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SZALESKI et al. v. GOODMAN et ux. 
No. 115, September Term, 1970
 
Court of Appeals of Maryland
 
260 Md. 24; 271 A.2d 524; 1970 Md. LEXIS 738

 December  9, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

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

CORE TERMS:  vendee, vendor, installment contract, fair rental value, purchase price, feet, tract, Land Installment Contract Law, right to cancel, swimming pool, sale of land, indefiniteness, unconditional, fence, void, speaking, contract of sale, executory contract, agreement of sale, legally binding, water frontage, unpaid balance, amounts paid, time prior, enforceable, conveyed, waterfront, projected, ownership, adjacent

COUNSEL: Eugene M. Lerner for appellants.

   No brief filed on behalf of appellees.

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

OPINIONBY: SINGLEY

OPINION: [*25] [**524] In the early summer of 1968, Dan Goodman and his wife, Ada, (the Goodmans), were the owners of four adjacent waterfront lots, Nos. 10, 11, 12 and 13, on Powhatan Beach Road in Anne Arundel County.  The lots were improved by three houses, one of which, situated on parts of Lots 11, 12 and 13, was occupied by the Goodmans.  At a date unspecified, William P. Szaleski and his wife, Pamela, (the Szaleskis), evidenced interest in a house adjacent to the Goodmans', and in July this interest culminated in the execution of an undated "agreement of sale," prepared by Mr. Goodman.

   The portion of the agreement relevant to the controversy was this:
 
"This contract is for the sale of the house and lot, in fee, including garage, pier, plus one-half ownership of swimming pool and artesian well located at the bottom of the hill[***4] near the swimming pool. This property is located on the North [*26] side of Powhatan Beach Road, 5 East of Shirley Avenue, Lot #10 and a portion of Lot #11 which has been added to Lot #10.  This portion of Lot #11 shall end at the fence now in position.  Total price of the above property is $17,700.00.  [**525] A downpayment of $1,500.00 has been paid."

   There was a provision requiring the Szaleskis to make monthly payments of $140 from which it was contemplated that there would be deducted interest at 6 1/2% on the unpaid balance of purchase price, $250 for taxes, subject to adjustment for any increase, $46 for insurance, and one-half of the taxes on the swimming pool. There followed a table of computations which projected a reduction of the unpaid balance of purchase price by $341 each year, assuming that payments were made as stipulated.  The Szaleskis obligated themselves to pay the balance of purchase price within five years.

   In September of 1968, the Szaleskis investigated the possibility of financing the unpaid purchase price by a borrowing secured by a mortgage and discovered that a survey would be required.  In March of 1969, Mr. Goodman had a survey made[***5] which developed the perimeter of a lot having a road frontage of 74 feet and a water frontage of 72 feet. By July, Szaleski had taken the position that this was not what he had bargained for, because the water frontage should have been 89 feet, and that if he could not get what he had bought, he would "terminate the contract."

   In August, the Goodmans instituted an action in equity in the Circuit Court for Anne Arundel County against the Szaleskis, alleging that the agreement was a "land installment contract" as defined by our Land Installment Contract Law (the Act), Code (1957, 1966 Repl. Vol.) Art. 21, § 110 (1); that § 111 (5) of the Act requires the recording by the vendor of a land installment contract within 15 days of execution; that the Goodman-Szaleski contract was not so recorded; that in the event of failure to [*27] record, § 111 (5) gives "the vendee the unconditional right to cancel the contract and to receive immediate refund of all payments and deposits made * * *"; and that the Szaleskis had indicated a desire to cancel, but had not done so.  The Goodmans prayed that the agreement of sale be declared null and void, and that the court determine the rights of [***6]the parties in amounts paid by the Szaleskis.

   The Szaleskis answered, admitting the allegations regarding the sale and the effect of the Act but denying that they desired to cancel.  After an evidentiary hearing, the court concluded that the contract was lacking in certainty and entered a decree which held the agreement to be null and void and ordered the Goodmans to pay to the Szaleskis the sum of $1,057, which was arrived at by deducting from $3,667, the amount stipulated to have been paid by the Szaleskis to the Goodmans, the sum of $2,610, or $145 per month, from 1 July 1968 to 31 December 1969, which the court found to be the fair rental value of the property.

   The Szaleskis have appealed, arguing that the agreement was a land installment contract within the meaning of § 110 (1) of the Act and that since it was not recorded, they are entitled under § 111 (5) to the return of all amounts paid, without any adjustment for fair rental value. They place their principal reliance on Spruell v. Blythe, 215 Md. 117, 137 A. 2d 183 (1957).

   The General Assembly enacted the Land Installment Contract Law by Chapter 596 of the Laws of 1951, in an effort to curb "serious actual or[***7] potential evils," Hudson v. Maryland State Housing Co., 207 Md. 320, 331, 114 A. 2d 421 (1955); Spruell v. Blythe, supra, 215 Md. 117, 122. See also, Levin, Maryland Rule on Forfeiture Under Land Installment Contracts . . . A Suggested Reform, 9 Md.L.Rev. 99 (1948).

   Judicial interpretations of the Act have been few, but we regard Spruell, on which the Szaleskis rely, as inapposite.  In Spruell, there was no written contract, and no copy could be delivered to the vendee. Consequently, the [*28]vendee could take advantage of § 111 (3), then § 119 (3), of the Act which gives a vendee the unconditional right to cancel a contract and recover all [**526] payments made under it at any time prior to the time when the vendee signs the contract and receives a copy signed by the vendor. Since it is clear that the Szaleskis and the Goodmans signed a contract, and that the Szaleskis had a copy of it, relief was not available to them under § 111 (3).

   As we see it, Maryland State Housing Co. v. Fish, 208 Md. 331, 118 A. 2d 491 (1955) is so strikingly similar on its facts as to be clearly dispositive of the controversy before us.  In Fish, the Housing Company[***8] had acquired title to a single tract of land in a suburban community improved by a double house, one part of which was known as No. 1925, and the other as No. 1927 Furnace Avenue.  The Company sold No. 1927 to Fish under an installment contract which described the property as
 
"No. 1927 Furnace Avenue, Howard County State of Maryland, Elkridge, Md. (Elkridge Landing -- 1st district) * * *."
 
Evidence in the case showed the tract to be irregular in shape, and the improvements to be located in one corner of the tract. Nowhere was the dividing line spelled out.  When Fish defaulted, the Company sought to foreclose under the Act.  In his answer, Fish contended that the contract was void for uncertainty and indefiniteness.

   This Court, speaking through Chief Judge Brune, held that the description of the property contained in the agreement was not sufficiently definite to make the agreement valid and enforceable, relying on Kiser v. Eberly, 200 Md. 242, 88 A. 2d 570 (1952) and Helmik v. Pratt, 153 Md. 685, 139 A. 559 (1927) and then went one step further in holding that since the Act, § 110 (1), then § 118 (1), defines a "Land Installment Contract" as "a legally[***9] binding executory contract," the Act cannot be availed of by the vendor to enforce a contract void for indefiniteness, nor can the vendee under an unenforceable contract assert a right, such as a demand for the return [*29] of all of the payments he had made, which would not have been available to him but for the Act.  Fish is also authority for the proposition that the vendor under a void contract may be required to account to the vendee for the difference between the total amount paid by the vendee and the fair rental value of the property.

   There were other problems which Mr. Szaleski shared with Mr. Fish.  In Fish, an examination of the plat which was included in the record extract shows that an extension of the line of the party wall between the two houses would have produced a tract smaller than that which the vendor was willing to convey.  In Szaleski's case, the chancellor found that the extension to the waterfront of the fence line, referred to in the contract, which ran northward from Powhatan Beach Road for only 50 feet, would have resulted in a smaller front footage than the Goodmans were willing to give the Szaleskis.  In Fish, as is the case here, there[***10] were at least three ways in which the boundary line could be drawn, all consistent with the uncertain contract language: the way the vendor wanted it, the way the vendee wanted it, or by extending an existing line.

