it improperly, but that he acted beyond his duty; that he [*608]did an act which neither his writ nor his office authorized him to do, and thereby became liable as a tort-feasor. . . . If, on the other hand, the sheriff had been sued by the defendant in the execution for any abuse in the execution of the writ, the conduct of the sheriff in office would be drawn directly in question, and an absence of official malfeasance or misconduct would have constituted a good defence to the action."

   JUDGE HAINES, who delivered a concurring opinion in 28 N. J. L., says on page 230: "It is a principle long and well established that official acts are those which are done by virtue of the office, such as if properly done, exculpate both the officer and his sureties from responsibility, but which[***13] if neglected, or improperly done, render both liable. If the authority is exceeded, or the duty omitted, an action may be maintained against the officer in his official capacity, and his sureties held responsible. In England no direct authority can be found upon the point, for the reason that the sheriffs there are not required to enter into official bond with sureties, but are required to be of sufficient freehold ability to meet the claims of all parties injured, and are only liable in suits against themselves, or to amercement for neglect of duty."

   So also in Governor v. Hancock, 2 Ala. 728, which holds with 54 Md., JUDGE GOLDTHWAITE said: "We will not say that the sureties of a sheriff are not liable in some cases of malfeasance, but in such we think the malfeasance must include a misfeasance also; as, for instance, if a sheriff should wantonly destroy property levied on by him, this would be a tortious act, but there would likewise be a tortious omission of his duty which is to keep the property safely." It was upon this view that it was held in Witkowski v. Hern, 82 Cal. 604, 23 P. 132, that though a constable seized plaintiff's[***14] property under a proper writ, yet if he so kept the property while in his custody as that by his carelessness or negligence it was damaged, he and his sureties were responsible for the non performance of his official duty.

   We think it is clear upon principle from this review [*609] of the authorities that the plaintiff's action in the case at bar is maintainable and that the decision in 54 Md. was not designed to be, and cannot be, invoked to defeat his recovery. The act which the sheriff did was the act of levying upon the peach crop as a chattel subject to execution. This act his office authorized, and his writ commanded. It was consequently an official act, for which he and his sureties were liable. It was argued in behalf of the appellees that a growing crop of peaches is not the subject of a levy under an execution, and that in levying thereon the sheriff was a trespasser, and the case was thus brought within the principle ruled in 54 Md., but this cannot avail the defendants. It was expressly held in Purner v. Piercy, 40 Md. 212, "that a growing crop of peaches, or other fruit requiring periodical expense, industry and attention in its yield and production, [***15] may be well classed as fructus industriales and not subject to the fourth section of the Statute of Frauds"; and it is settled upon satisfactory authority that fructus industriales may be taken in execution and sold. The trees or plants are fructus naturales, the fruits are fructus industriales. 8 Amer. & Eng. Ency. of Law, 313 (2nd Edition); Penhallow v. Dwight, 7 Mass. 34; Stambaugh v. Yeates, 2 Rawle 161; Craddock v. Riddlesbarger, 2 Dana 205.

    It was also contended that even if subject to levy, no valid levy was in fact made; but in levying upon growing crops, manual possession, concurrent with the making of the levy is impossible, and it is held that proper notification to the party and endorsement on the levy is all that is necessary. 8 Amer. & Eng. Ency. of Law, 310; Barr v. Cannon, 69 Iowa 20, 28 N.W. 413.

   We think the Circuit Court was in error in granting the defendants' prayer, and for this error the judgment must be reversed and the cause remanded for a new trial.

   Judgment reversed with costs above and below, and cause remanded for a new trial. 

VIRGINIA RUSSELL vs. ROBERT L. WERNTZ ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
88 Md. 210; 44 A. 219; 1898 Md. LEXIS 250

 June  29, 1898, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (JONES, J.) dismissing the appellant's bill for specific performance of a contract of purchase made by the appellee.

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  widow, testator, daughters, marriage, life estate, reversion, power to dispose, residue, power of disposition, remainder, bequeath, devise, dispose, annexed, remaining property, confer, language employed, primary object, widowhood, equally divided, conferring, harmonize, disposal, gathered, defeat, tenant, realty, decree, waste, mixed

COUNSEL: James M. Munroe, for the appellant.
 
James R. Brashears, for the appellee.

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

OPINIONBY: PAGE

OPINION: [**219] [*211] PAGE, J., delivered the opinion of the Court.

   Jesse Russell, being seized and possessed of real and personal property, died in the year 1894. He left a will, in which, after providing for debts and funeral expenses, he makes "distribution" of his estate by two paragraphs: first, he bequeaths to his son George W. Russell, the sum of $800, to be paid out of a certain policy of life insurance; the second is as follows:

   "Item second. I bequeath unto my present wife, Virginia Russell, all the residue of my estate, including all my property, both real, personal or mixed, to have and to hold and dispose off (sic) as she may see fit, while she remains single, and at her death or marriage, the remaining property is to be equally divided between my two daughters,[***2] Grace A. Russell and Jessie V. Russell." His wife was named executrix and acted as such. Grace Russell, having intermarried with Joseph Schmidt, died childless, a few days before her father. George, a child by his first marriage, and Jessie V. survived him, and are yet living.

   The appellees contend that Virginia Russell, under the second clause of the will, acquired only a life estate in the realty, with power to dispose of that interest and no more; and [**220] that the daughters took a vested interest in the remainder. The contention of the appellant is, that the power of disposition being without limitation, the widow took a fee; or, if it be held she acquired only [*212] a life estate, the full exercise of the power conferred on her would be effectual to convey a fee simple title in the reversion.

   It is needless for us to say that in determining these questions, as in all other cases where the construction of wills is involved, the primary object is to discover the intention of the testator, and give it effect, if possible. If the language employed by the testator be such as to render it impossible, with any degree of precision, to fix what that intention is, the doubt[***3] must be resolved by invoking the aid of well-settled rules of construction.  Tayloe v. Mosher, 29 Md. 443. So far, as to what estate he intended his widow to take, the words of the will leave no room for doubt. As was said by this Court in Clark v. Tennison, 33 Md. 85, where the devise was to the wife, "so long as she remains my widow; at her death to be, etc.", "the plain intent of the testator was that the widow should have the property no longer than widowhood. It is equally clear that the limitation over is in favor of the testator's children, who were the primary objects of his bounty after giving her the preceding estate." He failed in that case to limit it over to them after her marriage, but the court held it to be necessary to carry out the plain intent, to construe the will as giving the estate to the children on the termination of the wife's estate, whether that be by her marriage or her death. In the case at bar, the limitation is in express words: "at her death or marriage, etc.", the property is to go to the two daughters.

   If the words just referred to were all the devise contained, there could be no question as to the proper[***4] construction of the paragraph. But there are others; the language is: "I bequeath--all the residue of my estate, real, personal or mixed, to have and to hold and dispose of as she may see fit, while she remains single, and at her death or marriage, etc." These words are very broad, but they are not clear; do they confer upon the widow a power to dispose of the property for the period she should remain single; or a power while she remained single to dispose of the whole estate, including the [*213] reversion? The language employed may imply the one or the other, and that being so, we must inquire what were the purposes the testator had in mind when he wrote his will, and from his language, when considered in the light of these purposes, ascertain his intention; for after all upon his intention, legally and properly ascertained, must depend the scope and extent of the power.

   At the time of making his will the testator had three children, one a son by a former marriage, the others, two daughters by the last marriage. One of the daughters dies a short while before her father, leaving a husband but no children. Her death caused him to make no alteration in his will. There [***5]is an evident purpose on the part of the testator to remember and provide for each member of his family. By the first paragraph he bequeaths to his son a sum of money, and explains why he had not left him more of his estate. The entire residue he devotes to the uses of his wife and her two children. As to them, his primary object was to provide for the wife during her life, provided she remained his widow. He intended she should enjoy the estate as long as she remained his widow. It was not a large estate and he must have thought that all the residue would be required to make her comfortable, and to enable her to supply the needs of the daughters. It also seems clear to us that he desired his children to take the estate after the interest of the widow had terminated by marriage or death. It was part of the "distribution" he intended to make of his estate; or in other words, part of his scheme of division, which was, a separate bequest for the son, a life estate or during widowhood in the residue for the widow, with remainder to the daughters. It was a disposition that commends itself as wise and proper under the circumstances. Can it be entertained for an instant that he intended to[***6] modify the whole plan, by conferring upon his widow a power of disposition of the reversion whereby she could defeat the rights of her daughters, appropriate the estate to her own uses, bequeath or devise it at will, and defy the wish [*214] of her husband, that she should retain the estate only so long as she remained unmarried? The possession of such a power would be inconsistent with and would defeat every intent expressed in or to be gathered from the will. No such interpretation should be placed upon words, which, as we have seen, are ambiguous. All the clauses and every word in a will should receive such a construction as that, while effect is given to each, they are all made to harmonize with each other, so as to reach the general plan or scope of the entire will. If, however, the clause in question be construed so as to confer on the widow only the right to dispose of the estate to the extent of the interest she takes in the estate, it will harmonize with all the provisions of the will and all the intents to be gathered therefrom. But it is contended that the words "the remaining property" should be regarded as indicating that the testator intended that the appellant should[***7] have the right to diminish the corpus of the estate. But we do not accept this view. The will, evidently, was not drawn by one accustomed to the preparation of such instruments. The words employed were not chosen with regard to technical meaning. The property that passed under the second item, comprehended both realty and personalty. All of it was liable to waste or decay; some portions of it doubtless [**221] would deteriorate by its use, and other articles were of such nature that their use was their consumption. In view of the general and particular intents of the will, it is not straining the construction of these words to regard them as indicating the intention of the testator that his widow should not be accountable for such loss or waste as might result from her personal enjoyment of the property.

   The construction we have thus placed upon the terms of this will is in line with all the authorities. The counsel for the appellant has relied strongly on the cases of Benesch v. Clarke, 49 Md. 504, and Foos v. Scarf, 55 Md. 301. The propositions announced in those cases we do not question. They affirm that when an estate is given[***8] generally, with power of disposition, the devisee [*215]or legatee takes a fee; but when the property is given for life expressly, and there be annexed "a power of disposition of the reversion," the first taker takes but a life estate with the power annexed. These cases differ from the case at bar in the fact that here there has been given no power to dispose of the reversion, but only a power to dispose of the interest that the widow took under the will; that is to say, of the life estate. The principle we now apply is, that where a testator has given in express terms an estate for life with a power of disposition annexed, with remainder over, the words conferring the power, though absolute, may be qualified by restraining words connected with and explaining them, so as to confer only such absolute disposal as a tenant for life may make. In such case a power to dispose of the reversion and thereby deprive the remainder man of his interest, would be wholly inconsistent with the intent to grant an estate not to endure beyond life, and it should be so held, unless there is a clear purpose manifested in the will, that the power shall extend to the disposal of the reversion.[***9] These principles are maintained in the cases cited by this Court in Benesch's case (supra), pages 504, 505.  Smith v. Bell, 6 Peters 78; Brant v. Va. Coal and Iron Co., 93 U.S. 326, 23 L. Ed. 927; Bradley v. Westcott, 13 Ves. 450; Lewis v. Palmer, 46 Conn. 454.

   It follows from what we have said that the decree must be affirmed.

   Decree affirmed with costs. 

GEORGE WELLS vs. FRANK A. MUNROE AND OTHERS, SUPERVISORS OFELECTIONS, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
86 Md. 443; 38 A. 987; 1897 Md. LEXIS 138

 October  20, 1897, Decided  
 December  1, 1897, Opinion Filed

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.), dismissing appellant's petition for a mandamus.

DISPOSITION: Order reversed.

CORE TERMS:  election, vacancy, clerk, elected, ballot, nomination, voters, supervisors, candidate, filled, duty, mandamus, successor, new election, supervisors of election, next general election, certificate, duly elected, contested, nominated, qualification, appointment, temporarily, convention, conferred, appointed, full term, commissioned, designated, manifest

COUNSEL: Dennis Claude and Robert Moss, for the appellant.
 
John Prentiss Poe and James M. Munroe, for the appellees.
 
The general result of the adjudications is:
 
1. That the appellee, by virtue of his commission, is entitled to his office for six years and until his successor shall be duly elected and qualified.
 
2nd. That in case of a contested election for Clerk of a Circuit Court, the House of Delegates has no power to do more than to decide the contest and to order a new election within thirty days from such decision, if it shall determine that the person returned elected and commissioned by the Governor was not duly elected.
 
3rd. That its action declaring the incumbent not duly elected and ordering a special election does not oust the actual incumbent or create a vacancy, but leaves the incumbent in office under his commission until such special election shall be held.
 
4. That the failure to hold such election does not create a vacancy, but renders the action of the House of Delegates as completely inoperative[***2] as if it had not ordered such special election, and necessarily, therefore, does not in any degree or to any extent affect or impair the appellees' title to his office under his commission, which stands as if no contest had been made.
 
5. That the mode provided by the Constitution in such a case as this, viz., for the holding of a special election within a designated time necessarily negatives the right or power to hold a general election at a different time for the filling of a supposed vacancy, which does not exist.
 
6. That accordingly no election can lawfully be held on November 2nd, proximo, in Anne Arundel County, for the office of the Clerk of the Circuit Court, and consequently, that the appellees' refusal to cause the name of the appellant to be printed on the official ballot was correct. Thomas v. Owens, 4 Md. 225; Cantwell v. Owens, 14 Md. 215; Magruder v. Swann, 25 Md. 215; Brooke v. Widdicombe, 39 Md. 402; Groome v. Gwinn, 43 Md. 624; Robb v. Carter, 65 Md. 335; Ijams v. Duvall, 85 Md. 252; Archer v. State, 74 Md. 427; Ash v. McVey, 85 Md. 119.

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

OPINIONBY: PAGE

OPINION: [**987] [***3] [*445] PAGE, J., delivered the opinion of the Court.

   This proceeding was instituted for the purpose of obtaining a mandamus directing the Supervisors of Anne Arundel County to receive the certificate of the nomination of the appellant for Clerk of the Circuit Court and to place his name as a candidate for that office on the official ballot, to be voted at the election to be held in Nov., 1897. In view of the urgency of the case, we have already rendered our judgment, reversing the order below, and we will now proceed to give the reason for our action. There is no dispute as to the facts of the case, as stated in the petition. They may briefly be stated as follows: At the general election in Nov., 1895, Dr. George Wells was duly returned elected Clerk of the [**988] Circuit Court for Anne Arundel County for the full term of six years, and was duly commissioned by the Governor, and bonded and qualified and entered upon the discharge of the duties of the office and has so continued to [*446] the present time. His election, however, was contested by Dr. Washington G. Tuck, and on the 24th of March, the House of Delegates passed the following resolutions:

   "Resolved by[***4] the House of Delegates of Maryland, That at an election held on the 5th day of November, 1895, for Clerk of the Circuit Court for Anne Arundel County, George Wells was not duly and legally elected Clerk of the Circuit Court for Anne Arundel County."

   "Resolved by the House of Delegates of Maryland, That an election for Clerk of the Circuit Court for Anne Arundel County be and the same is hereby ordered to be held on the 21st day of April, 1896, in pursuance of section twelve of Article four, of the Constitution."

   The special election thus directed, however, could not be held for the reasons stated by this Court in the case of Munroe and Others v. Wells, 83 Md. 505, 35 A. 142. In August, the petitioner was nominated for the office of the Clerk of Anne Arundel County, by a convention of the Democratic party, and a certificate thereof in due form of law was filed with the Supervisors of Election of Anne Arundel County. The Supervisors, however, refused to place his name upon the official ballot; the reason therefor, being, as appears from their answer to the petition, that there was no vacancy in the said office.

   It is contended that these facts do not present a[***5] case for a mandamus, because the power of the Supervisors with respect to the placing of names upon the judicial ballot is discretionary. The rule in regard to the powers of the Court to issue mandamus is too well settled to require the citation of authority. In Green v. Purnell, 12 Md. 329, it is stated as follows: "It cannot issue in a case where discretion and judgment are to be exercised by the officer, and it can only be granted when the act required to be done is merely ministerial, and the relator without adequate remedy."

   Now, what was the duty of the Supervisors, in respect to a case like this? By the 36th sec. of the Act of 1896, ch. 202, any convention and primary meeting held for the purpose [*447] of making nominations to public office "may nominate candidates for public office, to be filled by election within the State." All nominations so made, shall be certified as provided by the 37th section; and by the 39th section such certificates shall be filed for the nomination of candidates for Congress, State offices, and offices of any division greater than a county, with the Secretary of State, and certificates of nomination for all other[***6] offices, with the Supervisors of Election of the respective counties or of the city of Baltimore, as the case may be. Not less than eighteen days before the election the Secretary of the State must certify to the Supervisors of Election of each county, or of the city of Baltimore, within which any of the voters may by law vote for candidates for such office, the name and description of each person nominated for such office, as specified in the certificate of nomination filed with the Secretary of State, sec. 43; and eight days before the election, publish "the nominations to office, which have been filed with or certified to them under the provisions of this Article." By the 49th section it is made their duty "to cause to be printed on the ballot the name of every candidate whose name has been certified to or filed with the proper officers, in the manner herein provided for;" and by the 50th all ballots shall contain the name of every candidate whose nomination for any office specified in the ballot has been "certified to and filed" according to the provisions of the Article. There are other provisions relating to the preparation of the official ballot, but nothing therein contained, [***7] in any wise, varies the clear intent of the Legislature to be gathered from those we have cited. It is manifest it was not the purpose to invest the Supervisors with any discretion as to what names should be placed upon the official ballot. It will not for a moment be contended that the Supervisors can reject any of the nominations certified to them by the Secretary of State, under the forty-third section, because in their opinion there were no vacancies in the offices for which such nominations were made. Nor is there any authority to [*448] be found anywhere in the statute investing them with power to act differently in respect to nominations certified from a convention or a primary meeting. Where the nominations come to the Supervisors, from the proper sources, certified in the proper manner, as the law provides, it is their plain duty to place the names certified to on the ballots; and all ballots shall contain every such name.

    The Court below, therefore, had full jurisdiction to entertain this proceeding. But for all that, it will not do a nugatory Act, but will refuse the writ if it be manifest that it can have no beneficial effect. State ex rel. Henderson v. Taylor, 59 Md. 338.[***8] If there is no vacancy in the office of Clerk of the Circuit Court for Anne Arundel County and no such officer was legally to be elected at the election to be held in the month of November, 1897, the Court will not direct the name of a nominee for that position to be placed on the ballot. Worman v. Hagan, 78 Md. 152, 27 A. 616.

   The next question that is presented, therefore, is, was there such a vacancy in that office as must be filled by the voters of the county at the approaching election? The counsel for the appellees insist that the decision of this Court in the case of Ijams v. Duvall, recently decided (85 Md. 252), is conclusive of this controversy. But we cannot concur in this view. In that case, as in this, Duvall had been duly commissioned by the Governor and had entered upon the discharge of his duties. His election was contested by [**989] Ijams; and the House of Delegates decided that Duvall had not been duly elected, and ordered a new election, which could not be and was not held. Thereupon the Governor, regarding the office as vacant within the meaning of sec. 40 of Article 4 of the Constitution, appointed and issued a commission[***9] to Ijams, who on the refusal of Duvall to surrender the office to him, applied for a mandamus--so that the question in that case was whether there was such a vacancy in the office as enabled the Governor to appoint some other person to fill it. In its decision the Court discusses the nature of the "vacancy" referred to in [*449] the section 40 of Art. 4, and holds it to be a vacancy occurring after an election by the people "created by death, resignation, or by some other cause, of one or more of the three men who had been chosen by the qualified voters." What was decided by that case was, that the Governor had no power to appoint a successor to Duvall, because there was no vacancy within the meaning of the only section of the Constitution that conferred upon him the authority to make such appointment.

   In the case at bar the question is, is there such a vacancy in the office as must be filled by the election of the people? Upon being returned elected Dr. Wells received his commission from the Governor, and duly qualified and entered on the discharge of his duties; and these facts alone conferred upon him a valid title to the office. Brooke v. Widdicombe, 39 Md. 386.[***10] This title, however, is not that conferred by the Constitution on one who has been elected by a plurality of the qualified voters, under the 25th sec. of Art. 4 of the Constitution. To the House of Delegates, under sec. 12, Art. 4, is confided the power and authority to decide upon the election and qualification of candidates for this office, and its decision, that the appellant "was not duly and legally elected Clerk, etc.," at the election of November, 1895, must be taken to be decisive. Dr. Wells, therefore, was not entitled under the Governor's commission to a term of six years, which under section 25 can only begin "from the time of his election." Whatever rights he acquired to the office were derived solely from the Governor's commission and his qualification. Jump v. Spence, 28 Md. 1; Brooke v. Widdicombe (supra).

   The commission could not confer upon him the rights of an officer elected by the voters; it in fact entitled him after qualifying, to hold the office only temporarily as a locum tenens, until his successor was properly and legally appointed and qualified. Robb v. Carter, 65 Md. 321, 4 A. 282.

    How[***11] shall such successor be chosen in accordance with the provision of the Constitution? Under the circumstances [*450] of this case it is not within the power of the Judges to appoint; the "vacancy" contemplated by the 25th sec. of Art. 4 being one that occurs after an election by the voters. The reasoning stated in Ijams v. Duvall applies here, and is decisive of the point.

   The general intent of the Constitution when all its provisions applicable to the subject are regarded, is manifest, that Clerks of all Courts in the State shall be elected by the people. All the sections relating to the terms of their offices provide for a term beginning from the "time of his election." By sec. 17, Art. 4, the Clerk of the Court of Appeals holds his office "for the term of six years from the time of his election." The same language is employed in sec. 37, Art. 4, relating to Clerks of the Courts of Baltimore City; and by sec. 25, Art. 4, Clerks of the Circuit Court for the counties hold their offices for six years from the time of their election. Moreover, the policy of the Constitution is clear, that in cases of vacancy where the Judges have power to fill the same, their appointments[***12] hold only until the next general election for delegates to the General Assembly, "when a successor shall be elected for the term of six years." So, if there be a contest and the judgment be against the one who has the commission of the Governor, the House of Delegates is to refer the matter again to the voters by ordering a "new election within thirty days." It is therefore clearly contrary to the spirit of the Constitution that one who has been declared not to have been duly elected by the House of Delegates, the Judges designated by the Constitution to settle the matter, shall yet hold the office for the full term of six years, when the legal right to such a term can only accrue in consequence of an election by the legally qualified voters. The last clause of sec. 15, Art. 4, "if the judgment shall be against the one who has been returned elected or the one who has been commissioned by the Governor, the House of Delegates shall order a new election within thirty days," was inserted for the purpose of securing a reference of the matter to the people at an earlier [*451] period than that of the next general election; in fact, for the purpose of so referring it at the earliest[***13] day practicable.

   Under the present Constitution the House has no power to decide who is elected and entitled to the term, differing in that respect from the preceding Constitution. The duty of the House of Delegates is now only to judge of the election and qualification of the candidates and to order a new election, if the decision be against the one who was returned elected, thus emphasizing the general intent, that all Clerks shall hold their offices only by an election by the people, except in cases where necessity requires a temporary appointment, until the will of the people can be expressed. If these views be correct, while there was no vacancy in this office, Dr. Wells holding it temporarily under the commission of the Governor until his successor was duly appointed and qualified, no one having been duly elected, there is no one entitled to the term provided by the sec. 25 of Art. 4. But this section also provides "there shall be a Clerk of the Circuit [**990] Court for each county, who shall be elected by a plurality of the qualified voters of said county and shall hold his office for six years from the time of his election, and until his successor is elected and qualified, [***14] etc."

   We are therefore of the opinion that by the spirit and intent of the Constitution there is such a vacancy in the office, as to make it necessary and proper than an election for the office shall be held at the earliest possible moment. If it could not be held at the time the House of Delegates appointed, there are no reasons why it cannot be held at the general election on the day designated by sec. 7 of Art. 15. If such election be held, it is obvious the person elected would not take a fragment of a term. Dr. Wells, as we have said, has not been holding for any part of the term designated by sec. 25 of Art. 4, but temporarily only, until a term should legally begin. The person elected therefore would be entitled to the full term of six years from [*452] the time of his election. For these reasons the order was reversed.

   Order reversed. 

SAMUEL JONES ET AL vs. FRANK A. MONROE ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
86 Md. 333; 37 A. 964; 1897 Md. LEXIS 111

 June  24, 1897, Decided

   PRIOR HISTORY:  [***1] Appeal from a pro forma order of the Circuit Court for  Anne Arundel  County dismissing a petition for a writ of mandamus to command the supervisors of election of said County, and other election officials appointed under the general election law of 1896, to provide for a municipal election in the city of Annapolis.

DISPOSITION: Order affirmed with costs.

CORE TERMS:  election, municipal, clerks, appointed, repealed, supervisors of election, regulated, charter, duties, Public Local Laws, municipal election, general election, conducting, appoint, conform

COUNSEL: The cause was submitted to the Full Bench on briefs by Dennis Claude for the appellants and James M. Munroe for the appellees.

JUDGES: PAGE, J.

OPINIONBY: PAGE

OPINION: [**964] [*333] PAGE, J., delivered the opinion of the Court.

   The petition in this case was filed by persons who are candidates for certain positions in the municipal government of Annapolis. It alleges that the election will take place on the twelfth day of July next, but that the supervisors of election for Anne Arundel County, and other election officials who served as judges and clerks of election at the last general election, refuse to take "any action in regard to the conduct of said election, because they are not satisfied with regard to the extent of their authority over the same." The petitioners pray for a writ of mandamus, requiring the defendants to proceed to do[***2] such things as may be required [*334] under the Act of 1896, ch. 202, to conduct the election according to the provisions of that Act.

   The answer of the defendants admits the facts set forth in petition, but allege that the municipal election of the city of Annapolis under the provisions of sec. 13 of Act of 1896, ch. 202, are excepted from the jurisdiction and control of the supervisors of election and of the judges and clerks of election appointed by them, and are controlled by the provisions of chapter 533 of Acts of 1894.

   The only question in the case, therefore, is, whether the Act of 1894, chapter 533, has been repealed by the Act of 1896, ch. 202. The former Act provides that sec. 160 of Article 33 of the Code as enacted by chapter 538 of the Act of 1890, and the provisions of new section 166 of the same Article, as enacted by chapter 701 of the Acts of 1892, shall not apply to municipal elections in the city of Annapolis. It further provides that the corporation shall [**965] appoint three persons to be judges of "its municipal elections, any two of whom shall have power to hold such election," and shall also appoint the necessary clerks. The judges and clerks so[***3] appointed are to qualify before the Mayor or any justice of the peace of the city, and in the execution of their duties and in the manner of conducting elections, they are to conform "in every respect to the provisions of the Code," &c. The city of Annapolis is to pay all the expenses of the election and provide ballots and all other materials and machinery necessary for the holding of said municipal elections. And, it is further provided, "the supervisors of election in Anne Arundel County are relieved from all duties and responsibilities in connection with said municipal elections."

   It is contended this Act is repealed by the Act of 1896, ch. 202. The Act of 1896, it is true, devised an entirely new scheme for all elections in the State of Maryland, and unless there is something in it effective to retain the Act of 1894, above referred to, the latter Act must be repealed, inasmuch as by the third section of the Act of 1896, ch. [*335] 202, it is provided that that Act shall take effect from the date of its passage, "and all Public General Laws or Public Local Laws or parts thereof which are inconsistent" with its provisions "are hereby repealed."

   The thirteenth section of[***4] the Act of 1896, however, provides, "that in any incorporated city, or town, in this State (other than the city of Baltimore), in which the municipal or charter elections thereof are now regulated by the Public Local Laws of the State, the conduct of such municipal or charter elections shall continue to be so regulated as heretofore and such Local Law shall continue in force therein." Without extending this opinion we content ourselves with saying, we think this section leaves unrepealed and in full force the Act of 1894, ch. 533. That Act, as has been stated, requires that the judges of election shall be appointed by the corporation of the city of Annapolis and not by the supervisors; and also the necessary clerks. In the execution of their duties, and in the manner of conducting the elections, the Act of 1896, ch. 202, must control them, so that they conform as far as possible in every respect to its provisions, and they are also subject to the same penalties as other judges and clerks of election in the State.

   The order of the Court below must therefore be affirmed.

   Order affirmed with costs. 

LAURA A. M. BAKER, ADMINISTRATRIX OF HENRY HEDRICH, vs. ANNAHEDRICH. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 645; 37 A. 363; 1897 Md. LEXIS 76

 April  30, 1897, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (JONES and REVELL, JJ.), dismissing the bill of complaint. The deposit in the Eutaw Savings Bank, referred to in the opinion of the Court, amounted to $960.28, and the amount of the deposit in the Savings Bank of Baltimore was $884.53. The certificate of Baltimore City stock was for the sum of $1,500.
 
The answer of the defendant (appellee) set forth that the above mentioned securities "became the property of this respondent during her long life of laborious industry and frugality, and as the result of the savings of her own labor, skill and industry during more than fifty years of the most patient toil, self-denial and saving economy; that this respondent is now over sixty-eight years of age, and has always more than earned her support since she was fifteen years of age; that she went to California with her first husband when she was quite young, and after his death, which occurred soon thereafter, this respondent became a professional nurse in the city of San Francisco, where she found quite constant and remunerative employment, at a time and in a place where even the most ordinary labor received wages which[***2] would be considered fabulous now and here; that this respondent was a mid-wife, and also a general nurse for well-to-do people in all kinds of sickness, and even nursed small-pox patients; that during the intervals of such employments she readily found work in a French laundry in San Francisco, and being of a frugal disposition, this respondent had saved and had to her credit in a savings bank in San Francisco over seven hundred dollars ($700) when she married her late husband, Harry Hedrich, in San Francisco, in July, 1864; that shortly after her marriage to said intestate, they determined to come to the Eastern States, and did so; but before leaving California this respondent drew out of bank her aforesaid savings of over seven hundred dollars, and received the same in gold coin, which was then the circulating medium in California, although specie payments had been suspended in most parts of the United States in consequence of the state of affairs produced by the civil war; that after coming to the Eastern States this respondent sold her gold at a very considerable premium and invested her money in United States six per cent. bonds, known as "5-20-5," which were then very low, and[***3] which she continued to hold until they were called in, redeemed by the government; and that she eventually, through her said husband, invested a large part of that very money and of its accumulated interest in the purchase of the aforesaid Baltimore City 3.65-100 per cent. loan certificate for fifteen hundred dollars.
 
"That after her husband and herself came to the Eastern States as aforesaid, her husband bought about ten acres of poor land in the lower portion of  Anne   Arundel  County, in the year 1865, and there for thirty years her husband and herself lived an humble but happy life of industry and frugality, and there he died in the month of March of this present year. That this respondent and her late husband are both Germans and not afraid of work of any sort; and besides doing all the household work, such as cooking, washing and ironing for herself and husband, and for the complainant and her young brother, who were members of this respondent's family, and the children of the intestate's only sister and heir at law; this respondent constantly assisted her husband as a farmhand in working their little farm, and in sowing, planting, cultivating, gathering and preparing for sale[***4] the crops raised on the same, which were chiefly vegetables and what is generally known as truck; that in putting up the various buildings on said property this respondent also laboriously and patiently assisted and worked with her husband, who was himself a skilled mechanic; and that her husband and herself, with their own hands and physical labor, erected almost all of the buildings and other improvements that were put upon their little farm; that many and many a day after such work upon said farm and upon said buildings, this respondent, although healthy and strong for a woman, has returned to her home and thrown herself flat upon the floor, completely exhausted by the severe labor which she had cheerfully undergone; that her husband and herself kept no servants in the house and rarely hired any help upon the farm, until within the past ten years, when her husband's health became delicate and he was unable to do any work out of doors in winter, and very little even in the summer; that for the past six years her husband has been almost entirely incapacitated for work of any kind from infirm health.
 
"That shortly after going to live upon said farm, this respondent began raising [***5]poultry and eggs for market, and purchased cows and began making butter for sale; that they purchased bees, her husband making the hives for them, at which he was very skillful, and sold large quantities of honey and of bees-wax; that they always raised and cured more hog meat than they needed for their own use, and such excess this respondent disposed of; that this respondent, during all those years that she and her husband lived on that place, has always attended to the poultry yard and prepared poultry and eggs for market; has always attended to the cows, made the butter and prepared it for market; has prepared the honey and wax for market, and has attended to the hogs and the curing of their meat for market; that those products of the poultry-yard, the dairy, the apiary and the meat-house were the results of this respondent's skill and labor, and in recognition of this fact, and of the great help this respondent has always rendered said intestate upon said farm, and by a distinct understanding and agreement between this respondent and her said husband, from the time when she began, as aforesaid, to attend to such matters, all the money earned and received from the sale of said[***6] products has always been the proper money of this respondent and that of no one else, and so always admitted to be by her said husband; that this respondent has always been successful in raising such products, and received from them far more than the amount represented by the said securities, certificates, books of deposit and other property, now as aforesaid claimed and owned by her; which excess she freely spent, as occasion required, upon the improvement of said real estate and in the support and maintenance of her husband and her household, and in the conduct of said farm, particularly during the past six years when, as aforesaid, her husband's bodily infirmities almost entirely incapacitated him for work; that as illustrating the success with which this respondent raised and marketed the aforesaid products of her own skill, industry and labor, this respondent avers that she frequently sent to market butter, made by her, in lots as large as forty pounds at a time; that she sent eggs to market in lots of fifty dozen at a time, and chickens in lots of as many as four dozen at a time; that she has sold as many as fifty turkeys in one season, raised by her and prepared for market by[***7] her own hands; that she has sold bees-wax in five-dollar lots prepared for market by herself; that she has sold in one season bacon, raised, cured and prepared by her, and lard to the amount of over nine hundred pounds; that she has extracted, prepared and sent to market in one year, honey to the amount of forty-four gallons, which she sold for one dollar and seventy-five cents per gallon, and took to Baltimore herself and sold herself, from house to house; and that besides all this, she frequently dried and prepared, sent to market dried apples and peaches by the barrel, and large quantities of cherries and other fruits, dried and fresh, gathered and prepared for market by her own hands.
 
"That during all these years of unremitting toil this respondent was denying herself all unnecessary pleasures and expenditures, stinting herself in food and in clothing, and in what many would regard as the common conveniences and necessaries of life, so that she might have a support and provision for old age; that the only respect in which this respondent and her late husband were extravagant was in their kindness, generosity and liberality to the complainant in this case and to her brother, [***8] both of whom they raised under their own roof, clothed, fed, educated and tenderly cared for from early childhood to mature age; and for whom this respondent cheerfully cooked, washed and toiled for many years; and this respondent avers, that no more wicked scheme of ingratitude and baseness can be imagined than the whole conduct of the complainant in this case since the death of said intestate. * *
 
"That becoming convinced that it was unwise to keep her savings in their house, she began in the year 1877 to make deposits in the Savings Bank of Baltimore by a deposit of seventy-five dollars on the 24th of March of that year, and continued to make deposits in that bank from time to time, as her husband or herself would happen to be in Baltimore City; that she made her first deposit in the Eutaw Savings Bank of Baltimore on the 13th of May, 1881, by a deposit of fifty dollars, and continued to make deposits of such amounts in that bank from time to time, as her husband or herself would happen to be in the said city; that these moneys so deposited were her own moneys, the fruit and result of her own labor, skill and industry, and to some extent, the income or interest of her other[***9] investments before mentioned in United States 5-20 bonds, and of her Baltimore City 3 1/2 per cent. stock aforesaid; that said moneys were in her own possession before taken to Baltimore and so deposited, and when taken to Baltimore by her husband for such deposit, were entrusted by her to her husband for that purpose and as her agent; that the pass-books aforesaid were her own and were always kept by her, and only were in the possession of her husband when the same were being taken to Baltimore by him as her agent for the purpose of making deposits, or having accrued interest and dividends entered thereon, and on three occasions for the purpose of drawing out a portion of her money so deposited."

DISPOSITION: Decree affirmed with costs to the appellee.
 
CORE TERMS:  survivor, deposit, belonged, belong, daughter, opened, gift, deposited, stock, inter vivos, deceased, married woman, grandchildren, grandmother, declaration, afterwards, bank-book, perfected, invested, butter, eggs, required to pay, next of kin, own benefit, earnings, administratrix, administrator, certificate, intestate, selling

COUNSEL: James M. Munroe (with whom was Frank H. Stockett, Jr., on the brief), for the appellant.
 
1. There are three aspects in which the facts of this case may be considered: (A). Was this property Henry Hedrick's, and did he attempt to give it to his wife by gift inter vivos? (B). Was this property Henry Hedrick's, and did he attempt to give it to his wife by a gift donatio causa mortis? (C). Was this property the sole and separate property[***10] of Anna Hedrick?
 
(A). This was not a gift inter vivos. Because there was no delivery to the donee of the instruments or documents which were the evidences of the subsisting obligations, so as to vest the donee with an equitable title to the funds they represented, and to divest the donor of all present control and dominion over them, absolutely and irrevocably. Basket v. Hassell, 107 U.S. 614; Pennington v. Gittings, 2 G. & J. 123, and notes.
 
(B). This was not a gift donatio causa mortis: (1). Because it was not a gift made with a view to the donor's death. (2). Because it was not a gift upon a condition, express or implied, that it should take effect only on the death of the donor by a disorder from which he was then suffering. (3). Because there was no delivery of the subject of the donation. Taylor v. Henry, 48 Md. 550.
 
(C). The property in question was not the sole and separate property of the appellee. How did this property become the property of Mrs. Hedrick, and at what time? We have seen that her husband never gave it to her by any disposition thereof legally sufficient to effect that result. Then how and when did she acquire it? What is the proof of her acquiring[***11] it?
 
It is claimed by the appellee that these investments represent money which she earned in raising poultry, selling butter and eggs, bees-wax and other farm and dairy products, from her husband's farm. The evidence of her ownership is chiefly the testimony of the appellee, supplemented by the testimony of several witnesses, that she sold poultry, eggs, butter, &c., and some declarations of the deceased husband in his lifetime, to the effect that the property in question belonged to his wife. (1). As to the answer of the appellee, it is objected by appellant that it cannot be read in evidence, although under oath, because not called for by the plaintiff in her bill under oath. Code, Art. 16, sec. 147. (2). As to the testimony of the appellee, it is objected by appellant that she is not a competent witness. Code, Art. 35, sec. 2; Murray v. Cannon, 41 Md. 466. (3). The earnings of the wife and the proceeds of her labor are the property of the husband, except when earned by her as a licensed female trader, or earned apart from and independently of her husband. Neale v. Hermanns, 65 Md. 474; Poffenberger v. Poffenberger, 72 Md. 324.
 
It is the husband's right that the wife should[***12] work with and for him, and if she does, he is entitled to the fruits of her labor. It is lawful for the wife to engage in labor for her own benefit and independent of her husband, if she choose; but unless she does so, and intends the proceeds for her own separate benefit, the husband is entitled to the profits of her labor. From their relation of husband and wife, she is personally working for him and in his interest, though she has the privilege, if she wishes, to work for herself. Circumstances should show that she had so elected. Poffenberger v. Poffenberger, 72 Md. 324. Now, what are the circumstances in this case which are relied upon by the appellee to show that she had elected to set herself up in an independent business? (a). That she raised and sold poultry, and also sold butter, eggs, bees-wax, &c., from her husband's farm. (b). The declarations of the husband, expressive merely of his opinions as to the legal effect of depositing the money in the savings bank in their joint names, and of investing money in the Jones Falls bond, payable to Henry Hedrick and Anna Hedrick. In Poffenberger's case (72 Md. 325), this Court says of such evidence: "In all this we can see nothing [***13]which comes up to the requirements of the strict rule laid down by this Court in the case just mentioned. (Neale v. Hermanns, 65 Md. 477)."
 
The declarations of the husband, made from time to time, in reference to the ownership of the farm and buildings by himself, and his wife's ownership of the money, though vague and uncertain, might well have been induced by a disposition on his part to appear too poor to lend his money to some of the numerous friends who would have been very glad to have relieved him of the care of it; and his declaration to Dr. Cheston, being in reply to a question as to the necessity of his making a will in order to secure to Mrs. Hedrick an interest in his estate, is nothing more than the declaration of his opinion as to the legal effect of his deposits and investments to secure that end.
 
The determination of the question as to the ownership of the savings bank deposits and of the Jones Falls bond, must depend, therefore, upon the legal effect of making these investments in that form, and it is the contention of the appellant that the legal effect of such investments is to make them assets of Henry Hedrick in the hands of his administratrix. Murray[***14] v. Cannon, 41 Md. 466; Taylor v. Henry, 48 Md. 550; Dougherty v. Moore, 71 Md. 248; Second National Bank v. Wrightson, 63 Md. 81; Metropolitan Sav. Bk. v. Murphy, 82 Md. 320.
 
Can anyone doubt that Mr. Hedrick could have changed the form of this deposit and investment in bond whenever he choose? He made the deposits and purchased the bond, and Mrs. Hedrick was not in any way known in the transaction. If he had done so, could Mrs. Hedrick now sue his administratrix to recover for the wrongful conversion of her money to his own use, or for money had and received by her husband in his lifetime, which ex aequo et bono belonged to her? Most certainly not.
 
J. Wirt Randall (with whom was James R. Brashears on the brief), for the appellee.
 
The wife can acquire property and hold it against her husband and his representatives, with the right to use remedies to secure and protect her title thereto and enjoyment thereof. Code, Art. 45, secs. 1, 4 and 7. The evidence shows that a considerable part of the money represented by the property in dispute comes under that designated in the above cited sec. 1, as "belongiug to a woman at the time of her marriage;" of course as to such property[***15] the appellee's claim is incontrovertible as against the appellant, who claims through the deceased husband, as he always disclaimed any right in it. As to the rest of the money represented in the property in dispute, it makes no difference whether the appellee acquired it in some of the other modes set forth in sec. 1 of Art. 45, i. e., "by purchase, gift, grant," &c., or earned it under section 7 of the same article, "by her skill, industry or personal labor," in either case it is hers, "and the fruits, increase and profits thereof;" the only limitation being that contained in section 1, namely, that "no acquisition of property passing to the wife from the husband after coverture, shall be valid, if the same has been made or granted to her in prejudice of the rights of his subsisting creditors." Trader, &c. v. Lowe, 45 Md. 1, 14.
 
As a matter of fact the money represented by these securities and deposits was partly hers before her marriage, partly "the fruits, increase and profits" of her investments, and partly money earned "by her skill, industry or personal labor," after her marriage.
 
The appellant contended that as to such of it as the appellee earned by her skill, industry[***16] or personal labor, on her husband's farm, she can make no claim, as it was his anyhow under the decisions of this Court in the cases of Neal v. Hermann's, 65 Md. 474; Poffenberger v. Poffenberger, 72 Md. 321, and Manning v. Carruthers, 83 Md. 1. The appellant's argument seemed to be that to earn money, as the Code phrases it, "by her skill, industry or personal labor," a married woman must earn it somewhere else than on property belonging to her husband. It is sufficient answer to say that the Code makes no such limitation, this Court certainly made no such limitation in the cases mentioned, and even if were so, it would make no difference in this case; for if the husband had a right to give the wife his own earnings, provided it was not in prejudice of the rights of his subsisting creditors, it could hardly be contended that he did not have the right to give back to her what she had herself earned; and, if he had the right to give it back to her, after it had vested in him (by reason of the fact that she had earned it on his farm), he certainly had a right to waive or renounce any interest in it, before it was earned and whilst it was being earned; and this is what his repeated declarations, [***17] proved by seven witnesses, show that he did do.
 
Whilst the common law rule was, undoubtedly, that the husband was entitled to the profits of his wife's labor, yet English Courts of Chancery, more than one hundred and sixty years ago, upheld agreements between husband and wife, very similar to the one proved in this case. Slanning et al. v. Style, &c., 3 Peere Williams, 334. In that case, as in this, the husband allowed his wife "to dispose of and make profit of all such butter, eggs, poultry, pigs, fruit and other trivial matters arising from the farm of the husband (over and above what was used in the family) for her own separate use; and it was proved in the cause, that her husband, whenever any person came to buy fowls, pigs, &c., would say, he had nothing to do with these things, which were his wife's; and that he also confessed that having been making a purchase of about one thousand pounds value, and wanting some money, he had been obliged to borrow one hundred pounds of his wife, to make up the purchase money; therefore the widow claimed this one hundred pounds from his estate." The Lord Chancellor decreed "that the widow was well entitled to come in for this one hundred[***18] pounds as a creditor, observing that Courts of Equity have taken notice of and allowed femme coverts to have separate interests by their husband's agreement; and this one hundred pounds being the wife's savings, and here being evidence that the husband agreed thereto, it seemed but a reasonable encouragement to the wife's frugality, and such agreement would be of little avail, were it to determine by the husband's death; that it was the strongest proof of the husband's consent that the wife should have a separate property in the money arising by these savings, in that he had applied to her and prevailed with her to lend him this sum; in which case he did not lay claim to it as his own, but submitted to borrow it as her money. Wherefore, and especially as here was no creditor of the husband to contend with, it was ordered, that the wife should be allowed to come in for this one hundred pounds, as a creditor, before the master; and the Court cited the case of Colmady v. Colmady, where was the like agreement made betwixt husband and wife, that upon the renewal of a lease by the husband, two guineas should be paid by the tenant to the wife, and this was allowed to be her separate money. [***19] " The doctrine of this case was approved in Ashworth v. Outram, L. R. 5 Ch. Div. 923.
 
And aside from the statutory provisions as to femme sole traders, &c., the doctrine of Slanning v. Style has been applied and enforced by the Courts of Equity in this country; they recognized the duality of husband and wife and his promises to her and settlements upon her, if not in fraud of creditors. Moore v. Page, 111 U.S. 117, 118; 2 Story's Equity Juris., §§ 1380, 1386, 1387; Sexton v. Wheaton, 8 Wheaton, 229.
 
If he desert her, or waive his right to her earnings, they are hers, independent of statutes. 9 Amer. & Eng. Ency. Law, 667, 792, 818 and cases cited; Stall v. Fulton, 30 N. J. L. 430; Peterson v. Mulford, 36 N. J. Law, 481, 487.
 
And so it has been repeatedly held in this country that a husband may permit his wife to raise and sell grain, stock and other farm products on his farm, as in this case, and receive the profits of the transactions; and that they are her separate estate as against him and those claiming through him; particularly if the rights of his creditors are not thereby compromised. Bashaw v. Chamberlain, 7 B. Monroe (Ky)., 443; Oglesby and Wife v. Hall, 30 Ga. [***20] 386; Richardson v. Merrill, 32 Vt. 27; Stewart on Husband and Wife, sec. 469, notes 4 and 7; sec. 65, notes 15, 23, 25.
 
Being hers, was it ever appropriated by the husband with her consent, so as to require under our decisions a distinct promise to repay, to support her present claim? We answer, No! There is no evidence whatever of such appropriation; the evidence is that he considered it hers alone; and so stated repeatedly to the witnesses before mentioned, and kept her name on the investments and deposits as earmarks to distinguish them as hers so that she might dispose of them. Gardner v. Merritt, 32 Md. 84. His dealings with her property were as her agent, and as the fittest person to be her agent; his powers as such are to be measured by the scope of the authority conferred; beyond that his acts were invalid. 9 Amer. & Eng. Ency. Law, 837, 838, 839; Myers v. King, 42 Md. 70; Cahill v. Lee, 55 Md. 319, 325.
 
If it could be held that the manner in which the deposit books and the certificate of Baltimore City stock were made out amounted in fact to their being made out in his individual name, still equity would follow them and attach a resulting trust as to them for her[***21] benefit. Ashworth v. Outram, 5 Chan. Div. 923; Hutchins v. Dixon, 11 Md. 30; Chew v. Beall, 13 Md. 348; Gover v. Owings, 16 Md. 91; Keller v. Keller, 45 Md. 269; Futterer v. Kealhofer, Admr., &c., Unreported cases, 81 Md. 16.
 
JUDGES: The cause was argued before MCSHERRY, C. J., BRYAN, FOWLER, BRISCOE, PAGE, ROBERTS and BOYD, JJ.

OPINIONBY: BOYD

OPINION: [**363] [*657] BOYD, J., delivered the opinion of the Court.

   The bill of complaint in this case was filed by the appellant against the appellee to recover certain cash, United States bonds, a certificate of Baltimore City stock, and deposits in the Eutaw Savings Bank and the Savings Bank of Baltimore. The Court below decided in favor of the appellee as to all the items and dismissed the bill. The appellant, [*658] after taking an appeal, filed an agreement wherein it is stated that [**364] the appeal was not intended to apply to the portion of the decree which adjudged the United States bonds to be the property of the appellee, and has made no claim for them in this Court. Nor do we understand her solicitors to contend that the claim for the cash has been established. So far as there seems to be any room for controversy, it is[***22] reduced to the question as to whether the titles to the Baltimore City stock and the amounts in the Savings Banks were in Henry Hedrich, the appellant's intestate, or in the appellee, who is his widow. The certificate of the Baltimore City stock stands in the name of "Henry Hedrich, or Anna Hedrich." The form of entry in the book of the Savings Bank of Baltimore, is "Henry Hedrich and his wife, Anna Hedrich, subject to the order of either or the survivor;" and in the book of the Eutaw Savings Bank "Henry Hedrich, Anna Hedrich, and the survivor of them, subject to the order of either."

   From the view we take of the case it would serve no useful purpose to discuss what is necessary to make a gift inter vivos or a donatio causa mortis, as that could only become material in the event that we found this property originally belonged to Henry Hedrich and not to his wife. The cases in this Court involving the title to deposits in Savings Banks are quite numerous, and whilst there is no conflict between them, the results reached in them have necessarily differed, as the facts in the respective cases presented different questions. For example, in Murray v. Cannon, 41 Md. 466,[***23] the deposit was to the credit of "James Cannon, subject to his order, or to the order of Mary E. Cannon," who was his daughter. It was held that the money belonged to James Cannon, and his daughter only had the power as his agent to draw it out of the bank. At his death the agency ceased, and as the proof in the case was not sufficient to establish a perfected gift of the money, it did not pass to the daughter. The case of Gardner v. Merritt, 32 Md. 78, was relied on as conclusively disposing of [*659] the principal question in the case. There Susanna A. Merritt, the grandmother of the appellants, deposited sundry sums of money in the Savings Bank of Baltimore to their credit in accounts opened in the name of each of them, as a minor, "subject to the order of Susanna A. Merritt, or Susanna Merritt." Susanna was the daughter of Susanna A. Merritt, and after the death of the latter withdrew all the money from the bank and claimed it as belonging to the estate of her mother. The evidence showed that the deposits were made for the benefit of the grandchildren, as Mrs. Merritt herself had stated, and the provision that they were subject to the order of the grandmother[***24] and her daughter was in accordance with the by-laws of the bank. This Court held that the moneys thus deposited were perfected gifts and belonged to the grandchildren. In Taylor v. Henry et al., 48 Md. 550, the appellees' intestate made a deposit in the Eutaw Savings Bank of Baltimore of $1,850.00, as he was about to take a trip for the benefit of his health. The account was opened and the money credited to Joseph Henry. and Mary Henry, his mother, and the survivor of them, subject to the order of either. Sometime afterwards Henry changed the account so as to read, "Joseph Henry, Margaret Taylor and the survivor of them, subject to the order of either." This Court said that "the whole question depends upon the meaning and intention of the deceased in making the deposit in the form adopted, as gathered from the entry in the bank-book, and all the circumstances surrounding the deceased at the time," and held that the words "and the survivor of them" when taken in connection with those which precede, and those which follow in the entry, did not import a gift inter vivos, or a gift causa mortis. In Dougherty v. Moore, 71 Md. 248, 18 A. 35,[***25] the account was originally opened in the name of the husband in 1864 and so continued until February, 1868, when the name of his wife was added and an entry made, "Lawrence McDonald, Sarah McDonald and the survivor, subject to the order of either." McDonald [*660] continued to make deposits and to draw on the account as he saw proper. It was held that it was not a gift inter vivos. In Met. Savings Bank v. Murphy, 82 Md. 314, 33 A. 640, the account was originally in the name of the husband, but was in 1885 changed to himself and wife, and was "subject to the order of either. The balance, at the death of either, to belong to the survivor." He lived three years and during that time he did not draw out any of the money, and did not retain possession and control of it as was done in Dougherty v. Moore. For that reason, and because of the express language of the contract that the balance should belong to the survivor, we held that the bank was right in paying it to the survivor. Under these and other cases that might be cited, if we were to be governed by the language of the entries in the bank-books, without having any other light on the subject, [***26] it might be difficult to sustain the position of the appellee, but this case presents facts altogether different from those in any of the cases above referred to. Aside from the single fact that the husband alone seems to have been present when the accounts were opened, there is nothing in connection with the opening of the accounts to suggest that the husband had any more interest in the money than his wife had. They were opened originally in their joint names, without any legal evidence that the money belonged exclusively to Mr. Hedrich, for there can be no doubt that the testimony of the witnesses produced on behalf of the plaintiff to prove the declaration of the deceased in his own favor, is not competent and cannot be considered by us. But a number of witnesses on the part of the defendant establish the [**365] fact that Mr. Hedrich acknowledged that his wife owned the property in controversy. It is shown that she had been for years selling poultry, butter, eggs and other products on her own account, with the full knowledge and consent of her husband. One of the witnesses said "she produced all that could be produced; from my house I could always see her at work and the people[***27] going there, and indeed I have often remarked to my people that Mrs. Hedrich's was about [*661] like a store, people were going in there buying things continually." Another said that Mr. Hedrich told him that the money for the butter and eggs was his wife's and he put it in the bank with the other money she had there because he had no right to spend it. He told one of them that when he married Mrs. Hedrich she had $700 in bank in California, and when he came to Baltimore he invested it in government bonds. In answer to the inquiry whether he wanted to leave his wife an interest in the farm he told Dr. Cheston, his physician in his last illness, "No, Doctor, I have made no will, and it is not necessary that I should, she has got enough; this is mine, this house and lot are mine, and her money is invested in the name of both of us." There is other testimony in the record which we need not quote, going to show that Mrs. Hedrich was for years before her husband's death actively engaged in carrying on an extensive produce business, and that it was fully understood between her husband and herself, as well as the persons dealing with her, that the profits and earnings from that business[***28] belonged to her and not to her husband. It is true that the earnings of a wife ordinarily belong to the husband, unless there be some agreement or understanding between them to the contrary, but she can undoubtedly engage in labor for her own benefit and independent of her husband if she choose. Neale v. Hermans, 65 Md. 474, 5 A. 424.