   Judge Offutt, speaking for the Court, said in Helmik v. Pratt, supra, 153 Md. at 690:

   "One absolutely essential term in a contract for the sale of land, which must be shown before it can be specifically enforced, is a description of the land, either complete in itself, or which supplies data and information sufficient to enable the court with proper evidence to identify and locate the land definitely and with certainty.  Upon that rule the courts are in substantial accord, but in applying it to specific cases there is no such concord."
 
and Judge Delaplaine, for the Court, said in Kiser v. Eberly, supra, 200 Md. at 248:

   "We specifically hold that land may be sufficiently described by a particular name by which [*30] it is known in the locality in which it is located, if it distinguishes [**527] the land from all other property and the boundaries are well defined by reputation.  This rule is an application of the maxim, certum est quod certum [***11]  reddi potest.  When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they existed at the time the negotiations took place and the instrument was executed, are disclosed, then if the meaning and application of the instrument, read in the light of those circumstances, are clear and certain, the parties will be bound by it as a sufficient contract."

   Szaleski and Fish found themselves mired in the same bog of uncertainty.  As vendees, they thought the property line was to be drawn in one fashion, while the vendors thought it was to be drawn in another.  Szaleski's contract was of no help, since an extension of the fence line referred to in the contract would have projected a result unacceptable to either party.  Unfortunately, there were no circumstances which could be relied upon to make certain what from the commencement of the transaction was shrouded in uncertainty.

   Decree affirmed, costs to be paid by appellants. 

HADJIS et ux. v. ANDERSON, Attorney Named in Mortgage 
No. 122, September Term, 1970
 
Court of Appeals of Maryland
 
260 Md. 30; 271 A.2d 350; 1970 Md. LEXIS 739

 December  9, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order overruling exceptions reversed, case remanded for further proceedings conformable with this opinion.  Costs on appeal to be paid by appellee, costs below to abide the result.

CORE TERMS:  mortgage, mortgagee, mortgagor, installment, monthly payments, mortgage debt, default, indebtedness, reduction, maturity, insurer, right to retain, acceleration, insured, chancellor, motion to dismiss, extinguishment, mortgaged, foreclosure, instituted, instalment, exhausted, successors, windstorm, adjusters, monthly, notice, assigns, policies of insurance, accelerated

COUNSEL: Nicholas J. Fotos for appellants.

   Richard G. Anderson, with whom were Anderson & Anderson on the brief, for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*31] [**351] Mr. and Mrs. George C. Hadjis (Hadjis), regarding themselves as having been badly used by Wellham Building and Loan Association, Inc. (Wellham), which held the mortgage on property owned by them, filed exceptions to the ratification of the report of sale filed by the attorney named in the mortgage, who had foreclosed the mortgage and sold the property for $20,000.  From an order of the Circuit Court for Anne Arundel County granting the motion [*32] to dismiss which Wellham made at the end of Hadjis' case and overruling Hadjis' exceptions, this appeal was taken.

   The facts underlying the controversy can be briefly told.  On 6 January 1966, Hadjis borrowed $24,000 from Wellham.  The loan was secured by a purchase money mortgage on an improved quarter-acre tract in Glen Burnie.  The mortgage provided for the payment of 6% interest and called for monthly payments [***3]of $225 commencing 20 February 1966 to be applied to the payment of interest; then to the payment of taxes, insurance premiums and public charges; and finally, to the reduction of principal.  Among the covenants of the mortgage was an undertaking "to keep the buildings on the premises insured against loss by fire and windstorm and all hazards for the benefit of the Mortgagee, its successors or assigns, in some company acceptable to [Wellham], its successors or assigns, to the extent of its lien thereon, and to deliver the policy and all renewal receipts to [Wellham], its successors or assigns * * *." Two policies of fire and extended coverage insurance on the property were written by Insurance Company of North America (the Insurer) in the total amount of $20,000.  Wellham was identified as the mortgagee in each policy, and each provided, in substance, that loss would be payable to Wellham, as its interest might appear, subject to the provisions of the usual mortgagee clause attached to the policy.

   An examination of Wellham's ledger card, introduced in evidence below, shows that Hadjis had kept his monthly payments current or had brought them to date through most of 1966 and[***4] 1967, but that by the end of 1967, had begun to run one or two months behind.  In December of 1967, he made an additional borrowing from Crest Investment Trust, Inc. (Crest), secured in part by a second mortgage on the property.  The monthly mortgage payment due 20 September had been paid only in part and the October payment was unpaid when, on 18 November 1968, the improvements on the premises were destroyed by fire.  There were no further payments until [*33] late December, when the October and November installments were met.  In February, the December installment was paid in part.

   Meanwhile, efforts to adjust the fire loss were under way, which resulted in the recovery of $8,922.68 from the Insurer, a portion of which was claimed by the firm of public adjusters who had represented Hadjis.  In February, 1969, Wellham sent the Insurer's checks to Hadjis with instructions to obtain the endorsements of Crest and of the public adjusters, to endorse them himself, and to return them to Wellham.  When the checks were not returned, Wellham brought a declaratory action in the Circuit Court for Anne Arundel County against Hadjis, the other payees of the checks and the Insurer, which[***5] sought to impress an equitable lien on the insurance proceeds.  Hadjis and Crest failed to answer; a decree pro confesso was entered against them; Hadjis paid the public adjuster's fee, and the case was ultimately settled when the checks for $8,922.68, properly endorsed, were delivered to Wellham.

   What happened next sowed the seeds of this controversy.  On 11 June, Wellham applied $424.68 of the insurance proceeds to the arrearages of interest on the mortgage, bringing these payments to date, and applied the balance, or $8,498.00, to the reduction of the principal debt, thus [**352] reducing it from $21,234.12 to $12,736.12.  We have not been able, on the record before us, to determine the amount by which payments in reduction of principal were in arrears on 11 June, but it is fair to assume that they approximated $500.00, so that the balance of the insurance proceeds remaining in Wellham's hands was about $8,000.00.

   The record is scanty as to how this came about.  Hadjis testified -- and his testimony was not controverted -- that when he delivered the insurance checks to Wellham's counsel a discussion took place:
 
 "[W]hat I did tell them is this that I will sign[***6] the checks over to you provided I will have time [*34] to sell my properties, in other words not to pay any monthly installments as they fall due but be paid from the proceeds of the checks I had given him until I sell it or refinance the property.  What had caused me to do so and wanted them to apply them in this fashion was that Wellham Building & Loan Association at one meeting with the Directors and Mr. Richard Anderson present there indicated they would not allow me to rebuild or repair the place because they said, 'We don't want you to put good money into the burnt building,' and this was told by the President, Mr. Cromwell, and in another instance I was told [point] blank, 'We don't want you to be -- we don't want to have you here in our mortgage -- in our -- with our Association.  You are a bad payer.'"

   Hadjis continued:

   "After I delivered the checks to the -- to Mr. Marvin Anderson [counsel for the Association] and we had our little brief discussion that evening, he said, 'I will see what I can do with the Association,' and that was the last I heard from them.  No notification that how they applied the monies, the proceeds towards the account or anything else."[***7]

   Hadjis' testimony was that the only notice he received thereafter was a letter of 3 November 1969, advising him that the foreclosure proceeding had been instituted.

   Ernest R. Smoot, Secretary of Wellham, was called as a witness by Hadjis.  He testified on direct examination:
 
"[Q] At whose direction did you post in this manner [by crediting principal with $8,498 on 11 June 1969], sir?
 