   Section 7 of Art. 45 of the Code authorizes a married woman, who by her skill, industry or personal labor earns any money or other property, to hold the same and the fruits, increase and profits thereof, to her sole and separate use, and when the proof shows with sufficient certainty that the money or property in controversy has been thus earned the Court cannot deprive her of it. By the Constitution of this State her property is protected from the debts of her husband, and a Court of Equity should the more readily shield it from the claims of her husband, or of his next of kin. In this case we are not embarrassed by a contest between creditors of the husband on the one side [*662] and his wife or widow on the other, for although the bill was filed by the administratrix, it is not proven or even alleged that there are any creditors[***29] unprovided for. If there had been creditors whose claims could not be paid out of the property in the hands of the administratrix, it could very readily have been shown, as the testimony was not concluded for more than a year after the death of Mr. Hedrich. We do not mean to intimate that the testimony fails to establish the appellee's claim, even if there were unpaid creditors of her husband, but a Court should scrutinize the evidence more carefully before deciding a question of this kind in favor of a wife, as against creditors, than would be required in a case between her and her husband or his next of kin.

   That Mrs. Hedrich, although a married woman, had the power to conduct an independent business cannot now be questioned, and that she did so, we think is thoroughly established by the testimony. She might have thrown more light on all the transactions before us than any other living person could do, but her evidence must be excluded as it was inadmissible and exceptions to its competency have been filed. The testimony properly in the case has, however, satisfied us that the money invested in the Baltimore City stock and the deposits in the Savings Banks belong to her. They were[***30] probably made payable to the order of the two for convenience, as Mr. Hedrich doubtless visited Baltimore and attended to that character of business more than his wife did, but, however that may be, his declarations establish the fact that they belonged to his wife, and it is shown that she had money prior to her marriage and continued to earn it afterwards, and that her husband laid no claim to it. Under such circumstances we can have no hesitation in affirming the action of the Court below in dismissing the bill of complaint.

   It was suggested that whatever be our conclusions the plaintiff should not be required to pay the costs, as the claim was made in good faith and in accordance with what [*663] she deemed to be her duty. If that be conceded, it is not a sufficient reason to require the appellee to pay the costs of proceedings unsuccessfully conducted against her. If there be sufficient funds in hand, the Orphans' Court can determine whether the appellant should be allowed her costs out of the estate, but that is not before us.

   Decree affirmed with costs to the appellee. 

THE SOUTH BALTIMORE HARBOR AND IMPROVEMENT COMPANY OF ANNEARUNDEL COUNTY vs. HENRY SMITH ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 537; 37 A. 27; 1897 Md. LEXIS 53

 April  1, 1897, Decided

   PRIOR HISTORY:  [***1] Appeal from a pro forma decree of the Circuit Court for  Anne Arundel  County.

DISPOSITION: Decree reversed and bill dismissed.

CORE TERMS:  square, dedication, deed, public square, map, recorded, street, conveyance, plat, recording, intention to dedicate, inducement, dedicated, constructive notice, purchaser, vested, satisfactory, conveyed, designated, successor, secretary, jointly, settlers, bought, acres, trees, obligatory, registered, registry, dedicate

COUNSEL: Isidor Rayner and John F. Williams, for the appellant.
 
Daniel R. Magruder and Elihu S. Riley, for the appellees.

JUDGES: The cause was argued before MCSHERRY, C. J., FOWLER, BRISCOE, PAGE, ROBERTS and RUSSUM, JJ.

OPINIONBY: FOWLER

OPINION: [**27] [*538] FOWLER, J., delivered the opinion of the Court.

   The Patapsco Company was incorporated by the Legislature of Maryland in the year 1853. It was authorized by its charter to buy, sell and improve land in Anne Arundel County. In the exercise of the power thus conferred it became the owner and entered into the possession of a large tract of land in said county, opposite the city of Baltimore. Part of this land was laid out in town lots and a plat thereof was made showing thereon certain streets and avenues and a public square, which square contained about fifteen acres, which the plaintiffs claim was dedicated to public use, and especially for the use of themselves as owners of lots and their successors in title. The name of the proposed town, as appears by the map, was to be "Brooklyn." It was also spoken of as the "City[***2] of Brooklyn;" but except in name, it never became either a town or city, and the project of the Patapsco Company appears to have utterly [*539] failed. The map in question, however, was recorded among the Land Records of Anne Arundel County by the secretary of the Patapsco Company some time after the recording of the agreement presently to be mentioned. The bill alleges that in the deeds from time to time executed by said company reference is made to said map, and the lots described as thereon laid out. It is also alleged that among the inducements held out by the Patapsco Company to purchasers of lots was the fact that they would be entitled to the use of the streets and public square as laid out on said map, and their contention is that by the acts of the said company in so laying out and locating said town and the said lots, streets and public square, and by making and recording the said map, and the sale of said lots with reference to it in the deeds therefor, together with the "inducements" before mentioned, such streets and square "became dedicated to the perpetual use and enjoyment of the purchasers and successive owners and occupants of said lots." It is also alleged in[***3] the bill that the defendant, "The South [**28]Baltimore Harbor and Improvement Company of Anne Arundel County," which for convenience we will call "the defendant company," by virtue of a pretended purchase from the Patapsco Company claims to be the owner of the land constituting the public square, and that said defendant company had taken possession of said square and was about to cut down the trees thereon and to cultivate the land embraced therein. They (the plaintiffs) asked for and obtained from the Circuit Court of Anne Arundel County an order for a preliminary injunction restraining the defendant company from exercising any acts of ownership over the said square. This order is dated the 28th January, 1886. On the 24th March, 1887, the joint and several answer of the defendant company and other defendants was filed. Nothing further appears to have been done by either party, with the exception of the partial examination of one witness on the part of the plaintiff, until the 23rd January, 1896, when the plaintiffs filed a petition for leave to take additional testimony. [*540] The testimony was filed 21st July last--and on the 16th November following a pro forma decree[***4] was passed making the injunction perpetual. From this decree all the defendants have appealed.

   It will be seen from the foregoing statement that there is but one question involved--whether the land which is designated as a public square has been dedicated to public use. We have already set forth with sufficient fullness the facts on which the plaintiffs rely in their bill to establish a dedication, and we will now state those on which the defendants rely to show there never was any such dedication of the square either by the Patapsco Company, its predecessor in title or by itself.

   The first and most important fact relied on by the defendants is that on the 14th July, 1858, the Patapsco Company, which it is conceded then owned the square in question, unless theretofore dedicated, made a contract with a corporation known as "The Brooklyn Company," by which the former agreed to lay out on a part of its land a town to be called "Brooklyn," and prepare a plat thereof from a lithographed plat then existing, divided into lots of certain sizes and to grant to the Brooklyn Company the privilege of purchasing a certain number of said lots on terms therein set forth. That agreement contained [***5]the following provision: "The Brooklyn Company may fence in the public square to be located on the proposed plat, as now shown on the lithographed plat, and may plant and embellish the same with walks, trees, &c., and may erect thereon any temporary improvements at its own expense, and such improvements to belong to the Brooklyn Company, and may be removed at any time before July 1st, 1866, at which date all exclusive rights of the Brooklyn Company as to said square shall cease, and the square be vested jointly in the contracting parties hereto for such uses and purposes as they shall agree." This agreement was duly acknowledged and recorded on the 6th October, 1858, among the Land Records of Anne Arundel County. As we have already seen, the [*541] map or plat relied on by the plaintiffs was filed for record in the same county by the secretary of the Patapsco Company sometime subsequent to the recording of the agreement. By conveyances subsequent to the recording of the agreement the defendant company became the successor in title to the two corporations therein named, and its contention is that it has now vested in it all the title and estate of both of said companies, and is[***6] therefore the absolute owner in fee of the ground designated as a square.

   We do not understand that there is any question made as to the fact of these conveyances, although they are not before us in this record, but the difference arises as to their legal effect--the plaintiffs contending that they could not operate to recall or destroy a dedication made before they were executed, and the defendants claiming that neither before nor after the execution of the agreement between it and the Brooklyn Company was any dedication made, and bases its claim of absolute ownership on the true construction of that agreement, as well as on the subsequent conveyances above mentioned.

   The law involved in this case is well-settled. It has been always held in this State and elsewhere that whether a dedication to the public has been made depends in every case upon the intention of the parties, and this, whether dedication is claimed by acts in pais, by solemn conveyances of record, or by judicial proceedings. And it is also as well settled that such intention to dedicate must be established by clear, satisfactory and unequivocal testimony. Thus it has been held that, although a presumption arises[***7] that a dedication was intended by reason of the conveyance of land binding on the sides of a street, yet this presumption will be rebutted by the execution of a subsequent deed by the same grantor to the same grantee of the bed of the street. And, therefore, when the street was actually opened by the city of Baltimore, it was compelled to pay substantial damages. Hall v. M. & C. C. of Balt., 56 Md. 187. And so in Pitts' case, 73 Md. 326, it is said that the intention [*542] to dedicate by a sale and conveyance of lots binding upon a street "may be rebutted in many ways, as by other express covenants or agreements between the parties, or by the fact that the call for the street was made merely for the purpose of convenient description of boundaries * * * or by any other circumstances showing the absence of an intention to dedicate to public use." The rule that the strongest, clearest and most convincing proof of intention will be required to establish a dedication has been announced again and again by this Court.

   It is claimed by the plaintiffs that the alleged dedication was effected by the laying of the square on the map, by the sale of[***8] [**29] lots in accordance with and with reference to said map and by representations made by the agents of the Patapsco Company that the streets and square, as they appeared on the map, should be enjoyed by the purchasers of lots. Now, it may be conceded that if there were any owners of lots who purchased under such circumstances and without notice of the contents of the agreement between the Patapsco and Brooklyn Companies, they would have a standing in a Court of Equity. But what is the evidence? We have already seen that on the 6th of October, 1858, the agreement just mentioned, under which the defendant company claims it was impossible there could be any presumption of an intention to dedicate, was placed upon record. It seems to us that, in the face of the language of that agreement, the strength of the defendants' position cannot be denied. From its date, 14th July, 1858, the Brooklyn Company was to have exclusive control of the square, with the privilege of planting trees, making walks and erecting at its own expense any temporary improvements, which could be removed before July 1st, 1866, when the ground called "The Square" vested jointly in the two companies, for such[***9] uses as they should mutually agree. If this be a valid contract, as it undoubtedly is, then from the time it was placed upon record it was constructive notice to all the world that, so far from the square [*543] being a public square, it was the private property of the two contracting corporations--unless as claimed by the plaintiffs this agreement was not such a paper as under the then existing registry laws of this State was authorized to be registered or recorded. It has been held that the doctrine of constructive notice has no application to deeds or papers which may be in fact recorded, though not required or authorized so to be; Johns v. Reardon, 3 Md. Ch. 57; Glenn v. Davis, 35 Md. 208; and, therefore, unless this agreement is such a deed or contract as was authorized by the Act of 1835, ch. 205, to be registered, knowledge of its contents cannot be imputed to the plaintiffs or their predecessors in title in the absence of proof of actual notice. By sec. 4 of the Act just mentioned, it is provided that in all cases of acknowledgements of deeds, or conveyances, or writings obligatory, or contracts of, or relating to lands, &c., or[***10] any right, title, interest, estate, or use therein, the Justice taking such acknowledgment shall, &c. And sec. 3 provides that the following may be recorded if duly executed and acknowledged as deeds, namely, "all writings obligatory, or contracts for conveyances of lands, or of any interest, or estate of, in or relating to lands," &c. Upon its face the agreement in question is "a writing obligatory relating to land," by which the Patapsco Company agrees to sell and the Brooklyn Company agrees to purchase, upon certain conditions, a large number of lots, and the former agrees to "execute deeds" for the same upon certain conditions therein mentioned. It was contended on the part of the plaintiffs that only deeds of conveyance and what are technically called bonds of conveyance are contemplated by this Act to be recorded. But in so far as concerns the Act we are now considering, this would, we think, independent of authority, be too narrow a construction. But in the case of the U. S. Ins. Co. v. Shriver, 3 Md. Ch. 381, the Chancellor said: There is nothing, as I conceive, in the registry acts, which restricts them to conveyances of the legal title or estates, and[***11] in the words of [*544]that Eminent Judge, who delivered in opinion of the Court of Appeals in Hays v. Richardson, 1 G. & J. 366, "Their design was that all rights, incumbrances or conveyances, touching or in anywise concerning land, should appear on the public records." And we believe the general practice as to registration of papers has been in accordance with this view before and since the adoption of the Code. Unless, therefore, the plaintiffs have by the evidence offered by them, established a dedication either by acts in pais or by deed, or both, before the 6th October, 1858, when this agreement was recorded their attempt to do so must fail, for after the recording of the agreement they and all the world were bound to take notice that the square was under the control of the Brooklyn Company until 1866, and thereafter it became the joint property of the two contracting corporations. After the recording of this paper no act or deed of the Patapsco Company alone could work a dedication, and there is no satisfactory evidence that either company did anything to indicate an intention to dedicate the square to public use. What is the evidence relied[***12] on to prove a dedication before 6th October, 1858? In the first place the plaintiff, Henry Smith, holds his lot by deed from R. W. Templeman and wife, dated 31st December, 1874, and Templeman's deed from the Patapsco Company is dated 11 July, 1872. The deed from the Patapsco Company to Donelson is dated 9th September, 1872, that to Roche in 1859, and that to McPherson in 1862. Thus all of the deeds which are produced to show the lots were conveyed with reference to the streets and square as laid out on said map, are subsequent to the time required, and not one of them is the joint deed of the two parties who alone were the absolute owners of the ground claimed to be dedicated.

   Some effort was made to prove sales of lots within the time--that is before October, 1858, and the direct question was asked Mr. Templeman, the most intelligent and best informed witness who was examined, if he had any memoranda [*545] in his possession to show whether any sales had been made before that time, and he answered that he had none. He was also asked if he could state the dates when the lots were agreed to be sold to other parties, but he was able only to say that he had located [**30] [***13] lots in 1857 and 1858, but whether the lots so located were sold and conveyed in such a way as to show a dedication does not appear. The witness Stall and his wife also testify from recollection that they bought a lot from the Patapsco Company prior to 1858, and promised to produce the deed; but they have failed to do so. Nor is the evidence satisfactory in regard to the alleged inducements offered to purchasers. Mr. Stall in answer to the question whether he bought his lot on certain representations alleged to have been made as to the square, said that when he had money he bought the lots, and that the inducements had nothing to do with his action. He never saw a map with the square on it. Mr. Templeman also says that he presumes the square was held out as an inducement to buy lots, but he does not recollect it.

   The so-called "Prospectus and Diagram" which was issued by Mr. Templeman was also relied on as evidence to show a dedication in 1878. It stated that a public square of fifteen acres had been reserved for settlers. It is without date, and it does not appear when it was issued, but it was stated in argument that it was first circulated in 1878 or 1880 after the bridge was made[***14] free. But, as we have already said, no act of the Patapsco Company alone could, after the recording of the agreement, result in a dedication. The testimony shows that this circular was an effort of Mr. Templeman, who was then and still is the secretary of the Patapsco Company. It is true he says that both companies were cognizant of his action to the best of his knowledge. But there is no evidence that either company authorized him to print or distribute the paper in question. Under these circumstances this evidence cannot be accepted as satisfactory and conclusive proof. Who and where are the settlers--settlers after 1878--who are claiming to have [*546] made good the implied promise of this defendant to dedicate and maintain a public square in the city of Brooklyn? No lots appear to have been sold and conveyed after issuing of the circular, and before the time when the interests of the other two companies merged in the defendant company, who claims to be a bona fide purchaser for value.

   There is some other testimony as to dedication and as to inducements, but none of it is so cogent, persuasive and full as to destroy all reasonable doubt of the intentions of the owners[***15] to dedicate.

   While some of the acts of the parties would tend to show an intention to dedicate, yet in view of all the circumstances of the case, and especially in view of the recorded agreement, we think the parties never intended to relinquish their claim to the land in dispute, and at the most they intended only a conditional dedication, an instance of which it was said in White v. Flannigain, 1 Md. 525, will be found in Howard v. Rogers, 4 H. & J. 278, where the ground was given for a public square upon the implied condition that the seat of government would be moved from Annapolis to Baltimore--and the condition not having been fulfilled it was held there was no dedication. Doubtless if the city or town of Brooklyn had ever existed anywhere except on the map, the dedication here claimed would have become complete, and the owners of the ground would have been glad to waive all their claims in favor of the public. Dedication by user was disclaimed at the hearing, although some reliance is based upon this view in appellee's brief. The evidence, however, in regard to user is very unsatisfactory, and we think the position was properly abandoned.

   It follows[***16] that the decree appealed from must be reversed.

   Decree reversed and bill dismissed. 

ALEXANDER B. RANDALL AND OTHERS vs. J. WIRT RANDALL,TRUSTEE. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 430; 37 A. 209; 1897 Md. LEXIS 64

 April  1, 1897, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.), dismissing a petition filed by the appellants.

DISPOSITION: Orders reversed and cause remanded. Costs to be paid out of trust estate.

CORE TERMS:  testator, widow, trust estate, renunciation, married, sisters, election, devise, survivor, heirs, minor children, marriage, equally among, termination, advancement, devised, asking, arrive, marry, died, real estate, expiration, manifest, cease, life estate, divided among, remainder, vesting, gift, administrators

COUNSEL: J. Southgate Lemmon, for the appellants.
 
The two main points in the case are: 1st. Whether the trustee represents all persons interested. Judge Jones was of opinion that the trustee does not represent them, but Judge Revell, intimating that his own opinion on that question is different, says that it is unnecessary to pass upon that point, and proceeds to construe the will. 2d. Whether upon the widow's renunciation and receipt of her thirds, the trust estate ought not to be declared to have come to an end, and to be now distributable between the testator's two children. The question of the termination of the trust will be considered first, and in doing so, we must examine the will carefully, bearing in mind the relationship of the primary beneficiaries, the ages of the children and the conditions surrounding the testator at the time the will was made.
 
The ultimate remainder over might indeed be rejected as surplusage, as it added nothing to the will which the law of descents[***2] and distribution would not have supplied in the event named, while the Courts always favor a title by descent to one by devise where the construction admits of it. Be that as it may, the fact that the testator's brothers and sisters had no place in his will or thoughts as opposed to the interests of his own children so long as he had a descendant capable of taking, is shown not only in the clause "fourthly" itself, but in the "lastly" clause, in which the trustees in aid of his children were authorized to advance to them all of the property in which the collaterals were given a contingent interest to the exclusion and destruction of the ultimate remainder over. In that clause it is true there was a reservation of "one-third thereof for the wife," but even that one-third was, it would seem, deliverable to her. There was certainly no intimation of any purpose of reserving anything of any kind for the benefit of those in remainder, and the absence of any provision of the kind shows conclusively that the testator's collaterals were so little in his mind that he had forgotten them entirely, and revoked all provisions for them before he concluded his not very long will.
 
The will ends[***3] as it begins, with a provision, which gives the entire estate to the testator's widow and children, and so makes manifest the fact that the allusion to the "brothers and sisters," and their issue was in no wise intended as a limitation or check upon the bounty intended for his own descendants, but solely and simply to round out and complete a testamentary disposition, which might in the remote contingency named have presented a seeming neglect in the draughtsman of the paper, if one there was.
 
Returning to the purpose of the will, it will be seen that throughout the whole there runs a "discretion" in the trustees named by the testator, under which they could apportion and adjust, from time to time, the income to the needs of the different members of the testator's family, and advance portions of the principal itself to those of the children whose maturity or matrimonial situations should call for consideration in that respect. In no part of the paper does the testator himself apportion the income between his widow and children, and it would seem to have been his wish to provide trustees who could and would take up his own marital and parental duties, and administer his property, [***4] as he would have done during his life, so long as it was necessary for the protection of his widow and minor children. It will be noticed that no provision is anywhere made for the continuance of the trust during the lives of his own children, for one day longer than "when all my children arrive at age or marry, whichever event shall first happen," save and except only so far as his thought for the protection of the widow required.
 
There was no estate for life in the children, no remainder over to their children, but on the contrary the testator placed evident confidence in his own offspring and meant them to own and control their own property as soon as they possibly could, subject to the protection of his widow. It was for her and the minor children that the discretion was conferred upon the trustees as to the income, while as soon as any child reached age or married there was thought to give him or her, capital in proportion to their share of the estate. Neither of the trustees selected for the delicate duties imposed by the will accepted the trust--Mr. Alex. Randall being dead, and Judge Hagner declining. So far, therefore, as any apportionment of income in any ratio other[***5] than that of equality was concerned, the power lapsed, to apportion the same being personal to the trustee (Druid Park v. Oettinger, 53 Md. 46, 62), while that of advancing upon the fixed basis of numbers and amount remained unused.
 
The will, however, must be construed in the light of these powers, and the intention of the testator found as originally expressed. Such being the will, the widow renounced the provision in it made for her security and comfort, elected to take her thirds, and discharged the trustee from further care or thought on her account, preferring, it seems, the control of her own means to the trammels of any trust, however well placed or managed. At the time she did this, the lapse of time had cleared the trust of all responsibility for any infant child of the testator, the surviving children being both of age, and now, it may be added both being married.
 
The trustee, therefore, finds meeting before him the descendants and the collateral heirs of the testator, the former asking for their inheritance, the reason and life of the trust having departed; and the renunciation of the widow having taken her out of the will as completely as if she had died, or had [***6]never been mentioned in it. Upon the true construction of the will, it is clear that had death intervened, instead of the renunciation, the rights of the descendants over the collaterals would be clear, and there can be no doubt that this superiority of right at all times and in all places was intended by the testator. As in Clark v. Tennison, 33 Md. 93, where the widow's estate was "during widowhood," and the remainder over was at her death, the intent to give the property to the children upon the termination of the wife's estate by remarriage was held clear. The trustee stands discharged by renunciation of the widow, and the maturity of the children, from the obligations of protection accepted by him; the children have, under the will itself, a right to ask for advancement to the full extent of their respective portions, and there can be no question upon its fair construction that the wish of the testator would be gratified by the delivery over, and defeated by the retention of the property now held by the trustee.
 
While every will must, of course, stand upon its own terms, the general principle involved in this case has been frequently applied and is known as the doctrine of[***7] acceleration. The leading case upon the subject is that of Lainson v. Lainson, 18 Beav. 1, decided by SIR JOHN ROMILLY, Master of the Rolls in 1853, affirmed on appeal, 5 D. M. and G. 754, where it was said: "Although the expression used is that the estate to the son of John Laison is only to take effect from and after John Laison's decease," I am of opinion that the meaning is "from and after the determination of his estate by death or otherwise." In the later case of Craven v. Craven, L. R. 4, Eq. C. 209, before the same Master of the Rolls, he refers to Lainson's case, and says it "established that in a case where a previous life estate was revoked, the next estate in remainder was accelerated." In Stephenson v. Stephenson, 52 L. Times, 576, 578, Lainson's case was approved as of high authority, the opinion applying the principle to the case under consideration by saying: "I think the proper way of reading this will is to read it as if the bequest to the nephews and nieces was entirely stricken out." In 138 Pa. St. 208, Ferguson's Estate, the opinion, page 219, says the effect of the widow's renunciation upon all claims under the will is equivalent to her death; that this is the[***8] general rule, and if there are any exceptions they must depend upon the expression or unavoidable implication of a contrary intent of the testator.
 
Of course where it is sought, in order to accelerate a particular to ignore an intervening estate, as in Carrick v. Errington, 2 P. W. 361, the doctrine does not apply, and in some cases, arising under the terms of special wills, its effect has been modified in favor of those standing nearest in blood to the testator as against outside legatees, by the doctrine of compensation. This is illustrated by the case of Hinkley v. House of Refuge, 40 Md. 461, where this Court, recognizing the general principle involved, page 469, finds that an immediate payment of the legacies would contravene the intention of the testator, and that inasmuch as the next of kin had been damnified by the renunciation of the widow, and the consequent withdrawal of a large portion of the principal of the estate, it was but equitable that they should be compensated, as far as may be, by the appropriation to their use of the benefit renounced by the widow. In other words, as the legatees, appellees in that case, had not, and the beneficiaries nearest in kin to the[***9] testator had been injured by the action of the widow, their right to acceleration was denied upon that especial ground.
 
In the case now under argument, the appellants are nearest to the testator, and they have been disappointed by the action of their mother, and instead of being retarded, the general rule is aided by their equitable claim to compensation. The argument against it would lead a Court of Equity to disregard the general rule, and to continue the trammels of the trust in order that by death or disaster the testator's own children might be disinherited in favor of his nephews or nieces, not because such an intention anywhere appears in the will, but in the face of its expressed desire that the testator's own children should take whenever they reached age. The appellants' construction is further favored by the earlier vesting of the estate. There are numerous other cases on this rule, but as the above sufficiently illustrate the points involved, we append only a few: Jull v. Jacobs, 3 Ch. Div. 703; Est. of Vance, 141 Pa. St. 201; Holderby v. Walker, 3 Jones Eq. (N. C.) 46; Boyd v. Sachs, 78 Md. 491, 496. In short, this peculiar will being just what it was, Mrs. Randall's[***10] renunciation and receipt of her thirds accelerated the devise and bequest to the children and ended the trust.
 
The second question presented is whether the trustee represents all persons adversely interested, or whether it be requisite to find, summon or publish for the brothers and sisters, and the issue of the deceased brothers and sisters of the testator before the rights of the appellants can be established? The pending controversy is not for the enforcement but the destruction of the trust, and if there ever was a case in which the trustee represented those behind him, thoroughly and completely, it is here where his control over and interest in the property rests solely upon the rights of the so-called absent defendants. The claim is adverse to the existence of the trust, and is similar in principle and effect to an attack upon its existence, upon the ground of fraud or collusion, as in Vetterlein v. Barnes, 124 U.S. 169. See Code, Art. 16, sec. 130.
 
No appearance for the appellee.

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

OPINIONBY: BRISCOE

OPINION: [**209] [*436] BRISCOE, J., delivered the opinion of the Court. [***11]

   Dr. Burton Randall, surgeon of the United States Army, but residing in Annapolis, died in 1886, leaving a last will and testament dated in 1877. At the time of his death he left a widow, Mrs. Virginia Randall, a son, Alexander B. Randall, and a daughter, Margaret T., who has since married Dr. Joseph M. Worthington.

   As the questions for our consideration arise upon a construction of Dr. Randall's will, it will be necessary to set forth the entire will. It is as follows: "I give, devise and bequeath all my estates, real, personal and mixed, to my [*437] brother, Alexander Randall, and my nephew, Alexander B. Hagner, of Annapolis, to be held by them and the survivor of them, and the heirs, executors, administrators and assigns of such survivor, in trust, nevertheless, for the following purposes, to-wit:

   "First.--To receive, collect and apply the rents, issues and profits of my said estates, in their discretion, to the maintenance and support of my wife and children, and to the education of my children during my wife's life.

   "Second.--And after my wife's death, to apply the said rents, issues and profits, in their discretion, to the maintenance, support and education of [***12]my children, until they respectively arrive at age or marry.

   "Third.--And when all my said children arrive at age or marry, whichever event shall first happen, then to divide the whole of my estates then remaining among my children equally, and the issue of such among them as may then have died--the issue of such children to take the portion of their deceased parent equally among them.

   "And fourthly.--In the event of no child or issue of a child of mine living at the death of my wife, then that the said trustee divide my estates then remaining equally among my brothers and sisters then living and the issue of such as may then have died, the issue to take the portion of their deceased parent equally among them; and

   "Lastly, in further trust that my said trustees, or the survivor of them, or the heirs, executors, administrators or assigns [**210] of such survivor, may at any time they deem it beneficial and proper to sell and dispose of, and by deed convey any part of my said estates, receive the purchase money thereof, and invest the same in any other property for the benefit of this trust estate hereby created, and to constitute a part thereof, subject to all the[***13] provisions of this will--or apply such proceeds or any part thereof, for the advancement in life of any of my children after they have obtained age or married, provided such advancement do not exceed the portion such child may be entitled to after deducting the one-third thereof for my wife."

   [*438] Mrs. Randall, the widow, who is now living, renounced all claim under the will, and elected to take dower and distribution under the law. The question, then, is whether upon the widow's renunciation and receipt of her thirds, the trust estate ought not to be declared to have come to an end and to be distributed between the testator's two children, both of whom have arrived at age and are married. In other words, whether the devises and bequests in the will to the testator's children are to be paid at once, or are to be delayed to the death of his widow.

   On the 21st of July, 1886, a petition was filed in the Circuit Court for Anne Arundel County, by Mrs. Randall and her children, asking for a construction of the will and for a distribution of the trust estate. This petition was answered by J. Wirt Randall, who had been appointed trustee, in the place of Mr. Alexander Randall and Judge[***14] A. B. Hagner, trustees, named in the will. There was no adjudication of the rights of the parties under the will because of the want of proper parties to the proceedings; the lower Court holding that the brothers and sisters of the testator and their issue should be made parties to the case. On the 19th of November, 1895, an additional petition was filed asking for a distribution of the trust estate, and it is from the order dismissing this petition and the petition filed on the 21st of July, 1886, that this appeal is taken.

   It is a well settled rule, that in every case in which a will is to be construed the great object is to ascertain from the face of the paper, the intention and design of the testator; which is to be carried into effect, unless opposed by some principle of positive law. Jones v. Earle, 1 Gill 395. By a careful examination of the language used in the will and looking to the surrounding circumstances at the time of its execution, we gather the controlling intentions in the mind of the testator. They are clearly stated by the appellant, and are these: First, that during the life of the wife the estate should be held in trust for the protection[***15] of the wife and the minor children. Second, that after the cessation of [*439] the wife's estate, it should still be held for the protection of the minor children until all were of age or married. Third, that upon the expiration of the estate of the wife and of the minority of the children the trust should cease and the children of the testator should take. Fourth, that the trustees, however, should have a right, if they thought proper, to make at any time during the existence of the trust, even during the life of the wife, an absolute advancement of its portion of the property to any child who should attain age or become married. Fifth, that upon the determination of the wife's estate in the event of there remaining no direct issue of the testator living, that then the property should pass to the testator's brothers and sisters and their issue; in other words, to the testator's heirs at law and next of kin.

   What, then, was the effect of Mrs. Randall's renunciation and election to take dower and distribution under the law, upon the interest of the testator's children under the will? The rule followed by both the English and American Courts is, that a widow's renunciation and[***16] election to take as against the will is equivalent to her death, unless it contravenes some manifest intention of the testator as expressed by the will. In Clark et al v. Tennison et al, 33 Md. 85, where by the will a gift was to the wife during her widowhood, with a limitation over to the children upon her death, it was held, in order to carry out the plain intention of the testator, that the will should be construed as giving the property to the children upon the termination of the estate given to the wife, whether that be by her marriage or her death. In Ferguson's estate, 138 Pa. 208, the Court in a well considered case, after stating the reasons for the rule, says, that the law must have a settled and uniform rule, and it is that the widow's election to take against the will is equivalent to her death.

   Some of the authorities that support this view, are the cases of Small v. Marburg, 77 Md. 11, 25 A. 920; Lainson v. Lainson, 18 Beav. 1; Craven v. Craven, L. R. 4 Eq. 209; Jull v. Jacobs, 3 Ch. Div. 703; Stephenson v. Stephenson, 52 L. Times (N.S.) 576. [***17] [*440] In the recent case of Boyd v. Sachs et al., 78 Md. 491, 28 A. 391, where the question upon the construction of a will was somewhat similar to the one here, this Court said: "The widow's marriage was to have the same effect upon all the interests devised and bequeathed by the will as would have been wrought by her death. By the third clause of the will the real estate was given to Daniel, the son, after the widow's death, and by the fourth clause, it was stated that in case of his death, before the widow, it should go to his sisters and their heirs as tenants in common. The plain meaning of these clauses is that Daniel was to take the real estate on the termination of the widow's life estate (by death or marriage), and that if he should die before such termination, it should go to his sisters."

   Applying this rule, then, to the will now under consideration there can be no doubt as to the correct conclusion that should be reached in this case, and that is, the widow's renunciation and election accelerated the devise and bequest to the testator's children, and terminated the trust. The application of this equitable doctrine, gives effect to the manifest[***18] intention of the testator, that upon the expiration of the wife's estate and when his minor children arrived at age or married, whichever event [**211] should first happen, then the trust should cease and the whole of his estate be divided among his children equally. It therefore follows from what we have said, that the orders appealed from must be reversed and the cause remanded, in order that a decree may be passed in accordance with this opinion, the costs to be paid out of the trust estate.

   Orders reversed and cause remanded. Costs to be paid out of trust estate. 

ALFRED IJAMS vs. GRAFTON DUVALL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 252; 36 A. 819; 1897 Md. LEXIS 36

 February  24, 1897, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (ROBERTS, C. J., and REVELL, J.), dismissing appellant's petition for a mandamus directing the appellee to surrender to him the office of Chief Judge of the Orphans' Court of said county.

DISPOSITION: Order affirmed with costs.

CORE TERMS:  election, vacancy, elected, new election, commissioned, appoint, successor, fill, contested, candidates, filling, declaring, appointed, residue, session, duty, appointing power, appointment, declaration, filled, contested election, duly elected, qualification, confirmation, suitable, opposing, ordering, mandamus, declare, contest

COUNSEL: Dennis Claude, for the appellant.
 
There is no question of fact presented by this case, and the questions of law seem to be: 1st. Did the action of the House of Delegates make a vacancy in the office of Chief Judge of the Orphans' Court? 2nd. Is it not the duty of the Governor to fill a vacancy occuring in this office; 3rd. Is there any reason why the Governor should not fill this special vacancy?
 
As to the first point, the action of the House of Delegates in adjudging the election of Grafton Duvall illegal certainly made a vacancy in the office of Chief Judge of the Orphans' Court. In the first place, the election of Grafton Duvall to said office was duly contested in the case of Ijams et al. v. Duvall et al., before the last House of Delegates. House Journal, 1896, pages 22, 1094-8. 2nd. The House of Delegates was the only legal and competent jurisdiction to try the said contest. Constitution[***2] of 1867, Art. 4, sec. 12; Brooke v. Widdicomb, 39 Md. 388, 404; State v. Jarrett and Harwood, 17 Md. 309, 327. 3rd. The judgment of the House of Delegates in said contest is set forth in the following resolution: Resolved by the House of Delegates of Maryland, That at an election held on the 5th of November, 1895, for Judges of the Orphans' Court for Anne Arundel County, in said county, Grafton Duvall and Galloway Cheston were not duly and legally elected Judges o the Orphans' Court for Anne Arundel County. 4th. The jurisdiction of the House of Delegates to "judge of the election and qualification" of parties to an election contest, carries with it the power to adjudge such election illegal and void. Anderson v. Levely, 58 Md. 193, 202; Brooke v. Widdicomb, 39 Md. 404; State v. Jarrett and Harwood, 17 Md. 327. 5th. When the House of Delegates, or any other competent jurisdiction, declares an election illegal or void, after the candidates returned as elected are in office, such action creates a vacancy in such office. Handy v. Hopkins, 59 Md. 170-1-2; Jump v. Spence, 28 Md. 11. Hence, it appears to be established beyond cavil, that the House off Delegates has declared the office vacant, [***3] and that it had the sole and exclusive jurisdiction and authority so to do.
 
As to the second point, we find that the Constitution declares that: "In case of a vacancy in the office of Judge of the Orphans' Court the Governor shall appoint, subject to confirmation or rejection by the Senate, some suitable person to fill the same for the residue of the term." Constitution 1867, Art. 4, sec. 40.
 
The above provision imposes upon the Governor an absolute duty in positive and unequivocal language, i. e., he shall appoint in case of a vaeaney. This language does not qualify his duty to appoint or confine it to a vacancy caused in any particular way. Whether such vacancy is caused by death, resignation, removal from the county, or the act of the House of Delegates in adjudging an election void, makes no difference. When the office becomes vacant the Governor's duty to appoint arises, and when he appoints his appointee is de jure entitled to the office until some one with a better title presents himself. And certainly an incumbent who has only a de facto title--who was never even legally elected--cannot justify himself in attempting to hold on, because some one may be elected in the[***4] future, or might have been elected in the past, who, if elected, might have a legal right to supersede the present appointee of the Executive.
 
It is the duty of the Governor to fill a vacancy occurring on the bench of the Orphans' Court, and when he has filled it there can be no other legal incumbent. The office is vacant, the House of Delegates has so decreed. The Governor has appointed a suitable person to fill the vacancy. Why should his appointee then be excluded from office? Certainly if there was nothing else in the Constitution relative to this office, no question could arise as to the right of the appellant to take the office as appointee of the Executive. But we find that sec. 12, Article 4 of the Constitution, after giving the House of Delegates sole, exclusive, entire and complete control and jurisdiction over election contests for this office, also contains the following language: "If the judgment shall be against the one who has been returned elected * * * * the House of Delegates shall order a new election in thirty days."
 
This qualifying language of the powers given the House over certain contested election cases, the appellee claims, prevents the filling of[***5] this disputed office in any other way than by an election. How the fact that it is the duty of the House of Delegates to order a new election, can nullify the power of that body to declare the election void we cannot see. It seems to us very plain that sec. 12, Art. 4 of the Constitution, imposes two distinct and entirely different duties upon the House of Delegates: 1st. To try the election contest and pass judgment therein. 2nd. To order a new election--it performed both--it adjudged the office vacant and it ordered a new election. The ordering of a new election could not fill the vacancy. It did not give a new title to Duvall. On the contrary, the very act of vacating the office was a condition precedent to ordering a new election. It is true that had the election taken place, the party elected would be entitled to the vacant office, but it is also true that until such election does take place the office is vacant, and it is likewise true, that "a vacancy" in that particular office must be filled by the Executive of the State. The duty to fill the office arises when the vacancy occurs, and when filled by the Governor such appointee is entitled to the office until his successor is[***6] elected, and if the election ordered by the House of Delegates never takes place, the appointee of the Governor holds until the end of the term.
 
Certain contingencies prevented this election from taking place at the time ordered, and the office was not filled in the way prescribed by section 12. The special means of filling the office became ineffective from accidental causes. But this by no means prevents the other mode of filling the office from being effectively used. It is not reasonable that the accidental failure to hold the election can set aside the judgment of the House that the office is vacant. The office has been vacated by a solemn judgment of the House of Delegates--a tribunal which this Court has declared (in Brooke v. Widdicomb, 39 Md. 404), to have exclusive power and jurisdiction to go behind the election returns to examine into the qualification of the voters, purge the ballot-box, and recount the votes. These things have been done. This power has been exercised--and a jurisdiction that is supreme and irrevocable in this case, has decreed that the appellee was not legally and duly elected. Why then should he keep this office any longer. The only tribunal authorized[***7] to act in this matter have said that he has no title. The only authority empowered to appoint to this office has appointed another man. Yet he asks this Court, by a forced and unreasonable interpretation and construction of the Constitution, to arrogate to yourselves the jurisdiction of the House of Delegates, and declare that he has a title to this office after it has declared he has none. He asks you to usurp the authority of the Executive and appoint him to this vacancy, when the right to appoint (an election having accidentally failed to occur) is vested in the Governor alone. Or, perhaps, he wishes this Honorable Court to constitute itself the electorate of Anne Arundel County and elect him Chief Judge of the Orphans' Court. No matter what the appellee expects, we must respectfully submit that any plain, reasonable, common sense construction of the Constitution, giving full and sensible effect to all the provisions bearing upon this case, must result disastrously to the appellee's contention. All the provisions are in accord, unless twisted into conflict by the ingenuity of the counsel for the appellee.
 
Again, the object of the contest was to decide who was entitled to the[***8] office, and the judgment was that it was vacant. The vacancy is the essential element of the judgment, and the means of filling it is a secondary consideration in the case. This vacancy was not filled as directed, but public justice demands that it should be filled, and hence the Governor properly and legally filled it by appointment, in the exercise of his authority to fill a vacancy, given him in sec. 40, Article 4 of the Constitution of 1867.
 
Robert Moss, for the appellee.
 
The appellee will contend: (1). That there exists no vacancy in the office of Chief Judge of the Orphans' Court for Anne Arundel County, which the Governor is legally authorized to fill. (2). That the appellee being in office holds the same and is entitled to perform its duties and enjoy its emoluments until the election and qualification of his successor, as provided in section 12 of Article 4 of the Constitution of Maryland.
 
This section of the Constitution provides, among other things, that in cases of contested elections for judges, clerks, etc.: "If the judgment shall be against the one who has been returned elected, or the one who has been commissioned by the Governor, the House of Delegates[***9] shall order a new election within thirty days." Thus the framers of our Constitution have provided a special method of filling a vacancy caused by the judgment of the House of Delegates, and such method of filling the vacancy is exclusive. This Court, in the case of Cantwell v. Owens, 14 Md. 215, upon an inquiry into the validity of the appointment of a justice of the peace to fill a vacancy occurring in that office, held the vacancy could not be filled by an appointment of the Governor under the general appointing power of the then Constitution, when by a particular provision of the same instrument another mode of filling the vacancy was clearly and explicity provided. This opinion of the Court has been expressly affirmed in the case of Magruder v. Swann, Governor, 25 Md. page 215. It will, therefore, be seen that section 40, of Article 4, part 5, relating to the filling of an ordinary vacancy in the office of Judge of the Orphans' Court does not apply to this case.
 
The appellee was in office at the time the order of the House of Delegates in the contested election case was passed, and, therefore, holds until the election and qualification of his successor. In the case of Magruder[***10] v. Swann, Governor, above quoted, the Court held that as Judge Magruder was disqualified by reason of nonage, that the incumbent, Judge Tuck, held office until the election and qualification of his successor, and no vacancy existed in said office which the Governor could fill. See also Robb v. Carter, 65 Md. 335; Paine on Elections, 195; 37 Cal. 288.

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

OPINIONBY: PAGE

OPINION: [**819] [*258] PAGE, J., delivered the opinion of the Court.

   The facts of this case, as presented by the record and conceded by counsel at the argument, may be briefly stated as follows: At the election of 1895 Grafton Duvall and [*259] Alfred Ijams were opposing candidates for Judge of the Orphans' Court of Anne Arundel County. Duvall was returned elected, received a commission from the Governor, duly qualified and entered upon the discharge of his duties as Chief Judge. The appellant having contested the election, the House of Delegates, at the session of 1896, passed a resolution declaring Duvall "not duly and legally elected," and ordering an election to be held on the 21st of April, 1896, in pursuance of section[***11] 12, Article 4 of the Constitution. Because of certain legislation passed at the same session this election could not be, and was not held, so that the appellee has continued to hold the office up to the present time.

   On the 23d of April, 1896, the Governor, on the supposition there was no legal occupancy of the office, appointed the appellant to fill the vacancy thereby occasioned. The appellant having received the commission and taken the proper oath, demanded of the appellee the possession of the office; and this being refused, he has applied for a mandamus to compel the appellee to deliver the possession thereof. The application of the appellant is based upon the theory that the action of the House of Delegates made a vacancy within the meaning of the 40th section of Article 4 of the Constitution. That section, after providing for the election of Judges of the Orphans' Court, defining their powers and fixing their compensation, proceeds, "in case of a vacancy in the office of Judge of the Orphans' Court the Governor shall appoint, subject to confirmation or rejection by the Senate, some suitable person to fill the same for the residue of the term." From the bare reading of[***12] this clause, in connection with the entire section, it seems obvious the "vacancy" here referred to is a vacancy occurring after an election by the people. The section first provides for the election of three men to be Judges of the Orphans' Court. They are to be citizens of the State and residents for the twelve months preceding in the city or county in which "they may be elected, and shall have all the powers [*260] now vested in the Orphans' Court, subject to such changes as the Legislature may prescribe." In case of a vacancy the Governor shall appoint, subject to confirmation or rejection by the Senate, "some suitable person to fill the same for the residue of the term."

   It would seem to be clear that the intention here manifested, is that the Judges of the Orphans' Court are to be elected by the people; and the "vacancy" referred to is one that may occur after there has been such an election. In other words it is a vacancy created by the death, resignation or by some other cause of one or more of the "three men" who have been chosen by the qualified voters. This interpretation is supported by a fair construction of those other clauses of the Constitution which provide for[***13] cases when there has been a failure, for any cause, to obtain a legal expression of the will of the people. By section 12, Article 4, "if in any case of election for Judges, Clerks of the Courts of Law and Registers of Wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the Governor to order a new election; and in case of any contested election the Governor shall send the returns to the House of Delegates, which shall judge of the election [**820] and qualification of the candidates at such election; and if the judgment shall be against the one who has been returned elected, or the one who has been commissioned by the Governor, the House of Delegates shall order a new election within thirty days." It will be observed how careful the framers of the Constitution have been to preserve to the people the right to constitute these offices. In case of a tie, the Governor cannot appoint, but must order a new election, and in case of a contest the House of Delegates cannot declare who is entitled, but must refer the whole matter back to the people at a new election to be held within thirty days.

   If it be held that the judgment of the House against[***14] the one who was returned, creates a vacancy to be filled by the appointment of the Governor, then the obvious purpose of [*261] the sections of the Constitution here cited (that the people shall elect the Orphans' Court) is absolutely ignored. Moreover, what would logically result from such a position? If the declaration of the House, ipso facto, operates to create a vacancy, such vacancy begins and continues from the date of the passage of the resolution. There occurs, therefore, a vacancy before the election can be held, and the Governor, under sec. 40 of Art. 4, can appoint; and his appointee would hold "for the residue of the term;" and all this despite the clear intention of the 12th section, that in such cases the new officer should be chosen by the people. An interpretation fraught with such serious and peculiar consequences would violate every canon of sound construction. Constitutions should be construed as entireties, and in such manner as to give a meaning and full effect to each word in the whole instrument. Cooley Const. Law, 58; Thomas v. Owens, 4 Md. 189.

   By the 11th section Article 4 of the Constitution, election returns are to be [***15] made to the Governor, "who shall issue commissions to the different persons for the offices to which they have been respectively elected; and in all such elections the persons having the greatest number of votes shall be declared to be elected." Under this section it is the duty of the Governor to issue his commission to the person regularly and duly returned as elected, although the election of such person may be contested, whereby the Governor, under the 12th section, is required to send the returns to the House of Delegates.  Brooke v. Widdicombe, 39 Md. 386; Groome v. Gwinn, 43 Md. 572.

   The possession of such commission, and the proper qualifications under it confer upon the person the right to the office. In Brooke v. Widdicomb, supra, this Court said, "the commission having been properly issued to the appellee, and he having given bond and taken the oath required by law, there appears to us to be no valid grounds for denying to him the right to the office * * His title is not impaired or affected by the pending contest before the House of Delegates." It must, therefore, be held that Duvall was properly [*262] [***16]in possession of the office; and if he was he is entitled to hold it until a successor has been properly and legally appointed and qualified.  Robb v. Carter, 65 Md. 321, 4 A. 282.

   The resolution of the House of Delegates did not and could not name a successor; all that was within its power was to give judgment against the incumbent and order a new election; that it did, and the appellant now holds the office only until some other person has been legally selected and qualified to take the place. How that person is to be chosen is clearly pointed out by the 12th section. He is to be elected by the people at the "new election." That method of filling the place having been provided, it is not within the power of the Governor under the general appointing power to name him.  Cantwell v. Owens, 14 Md. 215; Magruder v. Swann, 25 Md. 173.

   In the last mentioned case this Court affirming the preceding case said, "a vacancy could not be filled by an appointment of the Governor under the general appointing power of the then Constitution, when by a particular provision of the same instrument another mode of filling the vacancy was clearly[***17] and explicitly provided."

   Here, we think, there was no vacancy, Duvall holding over until his successor has been duly appointed and qualified; but even if there was, the Governor would have no power to appoint, because by the 12th section another mode of filling the vacancy is "clearly and explicitly provided."

   It has been urged that a refusal to grant this mandamus would operate to retain in office a person whom the House of Delegates has declared was not legally elected. But what we have said in no wise affects this declaration. It does not become us to suggest how this can be remedied. Our function is merely to expound the law, not to devise remedies. We should be open, however, to just censure if, to meet the supposed exigences of the particular case, we were to deal lightly with principles long established and approved by the eminent jurists that have preceded us.
 
   Order affirmed with costs. 

PHILIP BARRET vs. CHARLES W. TAYLOR, ET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 173; 36 A. 708; 1896 Md. LEXIS 123

 October  30, 1896, Decided  
 February  18, 1897, Opinion Filed

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.), dismissing the petition of the appellant asking that his name be entered on the registration books as a legal voter. The agreement of facts, upon which the appeal was argued, is as follows: "On the 15th day of September, 1896, the petitioner, who had not attained the age of 21 years, and who was foreign born, applied to the aforesaid registers of voters for registration. His name was entered as an applicant for registration in the duplicate registries, and all proper entries were made therein until the question of naturalization was reached, when the petitioner stated that he was not yet naturalized and that he would not attain the age of 21 years until the 13th day of October, 1896, the final day for revision of the registries, upon which day he would apply to the Court for naturalization, and if he should be granted naturalization, he would then present the papers to the registers of voters in order to enable them to complete the proper entries. The petitioner did apply to the Court for the naturalization papers on the 13th of October, 1896; the Court granted them, and he presented them to the registers[***2] aforesaid, who refused to enter his name on the registry books as a legal and qualified voter; from which decision the petitioner appealed to the Circuit Court for  Anne Arundel  County, and upon hearing by the Court, the order applied for was refused and the petition for registration was dismissed."

DISPOSITION: Reversed and remanded.

CORE TERMS:  registers, registration, registry, registered, voter, qualified voter, naturalization, revising, session, election, qualification, revision, defeat, unjust, duty, right of suffrage, full age, new name, naturalized, unnaturalized, registering, twenty-one, foreigner, corrected, requisite, appointed, duplicate, revise

COUNSEL: James W. Owens, for the appellant.
 
James M. Munroe, for the appellees.

JUDGES: The cause was argued before MCSHERRY, C. J., BRYAN, FOWLER, PAGE and ROBERTS, JJ.

OPINIONBY: BRYAN

OPINION: [**709] [*174] BRYAN, J., delivered the opinion of the Court.

   Philip Barret applied to the registers of voters for registration. His name was entered in the duplicate registries, and sundry entries were made; but in the course of the examination he stated that he was an unnaturalized foreigner and that he was under the age of twenty-one years. He also stated that he would become of full age on the thirteenth day of October, eighteen hundred and ninety-six, and that he would on that day apply to the proper Court for naturalization, and that if he should be successful in his application he would present his naturalization papers to the registers in order that the necessary entries[***3] in their books might be completed. Barret was duly naturalized on the thirteenth of October, having reached his full age. On that day the registers were in session for the purpose of revising their registry. Barret exhibited to them his naturalization papers in order that he might be registered, but the registers refused to enter his name on the lists as a legal and qualified voter. He filed a petition in the Circuit Court praying that the registry should be corrected by the entry [*175] of his name as a qualified voter. The Court dismissed his petition and he appealed.

   This case was presented to us at our last daily session before the November election. We decided it promptly; but as the matter did not admit of delay we made the necessary orders without filing an opinion in the usual form. We now proceed to state the reasons for the conclusions to which we came. When Barret appeared the second time before the registers he had all the constitutional qualifications requisite for the right of suffrage. If in consequence of the legislation on the subject he is to be prevented from the exercise of that right, the result will be most unfortunate. It would be a subject of great regret[***4] if a statute, enacted for the purpose of registering the names of persons who possess the qualifications for voting which are prescribed by the Constitution, should operate in such a manner as to exclude from the registry a qualified voter who has been guilty of no neglect or default in presenting his claim for registration. The Constitution is most express in requiring the Legislature to provide by law for the registration of all who possess the requisite qualifications. It would be most unjust to suggest that the Legislature has not faithfully endeavored to discharge this duty. Certainly we could not depart from official duty and propriety so far as to assume the possibility of such a thing. We will examine the statute and see whether its text indicates that the legislative wish has been defeated. It is the Act of 1896, chapter 202. Paragraph 4 of section sixteen is as follows: "Only persons constitutionally qualified to vote * * * at the next election, and personally applying for registration, shall be registered as qualified voters." When Barret applied the first time he was not qualified and therefore registration was properly refused. His name was entered on the registration[***5] books, and in the column relating to qualified voters the unfavorable judgment of the registers was recorded. In due course they met in obedience to the twenty-first section of the Act. This section enacts that [*176] "they shall remain in session for the sole purpose of revising their registry, and no new name shall be added." In the meantime he had become a qualified voter, and his name was already on the books. The registers were in session solely for the purpose of revising their registry. How were they to revise it, except by setting it right in the particulars wherein it was wrong? If errors had been committed in respect to names on the books, they were to be corrected. It is nothing to the purpose that their judgment was right on the facts which existed when it was pronounced. In the course of the changes which had occurred, new conditions had arisen; and upon them their adjudication was erroneous and unjust. In the work of revision were they to refuse to see what was before their eyes, and to found their judgment on incidents which at one time had been facts, but which from changed circumstances had no more relation to the matter for decision than the events of the last[***6] generation? Were they to pronounce a true judgment, or to sustain one which they knew to be erroneous and unjust? Was the party's right of suffrage any less the object of the law's care and protection because it had been recently acquired? Could the statute be construed to impair or defeat it, in the absence of a declaration most express and unequivocal? These officers were appointed for the purpose of registering persons entitled to vote at the next election, provided they should make personal application. And here a man appears whose qualification to vote is perfect and absolute. The highest political right of the citizen is in question; and it is claimed under a statute framed for the purpose of securing it. Means are provided whereby the registers are to ascertain whether this right exists, and to enable the claimant to exercise it where he is entitled to it. When the right is unquestioned it would be unreasonable in the highest degree to defeat it by the use of those very means which were devised for the purpose of preserving it. And [**710] yet this would be the result if we limit and restrict the duty of revision imposed on the registers, so as to prevent them from considering[***7] the facts as they exist when the [*177] revision is to be made. An analogy of a forced and unnatural character may be suggested, which is drawn from the practice of Appellate Courts in revising decisions at law on bills of exception. The object then is to determine whether the Court of original jurisdiction had rendered a correct decision on the facts presented to it, and to revise its ruling on the case as it appeared at the trial. It is difficult to suppose that the Legislature could have travelled so far out of the plain, straightforward path as to have designed such a mode of correcting errors in the registration list. They were dealing with great public rights, which were of the highest concern to every citizen in the State, and they provided means for producing a result which every good citizen must desire. That is, they intended that the registration list when it left the hands of the registers in its final shape should be as correct as it could be made. And they intended that the appointed means should be used so as to produce this result, and not to defeat it. These means are not to be hampered by technical and artificial rules adapted to another department of the public[***8] business; but they are to be applied as men of sagacity and judgment in the affairs of life would employ them in accomplishing the object of paramount public importance for which they were instituted. The law would fail in its object if it de nied to any one qualified voter the opportunity of being registered.

   On the day when this cause was argued we decided that Barret was entitled to registration, and we ordered that his name should be entered on the lists. We now repeat in a more formal manner what we said at that time.

   Reversed and remanded. 

DAVID H. TURNER vs. WILLIAM CROSBY ET AL., REGISTERS OFVOTERS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
85 Md. 178; 36 A. 760; 1896 Md. LEXIS 124

 October  28, 1896, Decided  
 February  18, 1897, Opinion Filed

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court of  Anne   Arundel  County (REVELL, J.), dismissing the petition of the appellant, which asked for the passage of an order directing the officers of registration of said county to enter petitioner's name as a qualified voter on the registration lists. The petitioner's evidence was to the effect that he lived, during his childhood, with his parents in  Anne Arundel  County, and was registered as a voter there upon obtaining his majority, and had voted there ever since until the preceding year; that he had never attempted to register or vote in any other place; that before coming of age he learned his trade of a builder in Baltimore City; that after his marriage he boarded, with his wife, in Baltimore City, and never kept house there or anywhere else; that he had a shop in Baltimore, but worked also in Washington and other places; that he is now about thirty-three years old, and that during the last five or six years he had spent a month or two of each year at his father's house in  Anne Arundel  County, and that he had never intended to change his permanent residence from  Anne Arundel  County.

DISPOSITION: Order reversed, with costs to be paid by Anne Arundel County, [***2]and cause remanded.

CORE TERMS:  registration, registered, voter, locality, resident, election district, qualified voter, affirmatively, register, presumed, desired, removal, domicile, residing, precinct, prayer, night, voted

COUNSEL: Elihu S. Riley, for the appellant.
 
James M. Munroe, for the appellees.

JUDGES: The cause was argued before MCSHERRY, C. J., BRYAN, FOWLER and BRISCOE, JJ.

OPINIONBY: BRISCOE

OPINION: [**760] [*179] BRISCOE, J., delivered the opinion of the Court.

   The appellant, David H. Turner, applied to the appellees, William Crosby and Lloyd E. Dorsey, registers of voters of the Fourth Election District of Anne Arundel County, at their September sitting, in the year 1896, to be registered as a qualified voter of that district. He was refused registration and thereupon appealed to the Circuit Court for that county. The decision of the officers of registration having been affirmed he has appealed to this Court.

   Turner testified that he was born in Baltimore City, but moved with his father to the Fourth Election District of Anne Arundel County when an infant, and was now thirty-three years of age; that he first registered in this district when he was twenty-one, and had voted there ever since, and had never claimed a residence elsewhere. In answer to the question whether he ever tried to register or ever voted in any other place, he stated that "I have not and never desired. [***3]I am a builder, and my business, being away from the county, I am so situated that I have to go from one place to another; for instance, if I have a house to build in one place I go to that place to attend to it, and stay wherever it is most convenient; my wife and child have been in the county since the 14th day of May until the first of October; at present I am in Baltimore, and since the 14th of May I have run backwards and forwards to the county every night; I don't think I was away any night; I might have been; I would have come sooner, but my wife has been sick and I could not bring her away; in attending to business we cannot come backward and forward at any time, as the first train leaves Odenton at a quarter of seven, and we ought to be at work in Baltimore at seven [*180] o'clock." He further testified, "that he could not go before a register in Baltimore or any other place and swear that he desired to become a resident of that place or desired to change his residence, for he had no such intention." There was other evidence tending to show that he was absent from the county while learning his trade and while engaged in business at different places, but it was always[***4] with an intention to return to Anne Arundel County, where he was residing at the time of his application for registration.

   The Court below was asked to rule, as a matter of law, upon the testimony, that the petitioner was entitled to be registered as a voter in the Fourth Election District of Anne Arundel County. The prayer was rejected and from this ruling and the dismissing of the petition by the Court this appeal is taken.

   It is quite clear, we think, under the facts of this case, that the appellant was entitled to be registered as a qualified voter, and the Court committed an error in rejecting the petitioner's prayer, which so declared. By secton 23 of the Act of 1896, chapter 202 (the present registration law of this State), it is specially provided, that in determining [**761] whether any person is or is not a resident of any voting precinct, it shall be presumed that if a person is shown to have acquired a residence in one locality he retains the same until it is affirmatively shown that he has acquired a residence in another locality, and it shall also be presumed that if a person is shown not to reside at the dwelling given in the entries relating to him on the registration[***5] books, he is not a resident of the said precinct, unless it should be affirmatively shown that he is such resident. In this case there is no evidence to show that the appellant had abandoned his residence in Anne Arundel County or had acquired a domicile elsewhere. On the contrary, the affirmative proof is that he retains his home in that county and actually resided there at the time of his application for registration.
 
   It is settled by many cases in this Court that residence is [*181] a question depending upon fact and intention. "The mere intention to acquire a new domicile without the fact of an actual removal avails nothing, neither does the fact of a removal without the intention." Temporary absence with a continuous intention to return, will not deprive one of his residence, though it extends through a series of years. Cooley Constitutional Limitations, 600; Langhammer v. Munter, 80 Md. 518, 31 A. 300. It was for the reasons we have given that this Court at the October term, 1896, reversed the order appealed from and directed the appellant to be registered as a qualified voter.

   Order reversed, with costs to be paid by Anne Arundel County, and [***6] cause remanded. 

DAVID H. TURNER vs. JOHN T. BRYAN, OFFICER OF REGISTRATIONET AL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
83 Md. 373; 35 A. 21; 1896 Md. LEXIS 73

 June  16, 1896, Decided

   PRIOR HISTORY:  [**1] Appeal from an order of the Circuit Court for  Anne   Arundel  County (REVELL, J.)

DISPOSITION: Appeal dismissed, with costs to the appellant in both Courts, to be paid by Anne Arundel County.

CORE TERMS:  registration, voter, repealed, existing law, law relating, election 

COUNSEL: Elihu S. Riley, for the appellant.
 
Edward C. Gantt, for the appellee.

JUDGES: The cause was argued before MCSHERRY, C. J., BRYAN, FOWLER, BRISCOE, PAGE, ROBERTS, BOYD and RUSSUM, JJ.

OPINIONBY: BRISCOE

OPINION: [*373] BRISCOE, J., delivered the opinion of the Court.

   The name of David H. Turner, the appellant, was stricken from the list of qualified voters of the Fourth Election District of Anne Arundel County during the October sitting by the officer of registration for that district, and on the 24th day of October, 1895, he appealed by petition to the Circuit Court for that county. The case was heard, and the Court, on the 31st of October, 1895, passed an order dismissing the petition, and from that order this appeal has been taken. We find, however, that the law relating to elections, Art. 33 of the Code of Public General Laws and the several acts amendatory thereto, which were in force at the time of the decision of this case, have been wholly repealed by the Act of 1896, chapter 202, and that this latter[**2] Act has made a radical change and adopted an entirely different system of registration of voters for this State from [*374] that required by the law in existence at the time of the appellant's appeal.

    The ruling of the Court below was under the law as it then stood, whereas the present appeal must be decided by the existing law. Strauss v. Heiss, 48 Md. 292. "It is a settled doctrine," says this Court, in Wade et al. v. Saint Mary's Industrial School, 43 Md. 178, "that Courts, in deciding questions arising before them, will look to the law as it is at the time, and are not to be governed by what it may have been, unless proceedings under a prior existing law had been complete or rights had become vested. This principle has been held to apply as well to cases before an Appellate Court as to those that are pending in Courts of original jurisdiction. United States v. Schooner. Peggy, 1 Cranch 103; Price et al. v. Nesbitt, 29 Md. 263; Atwell v. Grant, 11 Md. 101; State v. Norwood, 12 Md. 195; Keller v. State, 12 Md. 322 at 326."

   But even[**3] if it be conceded there was error in the rulings of the Court below, inasmuch as the law in existence at the time has been abrogated and repealed, the appellant has not been injured thereby. It therefore becomes unnecessary for us to pass upon the questions presented by this appeal, and it will be dismissed, the costs to be paid by Anne Arundel County.

   Appeal dismissed, with costs to the appellant in both Courts, to be paid by Anne Arundel County. 

FRANK A. MUNROE AND OTHERS, SUPERVISORS OF ELECTIONS, vs.GEORGE WELLS, CLERK, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
83 Md. 505; 35 A. 142; 1896 Md. LEXIS 80

 April  16, 1896, Decided  
 June  18, 1896, Opinion Filed

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (REVELL, J.), dismissing appellants' petition for a mandamus.

DISPOSITION: Order affirmed.

CORE TERMS:  election, registration, special election, vacancy, supervisor, appointed, duty, voters, fill, appointment, previous law, former law, old law, repeal, inoperative, repealing, repealed, supposed, ballot, boxes, supervisors of election, time fixed, new law, self-executing, legislated, ballot-boxes, thereunder, registry

COUNSEL: James M. Munroe, for the appellants.
 
The old Board of Supervisors of Elections ceased to have any legal existence on the 2nd day of April, 1896, by operation of chapter 202 of the Acts of 1896, because one of their number, George T. Warfield, had resigned, and the other two, Shipley and Arnold, had been legislated out of office. Mechem on Public Officers, sec. 408; State v. Harris (N. Dak. 1890), 45 N. W. Rep. 1101-2; State v. Covington, 29 Ohio St. 102; People v. Brown, 83 Ill. 95; In re Senate Resolution, 12 Col. 340.
 
The whole question in this case turns upon the fact that there was a vacancy in the office of supervisors of elections in Anne Arundel County, which the Governor had a right to fill. If there was no vacancy the appointment of the appellants by the Governor was void, and all their acts are void, and the judgment of the Court below must be affirmed. If there was a vacancy the action of the Governor was proper, the appellants are the Board of Supervisors of Elections of Anne Arundel County, with full authority to[***2] act, and the judgment of the Court below must be reversed and the mandamus prayed for granted. The Acts of 1896, chapter 202, in its second section (last but one), provides that if the Governor has already appointed supervisors of elections under the old law, and said appointments had been confirmed by the Senate, that such appointments should stand and the supervisors thus appointed should qualify and act in the same manner as if they had been appointed under the provisions of said chapter 202 of 1896, but under the provisions of Article 13, section 2, of the Constitution, such supervisors could not take office until the 1st day of May, 1896.
 
We are thus confronted with this state of the case: The House of Delegates of 1896 has ordered special elections to be held in Calvert County and in Anne Arundel County before the 1st day of May, 1896. This same House of Delegates, together with the Senate, has passed a new election law, legislating out of office old supervisors of election. And it is sought to give to the law and to the Constitution of the State, such a construction as would nullify the mandate of the Legislature passed pursuant to the constitutional provisions requiring [***3]special elections in such cases. Section 4 of Article 33 of the Code, entitled "Elections," as amended and re-enacted by chapter 202 of the Acts of 1896, expressly provides that "in case of any vacancy in the number of supervisors of elections occurring when the Legislature is not in session, the Governor shall appoint some eligible person to fill such vacancy during the remainder of the term of office of the person originally appointed." Section 13 of said Article 33, as amended by said chapter 202, provides "that the Board of Supervisors of Elections shall have charge of and make provision for all elections, &c. Sec. 34 provides that there shall not be a revision of the registry before any special election.
 
Section 11 of Article 2 of the Constitution provides, "In case of any vacancy during the recess of the Senate in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the said office, whichever shall first occur." This provision of the Constitution, read in connection with the second section[***4] (last but one) of said chapter 202 of the Acts of 1896, covers the case exactly, and enables the appellants to fill in the interregnum between April 2nd, when the new election law was approved, and May 1st, when the supervisors of elections appointed by the Governor and confirmed by the Senate go into office. There was a vacancy in the office of supervisors of elections caused by the enactment of chapter 202 of the Acts of 1896. The act had that effect because it swept out of existence the law under which the old supervisors held office, and because it provided for an entirely different method of appointment of new supervisors of elections. This vacancy occurred during the recess of the Senate, to-wit, on the 2nd day of April, 1896, the Senate having adjourned sine die on the 31st day of March, 1896. The vacancy occurred in an office which the Governor had the power to fill, and it was, therefore, his duty to fill that vacancy by appointment under the provisions of the Act of 1896 and the Constitution.
 
Why should it be said that the provisions of the Act of 1896 apply only to a vacancy occurring in office which had been first filled by the Governor under the provisions of that[***5] act? To construe the law that way is to defeat the mandate of the Legislature and to undo the provisions of the Constitution. The law is certainly entitled to the construction which will make it effective to carry out the will of the Legislature and the constitutional provision. And, therefore, it is respectfully submitted that it is the duty of the Court to so construe the law as to give effect, if possible, to the provisions of the Constitution and the mandate of the Legislature.
 
 John P. Poe and Robert Moss (with whom was James W. Owens on the brief), for the appellee.

JUDGES: The cause was argued before MCSHERRY, C. J., BRYAN, FOWLER, BRISCOE, PAGE, ROBERTS, BOYD and RUSSUM, JJ.

OPINIONBY: FOWLER

OPINION: [**142] [*508] FOWLER, J., delivered the opinion of the Court.

   This appeal presents a question growing out of the repeal of Article 33 of [**143]the Code, title "Elections," and the re-enactment of said Article with amendments.

   At the November election of 1895 George Wells and Washington G. Tuck were candidates for the office of Clerk of the Circuit Court of Anne Arundel County. Wells was declared elected, was commissioned, took possession of the office, the duties of which[***6] he has since performed. His election was contested by Tuck before the House of Delegates, which declared that Wells had not been duly elected, and thereupon ordered a new election to be held on the twenty-first of last April. The Act of 1896, ch. 202, repealing [*509] Article 33 of the Code, took effect from the day of its passage, namely, the 2nd day of April. On the eighth of April the appellants were appointed by the Governor to be supervisors of elections of Anne Arundel County upon the theory that the provisions of the Code relating to elections and registration, having been repealed by chapter 202, the supervisors who had been acting thereunder, had been legislated out of office and that, therefore, a vacancy existed which it was the duty of the Governor to fill. It appears, however, that just before the passage of the Act of 1896 the Governor had appointed these very appellants as supervisors for Anne Arundel County, under the then existing law, and it is provided by the second section of that Act that although so appointed before its passage, yet they should hold, and their appointments so made should to all intents and purposes be as if made under the said Act of 1896, [***7] by which their duties, term of office and mode of appointment are prescribed. But under the provision of the Constitution, section 13, Art. 2, the appellants, as supervisors of election under the Act of 1896, could not enter upon the discharge of their duties until the first day of May, which was after the time fixed for the special election ordered to be held by the House of Delegates. It was, therefore, to fill a supposed vacancy between the second of April when the old law was repealed, and the first Monday of May, when the officers under the new law could enter upon their duties, that the appellants were, as we have said, again appointed by the Governor on the eighth of April.

   At the hearing of this case counsel for both parties united in a request that because of the public importance of the issue involved we would as soon as possible announce our conclusions upon the questions involved. This we did immediately after the argument, and we will now briefly state the grounds upon which that conclusion is based.

   The controlling question is whether there were such a vacancy when the appellants were appointed by the Governor on the eighth day of April, as under the Constitution [*510] [***8] and laws of the State he was authorized to fill. If there was such a vacancy it must have been a vacancy in the office under the previous law or under the Act of 1896. It seems obvious there was no vacancy under the former, for it is conceded it was swept out of existence by the present law by which an entirely different method of appointment was provided. This being so, it follows that the previous law from the second of April when it was repealed became absolutely inoperative for any purpose whatever. Wade's case, 43 Md. 178; Dashiell's case, 45 Md. 615. Hence the offices under the previous law have no existence after the second of April, and of necessity there could be no vacancy in them. Was there a vacancy under the Act of 1896? Confessedly not, for, as we have seen, the Governor had already appointed these appellants, and by section two of the Act of 1896, they were holding under it.

   It was urged, however, with much earnestness, that inasmuch as the House of Delegates had ordered a special election to be held on the 21st day of April, unless we should hold that the appellants could act, the mandates of the House could not be obeyed. But it is[***9] for the Legislature and not the judiciary to provide means for executing the order of the House, and having failed to do this, the order not being self-executing, although in accordance with the provisions of the Constitution, the special election cannot be held (Groome v. Gwinn, 43 Md. 572), in the absence of affirmative legislation for that purpose. But in answer to this view it was argued that the special election could be held under the Act of 1896, notwithstanding the admission that by the terms of the Constitution the appellants cannot qualify or perform any duties under that Act until the first Monday of May. It seems, however, too clear for controversy, that the Act of 1896 makes no provision whatever for holding the special election on the 21 April. This is apparent from the consideration that after its passage a new and general registration was to be had by and under which all elections were thereafter to be held, and by which the right to [*511]vote was to be determined. But it was not contemplated that the registration under the Act of 1896 was to be had until long after the time fixed for holding the special election, and therefore it was not[***10] supposed, nor is it now claimed that the registration lists to be made under this Act could have possibly been available at that election. The prayer of the petition of the appellants is that the appellee be required to deliver to them the registry books of the qualified voters of Anne Arundel County, &c., as well as the ballot boxes, and the allegation is that without these the said election could not be held. But as we have held in the case of Meloy v. Scott et al., ante, 375, decided at this term, the effect of the repeal of the previous registration law by the Act of 1896, ch. 202, and the adoption by the latter of new methods for holding elections and for registration of voters, was to nullify the former law, and make it as inoperative and void as though it had never been in existence, it follows that the lists and ballot boxes prepared for use under and according to the provisions of the old law, cannot be available under the repealing law, unless the latter makes some provision for such a contingency. There being no such provision [**144] in the Act of 1896, the special election cannot be held, unless, as suggested, such election can be held without any registration.[***11]

   The contention is that if an election has been duly ordered, and there has been a failure to provide for registration of voters to be had before such election is to be held, the election must proceed without registration. But the difficulty, as we have already pointed out, is that the officers, judges of election included, under the old law can no longer act, and there is no power given, even if the supervisors could otherwise act, to appoint judges of election under the new law until long after the special election is to be held. Unless, therefore, such election could be held without judges, without registration lists or ballot-boxes, except such as may be agreed upon by the voters, it cannot be held at all. It is enough to say that such an election has never been [*512] known to the Constitution and laws of this State, either before or since the passage of the first registration law.

   Order affirmed. 

ABRAM CLAUDE vs. ANNA D. HANDY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
83 Md. 225; 34 A. 532; 1896 Md. LEXIS 43

 March  26, 1896, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (ROBERTS, C. J.), by which exceptions to the return of the commissioners to make partition of real estate between tenants in common was overruled and the return ratified and the parcels allotted in accordance therewith. The facts are set forth in the opinion of the Court.

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  partition, dollars, real estate, street, decree, farm, susceptible, front foot, parcel, oath, possessed, seized, heirs, mortgage, executors, prayed, tenant, allot, died, duty, mortgage debt, administer, valuation, estimate, doubtful, feet, appointed, valued, undivided moiety, multifarious

COUNSEL: Daniel R. Magruder (with whom were Dennis Claude and Robert Moss on the brief), for the appellant.
 
It will be noted that the bill, as originally framed, asked only for the partition of the real estate of which Elizabeth C. Harwood died, seized and possessed. The amendment asked for and granted, made the revised paragraph (setting out the property to be divided), read as follows: "The real estate mentioned and described in the exhibits filed in this case," and as part of the real estate mentioned and described in these exhibits, was real estate of which Dr. Dennis Claude died, seized and possessed, a new class of property was sought to be brought in for partition; and yet the plaintiff's petition, asking for this amendment, speaks of this proposed amendment as merely "desirable for the sake of clearness of expression"--"clearness[***2] of expression," being, we submit, an original mode of designation for an amendment seeking to introduce into the scope of the bill, and for the Court to deal with an entirely different class of property from that which the bill specifically asked to have divided. It will be noted that although this amendment was authorized to be made by the order of the Court, yet the amendment, though so desirable, was never made, and the "clearness of expression" was thus ruthlessly sacrificed in favor of a more rugged phraseology.
 
Now this proposed amendment, whether made or not, still, while coupled with the original language of the bill, still leaves the bill one seeking the partitition of the real estate whereof Elizabeth C. Harwood died, seized and possessed, and of that alone; whereas the partition as actually made, also undertook to bring into the division real estate of which Dr. Dennis Claude died, seized and possessed, as disclosed by the exhibits, or the exhibits are assumed to disclose. Now, as the only exhibit filed with the bill (or that were filed in the cause at all up to the time of asking and granting leave to amend the bill), was the will of D. Claude Handy, the amendment[***3] to the bill can in no sense make it a bill for partition of any real estate whatever other than that whereof Elizabeth C. Harwood died, seized and possessed. The other exhibits in the case had been filed with the examiner, but were not filed in the cause, or made a part of the record until after the amendment as asked and granted. So that as the partition as made includes property not asked by the bill to be divided--the whole partition becomes ineffective and must be declared null and void.
 
The bill is multifarious in that it joins a prayer for partition with one for the sale of real estate under a mortgage. This has been clearly settled. Belt v. Bowie, 65 Md. 350. The fact that the mortgagee is made a defendant instead of a plaintiff, does not alter the principle--two separate and distinct matters are joined, which are the proper subjects for separate and distinct bills of complaint--and the defendant mortgagee has no proper place or standing in a bill for partition as to which he is an entire stranger in interest--and the proceeding is the more objectionable, as instead of seeking a partition of the whole of the real estate of the intestate as the law contemplates, it deliberately[***4] segregates and removes a partition of the real estate from the jurisdiction of the Court (primarily invoked for partition), and an excrescense having no legitimate place there, is awkwardly attempted to be engrafted thereon--lugging in parties who have no proper place in such a controversy.
 
The bill, as we have seen (even as amended--if it is to be so considered), is for the partition only of the real estate whereof Elizabeth C. Harwood died, seized and possessed. The proof shows, not that the property so left can be divided, but that this property, together with that left by the father of the defendant, can be divided. This defect is fatal to the relief prayed. "Chancery decrees secundum allegata et probata and hence a plaintiff must allege in his bill what he expects to prove." Small v. Owings, 1 Md. Ch. Dec. 363; Hayward v. Carroll, 4 H. & J. 118.
 
In the testimony of the defendant, Abram Claude, in answer to the 4th Q.: "Enumerate that property and state, as far as you can, how her title to it was derived," the witness, after enumerating the property left by Mrs. Harwood, goes on to say, "and in addition to these, she had in town a one-third interest in may father's undivided[***5] property, consisting of what is ordinarily called the "Seven Buildings," on South street, and an unimproved lot on College avenue, near the College green." And yet this property is all brought into the partition just as if Mrs. Harwood had owned the whole, and as if the plaintiff and defendant each owned only an undivided half part thereof--and this unimproved lot on College avenue (in which Mrs. Harwood was entitled to only an undivided third part) is the only part of the property allotted to the defendant, although it is the only part of the property which has yielded no revenue whatever, while the plaintiff gets all the rest, and as a most remarkable result, the shares are found to be exactly equal--even to one dollar--the valuations being exactly fitted to bring about this result--like forcing a balance, as it were.
 
The partition is unjust and unequal, because even assuming for the sake of the argument that the shares are of equal pecuniary value (which is far from being the case, as the evidence shows), yet this matter of market value is not the only item to be considered in making partition. The commissioner's return and the decree carrying the same into effect, give to[***6] the plaintiff all the productive property, yielding an income, and give to the defendant only the unimproved property on College avenue which yields no revenue, and is besides unsaleable owing to its proximity to the gas and electric light works.
 
"Equality is equity!" Inequality of the partition in this case--therefore, not equitable, and therefore, not just or worthy to be sustained by a Court of Equity. The law, the commission, the principles of an enlightened, the established practice both at law and in equity, demand, prescribe, and direct that the partition to be regular must be equal.
 
Now "equal" in this connection and the sense of the word when so supplied means not only equality in supposed present (much less prospective or anticipatory) value; but more than that, and far above that, equality in everything that constitutes the incidents of the enjoyment of the torment (so to speak) of land--for there is such a thing as being as a well-known phrase (which has grown into a proverb) aptly calls "land poor." And so the authorities are to this effect; a few citations only being to illustrate and if possible a proposition, the mere statement of which seems to make the point[***7] perfectly clear--if it were possible, even clearer. See Allnutt on Partition, 5 Law Lib. 9. In 2 Roll's Abridgement, 256, the law is stated as follows: "(F) What "Equality" means. 1. Even altho' the partition be equal in the mere value of the land, nevertheless, unless it be also of equal present enjoyment to the one as to the other, this is not equality. 2. So if one share be encumbered with an assise (or law suit), and the other not, this is not equality. 3. Likewise if one part is easy of access to the one, and the other part of difficult access to the other, this is not equality, notwithstanding the land be of equal value."
 
To the like effect is 2 Bacon's Abr. "Coparceners" (C.) "of Partition," 363. See also Alex. Br. Stat. (31 Hen. 8, Cap. 1 Partition) 311-317, and the extensive notes and citations. Mayer's Digest (Chancery), 313, &c.; Id. (Inheritance--Division), 475, &c.; Mitchell v. Seipel, 53 Md. 271.
 
James M. Munroe, for the appellee.
 
The average of the various estimates on the College avenue lots is $5,618, and the valuation of said lots by the commissioners is $6,471. The average valuation of the Gloucester street house, according to the testimony of all [***8]the witnesses, is $3,933. The average valuation of the Gloucester street house, according to the testimony of the exceptants' witnesses, is $4,100; and the valuation placed thereon by the commissioners is $3,500. There seems to be a concensus of opinion that the South street property ("The Seven Buildings") is worth about $1,500, and the outside valuation placed upon the "Town Hill Farm" by any of the witnesses is $500; so that the total average valuation of the property awarded to Mrs. Handy is $5,933, being about $500 less than the valuation placed thereon by the commissioners; and the average valuation of the property awarded to Dr. Claude is $5,618, being about $850 less than the valuation thereof by the commissioners. The decided weight of the whole testimony on behalf of the exceptants and appellee is rather to confirm than to contradict the correctness of the estimate placed upon the property by the commissioners. There is no allegation nor is there any testimony as to any misconduct on the part of the commissioners, or any of them, in the discharge of their duties.
 
1. Where one tenant in common, supposing himself to be legally entitled to the whole premises, has[***9] erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements. 1 Story's Eq. (3rd ed.), sec. 655. 2. Courts of Equity will not only take care that the parties have an equal share and just compensation; but they will assign to the parties, respectively, such parts of the estate as would best accommodate them and be of the most value to them with reference to their respective situations in relation to the property before the partition. 1 Story's Eq. (3rd ed.), sec. 656; Storey v. Johnson, 1 Young & Coll., 538; S. C., 2 Young & Coll., 586. 3. It will, therefore, by its decree adjust all the equitable rights of the parties interested in the estate; and will, if necessary for this purpose, give special instructions to the commissioners, and nominate the commissioners instead of allowing them to be nominated by the parties. Ib., sec. 656 b. 4. Where there are divers parcels of land, messuages and houses, partition need not be made of each estate separately so as to give each party his moiety or other portion in every estate. But the whole of one estate may be allotted to one, and the whole of another estate [***10]to the other, provided that his equal share is allotted to each. 1 Story's Eq. (3rd ed.), sec. 657; Earl of Clarendon v. Hornby, 1 P. Will. 446-7. 5. The commissioners act as judges, the whole power of the Court being committed to them. 2 Danl. Ch. Prc., p. 1155. 6. The Court will not disturb their return upon the mere allegation of conflicting opinions by different surveyors, with respect to the comparative value of the several lots. 2 Danl. Ch. Prc., p. 1156, n. 1; Re Thompson, 2 Green Ch. 637; Hay v. Estell, 19 N. J. Eq. 133; (4 C. E. Green); Wilhelm v. Wilhelm, 4 Md. Ch. 330. 7. Every part of estate not to be divided; sufficient if each party receives his proper share of the whole. 2 Danl. Ch. Prc., p. 1157. 8. Duty of commissioners to assign the shares of those parties to whom they would be of most value (independently of market value) with reference to their respective situations in relation to the value of the property before the partition took place. 2 Danl. Ch. Prc., p. 1159, 1 N. 3; Storey v. Johnson, 1 Young & Coll. 538-546. 9. Grounds of exception to ratification of commissioners' return. (a.) Misconduct of commissioners. (b.) Irregularity in executing comms. (c.) Perhaps[***11] also inequality. Alex. Ch. Prac., p. 166.

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

OPINIONBY: BOYD

OPINION: [**532] [*232] BOYD, J., delivered the opinion of the Court.

   The bill was filed in this case by the appellee against the appellant and the executors of L. T. H. Irving, alleging that Elizabeth C. Harwood died, intestate, in February, 1886, seized and possessed of certain real estate in Anne Arundel County, leaving the appellant and D. Claude Handy her only heirs at law, each of whom became thereby seized and possessed of one undivided moiety of the said real estate. It further alleged that D. Claude Handy died in May, 1889, leaving a last will and testament, by which he devised all his interest in it to the appellee and charges that said real estate was susceptible of partition; that a portion of it was encumbered by an overdue mortgage debt of four thousand dollars to L. T. H. Irving, who departed this life in 1892, and that William H. Dashiell and Florence Irving were his executors.

   The appellant filed an answer, in which he admitted most of the material allegations in the bill, but denied that the property was susceptible of partition,[***12] and by way of crossbill, alleged that the farm called "Willow Glen" would have to be sold forthwith to pay the mortgage debt thereon, and that "the property remaining after said sale of said farm is susceptible of no practicable division that would not work injustice to one or the other or both the joint owners thereof," and then prayed the Court to pass a decree ordering the sale of the whole real estate involved in the suit and a division of the proceeds. Soon after the answer was filed the appellant and appellee filed a petition stating that in any event it [*233] would be necessary to sell the "Willow Glen" farm, which was encumbered by the mortgage above referred to; that the executors of L. T. H. Irving had filed their answer asking that it be sold and consenting to [**533] a passage of a decree therefor, and prayed that the sale of that farm be ordered by the Court without further delay. The same day, June 17, 1893, a decree was passed appointing the solicitors for the respective parties, trustees to make said sale.

   Testimony was commenced in the early part of December, 1893, by the examination of the complainant, who testified as to the heirs of Dr. Dennis Claude, [***13] the father of the appellant and grandfather of her husband, from whom part of the property descended, and filed with the examiner various deeds vesting the title in her husband and the appellant. She stated that the property held by them as co-tenants consisted of a farm called "Town Hill," one called "Willow Glen," vacant lots in Annapolis near St. John's College, houses and lots on South street, and one on Gloucester street, Annapolis. Three witnesses produced by her testified that they knew the property and thought it was susceptible of partition. The appellant and Mr. Dennis Claude were of a contrary opinion. On February 7th, 1894, after the testimony was concluded and the day before it was filed, the complainant obtained leave to amend the bill, so that the first paragraph would conclude, "leaving the defendant, Abram Claude, and D. Claude Handy * * her only heirs at law, each of whom became thereby seized and possessed of one undivided moiety of the real estate mentioned and described in the exhibits in this case," instead of "leaving the defendant Abram Claude and D. Claude Handy * * her only heirs at law, each of whom became thereby seized and possessed of one undivided[***14] moiety of said real estate," as it was originally in the bill. On February 15th, 1894, the defendant filed a petition asking the Court to rescind the order authorizing the amendment. On hearing the petition it was dismissed, but leave was granted to the defendant to answer, plead and demur to the amended [*234] bill and to both parties to take further testimony. An answer was filed admitting in substance most of what the former answer had, but alleging that "the real estate mentioned and described in the exhibits filed" is not all the real estate of which the heirs at law of Elizabeth C. Harwood became possessed by her death, but that part of it had been sold, etc. A demurrer was also filed to a portion of the bill but subsequently withdrawn and an agreement made that the question of partition or sale of the property be submitted on the testimony and exhibits already filed.
 
   On May 7th, 1894, a decree was passed directing a partition of the real estate (excepting "Willow Glen" farm, which by agreement had already been decreed to be sold), and the issuance of a commission in the usual form to five persons named. A report signed by all the commissioners was returned to the Court, [***15] in which they stated that they, after having taken the oath annexed to the commission and having given notice to the parties of the time and place of meeting, did meet on the land and premises mentioned in the commission, caused the same to be surveyed and divided into two parts as directed, by Louis Green, one of their number, a competent surveyor, and allotted to Mrs. Handy house No. 73 Duke of Gloucester street, at $3,500.00; six houses on South street, at $1,500.00, and the (Town Hill) farm, in the first election district, at $1,471.00, making in all $6,471.00, and to Dr. Abram Claude lots on College avenue and St. John street, at $6,471.00.

   The appellant excepted to the report and award of the commissioners for the following reasons: 1st, because the commissioners were not legally sworn in or qualified; 2d, that the decree directed a partition of only a portion of the real estate of which Mrs. Harwood died possessed and claimed by the parties to the suit; 3rd, that the commissioners only partitioned and awarded a portion of such real estate; 4th, that the "Willow Glen" farm was not included in the report and award of the commissioners or in the decree of the Court; 5th, [***16]that there was an unpaid debt due [*235] by the estate of Mrs. Harwood and there could be no legal partition until it was paid--that the farm "Willow Glen" was not yet sold and the personalty had been exhausted; and, 6th, that the award and partition are grossly unequal, unjust and unfair.

   We have thus stated more at length than was perhaps necessary the proceedings in the case, but as in the argument there seemed to be some misapprehension of the condition of them, so far as disclosed by the record, we deemed it proper to thus refer to them. Before discussing the exceptions to the report and award of the commissioners, we will briefly consider the prior proceedings. It is stated in the brief of the appellant that the amendment to the bill authorized by the order of February 7th, 1894, was never in point of fact made. We do not so understand the record. The first paragraph of the bill, as printed in the record, concludes in the identical language of the amendment as proposed in the petition of the complainant and authorized by the Court. The petition of the defendant (Dr. Claude) to have the order granting leave to amend rescinded, shows that the bill had been amended and he[***17] answered and demurred to it. The exhibits mentioned in that paragraph of the bill were filed with the examiner and as above stated it was agreed by the parties that the demurrer be withdrawn and the case submitted to the Court on the question of partition or sale upon the testimony and exhibits already filed. It is doubtful whether there was any necessity to make the amendment, for while Mrs. Harwood owned exclusively part of the real estate, she, the appellant and D. Claude Handy owned as tenants in common the rest of it and by her death the other two became thereby the owners of all the property. From the original bill it could be easily gathered that all the real estate which she owned herself, or as tenant in common with the defendant and [**534] Dr. Handy, that had not been sold, was intended to be disposed of, and the original answer and cross-bill of the defendant confirms this view, as they asked to have the whole real [*236] estate involved in the suit sold, and the testimony taken refers to all the property now in controversy. But the amendment allowed was clearly within the power of the Court, and when it was represented to it that the defence and conduct of the[***18] case of the defendant would have been different had the bill as amended been originally filed, it very properly gave leave to the defendant to answer it and take additional testimony, which was not done by reason of the agreement spoken of.

   It is also contended that the bill is multifarious in that it joins a prayer for partition with one for sale of the real estate under a mortgage, and Belt v. Bowie, 65 Md. 350, 4 A. 295, is relied on to sustain that position. That case is wholly different from this. There the complainants owned the mortgage on the property which had been given by their ancestor, and they sought to have the property sold for the purposes of partition and to foreclose the mortgage. This Court held that the bill was multifarious because it contained two separate and distinct subjects-matter in respect to which relief was prayed--partition and the enforcement of the mortgage. The bill in this case did not seek such relief, but its object was to have the property partitioned, and in the event of its being held to be not susceptible of partition, then to have it sold and the proceeds divided between complainant and defendant, after payment of the [***19]mortgage debt. The object of making the executors parties was evidently to bind them by the decree, as was done in Thruston v. Minke, 32 Md. 571. But as already stated, the only demurrer to the bill was withdrawn by agreement of the parties.

   It is also urged that the interlocutory decree directing the partition was not sustained by the proof, as the bill only prayed for the partition of the real estate of which Mrs. Harwood died, seized and possessed. What we have already said sufficiently states our views on that subject.

   This brings us to the consideration of the exceptions to the report of the commissioners. The first was not urged in this Court. We find no evidence in the record as to how [*237] the commissioners were sworn, but assuming that they followed the authority given by the commission, which authorized any one or two of them to administer the oath, it was in accordance with what has been the long established practice in this State. Alexander's Chy. Pr. 324. It would perhaps be a better practice to require in the commission the oath to be administered to all of the commissioners by a justice of the peace or some other officer authorized by[***20] law to administer oaths, as they can now be more conveniently reached than when the other practice was first adopted, but the method followed in this case has been too long sanctioned by the Courts of this State to justify us in setting aside the award on that ground. The second, third and fourth are to the effect that all of the real estate of Mrs. Harwood owned by the appellant and appellee was not included in the decree and award. By agreement and request of the parties the "Willow Glen" farm had, before the decree for partition was passed, been decreed to be sold. After the report of the commissioners was filed, Messrs. Munroe and Claude signed a petition as trustees and as at tourneys for the respective parties, stating that the trustees had advertised the farm but had not received an adequate bid; that the executors of the mortgagee were urgent in their request for payment, taxes and interest were accumulating, and prayed the Court to pass an order directing a peremptory sale, which was done, and the property sold. It was thus by agreement of the parties that it was not included in the partition and they cannot now object to its being omitted from the decree and award. The testimony[***21] shows that when Mrs. Harwood died she left other real estate which had been sold by the parties before this proceeding was commenced, but no authority has been produced, and we know of none, that would prevent a partition of the balance of the estate for that reason. It could not be successfully contended that because two tenants in common sold a part of a tract of land by agreement, one could not afterwards require of the other a partition of the remainder, [*238]if it were susceptible of it, and the same rule applies to separate and distinct properties. What we have said also disposes of the fifth exception. 

   The sixth presents the most important question in the case. The learned solicitors for the appellant very earnestly and ably contended that the partition was unjust and unequal--not only as to the value, but as to the character of the property awarded to the appellee, and that the only property that is now productive is awarded to her. It must be conceded that the Gloucester street property would be more desired by Mrs. Handy than vacant lots, but unless there be some evidence to the contrary, it must be assumed that the commissioners took into consideration all the advantages[***22] and disadvantages attending the several parts, valued the same accordingly, and made division and allotment upon the basis of such consideration and valuation, as was said by the Court in Mitchell v. Seipel, 53 Md. 251, was the duty of commissioners appointed under the act to direct descents. In an equitable partition it is not only the right but the duty of the commissioners to allot to one party such part of the property as may be more advantageous to him on account of its proximity to his other property, if it can be done without injury to the other party, and if the properties be in several parcels the owners are not entitled to a share of each parcel, but only to an equal [**535] share in the whole. Hall v. Piddock, 21 N.J. Eq. 311; Cochran v. Shoenberger, 33 F. 397; Stannard v. Sperry, 56 Conn. 541, 16 A. 261. The evidence shows that the Gloucester street house is not only contiguous to but connected with one of the appellee by a communicating door. The South street lot adjoins that and her other property in the rear, as shown by the plat filed with the report. It has no particular value by[***23] reason of the improvements on it, and in fact, according to the evidence of some of the witnesses, the whole property would be more valuable without them, as they are, in the opinion of the witnesses, of such character as to permit of very undesirable tenants. If then all the property owned by the [*239] appellant and the appellee is susceptible of partition, as has been established by the evidence and the interlocutory decree, it would seem that under the authorities these properties could properly be awarded to the appellee. We will therefore consider the value of the different parcels as fixed by the commissioners.

   It is usual and the opinion of the learned Judge below states that in this case the parties interested named the commissioners. There is no suggestion in the record that there was any misconduct, partiality or prejudice on their part. It was their duty and not that of the Judge to view and examine the properties, place just valuations on them and allot them fairly and equally. Their functions are exceedingly important in the administration of justice, and the acts done by them, with the peculiar opportunities they have of reaching proper conclusions, are not[***24] permitted by the law to be questioned by conflicting or doubtful testimony. Even if a Court be of the opinion that it might have found differently as to some of the values, it cannot substitute its judgment for theirs, unless sustained by clear and satisfactory evidence of error on their part, which has wronged one or more of the parties whose property they are selected to value and allot. Some Courts regard these reports and awards in the light of verdicts of juries, and will set them aside only upon grounds similar to those upon which a verdict will be set aside and a new trial granted. 17 Am. and Eng. Enc. of Law, 777. Some treat them with more respect than verdicts when the commissioners are selected by the parties in interest, with special reference to their qualifications. Livingston v. Clarkson, 4 Edw. Ch. (N.Y.) 596. "To justify the Court in setting aside a partition of real estate on the ground of a mistaken judgment on the part of the commissioners the mistake must be a serious one and the evidence of it too plain to be mistaken. If the evidence be doubtful or contradictory the report will be sustained * * * *. Upon no subject do men differ more in[***25] opinion than in the value [*240] of real estate." In re Thomson Estate, 3 N.J. Eq. 637 see also Kane v. Parker, 4 Wis. 123; Hay v. Estell, 19 N.J. Eq. 133; Lester v. Lester, 3 Y. & C. Ex. 544; Wilhelm v. Wilhelm, 4 Md. Ch. 330.

   Applying these well-established principles to this case, what do we find? The witnesses for the appellant differ widely in their valuations of the several properties. One valued the Gloucester street property at six thousand dollars, three at forty-five hundred, four at four thousand, one at thirty-five hundred, one at three thousand, and another from twenty-five hundred to three thousand, and the witnesses for the appellee fix it at about three thousand. The award of the commissioners at thirty-five hundred cannot therefore be much out of the way. The same witness of the appellant who fixed that property at three thousand dollars named that sum for the South street property, while four of them estimated it at fifteen hundred, and one as low as one thousand dollars. The commissioners valued it at fifteen hundred. The appellant in his testimony, taken before[***26] the commissioners were appointed, in answer to the question, "What do you consider a reasonably fair price for the 'Town Hill Farm?'" said, "I have no idea; to me it would be worth nothing." One witness said in his testimony taken at that time he thought it would be worth about fifteen hundred dollars. Mr. F. H. Stockett, Sr., said he had known it for every sixty years and he believed five hundred dollars was its full value under any circumstances. The commissioners named fourteen hundred and seventy-one dollars--thus making $6,471.00 in all awarded to Mrs. Handy.

   As to the property awarded to the appellant there was great diversity of opinion. It has a front of ninety feet on College avenue, and five hundred and forty feet and three inches on St. John street. The lots on the avenue have a depth of a little over one hundred and twenty-one feet, as laid off, whilst those facing on St. John street have depths varying from one hundred and thirty-nine to about one hundred and [*241] forty-eight feet. The evidence shows that those facing on St. John street are opposite the Campus and grounds of St. John's College. Two of the appellant's witnesses fix the value of lots fronting on[***27] the avenue at ten dollars per front foot, others at fifteen dollars, eighteen dollars, twenty dollars, twenty-five dollars, and one as high as thirty-five dollars per front foot. For those on St. John street they vary from five to sixteen dollars a front foot. Mr. Welch, who was called by the appellant, said he had recorded all the deeds conveying property in Anne Arundel County of late years, had previously been a justice of the peace and insurance agent, and in other ways seemed to have quite an extensive knowledge of the value of real estate, and by his calculation makes this property worth over nine thousand dollars. The estimate of Mr. J. Brewer, another witness of appellant, by the front foot amounts to from six thousand to six thousand four hundred and fifty dollars. The witnesses for the appellee estimate the value of the lots fronting on the avenue from thirty to forty dollars per front foot, and those on St. John street from fifteen dollars upwards, thus making, according to their estimates, the value of this property largely over $6,471.00, the amount fixed by the commissioners. As a rule those who seem to have had most experience as to values of property in Annapolis fix[***28] these lots higher than the others. Just how the commissioners reached the amount we are not informed. But if we take twenty-five dollars per front foot for the lots on the avenue (which is ten dollars [**536] less than the highest fixed by the appellant's witnesses, and five dollars less than the lowest of those offered by the appellee), and ten dollars per front foot for those on St. John's street (which is six dollars less than the highest of appellant's witnesses and five dollars less than the lowest of the appellee's), it would amount to about $6,450, only twenty-one dollars less than the amount fixed by the commissioners. It will therefore be seen that the awards of the commissioners are not without support from the evidence, and consequently we cannot say there [*242] was no foundation for their estimates. The report was signed by all five of them and stands unimpeached, excepting so far as it is by the opinions of others as to values, no two of whom fully agree. If there be any error of judgment it was made by those appointed at the instance of the parties, and there is nothing in the record that would justify us, under the well established principles of law applicable[***29] to such cases, in disturbing the report and award of those thus selected to value and divide the property in controversy. The decree must therefore be affirmed.

   Decree affirmed with costs. 

HARRY PETERSON vs. THE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
83 Md. 194; 34 A. 834; 1896 Md. LEXIS 53

 March  26, 1896, Decided

   PRIOR HISTORY:  [***1] Appeal from the rulings of the Circuit Court for  Anne Arundel  County (REVELL and JONES, JJ.) upon the trial of an indictment charging the appellant with having sold liquor to R. R. Cook, a minor under the age of twenty-one years, contra formam statuti. The appellant was convicted and sentenced to pay a fine of $50 and costs. The first three exceptions are set forth in the opinion of the Court. In the fourth exception, the traverser, further to attack the credibility of the State's witness (Cook), asked the witness, Rooney, "How long he had known the witness, Cook?" To which the witness answered, "About four years." The defence then asked the witness, Rooney: "State whether or not during that time, previously to the day named in the indictment, you have heard the witness, Cook, say that he was twenty-one years of age or over, and if he made such statements and was so generally considered in the community in which you both live?" Which, upon objection by the State's attorney, the Court refused to permit to be asked or answered.

DISPOSITION: Judgment reversed and cause remanded.

CORE TERMS:  beer, traverser, prosecuting witness, twenty-one, liquor, conversation, purchaser, selling, cross-examination, contradictory, admissible, answered, buying, immaterial, general reputation, proper foundation, credibility, contradicting, designated, confined, asking, saloon

COUNSEL: James W. Owens, for the appellant.
 
Harry M. Clabaugh, Attorney-General, for the appellee.

JUDGES: The case was argued[***2] before MCSHERRY, C. J., BRYAN, FOWLER, BRISCOE, PAGE and BOYD, JJ.

OPINIONBY: FOWLER

OPINION: [**834] [*195] FOWLER, J., delivered the opinion of the Court.

   The appellant was indicted in the Circuit Court for Anne Arundel County for selling beer to a minor. He was convicted and sentenced. During the course of the trial four exceptions were taken by the traverser. We will briefly consider them in the order in which they arose in the Court below:

   1. Robert R. Cook, prosecuting witness, who was the only witness produced by the State, testified that he was a minor, and that on the day named in the indictment he purchased from the traverser one glass of beer and paid for it. On cross-examination of this witness the traverser asked him the following questions: "Did you not at the time of buying said beer represent yourself to be over twenty-one years of age?" To the asking of this question the State objected, and the objection was sustained on the ground that it was immaterial whether the witness had so represented himself to be of age or not. It is clear that no testimony is [*196] admissible in a case like this for the purpose of showing an absence of any intent to violate the law[***3] which [**835]prohibits the sale of liquor or beer to a minor. For under the ruling in Carroll v. State, 63 Md. 551, 3 A. 29, if the purchaser be in fact a minor it will not avail the traverser to show that he believed and had a right to believe, for any reason, that he was an adult. It was upon the authority of the case just cited that the Attorney-General justified the ruling of the Court below, and if there were no other reason why the question should have been allowed, the ruling would have been free from objection.

   The material fact of the minority of the purchaser of the beer had been sworn to by the prosecuting witness, and his testimony was the only proof of it in the cause, and it seems to us that the question was a proper one to be asked and answered for the purpose of laying a foundation to offer evidence of contradictory statements. If, in answer to the question proposed, the witness had admitted that he had on the occasion mentioned represented or stated that he was of age, the jury may very well have refused to believe the statement he made under oath in his examination in chief. And if he had denied that he made the statement in question, it[***4] is clear that evidence would have been admissible for the purpose of contradicting him, because the credit of a witness may always be impeached by proof of contradictory statements made by him in regard to material facts. When the proper foundation has been laid on cross-examination, and that such proper foundation had been laid was assumed below, for the ruling was based solely on the ground, as appears by the record, that the testimony which was sought to be introduced was immaterial. Taking the word "represented" to have been used in the sense of "stated," we think the question free from objection, and that it was error to have refused to allow it to be asked and answered.

   2. For the purpose of further attacking the credibility of the same witness, the traverser asked him the following question: "Have you not previously to the day on which you stated you bought said beer, repeatedly and generally stated [*197]that you were twenty-one years of age?" The Court below refused to allow the question to be answered, and we think properly so, for there is a total failure to designate in it either the time when, the place where, or the person to whom the alleged contradictory statement[***5] had been made.

   3. The testimony of the witness, Rooney, which was offered for the purpose of proving certain contradictory statements, was properly excluded because, although the time and place are sufficiently designated, the question was too general. The witness was asked if he had heard any conversation between the prosecuting witness and the traverser in the latter's saloon on the day the beer was alleged to have been purchased. The question should have been confined to the conversation in which, on the occasion mentioned, the purchaser of the beer stated he was over twenty-one years.

   4. And we also agree that the ruling set forth in the fourth bill of exceptions is free from error for the reasons already given in passing upon the second exception, and for the additional reason that the fact of minority cannot be proved in this case by general reputation.

   By reason of the error in the ruling set forth in the first bill of exceptions, the judgment will be reversed and the cause remanded.

   Judgment reversed and cause remanded. 