"A. Whenever there is a fire loss then the proceeds of the fire insurance policy are usually applied to the principal of the mortgage.
 
[*35] "[Q] And this is the policy that you applied in this case?
 
"A. I have applied that for thirty-five years in the banking and building and loan business.
 
"[Q] And this is why you applied [it] in this case because of policy?
 
"A. That's the policy that should be applied."

   Bearing in mind that on review of the granting of a motion to dismiss, the evidence and the logical and reasonable inferences to be drawn therefrom must be taken in the light most favorable to the plaintiff, Maryland Rule 535; Price v. Levin, 248 Md. 158, 235 A. 2d 547 (1967), on the record before him, the chancellor could have found the following[***8] facts.  Hadjis' mortgage secured a 15 year level payment direct reduction loan. n1 His payment record was erratic and the mortgage had been technically in default most of the time from late 1967 until the insurance checks were credited to the account on 11 June. Hadjis had reason to assume that he had worked out an arrangement for taking care of monthly payments from and after 20 June, [**353] because he testified no payments were demanded and no notice of acceleration was given.

 n1 In his testimony, Hadjis said the mortgage was for 20 years; however, an examination of Financial Publishing Co., Monthly Payment Direct Reduction Loan Amortization Schedules (9th ed. 1958), indicates that this was a 15 year loan.

   Because we are satisfied that the motion to dismiss should not have been granted, we propose to reverse the order overruling the exceptions and remand the case for further proceedings in order that Wellham may have the opportunity to make a record justifying the action it took, if it can.  Because[***9] it may be of assistance to the chancellor at the new hearing, and may minimize the likelihood of a further appeal, we propose to summarize what we conceive to be the law applicable to the facts in the record before us.

   We do not question Wellham's right to retain the insurance proceeds.  It was an insured named in the policy [*36] and had the right to retain such of the proceeds as did not exceed the amount of the mortgage debt, Federal Land Bank of Baltimore v. Cosimano, 165 Md. 333, 168 A. 886 (1933); Woody v. Lytton Savings & Loan Ass'n, 229 Cal.App.2d 641, 40 Cal. Reptr. 560 (1964). If the proceeds were to be applied to restoration, this would have had to be done by agreement between Wellham and Hadjis, since no procedure was spelled out in the mortgage.

   Once it is granted that Wellham had the right to retain the proceeds, there follows the question, how were they to be applied?  It is abundantly clear that the application of the insurance proceeds was not governed by the terms of the mortgage, but that the determination was made on the basis of what Mr. Smoot described as "policy," for which we can find no support in the law.  At any time after 20 September 1967[***10] and prior to 11 June 1969, Wellham could have given notice that it proposed to accelerate the maturity of the mortgage because of continuing delinquency and could have demanded payment of the debt.  This it did not do.  Even the letter which Wellham wrote to Hadjis on 13 February 1969 threatening foreclosure was predicated on Hadjis' failure to deliver the insurance checks.  Presumably this was cured when Wellham accepted the checks.

   As we see it, in the absence of an appropriate provision in the mortgage, Wellham had at least three alternatives open to it when it received the checks:
 
(i) It could have suggested to Hadjis that it would have been willing to hold $8,498.00 in escrow, and with Hadjis' consent or at his direction, could have applied this sum to Hadjis' monthly payments of $225 until the sum was exhausted, when payments would again commence.
 
(ii) It could have advised Hadjis that it would apply the $8,498.00 to the first installments of principal to be due thereafter, until the sum was exhausted by such applications.  Until such time, Hadjis' monthly payments would have been $63.68 (6% [*37] on the reduced principal balance of $12,736.12) together[***11] with whatever amount was required to keep the expense account for taxes and insurance premiums current.  At such time as the $8,498.00 had been exhausted, Hadjis' monthly payments would revert to $225.
  
(iii) It could have advised Hadjis that it proposed, if he would consent, to apply $8,498.00 to the satisfaction of the last installments of principal due under the mortgage, and that the amount of his monthly installments would continue to be $225.

   Hadjis apparently thought that he had accomplished a resolution of the problem based on alternative (i).  That there was a communications gap of major proportions, as the chancellor noted in his oral opinion, cannot be doubted. Perhaps Hadjis would have been well advised not to let the matter lie in limbo, but in all fairness, sophistication in matters of mortgage financing cannot be attributed to every borrower, who frequently feels that he must dance to the tune called by the lender.  The lender's [**354] duty to communicate with its borrower may be a minimal one, but it exists, nonetheless.

   Alternative (ii) would have been the fairest one, since it would have given Hadjis credit for Wellham's use of the insurance[***12] proceeds during the term of the mortgage.

   On the record before us, we cannot tell what course Wellham intended to pursue.  The ledger card contains a single entry on 20 June of $63.68 in the column headed "interest." If Wellham is able to show that it formally adopted alternative (ii) and billed Hadjis for interest in this amount commencing 20 June and that he failed to pay, we could not fault the foreclosure.

   There is a lurking possibility, however, that Wellham may have decided to adopt alternative (iii), and apply the $8,498.00 in satisfaction of the last installments of principal, and somehow persuade Hadjis to continue monthly payments of $225.  This, of course, would have amounted to a unilateral modification of the mortgage [*38] contract, for it would have substantially shortened the 15 year term for which the loan was made.

   Our conclusion that Wellham had no right to foreclose on the basis of the record before us is supported by authority.  In Cottman Co. v. Continental Trust Co., 169 Md. 595, 182 A. 551 (1936), Cottman had mortgaged nine tugboats to secure an issue of debentures.  Three of the tugs were damaged and repaired at Cottman's expense.  Recovery[***13] in the amount of $4,263.00 was had on policies of insurance, which was claimed by Continental Trust Company under a provision of the mortgage that policies of insurance were to be "properly endorsed so as to protect the interest of the mortgagee or trustee." The mortgage did not provide how the insurance recovery was to be applied or used. In the course of an opinion holding that Cottman Company, having repaired the boats, was entitled to the insurance proceeds, the Court said, 169 Md. at 601:

   "The general rule is that where property is insured under these circumstances, and a total loss occurs, the mortgagee is entitled to retain the insurance proceeds, and apply them to the extinguishment of any then existing overdue indebtedness, or to future installments as they become due." (emphasis supplied)
 
and cited with approval Thorp v. Croto, 79 Vt. 390, 65 A. 562, 10 L.R.A. (n.s.) 1166 (1907).

   Admittedly, this was dicta, not necessary to the result reached in Cottman, but in accord with the weight of authority.  Thorp held that a mortgagee who recovers on a policy of fire insurance maintained by a mortgagor for the benefit of the mortgagee must apply the[***14] proceeds of the policy to the extinguishment of the mortgage debt as it becomes due.  To the same effect is Zeigler v. Fed. Land Bank of Houston, 86 S.W.2d 864 (Tex.Civ.App. 1935); but compare Lee v. Murphy, 253 Cal.App.2d 205, 61 Cal. Reptr. 174 (1967), where the rule of Thorp was held to have been modified by agreement, and Terraqua Corp. v. [*39] Emigrant Industrial Savings Bank, 190 Misc. 474, 75 N.Y.S.2d 453 (1947), aff'd 273 App. Div. 254, 76 N.Y.S.2d 610 (1948), where a different result was ordained by statute.  See also, Fergus v. Wilmarth, 117 Ill. 542, 7 N. E. 508 (1886).

   2 Jones on Mortgages § 1164 at 637-38 (8th ed. 1928) states the general rule: 

   "* * * Thus, for instance, money paid upon a policy of insurance, obtained by the mortgagor for the benefit of the mortgagee, for a loss by fire, can not be applied to the payment of the debt, if it be not due, without the consent of the mortgagor. * * *

   * * *

   "Where buildings on the mortgaged premises are insured for the benefit of the mortgagee he must, upon collecting the insurance money, hold it and apply it upon the indebtedness as it falls due, [**355] unless the mortgagor agrees [***15]to a different application."
 