WILLIAM F. OWENS vs. EDWARD R. OWENS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 518; 32 A. 247; 1895 Md. LEXIS 70

 June  19, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff assessing his damages at $1,700. The certificate referred to in the opinion of the Court is as follows:
 
"Memorandum to be inserted in the record following the exceptions: At the request of the plaintiff, through his counsel, it is further certified, that after the evidence embraced in the aforegoing exceptions and after the rejection of the defendant's prayer, contained in the 5th exception, the defendant proceeded to examine witnesses on his behalf and the defendant himself testified in his own behalf, and in the course of his testimony testified to the fact that he went before the grand jury at the October term, 1892, (spoken of by the witness, Henry M. Murray, foreman of the grand jury), and stated to said jury that he abandoned the said charge against his brother, this fact the plaintiff asks to have inserted for the reason that even assuming that the Court were wrong in excluding the testimony which the defendant proposed to offer by the witness Murray, yet still no injury was done the defendant by such exclusion, inasmuch as[***2] by his own testimony he got before the jury substantially the reason why the grand jury dismissed the charge.
 
"It is also by the same request further certified, that after the evidence on both sides was closed, certain prayers for instructions to the jury were offered by both parties, those of the defendant (conceded by the plaintiff and granted by the Court) distinctly placing upon the plaintiff the burden of proof of showing the want of probable cause for the said prosecution of the plaintiff by the defendant. The Court not being fully satisfied of the propriety of the practice of certifying to anything taking place during the trial subsequently to the taking of the exceptions--yet, so as to do no possible harm to the plaintiff, this certificate is signed to avail as it may, and leaving to the Court of Appeals to determine upon the question of the right to so certify--the practice not appearing to be clearly settled. The defendant objects to the Court signing this certificate; but without waiving any of his objections, request the Court if it signs the certificate at all, to further certify that the defendant testified that as the plaintiff was his brother and had been sufficiently [***3]punished for his misconduct, and their father was an old man and very nervous and infirm, and this trouble was a great source of worry to him, he desired that the grand jury would not bring in any indictment against the plaintiff, or words to that effect.
 
"Witness our hands and seals, this 28th day of January, 1895, counsel agreeing that the foregoing be signed upon an understanding between counsel that it is subject to objection made in this Court by defendant's counsel, and with the right to defendant's counsel to press said objection in the Court of Appeals. Jas. Revell, I. Thomas Jones."

DISPOSITION: Judgment affirmed with costs to the appellee.

CORE TERMS:  grand jury, certificate, foreman, prayer, juror, kitchen, brick, ended, door, malicious prosecution, probable cause, arrest, assault, grand, permitted to testify, intent to kill, arrested, answered, threw, foot, want of probable cause, properly rejected, cross-examination, transpired, mitigation, abandoned, assign

COUNSEL: Frank H. Stockett and James M. Munroe, for the appellant.
 
D. R. Magruder and Robert Moss (with whom was J. R. Magruder, on the brief), for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, PAGE and BOYD, JJ.

OPINIONBY: BOYD

OPINION: [**248] [*520] BOYD, J., delivered the opinion of the Court.

   This was an action for malicious prosecution brought by the appellee against the appellant. At the conclusion of the plaintiff's testimony, the defendant asked the Court to instruct the jury that there was[***4] no evidence in the case legally sufficient to entitle the plaintiff to recover. The rulings of the Court in rejecting that prayer and in excluding some evidence, to be hereinafter referred to, are before this Court for review.

   It is contended on the part of the appellee that the prayer [*521] is too general and was properly rejected by the Court below on that ground. It certainly did not direct the Court's attention to the particular point or points in which the evidence, in the opinion of the defendant, failed. It is a practice not to be approved of; but, without stopping to discuss the form of the prayer, we think no sufficient reason has been given to justify us in saying that the evidence is so lacking in any material point necessary to sustain the plaintiff's case that it should not have been submitted to the jury.

   It is conceded that the plaintiff was prosecuted by the defendant for an alleged criminal offence--an assault with intent to kill. He was imprisoned in the county jail for about two weeks, when he was admitted to bail. It was shown by the evidence of the deputy clerk that no presentment had been found against the plaintiff, and by the foreman of the grand jury[***5] that the case was dismissed. There can, therefore, be no question that the prosecution had been finally terminated in favor of the appellee. Hyde v. Greuch, 62 Md. 577. A careful examination of the record satisfies us that there was abundant evidence from which the jury could find that the arrest was without probable cause. The testimony of the plaintiff not only tends to show that he did not assault the defendant, but that on the contrary he was assaulted by him. It is true that he admits that he threw a brick at the door of the kitchen connected with the house which he wanted to enter to see his father. But the circumstances, as detailed by him, which for the purposes of this prayer we must accept as true, were such that the jury may have well reached the conclusion that the charge made by the defendant was wholly unjustifiable. He was not acting on what others had told him, but on what he could see for himself. The plaintiff testified that "I told him (defendant) that I had come to see my father, and started to enter the kitchen door, and as I placed my foot on the step he shoved me back and I caught on my hands; as I fell back my hand [*522]came in contact[***6] with a brick, and I picked it up; my brother by this time had gone in the kitchen and left the door nearly closed, being prevented from closing it by my foot placed on the sill; I threw the brick at the door and then went in the kitchen." The jury might well have found, if they believed that statement, that the defendant was not justified in having the plaintiff arrested for committing an assault on him, with a brick, with intent to kill, and that the arrest was without probable cause. If they found that the arrest was without probable cause, they could infer malice, and there was, moreover, other evidence in the case to support that inference. It was clearly a case for the jury to pass upon, and the Court would not have been justified in withholding it from them. That prayer was therefore properly rejected.

   After the foreman of the grand jury had testified that the case against the plaintiff was dismissed, the defendant asked on cross-examination why it was dismissed. The Court refused to permit the question to be answered. The record shows that the witness had been permitted to testify that the case had been dismissed by the grand jury for the purpose of showing that the prosecution [***7]was ended. The evidence being admitted for that purpose, it is difficult to see the relevancy of the inquiry why it was dismissed--in other words, why it was ended. But different reasons might have influenced the grand jurors, and it was not competent for the foreman to undertake to give them. As was said in Elbin v. Wilson, 33 Md. 135: "All the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellow or himself, or the individual action of any juror in regard to the subject-matter before them." This is not such a case as Knott v. Sargent, 125 Mass. 95, relied on by the appellant. There the grand jury simply did not find a bill at the first term of Court--they did not dismiss the case. The recognizance which the accused had entered into required her to appear at the October [*523] term of 1874 of the Court, and at any subsequent term or terms until the final sentence, decree or order of that Court. It was held that she had not been discharged and the case was consequently not ended. The District Attorney was therefore permitted to testify that the case was[***8] continued before the grand jury by reason of the absence of the witness. Cases occur in which it is essential to call grand jurors as witnesses, but the rule should not be extended beyond what is necessary for the purposes of justice, and it would be exceedingly dangerous, in most cases, to permit them to explain or assign reasons for their actions.

   Much of what we have already said about the question involved in the first bill of exceptions applies to the second, third and fourth. In all of them the effort was made [**249] to have the foreman explain the action of the grand jury. The object seemed to be to show that the prosecution was abandoned at the instance of the appellant. We do not think that relevant. We must assume that the grand jury would not have dismissed the case, even at the instance of the appellant, unless they thought it proper to do so. There was no proffer to show that the appellant took such action at the request or with the knowledge of the appellee. Nor do we think that any effort on the part of the appellant to have the case dismissed could be offered in evidence, either in bar of the suit or in mitigation of damages. The appellee had already suffered[***9] the injury he complained of, as he had been arrested in the month of May before the October term of Court, when the case was dismissed, and had remained in jail for two weeks. It may be that the appellant believed he had done his brother a wrong, or he may have been anxious to relieve himself from farther liability, or he may have acted from a desire to save his father from annoyance and his brother from further trouble, but whatever his motive was his action then would not compensate the appellee for the injury already done him. Of course the dismissal of the case did not preclude the appellant from showing that the appellee was in fact guilty, [*524] and the learned Judges below have certified that they granted prayers instructing the jury that the burden of proof of showing a want of probable cause was on the plaintiff. That was, evidently, because the testimony of the foreman of the grand jury had only been admitted to prove that the prosecution was ended and not for the purpose of showing a want of probable cause. But the certificate of the Judges also shows that after the exceptions were taken by the defendant he testified that he went before the grand jury and requested[***10] them not to indict his brother. So we find that he did get the benefit of the testimony he is complaining of having been excluded. It is contended on the part of the appellant, that this Court cannot consider the certificate of the Judges. No authority has been offered to sustain that position, and we can see no reason why it cannot be done under such circumstances as those in this case. All of the exceptions were taken before the plaintiff closed his case. It has been frequently decided by this Court that even if an error be committed by rejecting testimony, and it is subsequently admitted during the trial of the case, the judgment should not be reversed on account of the original error. A bill of exceptions ordinarily only contain what has transpired, and is relevant to the time the exception was noted, and it may be signed at once. If subsequent to that time the error is corrected, cannot the trial Judge certify that fact to the appellate Court? For example, suppose the defendant had called the foreman of the grand jury as his witness, and had asked the identical question stated in these bills of exceptions, and the witness had answered them without objection or with the permission[***11] of the Court, could it be said that if the Judges below had already signed the exceptions they could not inform this Court of what subsequently transpired? There ought to be no doubt about their right to do so, for if this Court deemed the ruling of the Court below, as set out in the exceptions, reversible error, it might reverse the judgment for the exclusion of testimony which in point of fact was before the jury. The certificate was [*525]filed the same day the bills of exceptions were and expressly refers to them. If the exceptions were not signed before the testimony was taken by the defendant, the Judges might have inserted in them the facts stated in the certificate; but as they did not, there can be no valid objection to their signing a certificate of this character to be taken in connection with the exceptions.

   As we find no error in the rulings of the Court below, the judgment must be affirmed.

    Judgment affirmed with costs to the appellee. 

JAMES J. GRAY vs. THE FARMERS' NATIONAL BANK OF ANNAPOLIS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 631; 32 A. 518; 1895 Md. LEXIS 89

 June  19, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County, in Equity (ROBERTS, C. J.), dismissing the appellant's bill of complaint. The case is stated in the opinion of the Court.

DISPOSITION: Decree affirmed.

CORE TERMS:  renewal, cashier, surety, discount, renewal note, renew, deed of trust, board of directors, notified, renewed, assent, new note, overdue, acquiescence, deposited, reply, special authority, discharged, conferred, officii, virtute, bind, duty, principal debtor, old note, communicated, co-sureties, insisted, deposit, to-day

COUNSEL: George R. Gaither, Jr., and Harry M. Clabaugh, for the appellant.
 
James M. Munroe, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, PAGE and BOYD, JJ.

OPINIONBY: PAGE

OPINION: [**518] [*632] PAGE, J., delivered the opinion of the Court.

   In May, 1875, Dr. Benjamin R. Davidson applied through Judge Hagner to the Farmers' National Bank for a loan of nine thousand dollars. In April, of the same year, the Judge wrote to Dr. Davidson as follows: "I mentioned your matter at the board to-day, and I think it can be adjusted in this way: You all have a note there now for $3,800. The new note will include this, and will pay it off. It will be signed by Mr. J. Wilson Iglehart, as I understand, and some other surety, omitting Talbot. Then you will all execute a deed of trust to secure the payment of the entire indebtedness. This deed of trust can be made to sureties, or to some one else of your own selection;" and on the 28th of April, "the [***2]board has agreed to your proposition, except as to the length of time." In pursuance of this agreement, Dr. Davidson and George Davidson executed and delivered to the bank their note for the sum mentioned, payable six months after its date, with Jane Davidson, William G. Mackall, Sr., and John W. Iglehart as sureties; and to secure the bank and the said sureties from all loss by reason [*633] thereof, also executed a deed of trust to Judge Hagner, covering certain lands situate in Anne Arundel County. Judge Hagner prepared these papers, and it is insisted by the appellant that in so doing he was acting as the attorney for the bank. The appellee denies this and affirms that though the Judge was at the time a member of the board of directors, he was not its attorney, but was in fact employed by the Davidsons. In the views we shall express, we do not regard this question as at all material. The note thus given was from time to time renewed, and on the nineteenth of December, 1884, Messrs. Iglehart & Mackall having died, Mr. Brashears and the complainant were accepted as sureties in their place. On the fourteenth of July, 1887, the note being then overdue, the bank brought suit and[***3] obtained judgment on the seventh day of October, 1887, against all the parties, including the complainant, for $9,264.45 and costs. On the eighth of March, 1893, the complainant filed his bill, in which he prayed that this judgment [**519] should be declared void as to him, and an injunction issued restraining the bank from taking any steps against him to collect the same. In addition to the above facts, the bill alleges that the complainant signed the renewal note at the request of the Davidsons; that the circumstances connected with the making of the loan, and "the fact that the bank held said deed of trust upon the property as primary security," were stated to him and "fully understood by him as a condition" for his so doing; that in the early part of 1885 he informed the Davidsons he would "no longer place his name on the renewal notes," and that other arrangements must be made;" that thereupon the said Davidsons presented to the said bank a renewal note for said loan without the name of the complainant, and he is informed the bank accepted the same, and received from them a discount for an extension of six months. That when suit was brought on the note in 1887, he was falsely[***4] informed by the cashier that the renewal note had not been accepted, and in consequence made no defence, whereupon [*634] judgment was rendered against him. The bill further alleges that he urged upon the officers of the bank in frequent interviews, "the necessity for an immediate sale" of the property covered by the deed of trust, and the president agreed in the winter of 1889 that it should be sold in the following June, but despite this and other urgent requests on the part of the appellant, it remained unsold until December of 1891. That in meantime it had greatly depreciated in value, and taxes and interest had accumulated to such an extent that it failed by a large sum to bring enough to pay the claim of the bank. The defendant, in its answer, denies these charges, and in substance avers that the note upon which the suit of 1887 was instituted was the last ever accepted for the renewal of the original note for the Davidsons' loan, or upon which discount was paid; that no note was ever accepted without the name of the complainant; that until that suit was brought, no steps had been taken to enforce collection by law, and that when the appellant requested it to sell the property[***5] covered by the deed of trust, it was suggested to him to "pay off the note and take such steps as he deemed necessary." That by reason of the prospect of the speedy completion of the Drum Point Railroad, which then seemed reasonable, it was probable the lands would greatly enhance in value, and it would therefore be to the advantage of all parties to wait until the road was running; and that the delay in advertising the property was due to that cause, the illness of Mr. Revell, and the necessity that arose for legal proceedings to bring in other parties.

   The first question that arises, therefore, is, does the proof sustain the statement in the complainant's bill, that in January, 1886, the Davidsons presented to the bank a renewal note for another period of six months, without the name of the complainant, and, if so, did the bank accept it and receive the discount?

   It appears from the proof that Mr. Gray notified Dr. Davidson that he would not be able to go on his note [*635] again, by letter dated the 6th of March, 1885. The note then outstanding with Mr. Gray's name on it as one of the sureties, became due on the 22nd June. The directors were made aware of Mr. Gray's refusal[***6] on the 12th August, 1885. On that day, a note for renewal, without Mr. Gray's name, was presented, declined by the board, and returned by Mr. Randall to Dr. Davidson. Both the Doctor and Mr. Gray were notified by letters, bearing date the 12th August, 1885, of this action of the board, and Mr. Gray was also notified that "unless the note can be renewed with your name or some other, considered equally good, the whole business will have to be closed up, by suit, against all the makers on the note, which we hold overdue, yourself among the rest." To Dr. Davidson, the president, after stating what had been done by the board, concludes his letter of the 12th August as follows: "I have informed Mr. Gray that the whole business will have to be closed up by suit against him and all the others, &c. * * Mr. Gray, no doubt, has just cause of complaint, for there has been very little, if any, reduction of the note for years, but he does not avoid responsibility by refusing to sign a renewal note, for he is on the one which we hold. I return the note" (that is, the renewal note), "and his letter; please see him at once, and have the matter put in shape." Dr. Davidson also sent to the bank, on June[***7] 25th, two hundred and fifty-one dollars and eighty-seven cents, whereupon the cashier addressed him a note stating he "inclosed a blank for your note due 22nd inst. I credit you $251.87; this will leave a balance still due on discount of $11.40." This balance was probably paid to the bank on July 28th, so that when the directors met on the 12th August, while the money for the discount was to the credit of Davidson with the bank, yet Mr. Randall distinctly states that it was to the credit of the Doctor upon "the individual ledger;" that is, as he explains, to his individual credit, and, like any other deposit, subject to check. Mr. Randall explains the course of business, in such cases, as [*636] follows: "When a note has been running for more than one or two renewals, all sums deposited for discount or interest, by the person in whose name the note stands, or is carried on our books, is carried to the individual credit of that person on the individual ledger of the bank, like any other deposit made by him, and if the board of directors agree to renew the note when it is presented to them for renewal, the amount of the old note is charged to the individual and the proceeds of[***8] the new note is credited to the individual." The proof is conclusive that the action of the board on the 12th August was to positively decline renewing the note without Mr. Gray's [**520] name. After this, the matter seems to have rested until late in the year. On the 31st December, the president, in reply to a letter of the 29th, urges Dr. Davidson to take some action towards renewing the notes. He says, "it is absolutely necessary;" "they can't be allowed to remain over longer;" "the bank has certainly shown its anxiety not to distress you, and if you can give us two names as good as Gray's, as you say you can, and pay the back interest and discounts on the renewals, matters can go on for awhile, and you can have a chance to bring in your crops, &c." "I enclose you notes for renewal, and a mem. of back int. due and amt. of discount for renewals." Not receiving a reply to this, on 13th January Mr. Randall writes again: "I have heard nothing from you in regard to a renewal of the notes to this bank and substitution of two names in lieu of that of James Gray's, as proposed by you." He then refers to a letter from R. W. Templeman, asking, in the event of his loaning Davidson $8,500, [***9] if the bank would posptone its lien in his favor, and concludes: "The board has taken up the whole matter afresh, and in view of your efforts to improve matters and better prospects of avoiding a sale, which seemed inevitable, they now agree to renew your notes without Gray's name, and to let matters rest; you, of course, paying all interest and discounts now due * * * I sent you notes ready for renewal, &c., and I want you to come up this week, without fail, and see [*637] me and fix matters." To understand this letter properly, we must refer to the action of the board of directors. It appears from the letter of 31st December, cited above, that the president had written to Davidson in regard to a renewal of the notes and the substitution of two names in place of Gray's, and had sent him the notes "ready for renewal." As hinted at in the letter last cited, in which Mr. Randall used the words "in view of your efforts to improve matters and better prospects of avoiding a sale," it was then thought that Davidson would be able to effect a loan from other parties, and thus be enabled to make a payment to the bank, in which event the directors were willing that Mr. Gray should be released, [***10] provided the other sureties would assent. Mr. Randall in his testimony so states, and Dr. Davidson admits that it was understood at the time he received this letter, that the release of Mr. Gray was qualified by the necessity of securing other security in his place; and among the proceedings of the board of the 13th January, appears the proposition of Dr. Davidson and the action of the board, as follows: "Proposition to renew his note in full without James J. Gray's name, all parties to note to agree in writing that the notes shall be renewed without Gray's name. Agreed to." What the meaning of this letter was, however, is not very important, for it is clear that no renewal was in fact accepted. The proceedings of the bank show that the subject was frequently before the board, and its repeated refusal to renew without the name of Mr. Gray. The correspondence makes it clear that the action of the bank was always a refusal to do so, except with the assent of the other sureties. On the sixth day of October, 1886, Mr. Randall, in writing to Dr. Davidson, said: "The board has assented to the renewal of the note without Mr. Gray's name, provided the assent of the parties to the note, particularly[***11] that of Mr. Brashears, was first obtained in writing. Yesterday Mr. Brashears was at the bank and informed us that he would not agree to renew the note unless Gray signed with him. To-day the board declined to release [*638] Gray and Brashears, and consequently you will have to take up the loan." Davidson himself does not say there was a renewal; in his testimony, he says, that in June, 1885, "the note was offered without Mr. Gray's name and discount paid;" but in reply to the 37th and 38th cross-interrogatory, as well as in his letter of 3rd Sept., 1887, he explains that by stating that it was because he had sent in the note, and paid to the bank money for the discount; that he supposed that was the equivalent of accepting the new note, and thereby Mr. Gray was released. Mr. Randall, in his testimony, states most explicitly, that no renewal note was accepted after the 19th December, 1884; and in this, we think, he is corroborated by the overwhelming weight of all the evidence in the cause. It may be added, that it seems that Mr. Gray knew nothing of these transactions until September, 1887, when the summons was served on him to appear in the suit instituted by the bank. Thereupon[***12] he communicated with Dr. Davidson and received his reply bearing date the 3rd September. He has no information touching the alleged renewal, and does not testify upon the subject. By an amendment to his bill the complainant charges that the note was renewed without his name during the month of January, 1886. We are of opinion, however, that there was no actual renewal at any time, and the complainant is still bound as surety, unless he has been released, as will be hereinafter considered.
 
   2nd. But it is contended that even if it be conceded that a new note was not accepted by the bank, in lieu of the note of the nineteenth of December, 1894, yet that Mr. Gray was discharged by the fact that the bank received the discount or interest in advance on the old note, after having been notified of Mr. Gray's refusal to have the note further extended. It was insisted that the letter of Mr. Randall, of 13th January, 1886, contains an express agreement to that extension. But we have shown that the expressions in that letter must be construed in the light of the existing circumstances, and meant only that the bank would release Mr. [*639] Gray, provided the assent of his co-sureties could[***13] be obtained. It would seem, however, that Davidson expected to be able to renew [**521] the note, and for the purpose of having the funds ready to meet the discount, had at divers times deposited with the bank various sums, until on March 19, 1886, there was to his credit $485.10. These, as they were received, were placed to the credit of his individual account, according to the usual course of business as already explained. On that day, the note then being overdue (since the preceding June), the cashier made the following entry: "1886, Mar. 19th--Int. on note, $8,584.76; 11 months, 6 days int., $485.10," and placed the same upon the credit side of the bank's account with Dr. Davidson. This seems to have been done by him upon his own responsibility. Mr. Green, an officer of the bank, upon being asked by what authority it was made, replied, "that was made with the cashier. I suppose it was done just about dividend time; that note was almost due over a year, and I suppose he credited it up, and had that money due to his credit on his personal account." This sum was not received by the bank as discount, but merely, as we have seen, as a deposit of Davidson, and subject to his check, [***14] but to be applied as discount when a renewal note was accepted, and as it already has appeared, no such renewal note was accepted. The old note on the 19th March was still outstanding, and was long overdue. It was under these circumstances, within the right of the bank to apply it to the credit of the note, so as to operate as a payment pro tanto of what was due upon it. Farmers and Merchants' Bank v. Franklin Bank, 31 Md. 404--and even if it be conceded that the cashier was invested with the power, virtute officii, to make such entries as would effect this result, yet it cannot be pretended that if in so doing he employed such terms as to import a new contract, by which an existing contract is abrogated, and a surety is discharged, the board of directors would be bound by such entry, unless the particular act was authorized, by the general [*640] usage of the bank, or by special authority conferred upon the cashier, or confirmed by the acquiescence of the board made with a full knowledge of the facts. There is not the slightest proof in the cause of any special authority having been conferred upon the cashier to make the entry, in the form in which[***15] it appears. The by-laws are not in the record, but the learned Judge who decided the cause below has said in his opinion that these "do not authorize or justify any officer to accept notes and discount the same, in the summary method suggested;" and Mr. Randall, the president, and Mr. Green, both testify that by the usage and rules of the bank, no officer has anything to do with the renewal of a note "that lies with the directors." It is well settled, that in virtute officii, a cashier has no power to discharge a surety. Savings Bk. v. Sailor, 63 Mo. 24; Merchants' Bk. v. Rudolf, 5 Neb. 527; Bank v. Haskell, 51 N.H. 116.

   In the case of the Chemical Nat. Bk. v. Kohner, 8 Daly 530, the law was stated as follows: "A cashier is the business officer of the bank, but only in the sense of one who transacts, and not one who regulates or controls its affairs. His duty has reference to daily routine business, and not to matters involving discretionary authority, which belongs, unless delegated, to the board of directors; as has been quaintly said, "they are the minds and he is the hands of the corporation[***16] * * * It will not be disputed that when a special authority is conferred upon him, or when he acts in conformity with a general usage, or an established acquiescence of his board of directors, the bank will be responsible for such acts, though beyond the ordinary scope of his duties." The United States v. The City Bk. of Columbus, 21 HOW 356, 16 L. Ed. 130. To the same effect was the ruling of this Court in Ecker, Ectr., v. First Nat. Bk. of New Windsor, 59 Md. 291. There JUDGE MILLER, speaking for the Court, said: "In our opinion, a cashier, as such, has no power to accept a note signed by two parties only, in payment and discharge of a note upon which another party was also bound, with the two, so as to release such third [*641] party from his indebtedness to the bank; such an act does not fall within the well-known range of powers and duties naturally and necessarily pertaining to the office of cashier. He cannot virtute officii release a surety upon a note, &c. * * But notwithstanding the cashier has no power thus to bind the corporation * * still it was competent for the directors to ratify his act, when it was communicated to[***17] them, and if they approved it, or with full knowledge acquiesced therein, the bank will be bound as effectually as if previous authority had been expressly delegated by them." There is no proof establishing the approval or acquiescence of the directors in the act of the cashier, so far as respects the particular form of the entry, or that it was in fact ever communicated to them. It is certain, however, that they acted all the time upon the hypothesis that nothing had been done or agreed upon to release Mr. Gray without the assent of his co-sureties. It is hardly presumable they would have continued to discuss the question of a renewal without his name, as late as the sixth of October, 1886, if they had acquiesced in the act of the cashier made in the March preceding, whereby Mr. Gray had been already released. Nor can their acquiescence be inferred from the retention of the money, for this they had the right to do, as we have seen. It is the particular application made by the cashier that is important, and not the retention. In the cases cited by the appellant, as in The People's Bk., &c., v. Man. Nat. Bk., 101 U.S. 181, 25 L. Ed. 907, the bank obtained the money[***18] through the very transaction that it afterwards sought to repudiate. Here the bank received the money rightfully, and seeks only to repudiate the unwarranted act of the cashier, in so crediting it on its books, as to bind them to the [**522] making of a new contract, by which a surety will be discharged. On July 14th, 1886, and again on 6th October, 1886, they held meetings, and on both occasions declined to renew without Gray's name, and prior to either of these dates had taken the same action. In view of these facts, it seems difficult to understand how it can [*642]appear that by a mere technicality, resulting from an unauthorized act of the cashier, the bank can be held to have entered into a valid contract for a renewal, so as to disable itself from suing upon the original note. Its repeated action in declining to renew, can be considered in no other light than a positive repudiation of the particular application of the fund made by the cashier. The extension of time in cases like this "is a question of mutual understanding and intention, and like other contracts, the agreement of the parties may be derived from and inferred by acts, declarations, facts and circumstances. [***19] " Brooks v. Wright, 13 Allen (Mass.) 76; Myers v. Wells and Magee, 5 Hill 463.

   Nor do we find in the letter of the president of the bank of the sixth of October, 1886, an implied confirmation of the cashier's application. By the usage of the bank and by the by-laws, as stated in the opinion of the Judge below, no officer was authorized to bind the directors to such a contract. Moreover, that letter was written seven months after the entry was made, and in the same letter he informs him that "to-day the board declined to release Gray, &c." For these reasons we cannot hold that the note in question has been renewed without Mr. Gray's name, or that he is released by the effect of the entry so made by the cashier, or by the dealings of the bank with the fund standing to the credit of Dr. Davidson at the time that entry was made.

   3rd. Another point raised by the bill and answer was, that the bank having agreed in June, 1889, with Mr. Gray, to foreclose the mortgage deed of trust, allowed two and a half years to elapse before the sale, and, in the meantime, by reason of the accumulation of taxes and interest, and of the depreciation of the property, [***20] the proceeds of sale proved insufficient to pay the debt. Of this, we may dispose in a few words. It seems that Mr. Gray, in 1889, offered to pay $2,500, provided he should be released, and if this was not accepted, insisted upon a sale. The board rejected the proposition to release him on these terms, but [*643] decided to advertize the property, and so notified Mr. Gray by letter. There is much evidence in the record tending to prove the cause of the delay that ensued; but we deem it unnecessary to advert to it, except to say that it does not appear that the bank ever took possession of, or assumed any control over the property. Stating the proof in its strongest aspect against the bank, its action amounted to no more than inaction or passive delay, and when that is the case, there is no impairment of the creditor's right to resort to the surety. McShane v. Howard Bank, 73 Md. 135; King v. Baldwin, 2 Johnson's Chan. 555.

   If the surety desires to expedite payment, he may pay the debt, and by that means put himself in the place of the creditor, or he may call on the creditor, by the aid of a Court of Equity, to proceed against the debtor[***21] upon giving the proper idemnity against costs and delay. Freaner v. Yingling, 37 Md. 491; King v. Baldwin, supra.

   There were other questions discussed at the hearing and in the briefs of counsel, but we do not refer to them, inasmuch as it follows from what we have said that the decree appealed from must be affirmed.

   Decree affirmed. 

WILLIAM STEARNS vs. THE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 341; 32 A. 282; 1895 Md. LEXIS 75

 June  18, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal and writ of error from the Circuit Court for  Anne Arundel  County. The case is stated in the opinion of the Court.

DISPOSITION: Judgment reversed and information quashed with costs.

CORE TERMS:  pool, trotting race, unlawfully, race track, duplicity, horse, agricultural, conjunctive, indictment, selling, betting, bet, disjunctive, games, disjunctively, conjunction, knowingly, convicted, gamble, to-wit, exhibiting, criminal pleading, criminal information, single count, horse race, interposed, distinctly, negatived, gambling, demurrer

COUNSEL: Robert Moss and Daniel R. Magruder, for the appellant.
 
The information contains five counts. None of the counts negative the exception contained in the enacting portion of the Act, and this omission is fatal to the information. See State v. Nutwell, 1 Gill, 54; State ats. Bode, 7 Gill, 330; Rawlings v. State, 2 Md. 211; Barber v. State, 50 Md. 167. It is not alleged in any of the counts that a race was actually run. 2 Humphrey's Tenn., page 424.
 
Under the information as drawn, it was impossible for the traverser to know for what offense he was called upon to make defense. In each count it is alleged disjunctively that the race upon which the pool was sold, book made, betting or gambling done was a trotting race or running race without alleging either. Wharton's Criminal Pleading and Practice, 9th edition, page 112, and cases there cited; Bishop's Criminal Pleadings, vol. 1, page 352; State v. Nutwell, 1 Gill, page 42; Capritz v. State, 1 Md. 573; Spielmon v. State 27 Md. 523. The first, third and[***2] fifth counts do not even allege the kind of race run or the animals that participated.
 
John Prentiss Poe, Attorney-General, for the appellee.
 
The information is not defective because it failed specifically to allege whether the race was a "trotting race or a running race." Such particularity ought not to be required. For the purposes of the statute, it is wholly immaterial whether the race was a "trotting race or a running race." The essence of the offence charged, is that the appellant did gamble on the result of a horse race at Sheep's Head Bay; that he did bet on the result of such race; that he did make and sell books and pools on the result of a horse race; that he did keep a house for the purpose of making or selling therein, books or pools, or betting therein, on the result of horse racing; that he did use a house for such purpoes, and that he did knowingly suffer a house to be used for such purpose. All these distinct acts are charged against him in the five counts of the criminal information. All of them are admitted by the demurrer, and certainly it would seem like sticking in the bark to hold that the information is defective, because it does not distinctly allege[***3] whether the race upon which the bets were made, was a "trotting race or a running race." It was a horse race, and whether one or the other, the statute equally applies, for it is to be observed that the language of the Act is, "any trotting race or running race of horses or race of any kind."

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE, ROBERTS and BOYD, JJ.

OPINIONBY: BRISCOE

OPINION: [**282] [*343] BRISCOE, J., delivered the opinion of the Court. 

   The appellant was tried and convicted in the Circuit Court for Anne Arundel County under a criminal information filed by the State's Attorney for that county for unlawfully gambling, contrary to the Act of 1894, chapter 232. The information contains five counts. The first charges the appellant with unlawfully gambling on the result of a certain trotting race or running race on the Sheepshead Bay race track, in the State of New York; second, with unlawfully making books and pools on the result of a certain trotting race or running race of horses on the same race track; third, with unlawfully keeping in Anne Arundel County a certain place, to-wit, a house for the purpose of making or selling therein books[***4] or pools or betting therein on the result of a certain trotting race or running race on the same race track; fourth, for using a certain place there, to-wit, a house for the purposes aforesaid; and fifth, unlawfully did knowingly suffer such house to be used for the purposes aforesaid.

   To these counts a general demurrer was interposed which was overruled by the Court. The appellant then waived his right to plead over, was convicted and from the judgment so entered against him this appeal has been taken. The main grounds of error assigned and relied upon by the appellant are: 1st. Because the information omits to negative the exception contained in the proviso of the statute. [*344] 2nd. Because the information did not allege the kind of race upon which the book or pool was sold or bet made, but charged the [**283] same in the alternative as being a trotting or running race, without specifically alleging the one or the other, and 3rd. Because of duplicity, in that each count charges several distinct offences.

   In support of the first objection it is contended that the information is defective, because all the counts omit to negative the exception contained in the statute[***5] (Act of 1894, ch. 232), which provides that nothing in this section shall render it unlawful for any person to make a pool or a book or to bet within the grounds of any agricultural association or upon any horse race which shall be held within the same grounds within a limited period. But this objection we are of opinion cannot be sustained. The averment in each of the five counts of the information distinctly sets forth that the offence was committed in Anne Arundel County, while the race was at Sheepshead Bay race track, in the State of New York. The allegation that the race took place at a certain race track in the State of New York manifestly negatives the exception in the statute that the race was held within the grounds of an agricultural association within this State. Where a statute contains an exception so incorporated in its enacting clause that the one cannot be read without the other, the indictment or information must negative the exception. But when, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as matter of defense. But in this case the exception contained in the proviso of the statute[***6] is sufficiently negatived by the averment in the information itself.

   The second and third objections made by the plaintiff in error to the information we however think are well taken. The Act of 1894, chapter 232, upon which this information is based, provides that it shall be unlawful for any person or persons or association of persons to gamble or make books and pools on the result of any trotting race or running [*345] race of horses, or race of any kind, or to establish, keep, rent or use, or knowingly suffer to be used or occupied, any house, building or portion of a building, vessel or place, on land or water, for the purpose of making or selling therein any book or pool or of otherwise betting therein or thereon, upon the result of any trotting race or running race of horses or race of any kind, except upon the grounds of any agricultural association within a limited period in any one calendar year. Now, it is well established that certainty to a reasonable extent is an essential requirement of criminal pleading where conviction is followed by penal consequences One of its objects is notice to the party of the nature of the charge, so as to enable him[***7] to defend against a second prosecution of the same crime by pleading a former acquittal or conviction. The certainty required in an indictment, says Mr. Bishop in his work on Criminal Procedure, depends often upon properly choosing between "and" and "or" as the conjunction, and he lays down the rule that whenever the conjunction "or" would leave it uncertain which of two things is meant, it is inadmissible, and in its stead "and" may be employed. If a statute makes it a crime to do this or that or that, mentioning several things disjunctively, all may indeed, in general, be charged in a single count, but it must use the conjunctive "and" where "or" occurs in the statute, else it will be defective as being uncertain. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute has "or" and it will not be double, and it will be established at the trial by proof of any one of them. Bishop on Criminal Procedure, sections 436-586; Archbold's Crim. P. & P., vol. 1, 283, note 1; Wharton's Crim. P. & P., 161; Chit. Crim. Law, 231, [***8] and cases there cited; 10 Amer. & Eng. Encly. of Law, 599.

   And in Leath v. Commonwealth, 32 Gratt. 873, the Court of Appeals of Virginia in passing upon an indictment upon a statute, a case somewhat similar to the one here, [*346] says: "The Court pursues the language of the statute in describing the enumerated games or tables, except that it substitutes the conjunctive "and" for the disjunctive "or," and in so doing it charges really but one offence, to-wit, the keeping and exhibiting all the games or tables named at the same time and place, and such count is supported by proof of the keeping or exhibiting of any one of the games or tables mentioned." And in Tierman's case, 4 Gratt. 545, it was held that an indictment charging in conjunctive form an unlawful playing and betting, where the statute made it unlawful to play or bet, was not bad for duplicity. And the cases of Rasnick v. Com., 2 Va. cases, 356; Wingard v. State, 13 Geo. 396; Hinkle v. Com., 4 Dana 518; Ainsworth v. U. S., 1 Appeal Cas. D. C. 518, and numerous decisions in other States are to the same effect.

   It seems[***9] to us, then, that the information in the case here is clearly defective for duplicity. In all of the five counts the alleged offence is charged disjunctively or in the alternative. The pleader could have inserted separate counts charging the several offences, and the party would have been convicted if warranted by the proof of either offence; or the conjunctive "and" could have been substituted for the disjunctive "or" where there was one offence, and as we have seen, the information would not have been bad for duplicity or repugnancy. But it is insisted upon the part of the appellee, that assuming the first and second counts to be defective, the offence of keeping or using, or suffering to be used, a house for the purposes prohibited by the statute, is sufficiently alleged in the third, fourth and fifth counts of the information. It will, however, be observed that the offence under the statute is for keeping a house for some one of the purposes mentioned therein, and all of these purposes are distinctly alleged in each [**284] count in the disjunctive or alternative. It is therefore sufficient to say that they are equally open to the same objection as applies to the first and[***10] second counts, for the reason heretofore assigned by us.

   The demurrer will therefore be sustained, and the judgment [*347] reversed. This reversal, however, does not relieve the party from further liability. He was not tried on a valid information and was not put in jeopardy. He can be re-arrested, and upon a new information can be tried again. State v. Williams, 5 Md. 82; Hoffman v. State, 20 Md. 425.

   Judgment reversed and information quashed with costs. 

GEORGE T. MELVIN AND HENRY S. MANCHA vs. J. WEST ALDRIDGE ETAL. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 650; 32 A. 389; 1895 Md. LEXIS 86

 June  18, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County, by which the defendants' exceptions to the accounts stated by the plaintiffs were overruled, and it was ordered that defendants should pay to the plaintiffs the sum of $1,673.27. The plaintiffs, J. West Aldridge et al., being the owners of a tract of land near Annapolis, made an agreement in September, 1889, with the defendants, Melvin and Mancha, copartners, by which the latter were appointed agents to lay out and plat into lots and small farms the plaintiffs' land, and sell the same upon the best terms obtainable, subject to certain restrictions. Among these in the power of attorney executed to the defendants were the following:
 
"The dwelling houses and other buildings upon the property at this time, and the quantity of ground you may think advisable to plat with them, you are hereby authorized to sell at a price to be concurred in by us, and your compensation on such sales shall be five per cent. upon the amount of sales of such buildings and grounds last aforesaid so sold. You are also authorized to lease any of the buildings and grounds for such time and upon such terms as you may deem advisable, not to interfere[***2] with sales. The revenue from the property so rented (until the same shall have been sold), shall be made sufficient for you to pay the usual insurance and taxes upon this entire property, which shall fall due after Dec. 31, 1889, until the expiration of your control thereof; and be made by you sufficient also to meet the interest on the debt of five thousand dollars (now a lien on this property), which shall accrue from the 31st day of November, 1889, till said debt of five thousand dollars shall have been liquidated by the net proceeds of purchase money from all sales received from time to time, which purchase money shall be thus applied by us. If there should be any excess of rent realized above the amount necessary to pay said items of insurance, taxes and interest, said excess of rent shall be used by you in such repairs and improvements upon the buildings or lands as may be concurred in by us. The rate of eighty dollars ($80) per acre (or in that proportion of price for a smaller quantity than an acre), shall be the lowest limit at which you are authorized to sell any of the lands, unless we shall hereafter agree to reductions or deem it advisable at the beginning of the enterprise[***3] to make concessions in price on small lots to persons purposing to erect buildings and other improvements thereon immediately; provided, however, that after one year from this date the lowest authorized price shall net us not less than the rate of eighty dollars per acre, and the eight per cent. per annum increase hereinbefore stipulated.
 
"We agree to allow you as compensation out of the gross proceeds of such sales, not hereinbefore specified, five per cent. on any lands sold at the aforesaid rate of eighty dollars per acre (or less than eighty dollars per acre in cases of concession), provided such sales shall not yield us less than the rate of eighty dollars per acre (less commissions), or if sold in smaller quantities than one acre, then in that proportion; if sold above the rate of eighty dollars per acre, we agree to allow you an additional commission of twenty-five per cent. of the excess of this rate up to one hundred dollars per acre, and if sold at the rate of more than one hundred dollars per acre, we agree to allow you (over and above the five per cent. and the twenty-five per cent. last stipulated), an additional commission of fifty per cent. of any excess you may [***4]obtain above said rate of one hundred dollars per acre."
 
The bill of complaint was filed by the appellees in December, 1892, and sets forth numerous alleged violations of duty and of their contract, on the part of the appellants, in respect of their management and sale of the property, and in respect of their receiving, accounting for and paying over the proceeds of the sale, and the rents and profits. The bill, among other things, alleges that these agents had sold, in their own individual names, many of these lots, and retained the proceeds of sale; that after demands made upon them by the plaintiffs, they still neglected and refused to pay over such proceeds, or large portions thereof; that even the collecting of the purchase money by them was without warrant of law, or of their contract, and in spite of the protests of the plaintiffs; that these agents had altogether refused or neglected "to discover or render any account of the rents and issues and profits of said real estate," as contemplated by their contract, and until recently "had refused and neglected to discover and render any account of the sales made by them of lots or portions of said real estate." The bill further[***5] alleges in substance, that these agents pretend and claim the right to sell lots on the long credit or monthly instalment plan, and to extend their collections of such small instalments over as long a period as they please, and claim to have the right to retain and use the various instalments so collected, until after the last instalment, for any particular lot sold, is paid to them; and that not until then can they be called on to pay anything to the plaintiffs, or even to render an account to them as to such particular lot sold.
 
It further alleges, that these agents claim that if any purchaser fails to complete his purchase by paying the last or any instalment of his purchase money, then all prior instalments actually paid by such purchaser belong to them, Messrs. Melvin and Mancha, and that in a number of instances they had acted on such claims, and refused to pay over to the plaintiffs any part of such payments, or even to account with the plaintiffs for the same. It alleges, that the plaintiffs had then recently obtained from the defendants a statement as to lots sold, &c., which, on its face, purported to be "approximately correct," which the plaintiffs denied the accuracy[***6] of; that even according to that statement there was over $3,000 in the hands of Messrs. Melvin and Mancha, received by them from these instalment sales, which they were using and enjoying, and refusing to pay any part of to the plaintiffs.
 
Among other forms of relief, it is asked, that the defendants may, upon their several corporal and respective oaths, answer and set forth full and perfect accounts of the sales of lots and of money received on account thereof, and when and from whom; and of money received by them from rents, issues and profits, and how applied; and may set forth a full and perfect list of all contracts of sale, vouchers, &c., relating to the sale or lease or renting of the property. The bill also asks that an account, or accounts, may be stated, under the direction of the Court, concerning the various sums of money received by the defendants from sales of said real estate and from rents and profits thereof, &c.; that in such accounts the defendants may be credited with their lawful compensation, &c., and that what may be found to be due from them to the plaintiffs, together with lawful interest upon the same, may be decreed to be paid.
 
The defendants answered, [***7] denying most of the allegations of the bill, and in regard to the accounts asked for, stated that they were willing to furnish the same if required so to do by the Court. After testimony was taken, the Court below (REVELL and JONES, JJ.) decreed that the injunction theretofore issued in the cause be dissolved, and that so much of the prayer of said bill as asks for the rescission of the contracts therein mentioned, between the plaintiffs and the defendants, be refused. And further decreed that the plaintiffs are entitled to relief in the premises as to an account or accounts from the defendants, concerning the proceeds of sale of those portions of the real estate in the proceedings mentioned, heretofore sold by the defendants, or either of them, by virtue of said contract; and concerning the rents and profits of said real estate, or the portions thereof which have been under the control of the defendants, or either of them, by virtue of said contract. And further decreed, that the defendants' account with the plaintiffs concerning said proceeds of sale, and said rents and profits, and that for the purposes of such accounting, and for such other purposes as the Court may deem proper[***8] and right in the further progress of this cause, that the bill of complaint be retained.
 
Thereafter the proceedings set forth in the opinion of the Court were had and the decree made from which this appeal was taken.

DISPOSITION: Decree affirmed.

CORE TERMS:  instalment, decree, purchaser, purchase money, ratified, injunction, collected, readiness, complied, vendor, broker, fault, amounts collected, proceeds of sale, money loaned, time to time, accounting, abrogation, promptly, mortgage

COUNSEL: Daniel R. Magruder and Robert Moss, for the appellants.
 
J. Wirt Randall and James M. Munroe, for the appellees.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE, ROBERTS, and BOYD, JJ.

OPINIONBY: FOWLER

OPINION: [**390] [*655] FOWLER, J., delivered the opinion of the Court.

   The plaintiffs entered into a written agreement with the defendants, by the terms of which the latter were to take charge of, manage, lay out and plat into suitable lots certain lands owned by the former on the south side of Severn River, about one mile from Annapolis, and to develop and sell the same under certain conditions, as stipulated in the agreement just mentioned. It will be unnecessary for us to rehearse all these stipulations, for the main contention upon the merits of the case is based alone upon that which relates to the compensation the defendants are entitled to.

   The plaintiffs filed their bill in the Circuit Court for[***9] Anne Arundel County, charging the defendants with having violated their contract in almost every particular, and with having combined and confederated for the purpose of injuring and defrauding the plaintiffs. The bill asked for a [*656]rescission of the contract, an injunction to stay and prohibit the defendants from doing anything further thereunder, and for an account of the various sums of money received by the defendants for the plaintiffs on account of sales of lots, and on account of issues and profits and sales of timber and crops. The defendants answered, denying all allegations of wrong-doing on their part, and also that there was any ground set forth in the bill which would warrant the abrogation of the contract or the issuing of an injunction as prayed, but expressing a willingness and readiness to account fully whenever required by the Court. Testimony was taken by both parties, and the cause having been fully argued and submitted to the Court below, the bill was dismissed as to the prayers for abrogation and injunction and held for an account. There was no objection made to this decree by the defendants, for it only directed them to do what they had already in their[***10] answer expressed a willingness and readiness to do whenever required. By it, however, the Auditor was directed to state the accounts called for, and, for the purpose of convenience and economy, the counsel of the respective parties agreed that the accounts should be stated by the parties or their solicitors from the proceedings and proof, subject to exception, and that in this respect the said decree should be modified. In accordance with this agreement each party stated and filed an account, and each excepted to that filed by the other.

   The Court below adopted that of the plaintiff, and by its order of the 12th October, 1894, overruled the defendants exceptions thereto, except as to the one item of forty-two dollars and thirty-four cents, and sustained all the exceptions of the plaintiffs to the defendants' accounts. From this decree of the 12th October, 1894, the defendants have appealed, and have thus presented several questions.

   The plaintiffs contend that there is only one question before us, and that is the correctness of the accounts which were ratified below, while the defendants insist that by virtue of their appeal they also bring up the question of the jurisdiction [*657] [***11] of the Court below to pass the decree of the 27th of April, 1894, by which their bill was in part dismissed, and they were required to account. Although there may be some question as to whether the defendants did or did not consent to the passage of this decree, waiving this objection, we think they are not in a position now to assail it in this Court. Our Code provides (Art. 5, sec. 35) that "no defendant in a suit in equity in which an appeal may be taken shall make objection to the jurisdiction of the Court below, unless it shall appear by the record that such objection was made in said Court." Nor does it avail the defendants that this question may have been made by them in argument below, and was passed upon by the Judge below. This does not gratify the requirements of the section just cited. The objection must be specially taken by exception filed. Hubbard and Wife v. Jarrell, 23 Md. 66. But, as we have seen, so far from having filed an exception, the defendants offered themselves ready to do what they now contend the Court had no power to require them to do.

   The only questions, therefore, now open for review, are those presented by the decree ratifying the[***12] accounts filed by the plaintiffs. This account, which is designated as "Account Complainants, No. 1," was ratified by the order of the 12th of October, 1894, with one modification, namely, an additional credit of $42.34 was allowed the defendants, thus making the total indebtedness found to be due by the defendants to the plaintiffs to be the sum of $1,673.27, with interest from the institution of the suit. There was no objection made to the accuracy of the ratified account, but the objections are confined to the principles upon which it is stated. We think, however, there is no error in this respect. The claims set up by the defendant cannot be maintained.

   1. Upon a fair and reasonable construction of the contract, whatever may have been the [**391] practice of the parties under it, we think it clear that the defendants, as agents, had no authority to collect and receive from the purchasers the proceeds of sales of lots. On the contrary, [*658] the contract itself stipulates that such proceeds should be applied by the plaintiffs to the payment of a debt of $5,000, which was a lien on the property, and that the defendants should make the revenues from the property, until[***13] sold, sufficient to pay the taxes, insurance and the interest on said debt of $5,000. That is to say, the plaintiffs were to collect the proceeds of sale, and therewith reduce or pay in full, if possible, said lien, while the defendants were to collect the rents and apply them to interest, taxes and insurance. But this question is not important now, for it appears that the defendants have been, with the consent of the plaintiffs, allowed in the ratified account commissions on all proceeds of sale actually collected.

   2. The next claim made by the defendants is that they should have been allowed commissions on the entire purchase money out of the first instalments collected by them. But such a contention is based on neither justice, reason nor authority. It is true that the general rule has often been approved by this and many other Courts, that commissions are earned when the agent or broker finds a purchaser able and willing to complete the purchase according to the terms agreed on, and who ultimately becomes the purchaser. Kimberly v. Henderson et al., 29 Md. 512. If the purchase money be not paid by the fault of the vendor, the agent would still be entitled[***14] to his compensation. But, as was held in Richards v. Jackson, 31 Md. 250, the meaning of Kimberly v. Henderson is that "it is not sufficient to entitle the broker to commissions that the purchaser should enter into an agreement to purchase, but he must actually purchase, by complying with the terms agreed on, unless his failure to do so is occasioned by the fault of the vendor." The only fair and equitable rule where the purchase money is, as here, payable in instalments, is to allow commissions on the instalments as paid from time to time, for until they are actually paid the terms of the sale have not been complied with. Any other construction would only offer inducements to sell for the purpose of securing all of [*659] the commissions out of the first payment. In the case of McCullough v. Pierce, 55 Md. 540, it was held that a trustee in the case of a defaulting purchaser should have commissions only on the amount actually collected by him, and it was there said, "any other rule would operate unjustly, and would offer a temptation * * to make sales to irresponsible bidders at extravagant prices without any reasonable expectation[***15] that the terms of sale would be complied with." And this language, we think, is particularly applicable here, though we are not to be understood as intimating that there is any evidence before us to show that the defendants acted in bad faith in this respect. The construction of the contract urged by them would, however, enable unfaithful agents thus to defraud their principals.

   3. The defendants claimed, as their own, all instalments paid to them in cases in which the whole purchase money was not paid, and the purchasers have abandoned their purchases. We entirely agree with what the learned Judges below said in regard to this claim. They characterized it as "utterly untenable; not within the terms or spirit of the contract; by no rational construction to be inferred therefrom, and repugnant to every principle of law and equity."

   4. Interest was properly allowed. The defendants, as agents, should have promptly paid over to their principals the amounts collected, less commissions, as provided by the contract, and having failed to do so, they have no reason to complain if they are required to pay interest from the institution of the suit.

   5. Nor do we see how the Court below could[***16] have done otherwise than reject the credit claimed by the defendants for money loaned to J. West Aldridge--that being a transaction between them and him in which the other plaintiffs are in no wise interested.

   Finding no error, the decree of the 12th October, 1894, will be affirmed.

   Decree affirmed. 

WILLIAM H. HOLT vs. THE TENNALLYTOWN AND ROCKVILLE RAILROADCOMPANY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 219; 31 A. 809; 1895 Md. LEXIS 51

 April  4, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal from a judgment of non prosequi entered in the Circuit Court for  Anne Arundel  County.

DISPOSITION: Judgment affirmed with costs.

CORE TERMS:  default, removal, non-resident, failure to comply, right to enforce, waived, enforceable

COUNSEL: Arthur H. O'Connor (with whom were Chapin Brown, Thos. Anderson and W. Veirs Bouic, Jr., on the brief), for the appellant.
 
Frank H. Stockett, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE, PAGE and ROBERTS, JJ.

OPINIONBY: FOWLER

OPINION: [**810] [*219] FOWLER, J., delivered the opinion of the Court.

   The motion to dismiss the appeal in this case must be overruled, for it appears from the affidavits filed that the delay in transmitting the transcript of record to this Court was the fault of the Clerk of the Court below.