To the same effect is 5 Couch on Insurance § 29.94 at 377 (2d ed. 1960):

   "It is not clear to what extent the mortgagee may or must apply the proceeds of insurance to the payment of a mortgage debt which is not due at the time he receives the proceeds of insurance.  Where the mortgage debt is represented by a series of notes it has been held that the proceeds are applied to the payment of the interest due on all the notes secured by the mortgage and the balance appropriated to the payment pro tanto of the principal of the unpaid note first payable.  In contrast, there is authority that the mortgagee cannot apply money received by him to the payment of an unmatured debt without the consent of the mortgagor and that a mortgagee, for whose benefit insurance is taken [*40] out by the mortgagor, must, upon collecting the proceeds, hold the fund and apply it upon the indebtedness as it falls due, unless the insurer consents to a different application.  Likewise a mortgagor's request that the insurance proceeds be applied to the payment of a past-due instalment and an instalment to become due precludes the mortgagee from applying them to the[***16] payment of principal not due.

   "Generally, where a mortgagee receives the proceeds of insurance on property under a policy for his benefit containing a 'loss payable' clause, he may, where the loss was total and the mortgagor was in default of the security impaired, retain and apply the proceeds to existing overdue indebtedness or to future instalments as they become due."

   Similar expressions may be found in 5A Appleman, Insurance Law and Practice, § 3386 at 270, § 3405 at 316 (1970) and in 36 Am. Jur. Mortgages, § 339 (1955).

    Crone v. Johnson, 240 Ark. 1029, 403 S.W.2d 738 (1966) dealt with a problem substantially similar to the one before us.  In Crone, improvements on the mortgaged premises were damaged by windstorm. The insurance company drew a check payable jointly to the mortgagor and mortgagee, who could not reach agreement as to the manner in which the insurance proceeds were to be applied.  The mortgagee gave notice of the acceleration of the obligation and instituted foreclosure proceedings.  In the course of an opinion remanding the proceeding and holding the attempted acceleration a nullity and the foreclosure to have been improvidently instituted, [***17] the Court said:

   "Even though insurance is payable to the mortgagee as his interest may appear, it does not follow that the mortgagee is entitled to apply the money in any way he chooses.  Bonham v. Johnson, 98 Ark. 459, 136 S. W. 191 (1911). In a [*41] proper case -- and we regard this as such a case -- the funds may be used to pay current installments as they fall due.  Appleman, Insurance Law & Practice (1941) § 3386; Zeigler v. Federal Land Bank, 86 S.W.2d 864 (Tex.Civ.App. 1935); Thorp v. Croto, 79 Vt. 390, 65 A. 562, 10 L.R.A.,N.S., 1166, 118 Am.St.Rep. 961, 9 Ann.Cas. 58 (1907). Here that course achieves an altogether equitable result.  Mrs. Johnson [the mortgagee] has the benefit of the insurance proceeds in the reduction of the mortgage debt, while Crone [the mortgagor] receives an interruption in the monthly payments at a time when he needs to use his income for repairs.

   "Similar principles of justice permit a court of equity to protect the debtor against an inequitable acceleration of the maturity of the debt.  Johnson v. Guaranty Bank & Tr. Co., 177 Ark. 770, 9 S.W.2d 3 (1928). Here the misfortune of the windstorm ought not to cause Crone to lose his equity[***18] in the property.  The insurance money should have been applied to prevent the default that Mrs. Johnson relied upon in declaring the entire indebtedness payable at once." 403 S.W.2d at 740.

   [**356] The only possible justification of Wellham's position might have been that the maturity of the mortgage debt had been accelerated by one or another of Hadjis' delinquencies.  Even conceding that the maturity of the debt could have been accelerated under the provisions of the mortgage, had Hadjis been in default in the performance of any covenant for 30 days, it is clear that an acceleration clause is not self-operating, since it is inserted for the protection of the mortgagee, who may or may not elect to rely upon it, Better v. Williams, 203 Md. 613, 102 A. 2d 750 (1954); Kleiman v. Kolker, 189 Md. 647, 57 A. 2d 297 (1948); 59 C.J.S. Mortgages § 495 (5) at 790, and that a mortgagee must take some positive action to show [*42] that it intends to accelerate the maturity of the obligation.  On the record before us, there is no evidence that Wellham did this prior to the institution of the foreclosure proceeding when Hadjis believed any default had been cured by the[***19] receipt of the insurance proceeds.

   Order overruling exceptions reversed, case remanded for further proceedings conformable with this opinion.  Costs on appeal to be paid by appellee, costs below to abide the result. 

MARSHALL v. WOODS 
No. 168, September Term, 1970
 
Court of Appeals of Maryland
 
260 Md. 15; 271 A.2d 357; 1970 Md. LEXIS 736

 December  8, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Beardmore, J.

DISPOSITION: Judgment affirmed; appellant to pay the costs.

CORE TERMS:  franchise, summary judgment, arbitration, stock, material fact, Maryland Rule, promissory note, genuine, favorable, entitled to summary judgment, common stock, declaration, terminated, depositions, revocation

COUNSEL: Submitted by Irving B. Grandberg for appellant.

   No brief filed on behalf of appellee.

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

OPINIONBY: SMITH

OPINION: [*16] [***2] [**358] Appellant Webster Marshall (Marshall) complains that summary judgment on a promissory note should not have been entered against him.  We shall affirm.

   The declaration of the appellee, Lee A. Woods (Woods), was based on a promissory note dated April 1, 1967, in the amount of $20,000.00.  Pursuant to Maryland Rule 610, he filed a motion for summary judgment with the declaration. The motion was supported by the affidavit and he gave the notice as required in each instance by Maryland Rule 610.  The affidavit said in part:
 
"[The] Note was given in consideration for the sale of common stock of Whitehouse Caldwell, Inc., a Virginia corporation.  The Note is in default in that no part of the principal or interest [*17] has been paid, although demand has been made in due course."

   After Woods' exception to Marshall's demand for particulars had been sustained, Marshall made a motion for arbitration to which was appended the agreement of April 1 relative to the sale by Woods to Marshall of the common stock of Whitehouse Caldwell, Inc.  Neither the motion nor the contract refuted Woods' allegation.

   The answer to the motion for summary judgment was not filed until[***3] exactly six months after the suit was filed.  Pleas were filed about two weeks previously.  This Court has from time to time chided the Bar for its inattention to the Maryland Rules of Procedure.  See, for instance, the very recent case of Isen v. Phoenix Assurance Company, 259 Md. 564, 270 A. 2d 476 (1970). It would appear that the answer of Marshall, prepared by former counsel, was not filed in strict compliance with the timetable contemplated by Maryland Rule 610.

   The affidavit in opposition to the motion for summary judgment stated:

   "The promissory note upon which this suit is based was executed by me in consideration of the purchase of the stock of Whitehouse Caldwell, Inc., a Virginia Corporation.  This stock was purchased in accordance with the terms of a stock purchase agreement which provided that the corporation's sole asset was to be the Mister Softee master franchise for the Virginia-North Carolina area. Following the purchase of this stock and execution of the promissory note in question, I learned that the Mister Softee franchise had been terminated prior to my purchase of the stock as evidenced by the attached letter marked Exhibit A, therefore, the stock represented[***4] no tangible asset and was totally worthless.  Consequently, the promissory note upon which this suit is based lacked a legal and valid consideration."

   [*18] The letter referred to as "Exhibit A" said that Woods could not transfer the franchise without approval of Mister Softee, that the approval was never given, that the last royalties paid were for the month of March, 1967, and "the authorized franchised Distributorship" was "terminated in March 1967", both of which dates are consistent with the April 1, 1967, contract.

   A demand for admission of relevant facts was filed by Marshall.  No answer was filed [**359] by Woods.  After a hearing relative to a motion to compel arbitration and as part of an order relative to arbitration, the circuit court directed that the time for answering the demand for admission (which had already expired) should be extended "until completion of arbitration, or until the Court rules that the Defendant has failed to take substantial steps [to arbitrate]". When the court subsequently ruled that Marshall, who initially requested arbitration, had "failed to take substantial steps" in that direction, summary judgment was entered against Marshall. [***5]

   Marshall here points to that portion of Code (1968 Repl. Vol.), Art. 7, § 1 which provides that written agreements to submit a matter to arbitration are "valid, enforcible and irrevocable, save upon such grounds as exist at law * * * for the revocation of any contract" (Marshall's emphasis), states that the allegation here is lack of consideration which is a ground "for the revocation of the note as well as the agreement", and concludes, "[N]o arbitration was available in this case by law, under the alleged and admitted facts, set forth in the pleadings." For purposes of our decision we shall assume, without deciding, that Marshall was correct in this regard.

   For purposes of the decision we likewise shall regard as admitted the relevant facts concerning which demand was made.  They were:
 
   "1. The note upon which suit has been brought herein, is part of a transaction wherein a transfer was to be made by the Plaintiff and the Corporation controlled by him of his [*19] alleged ownership for the states of Virginia and North Carolina known as Mister Softee franchise.

   "2. That at the time of the transaction and the date of said note; namely, April 1, 1967, neither the plaintiff[***6] nor the corporation aforesaid owned or had any further interest in the aforesaid franchise and could not transfer or sell the same.

   "3. That the owner of the franchise involved, of which the plaintiff or the corporation under his control formerly held franchises for the States of Virginia and North Carolina was and is Mister Softee, Inc., of Runnemede, New Jersey.

   "4. That the statements set forth in the attached photo copy of letter of Mister Softee, Inc. of Runnemede, New Jersey, dated July 10, 1968, are true."
 
The July 10, 1968, letter is also the letter to which reference was made in the answer to the motion for summary judgment.

   The contract between the parties stated in part:
 
"Seller makes no representation whatsoever as to the status of the Mr. Softee franchises held by Whitehouse Caldwell, Inc."
 
That the assets included something more than the Mr. Softee franchises is apparent when it is noted that the contract states:
 
"Buyer covenants that he will cause Seller to be advised on or about April 1, July 1, October 1, and January 1, of each year as to the number of Mr. Softee trucks the corporation has sold during that year and how many are in[***7] operation at these times under its Mr. Softee franchise."

   The law relative to summary judgment procedure was succinctly summarized by Judge Singley for the Court in Lipscomb v. Hess, 255 Md. 109, 257 A. 2d 178 (1969):

   [*20] "The limitations on summary judgment procedure are too well known to require elaboration.  It is not a substitute for trial but a hearing to determine whether a trial is necessary, Whitcomb v. Horman, 244 Md. 431, 224 A. 2d 120 (1966); Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 122 A. 2d 563 (1956), when there is no genuine controversy, Pullman Co. v. Ray, 201 Md. 268, 94 A. 2d 266 (1953). The purpose of the hearing is not to determine disputed facts, but to determine whether such issues exist.  Horst v. Kraft, 247 Md. 455, 231 A. 2d 674 (1967); Carroccio v. Thorpe, 222 Md. 38, 158 A. 2d 660 (1960); Tellez v. Canton R.R. Co., 212 Md. 423, 129 A. 2d 809 [**360] (1957); White v. Friel, 210 Md. 274, 123 A. 2d 303 (1956). If facts are susceptible of more than one inference, the inferences must be drawn in the light most favorable to the person against whom the motion is made, Lawless v. Merrick, 227[***8] Md. 65, 175 A. 2d 27 (1961), and in the light least favorable to the movant, Howard Cleaners of Baltimore, Inc. v. Perman, 227 Md. 291, 176 A. 2d 235 (1961); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 155 A. 2d 691 (1959)." Id. at 118.

   If Marshall wished to prevent entry of a summary judgment against him, it was incumbent upon him to present such evidence as would give rise to a triable issue of a material fact. To do this he was obliged to show by precise facts admissible in evidence that there was a genuine issue as to a material fact. Foreman v. Melrod, 257 Md. 435, 441, 263 A. 2d 559 (1970); Fishman Const. Co. v. Hansen, 238 Md. 418, 422-23, 209 A. 2d 605 (1965); and cases cited in Fishman. This Court has made abundantly plain that a mere formal denial by the defendant of a plaintiff's claim is insufficient to prevent entry of summary judgment in favor of the plaintiff.  Meola v. [*21] Bethlehem Steel, 246 Md. 226, 239, 228 A. 2d 254 (1967); Evans v. Johns Hopkins Univ., 224 Md. 234, 238, 167 A. 2d 591 (1961); Burrell v. Frisby, 212 Md. 181, 185, 129 A. 2d 75 (1957); Tellez v. Canton Railroad Co., 212 Md. 423, 427, 129 A. [***9] 2d 809 (1957); and Frush v. Brooks, 204 Md. 315, 320-321, 104 A. 2d 624 (1954).

   The pleadings, depositions and admissions on file, together with the affidavits, do not show a genuine dispute as to any material fact. The only attempted dispute is that relative to the franchises. The contract clearly stated there was no representation as to the status of the franchises. Accordingly, Woods was entitled to summary judgment. It is not enough to claim a defense.  Facts must be shown.

   Judgment affirmed; appellant to pay the costs. 

HARDESTY et al. v. DUNPHY et al 
No. 97, September Term, 1970
 
Court of Appeals of Maryland
 
259 Md. 718; 271 A.2d 152; 1970 Md. LEXIS 847

 November  18, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order affirmed.  Costs to be paid by the appellants.

CORE TERMS:  zoning, neighborhood, rezoning, shopping center, residential, shopping, mile, route, spot, shop, comprehensive plan, subject property, reclassification, inaccessibility, distance, normally, minutes, zones, projected, partially, barber, public need, prerequisite, quotation, excerpt, walk, reasonably probable, substantial change, foreseeable future, residential district

COUNSEL: William E. Kirk, with whom were Townshend & Kirk on the brief, for appellants.

   Ronald M. Naditch for appellees.

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

OPINIONBY: DIGGES

OPINION: [*719] [**152] This attempt to obtain spot zoning for a local shopping center in a rural-residential area comes to us in a familiar setting with familiar arguments.  The appellant Hardesty is in the process of developing a 100[***3] acre residential [*720] subdivision near Davidsonville in a section of Anne Arundel County that has been zoned and has remained predominantly agricultural since 1952.  Of this, he set aside a 4.38 acre tract facing on Maryland Route 214 for future use, partially because of its topography and partially because its location next to a tavern and across the road from a barbecue pit (both nonconforming uses) made it undesirable for the erection of $30,000 to $50,000 homes.  Although there was a general store and a part-time barber shop (nonconforming uses) one half mile away at the [**153] intersection of Routes 214 and 424, Mr. Hardesty felt that the presence of these facilities would not impede his application for commercial rezoning and the erection of a small shopping center, composed of a real estate office, antique shop, beauty salon, food market and a barber shop -- all for the convenience of the neighborhood.