   The plaintiff, having been injured as he alleges, by the [*220] negligence of the defendant, a railroad corporation, he instituted an action in the Circuit Court for Montgomery County to recover damages. Issue having been joined, the defendant suggested that the plaintiff was a non-resident, and asked the Court to place him under a rule security for costs, which was accordingly done, and on the same day the defendant also filed a suggestion for removal, and an order was thereupon[***2] passed to remove the cause to the Circuit Court for Anne Arundel County, in which Court the record was filed on the 19th of April, 1893. On the 16th of October following, the defendant moved to enforce the rule security which had been laid in Montgomery County. This motion, at the instance of the plaintiff's attorney, was not pressed. At any rate no action was taken, and the case was continued. On the first day of January term, 1894, the defendant again moved the Court to enforce the rule security of the Circuit Court for Montgomery County, which was accordingly done. The plaintiff being in default a judgment of non pros. was therefore entered against him.

   1. The question of the constitutionality of the provision of our Code, Art. 24, sec. 9, requiring non-resident plaintiffs to give security for costs as therein provided, was fully argued by plaintiff's counsel, but it was said forty years ago by our predecessors that this law, having then been in operation for more than half a century, and having always been recognized by the profession, both on the bench and at the bar, as a valid law, they were not disposed to declare it a nullity.  Haney v. Marshall, 9 Md. 194.[***3] And at this late day we are equally unwilling to interfere with its operation by declaring it unconstitutional and void, because in violation of section 2, Article 4, of the Constitution of the United States, this being the same ground of objection which was urged in 9th Md.

   2. Is the rule security of the Montgomery County Court enforceable in the Circuit Court for Anne Arundel County? We think it is. This view is in conformity with the general practice, and will enlarge the operation of the law in question, [*221] which was passed for the protection of resident defendants. If the rule can be enforced only in the county where it is laid, the plaintiff could escape from all obligation to comply with it by simply filing a suggestion for removal. And in that event the defendant would be compelled to have another rule laid in the county to which the cause should be removed or lose the protection the law affords him. Nor do we think that the fact of removal should be allowed to make any change in the time within which the plaintiff is required to give security. In this case the rule was laid at the March term, 1893, of the Montgomery County Court, and the plaintiff had until the[***4] second day of the next term of that Court to comply, that is to say, until the sixth of June, and having failed so to do, he was in default at the time the judgment of non pros. was entered, namely, at the January term, 1894, of the Anne Arundel County Court.

   3. It was suggested that the defendant waived its right to enforce the rule because of delay, and that having failed to act more promptly, it ought not to have been allowed to take advantage of the plaintiff's default. In the case of Heinekamp & Sons v. Beaty, 74 Md. 388, 21 A. 1098, the rule security was laid on the 23rd September, 1889, and the judgment of non pros. for failure to comply with it was not moved for until the 30th September following, or more than nine months after default. It is true there was no question made in the case just cited, as to delay on the part of the defendant, but it seems to have been assumed by counsel and Court, that notwithstanding the lapse of time, the defendant would have been entitled to enforce the rule if it had not been complied with before the judgment was entered. In the case we are considering there was a delay of less than eight months, the default of[***5] the plaintiff having occurred on the sixth of June, 1893, and the judgment having been taken on the 16th January, 1894. But, as it appears to be conceded that the defendant may obtain the rule at any time before the beginning of the trial, unless temporarily waived as by continuance by consent, ( Haney [*222] [**811]v. Marshall, 9 Md. 194 at 209; Spencer v. Trafford, 42 Md. 1; 2 Poe Plead. and Prac., sec. 78), it would seem to follow that the right to enforce the penalty for failure to comply with the rule must continue to exist to the same period.

   Finding no error, the judgment will be affirmed.

   Judgment affirmed with costs. 

H. M. REVELL AND OTHERS vs. THE MAYOR, COUNSELLOR ANDALDERMEN OF THE CITY OF ANNAPOLIS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
81 Md. 1; 31 A. 695; 1895 Md. LEXIS 38

 March  26, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. Under the Act of 1894, ch. 620, a building committee was appointed to purchase a lot in the city of Annapolis and erect thereon a public school building. Section 4 of the Act provided that for the purpose of paying for the same "the School Commissioners of  Anne Arundel  County are hereby authorized and directed to borrow, on the endorsement of the County Commissioners of  Anne    Arundel  County, who are hereby authorized and directed to endorse said bonds on the credit of said county, an amount not exceeding the sum of twenty thousand dollars, * * * but said bonds shall not be issued * * * until the corporation of Annapolis has appropriated the sum of ten thousand dollars towards the purchase of said lot and the erection and furnishing of said building; * * * and the said city is hereby authorized and directed to issue bonds to the amount of ten thousand dollars to raise the money to appropriate to the payment of said public school building; provided, that the issue of said bonds on the part of the city of Annapolis shall be simultaneous with the issue of said bonds by  Anne   Arundel  County, and that such issue of bonds by the city of[***2] Annapolis shall be issued by the said Mayor, Aldermen and Counsellor of Annapolis, without submitting the question of their issue to a vote of the citizens of Annapolis, all provisions of the charter of the said city of Annapolis to the contrary, notwithstanding."
 
The majority of the Building Committee filed a petition setting forth that the Mayor, &c., refused to issue said bonds without first submitting an ordinance to the qualified voters of the city, in order to ascertain if the same would be authorized, and praying for a writ of mandamus commanding the issue of the bonds. The answer of the municipality relied upon the charter of the city, Code Public Laws, Art. 2, sec. 37, which provides that the Mayor, etc., of Annapolis shall have power to issue bonds, provided that a majority of the legal voters of the city shall approve of the loan at an election to be held, &c. The answer further insisted that the Act is a special Act in a case for which provision is already made by general law, and, therefore, is in violation of the provisions of Article 3, section 33, of the Constitution; also, because "the imposition of taxes upon the taxpayers of the city of Annapolis for objects[***3] outside the chartered powers of the said corporation of Annapolis, without the approval of a majority of the legal voters of said city, is unconstitutional and void, because the Legislature cannot legally require said city to subscribe money to, or issue bonds for any object outside the chartered powers of said corporation, and that the said corporation of the city of Annapolis, not having been erected for any educational purposes whatever, the said Act of 1894, chapter 620, attempting to compel it to subscribe and donate the sum of ten thousand dollars to a public school building is, therefore, unconstitutional and void." And further, because the issue of such bonds would lead to an unequal and ununiform tax in one part of a taxation district for school purposes. The petitioners demurred to the answer and from the order of the Court below (ROBERTS, C. J., and REVELL, J.), overruling the demurrer and dismissing the petition, this appeal was taken.

DISPOSITION: Judgment reversed.

CORE TERMS:  public school, municipal, public schools, erection, levy a tax, bridge, municipal government, power to compel, general law, apportionment, voters, power to provide, create a debt, incur a debt, authorize, public improvement, legislative power, process of law, borrow money, raise money, municipality, expenditure, submitting, invalid, repair, build, required to pay, specially, Fourteenth Amendment, mandamus to compel

COUNSEL: John Prentiss Poe, Attorney-General, and Robert Moss (with whom was F. Eugene Wathen on the brief), for the appellants.
 
The charter of Annapolis is in itself nothing but an Act of Assembly subject to repeal[***4] or amendment, and the provision in its charter directing a popular vote as a condition to the creation of a public debt, it is entirely within the power of the Legislature to rescind, alter or repeal altogether. Hence the Act in question must be treated as a repeal, for the purpose of this public improvement, of the existing provision in the charter requiring the approval of a majority of the qualified voters, such repeal being distinctly enacted by the same legislative authority which in the charter requires such popular vote. If it was within the power of the General Assembly to authorize the corporation of Annapolis to issue bonds for corporate purposes; provided, the majority of its qualified voters should first approve, it is quite as clearly within their power to authorize the issue of bonds without such antecedent approval. The consent of the voters is not necessary to the imposition of a tax. If it were conceded that the Legislature could only validly compel a municipal corporation to tax its people, without its consent, for a public State purpose, the Act under review would be clearly valid, for the establishment of public schools is a part of the system of public education. [***5]
 
The Act in question is clearly within the power of the General Assembly over municipal corporations and over the subject. Mayor, &c., of Frederick, 44 Md. 67; Mayor, &c., v. Groshon, 30 Md. 436; Talbot Co. v. Queen Anne's Co., 50 Md. 245; Daly v. Morgan, 69 Md. 460; St. Mary's School v. Brown, 45 Md. 333; State v. Sterling, 20 Md. 516; State v. Mayhew, 2 Gill, 487; State v. Mayor, &c., of Baltimore, 52 Md. 419; Comrs. of Revenue v. State, 45 Ala. 399; Gordon v. Cornes, 47 N. Y. 608; County of Livingston v. Darlington, 101 U.S. 407; Grim v. Weissenberg, etc., District, 57 Pa. St. 436; Mayor of Cartersville v. Baker, 73 Geo. 686; 2 Dillon on Mun. Corp. 831, note.
 
 Elihu S. Riley (with whom was Wm. Pinkney Whyte on the brief), for the appellees.
 
A city cannot be compelled to issue bonds against its will, to provide funds for an object outside its powers. Cooley's Constitutional Limitations, 6th edition, pp. 285, 287 and note; Cooley on Taxation, ch. XXI; Callam v. Saginaw, 50 Mich. 7; Supervisors of Livingston Co. v. Weider, 64 Ill. 427; Sleight v. People, 74 Ill. 47; Mather v. Ostend, 114 Ill. 657; Will Co. Sup. v. People, 110 Ill. 511; Hasbruck v. Milwaukee, 13 Wis. 37; [***6] Mills v. Charleston, 29 Wis. 400; People v. Batchellor, 53 N. Y. 128; East St. Louis v. Watts, 59 Ill. 155; Marshall v. Sellman, 61 Ill. 218; Barnes v. Lacon, 84 Ill. 461; People v. C. C. of Chicago, 51 Ill. 58; Livingstown v. Miles, 53 Ill. 302; People v. County, 55 Ill. 33; Miles v. East St. Louis, 55 Ill. 133; People v. Mayor, &c., 51 Ill. 17 to 31. Contra--45 Ala., p. 399, President and Comrs. v. State. This is the only case to be found in the reports.
 
In Will Co. Suprvs. v. People, 110 Ill., p. 511, it was held that a State law to tax towns and counties for building bridges, roads and highways, in which all the people of the State were interested, was unconstitutional. All the people of Anne Arundel are interested in this school house; it will be the property of the whole county, its deed and fee held in the name of the Board of County School Commissioners of Anne Arundel County; how, then, in law and equity, can the citizens of Annapolis be compelled to pay this large bonus to a school house in which all the people of the county are interested.
 
In Jenkins v. Andover, 103 Mass. 94, a statute permitting a town to tax itself for the benefit of a private incorporated academy[***7] was held invalid because the school was not under the control of the town authorities, "and outside its corporate powers." In Lowell v. Boston, 111 Mass. 473, where an Act of the Legislature, after a great fire, authorized Boston to issue bonds to loan to the sufferers, the Court said: "The expenditure authorized by the statute being for private and not for public objects, it exceeds the constitutional power of the Legislature." Annapolis City will have, as a corporation, not one iota of control of this public school when built. It will be absolutely in the hands of another corporation. The charter of the city of Annapolis contains no provision requiring it to erect, maintain, repair or furnish public school houses, nor to perform any duties relating to public education. That duty is assigned to another corporation, "The School Commissioners of Anne Arundel County."
 
Act of 1894, ch. 620, is a special act where a general law exists. No clearer case of a violation of the constitutional inhibition, made in sec. 33, Art. 3, of the Constitution of Maryland, could be presented. Art. 77, sec. 2 of the Code, provides that "It shall be the duty of the Board of County School Commissioners[***8] to select a suitable school house site in each district, whenever the necessities of the public schools demand a change of site or sites already built upon or a new house to be built;" and the Constitution, sec. 33, Art. 3, says: "The General Assembly shall pass no special law for any case for which provision has been made by an existing general law." General law has provided for the selection of school house sites. The Act of 1894, chap. 620, selects a special committee to take this duty out of the hands of the proper authorities and act contrary to statute and organic law. See Const. Law in Amer. & Eng. Ency. of Law, p. 697. See 6th Md., p. 471, Commrs. of Washington Co. v. Nesbitt, where control of clerk over the Court House, under a special law, incompatible with the general law giving County Commissioners control of Court Houses.
 
The Legislature cannot compel a city to create a debt against its will. In the following cases legislative mandates were declared to be void: People v. Mayor, &c., 51 Ill. 17; People v. Common Council, 51 Ill. 58; Marshall v. Sellman, 61 Ill. 218; Callam v. Saginaw, 50 Mich. 7. In Hasbrouck v. Milwaukee, 13 Wis. 37, approved and defended in an able[***9] opinion, in Mills v. Charleton, 29 Wis. 400, the power of the Legislature to compel the city of Milwaukee to issue bonds and levy a tax for the improvement of its harbor, was distinctly denied. In People v. Batcheller, 53 N. Y. 128, the Court of Appeals denied the validity of a mandatory statute compelling a town to take stock in a railroad company, and to issue its bonds in exchange therefor. This opinion reviews prior decisions in the same State, and finds nothing in conflict with the views expressed.
 
"The principle of liability for taxes in proportion to actual worth in real and personal property, declared by the 13th Art. Dec. of Rights, is a bar to double taxation, and all legislative provisions for the assessment and collection of taxes should be so construed as to avoid that result?" State v. Sterling, 20 Md. 520. Can a double taxation for the same object--the public schools of Anne Arundel--be avoided in this case unless chap. 620, Acts of 1894, is declared void and unconstitutional? State v. Cumb. & P. R. R. Co., 40th Md. 50 and 51; Tyson et al. v. State, 28 Md. 586; Daly v. Morgan and others, 69 Md. 460. In Daly v. Morgan, 69 Md. p. 460, this Court has laid down the[***10] broad and comprehensive doctrine that the taxes imposed by the State must be equal and uniform throughout the State, county, city or taxing district to which it applies."
 
Annapolis City is, for public school purposes, on which a separate tax is laid, in the county, in Anne Arundel County--a taxing district. It would, indeed, be revolting to justice for the County Commissioners to say that the first district of Anne Arundel County should pay ten cents school taxes, and Annapolis, the sixth district, fifteen; and this law only indirectly does what directly would not be tolerated for a moment. If this Act is sustained, six of the seven districts of Anne Arundel County will pay twenty cents on the $100 for school purposes, and the tax-payers of Annapolis, the other district, towards the same objects, will pay twenty-eight cents on the $100, and this unequal rate will, with a slight decrease in the ratio of proportion, continue until the debt is paid. Is this "equal and uniform throughout * * * the taxing district?"

JUDGES: The cause was argued before ROBINSON, C. J., MCSHERRY, FOWLER and BRISCOE, JJ.

OPINIONBY: ROBINSON

OPINION: [**696] [*8] ROBINSON, C. J., delivered the opinion of [***11]the Court.

   The Act of 1894, chapter 620, provides for the erection of a public school building in the city of Annapolis, and to pay for the same, it authorizes and directs the School Commissioners of Anne Arundel County to borrow money, not exceeding the sum of twenty thousand dollars, on bonds, to be endorsed by the County Commissioners. And for the same purpose it directs that the city of Annapolis shall issue bonds to the amount of ten thousand dollars, and that said bonds shall be issued without submitting the question of their issue to the voters of said city.

   The city of Annapolis has refused to issue the bonds as thus directed by the Act, and the question is whether the Legislature has the power to direct that the city authorities shall issue bonds to raise money to be applied to the erection of a public school building in said city.

   This power is denied on the broad ground that it is not competent for the Legislature to compel a municipal corporation to create a debt or levy a tax for a local purpose, in which the State has no concern, or to assume a debt not within the corporate powers of a municipal government. If the correctness of this general proposition be conceded[***12] for the purposes of this case, we do not see how it affects, in any manner, the validity of the Act now in question. We cannot agree that the erection of buildings necessary for the public schools is a matter of merely local concern, in which the State has no interest. In this country the people are not only in theory but in practice the source of all governmental power, and the stability of free institutions mainly rests upon an enlightened public opinion. Fully recognizing this, the Constitution declares that it shall be the duty of the Legislature "to establish throughout the State a thorough and efficient system of free public schools, and to provide by taxation or otherwise" for their maintenance [*9] and support, Art. 8, sec. 1. And the Legislature has accordingly established a public school system, and has provided for its support by State and local taxation. It cannot be said, therefore, that the erection of buildings for public school purposes is a matter in which the State has no concern, nor can we agree that the creation of a debt for such purposes is not within the ordinary functions of municipal government. What is a municipal corporation? It is but a subordinate[***13] part of the State government, incorporated for public purposes, and clothed with special and limited powers of legislation in regard to its own local affairs. It has no inherent legislative power, and can exercise such powers only as have been expressly, or by fair implication, delegated to it by the Legislature. The control of highways and bridges within the corporate limits, the power to provide for an efficient police force, to pass all necessary laws and ordinances for the preservation of the health, safety and welfare of its people, and the power to provide for the support of its public schools by local taxation, are all among the ordinary powers delegated to municipal corporations. And the public schools in Baltimore City are not only under the control and supervision of the city authorities, but are mainly supported by municipal taxation. It is no answer to say that the public schools in Annapolis are under the control of the School Commissioners of Anne Arundel County, and that under its charter it has no power to create a debt or levy taxes for their support. The Legislature may, at its pleasure, alter, amend and enlarge its powers. It may authorize the city authorities to[***14] establish public schools within the corporate limits, and direct that bonds shall be issued to raise money for their support, payable at intervals during a series of years. There is no difference in principle between issuing bonds and the levying of a tax in one year sufficient to meet the necessary expenditure. It would be less burdensome to taxpayers to issue bonds payable at intervals than to levy a tax to raise ten thousand dollars in any one year. This, however, is a matter of detail within the discretion [*10] of the Legislature, and over which the Courts have no control.

    If the Legislature has the power to direct the city authorities to create a debt for a public school building, the exercise of this [**697] power in no manner depends upon their consent or upon the consent of the qualified voters of the city. We recognize the force of the argument that the question whether a municipal debt is to be created ought to be left to the discretion and judgment of the people who are to bear the burden. We recognize, too, the fact that the exercise of this power by the Legislature may be liable to abuse. But the abuse of a power is no argument against its exercise. The remedy, [***15] however, in such cases, is with the people, to whom the members of the Legislature are responsible for the discharge of the trust committed to them. It is a matter over which the Courts have no control. If the debt to be created was for a private purpose that would present quite a different question, for it is a fundamental principle, inherent in the nature of taxation itself, that all burdens and taxes shall be levied for public and not for private purposes. Be that as it may, it is well-settled in this State that the Legislature has the power to compel a municipal corporation to levy a tax or incur a debt for a public purpose, and one within the ordinary functions of a municipal government. 

   In Pumphrey's case, 47 Md. 145, a mandamus was sued out to compel the Mayor and City Council of Baltimore to purchase a bridge over Gwynn's Falls, within the corporate limits, as directed by the Act of 1876; and the Court held that it was the duty of the city to build and keep in repair bridges over its highways, and that the Legislature had the power to compel it to buy a bridge already constructed.

   And in Mayor & C. C. of Balto. v. Reitz, 50 Md. 574,[***16] it was decided that the Legislature had the power to compel the city authorities to acquire by condemnation a lot of ground in said city to be used as a public square or park. Again in County Comrs. of Talbot County v. County Comrs. [*11]of Queen Anne's Co. 50 Md. 245, it was held that the Legislature had the power to compel the Commissioners of Talbot County to levy a tax to pay one-half of the expense of building a bridge over "Kent Island narrows," and on the ground that the bridge was a public improvement of special interest and advantage to that county.

   And we may here add that the case of the Commissioners of Revenue, 45 Ala. 399, which was so much criticized in the argument and which is also criticized by Judge Cooley, in his Constitutional Limitations, has, since the publication of the latter work, been confirmed without dissent by the Supreme Court. County of Mobile v. Kimball, 102 U.S. 691, 26 L. Ed. 238. In that case the Legislature of Alabama appointed a Board of Harbor Commissioners for the purpose of deepening and improving the bay of Mobile, and directed that the Commissioners of Revenue for the county[***17] of Mobile should issue coupon bonds of the county and deliver the same to the Harbor Commissioners to be sold and the proceeds applied in payment of the expenditure. On application for a mandamus to compel the Commissioners of Revenue to issue the bonds, the Supreme Court held that the Act was a valid exercise of legislative power. Referring to the Act, Mr. Justice Field says: "Here the objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the Legislature, unless restricted by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties, or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately benefited."

   To prevent any misapprehension, it may be as well to say that we do not mean to decide that it is competent for the Legislature to compel a municipal corporation to create a [*12] debt or levy a[***18] tax for a public improvement in another portion of the State, without reference to any special benefit to be derived therefrom by the city. Nor do we mean to decide that it is competent for the Legislature to compel a municipal corporation to bear the expense of a public improvement to be used exclusively for State purposes. What we do decide is that the Legislature has the power to provide for the erection of a public school building in the city of Annapolis, and to direct that the city authorities shall issue bonds for the purpose of raising money to pay the cost of such building, and this too, with or without the consent of the voters of said city. It is quite unnecessary to consider the many cases referred to in the full and able argument of the counsel for the appellees, and in which the Courts of the several States have dealt with the question as to the power of the Legislature to compel a municipality to create debts or incur obligations for local purposes. All the cases agree that a municipal corporation cannot be compelled to incur a debt for a private purpose, and in some cases it has been decided that it cannot be compelled to create a debt for a local purpose, in which[***19] the State has no concern. As to the latter question, there is some conflict of opinion. We have been unable, however, to find a case which denies to the Legislature the power to compel a municipal corporation to incur a debt for the purpose of erecting a public school building within the city limits for the use of the public schools. Such an object being a public object, and one strictly within the functions of municipal government, there is no ground on which the exercise of such a power can be denied.

   Objection was also made to the Act of 1894, because the Legislature had apportioned the cost of the building between the [**698] city of Annapolis and Anne Arundel County, of which the city is a part. There is nothing in the record to show that the apportionment is in any manner unequal or unjust to the city. If any objection is to be made to the Act on this ground, it would seem that the taxpayers of [*13] Anne Arundel County are the persons to make the objection, for the reason that they are required to pay two-thirds of the cost of the building, whilst the city of Annapolis, which is specially and directly interested in the improvement, is required to pay[***20] but one-third of the expenditure. The apportionment, however, was, as we have said, a matter within the discretion and power of the Legislature. This was decided in the County Commissioners of Talbot County, 50 Md. 245, and also by the Supreme Court in Mobile County v. Kimball, 102 U.S. 691, 26 L. Ed. 238.

   In closing his argument, the counsel for the appellees suggested that the Act was invalid, because it was in conflict with the Fourteenth Amendment of the Federal Constistution, which forbids the taking of "property without due process of law." If invalid on this ground, it is invalid under the Constitution of this State, which provides the same safeguards for the protection of life, liberty and property, and which has been the fundamental law of this State from the beginning of the Government. It is a sufficient answer to this objection to say that the Act in question, which requires the city authorities to issue bonds to raise money to pay the cost of a public school building is a lawful exercise of legislative power, and this being so, taxes levied to pay such bonds are not open to the objection of taking property "without due process[***21] of law."

   Nor can we agree that the Act is in conflict with sect. 33, Art. 3, of the Constitution, which declares that "the General Assembly shall pass no special law for any case for which provision has been made by an existing General Law." The General Law provides, it is true, that the School Commissioners of Anne Arundel County shall have the control and supervision of the public schools in said county, with power to build, repair and furnish school houses. But it does not authorize the Commissioners to borrow money upon bonds to be endorsed by the County Commissioners for such purposes, nor does it provide for the apportionment of the cost of a public school building to be erected [*14] in the city of Annapolis, between the county and the city. This could only be done by special Act, and this being so, the special Act is not in conflict with the Constitution, which forbids the passing of a special Act for any purpose for which provision has been made by an existing General Law. It follows from what we have said that the judgment overruling the demurrer in this case must be reversed.

   Judgment Reversed. 

SAMUEL G. ACTON vs. THE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 547; 31 A. 419; 1895 Md. LEXIS 16

 March  1, 1895, Decided

   PRIOR HISTORY:  [***1] Appeal and writ of error from the Circuit Court for  Anne Arundel  County. The case is stated in the opinion of the Court.

DISPOSITION: Judgment affirmed.

CORE TERMS:  river, channel, south side, venue, navigable river, southernmost, margin, shore, lying, indictment, precinct, demurrer, erected, dividing line, bounding, upper, fork, criminal pleading, judicial notice, criminal information, election district, et seq, interposed, navigable, distant, situate, to-wit, water, yards

COUNSEL: Robert Moss and James M. Munroe for the appellant.
 
John Prentiss Poe, Attorney-General, and E. C. Gantt for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE, PAGE, ROBERTS and BOYD, JJ.

OPINIONBY: PAGE

OPINION: [**419] [*547] PAGE, J., delivered the opinion of the Court.

   The information of the State's Attorney for Anne Arundel Co., upon which this case was prosecuted, is as follows: "State of Maryland, Anne Arundel County, to-wit:
 
THE STATE OF MARYLAND vs. SAMUEL G. ACTON.
charged, &c.
In the Circuit Court for Anne Arundel Co. Criminal Information.

   The above entitled case having, &c., &c., and Edward C. Gantt, the said State's Attorney for said county, having investigated, &c., &c., now comes into said Court, and for [*548] and in behalf of the State of Maryland, upon his official oath gives the said Court here to understand and be informed, that Samuel G. Acton, late of the county aforesaid, on the tenth day of June, in the year of our Lord eighteen hundred and ninety-four, [***2] the same day and year aforesaid being the Sabbath day, commonly called 'Sunday,' at a building erected in the waters of a navigable river, to-wit, the Patapsco River, at a place in said river situate below the head of said river, and below the southernmost great branch of said river, and on the south side of the channel of said river, and distant less than one hundred yards of the land shore of the first precinct of the fifth election district of the county aforesaid; said building, erected as aforesaid, being contiguous to the land of the said first precinct of the fifth election district of the county aforesaid, unlawfully, &c., &c." The defendant pleaded want of jurisdiction, because the place alleged, as that where the alleged offence was committed, was not within the limits of Anne Arundel County. To this plea the State interposed a demurrer, which was sustained, and judgment thereon rendered.

   According to well-settled principles, a demurrer brings under review by the Court all the pleadings in the case. And this being so, the sufficiency of the information is before us in the same manner and to the same extent as if the demurrer had been interposed by the traverser.

   The questions[***3] presented, therefore, are: 1st. Has the Circuit Court for Anne Arundel County jurisdiction over that part of the Patapsco River which is described in the information; and 2nd. If it be determined that it has, are the allegations in the information as to the venue sufficient in law.

   1st. By the Act of 1698, ch. 13, Baltimore County embraced a portion of what is now Anne Arundel County. By the Act of 1726, ch. 1, it was enacted, that from and after the last day of May, 1727, the land lying on the south side of Patapsco River, and contained within the bounds following, viz: From the mouth of said Patapsco River [*549] with the said river to the head thereof; and from thence, bounding on the south side of the main falls, being the southernmost great branch of said river, and running as the said branch runs to the first main fork of the said falls; then bounding on the south side of the said southernmost fork, till, &c., &c., shall be and forever hereafter deemed as part of Anne Arundel County." In the case of Raab v. The State, 7 Md. 483, JUDGE TUCK delivering the opinion of the Court, said: "It is manifest that the river, after this Act, remained as it had been[***4] for many years, within the limits of Baltimore County, and that the jurisdiction of these counties adjoined on its southern shore, unless affected by the Act of 1704, ch. 92 (now codified as sec. 135 of Art. 75 of the Code), which provides 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 counties, and be divided from the other county by the channel of the said river; 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." So that, under this decision, 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 described in the Act of 1727, and the channel. And we are of the opinion that such is the proper application of that Act. We adopt on this point the views so well expressed by JUDGE BREWER in his opinion on deciding in the lower Court in Raab v. The State (supra), as found [**420] on page 486[***5] of the printed report. That learned Judge, in dealing with the contention that the Act of 1704 applied only to the counties mentioned in the Act, said: "I do not think it is so confined. A part of the State only was, at that time, laid off into counties. It must have been then contemplated to lay off other counties. The bounds between Cecil and Kent and the upper bounds of Cecil were not accurately defined, nor the bounds of Talbot on every side, [*550] nor were the upper bounds of Baltimore and Prince George's. Some of the other counties thereafter to be laid off might be bounded by navigable rivers, and the object of the Act of 1704, although it refers only to the counties already laid off, seems to be to establish a rule applicable to all similar cases. The language of the law in the enacting part of the clause is very general, 'that every county lying on any navigable river.' The Legislature is establishing a rule applicable to a particular class of cases, and why should not the rule apply to all subsequent additions to that class?" This Act has been codified as sec. 135 of Article 75, and differs from the Act as originally passed, only in the respect that it is not made to[***6] 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."

   2nd. The rule in setting out the venue is well stated in 1 Chitty on Crim. Law, 194, as follows: "In the body of the indictment also, the facts should in general be stated to have arisen in the county in which the indictment is preferred, so that it may appear that the offence was within the jurisdiction of the Court; and therefore, if a parish, vill or other place where the offence or part of it occurred be stated without naming the county in the margin or expressly referring to it by the words 'the county aforesaid,' the indictment will be defective." See also 1 Wharton Am. Crim. Law, sec. 223, et seq.; 1 Bishop on Crim. Procedure, sec. 101, et seq., and authorities there cited.

   In the margin of the information are named the county and State, and in the [***7]body the place is described, "at a building erected in the water of a navigable river, at a place in said river situate below the head of said river, and below the southernmost great branch of said river, and on the [*551] south side of the channel of said river and distant less than one hundred yards of the land shore of the first precinct of the first election district of the county aforesaid." The Court will take judicial notice of the civil divisions of the State created by statute, The People v. Breese, 7 Cow. 430, and therefore inasmuch as the bounds of Anne Arundel are fixed by statute, and the jurisdiction of the county is fixed to the centre of the channel by the Act of 1704, and in addition thereto the county is expressly named in the margin, it would seem the venue is sufficiently laid. What we have said has no reference to the 286th section of Article 27 of the Code. Whatever may be the proper construction of that Act, we are of opinion that by the ordinary rules of criminal pleading the information must be sustained.

   Finding no error in the ruling of the Court below, the judgment will be affirmed.

   Judgment affirmed. 

CROOK, HORNER & CO. vs. BALTIMORE AND OHIO RAILROAD ANDOTHERS. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 338; 30 A. 701; 1894 Md. LEXIS 124

 December  19, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from an order of the Circuit Court for  Anne    Arundel  County (JONES, J.), sustaining exceptions to an auditor's account, distributing among creditors the funds of the Bay Ridge Company, and disallowing the claim of the appellants. This claim arose out of certain contracts between the Receiver of said company, appointed by said Court, and one Wm. H. Pitcher and the appellants, who became substituted, by agreement, to the rights and liabilities of Pitcher under his contract with the Receiver. On May 15, 1890, Pitcher agreed to erect and equip in working order, within thirty days, a machine for making ice of a clearly specified capacity, and the Receiver agreed to pay for the same the sum of $4,500, in different installments, the last of which was to fall due on September 1, 1891. This contract was not performed by Pitcher, and on November 10, 1890, an agreement was made between the Receiver and the appellants, which is set forth in the opinion of the Court. Two of the certificates therein mentioned were paid, but to the allowance of the remaining two in the auditor's account, distributing the proceeds of the sale of the property of the Bay Ridge Company, the appellee and other creditors[***2] excepted.

DISPOSITION: Order affirmed and cause remanded.

CORE TERMS:  machine, certificates, season, plant, warranty, ice machine, working order, ice, refrigerating, completion, original contractor, original contract, full settlement, machinery, endorsed, delivery, tested, vendee, certificates of indebtedness, foreclosure proceedings, contract price, concurrence, temperature, thirty-two, apparatus, one-half, efficacy, entitle, cooling, weathers

COUNSEL: Robert H. Smith and Alfred S. Niles (with whom was Oscar Wolff on the brief), for the appellants.
 
The legal effect of the contract made between the Receiver and Crook, Horner & Co. is (a) that the machine was accepted by the Receiver; (b) that the Receiver's certificates were given Crook, Horner & Co. in full payment for it; (c) that Crook, Horner & Co. gave their promise and agreement that they would put the machine in good working order by May 15, 1891, and would cause the machine to comply with the requirements of the Pitcher contract.
 
These promises are on either part clearly independent covenants. The Receiver's certificates are direct obligations, sanctioned by the Court, for the payment of money. The holder of them has a right to ask for payment. The contract by Crook, Horner & Co. to put the machine in a certain condition is, in like manner, a direct obligation upon them and they are responsible to the Receiver for any damages caused by non-fulfillment of this promise. We may concede that, to avoid circuity of action, such damages as the Receiver might sustain can be deducted from the amount of the certificates, [***3] if the certificates still remain in the hands of a party to the contract. But a breach of their part of the contract by Crook, Horner & Co., could, by no possibility, ipso facto, give the Receiver a right to refuse to pay notes given for the machine, which had been accepted and actually sold by him, and for which these very notes are said to be full payment. If this be so, then prima facie the appellants here are entitled to recover on the certificates, and upon the Receiver is laid the burden of proof to show that the appellants have broken their contracts, and to what extent he has been damaged by such breach.
 
The fact that after Crook, Horner & Co. had contracted to put the machine in working order, and had guaranteed that it should accomplish certain work, the machine was accepted, and that the bonds were given in payment, appears on the face of the petition, the Court's order and the contract itself. They made the contract and gave the guaranty and received the bonds on or about November 10, 1890. Nothing then remained except for the Receiver to pay his debt authorized by the Court, when it fell due, and for Crook, Horner & Co. to make the machine come up to the guaranty. [***4] If Crook, Horner & Co. failed to do this, the Receiver could employ some one else to do it for them, and charge them with the extra expense.
 
A clearer case of independent covenant could not be found; and on independent covenants, such are the unquestioned rights of the parties. Central Trust Co. v. Arctic Ice Machine Co., 77 Md. 237; Hercules Iron Works v. Dodsworth, 57 Fed. Rep. 556; Carter v. Scargill L. R., 10 Q. B. 564; Parsons on Contracts, (8th ed.) vol. II, page 680.
 
The exceptants (a) have not given any evidence to show any damage by a breach of their contract by the claimants, (b) nor have they attempted to show a breach. These appellants guaranteed not that the machine was in a condition to do the promised work, but that if it were not they would put it into that condition. Before a breach of this contract can be made out it must be shown that the machine neither did nor could produce the guaranteed results, or else that the appellants neglected, upon request, to put it into the proper condition.
 
We contend that this is a case where a party accepted a machine and gave his obligation in payment therefor, securing himself by an independent stipulation or contract[***5] with a responsible firm; that he treated the machine as his own, and finally sold it; that the responsible firm has never been in default in carrying out or tendering its willingness to carry out the stipulation entered into by it; and that consequently there is no reason why his obligation should not be paid. If this Court should agree with us, we ask that the order be reversed, with a direction that the auditor's account, so far as it allowed our claim, shall be ratified. But even if this Court should hold that we were in default, we would then submit, with all confidence, that the order should be reversed, and the account, as stated by the auditor, ratified; because the Court must not only find us in default, but must also find a damage to the Receiver which is capable of ascertainment. Campbell Printing Press Co. v. Thorpe, 36 Fed. Rep. 415. In this case there is no such damage.
 
Herbert H. Preston (with whom were John K. Cowen and Hugh L. Bond, Jr., on the brief), for the appellee.
 
Crook, Horner & Co. agreed to make a machine, with which they were familiar, work in a place which they had examined, with a supply of water, of which they knew the character and quantity. [***6] They were supposed to know what was necessary, the other parties did not. The machine had a fair test, of which careful notes were taken; it did not do the work and Mr. Crook admits it. Their superintendent did not know what was the matter, nor did the expert, as far as we are informed.
 
They now make indefinite objections to the temperature of the water and the imperfect fitting of the rooms. They knew that they were to have bay water, and they had plenty of it; they cut off the rooms complained of and still it wouldn't work. Mr. Crook seeks to create the impression that there was really no test of the machine. The correspondence and Mr. Mezick's testimony and memoranda disposes of this. The opinion of the learned Court below covers the case fully, and is well supported by the evidence.

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

OPINIONBY: PAGE

OPINION: [**701] [*342] PAGE, J., delivered the opinion of the Court.

   This appeal is from an order of the Court below, sustaining the exceptions of the appellees to the allowance by the Auditor of the claim of the appellants. On the fifteenth day of May, 1890, Charles Webb, the[***7] Receiver of the Bay Ridge Company, through his agent, Hugh L. Bond, Jr., contracted with a certain William H. Pitcher for the purchase of an ice machine, to be furnished within thirty days, with capacity for making one and one-half tons of ice per day, and for cooling to a temperature [**702] of thirty-two degrees Fahrenheit, in all weathers, certain specified spaces in the restaurant building at Bay Ridge. By the agreement Pitcher guaranteed the capacity and character of the machine, and agreed to run the same for ten days after completion to demonstrate its efficiency; the Receiver to supply the water and steam required. The price of the machine was to be $4,500, to be paid in installments at different periods, with interest thereon from the date of acceptance, to be secured by notes endorsed by the B. & O. Railroad Co., or some individual endorser satisfactory to said Pitcher.

   It was also agreed that the property in the machine should remain in Pitcher until the delivery of the notes, endorsed as stated; and these were not to be given until the machine was complete and working to the satisfaction of Mr. Bond. Pitcher put up the machine during the summer of 1890. On the thirtieth [***8]day of October, of the same year, the Receiver reported to the Court, that "while the machine was partially operated the season of 1890, it [*343]was not completed and working as required until after the close of the season, and your Receiver did not escape all expense on account of ice, as he had hoped. Your Receiver has therefore agreed with said Pitcher, subject to the approval of this Honorable Court, to accept the said machine and apparatus; provided, the said Pitcher shall obtain the contract and agreement of Messrs. Crook, Horner & Co., a responsible firm of the city of Baltimore, to put the same in good working order at the beginning of the season of 1891, and to guarantee the same, shall in all respects comply with the requirements of the said contract between the said Receiver and said Pitcher, as well when operated during the summer months as at other times, and to pay for the same the sum of $2,000, on or before the 10th of July, 1891, and $2,000 on or before Sept. 1st, 1891, the balance in cash." By an order passed on the 31st of October, the Court approved of the proposed contract and authorized him to issue his certificates of indebtedness bearing six per[***9] cent. interest per annum, to meet the deferred payments. On the 10th day of November ensuing, the Receiver entered into the following contract:

   "Whereas, one William H. Pitcher did contract and agree with the said Receiver, by written agreement dated the 15th of May, 1890, to construct and supply ice making and refrigerating plant at Bay Ridge, Anne Arundel County, Maryland, of the description mentioned in said contract, a copy of which is hereto annexed, referred to and made part of this agreement; and whereas, the said machinery and plant were not completed within the time mentioned in said contract, and could not be tested at the time therein provided; and whereas, the said Pitcher and the said Crook, Horner & Co., as his assignees, are desirous of obtaining a settlement from the said Receiver, and the Circuit Court for Anne Arundel County has authorized said Receiver to issue Receiver's certificates to the amount of $4,000, to pay for said plant; provided, said firm of Crook, Horner & Co. will contract and agree to put the said machinery and plant [*344]in good working order at the beginning of the season of 1891, and guarantee that the same shall, in all respects, come[***10] up to the requirements of the said contract between said Receiver and Pitcher, as well when operated during the summer months as at other times. Now, * * * in consideration of the delivery by the said Receiver of four Receiver's certificates, each for the sum of $1,000, bearing, &c., &c., and the payment of $293.15-100 in cash, in full settlement and payment for said ice machine and refrigerating plant, under said contract between the Receiver and the said Pitcher, the said Crook, Horner & Co. do hereby promise, &c., that they will put said machine and apparatus in complete working order at the beginning of the season of 1891, by the fifteenth day of May, and will cause the same to comply with and come up to, in all respects, the requirements of said contract hereto attached, as well when operated during the summer months as at any time."

   The amount provided to be paid under this agreement, that is, $4,293.15, was in full settlement for the machine and refrigerating plant, but it also comprehended payment for balance due for a pump located on the steamboat wharf. In pursuance of this contract, the cash provided for therein was paid, and certificates were issued payable to Pitcher, [***11] and upon being endorsed by him were delivered to the appellants. Two of these have been paid and the amounts due on the other two now constitute the appellee's claim. It also appears, that prior to Nov., 1890, Pitcher had become largely indebted to Crook, Horner & Co., partly on account of money advanced to carry out his contract with the Receiver. To secure this, Pitcher turned this account against the Receiver over to the appellants. At that time the Receiver's certificates had not been issued, nor, as appears by the contract of the appellees, as well as by the proof, had the machine been tested. Indeed, as far as the appellants were concerned, it was to enable them to secure the possession of these certificates that the contract of the [*345] 10th of Nov. was entered into. The Receiver, by that contract, was to issue the certificates and pay the cash named; and Crook, Horner & Co., on their part, agreed to put the machine in complete working order at the beginning of the season of 1891, and in all respects comply with the requirements resting on Pitcher under his contract. The work Crook, Horner & Co. were to do, was the same that Pitcher's contract required him to do, and[***12] the money stipulated to be paid to them under Pitcher's contract could be due only upon the completion of the machines and after they had been tested and accepted according to the original contract. In other [**703]words, the consideration passing to Crook, Horner & Co., was the delivery of the Receiver's certificates, which Pitcher had agreed to turn over to them, and the duties they had imposed upon them were only to complete Pitcher's work on the machines. For greater certainty as to the nature of the transaction, the contract explicitly stated that the four Receiver's certificates, each for $1,000, and the payment of the $292.15 in cash, "were in full settlement and payment for said machine and refrigerating plant under said contract between the Receiver and said Pitcher."

   The attitude of the appellants under this contract, therefore was that of a substitute for Pitcher. Having received the promise of the compensation, they assumed his obligations. It does not seem to be seriously contended that the machine was ever brought up to the requirements of the contract. Mr. Crook himself, stated that the machine had never been made to accomplish successfully the test required[***13] by the contract, and this is supported by the weight of the testimony. In 1891 work was delayed by the breaking down of the boiler until about the middle of June, and afterwards by the putting in of a larger smoke stack, until the middle of August, so that actual tests were begun about the last of August or the first of September, and were continued (according to Mr. Crook) until the 25th of September, when they were discontinued by agreement, because of the lateness [*346] of the season, to be renewed in the spring of 1892. That these tests were unsatisfactory is clearly shown, and Mr. Crook seems to admit this, when he says that in 1892 he came "to see Mr. Bond about starting up the machine, because they refused to pay these other two Receiver's bonds, and we were anxious, not only to get the bonds paid, but make the machine work and come up to our guarantee." In 1892 the appellees were informed by Mr. Bond that "he did not have anything to do with Bay Ridge any more, that another company had it * * * * and they would not have any use for the ice machine that summer." And so no further effort appears to have been made to perfect the machine. On the 27th day of January, [***14] 1893, the machine, together with all the real and personal property of the Bay Ridge Company, was sold by Mr. Stockett, trustee under a decree passed in certain foreclosure proceedings by the Circuit Court for Anne Arundel County, sitting in Equity.

   In view of what has been said, we think this is a case where a machine, having been ordered by the contractor, in an uncompleted condition, a third party, with the concurrence of the original contractor, agrees, in consideration of having received the obligations of the contractee for the whole purchase money, to complete it according to the terms of the original contract. And under these circumstances, the appellants having so agreed, and having taken such obligations, with stipulations so to complete the work, with a full knowledge of all the facts of the case, hold the obligations subject to such rights in favor of the Receiver, as would have existed had they remained in the hands of Pitcher, the original contractor.

   Now, the original contract provides that the machines should have "capacity for making one and one-half tons of ice per day of twenty-four hours, and of cooling to a temperature of thirty-two degrees Fahrenheit, in all[***15] weathers, the following spaces," &c. And that Pitcher will run the same for ten days after completion, to demonstrate the character [*347] and efficacy thereof. This was a warranty. An acceptance of the machine was no waiver of it, and, if having accepted it, there was a breach, the Receiver could either maintain an action for a breach of the warranty, or recoup the damages sustained in the vendor's suit. Central Trust Co. v. Arctic Ice M. Co., 77 Md. 202, 26 A. 493. In this case there was no acceptance of the machine by the vendee. That it was taken possession of by the trustee appointed by the Circuit Court in the foreclosure proceedings, and with other property of the Bay Ridge Co., sold, is true. But this cannot be regarded as an acceptance by the vendee. To entitle the appellants to be paid, they must show performance on their part, or some legal excuse for their failure to perform, according to the terms of their contract, and having failed to show either, their claim should not be allowed.

   Order affirmed and cause remanded. 

JOHN ROSE vs. CHARLES BUSCHER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 225; 30 A. 637; 1894 Md. LEXIS 116

 December  18, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from the Superior Court of Baltimore City. This was an action of assumpsit, brought by the appellee against the appellant. The plaintiff testified that in the spring of 1887 he agreed to work for the defendant on his farm for the sum of twenty dollars and thirty dollars per month, payable alternately, and continued so to work until October, 1888, the defendant agreeing to deposit the wages so earned in bank for the plaintiff; that in September, 1887, he received from Europe the sum of $936, which he handed to defendant to deposit in the savings bank for him, and that of said sum of $936 and said wages so earned, he had only received from defendant the sum of $185.95; and further offered evidence tending to show that $25 a month was a reasonable rate of wages for the work done by him.
 
The defendant testified that he and the plaintiff agreed to work the defendant's farm on shares; that nothing was said about wages, but each party was to receive one-half of the proceeds; that the sum of $936 delivered to him by the plaintiff was to be invested in the farm work.
 
The set-off claimed by the defendant was for one-half of the amount expended by him for horses, farming[***2] implements, wages and board of laborers, etc., in conducting the farming operations, and according to the defendant's account the plaintiff was indebted to him.
 
The following prayers offered by the plaintiff were granted by the Court below (RITCHIE, J.):
 
Plaintiff's First Prayer.--The plaintiff prays the Court to instruct the jury, that if the jury believe from the evidence that the plaintiff, in September, 1887, received from abroad the sum of $936.00, and allowed the defendant to take charge of the same for him; and further believe from the evidence that the defendant employed the plaintiff to manage the farm of the defendant, and the defendant agreed to pay the plaintiff therefor the sum of twenty dollars the first month and the sum of thirty dollars the second month, and to alternate each month by the payment of twenty dollars and then thirty dollars; and further believe that under this arrangement the plaintiff managed the farm of the defendant for the period of seventeen months, viz., from May, 1887, to October, 1888; and that this was the only agreement between the plaintiff and defendant; and if the jury further believe that the only sums paid to or for the plaintiff[***3] by the defendant are the sums of $100.00, paid on December 7th, 1887; $4.10 on May 28th, 1887; $4.00 on May 28th, 1887; $3.10 on March 6th, 1888; $2.25 on May 26th, 1888; 50 cents on June 23rd, 1888, and $40.50 on October 16th, 1888, then the plaintiff is entitled to recover the said sum of $936.00, together with the wages at the rate and for the time above mentioned, less said sums paid by the defendant to or for the plaintiff as above set out, and the jury may allow interest or not, in their discretion.
 
Plaintiff's Third Prayer--(Granted with Defendant's Fifth).--The plaintiff prays the Court to instruct the jury, that even though they believe from the evidence that the defendant and the plaintiff entered into the arrangement to work the defendant's farm on shares, as testified to by the defendant; and shall further believe that under said arrangement the plaintiff became indebted to the defendant, still, under the pleadings in this case, the jury are not allowed to deduct such indebtedness, or any part thereof, from the sum of $936.00 left by the plaintiff in the possession of the defendant in September, 1887 (if they find such so to have been left), but they are instructed[***4] that the plaintiff is entitled to a verdict for said sum, after deducting therefrom the credits allowed in the plaintiff's first prayer, together with such additional sum of money, if any, as the jury shall find the defendant gave or returned to the plaintiff, or expended by his authority (except so far as the latter may be barred by the prayer on limitations), with interest or not, in the discretion of the jury.
 
Plaintiff's Seventh Prayer.--The plaintiff prays the Court to instruct the jury, that under the pleadings, bill of particulars of the set-off and evidence in the case, the jury, in making any deduction from the plaintiff's claim as found by them, can only deduct therefrom such of the items as are set forth in the defendant's bill of particulars as from the evidence the defendant may be entitled to and not excluded from their consideration by the instruction on limitations; and the jury are further instructed that this prayer does not apply to any payments that the jury may find the defendant has made to the plaintiff, the defendant being entitled to a credit for whatever payments he may have made to plaintiff, and for clothing, &c., admitted by the plaintiff to have been [***5]received.
 
Plaintiff's Eighth Prayer.--The plaintiff prays the Court to instruct the jury, that even if the jury believe from the evidence that there was no special contract to pay the plaintiff wages as testified to by the plaintiff, still, if the jury believe that the plaintiff worked for the defendant at his request on his, the defendant's farm, and the defendant accepted his work, then the plaintiff is entitled to recover from the defendant a reasonable compensation for his work, provided the jury believe there was no agreement to work the place on shares, as testified to by the defendant. And in estimating the compensation to be paid to the plaintiff for his work, the jury can consider what wages like work brought in the neighborhood.
 
Court's Instructions on Limitations in Lieu of Plaintiff's Fourth and Fifth.--That under the pleadings and uncontradicted evidence there being no evidence of any new promise, the defendant is not entitled to deduct or set-off for the moneys alleged to have been paid for the two cows, or for any clothing, etc., except such as is admitted by plaintiff, or for board of plaintiff, or for the Keck family, or of the Russian laborers.
 
 The[***6] defendant offered the following prayers:
 
Defendant's First Prayer--(As Offered).--If the jury believe from all the evidence in the case that the defendant owned the farm mentioned in the evidence, in  Anne Arundel  County, and that it was agreed between him and the plaintiff that they should farm it on shares, and if they believe that no accounting has been had between the said plaintiff and the said defendant of the transactions growing out of said agreement; and if they further find that any claim the parties to this action may have against each other grows out of said agreement, then the plaintiff cannot recover in this action.
 
Defendant's First Prayer--(As Granted.)--If the jury believe from all the evidence in the case that the defendant owned the farm mentioned in the evidence, in  Anne Arundel  County, and that it was agreed between him and the plaintiff that they should farm it on shares, and if they believe that no accounting has been had between the said plaintiff and the said defendant of the transactions growing out of said agreement, then the plaintiff cannot recover in this action in respect to his claim for wages.
 
Defendant's Second Prayer--(As Offered.)--Even[***7] if the jury does not find that the agreement between the plaintiff and defendant was that the farm should be worked on shares; yet, if they find that the defendant has by payments of cash to the plaintiff, and by expenditures made on his behalf by his authority or assent from time to time, discharged the $936 received from plaintiff in 1887; and if they further find that the plaintiff is not entitled to wages, then the plaintiff is not entitled to recover.
 
This prayer granted with the following addition: "Provided that no deductions are to be allowed of any items mentioned in the prayer on limitations given by the Court."
 
Defendant's Fifth Prayer--(As Offered).--The defendant prays the Court instruct the jury, that if they believe that the plaintiff and defendant agreed to farm the property of the defendant on shares, as testified by the defendant, and that the defendant was authorized by the plaintiff to use such portions of the proceeds of the draft referred to as might be needed to pay his share of such farming expenditures; and if they further find that said defendant also paid at various times sums of money on account of and for said plaintiff, by his authority or assent, [***8] and also paid him at various times cash, then, for such expenditures for said farming operations as defendant may have made under the said authority, and for such other expenditures and payments of cash made for and to said plaintiff, the defendant is entitled to a deduction from the $936, proceeds of draft; if they shall find the same was so handed to defendant, and if such payments by the defendant exceed the said sum of $936, then their verdict must be for the defendant.
 
This prayer was granted with the following addition: "Provided that no deduction should be made for any of the alleged items of set-off mentioned in the instruction on limitations."
 
Defendant's Sixth Prayer--(Rejected).--If the jury believe that the plaintiff and the defendant agreed in 1887 to farm the property of the defendant mentioned in the evidence on shares, and if they believe that the plaintiff sent for $936.00 to Europe, with the understanding and agreement with the defendant that it was to be used in the enterprise, and that when the money was received from Europe the arrangement and understanding between the plaintiff and the defendant was that it was to be so used; and if they further find[***9] that no accounting has been had between the plaintiff and defendant of the transactions growing out of said agreement, then the plaintiff cannot recover in this action. 
 
The defendant excepted to the granting of plaintiff's prayers and to rejection of his first prayer as offered, and to the modification of the same by the Court; and to the rejection of his second prayer as offered, and to the modification of the same by the Court; and to the rejection of his fifth prayer and to the modification of the same by the Court; and to the rejection of his sixth prayer. The jury returned a verdict for the plaintiff for $842, and the defendant appealed.

DISPOSITION: Judgment affirmed.

CORE TERMS:  prayer, set-off, partnership, farm, plea of payment, farming, modified, pleaded, entitled to deduct, parties agreed, expend, wages

COUNSEL: Randolph Barton and Randolph Barton, Jr. (with whom was Skipwith Wilmer on the brief), for the appellant.
 
Richard M. Duvall and James P. Gorter, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE and BOYD, JJ.