   Mr. Hardesty's arguments before the Planning and Zoning office (which denied his application), before the Board of Zoning Appeals (which granted it), and before the Circuit Court for Anne Arundel County (which reversed the Appeals Board) were based on substantial[***4] change in the character of the neighborhood and a need for such facilities.  In particular the appellant attempted to show that since 1952 the population in the three mile area surrounding the subject property had increased 100%, with a current population of 500 homes.  This had been substantially precipitated by the opening of the Davidsonville or Route 424 interchange of the John Hanson Highway, the main route between Washington and Annapolis.  There was also anticipation of future change.  The Appeals Board was impressed with the "continuing residential growth" of the region, taking "cognizance of the areas already subdivided in the neighborhood, and the purchase of the large tract by the School Board." Hardesty himself had only completed six of eighty-two projected homes, while two other large nearby tracts, one a massive 2000 acre subdivision, had been earmarked for development.

   [*721] Finally, there was conflicting evidence of a local need for the proposed facilities.  This amounted to a demonstration that comparable and existing shopping centers were six and eight miles from Davidsonville and the nearest community shopping center projected by the county's master plan will [***5]be "three miles distant from the site," to use appellant's words.  The Board of Appeals found that the Davidsonville general store was only used for emergency purposes and some witnesses claimed that its daytime-only hours were inconvenient.  Mr. Hardesty points out that "if the Davidsonville store, which is non-conforming, should be destroyed by fire, there would be no service at all and no zoning on which to construct a new facility." While the first half of his trenchant observation may be true, the trial court's observation that there were at least three partially used heavy commercial zones within three miles of the subject property removes some force from this argument.  One of these was at the intersection of Riva Road and Route 214, within 1000 feet of the appellant's proposed commercial area.

   The thorough opinion of the trial court (Childs, J.) completely rejected the appellant's argument that there was a change in the character of the neighborhood, and we see no need to elaborate at great length on the proposition that "a mere increase in population does not prove a change in the character of the neighborhood to justify another type of rezoning." County Comm'rs v. Fairwinds,[***6] 230 Md. 569, 572, 187 A. 2d 845 (1963), which was recently reaffirmed in Himmelheber v. Charnock, 258 Md. 636, 267 A. 2d 179 (1970), Chapman v. Montgomery County Council, 259 Md. 641, 649, 271 A. 2d 156 (1970), and Cabin John Limited Partnership v. Montgomery County Council, 259 Md. 661, 672-73, 271 A. 2d 174 (1970), the latter two opinions having been filed simultaneously with this case.

   Except where allowed by statute or ordinance or where it is a genuine factor in changes to sub-categories of residential use, Chapman, supra at 648, we are of the opinion [*722] that the effects of population increase per se should normally be "corrected by a resurvey of the land use map." Zinn v. Board of Zoning Appeals, 207 Md. 355, 114 A. 2d 614 (1955).
 
   Another familiar argument the appellant places before us is the prospect of future development.  We find that this is the least substantial aspect of his application.  The cases following in the wake of Jobar Corp. v. Rodgers Forge, [**154]236 Md. 106, 202 A. 2d 612 (1964), have developed two criteria for the consideration of the impact of future changes in rezoning application.  The first prerequisite is that[***7] the anticipated change must be "reasonably probable of fruition in the foreseeable future." Jobar, supra at 112. The second prerequisite is that the imminent change must be relevant, that is, it must be such that if it had occurred in the past it would have justified rezoning, e.g., Brenbrook Constr. Co. v. Dahne, 254 Md. 443, 449, 255 A. 2d 32 (1969). See particularly Judge Hammond's dissenting opinion in Jobar, 236 Md. at 130. Thus, if past population increase will not justify individual rezoning, it is less than persuasive to assert that anticipated population increase will do so.  The projected residential subdivisions in this case, including the 2000 acre tract, are not reasonably probable of fruition in the foreseeable future, and even if they were, they could not serve as a basis for piecemeal reclassification. The recent purchase of the large tract by the School Board, which so impressed the Board of Appeals, also fails to meet the two requirements of the Jobar argument, for even if there was some substantial indication a school was actually going up, a school is that type of use which is permitted in residential zones in the Anne Arundel County Code, §§ 33-38, [***8] 33-46 (1952).  See also Baker v. Montgomery County, 241 Md. 178, 215 A. 2d 831 (1966). As for the suggestion that access to the John Hanson Highway will further open up the area, it is true that the presence of new roads can have a substantial impact on the character of a neighborhood, Finney v. Halle, 241 Md. 224, 216 A. 2d 530 (1966), Beth Tfiloh v. Blum, 242 Md. 84, 218 [*723] A. 2d 29 (1966), but here all evidence indicates no impact except a continuing pattern of further increase in residential population.

   Another of appellant's arguments which is no stranger to this Court is that there was a present need in the residential community for his proposed facilities.  He claims that since the Board has found such need, its action was justified and did not amount to illegal spot zoning. He relies heavily on our recent decision in Miller v. Abrahams, 257 Md. 126, 262 A. 2d 524 (1970) to support this proposition.  We believe that our opinion in that case, as expressed by Judge McWilliams at pages 129-30, not only contains the best statement of appellant's position but also the best refutation of it.
 
"We have held, of course, that 'a mere increase in population[***9] does not prove a change in the character of the neighborhood to justify another type of zoning.' County Commissioners v. Fairwinds Beach Club, 230 Md. 569, 572 (1963). By way of riposte [the appellant] quotes from the opinion of Judge Barnes, who spoke for the Court in Bosley v. Hospital for Consumptives, 246 Md. 197, 204 (1967). The excerpt is as follows:
 
'The substantial development of housing units and the concurrent growth in population could reasonably lead to need for additional commercial zoning in the area to supply the wants of the increased population.' (Emphasis ours.)
 
"He buttresses the excerpt quoted above with a quotation from Cassel v. City of Baltimore, 195 Md. 348, 355-56 (1950):

   'On the other hand, it has been decided that a use permitted in a small area, which is not inconsistent with the use to which the larger surrounding area is restricted, although it may be different from that use, is not "spot zoning" when it does not conflict with the [*724] comprehensive plan but is in harmony with an orderly growth of a new use for property in the locality. The courts have [**155] accordingly upheld the creation of small districts [***10]within a residential district for use of grocery stores, drug stores and barber shops, and even gasoline filling stations, for the accommodation and convenience of the residents of the residential district. [Citing cases.]'
 
"Counsel should know that the quotation from Cassel is mere comment, well below the level of obiter dictum.  Indeed we held, in Cassel, that the reclassification of a single property so as to allow its use as a funeral home in a residential area was 'spot zoning,' especially since there was no showing of a public need for it.  See Minor v. Shifflett, 252 Md. 158 (1969). In Bosley the construction of Goucher Boulevard and Prince Road, the locations of which had not been determined when the zoning map was adopted, effected a dramatic change in the character of the neighborhood; moreover, there was proof of a need for additional commercial zoning. In the record before us the 'evidence' of public need is little more than wishful thinking and, in our judgment, too thin to make the issue fairly debatable.  In fact, it was conceded that there are 'extensive shopping facilities of all kinds on Liberty Road [2 1/4 minutes away] and on Reisterstown[***11] Road [3 to 3 3/4 minutes away].' Much was made of the notion that residents of the area would be able to walk to Abrahams' shopping center. The short and melancholy answer to this is the common knowledge that it is a poor and disadvantaged citizen indeed who walks to a shopping center in this day and age."

   A few points should be mentioned in applying Miller to this case.  The neighborhood in a semirural or exurban [*725] area is larger and more fluid than in a city or suburban area.  Moreover, although this Court has never dwelt at length on the abstract concept of need, we have pointed to a more precise definition of what is meant by the word "need" in the local shopping center case.  In Zinn v. Board of Zoning Appeals, 207 Md. 355, 362, 114 A. 2d 614 (1955) Judge Henderson, speaking for the Court, said: ". . . nor was there any convincing testimony of a need, in the sense of inaccessibility to other shopping centers or stores within a reasonable distance, as in Wakefield v. Kraft, 202 Md. 136." (Emphasis added.) See also Eckes v. Board of Zoning Appeals, 209 Md. 432, 440-41, 121 A. 2d 249 (1956). The existence in this case of shopping centers six[***12] and eight miles away (no more than 10 to 15 minutes travel time) in a rural setting suggests neither inaccessibility nor unreasonable distance. This observation is doubly fortified by the presence of three unused commercial zones within the three mile circle, one of which is 1000 feet from the subject property. See Messenger v. Board of County Commissioners, 259 Md. 693, 271 A. 2d 166 (1970).

   Even if we accept the Board's implicit conclusion that the distance to the presently existing shopping centers is unreasonable, in the passage quoted from Miller v. Abrahams, supra, it is abundantly clear that Cassel, the seminal case in this area, does not represent the proposition that need can serve as a substitute for change or mistake.  In all individual applications for reclassification, there must first be a finding of substantial change in the character of the neighborhood or mistake in the comprehensive plan. Yet this finding alone "merely permits the legislative body to grant the requested rezoning but does not require it to do so." Messenger v. Board of County Commissioners, supra at 704. It is then that the factor of need can play a significant role, for[***13] if there is no need whatsoever the rezoning might be arbitrary and capricious, see Wakefield v. Kraft, 202 Md. 136, 157, 96 A. 2d 27 (1953) (Sobeloff, [**156] C. J., dissenting) or, as is normally [*726]the case, the factor of need would be a "debatable question" to be weighed with other elements in determining the desirability of the rezoning. If there has not been a legally sufficient change or mistake, regional comprehensive rezoning is the only method available to provide for the needs of a nascent residential community.

   Order affirmed.  Costs to be paid by the appellants. 

GRADY v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD 
No. 91, September Term, 1970
 
Court of Appeals of Maryland
 
259 Md. 501; 270 A.2d 482; 1970 Md. LEXIS 825

 November  11, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment of the lower court affirmed; appellant to pay costs.

CORE TERMS:  trooper, driver, scene, claimant, resident, Judgment Fund Law, motor vehicle, passenger, unidentified, crash, tree, pole, liberal interpretation, irresponsible, peculiarly, remedial, motorists, police investigation, front seat, phantom, ascertain, interview, oncoming, happened, arrived, radio, curve, urge

COUNSEL: Harvey B. Steinberg, with whom were Steinberg & Seres on the brief, for appellant.

   Robert J. Thieblot, with whom were Donald C. Allen and Allen, Thieblot & Alexander on the brief, for appellee.

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

OPINIONBY: FINAN

OPINION: [*502] [**482] Appellant Grady was a rear seat passenger in an automobile which was forced off the road in Anne Arundel County on March 28, 1969, by an oncoming "phantom motor vehicle." Testimony indicated that the appellant and two former Army friends were driving northbound on Whiskey Bottom Road near Laurel, about three-fourths of a mile from Route No. 198.  At the point where there is a sharp left curve in the road they were forced to swerve to the right to avoid an oncoming vehicle.  The car in which Grady was a passenger came to an abrupt halt upon striking a tree and a pole, and Grady was immediately rendered unconscious; he suffered lacerations and two broken vertebrae in[***3] his neck as the result of the accident.

   Trooper R. E. France of the Maryland State Police was summoned to the scene by radio, and arrived approximately one-half hour after the accident.  When he arrived, the appellant, the driver and the front seat passenger were being removed to the hospital by the Laurel Rescue Squad, so that the trooper was unable to speak to any of them at that time.  Trooper France testified at the hearing below that he conducted an investigation at the scene "as to witnesses and so forth, anyone that had seen the accident or seen anything which could give me any information as to another vehicle, and I was unable to locate anything." (It should be noted at this juncture that Judge Childs, presiding in the lower court, stated that he believed the appellant's [**483] testimony concerning the unidentified automobile, and we assume that such an automobile did exist for the purposes of this decision.) Trooper France also noted that the area surrounding the scene of the crash was a residential one, and that there were approximately four houses "back off the roadway" at the curve in the road.

   [*503] After the investigation at the scene of the accident Trooper [***4]France proceeded to the hospital and interviewed the driver and front seat passenger, who were unable to provide any description of the other vehicle. France was unable to interview the appellant in the hospital, as he was undergoing treatment at the time.  Subsequently, Grady was released and returned home to New Jersey without ever having contacted the Maryland State Police.

   Grady filed a petition in the Circuit Court for Anne Arundel County to allow suit against the Unsatisfied Claim and Judgment Fund Board (Fund), and after a hearing and submission of authorities by counsel, Judge Childs denied Grady permission to sue on the ground that he had not made "all reasonable efforts" to identify the phantom vehicle and its owner and driver as required by the Maryland Code.

   The appellant contends that, where the police question witnesses at the scene and are unable to obtain a description of the vehicle or make further efforts at identifying that vehicle, the statutory requirement of making "all reasonable efforts" has been met, and the suit against the Fund should be allowed.  In effect, appellant would urge that where there is an unfruitful cursory police investigation the statute[***5] does not require the claimant to make any efforts on his own behalf.  We disagree, and affirm the ruling of the lower court.

   Our Unsatisfied Claim and Judgment Fund Law (Maryland Code (1967 Repl. Vol.) Art. 66 1/2, §§ 150-179) provides protection for the blameless victims of accidents caused by uninsured or irresponsible drivers. The reason for its enactment was stated by this Court in Maddy v. Jones, 230 Md. 172, 186 A. 2d 482 (1962) as follows:
 
"* * * It seems obvious that the Legislature intended, in enacting this statute, primarily to protect its own citizens, particularly those least able financially to bear the loss or injury inflicted by irresponsible or unidentified motorists, [*504] many of whose victims would otherwise require medical and welfare attention at public costs." 230 Md. at 179.
 
Our statute is patterned after New Jersey's (NJSA, Title 39, Chapter 6, §§ 61-91), and for this reason appellant Grady, a resident of New Jersey, is a "qualified person" under the terms of our statute. n1

n1 Section 150(g) of our statute provides protection to residents of other states which provide for recourse "of substantially similar character" to residents of Maryland.

[***6]

   This Court has many times stated that, in view of the remedial nature of the statute, it should be construed liberally in order to give effect to its beneficial purpose.  At the same time we have consistently stressed the importance of protecting the Fund from fraud or abuse.  See Hawks v. Gottschall, 241 Md. 147, 215 A. 2d 745 (1966); Unsatisfied Claim and Judgment Fund Board v. Holland, 241 Md. 294, 216 A. 2d 525 (1966); Mundey v. Unsatisfied Claim and Judgment Fund Board, 233 Md. 169, 195 A. 2d 720 (1963).

   The particular provision of the Code with which we are concerned in the case at bar is Article 66 1/2, § 167.  That section outlines procedures under which the victim of a hit and run accident may recover from the Fund.  As a condition precedent to its allowing an action against the Fund, the court must be satisfied that:

   "(f) All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either that the identity of the [**484] motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor vehicle without the owner's[***7] consent, cannot be established." Code (1967 Repl. Vol.), Art. 66 1/2, § 167 (f).
 