OPINIONBY: FOWLER

OPINION: [**637] [*230] FOWLER, J., delivered the opinion of the Court.

   The plaintiff sued the defendant in assumpsit on the common counts in the Circuit Court for Anne Arundel County. To this action the defendant pleaded payment and set-off,[***10] and filed with the latter a bill of particulars. The plaintiff pleaded limitations to defendant's plea of set-off, and upon the suggestion of the latter the case was thereupon removed to the Superior Court of Baltimore City, where, after several amendments of the defendant's pleadings, the case was finally tried before a jury on the common counts, to which [*231]there was a general issue plea, a special plea of payment as to the fifth count, and a plea of set-off, and the plaintiff's plea of limitations thereto. The verdict of the jury having been against the defendant, he has appealed. The rulings upon the prayers present the only questions for review.

   The Court below granted five of the plaintiff's prayers, namely, the first, third, sixth, seventh and eighth, and gave an instruction as to the application of limitations to defendant's set-off. The defendant's first, second and fifth prayers were each modified, and his sixth was rejected.

   1. The first prayer of the plaintiff is not objected to as granted, and all objections as to the sixth and eighth having been waived, we shall consider only the third and seventh.
 
   It will be observed that the third was granted in connection[***11] with defendant's fifth prayer, and this being so, we are unable to see the force of the defendant's objection that he was, by the granting of this prayer of the plaintiff, deprived of the benefit of the evidence offered under the plea of payment. Both prayers inform the jury that the defendant is entitled to a deduction from the plaintiff's claim for all sums of money which they shall find the former paid for the latter by his authority; provided, that no deduction shall be made for any of the alleged items of set-off mentioned in the instruction on limitation.

   The defendant, while conceding that limitations might be a bar to recovery for the items in the bill of particulars of his set-off, which are mentioned in the Court's instruction, suggests that such items cannot be barred when offered under the plea of payment, because limitations cannot be pleaded to payments. Without discussing this proposition, it is sufficient to say that the record does not show that any evidence as to the items excluded by the Court's instruction was offered by the defendant for any purpose. It may be assumed, perhaps, by reason of the Court's instruction, that such evidence was offered in support of[***12] defendant's plea of set-off, but there is nothing before us to show that any such evidence was offered in support of the plea of payment. [*232] On the contrary, to sustain his plea of payment, the defendant offered an account of payments and disbursements which discloses none of the items contained in his bill of particulars of set-off.

   2. The first prayer of the defendant was modified, and, we think, properly so. As offered, it sets forth the proposition that an agreement to farm on shares constitutes a partnership, and that therefore there can be no recovery in this case, because there has been no accounting between the plaintiff and defendant of the partnership transactions. [**638] But we suppose it can hardly be seriously contended that the facts set forth in this prayer are sufficient to warrant us in declaring, as matter of law, that a partnership existed between the parties. It is true that after several times saying that he and plaintiff agreed to farm on shares, the defendant in his testimony once called the relation thus formed a partnership, but that did not make it so. As modified by the Court this instruction simply told the jury that if the parties agreed[***13] to farm on shares the plaintiff could not recover in this action anything for wages.

   And so with regard to the sixth prayer of defendant, which was rejected. The fact that the parties agreed to farm on shares, and that the plaintiff agreed to expend nine hundred and thirty-six dollars in the farming operations does not constitute a partnership. The facts set forth in this prayer are entirely consistent with the existence between the parties of the relation of landlord and tenant. Blue v. Leathers, 15 Ill. 31; Holloway v. Brinkley, 42 Ga. 226.

   What we have said in relation to the correctness of the Court's instructions as to limitations applies to the second and fifth prayers of defendant which were modified by the Court by adding to each of them the proviso that no deduction from the plaintiff's claim should be made for any of the alleged items of set-off mentioned in the instructions on limitations.

   An examination of this record shows that the, defendant after making several amendments of his pleas, finally determined [*233] to rely for his defence on payment and his theory of partnership. He had, we think, the full benefit of all[***14] the evidence he offered to sustain these defences. Upon the whole record we are of opinion the case was fully and fairly presented to the jury, and we are not disposed to disturb their verdict. Finding no reversible error the judgment will be affirmed.

   Judgment affirmed. 

JOHN A. BOTTOMLY vs. THOMAS F. BOTTOMLY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 159; 30 A. 706; 1894 Md. LEXIS 126

 December  18, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. The case is stated in the opinion of the Court.

DISPOSITION: Judgment affirmed.

CORE TERMS:  declaration, maliciously, discharged, intending, demurrer, falsely, esteem, good cause of action, technical rule, displeasure, offensive, malicious

COUNSEL: James M. Munroe, for the appellant.
 
An action for damages will lie where the two following elements occur: (1) An intentional wrongful act on the part of the defendant directed against the plaintiff; (2) Actual damages resulting to the plaintiff as the consequence of the wrongful act of the defendant. Addison on Torts (1880), vol. I, secs. 1, 16, 17, 18, 19, 22, 39, 40, 41. Lueke v. Clothing Cutters, &c., 77 Md. 396; Lynch v. Knight, 9 H. L. C. 577. An action will lie against the defendant for procuring a third person to break his contract with the plaintiff. Lumley v. Gye, 2 E. & B. 216; Bowen v. Hall, 6 Q. B. D. 333; Anson on Contracts, p. 206; Pollock on Torts, 450-1; Chipley v. Atkinson, 23 Fla. 206. If by the malicious and wrongful act of defendant, a contract is broken between a third party and the plaintiff, by which injury ensues to the plaintiff, the defendant when sued for damages cannot set up as a defence that his wrongful and malicious act was not the proximate cause of the injury, but that the third party alone who broke the contract is[***2] responsible. At one time this objectiou would have been held conclusive (Vicars v. Wilcocks, 8 East. 1; S. C. 2 Smith's Ldg. Cases, 1,) but this opinion is now disapproved. Lynch v. Knight, 9 H. L. C. 577; Cf. notes to Vickars v. Wilcocks, in 2 Sm. Ldg. Cases; Bowen v. Hall, 6 Q. B. D. 333; Knight v. Gibbs, 1 A. &. E. 43.
 
E. C. Gantt (with whom was John F. Williams on the brief), for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, FOWLER, BRISCOE and BOYD, JJ.

OPINIONBY: BRYAN
 
OPINION: [**706] [*160] BRYAN, J., delivered the opinion of the Court.

   As this case comes before us, the declaration contains only one count, and the question of its sufficiency is presented by a demurrer. This demurrer was sustained by the Court below, and the plaintiff has appealed. The declaration averred that the plaintiff was in the employment of one Chard, and stood high in his regard and esteem, and that the defendant had so great an influence over Chard that he was afraid to offend him, and that the defendant maliciously intending to alienate the regard and esteem of the said Chard from the plaintiff, and maliciously intending to effect his discharge by Chard from [***3]his employment, maliciously wrote and caused to be delivered to Chard a letter in the following words: "John (meaning the plaintiff) has said something hear of late which I (meaning the defendant) do not like, and myself (meaning the defendant) nor Lethia (meaning defendant's wife) shall never poot our foot on the place (meaning the property of said Chard) as long as he (meaning the plaintiff) stays their. For they are to bad to mention."

   The declaration further avers that by reason of the letter, and without any other reason whatever, Chard discharged the plaintiff from his employment, and the plaintiff lost his regard and esteem.

   The letter, mentioned in the declaration, stated to Chard the defendant's displeasure at something which the plaintiff was alleged to have said. It was described as something [*161] too bad to mention. The declaration does not aver that the defendant falsely charged the plaintiff with using the bad language attributed to him. The law does not assume that the charge was false in the absence of an averment to that effect. It must pass judgment on the pleading according to the facts which it sets forth. A true statement in regard to plaintiff's[***4] language certainly would not subject the defendant to a liability to damages. The plaintiff would have no legal cause of complaint if he were truly reported as having used very offensive language. Nor can the defendant be regarded as culpable, because he expressed his indignation to be so great that he would have no intercourse with him, not even to the extent of visiting the place where the plaintiff was staying. A man certainly has a right to be indignant when foul language is used respecting him, and to make known to his friends and acquaintances and the public generally that his resentment is so great that he will not go to any place where he would be apt to meet the person who had offended him. This seems to be the overt act which has caused the damage of which the plaintiff complains. If the defendant's letter had charged the plaintiff with conduct which would justly incur scorn and contempt, and would render him unfit for social intercourse; if it had even charged him with the commission of an atrocious felony, he could, nevertheless, maintain no action against the defendant if the charge should be proved true at the trial. It is well known that the truth of the offensive words, [***5] written or spoken, is a complete justification for the use of them. The rules of practice require the justification to be specially pleaded. This is the technical form of presenting the defence on the face of the record; but this mode of proceeding is the result of another technical rule, and in no way detracts from the force and effect of the truth as an element in the case, which is destructive of the plaintiff's right of action.

   We have implied, in what has been said, that the declaration did not show a cause of action, inasmuch [*162] much as it did not aver that the words of the defendant's letter were false. An examination of the approved precedents will show that in them the words which are the subject of complaint are usually charged as "false, scandalous and defamatory." And our Code, after stating that "whatever facts are necessary to constitute the ground of action, defence or reply, as the case may be, shall be stated in the pleading, and nothing more," proceeds to give forms which are declared to be sufficient, meaning, of course, that they contain what is necessary, and nothing but what is necessary. The thirty-fourth form charges that the defendant "falsely[***6] and maliciously spoke" certain words; the thirty-fifth, form charges that the defendant "falsely and maliciously printed and published" certain words. Code, Article 75, section 2 and section 23. According to the technical rule which we have mentioned, when the defamatory words are charged in the declaration to be false, the falsity is admitted, unless there is a plea specially alleging that they are true. But if the words [**707] are determined to be true, it is of no avail to allege that they were malicious, or that they caused damage to the plaintiff.

   We do not question the general rule maintained by the counsel for the plaintiff, that when a wrongful act has been committed the wrongdoer is responsible in a suit at law for the damages resulting from it. But the very foundation of the right of recovery fails in this case, because the unlawful character of the supposed tortious act is not shown. In a very great number of instances the Courts have been called upon to decide actions for infringing legal rights, and the language of the opinions delivered has frequently been very general; but it must always be interpreted with reference to the facts which were presented for adjudication. [***7] For instance, where it is said that when the plaintiff has a right he must have a remedy if he is injured in the enjoyment of it; it must necessarily be understood that the injury must be an act which is unlawful in itself, or that it is rendered unlawful by the circumstances [*163] under which it is committed. Much reliance was placed by the plaintiff's counsel on the decision of this Court in Lucke v. Clothing Cutters', &c., 77 Md. 396, 26 A. 505. In that case there was evidence competent to prove that the defendant procured the discharge of the plaintiff from an honest employment by which he earned his livelihood, and that this discharge was accomplished by threats which excited in the minds of the employers a well-grounded apprehension that if the plaintiff were not discharged their custom would be seriously diminished, and that great loss would also be caused by an order which would cause all of the union men in their employ to quit their service. We held that the conduct of the defendant was malicious and unlawful, and that it gave the plaintiff a good cause of action. It was a scheme to accomplish an unlawful result by unlawful means. Before leaving[***8] this subject we will quote from the Court's opinion a passage which is in entire harmony with what we have said about the necessity of showing that the statements were false which were contained in the letter of the defendant in this case. "Where a contract would have been fulfilled but for the false and fraudulent representations of third person an action will lie against such person." 77 Md. 408.

   The demurrer was properly sustained, and the judgment will be affirmed.

   Judgment affirmed. 

THE MAYOR, COUNSELLOR AND ALDERMEN OF THE CITY OF ANNAPOLISvs. WILLIAM HOWARD. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 244; 30 A. 910; 1894 Md. LEXIS 134

 December  18, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. The case is stated in the opinion of the Court.

DISPOSITION: Appeal dismissed with costs.

CORE TERMS:  custody, habeas corpus, writ of habeas corpus, appeal lies, same manner, civil suit, ex parte, discharging, convicting, violating, ordinance, prevail

COUNSEL: Elihu S. Riley, for the appellant.
 
James W. Owens and J. Randall Magruder, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., MCSHERRY, FOWLER, PAGE, ROBERTS and BOYD, JJ.

OPINIONBY: ROBERTS

OPINION: [**910] [*244] ROBERTS, J., delivered the opinion of the Court. 

   The appeal in this case is taken from an order passed by the Honorable James Revell, one of the Associate Judges of the Fifth Judicial Circuit of the State of Maryland, discharging the appellee from the custody of the Sheriff of Anne Arundel County. It appears from the record that the petitioner was in the custody of the sheriff of said county under a warrant of commitment issued by a Justice of the Peace of said county on a judgment convicting him of violating an ordinance of the city of Annapolis, requiring all persons, who bring their own growth of products to the city for sale during market hours, to take out a license [*245] therefor. In this state of case, the appellee applied for the writ of habeas corpus. The only question before us is, whether an appeal [***2]lies from an order of this character.

   The appellant, in its brief, admits that "up to the present, Maryland has neither allowed writs of error nor appeals from orders on habeas corpus, except under the Acts of 1874 and 1880." But it is contended that since the passage of the Act of 1892, ch. 506, a different practice ought to prevail, and appeals in habeas corpus cases be allowed. An examination of the provision of that Act will not justify any such conclusion. Section 77 of the Act reads: "The parties to criminal proceeding shall be entitled to bills of exceptions, in the same manner as in civil proceedings, and appeals from judgments in criminal cases may be taken in the same manner as in civil cases," &c. The appellant's contention can only be made effective by construing the order passed by the learned Judge in this case as a judgment in a criminal case, from which an appeal would lie in the same manner as in [**911] civil cases.

   To do this, would require us to reverse a long line of decisions in this Court. which have not, in a single instance, been departed from. As illustrating the view which has been so long sanctioned by this Court, and which, we think, we[***3] are fully justified in reasserting, notwithstanding the supposed growth of a different doctrine in other States, we call attention to the views of this Court as stated in Bell v. State, 4 Gill 301. In that case the Court had under consideration the 6th section of the Act of 1785, ch. 87, which is now found in the Code, Art. 5, sec. 2, slightly modified, but not materially changed, and reads as follows: "From any judgment or determination of any Court of Law in any civil suit or action, or in any prosecution for the recovery of any penalty, fine or damages, any party may appeal to the Court of Appeals." Judge Martin, delivering the opinion of the Court in Bell's case, said: "It is clear, we think, that the order of a County Court dismissing the application of the petitioner to be discharged from custody on a writ of habeas [*246] corpus, is not a determination or judgment of the Court in a civil suit or action, in the contemplation of the Act of 1785, chap. 87, so as to authorize an appeal. The writ of habeas corpus, although a most important and valuable remedy, and brings up the body of the party, with the grounds on which he has been deprived of[***4] his liberty, for the examination of the Court, is a proceeding summary in its character, addressed to the discretion of the Judge or tribunal to whom the application is made, so far as the discharge of the party is concerned; a proceeding where, in many cases, the evidence upon which the judgment is founded, cannot be presented to the Appellate Court, and is not final and conclusive upon the party applying for the writ, as he may prefer a similar application to any other Judge or Court of the State. An order, therefore, dismissing such a petition, has none of the characteristics of those judgments, which have been regarded by this Court as proper subjects for an appeal." See also, ex parte O'Niell, 8 Md. 227; Mace v. State, 5 Md. 337; ex parte Coston, 23 Md. 271; State v. Boyle, 25 Md. 509; Coston v. Coston, 25 Md. 500 at 506.

   The provision of Article 42, sec. 17 of the Code, has not been invoked, nor do we see how it could be made applicable to this case; we therefore deem further comment unnecessary, as no constitutional question has arisen herein. We all concur in the view that no appeal[***5] lies in this case, and the motion to dismiss must prevail.

   Appeal dismissed with costs. 

JOHN H. HUNT, EXECUTOR OF ROBERT S. HUNT, vs. JOHN F.GONTRUM, TRUSTEE, ETC. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
80 Md. 64; 30 A. 620; 1894 Md. LEXIS 110

 November  22, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from a decree of the Circuit Court for  Anne    Arundel  County (JONES, J.), made on May 24, 1894, by which it was adjudged that John F. Gontrum, trustee of the estate of William Galloway, under the last will of Miriam R. Lyons, deceased, recover against John H. Hunt, executor of the last will of Robert S. Hunt, deceased, the sum of $692.80, with interest, &c. The case is stated in the opinion of the Court.

DISPOSITION: Decree affirmed.

CORE TERMS:  cestui que trust, trust fund, acquiescence, collected, executor, insolvent, legacy, invest, died, breach of trust, full knowledge, part payment, legal rights, deed, personal property, capable of acting, express authority, sound discretion, sui juris, bequeathed, one-half, relieve, besides, peril

COUNSEL: James M. Munroe, for the appellant, cited: Perry on Trusts, (4th Ed.), secs. 440, 467, 849-851, 870; Waring v. Darnall, 10 G. & J. 140.
 
J. Wirt Randall and Daniel R. Randall, for the appellee, cited: 1 Lewin on Trusts, 287, 288, 317; 1 Perry on Trusts, secs. 440, 452, 453; Beach, Mod. Equity Juris., secs. 245, 263, 265; Hill on Trustees, 382, 525; Harrington v. Ketellas, 47 N. Y. 40; Wayman v. Jones, 4 Md. Ch. 500; Maccubbin v. Cromwell, 1 G. & J. 167; Ringgold v. Ringgold, 1 H. & G. 11; Hoffman Steam Coal Co. v. Cumberland, etc., Co., 16 Md. 508; Zimmerman v. Fraley, 70 Md. 561; Bentley v. Shreve, 2 Md. Ch. 218; Diffenderffer v. Winder, 3 G. & J. 342; Bispham's Principles of Equity, 183.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, MCSHERRY, [***2] FOWLER, PAGE and BOYD, JJ.

OPINIONBY: ROBINSON

OPINION: [**620] [*65] ROBINSON, C. J., delivered the opinion of the Court.

    Mrs. Miriam R. Lyons died in 1875, and by her will she bequeathed to Robert S. Hunt one thousand dollars "in trust for the sole use and benefit" of her nephew, William Galloway. Instead of demanding the payment of this legacy in money, as it was the plain duty of the trustee, he accepted from the executor of Mrs. Lyons certain promissory notes held by him, and among these notes was one of Thomas J. Perry, dated June 25th, 1878, for the payment of $451.92. The interest on this note was regularly paid by Perry to the trustee till 1885, but from that time no interest has been paid nor were any steps taken by the trustee to enforce the collection of the note. Perry died 1888, and his estate it is said is insolvent; and Hunt, the trustee, died 1889. This is a proceeding by the appellee, appointed trustee in the place of Hunt, against Hunt's executor, to recover the loss sustained by the cestui que trust, on account of the Perry note.

   The case was submitted to the Court below upon a written agreement of counsel, and the questions submitted for its determination, [***3] are whether Hunt, trustee, ought and could have reduced the Perry note to money? And secondly, [*66] whether Galloway, the cestui que trust, acquiesced or consented to the breach of trust of the trustee?

   That it was the duty of the trustee to have taken proper steps at once to collect the money due on the note, there can be no question. He had no right in the first place to accept the assignment of the note from Mrs. Lyons' executor in part payment of the legacy, but ought to have demanded its payment in money. And if he did accept it, he ought to have proceeded at once to collect the note. In the absence of express authority in the instrument creating the trust, atrustee has no right to invest trust money in personal securities, and if he does, he makes the investment at his own peril. And even where the investment is left to his discretion, it is well settled that it is not a sound discretion to invest in such securities. Walker v. Symonds, 3 Swanst. 62; Drake v. Martyr, 1 Beav. 525; Vigrass, v. Binfield, 3 Madd. 62. In Holmes v. Dring, 2 Cox 1, Lord Kenyon said: "No rule was better established, than that[***4] a "trustee could not lend on mere personal security and it "ought to be rung in the ears of every one who acted in the "character of trustee."

   It is equally clear, too, we think, that the trustee could have collected the money due on this note if proper steps had been taken to enforce its payment in 1878, when it was assigned to him. Perry was at that time the owner of a farm containing 123 acres, for which he paid $3,000, and the only lien upon it from 1883 down to his death in 1888 was a mortgage of $800. He had besides personal property worth at least $600. Doctor Franklin, the executor of Mrs. Lyons, says he was at the time of the assignment a prosperous farmer and he considered him perfectly good for the payment of the note. Now there is testimony to show that when Perry died in 1888, ten years after the note had been given in part payment of the legacy, his estate was insolvent, but his ability to pay a note of $451 in 1878, is not to be decided by his pecuniary condition in 1888. In the mean time his real estate had depreciated in value, part of his personal [*67] property was gone--had in fact diminished one-half in value; and besides he had incurred other[***5] debts and liabilities. So, looking to the proof in the record before us, we are satisfied that this note could have been collected by the trustee if he had taken the proper steps for that purpose.

   And this brings us to the remaining question whether there was any consent or acquiescence on the part of Galloway, the cestui [**621] que trust, to the breach of trust by the trustee. If a trustee makes an improper investment of the trust fund, at the request of the cestui que trust, or if the cestui que trust acquiesces or consents to the investment, the trustee will not be held liable to make good the loss arising from such investment. But to relieve the trustee from liability in such cases, the cestui que trust must be sui juris and capable of acting for himself, and the acquiescence must be with full knowledge of the facts and circumstances and with knowledge as to his legal rights. In Walker v. Symonds, 3 Swanst. 62, where the law on this subject was fully considered by Lord Eldon, a deed of compromise by a cestui que trust was rescinded and the co-trustees held responsible for the loss of the trust fund, on the ground [***6]that the cestui que trust had not proper information of her own rights and the liabilities of the trustees at the time of the execution of the deed.

   In this case it cannot be said that the acceptance of the Perry note was done at the request or with the consent of Galloway the cestui que trust, for he was at that time but eight years old. Nor do we find any acquiescence on his part after his arrival at age in the breach of trust committed by the trustee. He did in 1885 write to the trustee requesting him to deliver to him, Galloway, the several notes held in trust for him, and did express his willingness to accept the notes, but at the same time he says, "I presume they could be collected at any time." He did not know nor had he a right to assume that one of these notes, the Perry note constituting almost one-half of the trust fund, was insolvent. He supposed, as he says, that the notes were good and [*68] could be collected at any time. By no fair rule of construction can this letter of the cestui que trust be construed as an acquiescence on his part, with full knowledge of all the facts and circumstances connected with this note and with knowledge of his legal[***7] rights and the liability of the trustee for the failure to enforce the payment of the note at a time when Perry was solvent. We agree, therefore, with the learned Judge below that Hunt's estate must be held liable for the loss of the trust fund arising from the insolvency of the Perry note.

   Decree affirmed. 

THOMAS H. BRAYSHAW vs. JAMES M. RIDOUT, Register of St.Margaret's (Westiminster) Parish. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
79 Md. 454; 29 A. 515; 1894 Md. LEXIS 64

 June  21, 1894, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Judgment reversed and cause remanded.

CORE TERMS:  church, register, vestry, election, enroll, duty, demurrer, vestrymen, enrolled, resident, ecclesiastical, Vestry Act, An Act, writ of mandamus, white male, mandamus, establishment, contributed, diocese, discipline, religious, worship, years last past, qualification, vestryman, eligible, preamble, demurred, declare, elected

COUNSEL: James M. Munroe, for the appellant.
 
Robert Moss, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, PAGE, MCSHERRY, BOYD and BRISCOE, J.

OPINIONBY: PAGE

OPINION: [**515] [*454] PAGE, J., delivered the opinion of the Court.

   In the Court below Thomas H. Brayshaw filed his petition, in which he alleged:

   1st. That St. Margaret's (Westminster) Parish in Anne [*455] Arundel county is one of the parishes of the Protestant Episcopal Church of the United States in the diocese of Maryland, established under the provisions of the Act of the General Assembly of Maryland of the year 1798, entitled "An Act for the establishment of vestries for each parish in this State."

   2nd. That he is a free white male citizen of the State of Maryland, thirty-three years of age, and is now, and for more than two years has been a resident of said parish, and "is now, and for twenty-five years last past has been, a member of said Protestant Episcopal Church, contributing to the charges of said parish, although the vestry of said[***2] parish has never in writing made known and declared any sum to be contributed by the members of said church towards the charges of said parish during the residence of your petitioner in said parish."

   3rd. That by the said Act all persons "who shall have been entered on the books of the parish one month at least preceding the day of election as a member of the Protestant Episcopal Church" shall have a right of suffrage in the election of vestrymen, and all persons so qualified shall on every Easter Monday forever assemble, &c., and elect by ballot four vestrymen, &c.

   4th. That by the Vestry Act it is provided that the vestry of every parish are obliged to provide a register, whose duty it is "to enroll every person of the Protestant Episcopal Church who shall apply for the purpose, on the books of the parish."

   5th. That the appellee is the register of said parish, and has in his possession the books of the parish.

   6th. That the appellant applied to him to enroll the petitioner, and at the time tendered six cents, and that the petitioner possessed all the qualifications entitling him to be enrolled, of which the register was informed, but refused to register him.

   The petitioner[***3] thereupon prayed for a writ of mandamus, commanding the said Ridout, register, to enroll him [*456] as a member of the Protestant Episcopal Church of the United States, &c., as required by the provisions of chapter 24 of the Acts of 1798, above referred to. To this petition the appellee demurred, and from the judgment of the Court sustaining the demurrer the appellant has appealed.

   It is a principle too familiar to require citations to sustain it, that a demurrer admits all facts that are well pleaded. If facts, however, are pleaded which are insufficient in substance or immaterial, they are not admitted by the demurrer to be true. In the cases of Brooke vs. Widdicombe, 39 Md. 386, and Devin vs. Belt, 70 Md. 352, 17 A. 375, the Court held, that the facts stated in the pleading demurred to were not admitted, because they severally tendered an immaterial issue.

   In order to determine what are the material facts alleged in this petition it is necessary to inquire what it was incumbent on the petitioner to prove, to entitle him to the relief for which he has prayed. This depends upon the construction of the Act of 1798, chapter 24, commonly known[***4] as the Vestry Act. The duty of the register who is to be appointed by the vestry, in respect to enrollment, is declared by the third section of the Act to be "to enroll every person of the Protestant Episcopal Church who shall apply for the purpose on the books of the parish." Any one, therefore, who is a resident of the parish, and "is of the church," that is, is a member of the church, may apply to the register, and it is the duty of the latter to enroll him.

   The allegation in the petition therefore, that the petitioner is a member of the church, is a material fact necessary to be averred and proved before the petitioner had any standing in Court. It is not material to the decision of this case for us to determine how, or by what authority, a person becomes a member, for however that may be, it having been alleged as a fact that the petitioner is "a member," it is admitted by the demurrer to be true. We will say, however, because we are informed that other cases may depend upon our view of the matter, that in [*457] our opinion membership in a church is an ecclesiastical matter depending upon the law of the church itself. The Act does not place it in the power of the register[***5] to declare who are or who are not members, and, for the purposes of this case, this is as far as it is necessary for the Court to determine.

   The demurrer in this case therefore admits that the petitioner is a free white male citizen, over twenty-one years of age, a member of the Protestant Episcopal Church, a resident of the parish, and that he has applied for registration to the appellee, the [**516] register of the parish; and, if these things be so, it was the plain duty of the register to enroll him. The discharge of that duty, under these circumstances, involved the exercise of neither judgment nor discretion; it was a plain ministerial duty, for a failure to perform which a mandamus will lie.

   The objection as to the name of the church is not material. It is clear what the petitioner meant when he referred to "The Protestant Episcopal Church of the United States in the diocese of Maryland." See Bartlett, et al. vs. Hipkins, 76 Md. 5, 23 A. 1089. Nor do we think that it affects the case, that the reasons alleged in the petition for the application, viz.: 1. That he might vote at the Easter election of 1893; and 2d, that he might be eligible for election [***6]as a vestryman, may not now exist. These allegations were not necessary to his case. If he was entitled to be enrolled, the particular reasons he entertained for desiring his name to be placed on the books need not have been stated. And apart from this, he might desire to be enrolled so that he could vote at future elections, and be eligible for vestryman whenever a vacancy occurred.

   It follows from what we have said the judgment must be reversed, and the case remanded, that the mandamus may issue as prayed.

   Judgment reversed and cause remanded, &c.

   [*458] BRYAN, J., delivered the following separate opinion:

   This case involves the right of the appellant to be enrolled as a member of the Protestant Episcopal Church. It is one of those unhappy controversies among members of religious bodies which sometimes come before Courts of Justice. It is not of our own choice that we sit in judgment in such cases. Far otherwise. It would be much more in accordance with our personal wishes if these questions were settled by some ecclesiastical authority having power to determine them. But the mandate of the law leaves us no alternative; and we may not upon any consideration shrink[***7] from the performance of our constitutional duty. We must pronounce the judgment which the law requires of us; but as members of a secular Court we enter upon the investigation before us in a spirit of becoming reverence. It is a relief to us to know that we have no power to decide any question of "doctrine, discipline or worship;" and that no one has a right to bring such a question before us. This principle, so consonant to our form of government, has been announced in many judicial decisions, and very expressly and clearly by this Court in Tartar, et al., Trustees vs. Gibbs, et al., 24 Md. 323 at 338. Upon it we stand, and by it we intend to abide. Where a civil right depends upon a question of an ecclesiastical character, we take without hesitation or debate the competent judgments of religious associations as far as respects their own members, and make them the basis of our determination of the civil right. Watson vs. Jones, 13 Wall. 679, 20 L. Ed. 666.

   In this case Brayshaw filed a petition for a writ of mandamus against Ridout. It was alleged "that St. Margaret's (Westminster) Parish, in Anne Arundel county, State of Maryland, comprising[***8] the third and fifth election districts of said county, is one of the parishes of the Protestant Episcopal Church of the United States in the diocese [*459] of Maryland, established under the provisions of chapter 24 of the Act of the General Assembly of Maryland, of the year 1798, entitled "An Act for the establishment of vestries for each parish in this State." That the petitioner "is a free white male citizen of the State of Maryland, thirty-three years of age, and is now and for over two years last past continuously has been, a resident of said parish, and is now, and for twenty-five years last past continuously has been a member of said Protestant Episcopal Church, contributing to the charges of said parish, although the vestry of said parish has never in writing made known and declared any sum to be contributed by the members of said church towards the charges of said parish during the residence of your petitioner in said parish." It was also alleged that Ridout is the register of the parish, and that the petitioner made application to him to be enrolled on the books of the parish as a member of the Protestant Episcopal Church, and that Ridout refused to enroll him. There [***9]were other allegations in the petition, but it is not necessary to consider them. Ridout answered the petition; but afterwards withdrew his answer, and demurred. The Court below sustained the demurrer, and rendered judgment for the defendant. The demurrer of course admitted all the facts in the petition which were properly pleaded. We are then to decide whether upon these facts the register was obliged to enroll the petitioner. It is well known that in this State, previously to the Revolution, the Church of England was established and maintained by the Government as a part of the public polity. From the Acts of 1702 (March session), chapter 1, we quote the title, and preamble and a portion of its first section as follows: "An Act for the establishment of religious worship in this Province according to the Church of England, and for the maintenance of ministers."

   "Forasmuch as in well-grounded Christian commonwealths [*460] matters concerning religion and the honor of God ought in the first place to be taken into consideration, and honest endeavors to attain to such good ends countenanced and encouraged, as being not only most acceptable to God, but the best way and means to obtain[***10] his mercy and blessing upon a people or country: Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of this present General Assembly, and by the authority of the same, that the book of Common Prayer and Administration of the Sacraments, with other rites and ceremonies of the Church according to the use of the Church of England, the [**517] Psalter, or Psalms of David, and morning and evening prayer therein contained, be solemnly read by all and every minister or reader in every church which now is or hereafter shall be settled and established within this Province, and that all congregations and places for public worship according to the usage of the Church of England within this Province, for the maintenance of whose ministers, and the person officiating therein, any certain income or revenue, is or shall by the laws of this Province be established and enjoined to be raised or paid, shall be deemed settled and established churches; and for the encouragement of faithful and able ministers laboring in the words of the gospel to come and reside in this Province, &c." When independence was declared it became necessary to readjust the relations [***11]between Church and State. The property of the Church of England was solemnly guaranteed to it forever by the new government. It was no longer established as the State church; but such friendly legislation was enacted as was thought necessary to preserve and protect its rights, and to promote its well-being. In the meantime its name was changed, and it became known as the "Protestant Episcopal Church in Maryland." In furtherance of the general purpose of giving such aid to the church as the Legislature might rightfully give, the Act of the March [*461] session of 1779, chapter 9, was passed. Its title and preamble are as follows: "An Act for the establishment of select vestries. Whereas it is thought expedient and necessary that select vestries be chosen in every parish within this State for the preservation of the churches, and for the taking care of glebe lands, and for other purposes tending to the happiness and welfare of this State." By the Act of 1702 the vestries were elected by all the inhabitants of every parish who were freeholders within the parish, and who contributed to public taxes and charges thereof. By the Act of 1779 vestries were elected by all the inhabitants[***12] of the parish who were entitled to vote for delegates to the General Assembly, and who contributed to the charges of the parish. In course of time a change in the mode of electing vestries became desirable. Accordingly the Act of 1798, chapter 24, was passed, which is the present Vestry Act. It is stated in the preamble that it was represented to the General Assembly that the previous legislation was inadequate to the exigencies of the Protestant Episcopal Church in this State, for which it was intended to provide. It was therefore enacted that "Every white male citizen of this State, above twenty-one years of age, resident of the parish where he offers to vote six months next preceding the day of election, who shall have been entered on the books of said parish one month at least preceding the day of election as a member of the Protestant Episcopal Church, and who shall also contribute to the charges of the said parish in which he offers to vote, such sum as a majority of the vestry, in each parish, shall annually, within ten days after their election, in writing make known and declare, not exceeding two dollars, shall have the right of suffrage in the election of vestrymen for such [***13]parish." The third section enacts that it shall be the duty of the register of the parish to enroll any person of the Protestant Episcopal Church who shall apply for the purpose, on the books of the parish, [*462] under the penalty of eight dollars. The fifth section enacted that the vestrymen of each parish, or a majority of those who shall attend, shall judge of the election of vestrymen, and of the qualification of voters, and of parishioners proposed to be elected as vestrymen. The ninth section enacted that the vestry as trustees of the parish should have an estate in fee simple in all churches and chapels, and in all glebes and other lands, and should have a good title and estate in all other property theretofore belonging to the Church of England, or which should thereafter belong to said church, which the section states was then called the Protestant Episcopal Church in Maryland. The fifteenth section gave the vestry power to choose ministers of the church to perform their duties in the parish. The thirty-second section incorporated the vestry of every parish. The detailed statement which we have made shows that the name of the Church of England was changed, and that it[***14] was separated from the political government of the State; but that the other changes were made for the purpose of enabling the church to preserve and protect its property, and more efficiently to provide for its pastoral service. No thought was entertained of making any change in doctrine, discipline or worship; and such an attempt would have been at variance with the fundamental principles on which the new State government was founded.

   We are now prepared to inquire what powers and rights belong to the register of a parish when a member of the church applies to him for enrollment on the books of the parish. Is he invested with any judicial functions to determine the question of membership? Has he any discretionary power in the premises? As the Church of England up to the time of the Revolution was the established church of the State, its doctrines, rites, usages and ceremonies were matters of public knowledge which the Courts were bound judicially to know. In all the ages of its existence [*463] it has uniformly admitted members into its communion by the sacrament of baptism, and in no other way. Its ministers in holy orders as part of the sacred office make this solemn declaration: [***15] "We receive this person into the congregation of Christ's flock." And its members can not be expelled except by the administration of ecclesiastical discipline adjudged in the due course of ecclesiastical authority. The Court must judicially know that this was the case at the [**518] time of the Revolution; and the Court ought judicially to declare that it must be the case now, unless a change has been made. Now, what intimation has there been that any change has taken place? None whatsoever. In point of fact it is well known to thousands and tens of thousands of persons that the baptismal office and its effects and consequences remain the same as they have ever been. But we are not to decide this question on any personal knowledge which we may have on the subject. We act as the impersonal organs of the law, and make the declaration which it commands us to make, as a deduction from its general principles. We then have no difficulty in saying that a register of a parish has no right to adjudge and determine who is a member of the church. His duties are by the statute merely mechanical and ministerial, as the law terms them. He is to enroll or make a list of the members. Vestries [***16]were authorized to appoint registers by all the Acts of Assembly which we have cited, and their duties have always been of the same character. They are merely secretaries or scribes; their business is to "keep true and fair entries of the proceedings of the vestry," and "to enter in a book provided for the purpose, all baptisms, marriages and funerals of free persons in the parish," and to do such like things. He has no concern whatever with the qualification of voters. By the fifth section of the Act of 1798 this duty is confided exclusively to the vestry. We shall decide on the record before us that Brayshaw ought to be enrolled on the books of the parish.

   [*464] It has been said that the Church has been misdescribed in the petition; that it is not properly styled "The Protestant Episcopal Church of the United States in the diocese of Maryland." We regard this objection as having little weight. It is impossible to misapprehend the meaning of the petition in this particular. It designates clearly enough the parish intended to be described as Saint Margaret's.

   The order of the Circuit Court ought to be reversed, and the cause remanded, in order that a writ of mandamus[***17] may be issued according to the prayer of the petition.

   Reversed and remanded. 

FRANK BROWN, Governor of Maryland, vs. DANIEL J. BRAGUNIER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
79 Md. 234; 29 A. 7; 1894 Md. LEXIS 58

 April  5, 1894, Decided

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Order reversed, and petition dismissed, with costs in both Courts.

CORE TERMS:  certificate, election, candidate, cast, duty, poll, writ of mandamus, elected, whole number, mandamus, ascertained, clerk, tally, attested, certify, voted, adequate remedy, ministerial, contest, prima facie evidence, qualify, judges of election, election districts, duly elected, certification, unequivocal, instituted, lawfully, endorsed, declare

COUNSEL: William T. Brantly, and John Prentiss Poe, Attorney General, for the appellant.
 
J. Wirt Randall, and Daniel R. Magruder, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, FOWLER, PAGE, MCSHERRY, BOYD and BRISCOE, J.

OPINIONBY: MCSHERRY

OPINION: [**8] [*235] MCSHERRY, J., delivered the opinion of the Court.

   At the general election held on the Tuesday after the first Monday of November, eighteen hundred and ninety three, among the officers voted for in Charles County was a County Commissioner. Under the local law (Act of 1892, ch. 569) the board of County Commissioners of that county consists of three members, but the term of only one of them had then expired, and consequently but one vacancy existed to be filled at that election. Joseph H. Penn was the candidate of one of the political parties for the office of County Commissioner, and Bragunier, the relator, was the candidate of the opposite party for the same office. The judges of the election made a return to the Governor of[***2] the number of votes cast in the county, and acting upon that return the Governor issued a commission to Penn, who thereupon qualified according to law, and duly entered upon the discharge of his duties. Thereafter Bragunier, who had also instituted proceedings in the Circuit Court for Charles county under Art. 33, sec. 94 of the Code, to contest the election of Penn, filed in the Circuit Court for Anne Arundel county a petition against the Governor of the State, praying that a writ of mandamus might be granted compelling the Executive to issue a commission to the relator for the office then held by Penn under the outstanding commission previously issued to the latter. A majority of the Judges of the Circuit Court for Anne Arundel county (ROBERTS, C. J., dissenting) directed the writ of mandamus to go as prayed, and from that order the Governor has appealed.

   The remedy by mandamus is not one which is accorded ex debito justitiae. The writ is a prerogative one; and unless the right which the relator seeks to enforce is clear [*236] and unequivocal, and the correlative duty which the respondent refuses to perform is purely ministerial, and there be no other [***3]adequate remedy at law, it will not be granted. Weber et al. vs. Zimmerman, 23 Md. 45; Hardcastle vs. Maryland & Delaware Railroad Co., 32 Md. 32; Legg et al. vs. Mayor, &c. of Annapolis, 42 Md. 203; Marbury vs. Madison, 1 Cranch 137, 2 L. Ed. 60. In addition to this it is well settled, as it must be from the very nature of the proceeding itself, that the writ will never be granted when, if issued, it would be nugatory and unavailing. Tapping on Man., 17; State, ex rel. O'Neill vs. Register et al., 59 Md. 283; Wells vs. Comm'rs of Hyattsville, 77 Md. 125. That the Governor of the State may, if he refuses to perform a ministerial function, be reached by the writ is no longer an open question in Maryland. Magruder vs. Swann, 25 Md. 173; Groome vs. Gwinn, 43 Md. 572. Whilst respect for a co-ordinate department of the State government suggests that it must be assumed the Executive would promptly comply with the mandate of the Courts, there would be no difficulty in finding appropriate and effective means to enforce obedience if occasion should require[***4] it.

   Under sec. 11, Art. 4 of the Constitution, and under the statutes made in pursuance thereof, all election returns, except those for State's Attorneys and Governor, are required to be certified to the Governor. The method of that certification is minutely and clearly defined in the Code, and in subsequent Acts of Assembly amendatory thereof. To these some particular reference must now be made, as upon their provisions the pending controversy mainly turns.

   By sec. 66 of Art. 33 of the Code, it is provided that immediately upon the close of the polls and as soon as the ballots have been counted, and the number for each candidate reckoned up and ascertained, the judges of election of each district shall make out under their hands, attested by the clerks of election, on the books of the polls, two [*237] plain, fair and distinct certificates of the number of votes which shall have been then and there given for each candidate, distinguishing the office for which he has been voted. The numbers of the votes received by each candidate are required by sec. 67 to be expressed in words at length, and not in figures. By sec. 68, as amended by the Act of 1890, [***5] ch. 624, the presiding judges of election in the several election districts are required to meet at the Court House within seven days after each election "with the books of the polls and the certificates aforesaid." The 69th sec. as amended by the same Act, directs these judges, when so assembled, to "cast up the whole vote of all the districts," and to "make out two plain, fair and distinct statements and certificates of the number of votes which shall have been given for each candidate"; one of which shall be delivered to the clerk of the Circuit Court, and the other, except in elections for Governor and State's Attorney, shall be transmitted to the Governor; and "from the returns so made the Governor shall issue commissions to the different persons elected." Sec. 70 gives the form of the certificates provided for by the preceding section. Before quoting this certificate, it is proper to say that as originally framed by the Act of 1805, ch. 97, sec. 15, and amended by the Act of 1860, ch. 10, and incorporated in the Codes of 1860 and 1888, it did not require, except in elections for sheriff, that the number of votes received by each candidate should[***6] be stated, but only directed the return judges to certify that "it appeared that ----- has the greatest number of legal votes for -----." The Act of 1890, ch. 624, required this certificate to be modified so as to conform to the provisions of that statute; and as those provisions direct the certificate to state the number of votes which shall have been given for each candidate, the certificate, instead of only declaring that a particular person received the greatest number of legal votes for a designated office, must now set forth the vote [*238] of each candidate for that [**9] office. This is the only modification made by the Act of 1890 in the form of the certificate. 

   The certificate as now modified by the Act of 1890, and as required by the law to be made up and signed, and to be transmitted to the Governor, after making recitals we need not allude to, sets forth that the subscribers attending judges at the close of the election * * * * "having this day assembled * * * * with the books of the polls, on which are endorsed the several certificates agreeably to law, and having cast up the whole number of votes given in said districts according to the certificates [***7]  made out on the day of election by the judges, it appears that ----- has ----- number of legal votes for ----- and that ----- has ----- number of legal votes for -----, whereupon we do determine, declare and return that the said ----- is duly elected."

   Now, from these several provisions of the Code, it seems to us quite obvious that the plain duty of the judges of election who assemble to make up and certify the returns from all the election districts of a county to the Governor, is to cast up the whole number of votes given in said district according to the certificates made out on the day of the election by the judges and attested by the clerks, under sec. 66; and that the statute confers upon these return judges no power to alter, to change, or revise in any way the results disclosed by the certificates appended to the poll books. If errors are apparent in these district certificates, the mode to correct them is by contesting the election in the appropriate forum. In such a contest the true state of the vote can always be ascertained, and the inaccuracies of the certificates can be made to yield to the footings of the tallies, or to the actual results of the election[***8] as disclosed by a recount of the ballots. The legislature has not seen fit, either by express enactment, or by implication, to vest in the return judges, the power or authority [*239] to make these district certificates conform to the footings of the tallies if there happens to be a variance between them; nor has it given to these ministerial officers power to ascertain the state of the polls in any other way than by casting up the whole number of votes according to the certificates made out on the day of the election. If, in doing this perfectly plain duty, they encounter discrepancies between the certificates and the tallies, they must follow the certificates, and leave to other tribunals especially entrusted with the means to discover the truth, the duty to apply the appropriate remedy for any wrong which may result from an observance of the mandate of the statute. Considerations of inconvenience or supposed hardship cannot prevail against the letter of the written law, nor override its obvious spirit and purpose; and it is infinitely better that some few individuals should, by a strict construction of the statute be driven into the Courts for a vindication of their claim to[***9] the possession of a public office, than that the will of the people should be constantly in peril of being thwarted by conceding to return judges the power to change the results ascertained and certified to at the close of the polls.

   The character of the return which the law requires to be made to the Governor being thus distinctly defined by the statute, it is clear that if no such return was in fact made, the relator's right to a commission has not been established, and the Governor's duty to issue one to him has never arisen. What, then, is the return upon which the relator relies?

   It recites that the return judges met, &c., * * * * "with the books of the polls on which are endorsed the several certificates agreeably to law, and in which appear separately the total vote cast in said districts, and the number of votes cast in each district for each candidate voted for at said election, from the tallies kept by the tally clerks, duly marked and endorsed thereon, it appears from said [*240] certificate that Marion de Kalb Smith received 1341 votes for Comptroller of the Treasury of the State of Maryland; and that James T. Perkins received 1301 votes for said office of Comptroller[***10] of the Treasury of the State of Maryland; and that * * * * and that Joseph H. Penn received 1264 votes as County Commissioner for Charles County; and that Daniel J. Bragunier received 1274 votes as County Commissioner for Charles county"; and so on down to the end of the ticket voted for. The certificate then proceeds: "But it appears, after casting up the whole vote of all the districts of said county from the said tallies, that Marion de Kalb Smith, &c., &c., * * * * and that Joseph H. Penn received 1291 votes as County Commissioner of Charles county; that Daniel J. Bragunier received 1277 votes as County Commissioner of Charles county," and so on down to the end of the ticket voted for. But the concluding clause prescribed by sec. 70, to-wit: "whereupon we do determine, declare and return that the said ----- is duly elected," is wholly omitted.

   Now, the words which we have above put in italics are not to be found in the certificate formulated by sec. 70; and the material and essential statement that the return judges had "cast up the whole number of votes given in said districts according to the certificates made out on the day of election by the judges," is not inserted[***11] at all. There is no certification by the return judges that they had done that which, as we have already pointed out, the law imperatively required them to do, namely, to cast up the whole number of votes given in said districts according to the certificates made out by the judges and attested by the clerks on the day of the election. It is only upon returns so made up and so certified that the Governor can, under sec. 69, issue a commission. It does not appear from the certificate which the return judges forwarded to the Governor that the number of votes which they certify Bragunier received was [**10] ascertained by casting up the numbers [*241] written out in words in all the certificates signed and attested on the day of the election. And in no other way could Bragunier's aggregate vote have been lawfully ascertained and determined by the return judges of the election. They do not even certify that they added or cast up the number of votes shown by these certificates. This part of their certificate can only be treated as a compliance with the law by assuming or inferring that that was done which ought to have been done, but which the language of the certificate fails[***12] to show was in fact done. It may be that it appears from the certificates that Penn received 1264 votes and Bragunier 1274 votes, without its being true that the same result would have been exhibited had the numbers in all the certificates been cast up. The form given in sec. 70 need not be pursued literally, but its substance must be faithfully preserved, otherwise the door will be opened to the successful perpetration of frauds upon the elective franchise. The statute did not design to leave any thing to conjecture or inference in these election returns, and a certification which requires either conjecture or inference to supply omissions of material averments can not be regarded as such sufficient evidence of a relator's right to an office as will warrant the issuing of a writ of mandamus at his instance.

   Not only is the certificate silent as to the material fact that the judges cast up the number of votes set forth in the district certificates, but it also omits the formal declaration as to who was elected. Perhaps this latter omission, if the certificate were in all other respects regular, would not be a serious difficulty; but coupled with the failure to certify[***13] that the judges had done the chief thing which the law requires shall be done by them to show who was in fact elected, it becomes of greater consequence. The relator's right to the writ of mandamus depends upon this defective certificate which fails to show that the aggregate vote with which he is credited was ascertained in the mode, [*242] and the only mode prescribed by the statute, and which also fails to "determine, declare and return" him elected. In this state of the case his right to the commission is far from clear, and the duty of the Governor to issue it is by no means an unequivocal one. This would, of itself, be sufficient to justify a refusal of the writ.

   But, beyond this, we have said that a writ of mandamus will not be issued when there is an adequate remedy at law. The Code, Art. 33, sec. 94, provides a full and complete remedy at law for the appellee against Penn. Bragunier instituted proceedings against Penn in the Circuit Court for Charles county, under the section of the Code just alluded to. That case is now pending on appeal in this Court. In those proceedings the question as to who was in fact elected County Commissioner of Charles county[***14] could have been, if it was not, fully considered and decided, notwithstanding Penn held and still holds a commission for the office, and Bragunier holds none. The remedy thus given is not only full, but it is peculiarly appropriate; and if this be so, that fact precludes any redress by mandamus. It is, however, insisted the remedy thus provided is not adequate, because what is sought in the pending case is, not possession of the office, but merely possession of the muniment of title to it. But the relator has no right to the muniment of title if he has no right to the office itself. Now, if the writ of mandamus were granted and the commission were issued as prayed, the commission could only serve one of two purposes, viz., either, to enable Bragunier to qualify under it, and to assume the duties of the office, or, to supply prima facie evidence of his right to possess the office. If issued, it could not result in revoking Penn's commission. He is not a party to this proceeding, and cannot, therefore, be affected by it in any way. The Governor has no power to revoke a commission issued by him, except, perhaps, where he is authorized to remove the officer holding it. Ewing vs. Thompson, 43 Pa. 372.[***15] [*243] A commission issued to Bragunier would consequently not displace Penn, nor disqualify him from acting as County Commissioner. Penn is now in office under his commission. The law allows but three County Commissioners for Charles county. If a commission be now issued to Bragunier he obviously could not lawfully qualify under it, or enter upon the duties of the office, because if he did do so, there would be four, instead of but three, County Commissioners actually in office. If not authorized to qualify under it, still it is insisted Bragunier is entitled to a commission as prima facie evidence of his title to the office, and because his possession of the commission would shift the burden of proof in a contest between him and Penn upon Penn. But, if it be conceded that such would be the effect of his commission, a like effect must be given to the one held by Penn. Both commissions would then be prima facie evidence that the holder of each was entitled to an office which but one of them could lawfully fill--and that one, the one who was duly elected thereto--and consequently, one commission would neutralize the other as evidence, and there could, of necessity, [***16] be no shifting of the burden of proof at all. Hence, the commission, if issued to Bragunier, would be utterly useless to him for either of the purposes suggested. The writ of mandamus will never be issued to compel the doing of a nugatory or useless act.

   We have said that Penn's claim to the office of County Commissioner is not before us. The action of the Executive in issuing a commission to him is likewise not before us, further than it is incidentally involved in the opinion we have expressed upon the irregularity and insufficiency of the returns made [**11]by the judges of election to the Governor. But the fact is disclosed by the record that a commission was actually issued to Penn; and the further fact is also apparent, that he qualified thereunder and entered upon the discharge of the duties of County Commissioner. These facts, whilst not influencing the decision of this case, when [*244] taken in connection with the defects in the returns made by the judges of election, emphasize the conclusion that the appropriate remedy for the relator to pursue is the one provided by sec. 94, Art. 33, of the Code.

   For the reasons we have given, we are of opinion[***17] that the order appealed from must be reversed, and the petition for a mandamus must be dismissed.

   Order reversed, and petition dismissed, with costs in both Courts.

   ROBINSON, C. J., dissented. 

GREENLEAF TAYLOR, Master of Bugeye Howard H. B. Taylor vs.THE STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
79 Md. 130; 28 A. 815; 1894 Md. LEXIS 38

 March  14, 1894, Decided

   PRIOR HISTORY:  [***1] APPEAL, AND APPEAL AS UPON A WRIT OF ERROR, from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Reversed and remanded.

CORE TERMS:  island, water, oysters, license, river, boat, clerk, line drawn, westward, dredge, scrape, scoop, mile, straight line, traverser, mainland, north side, licensed, resident, inland, indictment, demurrer, averred, pleaded, mouth, lying, admit, Public Local Laws of Talbot, months next preceding, properly overruled

COUNSEL: William E. Stewart, and Joseph B. Seth, for the appellant.
 
E. C. Gantt, State's Attorney of Anne Arundel County, and John Prentiss Poe, Attorney General, for the appellee.

JUDGES: The cause was argued before ROBINSON, C. J., BRYAN, PAGE, ROBERTS, MCSHERRY, BOYD and BRISCOE, J.

OPINIONBY: BRYAN

OPINION: [**816] [*132] BRYAN, J., delivered the opinion of the Court.

   Greenleaf Taylor was indicted in the Circuit Court for Anne Arundel county on the charge that he, not having been licensed according to law, did employ a certain boat called a bugeye in taking oysters with an instrument called a "scoop," within the waters of Chesapeake Bay, and not within the body of any county. He pleaded to the jurisdiction of the Court, and averred in his plea that he was, and for eighteen years had been, a citizen of Talbot county, and had been a resident thereof for more than twelve months next preceding the taking of the oysters, and that the place where they were taken was within the waters of Talbot county, opposite and to the[***2] westward of Tilghman's island, and not more than a mile and a half therefrom, and inland from a line drawn from Sharp's island to Poplar island, and that he was duly licensed according to law by the clerk of the Circuit Court of Talbot county to take oysters at the place aforesaid with scrapes and dredges.

   The State demurred to this plea, and the Court sustained the demurrer, and overruled the plea. Thereupon the traverser pleaded not guilty, and after conviction and sentence, took an appeal to this Court, having first taken an exception to a ruling of the Court at the trial. He also filed a petition and obtained an order for the transmission of the record to this Court as upon a writ of error.

   The traverser is not amenable to the jurisdiction of the Circuit Court for Anne Arundel county for an offense committed within the body of Talbot county. The plea to [*133] the jurisdiction avers that the boat was employed in taking oysters within the limits of this county, east of its western boundary. The boundaries of the county are defined by legislative enactment. The Act of 1706, chapter 3, reads as follows: "From and after the 1st of May, 1707, the bounds of Talbot county shall[***3] contain Sharp's island, Choptank island and all the land on the north side of Great Choptank river, and extend itself up said river to Tuckahoe bridge; and from thence with a straight line to the Mill, commonly called and known by the name of 'Swetman's Mill'; and from thence down the south side of Wye river to the mouth thereof, and from thence down the Bay (including Poplar island) to the first beginning; also Bruff's island in Wye river." We are at present more particularly concerned with the boundary from the mouth of Wye river; it is described as running thence "down the Bay (including Poplar island) to the first beginning." According to its literal terms, it must be run so as to include Poplar island; that is, it must be run on its outer or western side. In this way, only, can the waters between Poplar island and the mainland be comprehended within the territory of Talbot county. But that they are so comprehended ought not to be regarded as a matter of doubt. The Act of 1884, chapter 468 (codified as section 155 of the Public Local Laws of Talbot county), requires the clerk of the Circuit Court for Talbot county to issue a license to any person who had been a resident of the[***4] county for twelve months next preceding his application, which license authorizes him to employ any boat of the capacity of ten tons or less in taking oysters with dredge, scoop or scrape in the waters of Choptank river; and it then provides that the waters of Talbot county lying between Black Walnut point and a line drawn from Tilghman's point to the southwest point of Parson's island shall be open to the citizens of Talbot county, licensed as above mentioned. It excepts, however, from these [*134] waters of Talbot county, a certain designated portion of the body of water between Poplar island and the mainland; and it further provides that the waters of Choptank river lying north of a straight line running from Benonis point to Clora's point are reserved for tongmen, and that it shall not be lawful to catch oysters with scoop, scrape, dredge or similar instrument northward of said line. Now, this legislation shows three things which are important in this investigation: First, that the territory of Talbot county includes the water between Poplar island and the mainland; secondly, that it also includes other waters between Black Walnut point and a line drawn from Tilghman's point[***5] to the southwest point of Parson's island; and, thirdly, that it also includes waters south of a straight line running from Benonis point to Clora's point. This being so, the bounds described in the Act of 1706, from the mouth of Wye river "down the Bay (including Poplar island) to the first beginning," must be run in such manner as to include these waters. This is easily done. A straight line must be drawn from Tilghman's point to the most northerly point of Poplar island; the line must then run on the western side of this island until it reaches its most westerly point, and then a straight line must be drawn to the southern extremity of Tilghman's island, and thence to Clora's point, which is the most westerly point of the mainland on the north side of Choptank river. We regard this as the place denoted by the phrase "first beginning," in the Act of 1706; because this is the point where the boundaries begin to run. Previously to mentioning the land on the north side of this river, the statute states that the bounds shall contain Sharp's island and [**817] Choptank island, but they are merely mentioned as contained in Talbot county, just as Bruff's island in Wye river is mentioned. [***6] No boundaries are stated as extending from them as in the case of the north side of Choptank river. Sharp's island is in Chesapeake Bay, several miles distant from the nearest [*135] point of the mainland. If we have stated the boundaries correctly, the plea to the jurisdiction does not show distinctly that the place where the boat was employed in taking oysters was within the limits of Talbot county. It avers that it was not more than a mile and a half to the westward of Tilghman's island; there are points much less than half a mile to the westward of Tilghman's island, which are not in Talbot county, but are in Chesapeake Bay. It also avers that it was inland from a line drawn from Sharp's island to Poplar island; but such a line is not one of the boundaries of Talbot county, and, therefore, this location of the point does not show that it was within the limits of the county. Of course, if any offense is committed on the Chesapeake Bay, not within the body of any county, the offender may be tried in any county in which he may be arrested, or into which he may be first brought. Code, Article 27, section 280. We think that the plea to the jurisdiction was properly overruled.[***7]

   At the trial under the plea of not guilty, the traverser proved that he was the owner and master of the boat in question, and that it was of less than ten tons burden, and that he was, and for many years had been, a citizen of Talbot county; and then offered to prove that he had a license from the clerk of the Circuit Court for Talbot county, authorizing him to use his boat in taking oysters with dredge, scoop or scrape in certain waters of Talbot county, specified in the Act of 1884. On objection by the State, the Court refused to admit the evidence. If the oysters were taken in these waters, and if the traverser had the requisite license from the clerk, he had a right to prove these facts; and they would have shown that he was not guilty of the offense charged. It was essential that he should prove a license, and he was not obliged to state in advance that he would prove that the oysters were taken in the waters covered by the license. If such evidence were in his possession, he had a right to offer it afterwards. It [*136] was his unconditional right to pursue his own order in offering his proof; and it was the duty of the Court to admit any legal evidence material to[***8] the issue, although it would not be sufficient to maintain the issue on his part, unless followed up by other proof.  Plank Road Company vs. Bruce, 6 Md. 457; Patterson vs. Crowther, 70 Md. 124, 16 A. 531. The State had offered evidence tending to prove that the alleged offense "occurred at the place charged in the indictment." Surely the traverser had a right to show that it occurred elsewhere; that is to say, in the waters of Talbot county, and that he had a license which protected him in what he did. The judgment must be reversed, and the cause remanded. We will take this occasion to say that we see no reason why there should have been a writ of error in this case; inasmuch as since the Act of 1892, ch. 506, the appeal would have brought before us the question decided on the demurrer.
 
   Reversed and remanded. 

THOMAS GIVENS, Master of the Schooner MARTHA E. MOORE vs.STATE OF MARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
76 Md. 485; 25 A. 689; 1893 Md. LEXIS 102

 January  12, 1893, Decided

   PRIOR HISTORY:  [***1] APPEAL as upon Writ of Error, from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Judgment reversed, and new trial awarded.

CORE TERMS:  recorded, clerk, hearken, new trial, indicted, prisoner, foreman, hath, assent, whereof, good reason, juror, poll, duty, rendition, discharged, deliver, felonies

COUNSEL: Daniel R. Magruder, for the appellant.
 
John Prentiss Poe, Attorney-General, for the appellee.

JUDGES: The cause was argued for the appellant before ALVEY, C. J., BRYAN, FOWLER, PAGE, MCSHERRY, and BRISCOE, J., and submitted on brief for the appellee.

OPINIONBY: BRISCOE

OPINION: [*485] [**689] BRISCOE, J., delivered the opinion of the Court. 

   The appellant was indicted in the Circuit Court for Anne Arundel County for illegal dredging for oysters within the prohibited waters of the Chesapeake bay, contrary to the General Oyster Law of the State, and upon a trial before a jury was found guilty. There was a motion in arrest of judgment, which was overruled, and the appellant sentenced to the Maryland House of Correction for the period of twelve months. The case is before us for review as on writ of error.

   [*486] The plaintiff in error assigns as ground of error, that the jury, after rendering their verdict of guilty, was discharged and separated without being called by the clerk "to hearken to their verdict[***2] as the Court hath recorded it. Your foreman says:--guilty of the matter whereof he stands indicted and so you say all." The sole question, then, is whether this omission by the clerk in a criminal case is such an error as to entitle a party to a reversal of the judgment and the granting of a new trial. Now, it is admitted that it has been the invariable practice in the Court where the appellant was tried, and the uniform practice in the Courts of Maryland, for the clerk to call upon the jury to hearken to their verdict, when they return to the Court to render it.

   And while it may be a matter of form and practice, yet it is a juridical form; and matters of form when they become established, and are supported by reasons of justice and propriety, are regarded as matters of substance. In Ropps vs. Barker, et al., 4 Pick. 239, the Court held, when the jury have found a verdict substantially, it is read to them in form. If any juror does not agree to it when so read, he may express his dissent, and the jury may retire and revise the verdict. But if, when asked in the usual manner, whether they agree to the verdict, they all answer in the affirmative, it will be sufficient [***3]to authorize it to be recorded. In Commonwealth vs. Roby, 12 Pick. 514, the Court say, that the constant practice of the Commonwealth should be observed and followed, unless good reason can be assigned for the change. The forms adopted in a criminal trial are of importance, inasmuch as they have a strong tendency, by their solemnity, to impress upon all who are engaged in it, the interesting and highly responsible nature and character of the duties which devolve on them respectively.

   This is a good reason for retaining many of those forms which are observed because they are established; [*487] in this respect, it is true that forms are substance. And in Commonwealth vs. Gibson, 2 Va. Cas. 70, it was held, that after the verdict is rendered by the jury and read in open Court, it is the duty of the clerk to direct the jury to "hearken to their verdict as the Court hath recorded it, and if none of the jury express their dissent the verdict stands as recorded;" that until the assent of the jury is expressed in this way, or by a poll, the jury has a right to retract; and that the verdict is not perfected until after the jury has expressed their[***4] assent in one of these ways. The verdict in that case being imperfect, a judgment entered thereon was decided to have been improperly entered.

   The procedure in the rendition of verdicts, according to both the English practice and that in this country, is substantially and formally as follows: "When the jury have come to a unanimous determination with respect to their verdict, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on this verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his right hand and addresses them: 'Look upon the prisoner at the bar; how say you, is he guilty of the matter whereof he stands indicted or not guilty?' The foreman then answers guilty or not guilty, as the verdict may be. The officer then writes the word 'guilty' or 'not guilty' as the verdict is, on the record and again addresses the jury: Hearken to your verdict as the Court hath recorded it. You say that ----- is guilty (or not guilty) of the matter whereof he stands indicted, and so say you all." While this[***5] form is applicable to felonies, yet it applies to all criminal cases, omitting that part 'look upon the prisoner at the bar' in other cases than felonies.

    [*488] This procedure in substance is approved by Proffatt on Jury Trial, 452; 1 Chitty's Criminal Law, 635; 1 Bishop on Crim. Procedure, sec. 1001; 2 Harris Entries; 2 Evans' Harris.

   A prisoner is entitled as a matter of right to a poll of the jury in this State, and to have each juror assent to the verdict. Williams vs. State, 60 Md. 402. And if through a mistake or any other reason they deliver an erroneous verdict, it can be corrected before it is recorded. Ford vs. State, 12 Md. 514. It is to secure certainty and accuracy, and to enable the jury[**690] to correct a verdict, which they have mistaken, or which their foreman has improperly delivered, that they are called upon to "hearken thereto."

   Thus greater safeguards are thrown around the trial of criminal cases.

   We are therefore of the opinion that as it has been the uniform practice in this State, in criminal cases, to observe this form in the rendition of verdicts, the practice should be continued and not[***6] changed. And as the traverser in this case was denied this right, we shall reverse the judgment and award a new trial.

   Judgment reversed, and new trial awarded. 

SIDNEY I. WAILES vs. MARION DE KALB SMITH, Comptroller ofthe Treasury of the State of Maryland. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
76 Md. 469; 25 A. 922; 1893 Md. LEXIS 106

 January  12, 1893, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County.
 
This appeal was taken from an order of the Court below dismissing the petition for a mandamus. The case is stated in the opinion of this Court.

DISPOSITION: Judgment affirmed.

CORE TERMS:  duty, mandamus, refunded, Act of Congress, direct tax, levied, appropriation, prosecute, treasury, settlement, obliged, quota, supposed, owners of property, ministerial duty, equitable, recovered, apportionment, ministerial, refunding, exercise of discretion, burden of taxation, writ of mandamus, real property, express terms, appropriated, inequality, collection, collected, appointed

COUNSEL: Charles Marshall, and Wm. Pinkney Whyte, for the appellant.
 
In our construction of the Act of 1878, there can be no question as to the remedy for the refusal of the Comptroller to issue the warrant. The duty which he is required to perform is a purely ministerial one. He had only to ascertain the amount in the manner prescribed by the statute, as he did when the petitioner obtained the payment of other claims of the State. There was no exercise of discretion required; the duty was purely ministerial. Thomas vs. Owings, 4 Md., 191; Leonard vs. Wiseman, 31 Md., 208; High on Extraordinary Remedies, 81-8.
 
All that is required to justify the Comptroller in drawing his warrant is that there shall be an appropriation by law which shall distinctly specify the sum appropriated and the object to which it shall be applied. Constitution, Art. 3, sec. 32; Art. 19, sec. 17, of the Code.
 
Appropriation of money to a specified object, the amount being definite [***2]and legally certain, would authorize the Comptroller to draw his warrant and the Treasurer to pay. So, direction to the officers to pay money out of the treasury upon a given claim, or for a given object, may by implication include an appropriation. Ristone, Auditor vs. State, 20 Ind., 339, 360.
 
The Act making the appropriation need not name the specific amount. That may be left to be ascertained by some system of auditing or by some calculation. Ristone, Auditor vs. State, 20 Ind., 361, 372.
 
The Act of 1878, ch. 224, contains all the elements of an appropriation of a definite sum of money, for a definite and expressed purpose. The money is not to be paid out of any particular fund, but out of any money in the treasury applicable to the payment of the debt mentioned in the contract.
 
The Comptroller had only to calculate the amount by reference to the Act itself, and the law would be read as if it directed him to draw his warrant on the Treasurer for the amount ascertained by the calculation.
 
Had the law said that the Comptroller should draw his warrant on the Treasurer for ten thousand dollars, in favor of the petitioner, for his commission on the claim collected[***3] by him from the government on account of the direct tax, there can be no doubt that it would have been a valid appropriation, and that the Treasurer would have been bound to pay it out of any money in the treasury. But this is what the law in effect does. The amount could not be named in the Act, but the mode of ascertaining it is so clearly defined as to be equivalent in law to a distinct statement of the amount.
 
In this connection, we submit that as the money is not payable to the petitioner out of the particular fund received from the government, and the Act of 1878 does not refer to that fund except to ascertain the amount that the State would owe the petitioner when the money should be paid into the treasury, it follows that even upon the construction of the Act of Congress directing the repayment of the direct tax, relied upon by the defendant, there is no violation of the condition contained in that Act with reference to the payment of agents.
 
It will not be claimed, we suppose, that Congress intended to require the State not to use its own money in payment of its own obligations. See Scaggs vs. Baltimore and Washington R. R. Co., 10 Md., 268; 6 B. & C., 475; Maxwell [***4]vs. State, 40 Md., 273; Clark vs. Mayor, &c. of Baltimore, 29 Md., 283; Fisher vs. Blight, 2 Cranch, 358, 399; Smith vs. State, 66 Md., 215. Upon the authority of these cases, there was no warrant for the Court below to invent a new definition for the word "claims," which is as plain and unambiguous as any word in the language.
 
John Prentiss Poe, Attorney-General, for the appellee.
 
In passing upon the application of the appellant for the issuing to him of the warrant in question, the appellee, in his official capacity of Comptroller of the Treasury, was compelled to act judicially; to exercise judgment and discretion, to consider and decide several questions of law and fact, committed exclusively to him, and having considered and adjudicated these questions against the appellant, the courts have no power to review and reverse his decision. The duty which he was called on to perform was not purely ministerial, and as such subject to be guided and controlled by the Courts, but it necessarily involved deliberation, reflection, discretion and judgment, not subject to their supervision and control.
 
Before he could lawfully draw his warrant for the money demanded by the appellant, [***5] the Comptroller was obviously and necessarily required to examine and construe the Act of 1878, ch. 224, upon which the appellant based his claim, and to decide whether that law properly interpreted embraced such claim. He decided that it did not.
 
It was next incumbent upon him to examine into the facts of the case and to pass judgment upon the vital and fundamental facts, whether, assuming that the Act of 1878, ch. 224, did embrace such a supposed "claim" as that of the State against the government for the refunding of the direct tax, the appellant had procured, or been substantially instrumental in procuring, the passage of the Act of Congress of March 2, 1891; and further, whether under that Act he had recovered the amount of Maryland's payment of the direct tax. He decided that the appellant had not done either of these things.
 
He was next called on to examine and construe the Act of Congress of March 2, 1891, and the joint resolution of the General Assembly of January 26, 1892, accepting the terms and provisions of that Act, and to decide whether there was any provision in that Act or joint resolution which forbade payment to the appellant of the compensation claimed[***6] by him. He decided that there was such provision.
 
Finally it was his imperative duty, under the Constitution to consider and decide upon the legal effect of the Act of 1892, ch. 96, appropriating to the special purposes therein designated, the whole sum received from the United States, and to determine whether in the face of that Act he could lawfully draw a warrant in favor of the appellant upon the fund which it had directed him to disburse otherwise. He decided that he could not lawfully draw such warrant.
 
These questions, it must be conceded, were delicate and difficult. The decision of them manifestly required more than an arithmetical computation of what sum thirty per cent. of $371,299.83 would amount to, and the mere signing of a blank warrant for such sum. Indeed, the grounds of the contention that the discharge of the appellee's duty in such a case was a simple, obvious and single ministerial act are difficult to grasp; and unless the Court can see that his duty did not and does not involve anything beyond such a purely ministerial act, the mandamus cannot be ordered. High on Extra. Rem., sec. 80; Green vs. Purnell, 12 Md., 329; Decatur vs. Paulding, 14 Peters, [***7] 507, 509, 515; Brashear vs. Mason, 6 How., 101; United States vs. Seaman, 17 How., 230; United States vs. Guthrie, 17 How., 292-3, 300, 303; Commissioner vs. Whiteley, 4 Wall., 534; United States vs. The Commissioner, 5 Wall., 565; Ex parte De Groot, 6 Wall., 497; Gaines vs. Thompson, 7 Wall., 352-3; Secretary vs. McGarrahan, 9 Wall., 312; State, &c. vs. Regester, 59 Md., 289; Devin vs. Belt, 70 Md., 354-5.
 
The Act of Congress of March 2, 1891, contains the following proviso, viz., "And provided further, that no part of the money hereby appropriated, shall be paid out by the governor of any State or any person, to any attorney or agent under any contract for services now existing or heretofore made between the representative of any State or Territory and any attorney or agent."
 
By the joint resolution of January 26, 1892, the money was accepted by Maryland upon the terms and conditions of the Act of Congress, and accordingly when the appellee was called on to issue his warrant in favor of the appellant, he was asked to disregard what, in the exercise of his judgment as a public official, he held to be the condition upon which the money was received.
 
In his opinion, he[***8] was bound by that condition and had no power to ignore or repudiate it. Accordingly, for this and other reasons, he decided that he could not draw the warrant which the appellant demanded from him; and the Courts have no jurisdiction to review and reverse his official judgment and action, and compel him to issue a warrant which upon his sense of official duty and responsibility, he had decided he had no lawful right or power to issue.

JUDGES: The cause was argued before ALVEY, C. J., ROBINSON, BRYAN, FOWLER, and MCSHERRY, J.

OPINIONBY: ROBINSON

OPINION: [*475] [**922] ROBINSON, J., delivered the opinion of the Court.

   This case has been very fully argued, and the interests involved are of more than ordinary importance. At the same time, however, it does not seem to us that any great difficulties present[**923] themselves in the consideration of the several questions upon which the petitioner's right to a mandamus depends. Now, what is this case? By an Act of Congress, approved 5th August. 1861, a direct tax of twenty millions of dollars was levied upon real property, and this tax was apportioned amongst the several States according to representation, as prescribed by the Federal[***9] Constitution--the apportionment of this State being $436,823.33. Provision was made for the assessment and collection of this tax against the individual owners of such property, but any State was allowed to assume and pay its quota of said tax; and under this provision the State of Maryland assumed and paid into the Treasury of the United States $371,299.83, being its apportionment, less fifteen per cent. allowed by the Act for the cost of collection. And thus the tax against the property of her citizens was thereby satisfied and extinguished.

   Thirty years afterwards, by an Act of Congress, approved 2nd March, 1891, entitled "An Act to audit and pay to the several States and Territories and the District of Columbia, all moneys collected under the direct tax levied by the Act of 1861," the $371,299.83 thus paid was refunded to the State.

   This is an application by the petitioner for a writ of mandamus to compel the Comptroller of the State to issue a warrant on the Treasurer for the payment to him of $111,389.94, being thirty per cent. commissions on $371,299.83 paid by the United States to Maryland, and to which he claims to be entitled under the Act of 1878, chapter 224. [***10] By this Act he was appointed commissioner with authority to prosecute the settlement of all [*476] claims against the United States, and for his services he was allowed thirty per cent. commissions on all sums recovered by him and paid by the United States into the Treasury of this State. Among the claims which he was thus authorized to prosecute to a settlement, the petitioner contends, was a claim of the State for the repayment of its quota of the direct tax; and that it was through his efforts and the efforts of agents of other States with whom he was associated, that the Act of 1891 was passed, whereby this tax was refunded to the State. And this being so, it was the duty of the Comptroller, as soon as the money was paid to the State, to have issued a warrant on the Treasurer for $111,389.94, being the commissions to which the petitioner was entitled, and for the payment of which appropriation had already been made by the Act of 1878. Briefly stated, the Comptroller, in his answer, in the first place, denies that the payment by the State of its quota of the direct tax constituted a claim against the United States within the meaning of the Act of 1878. And he denies also[***11] that the refunding Act of 1891 was passed through the efforts of the petitioner, or that he was in any manner instrumental in its passage. And he further denies, that at the time the demand was made upon him for the warrant in question there was any appropriation by law, as required by the Constitution, for the payment of the commissions claimed by the petitioner.

   The case was heard by the Court below on bill, answers, and proof, and, as thus presented, the question is whether the petitioner is entitled to a writ of mandamus as prayed?

   Now, it can hardly be necessary to say that a mandamus is a mandatory writ, and only lies where the ordinary and usual modes of proceeding and forms of remedy are powerless to afford redress, and where, without its aid, there would be a failure of justice. And even in [*477] such cases it only lies to enforce the performance of a strictly ministerial duty. And by "ministerial" we mean where one is entrusted with the performance of an absolute and imperative duty, the discharge of which requires neither the exercise of official discretion nor judgment. As, for instance, where a specific sum of money is appropriated by law for the[***12] payment of certain defined services rendered the State, no one questions that in such a case the payment for such services by the proper officer may be enforced by mandamus. Where, however, the duty is one which necessarily requires the exercise of discretion and judgment, it is well settled that a mandamus will not lie to control or reverse the decision of one to whom the discharge of such duty is confided. It will not lie, because it is his discretion and judgment which are to be exercised, and not the discretion and judgment of the Court. But whilst this distinction will be found to run through all the cases, there is, it must be admitted, some conflict of opinion, in this country at least, as to what constitutes, strictly speaking, a ministerial duty as distinguished from a discretionary duty, within the meaning of the rule, and it may not be easy to reconcile the principles which are supposed to govern these decisions. Be that as it may, we take it to be settled by the best considered cases, that where the duty is such as necessarily requires the examination of evidence and the decision of questions of law and fact, such a duty is not ministerial, and not being[***13] ministerial, the decision of a public officer to whom the discharge of such duty has been confided cannot be reviewed or reversed in a mandamus proceeding. In the leading case of the United States vs. Seaman, 17 Howard 230, where the relator, a printer to the United States Senate, applied for a mandamus to compel the Superintendent of Public Printing to deliver to him certain public documents, the printing of which he claimed to be entitled [*478] to under an Act of Congress, Mr. Chief Justice TANEY said: "Now, it is evident that this case is not one which the Superintendent had nothing to do but to obey the order of a superior authority. He had inquiries to make before he could execute the authority he possessed. He must examine evidence; that is to say, he must ascertain in which House the order to print was first passed. And after he had made up his mind upon this fact, it was still necessary to examine into the usages and practice of Congress in marking a communication in their proceedings as a document; and to make up his mind whether separate communications upon the same subject or on different subjects from the same office, when made at different times, [***14] were, according to the usages of Congress, described[**924] as one document, or different documents, in printing and publishing their proceedings. He was obliged, therefore, to examine evidence and form his judgment before he acted; and, whenever that is to be done, it is not a case for a mandamus." And the rule thus laid down was approved and adopted by this Court in Green vs. Purnell, 12 Md. 329, where it was held that the Comptroller, having the exclusive power under the Constitution, of adjusting and settling public accounts, was not a mere ministerial officer, and could not, therefore, be compelled by mandamus to perform any act in the discharge of his duties, which involved the exercise of discretion and judgment.

   So the question comes to this, was the duty of the Comptroller in passing upon the petitioner's application for a warrant upon the Treasurer simply a ministerial duty, or was it one requiring the exercise of judgment and discretion? And to this it seems to us there can be but one answer. The Act of 1878, did not designate or specify the claims which the petitioner was to prosecute to a settlement. His authority was general, and included[***15] all claims of the State against [*479] the United States, but it can hardly be said that the payment by the State of a tax levied and collected as prescribed by the Federal Constitution constituted in itself a claim on the part of the State for reimbursement of the tax thus paid. And whether the tax was levied or paid under such circumstances as to impose a legal or equitable obligation on the United States to refund it, thereby, constituting a claim within the meaning of the Act of 1878, was a question which the Comptroller was obliged to consider and determine. And besides, assuming it to be a claim covered by the Act, he was further obliged to determine whether the money so paid to the State was recovered by the petitioner; for by the Act of 1878, he was to be allowed commissions upon such sums only as were recovered by him, and paid by the United States to the State. And especially was this his duty in face of the refunding Act of Congress, which provided in express terms, "that no part of the money, hereby appropriated shall be paid out by the Governor of any State or any person to any attorney or agent under any contract for services now existing or heretofore made between[***16] the representative of any State or Territory and any attorney, or agent." In view of such a provision, it could not be held that the mere payment to the State was in itself conclusive evidence that the money had been recovered through the agency of the petitioner.

   And besides, the Constitution of this State provides that no money shall be drawn from the treasury of the State, except in accordance with an appropriation by law. Sec. 32, Art. 3. Now, by joint resolution passed 26th January, 1891, the General Assembly accepted the money thus refunded by the United States upon the terms and conditions imposed by the Act of Congress, that is to say, upon the condition that no part of the money thus repaid should be applied by the State to the payments [*480] of commissions to any attorney or agent. And by an Act, passed at the same session, the Legislature directed that $202,645.71 of the tax refunded should be applied to the payment of the State debt, and the entire balance to be invested for the benefit of the sinking fund. And whether these Acts were to be construed as repealing the appropriation alleged to have been made by the Act of 1878 for the payment of commissions to the[***17] petitioner, and as forbidding the payment of commissions to him, either out of the particular fund thus refunded, or of any money in the treasury, were questions which the defendant was necessarily obliged to consider and determine. And it is no answer to say, that these Acts, so far as they attempted to deprive the petitioner of commissions under his contract with the State, were null and void because they are in conflict with the Federal Constitution, which forbids a State passing any law impairing the obligation of contracts. Be that as it may, it cannot be said that the duty of the Comptroller in the premises was an absolute and imperative duty, and therefore ministerial, requiring neither the exercise of discretion nor judgment; that he had nothing to do but to ascertain what would be thirty per cent. commissions on $371,299,83, and to draw a warrant on the Treasurer for the payment of such sum to the petitioner. On the contrary, he was obliged to decide delicate and important questions, both of law and fact, and, having decided these questions, it is well settled that a mandamus will not lie to reverse his decision, and to compel him to issue a warrant for the payment of[***18] the rejected claim.

   And here we might rest our decision, but in view of the large interests involved in this case we prefer to rest it on broader grounds, grounds which go to the merits of the petitioner's claim for compensation, and upon which the decision of the Court below was based, and from which this appeal was taken.

   [*481] Apart, then, from any objection to the mode of procedure itself, it must be conceded that, unless the payment by the State of its quota of the direct tax, constituted a claim against the United States within the meaning of the Act of 1878, there is no ground on which an application for a mandamus can be sustained. Now this Act is entitled "an Act to repeal chapter two hundred and sixty-two of the Public General Laws of the State of Maryland, of eighteen hundred and seventy-two, and re-enact the same with amendments." There is no question as to the construction and meaning of the Act of 1872. By it the petitioner and Mr. Daniel Clark were appointed commissioners with authority to adjust and settle certain specified claims of the State against the United States for expenses incurred in enrolling, arming, subsisting, and transporting [***19]  troops employed in aiding the General Government in the prosecution of the war against the seceding States, and for the payment of which appropriation had been made by Act of Congress approved 27th July, 1861. Upon these claims upwards of one hundred thousand dollars was paid by the United States to the State, and commissions amounting to thirty thousand dollars were allowed and paid to the petitioner and his associate Mr. Clark. The argument, [**925]however, is that the Acts of 1872 and 1878, relating to the same subject matter, are to be construed together, and although the authority or agency of the petitioner is not limited by the Act of 1878, to any particular or specified claims, yet the nature and scope of his duties are the same under both Acts; in other words, that he was authorized by the Act of 1878, to prosecute the settlement of such claims only for the payment of which appropriation had already been made by Congress. This seems to us to be rather a narrow construction of an Act, the language of which is plain, explicit, and unambiguous, which, according to well settled rules, must be construed [*482]according to its natural and legal import and meaning. And[***20] we agree with the petitioner, therefore, that the words "all claims" must be construed as including claims of every kind which the State had against the United States, whether appropriation had or had not been made by Congress for the payment of such claims. And we agree, too, that the language as was used in the statute may be said to include all claims or demands of the State arising under such circumstances as imposed a legal or equitable obligation on the part of the United States for the payment of the same. But, construing the language of the Act in this its widest sense, we do not see on what grounds it can be held to include a supposed claim of the State for the repayment of its quota of the direct tax. One may have a claim for taxes unlawfully levied or erroneously paid. But the direct tax was a constitutional tax levied and collected in the mode prescribed by the Constitution. The payment by the State of its apportionment of said tax was but the discharge of a constitutional obligation, and imposed no duty, therefore, on the part of the Government, legal or equitable, to repay it to the State. But, conceding this to be so, abstractedly considered, the argument is that, inasmuch[***21] as this tax was not and could not be enforced against the owners of property in the seceding States, this inequality in the burden of taxation in itself imposed a legal or an equitable obligation at least on the part of the United States to refund to such States and to owners of property the tax actually paid by them. Now, in answer to this it may be said that this tax was levied to furnish revenue to enable the Federal Government to prosecute the war against the Confederate States, and that Congress and the several States, and the owners of property by whom the tax was paid, all knew that, owing to the war then pending, it could not be enforced against the owners of property in the Confederate States, [*483]except, at least, as against such property as might from time to time come within the lines of the Federal armies. And besides, the tax was levied and collected thirty years ago, and after the lapse of such a length of time it is impossible, in the very nature of things, to restore equality of contribution among the owners of property who paid the tax. By the same Act of Congress an income tax was also levied, and the payment of this tax was never enforced against the citizens[***22] of the Confederate States, and yet it has never been supposed that this inequality in the burden of taxation imposed an obligation, legal or equitable, on the part of the United States to refund to the citizens of the twenty-seven States the tax paid by them. The fact that one tax was levied on real property, and the other upon income, in no manner affects the supposed inequality in the burden of taxation. And, although his views were somewhat criticised in the argument, it does seem to us that President CLEVELAND was right in saying, in his veto message, of the Refunding Act passed by the Fiftieth Congress, that it was nothing more or less than a bald gratuity on the part of the United States. One thing is certain, neither before the passage of the Act of 1878, nor since has the Legislature of this State, or the Governor, or any other lawfully authorized authority, ever made a claim or demand of any kind on the Federal Government for the refunding of this tax. If any such claim existed, a claim involving nearly four hundred thousand dollars, it is but fair to presume that an effort of some kind would have been made to enforce it. So by no fair rule of construction can it be said[***23] that this supposed claim of the State is one which the petitioner was authorized under the Act of 1878, to prosecute to a settlement. And here we may add that, even assuming it to be a claim included by the Act, there is no sufficient evidence in the record to show that the passage of the [*484] Refunding Act of 1891, was in any manner due to his efforts or influence. On the contrary, the Act itself provides in express terms, that no part of the money thereby refunded, shall be applied to the payment of any attorney or agent, under any contract for service. And we can hardly suppose he was instrumental in the passage of an Act with a proviso, the manifest object of which was to prevent the payment to him of any compensation for services rendered under a contract with the State. There is no ground, then, it seems to us, on which the petitioner's claim to compensation can be supported. And such being our opinion, it is unnecessary to consider the motion made by the attorney-general to strike out of the record what purports to be evidence because there was no bill of exceptions taken to the rulings of the Court. In the trial of ordinary actions at law, if one proposes to avail himself [***24] of objections to the rulings of the Court he must do so by a bill of exceptions signed and sealed by the Court. A writ of mandamus, however, was at common law a prerogative writ issued out of the King's Bench, and tried before the King's Bench, and from its decision no appeal would lie. By our Code, either party is entitled to a jury trial and to an appeal. But if both parties waive a jury trial and the issues are tried before the Court, whether the judgment of the Court can be reviewed on appeal in the absence of a bill of exceptions to the rulings of the Court, is a question we need not now consider.

   Judgment affirmed. 

WILLIAM S. RIDGELY and GEORGE T. MELVIN vs. STATE OFMARYLAND. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
75 Md. 510; 23 A. 1099; 1892 Md. LEXIS 94

 March  16, 1892, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Rulings affirmed, and cause remanded.

CORE TERMS:  traverser, indictment, demurrer, instruct, theft, offered to prove, libel, bill of exception, tending, libellous, prayer, board of directors, legally sufficient, final judgment, legal effect, admissibility, advisory, judges of election, questions arising, properly rejected, properly excluded, expressly stated, evidence offered, writ of error, appeal lies, disclaimed, proprietors, newspaper, presumed, rebuttal

COUNSEL: John V. L. Findlay, and Daniel R. Magruder, (with whom were E. S. Riley, and Frank. H. Stockett, on the brief,) for the appellants.
 
John Prentiss Poe, Attorney-General, for the appellee.

JUDGES: The cause was argued before ALVEY, C. J., MILLER, ROBINSON, BRYAN, FOWLER, MCSHERRY, and BRISCOE, J.

OPINIONBY: FOWLER

OPINION: [*511] [**1100] FOWLER, J., delivered the opinion of the Court. 

   The appellants are the proprietors of a newspaper known as "The Maryland Republican," published in Annapolis, and they were indicted in the Circuit Court for Anne Arundel County for libelling Frank A. Bond, who was one of the judges of election for said county at the election for State and county officers held on the third of November, 1891.

   The traversers demurred to the indictment, and their demurrer having been overruled, they pleaded the general issue, and went to trial before a jury. During the course of the trial they took twelve exceptions,--one to the refusal of the Court at the conclusion of the State's testimony in chief, to instruct the jury[***2] that there was no legally sufficient evidence before them to support the indictment, and that their verdict must be for the traversers; and eleven exceptions to the ruling of the Court upon the admissibility of testimony. The verdict of the jury being against them, they have appealed, no final judgment, however, having been entered in the Court below.

   It has been repeatedly held in this State that no appeal lies from any ruling upon a demurrer until after final judgment, and that then the case can only be brought up for review by a writ of error. Kearney vs. State, 46 Md. 422; Forwood vs. State, 49 Md. 538; Richardson vs. State, 66 Md. 205, 7 A. 43; and Lamb vs. State, 66 Md. 285, 7 A. 399.

   The questions arising on the demurrer are, therefore, not before us. We will consider the questions arising under the exceptions.

   The first exception presents the question as to the right of the parties in a criminal proceeding to require the Court to instruct the jury as to the legal effect of the evidence.

   The counsel for the traversers in his opening statement informed the jury that they proposed to justify by[***3] [*512] proving the truth by overwhelming proof, of the alleged libellous matter set out in the indictment. The publication of the alleged libel, and that it was published in the Maryland Republican, of which the traversers were publishers and proprietors, were admitted, and also that the issue of said paper containing said libel was circulated through the mail and by carriers. Other evidence was offered tending to establish the facts alleged in the indictment, and upon the close of the State's case in chief the traversers prayed the Ceurt "to instruct the jury that the State has offered no evidence legally sufficient to support the indictment, and their verdict must be for the traversers." This prayer the lower Court rejected. In view of the decisions of this Court there ought not to be any doubt about the question here presented, for it has been frequently held that no Court in this State, whatever may be the rule elsewhere, can be required by counsel or jury in criminal cases, to give instructions either upon the law of the crime or the legal effect of the evidence. Broll vs. The State, 45 Md. 356; Bloomer vs. The State, 48 Md. 521; Beard vs. The State, 71 Md. 275, 17 A. 1044.[***4]

   The rejected prayer did not ask the Court to tell the jury that the evidence, or any portion of it, was not admissible for any reason; but after it was all before them without objection, it said to them in effect: "You have heard the evidence offered by the State, and although you are the judges of law as well as of fact, the Court instructs you that, as matter of law, the evidence is not sufficient to support the indictment, and you must acquit." As is frequently said, a prayer in this form is equivalent to a demurrer to the evidence. In Bloomer's Case, supra, it was attempted by the traversers, after all the testimony had been offered and received by the Court subject to exception to its legal sufficiency and admissibility, to exclude it by motion from the consideration [*513] of the jury because it was not sufficient in law to support the indictment. "This motion," said BOWIE, J., delivering the opinion of the Court, "is equivalent to a demurrer to the evidence, by which the Court is called on to declare what the law is upon the facts shown in evidence, analogous to a demurrer upon facts alleged in pleading." And we held that to grant such a motion would violate the[***5] provision of the Constitution of Maryland, which makes the jury in criminal cases judges of law as well as of fact.

   Beard's Case, supra, may be referred to as the fullest, as well as the most recent in this State in relation to the question we are considering. In the opinion of the Court delivered by ALVEY, C. J., it is said that "both before and since the constitutional declaration upon the subject (Art. 15, sec 5, of the Constitution of Maryland,) it was and has been the practice of Judges in some parts of the State to decline to give instructions to the jury in criminal cases under any circumstances; while in other parts of the State it has been the practice for the Judges to give advisory instructions when requested so to do. It seems to have been regarded as a matter of discretion with the Judge, there being no positive duty requiring him to pursue the one course or the other." And again, "The Judge cannot therefore [**1101] by any instruction given in a criminal case, bind the jury as to the definition of the crime, or as to the legal effect of the evidence before them." If, however, the judge should instruct the jury, even in an advisory form, the traverser[***6] may appeal if he should be injured thereby. Beard vs. State, supra; Swann vs. State, 64 Md. 423, 1 A. 872. But if the instruction should be refused, as it was in this case, there can be no appeal, since it is entirely in the discretion of the Judge whether he will or will not instruct the jury.

   The action of the learned Judge, however, appears to have been correct even upon the theory of the appellant, [*514] for there was some evidence to go to the jury. The State proved the publication of the alleged libel by the traversers, and that General Bond was one of the judges of election in regard to whom the libellous language set forth in the indictment had been used. This certainly was evidence tending to support the allegations of the indictment.

   Before proceeding to consider the other exceptions, all of which relate to questions as to the admissibility of testimony, it is necessary to refer to a fact set forth in the second exception, and that fact is that at the trial below the State's Attorney expressly stated "that he placed no reliance upon the other matters contained in the publication, but relied exclusively upon the charges of theft."[***7]

   The State, having abandoned all other charges, it would be a needless consumption of time to allow the traversers to offer proof of the truth of something they are not in fact or in law charged with having published. Under these circumstances it seems to us very clear that according to the settled rules of evidence the testimony should have been, as it was, confined to the one issue before the jury, namely, were the charges of theft true? The traversers admitted the publication in their newspaper by which they alleged General Bond was guilty of the crime of larceny, and they were bound to establish the truth of this allegation to the satisfaction of the jury by competent and relevant testimony.

   And when, therefore, it appears by an examination of the second, third, fourth, fifth, sixth, seventh, and ninth bills of exception that they contain no testimony relating to the charge of theft, it is clear without regard to other valid objections, that the testimony therein set forth was properly excluded.

    It appears by the eighth bill of exception that the traversers offered to prove by the Hon. Charles B. Roberts, [*515] who was a member of the board of directors of the House of[***8] Correction, that General Bond was superintendent, and that it was upon the motion of the witness that the committee of investigation was appointed; and he was then asked the question, "Why did you make the motion?" To which question the witness answered, "Because of information obtained;" when the State objected to the witness stating what he had heard, and also to the question. This objection was sustained, and we think rightly sustained, for the testimony excluded was clearly hearsay and irrelevant.

   Tenth Exception.--The traversers offered to prove certain facts tending to show the truth of the libellous matter, and the Court excluded the evidence so offered. But the witness before leaving the stand, disclaimed being able to testify to the facts which traversers' counsel offered to prove by him.

   We do not see, therefore, that any injury was done by this ruling of the Court.

   Eleventh Exception.--The traversers offered proof relative to the charge of theft, and it went before the jury as offered. They then proposed to offer in evidence the report of the committee of investigation, made to the Board of Directors, and the action of the Board thereon. But the report which is the evidence[***9] offered, is not set out in the bill of exception, and it will therefore be presumed that it was properly rejected. Gent vs. Lynch, 23 Md. 58.

   The twelfth and last exception presents a question of practice, namely, whether certain testimony offered by the State in reply to the case made by the traversers in their defence is properly testimony in rebuttal.

   It was for the State to prove the allegation of the indictment on which it relied, and to produce all its evidence upon the issue on trial, and then the traversers were entitled to put in all their evidence. In reply the State, [*516]according to the settled rule, would be restrained "to such new points and questions as may be first opened by the defendant's evidence." 1 Greenleaf on Evidence, 467 a., (12 Ed.,); Bannon vs. Warfield, 42 Md. 22.

   And we held in the case last named that "the entire question, as to the mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of the proper order," in the absence of any rule of Court upon the subject, is in the discretion of the trial Judge, "as the tribunal best qualified to judge what[***10] the justice of the case may require in these respects; and hence from the rulings on such questions no appeal will lie."

   But if the question were properly before us, we should have no hesitation in saying that the testimony set forth in this bill of exception, tending to disprove the evidence which was offered by the traversers to establish the truth of the charge of larceny, was properly admitted in rebuttal, and for the reason given by the learned Judge below, and set out in the bill of exception, namely, that the evidence in chief of the State, with the exception of the admissions as to publication, "was only offered on the point of identification, and the State's attorney had expressly so stated at the time the evidence was offered."

    Finding no error in the rulings appealed from, they will be affirmed.

   Rulings affirmed, and cause remanded. 

THE BALTIMORE AND DRUM POINT RAILROAD COMPANY vs. NATHANPUMPHREY, THOMAS PUMPHREY, and others. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
74 Md. 86; 21 A. 559; 1891 Md. LEXIS 37

 March  25, 1891, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County, in Equity.
 
The case is stated in the opinion of the Court. Section 54 of Article 3 of the Constitution of Maryland referred to in the opinion provides that "No county of this State shall contract any debt or obligation in the construction of any railroad, canal, or other work of internal improvement, nor give or loan its credit to or in aid of any association or corporation, unless authorized by an Act of the General Assembly, which shall be published for two months before the next election for members of the House of Delegates, in the newspapers published in such county, and shall also be approved by a majority of all the members elected to each house of the General Assembly at its next session after said election."

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  subscription, railroad, election, capital stock, charter, completion, complied, constitutional restriction, confirmatory, continuation, prescribed, newspapers, directory, bind, contract of subscription, constitutional provision, calendar, notice, exhausted, delegated, subscribe, nugatory, Acts of Assembly, conditional subscription, authority conferred, popular election, duly published, par value, installment, impeaching

COUNSEL: John P. Poe, and George Hoadly, for the appellant.
 
The Act of 1872, ch. 245, which authorized the subscription in dispute, was duly submitted to the people, and approved by them, and there were no irregularities of any kind in the notice of the election which it directed to be given, nor in the election held under its provisions, nor in the official certificate of the clerk[***2] of the Circuit Court, announcing its approval by a majority of the voters.
 
If any irregularities of any kind occurred, they were all cured by the passage of the ratifying and confirmatory Act of 1874, ch. 225.
  
Inasmuch as the bill contains no allegation that the Act of 1872, ch. 245, was not duly advertised in the newspapers published in Anne Arundel County for two months preceding the next election, viz., that of November, 1873, as provided in section 13 of the Act, the question as to such advertisement does not arise, and is not properly presented upon this record.
 
If the Court will, however, consider this question, the publication in the newspapers for the two months of September and October, 1873, is fully and sufficiently proved, and is a complete compliance with the provisions of the 13th section of the Act. Indeed, the advertisement was as full as the weekly issues of the newspapers then published in Anne Arundel County made possible. Anderson's Dictionary of Law, 686, word "month."
 
If such advertisement can be considered as not published for the full period of two months, treating the law as meaning calendar, and not lunar months, the provisions of the 13th[***3] section of the Act are directory merely, and the omission to publish for two full calendar months is not fatal, even although such advertisement was not strictly possible; but such error or omission was cured by the passage of the confirmatory Act of 1874, ch. 225. Pierce on Railroads, 102-3.
 
Section 54 of Article 3 of the Constitution, does not apply to the subscription in dispute, for the reason that the subscription is not a debt contracted by the county in the construction of a railroad, nor the gift or loan of its credit to, or in aid of, any corporation. Mayor, &c., of Baltimore vs. Gill, 31 Md., 375; Walker vs. City of Cincinnati, et al., 21 Ohio St. Rep., 14.
 
If section 54, of Article 3 of the Constitution, does apply to the subscription in dispute, its provisions, so far as they relate to the advertisement for two months, are directory merely, and have been sufficiently complied with, as is conclusively established by the passage of the confirmatory Act of 1874, ch. 225, by the General Assembly, for whose information and guidance such publication is designed, as well as by the recitals in the subscriptions made by the County Commissioners. Town of Coloma vs. Eaves, [***4] 92 U.S., 487-492; Town of Venice vs. Murdock, 92 U.S., 494; Marcy vs. Township of Oswego, 92 U.S., 639; Humboldt Township vs. Long, et al., 92 U.S., 642.
 
The subscription of the 6th of June, 1876, was, and is, valid and enforceable. The super-addition of conditions outside and beyond the terms of the Act of 1872, ch. 245, does not invalidate it, as contended for by the appellees, but such unauthorized conditions are void and will be rejected, and the subscription stripped of them will stand and be upheld. King's Co. Elevated R. R. Co's Case, 105 New York, 97; Joslyn vs. Dow, 19 Hun, 494; Com's of Knox Co. vs. Nichols, 14 Ohio St., 260; Madison County Court vs. Richmond, &c., R. R., 80 Kentucky, 16; Burroughs on Public Securities, 236, 256, 258; Ohio, Ex Rel. vs. Board of Education of Perrysburg, 35 Ohio St., 519; De Groot vs. United States, 5 Wallace, 430; 2 Sugden on Powers, 84, 277; Barnum vs. Barnum, 26 Md., 173; Mayor, &c. vs. Dechert, 32 Md., 384; Chicago, B. & Q. R. R. Co. vs. City of Aurora, 99 Ill., 212; Berry vs. Balt. & Drum Point Railroad Co., 41 Md., 446; Farwell on Powers, 250.
 
The resolution of the County Commissioners of the 18th of April, 1878, repealing the[***5] subscription of the 6th of June, 1876, is wholly inoperative and void, because it was not competent for them to repeal it, without the consent of the compauy, which consent was never given.
 
The subscription of the 2nd of August, 1887, is of no consequence, and can have no effect upon the question at issue, for the simple and satisfactory reason that it was never accepted or acquiesced in by the appellant.
 
The resolution of the 21st of January, 1890, continuing the subscription of the 6th of June, 1876, is valid as a renewal of that subscription, but if not entitled to be thus treated, is at least to be treated and must have effect given to it as a release by the County Commissioners, by and with the consent of the appellant, of the conditions imposed by the subscription of the 6th of June, 1876, outside of and beyond the terms of the Act of 1872, ch. 245. If for any reason the power to subscribe conferred by that Act, after it was exercised by the subscription of the 6th of June, 1876, is to be regarded as exhausted, so far as to disable the County Commissioners from making a new subscription, the County Commissioners could nevertheless validly waive and cancel conditions [***6]improperly exacted by them in excess of their authority, and release the appellant from such conditions; and the subscription of the 6th of June, 1876, thus stripped by the action of the County Commissioners on the 21st of January, 1890, of the unauthorized conditions annexed to it, can now be enforced as a subscription, conforming absolutely to the terms of the Act of 1872.
 
The right of the appellant to the subscription has not been lost or forfeited by lapse of time, change of circumstances and condition, construction of other roads in the county, nor by the delay of the appellant in completing its road. High on Extraordinary Legal Remedies, sections 24, 34, 46, 328; Kelsey vs. King, 32 Barb., 416; Gibson vs. C. & N. R. T. & B. Co., 18 Ohio St., 396.
 
The execution by the appellant of the deed of trust of February 1st, 1888, to the Mercantile Trust and Deposit Company, to secure its first mortgage bonds, amounting to $1,500,000, does not in any manner or degree affect the liability of the County Commissioners to pay their subscription.
 
John F. Williams, Isidor Rayner, and * Frank. H. Stockett, for the appellees.

* Present, but did not take part in the argument.

[***7]
 
The County Commissioners of Anne Arundel County have not now, and never had, any power of themselves to make any subscription whatever to the capital stock of the Baltimore and Drum Point Railroad Company. The power conferred upon a municipal corporation or County Board to impose such a burden upon tax-payers, in aid of a railroad company, is in derogation of the common law, and when granted, must not only be clearly conferred, but strictly pursued, and every step required by the statute and the Constitution must be shown to have been taken in conformity therewith. This Court, in the case of the Mayor and City Council of Baltimore vs. Gill, et al., 31 Md., 395, said: "In this State, the Courts have always maintained with jealous vigilance the restraints and limitations imposed by law upon the exercise of power by municipal and other corporations, and have not hesitated to exercise their rightful jurisdiction for the purpose of restraining them within the limits of their lawful authority, and of protecting the citizen from the consequences of their unauthorized or illegal acts." And all restraints imposed by law to prevent its abuse should be scrupulously enforced. Western Md. [***8] R. R. Co. vs. Patterson, 37 Md., 134; Pierce on Railroads, 87 to 100; Lippencott, et al. vs. Town of Pana, 92 Ill., 24; The People vs. Hurlburt, 46 N. Y., 110; The People, ex Rel. vs. Smith, 45 N. Y., 772-780; Cowdrey vs. Town of Canadea, 16 Fed. Rep., 532; 1 Dillon's Municipal Corporations, secs. 153, 161, 163, 164, (4th Ed., note.)
 
The power of a majority of tax-payers to encumber the property of a minority against their will, is not favored by the common law. It is an extraordinary power, and its exercise should be strictly in accordance with the grant. It is of comparatively recent origin, a new invention, upon which reckless and adventurous speculators have seized with avidity, and the abuse of this power has been so great, and its consequences so disastrous that it has been denied by the Constitutions of Pennsylvania, Ohio, Illinois, New York and Missouri, and stringent and rigid limitations upon its exercise are engrafted into the Constitutions of other States. Indiana, Art. X, sec. 10; Mississippi, Art. XII, sec. 14; Maryland, Art. 3, sec. 54, and Art. 11, sec. 7; Vide, 1 Dillon's Municipal Corporations, secs. 153, 154, 155, 156, and 157, (4th Ed.)
 
This power was[***9] not conferred on the Commissioners, because the notice of the election, as required by the Act, was not given in time, and in the very nature of the case, could not have been given in time. The 12th section of the Act of 1872, ch. 245, requires the Act to be submitted to the voters of the county, at an election to be held on the fourth Monday of April next; that the sheriff shall give notice of the said election, in the manner prescribed for other elections held by law. The notice required for every election required by law to be held, is at least three weeks previous thereto. Code, Art. 33, sec. 51. The Act was approved on Monday, April 1st, 1872. The fourth Monday was on April 22nd, 1872. It was impossible, after the passage of this Act on April 1st, 1872, to have given at least three weeks' (twenty-one days) notice previous to the 22nd day of April, 1872, as there were only twenty clear, intervening days, counting April 2nd, the first day upon which the notice could be given; and excluding the 2nd day of April, there were only nineteen clear, intervening days. Meyer vs. Steuart, et al., 48 Md., 423; Walsh, Trustee vs. Boyle, et al., 30 Md., 262; O'Connor vs. Towns, 1 Texas, 107-9; [***10] The People, ex Rel. vs. Jackson County, 92 Ills., 454; 1 Dillon's Municipal Corporations, sec. 164, and cases collected in note.
 
The power was not conferred on the Commissioners, because the Act of 1872, ch. 245, as required by the Act itself, and by Article 3, section 54, of the Constitution of the State, was not published for two months before the next election (November 4th, 1873,) for members of the House of Delegates, in the newspapers published in said county.
 
Before the County Commissioners could be empowered to grant any aid to this railroad company, the three requirements of this section of the Constitution must be strictly and rigidly complied with.
 
1. An Act must be passed by the Legislature.
 
2. A publication of that Act for a specified time in the newspapers of the county.
 
3. This Act must be approved by a majority of all the members elected to each House of the General Assembly, at its next session after said election.
 
Each one of these three requirements are of equal importance; no one of the three could be dispensed with; all must be rigidly adhered to and strictly complied with; otherwise no power will be conferred.
 
This section first[***11] became a part of our Constitution in 1867, and was the deliberate act of its framers, and was intended as a restraint and limitation upon the granting of this extraordinary power upon municipal corporations, the reckless and improvident exercise of which, in other municipalities, had swollen the municipal debts of the country to fabulous proportions.
 
The Act was not published for two months, as required by the Constitution.
 
The appellant says the "two months" means lunar months, and not calendar months. That calendar months is meant, is settled by the cases of--Rawlings vs. Adams, 7 Md., 26; Glenn, Adm'r, &c. vs. Hebb's Adm'r, 17 Md., 260-282; State vs. Mace, 5 Md., 337; Meyer vs. Steuart, et al., 48 Md., 423.
 
The appellant further says that this provision of the Constitution, as to the publication of the Act, is simply directory, and a failure to publish the Act for the time required is not material. If this requirement of the Constitution could be dispensed with, why could not the Act itself, and its subsequent approval by the next General Assembly, be dispensed with? Why, for the same reason, could not all three of these constitutional restraints and limitations, [***12] which this Court has always "maintained with jealous vigilance," be utterly disregarded, and the County Commissioners act in the matter without any legislative authority whatever? Mayor and City Council of Baltimore vs. Gill, 31 Md., 395.
 
This requirement of the Constitution as to publication, like the other requirements of the same section, must be rigidly adhered to and strictly complied with. Its insertion in the Constitution was deliberate and for a specific purpose. The exercise of this power had been and was likely to be greatly abused. Other communities were groaning under an improvident exercise of it. Our own State had made investments in the Chesapeake and Ohio Canal and other works, which had yielded no return, and the framers of the Constitution of 1867 determined to throw ample safeguards around, and to impose such limitations and restraints upon, the granting of this extraordinary and unusual power as would protect the rights of over-burdened tax-payers.
 
When the authorities in the State Courts are examined, it will be found that the drift of the whole of them establishes the proposition that constitutional and legislative conditions affecting the power of county[***13] boards to issue obligations of this character, have been so strictly construed as to invalidate the bonds even in the hands of innocent holders, where there has been a failure to comply with the conditions. In the Supreme Court of the United States, it is a matter of judicial history that every effort has been made to sustain the validity of State, county and municipal obligations, whenever the rights of innocent holders were involved. But even in the Supreme Court, proceeding to the utmost extreme upon the doctrine of estoppel, it will be found that, where there was a want of constitutional or legislative power to issue the bonds, tax-payers were not estopped from impeaching them, although in the hands of innocent holders for value. This principle applies with so much greater force in a case of this character, because here no rights of innocent holders are involved, no bonds are issued, no question of estoppel arises, and the tax-payers of Anne Arundel County are merely exercising their constitutional right to prevent the consummation of an unconstitutional Act, and to prevent the railroad company from demanding bonds when it has failed to carry out the very condition that the Constitution[***14] imposes upon it, before it can burden the county with a debt in aid of its enterprise. Dillon's Munic. Corp., 4th Ed., secs. 515, 529a; Dixon County vs. Field, 111 U.S., 83; Crow vs. Oxford, 119 U.S., 215; German Savings Bank vs. Franklin County, 128 U.S., 526; Concord vs. Robinson, 121 U.S., 165; Lake County vs. Rollins, 130 U.S., 662; Lake County vs. Graham, 130 U.S., 674; Buchanan vs. Litchfield, 102 U.S., 278; Litchfield vs. Ballou, 114 U.S., 190; Northern Bank vs. Porter Township, 110 U.S., 608, 619.
 
The resolution of the 6th of June, 1876, is ultra vires. There was no such power delegated to the County Commissioners by the Legislature, as was attempted to be exercised under the terms of this resolution. The resolution contains conditions, neither authorized by expression nor by inference in the legislative Act. The first condition interpolated by the County Commissioners was the defining of the route of the railroad through the town of Brooklyn; and the second condition was that the Mayor and City Council of Baltimore should guarantee the bonds of this road to the extent of half a million of dollars. It is not for Courts to pass upon the question whether these conditions[***15] are favorable to the tax-payers of the county.
 
The resolution of the 6th of June, 1876, is repealed by the resolutions of April 18th, 1878, and August 2nd, 1887, and also by the resolution of January 21st, 1890, the latter resolution being the one under which the subscription is now claimed. It is unnecessary to discuss the question whether the resolutions of 1878 and 1887 can operate as a repeal of the resolution of 1876, without the consent of the Baltimore and Drum Point Railroad Company, because it has expressly given its consent to the resolution of January 21st, 1890, has expressly assented to the Act of the Legislature under which said resolution was passed, and has expressly waived and abandoned all rights which it possessed under any prior resolution in reference to the said subscription, in so far as any other subscription might differ in terms from the subscription in 1890. The subscription, therefore, under the resolution of 1876, is not before the Court, because it has been cancelled with the consent of the Baltimore and Drum Point Railroad Company. If we should concede that the resolution of 1876, and the acceptance of it by the railroad, amounted to a contract between[***16] the parties, there was no attempt made to enforce that contract by the Baltimore and Drum Point Railroad Company.
 
There is one proposition, however, under the authorities, that is absolutely clear, and that is that if the County Commissioners had the right to annex the conditions in question to the resolution of 1876, and if that resolution is not repealed by the subsequent resolutions of the County Commissioners, then it can only be enforced with its appendant conditions. The defendant asserts the proposition that the resolution of 1876 may be sustained in part and avoided as to the conditions upon which the subscription was made; in other words, when the County Commissioners resolved that they would only subscribe upon the express condition that the Mayor and City Council of Baltimore should endorse half a million dollars of bonds of the railroad, that the County Commissioners can be compelled to subscribe, whether the Mayor and City Council endorsed the bonds of the road or not, and this, too, after an express acceptance by the road of this conditional subscription. That is not the law that governs a case of this sort, and the following authorities are referred to in support[***17] of the proposition that if that resolution be good for any purpose, it can only be good upon the performance of the condition that formed the inducement and the consideration for its passage. Wood's Railway Law, sec. 119; Brocaw vs. Board of Comm'rs of Gibson County, et al., 73 Ind., 549, and cases there cited; Pierce on Railroads, page 99; Bucksport & Bangor R. R. Co. vs. Brewer, 67 Me., 295; Virginia & T. R. Co. vs. County Comm'rs of Lyon County, 6 Nevada, 68; State vs. County Court of Daviess County, 64 Mo., 30; Wagner vs. Meety, 69 Mo., 150; Parker, et al. vs. Smith, et al., 3 Bradwell, (Ill.), 356; Portland & Oxford Central R. R. Co. vs. Hartford, 58 Me., 27; People, ex rel. vs. Town of Clayton, 88 Ill., 45; Taggart vs. Western Maryland R. R. Co., 24 Md. 595.
 
The resolution of 1876 has become entirely inoperative because there has been a failure to perform the conditions recited in the resolution. There has been no attempt made to secure the performance of them by the railroad; there is no possibility of an endorsement of the bonds of the railroad company to the extent of half a million of dollars by the City of Baltimore, and there has been an abandonment of all efforts[***18] upon the part of the said road to comply with said condition. More than fourteen years have elapsed since the passage of said resolution, and the gross neglect of the railroad to comply with said conditions deprives it of any further rights that it may have had in the premises. The acceptance by the railroad of the resolution of 1890, without these conditions annexed, is conclusive evidence of an abandonment by the railroad of all efforts to obtain a performance of said conditions, and they are estopped by their own act from claiming now that they have the right to have said conditions performed.
 
The resolution of the 21st of January, 1890, is void because it is in direct conflict with the Act of Assembly under which it purports to have been passed. In 1880, all rights that the Baltimore and Drum Point Railroad Company had acquired under the resolution of 1876, were gone by their own default and laches; they applied to the Legislature, as they had frequently applied before, for an extension of time within which the road should be built. The Legislature gave the road this right, with the distinct understanding, expressed upon the face of the Act of Assembly, that this right so[***19] given should not revive by implication any right that the road might claim against Anne Arundel County for a subscription to its stock, "unless the County Commissioners gave their consent to a continuance of said subscription." A continuance of the subscription, which was then in the mind of the Legislature, was not a cancellation of the subscription. A subscription cannot be continued and cancelled at the same time. The only power, if any, that was conferred upon the County Commissioners was to continue a subscription that had been made, and not to make a new subscription in entire conflict with the original one. If it was intended to make a new subscription, as this one is, then the constitutional requirement has not been gratified, which requires the publication of the Act of Assembly, and a confirmation thereof by the next succeeding Legislature.
 
When the County Commissioners, in 1890, at the suggestion of said Railroad Company, revived this subject and commenced anew to deal with the Baltimore and Drum Point Railroad Company, their powers, if any, were limited and circumscribed by the Act under which they profess to proceed, but instead of proceeding under it in accordance[***20] with its warrant, they have evaded it, and passed a resolution which, instead of continuing the original subscription, makes a new subscription and omits from that subscription the most important feature of the original subscription, which they were authorized to continue, viz., the endorsement of the bonds of this railroad by the Mayor and City Council of Baltimore. Therefore, this resolution under all the authorities is void, because there is no authority for its passage, and because it is in direct opposition to the authority conferred upon the County Commissioners by the Act of Assembly, under which it was pretended to have been passed.
 
The Legislature of 1880 had no power to keep alive the resolution of 1876, because a power once exercised under legislation of this character, is exhausted by the act of exercising it, and Boards of County Commissioners or municipal bodies have no right to enact and repeal proceedings of this sort at random, and whenever it suits their convenience to do so. The resolution of 1876 exhausted all power conferred by the Act of 1872; and if it was intended to confer a new power, the voters of Anne Arundel County had the right, under the Constitution, [***21] to have the Act that conferred the power submitted to them by publication, so that they could determine upon the character of their representation in the Legislature succeeding the passing of the Act. State vs. County Court of Daviess County, 64 Mo., 30; The People vs. Town of Waynesville, 88 Ill., 475, etc.; Empire vs. Darlington, 101 U.S., 90.
 
If there were no one of these points involved in this case, the failure upon the part of the Baltimore and Drum Point Railroad Company to build this road within the time originally prescribed by the Act of Assembly, under which it was chartered, is a surrender of all rights that it may have had to the subscription made upon the faith and the basis of that important provision in its charter, embraced in the 19th section of the Act. The contract that was made between the voters of Anne Arundel County, by the County Commissioners acting for them, was, that the road should be built in accordance with the requirements of its existing charter. The language of the resolution under which the subscription was made is as follows: "That the road shall be constructed as to comply in all respects with the provisions and requirements of its present[***22] existing charter, and the amendments thereto in reference to the construction thereof." The County Commissioners here plainly indicated that what they intended was a subscription to the stock of this road, provided that the road was built through Anne Arundel County within the time limited by the existing legislation, and the company, in express terms, accepted this subscription. It was never contemplated that this subscription should last indefinitely, through as many successive periods of indulgence as the Legislature might grant to this road for its completion. If this were otherwise, the Legislature might extend the time indefinitely, and the Commissioners would be held to their subscription, when, in the meantime, other roads might be built answering the same purpose, and covering the same route. The Legislature had the power, undoubtedly, to extend the time for the completion of this road, but it had no power to annul the contract which the County Commissioners had made, based upon the requirement of its charter, that the road should be built within the time designated. In 1880, the subscription of 1876 had ceased to exist, because the road had not been constructed in accordance[***23] with the requirements of this charter, as set forth in the subscription of the County Commissioners; there was no subscription, therefore, upon which the Legislature could act, and if they intended to confer any new rights upon the Board of County Commissioners, the Constitution required a new proceeding, so that the people could determine whether or not to send to the Legislature of 1882, representatives who would favor or reject the scheme. Woods' Railway Law, sec. 119.

JUDGES: The cause was argued before ALVEY, C. J., ROBINSON, IRVING, BRYAN, FOWLER, MCSHERRY, and BRISCOE, J.

OPINIONBY: ALVEY

OPINION: [*103] [**559] ALVEY, C. J., delivered the opinion of the Court.

   The bill in this case was filed by a considerable number of the taxpayers of Anne Arundel County, for the purpose of having declared inoperative and without continued effect, the Act of the General Assembly of 1872, ch. 245, and the confirmatory Act of 1874, ch. 225; and also to have declared nugatory and void all the proceedings under those Acts taken by the board of County Commissioners of that county, for the purpose of effecting a subscription to the capital stock of the Baltimore and Drum Point Railroad Company, for[***24] and on behalf of the county, to the extent of $200,000. The railroad company was incorporated by the Act of the General Assembly of 1868, ch. 364, to construct and operate a railroad from the City of Baltimore to Drum Point at the mouth of the Patuxent River, in Calvert County; nearly all of the location of the route of such road being within the limits of Anne Arundel and Calvert Counties. By the 19th section of the Act of incorporation, it was provided that if the said road should not be commenced within six years from the passage of the Act of incorporation, and should not be finished within four years from the time of the commencement thereof, then the Act should be null and void.

   The bill charges several grounds for impeaching the validity and continued operation of the proceedings and resolutions of the board of County Commissioners, taken professedly under the Acts of Assembly above mentioned, and charges the same to be void and without binding [*104] effect; and the plaintiffs, by proof introduced into the case, impeach the constitutional validity of the Confirmatory Act of 1874, ch. 225, itself. An injunction is prayed to restrain all proceedings under the Acts, or[***25] the resolutions of the Commissioners, and also for general relief.

   The County Commissioners and the Railroad Company were made defendants. The Commissioners failed to appear and answer, and an interlocutory decree was taken as against them. They left the questions raised by [**560] the bill to be contested by the railroad company alone. The railroad company appeared and answered; and by its answer it denies and controverts all the most material allegations and conclusions of the plaintiffs. Upon proofs taken the case was brought to final hearing; and the Court below decreed in favor of the plaintiffs, and enjoined all further proceedings of the Commissioners under the Acts of Assembly.

   There is no question made, and none could be, as to the right of the plaintiffs, as taxpayers of the county, to maintain the bill; that has been decided in several cases in this Court. Mayor, &c. of Baltimore vs. Gill, et al., 31 Md. 375; St. Mary's Industrial School for Boys vs. Brown, et al., 45 Md. 310.

   The Act of 1872, ch. 245, by its first section, authorized the County Commissioners of Anne Arundel County, in the name of and for said county, to subscribe[***26] for and hold shares of the capital stock of the Baltimore and Drum Point Railroad Company, to an amount not to exceed $200,000 at the par value of said shares. And by the second section of the Act, the Commissioners are authorized, for the purpose of meeting said subscription, to issue bonds of the county, with interest coupons attached, to the amount of $200,000; and by the eighth section of the Act, it is provided that said bonds, so to be issued, shall be received by the railroad company at the par [*105] value thereof, in payment of the shares of stock so to be subscribed for.

   By the ninth section of the Act, certain conditions are prescribed upon which the bonds may be delivered to the railroad company; all depending upon the progress of the work within the limits of the county. And in regard to the last installment of the bonds to be issued, being the one-fourth of the whole amount authorized, it is provided that they shall be delivered to the railroad company, "when the whole of the line of the said railroad, within the limits of said county, shall have been fully built and constructed, and in running order; and that the said bonds shall not be issued or delivered[***27] to the said company in any greater installments, nor at any earlier periods, than as above specified; and, provided, that no bonds shall be issued under this Act, unless the said company shall, by an amendment of its charter, agree and bind itself to run daily at least two through trains of passenger cars, without change of cars, between the City of Baltimore and Annapolis, either over its own road, or in connection with the Annapolis and Elk Ridge Railroad, if its road shall not be extended to Annapolis."

   Section twelve of the Act directs that the question of the approval or disapproval of the Act should be submitted to the legally qualified voters of the county, at an election to be held on the fourth Monday of April then next; and as the Act declared that it should take effect from the date of its passage, and it was approved by the Governor on the first day of April, 1872, it spoke from that date, and the election provided for should have been held on the fourth Monday of April, 1873. But, according to the proclamation of the clerk made as required by the provision of the 12th section of the Act, the election was held on the fourth Monday of April, 1872, a year in[***28] advance of the proper time. The confirmatory Act of 1874, ch. 225, which professed by [*106]its title to be passed in pursuance of section 54 of Article 3 of the Constitution, was passed, doubtlessly, upon the assumption that the popular election required by the Act of 1872 had been regularly held, and that the Act of 1872 had been duly published as required by the constitutional provision referred to, in the newspapers of the county, "for two months before the election for members of the House of Delegates," which was held on the 4th day of November, 1873. But it now appears, by the production of the county newspapers in Court, under an agreement, that in neither of the two newspapers so produced, was the Act of 1872, ch. 245, published for the full period of two months before the day of election of members to the then next House of Delegates. In the one paper the first insertion of the Act was on the 6th day of September, 1873, and in the other the first insertion was on the 9th of September, 1873. It is therefore clear, that the Act of 1872 was not duly published for two months before the election held on the 4th day of November, 1873.

   It is proper to notice in passing that[***29] the railroad company applied to and procured from the Legislature of 1876, an Act amendatory of its charter, (Act, 1876, ch. 337,) by which the time for the completion of the road was extended for the period of five years from the first of January, 1877. This Act was approved on the 8th of April, 1876, and it took effect from the date of its passage. It was therefore in operation, as part of the charter of the company, on the 6th of June, 1876, when the County Commissioners first attempted to exercise the power that was supposed to have been delegated to them by the Acts of the General Assembly of 1872, ch. 245, and of 1874, ch. 225.

   It is also proper to notice the Act of 1874, ch. 433, whereby the City of Baltimore was authorized to subscribe to the capital stock of this railroad company, or [*107] to indorse its first mortgage bonds, to an amount not exceeding $500,000, upon such terms and conditions as the Mayor and City Council might by ordinance prescribe. That Act was also in force at the time when the County Commissioners attempted to make the subscription on the 6th of June, 1876; but the authority conferred by this Act of 1874 has never been exercised by the city authorities. [***30]

   As we have just stated, the first proceeding taken by the County Commissioners, under the Act of 1872, to make the subscription on behalf of the county, was on the 6th of June, 1876. But it appears that before that time the railroad company, by its president and directors, had become anxious and active in the matter, and proceeded so far as to consider and determine upon the terms and conditions of the subscription that they sought to obtain from the county, and actually formulated, in the shape of a resolution, the subscription, with the exact terms and conditions therein, as those subsequently adopted by the County Commissioners. This resolution of the board of directors was passed on the 10th of March, 1876, and it was declared, by the same resolution, [**561]that the railroad company would, and did thereby agree, to accept the subscription for the county, on the terms and conditions thus formulated and set forth in the resolution; and which resolution was transmitted to the County Commissioners, and became the basis of the subscription made by them on the 6th of June, 1876. The terms and conditions thus proposed were adopted, and the subscription ordered to be made accordingly. [***31] The order directing the subscription was made matter of record; and it was thereby resolved that the subscription of $200,000 be made in the name of and for Anne Arundel County; "and that the said subscription be made upon the books of the said company, and signed by the president and other members of this board, or [*108] by a majority thereof, and attested by the clerk of the board, with the corporate seal of the board affixed; and that the said subscription be made upon the following terms and conditions, to wit:

   "The County Commissioners of Anne Arundel County agree to subscribe to the capital stock of the Baltimore and Drum Point Railroad Company to the amount of two hundred thousand dollars, upon the following terms and conditions, to wit: First, upon the terms and conditions prescribed by the said Act of 1872, ch. 245, authorizing such subscription to be made; and, second, upon the further condition that the said company shall comply in all respects with the requirements of its charter and every amendment thereto in reference to the construction of said road, and that the said company shall locate and construct its railroad through the town of Brooklyn, in Anne Arundel[***32] County; and provided further, that no part of the said bonds shall be issued or delivered to the said company until the Mayor and City Council of Baltimore shall have, by ordinance, provided for an endorsement of the bonds of the said company to the amount of five hundred thousand dollars; and that no part of said bonds shall be delivered to the said company until the said railroad shall be built and equipped from the City of Baltimore to the Annapolis and Elkridge Railroad; and that the said subscription shall not take effect until these terms and conditions are accepted by the president and directors of said company; and unless these several terms and conditions shall be complied with, the said subscription shall be null and void; otherwise to be and remain in full force and virtue in law."

   This resolution was duly signed and attested; and it was the final resolve of the board upon the subject of the subscription, and what remained to be done was simply of a clerical or ministerial character. We must take the whole proceeding together; and when we consider [*109] the action of the railroad company that preceded and formed the basis, and indeed a principal inducement, of [***33]the resolution of the County Commissioners, there would seem to be no room for question that the subscription was made by the Commissioners and accepted by the railroad company, upon the terms and conditions particularly set forth in the resolutions passed by the board of directors and the board of County Commissioners, respectively; and it does not matter in what form the entry of subscription was afterwards made in the books of the railroad company. Bates County vs. Winters, 112 U.S. 325, 327, 28 L. Ed. 744, 5 S. Ct. 157. All the terms and conditions embodied in the resolution of subscription formed parts of the contract; and non constat that the contract of subscription would ever have been made without such conditions. Indeed, it is expressly declared that the subscription should not take effect until those terms and conditions were accepted by the railroad company. And there would seem to be no ground to question the competency of the railroad company to bind itself by the acceptance of such subscription. 1 Moraw. Corp., secs. 78 to 86.

   At the time this subscription was made, the railroad company, by an amendment to its charter, had until the[***34] first of January, 1882, within which to complete its road. But at the expiration of that time not one of the conditions mentioned in the resolution of subscription, with respect to the construction of the road, had been complied with. And even at the present moment there has been but a part of the grading for the road done within the limits of Anne Arundel County, with no well grounded prospect that the railroad company will be able to proceed with and complete the road--certainly not within any reasonable time to come. In that state of affairs, the Act of 1880, ch. 200, amendatory of the charter of the company, was passed; and among the provisions of the Act there is one extending the time for the [*110] completion of the road, to the first day of May, 1885. But, by the 3rd section of the Act, it is expressly provided, that the extension of the time for the completion of the road should not be construed, "in any way, as to bind the County of Anne Arundel for its subscription to the capital stock of said company, unless the County Commissioners give their consent to a continuance of said subscription." In inserting this provision in the Act the Legislature manifestly acted[***35] upon the assumption that the limitation of time for the completion of the road was of the essence of the contract of subscription by the county; and hence the consent of the Commissioners was required to the continuation of the subscription. That consent, however, was never given to the particular subscription of June 6th, 1876.

   It is unnecessary to make further reference to the facts of the case as detailed in the record; those that we have stated being sufficient to present the questions that, in our judgment, are decisive of the case. We shall therefore proceed to consider briefly the propositions, or rather the most material of them, that were made and urged at the bar with great ingenuity and ability.

   The first proposition urged on the part of the defendant, the railroad company, is, that the subscription of the County Commissioners to the capital stock of the company, authorized by the Act of 1872, ch. 245, is not within the meaning of the terms of section 54 of Article 3 of the Constitution; and therefore the failure to publish that Act two months before the then next election [**562] for members of the House of Delegates, as required by the provision of the Constitution[***36] and the 13th sec. of the Act of 1872, is immaterial and irrelevant to the question now involved. Of course, if this contention were maintainable, the question whether the Act of 1872 had been published as required by the section of the Constitution would be immaterial; the subsequent Act [*111] of 1874 would cure such defect or omission, so far as the mere requirement in the Act of 1872 is concerned. But the Acts of the Legislature, both that of 1872, ch. 245, and of 1874, ch. 225, contemplated the power delegated as being within the provision of the Constitution; and we think the Legislature clearly right in so regarding the power.

   The argument in support of this proposition is founded upon the particular terms of the section of the Constitution; that no county shall contract any debt or obligation, in the construction of any railroad, canal, or other works of internal improvements, nor give, or loan, its credit to or in aid of any association or corporation, unless authorized by an Act of the General Assembly, &c. The language of this section of the Constitution is very broad and comprehensive; and with a common knowledge possessed by the whole people of the State, we cannot[***37] fail to understand what was intended to be accomplished by this constitutional restriction. It was intended as a constitutional limitation of power, not only of the local authority, but of legislative power itself; and all such cases as the present were manifestly contemplated as being within the constitutional restriction or limitation, being within the evils intended to be restrained. The Act of 1872, authorizing the subscription to the capital stock of the railroad company, also authorized, for the purpose of meeting such subscription, the County Commissioners to issue coupon bonds, which of course would be negotiable; and, in another section, such bonds are required to be received by the railroad company, in payment of the subscription of stock. The primary object of this subscription, and the issue of bonds therefor, was to enable the railroad company to avail itself of the credit of the county to raise funds with which to prosecute its works; and it was therefore a loan of the credit of the county, in a constitutional sense, [*112]that the bonds were to be issued upon the subscription. Hill vs. Memphis, 134 U.S. 198, 205, 33 L. Ed. 887, 10 S. Ct. 562.[***38]

   The power intended to be conferred by the Act of 1872, ch. 245, being within and subject to the constitutional restriction, it is next contended on the part of the railroad company, that the term "months," as used in the section of the Constitution referred to, should be taken to mean lunar months, and not calendar months; and if that construction be not adopted, then the terms "two months" should be construed as being directory only. But we are unable to adopt either of these constructions. It is established in this State, as it is in many others, that the word "month," when used in a statute, and of course the same when used in a Constitution, means calendar month, unless words be added to show that lunar month was intended.  Rawlings vs. Adams, 7 Md. 26; Glenn, Adm'r, &c. vs.  Hebb's Adm'r, 17 Md. 260, 282; Snyder vs. Warren, 2 Cow. 518; Bish. Writ. Laws, sec. 105, and the cases there cited. And to hold that the terms, as employed in the Constitution, are merely directory and not mandatory, as contended by the defendant, would not only be introducing a lax rule of construction of the Constitution, but such construction would[***39] virtually nullify and destroy a valuable safeguard intended as means of bringing to the notice and consideration of the people to be affected, contemplated burdens upon them and their property. For if the constitutional requirement be held to be directory only, the publication might be for half the time prescribed, or it might be omitted altogether, and yet the power would be effective. This was never the design of the constitutional provision; and therefore all the conditions prescribed should be strictly observed; they are all equally essential to the authority attempted to be conferred. Or, as said by the Supreme Court, in Young vs. Clarendon Township, 132 U.S. 340, 33 L. Ed. 356, 10 S. Ct. 107, "they are of equal importance [*113] under the law, and one cannot be dispensed with more than another. Neither is directory, but all are mandatory." The question is not what, in the absence of a constitutional restriction, would constitute a valid legislative grant of power, but what the Constitution itself requires; and as the two months publication of the Act of 1872 was essential, as one of the conditions precedent to a valid confirmatory Act, and that publication[***40] was not duly made, as required by the constitutional provision, all the constitutional requirements were not complied with, and therefore there was no legal or valid authority conferred and confirmed by the Acts of 1872 and of 1874.

   It is urged, however, that it is not charged in the bill as one of the grounds for impeaching the subscription made under those Acts, that due publication had not been made of the Act of 1872, prior to the election of the 4th of November, 1873, and therefore no notice should be taken of such defect. It is true, there is no such specific charge in the bill; but there has been no exception to the sufficiency of the averments of the bill, as could have been taken, (1 Code, Art. 5, sec. 34,) and the proof has been introduced by agreement, without exception thereto upon the ground that there was no corresponding allegation in the bill, to which the proof could be applied. In such case this Court is required to decide the questions raised by the proof.

   But if that question were out of the case, as the defendant contends it should be, the next question raised is equally decisive against the defendant, and that is, as to the continuing operation and force of[***41] the subscription of June 6th, 1876, upon which the defendant insists the county remains bound.

   It is contended on behalf of the railroad company that the terms and conditions of the subscription, additional to those prescribed in the 9th section of the Act of 1872, [*114] ch. 245, were unauthorized, and should be regarded as nugatory and void, and that, without those terms and conditions, the subscription would stand valid, notwithstanding anything that has subsequently occurred. But in this we cannot concur.

   In the first [**563] place, looking to the circumstances under which the subscription was made, it is very clear the railroad company is not in a position to insist upon the repudiation of the terms and conditions objected to. It was largely instrumental in having those terms and conditions incorporated into the contract of subscription; and good faith requires that it should not take the benefit of the subscription without complying with or fulfilling the conditions. Nor do we concur in the contention that the County Commissioners were without warrant in insisting upon such terms and conditions in the subscription made by them. By the act of subscription a large debt[***42] was to be imposed upon the people of the county, whom the Commissioners represented; and the only security and relief from the burden thus imposed, was in the speedy construction and operation of the road. The authority delegated to the Commissioners was of a discretionary nature, leaving them to determine, in view of all the facts and circumstances of the case, whether the power should be exercised or not. Of course, they could add no condition that was in conflict or inconsistent with the terms prescribed by the Act of the Legislature; but there is nothing in the Act to negative the right of the Commissioners to add such terms and conditions as would consist with the terms of the power, and were proper for the protection and security of the rights and interests of the community that they represented. The Commissioners are county officials representing the interests of the people of the county, and are clothed with large powers, both of a discretionary and a quasi judicial character, in respect of the general administration of county [*115] affairs, to be exercised in the interest of and for the promotion of the public good. It may be reasonably supposed that it was because[***43] of this representative relation of the Commissioners to the people of the county, and the nature of the powers that they exercised, that the power of subscription was delegated to them rather than to any other agency. It plainly appears that the conditions added were all of a character to protect and secure the rights and interests of the county, and were strictly in accord with the reason and policy of the constitutional provision under which the Commissioners supposed they derived their power. In such case, both reason and principle would seem to warrant the conditions upon which the subscription was made ( Nor. Cent. R. Co. vs. Baltimore City, 21 Md. 93); and the history of the projected road, and the facts as disclosed in this record, well illustrate the wisdom with which the conditions were incorporated into the contract of subscription.

   Assuming, then, that the Acts of 1872 and 1874 were free of all constitutional objection, the conditional subscription of the Commissioners was a valid contract; and as such exhausted the power of the Commissioners to make any further subscription. And when in 1880, before any of the more important conditions of the subscription[***44] had been complied with by the railroad company, the latter applied for and obtained an amendment of its charter, and accepted the same, extending the time for the completion of the road, with the condition that it should not, in any way, be so construed as to bind the county for its subscription, unless the County Commissioners should give their consent to the continuation thereof, the railroad company thereby, in effect, released the subscription. The County Commissioners have never given their consent to a continuation of the original subscription as made, and had no power so to do, the power conferred having been exhausted; and the attempt [*116] to make a new subscription on the 21st of January, 1890, on different and conflicting terms and conditions, was simply a nugatory act.

   It follows that the decree of the Court below must be affirmed; and we so order, with costs to the appellees.

   Decree affirmed, with costs. 

BOARD OF COUNTY SCHOOL COMMISSIONERS OF ANNE ARUNDEL COUNTYvs. HARRY B. GANTT, Treasurer, and THE BOARD OF COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
73 Md. 521; 21 A. 548; 1891 Md. LEXIS 27

 March  24, 1891, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Order affirmed.

CORE TERMS:  levy, levied, treasurer, public schools, school board, mandamus, duty, dollars, exceeding, county treasurer, general law, ascertained, collecting, discount, Code of Public Local Laws, expressly declared, appropriate remedy, amount sufficient, taxable property, money collected, deem necessary, prompt payment, separate fund, current year, gross amount, taxes levied, net proceeds, school fund, school tax, misjoinder

COUNSEL: Edward C. Gantt, for the appellant.
 
Robert Moss, and John Ireland, for the appellees.

JUDGES: The cause was argued before ALVEY, C. J., ROBINSON, IRVING, BRYAN, MCSHERRY, and BRISCOE, J.

OPINIONBY: MCSHERRY

OPINION: [*523] [**548] MCSHERRY, J., delivered the opinion of the Court.

   This is an appeal from an order refusing a mandamus. The Board of County School Commissioners of Anne Arundel County filed a petition against the County Commissioners and County Treasurer of that county, praying that a mandamus might issue commanding the respondents to pay over to the relators [**549] the full amount of taxes levied in eighteen hundred and eighty-nine for the use of the public schools, without abatement or diminution. The County Commissioners claimed the right to deduct from the sum so levied the amounts of the treasurer's commissions for collecting, and the amounts allowed to tax-payers by way of discount for prompt payments. The mandamus was refused, and hence this appeal.

   It appears by the record that on the twenty-first day of May, eighteen [***2]hundred and eighty-nine, the County Commissioners levied upon the taxable property of the county that year, for the use of the public schools, twenty cents on the hundred dollars, which levy yielded the sum of $21,596.31. By the general school law, Code, Art. 77, sec. 22, it is provided, in substance, that if the apportionment of the State school fund be insufficient for the needs of the public schools of any county, [*524] the County Commissioners shall levy such additional sum as the School Board may make demand for, not exceeding, however, ten cents on the one hundred dollars. Under sec. 123 of Art. 2 of the Code of Public Local Laws, the County Commissioners of Anne Arundel County are empowered, in their discretion, to levy such additional rate, not exceeding, with the ten cents provided for by the general law, twenty cents on the one hundred dollars, as they may deem necessary to promote the efficiency of the schools; and it is expressly declared that the school tax so levied "shall constitute a separate fund, and shall not be used for any other purpose but that for which it was levied."

   Sec. 228 of the same local article, in defining the duties[***3] of the County Treasurer, provides that "he shall reserve out of the money collected by him for county purposes generally and public schools, a sufficient sum to pay the amount levied in each current year by said Commissioners, for public schools, and shall pay the same over to the Board of County School Commissioners of said county" in four equal installments. The mode of compensating the treasurer for his services is prescribed by sec. 235, which enacts that "the said treasurer shall be entitled, as compensation for his services, to a commission, to be fixed by the county commissioners, of not more than two and a half per centum on the amount of taxes levied for county purposes and actually collected, * * * * and the said commissioners are authorized and directed in their several annual levies to levy an amount sufficient to pay the commissions and salaries so allowed."

   From these several provisions of the general and local laws it is quite apparent that when the Board of School Commissioners make demand upon the county commissioners for an appropriation it becomes the duty of the latter to levy, under Art. 77, sec. 22, the amount required [*525] by the School[***4] Board up to ten cents on the hundred dollars of taxable property. This duty is an imperative one. It is equally clear that when more than ten cents on the hundred dollars is required, the county commissioners have, under sec. 123, Art. 2, of the Local Code, a discretion to levy not exceeding ten cents additional. But when the levy is actually made, and unconditionally made, the statutes are explicit in declaring that no part of the sum levied for the use of the public schools shall be used for any other purpose, and that the amount so levied in each year shall be paid by the treasurer to the School Board in equal quarterly installments. These clear and minute provisions plainly mean that the gross amount levied for the schools shall be paid to the School Board; and, of course, therefore, they necessarily exclude the right of the county commissioners, after they have made the levy, to diminish that amount by subsequently applying any part of it to any other use or purpose. In addition to this, sec. 235 authorizes and directs that the commissions of the treasurer shall be provided for in the levy--that is to say, shall be separately levied annually. These commissions, [***5] therefore, are placed upon the levy list to the credit of the treasurer, precisely as any other claim due by the county is placed to the credit of the party to whom it is payable. Obviously, therefore, the county commissioners are precluded from withholding part of the amount levied for the use of the public schools to pay the treasurer's commissions. They are equally without authority to lessen the amount so levied by deducting discounts allowed for the prompt payment of county taxes.

   We do not mean to say that as to the ten cents on the hundred dollars, which the county commissioners may in their discretion levy over and above the first ten cents [*526] which they are peremptorily required to levy under the general law, they may not, in the order directing the levy, provide that the cost of collecting what is thus given in their discretion shall be deducted. This they may do, and they may provide that only the net proceeds shall be paid to the School Board. But the record does not show that such an order was passed when the levy was made. It shows merely that a certain percentage was levied upon a given basis, yielding an ascertained sum. That sum, under the circumstances stated, [***6] the School Board is entitled to have. This view is fully supported by Seidenstricker vs. The State, 2 Gill 374.

   We have said that the treasurer was made a party respondent in this case. In Annapolis Savings Institution vs. Bannon, et al., 68 Md. 458, 13 A. 353, it was held that the treasurer was the mere servant of the county commissioners. It was consequently, as is well settled, an error to make him a party to this proceeding.

   The amount levied for the schools stands to the credit of the appellants on the books of the appellees. That amount is fixed and ascertained, and the plain duty of the county commissioners is to pay it over. For a breach of that duty mandamus is the appropriate remedy. An action at law could accomplish nothing more than to reduce to a judgment the claim confessedly levied by the county commissioners, and a refusal to pay that judgment would warrant the issuing of a mandamus to compel the commissioners to make a levy for its payment. They have, in fact, made the levy already, and their refusal to turn over the money thus levied can only be remedied by a mandamus requiring them to do so. But, as the writ can only[***7] issue against them, and not against their subordinate officer, it would have been error [**550] to have granted it according to the prayer of the petition.

   [*527] For this misjoinder the Court below was right in refusing the writ, and upon that ground its order must be affirmed.

   Order affirmed. 

STATE OF MARYLAND vs. SAMUEL S. TRACEY. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
73 Md. 447; 21 A. 366; 1891 Md. LEXIS 20

 February  20, 1891, Decided

   PRIOR HISTORY:  [***1] APPEAL AS UPON WRIT OF ERROR, from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Judgment affirmed.

CORE TERMS:  indictment, larceny, ownership, embezzled, embezzlement, fraudulently, feloniously, stolen, prevails, Code of Public General Laws, sufficient in law, consultation, demurrer, borrowed

COUNSEL: James M. Munroe, State's Attorney for Anne Arundel County, for the appellant.
 
John Ireland, and James Revell, for the appellee.

JUDGES: The cause was argued before ALVEY, C. J., ROBINSON, IRVING, BRYAN, MCSHERRY, and BRISCOE, J.

OPINIONBY: IRVING

OPINION: [*447] [**366] IRVING, J., delivered the opinion of the Court.

   The appellee was indicted for embezzlement under section 75, of Article 27 of the Code of Public General Laws. There were three counts in the indictment, and a demurrer was interposed to them, which the Circuit Court for Anne Arundel County sustained. The petition for removal of the record to this Court, as upon writ of error, avers as the ground of error, that the Court adjudged "the indictment to be insufficient in law, because the [*448] said indictment did not allege that the money charged to have been fraudulently embezzled by the traverser, as set out in the indictment, was the money and property of the 'Curtis Creek Mining Furnace and Manufacturing Company,' nor did said indictment allege any ownership[***2] of the said money charged to have been fraudulently embezzled as set out in said indictment; whereas, the Court ought to have overruled the demurrer, and ought to have sustained the indictment as sufficient in law, because it is not necessary to allege the ownership of the property charged to have been fraudulently embezzled as set out in the indictment."

   A single question is presented for our decision, to wit, whether in an indictment under the section 75, of Article 27 of the Code, the ownership of the property or money embezzled, must be alleged to make the indictment good and sufficient in law to sustain a conviction.

   The contention of the State is, that the offence is statutory, and that having substantially followed the language of the statute, the indictment is good; and the appellee contends that the statute having declared the offender to have feloniously stolen, made the offence larceny, and consequently all the essential averments of a good indictment for larceny must be found in this indictment, or it is bad.

   This statute was enacted by chapter 310 of the Acts of the General Assembly of 1886. It is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and[***3] 8 George IV, chapter 29, section 47. In defining the offence of embezzlement by servants, employes and agents, those statutes use the language which ours has copied, "Shall be deemed to have feloniously stolen the same from his master or employe."

   If this makes the offence larceny, then an indictment for that offence should contain all the material averments which are necessary to be proven in order to convict; [*449] and nothing must be left to intendment. 1 Archbold Cr. Pl. & Pr., (8th Ed.,) 265; 1 Bishop's Crim. Prac., secs. 505, 509.

   That these statutes do make the offence larceny, and that, as a consequence thereof, it is necessary to allege the ownership of the property, as contended for by the appellee in this case, has been expressly decided both in England and in this country. In McGregor's Case, Leach on Crown Law, 938, the question was distinctly presented and decided on a motion to arrest a judgment upon an indictment which was defective in omitting to charge the ownership of the property. Judgment in that case was arrested. Much stress has been laid, in argument, that this decision was rendered by only a majority of the Judges. If that was the case, [***4] it has been acquiesced in and followed ever since. The statement that it was by a majority of the Court finds explanation in the fact that two of the Judges were not present at the final consultation where the conclusion was reached. In 2 East's Crown Law, 578, it was said with reference to this case: a difference [**367] of opinion for a while prevailed, but on the 25th of February, 1802, all the Judges, (except Lord KENYON, C. J. and ROOKE, J., who did not meet the other Judges in consultation,) were of opinion that the statute made the offence larceny, and that the indictment was bad in not alleging the ownership of the property.

   In 2 Russell on Crimes, (9the Am. from 4th London Edition,) 464, that learned author says: "Except as section 71, of the 24 and 25 Vict., ch. 96, may have otherwise provided, it seems that the indictment ought to contain all the requisites of an indictment for larceny at common law." This statement immediately follows his citation of the decision of the Court of King's Bench that counts for embezzlement and larceny could be joined, because Lord ELLENBOROUGH, Chief Justice said, that the statute [*450] had made it a felony and[***5] a larceny. On the next page Mr. Russell cites and states the McGregor Case in support of his statement of the law. We have been unable to find any case throwing discredit on this decision or shaking its authority. The case of Rex vs. Beacall, Moody's Crown Cases, 15, is to the like effect, and Mr. Wharton's and Mr. Chitty's Precedents sustain this as the law. New Jersey has a similar statute, and in State vs. Lyon, 45 N.J.L. 272, it was decided that ownership in such case was an essential averment; and the Court cites Wharton's and Chitty's Precedents and McGregor's Case as authority. Alden vs. The State, 18 Fla. 187, where a like law prevails, seems to maintain the same view. Having borrowed the law from England where an established construction prevails and has long obtained, it is reasonable to hold, that we have adopted it with the interpretation there accorded to it. The judgment will be affirmed.

   Judgment affirmed. 

JOHN THOMAS SCHARF, Commissioner of the Land Office vs.HIRAM P. TASKER. 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
73 Md. 378; 21 A. 56; 1891 Md. LEXIS 9

 January  22, 1891, Decided

   PRIOR HISTORY:  [***1] APPEAL from the Circuit Court for  Anne Arundel  County.
 
The case is stated in the opinion of the Court.

DISPOSITION: Order reversed, and petition dismissed, with costs.

CORE TERMS:  land office, military, unclaimed, free access, approaching, unknown, repeal, county authorities, treasury, mandamus, untaxed, free of charge, tracts of land, process of law, general law, designated, forfeited, remitted, belonged, declare, invalid, vetoed, remit, duty, discordant, germane, void, An Act, treasury department, entitled to demand

COUNSEL: James M. Munroe, for the appellant.
 
Elihu S. Riley, for the appellee.

JUDGES: The cause was argued before MILLER, IRVING, BRYAN, and MCSHERRY, J.

OPINIONBY: MCSHERRY

OPINION: [*380] [**56] MCSHERRY, J., delivered the opinion of the Court. 

   During the January session of 1890, the General Assembly passed an Act entitled "An Act to provide for the assessment of the unclaimed military lots and tracts of land in Alleghany and Garrett Counties, and for the collection of State and county taxes thereon, by selling the delinquent lands, and turning the net proceeds into the State treasury." By the first section, after directing that public notice should be given, warning the owners of unassessed military lots lying in the two counties named to establish their title thereto on or before the first day of April, 1891, it was provided that upon failure of the owners to comply, "all their rights shall be forfeited to the State." The second section is in these words: "That in order to enable the county authorities to trace and define[***2] the titles to these untaxed lands in time for the approaching general assessment, that they or their agent shall have free access to the records in the land office of all patents, certificates of resurveys, indexes, &c., that in any way may affect the title to these unclaimed and untaxed lands, and that all fees charged to Garrett County for searches heretofore made in the land office by Hiram P. Tasker, as agent for the Commissioners of Alleghany and Garrett Counties, be and the same are hereby remitted in consideration of the State taxes to be hereafter collected annually from these unclaimed lands." After the approval of the Act, Tasker, [*381] the appellee, as the agent of Alleghany and Garrett Counties, applied to the Commissioner of the Land Office for permission to make, free of charge, searches of the records in his office respecting the title to these lots. Col. Scharf, the commissioner, refused, and based his refusal on the ground that the Act was unconstitutional. Thereupon the appellee made application to the Circuit Court for Anne Arundel County for a mandamus against the Commissioner of the Land Office. After answer and hearing a peremptory mandamus was ordered, [***3] and from that order this appeal has been taken.

   By the fourth section of Article seven of the Constitution, the salary of the Commissioner of the Land Office is designated, and it is declared that he "shall charge such fees as are now, or may be hereafter, fixed by law." He is required to "make a semi-annual report of all the fees of his office * * * * to the Comptroller of the Treasury" and to "pay the same semi-annually into the Treasury." Under the Act of 1874, ch. 66, (Code, Art. 54, sec. 13,) other duties were imposed upon the commissioner, and he was allowed to retain the fees authorized by that Act to be charged by him. Tasker, the appellee, had made numerous searches in the Land Office for the County Commissioners of Garrett County, and quite a large bill of costs had accumulated, which costs were due by the county to the commissioner when the Act of 1890 was passed.

   Unless the Act of 1890, ch. 513, gives the appellee the right, to make without charge, the searches he desires to make amongst the records in the Land Office, his application for a mandamus must be denied, because it is only by virtue of that Act that he possesses the right he[***4] contends for. Whether the Act in question does confer that right or not depends mainly upon whether that Act is constitutional and valid. That it is invalid and unconstitutional is the defence which the appellant made [*382] unsuccessfully in the Court below, and now renews in this Court.

   The first section of the Act of 1890, is palpably in conflict with the organic law of the land. After the close of the Revolutionary War, the State of Maryland divided large tracts of land lying west of Fort Cumberland into lots of fifty acres each, and allotted to every commissioned officer of the Maryland Line four, and to every private soldier one of those lots which are now known as "military lots." Owing to lapse of time and other causes the present owners of many of these military lots are unknown, and the object of the first section of the Act of 1890, was to compel these unknown owners to establish their title, so that the property might be placed upon the assessment books of Alleghany and Garrett Counties. But the Legislature exceeded the limits of its authority when it undertook, in the same section, to forfeit the property,--the title and estate--of all unknown owners upon their[***5] failure to produce, within the time designated, the evidence of their title. It needs no argument and no citation of authority to show that the title of the unknown owners of these lots cannot be forfeited without due process of law; and that such legislation as this is far from having even the semblance of due process of law. Whilst it might not be appropriate to comment upon, or to criticize, the questionable propriety of this [**57] fruitless effort to confiscate the property which the State, more than one hundred years ago, in a spirit of gratitude, voluntarily donated to the heroic men who fought with such signal and such distinguished courage in the protracted struggle for our independence, we should perform our duty but imperfectly if we hesitated to declare, with unequivocal emphasis, that this feature of the Act is plainly in contravention of the twenty-third Article of the Declaration of Rights.

   The second section of the Act is equally invalid. That section purports to do two things, viz., first, to [*383] authorize the agents of Alleghany and Garrett Counties to make searches and examinations of the records in the Land Office free of charge; and, secondly, [***6] to remit the amount due by the county authorities of Garrett County for searches previously made by the appellee. Neither of these subjects is described, or even implied, in the title of the Act. Section 29, of Article 3 of the Constitution declares "that every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title." This provision has been frequently considered by this Court. A liberal construction has always been placed upon it, so as to uphold, rather than strike down, enactments passed by the General Assembly. But the rule has been invariably asserted to be this: That whilst the title need not contain an abstract of the bill, there must be no foreign, irrelevant, or discordant matter introduced in the body of the statute. Such matter will be rejected if other sections of the Act can stand without it, but if the Act is composed of a number of discordant and dissimilar subjects, so that no one could be clearly recognized as the controlling or principal one, the whole Act would be void. Mayor, &c. of Baltimore vs. Reitz, 50 Md. 574. An Act which, by its title, professes to be applicable to a particular subject[***7] cannot properly contain provisions not germane to that subject but strictly pertinent only to a very different matter.

   Now, by section 13, of Article 36 of the Code of Public General Laws, the Legislature fixed, conformably to the provisions of section 4, Article 7 of the Constitution, the schedule of fees which the Commissioner of the Land Office shall be entitled to demand and receive in the discharge of his official duties. Amonst these fees are those for making searches and furnishing copies of the records in his office. The Act now before us, by its second section, repeals section 13, of Article 36 of the [*384] Code so far forth as the examinations and searches to be made in behalf of Alleghany and Garrett Counties respecting these military lots are concerned. And it effects that repeal by mere implication. The general law declares that for all searches and copies the commissioner shall be entitled to demand and receive certain fees. This Act provides that for particular searches and copies, which are undoubtedly comprehended within the general law, no charge shall be made or demanded. If the latter Act is valid, it must of necessity repeal pro [***8]  tanto the general law. Both cannot be operative, because they are in direct conflict in this particular. No reference of any kind whatever is made in the title of the Act of 1890, to this proposed or attempted repeal; and this proposed or attempted repeal is in no sense germane to the subject-matter disclosed or described in the title. It is by no means a necessary or indispensable part of a scheme for the taxation of particular property that some other statute relating to a totally different subject, and unconnected with that scheme in any way, should be repealed in whole or in part. To secure the taxation of these military lots, it was neither necessary nor indispensable that the agents of Alleghany and Garrett Counties should have free access to the records in the Land Office. Access to those records may be, and possibly is, necessary to enable the county authorities to proceed intelligently; but free access, in the sense of paying nothing for the searches and the copies which the commissioner's time may be occupied in making, is something obviously not embraced in the title and not to be expected in the body of the Act upon an inspection of the title we have quoted, particularly[***9] when to give effect to that provision, a general statute on another subject must be treated as repealed pro tanto by it.

   But the language of the second section further shows that the right intended to be accorded the agents of these [*385] counties was not an absolute and unqualified one. It was to be exercised only to aid the counties named in placing these lots on the assessment books at "the approaching general assessment." At the very time this Act was before the Legislature there was also before that body a general assessment law making provision for a new valuation of property throughout the State, and the Act of 1890, ch. 513, had reference to that measure when it spoke of "the approaching general assessment." Both of these laws were finally agreed to by the Senate on the same day--both having originated in the House. The one now before us was approved by the Governor; the other, the assessment law, was vetoed by him. So the assessment contemplated by the Act we are now considering has not taken place, and never can take place under that vetoed assessment law. The condition, therefore, upon which the right to have free access to the records was granted[***10] not having come to pass, the right itself must fall, apart from any consideration of the unconstitutional character of the enactment.

   The other thing which the second section sought to do is equally ineffective. The remission of the sum due by Garrett County for former searches has nothing at all to do with the object and purpose of the statute, and is manifestly not described in the title. There are other objections to this feature. If these accrued fees belong under the Constitution to the State, the Legislature had no power to remit them without the recommendation of the Governor or the officers of the Treasury Department. Constitution, Article 3, section 33. And this confessedly was never done. If, on the other hand, under the Act of 1874, ch. 66, the fees belonged to the Commissioner of the Land Office, the General Assembly could not take them away from him after they had [**58] been earned. Whether the Act of 1874, is valid or not, is a question not now before us, and we express no opinion on that [*386] subject. Other objections were urged and relied on, but it is not deemed necessary to consider them.

   Inasmuch as the right of the appellee to have the relief[***11] which he seeks under the mandamus is dependent upon the validity of the Act of 1890, ch. 513, and inasmuch as that Act is, in our opinion, unconstitutional and void, it follows that the order appealed from must be reversed, and the petition must be dismissed.

   Order reversed, and petition dismissed, with costs.

   BRYAN, J., dissented. 

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