The above provision was enacted for the protection of the Fund, and it would therefore appear that the considerations [*505] which may dictate a liberal interpretation of the statute as a whole would not necessarily compel the same liberal interpretation of this particular subsection.  As we have previously stated in Mundey v. Unsatisfied Claim and Judgment Fund Board, supra, wherein we were called upon to interpret the notice requirements of the statute:
 
"* * * Rights conferred under this act are purely legislative creations, and (within constitutional limits) they may be made subject to such conditions as the Legislature may see fit to impose.  * * * The General Assembly may well have regarded this as a sufficiently liberal provision to carry out the beneficent and remedial purposes of the statute.  We see no basis for our attributing to the General Assembly an intention to be more generous than the ordinary meaning of the words it employed would import.  If it desires to go further, it can, of course, readily amend the statute.  The question of social policy, in our estimation, [***8] is peculiarly appropriate for legislative, not judicial, determination." 233 Md. at 174.

   In the case before us, the appellant did nothing at all to determine the identity of the other vehicle, its owner or driver. He urges that the state trooper made "reasonable efforts" in his investigation and was unsuccessful, and to require the appellant to do anything after a nonproductive police investigation would be a "subservience to technicality." In Mr. Grady's particular situation this is certainly a self-serving bootstrap argument, as he did not even inquire of the police as to whether there was any investigation or what the results of that investigation may have been.

   In our opinion, to allow Grady to equate "reasonable efforts," as required by the statute, with a pro forma negative police report about which he had made no inquiry and with which he was unfamiliar until the day of the hearing some three months after the accident, would be [*506] playing fast and loose with the intent of the statute.  The following excerpt from the cross-examination of Grady reveals his remarkable nonchalance concerning what happened:
 
"Q. Was there any collision with anything other than[***9] I think a tree and a pole?
 
"A. To my knowledge, no, I didn't even know we had hit a tree and a pole until this morning [day of the hearing] when I saw the accident report.  I wasn't even aware of that.  It happened and I was out.

   * * *
 
"Q. Did you talk to the police about this accident?
 
"A. No sir, I never talked to any police officer about this accident."

   This Court has recently denied recovery to a claimant who had failed to conduct any investigation after being forced off the road by an unidentified automobile.  In Hickman v. Unsatisfied Claim and Judgment Fund Board, 255 Md. 267, 257 A. 2d 426 (1969), Chief Judge Hammond, speaking for the Court stated:

   "The difficulty with these arguments is that the statute requires 'all reasonable efforts' to be made to ascertain the identity of the car involved and its owner and driver. It does not permit the injured person to be the judge of the need to investigate or of the probability of success." 255 Md. at 270 (Emphasis supplied.)
 
Although in Hickman the claimant never mentioned the mystery vehicle to the investigating officer, the case is similar to the instant case in many respects, and the[***10] language set forth above seems peculiarly applicable [**485]to the validity of the conclusion which we reach in this opinion.

   "Reasonable efforts" will differ according to the facts and circumstances of each case, and it is not a term which is easily defined or delineated.  Whether it would have been [*507] reasonable under the circumstances of this case to require the appellant to place an advertisement in a newspaper in an effort to locate potential witnesses or to personally interview the residents of the homes in the area need not be decided here. n2 At the very least, reasonable efforts in the case at bar would require the appellant to communicate with the State Police to determine whether or not they had even conducted any investigation, and that was not done.  In view of the fact that the appellant failed to take even this initial step, we need not decide whether he should have gone further. As in Hickman, we are not prepared to accept a total absence of any action by the claimant as "reasonable efforts."

n2 The testimony of Trooper France at the hearing below is not clear as to whether the people whom he questioned at the scene of the accident were passing motorists who had stopped or whether the local residents had come out of their homes at the sound of the crash. Neither is it clear who first reported the accident, but in view of the fact that Trooper France responded to a radio message, it would seem to be a logical point of inquiry, for one interested in taking "reasonable efforts" to identify the unknown vehicle, to ask of the police whether they had any information as to who placed the call to them.  It is entirely possible that the person who first reported the accident was an eyewitness to the crash.

[***11]

   Judgment of the lower court affirmed; appellant to pay costs. 

PEOPLE'S COUNSEL, PUBLIC SERVICE COMMISSION et al. v. PUBLICSERVICE COMMISSION OF MARYLAND et al. 
No. 41, September Term, 1970
 
Court of Appeals of Maryland
 
259 Md. 409; 270 A.2d 105; 1970 Md. LEXIS 819

 October  23, 1970, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Clarification Filed by Baltimore Gas and Electric Company on October 26, 1970; Per Curiam Filed October 30, 1970.  (Per Curiam at p. 435 Infra.)

PRIOR HISTORY:  
Three appeals in one record from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order reversed, with costs, and case remanded to the commission for further proceedings.

CORE TERMS:  site, excavation, generating station, plant, nuclear, commencement, earth, station, yard, cubic, generator, construct, fabrication, regulations, grading, engineering, general contractor, steam, certificate, generating, electric, preparation, unclassified, clearing, grubbing, tree, installation, turbine, substantial evidence, nuclear power plant

COUNSEL: Peter Parker, People's Counsel, Public Service Commission, part of appellants, and John M. Court, Assistant County Solicitor for Anne Arundel County, with whom were Phillip F. Scheibe, County Solicitor for Anne Arundel County, (Paul F. Borden, County Solicitor, on the reply brief), Michael R. Roblyer, Assistant County Solicitor for Anne Arundel County, on the brief for Anne Arundel County, another appellant, and [***3] James C. Cawood, Jr., on the brief for Chesapeake Environmental Protection Association, Inc. and Frank R. and Calpurnia S. Carter, other appellants.

   Charles R. Richey, General Counsel, Public Service Commission, for appellee Public Service Commission of Maryland.

   James W. Biddison, Jr., with whom were W. Robert Buchanan and Paul W. Davis on the brief, for appellee Baltimore Gas and Electric Company.

 JUDGES: Hammond, C. J., and Barnes, McWilliams, Finan, Singley, Smith and Digges, JJ.  Hammond, C. J., delivered the opinion of the Court.  Barnes and McWilliams, JJ., dissent.  Barnes, J., filed a dissenting opinion, in which McWilliams, J., concurred, at page 424 infra.

OPINIONBY: HAMMOND

OPINION: [*411] [**106] The Calvert Cliffs Nuclear Power Plant of Baltimore Gas and Electric Company (the Company) in Calvert County, Maryland, which recently has led to various differences of opinion, scientific and otherwise, is responsible for the question now before us for decision.  The legislature of 1968 passed Ch. 493 of the Laws of that year, which is now codified as § 54A of Art. 78 of the Code.  The statute became effective July 1, 1968, to provide in pertinent part[***4] that:

   "No electric company may begin the construction in Maryland of a generating station or any overhead transmission line designed to carry a voltage in excess of 69,000 volts, or exercise the right of eminent domain in connection therewith, without having first obtained from the [Public Service] Commission a certificate of public convenience and necessity for the construction of the station or line."

   The Commission is directed to hold a public hearing on a request for a certificate in the area involved, together with the local governing bodies of the area.  Final action is to be taken by the Commission only after due consideration of the recommendations of the governing bodies, the present and future needs for service, "effect on system stability and reliability, economics, esthetics, historic sites, and, when applicable, the effect on air and water pollution."

   It is agreed that the statute is prospective in operation, Amereihn v. Kotras, 194 Md. 591, 601, and the question presented is whether the Company began construction of the generating station prior to July 1, 1968.  After a hearing necessitated by a petition filed with it by the People's Counsel asking the[***5] Commission to require the [*412] Company to apply for the certificate required by § 54A, the Commission decided that construction had begun before July 1, 1968, and therefore the Company did not need a certificate in order to complete the generating station at Calvert Cliffs.  In the appeal to the Circuit Court for Anne Arundel County Judge Melvin, using a test of judicial review of a Commission order established by Code (1969 Repl. Vol.), Art. 78, § 97, Scope of Review, held that whether construction had begun before July 1, 1968, within the meaning of § 54A, was a mixed question of law and fact and that "this court is unable to say that the Commission's decision * * * is 'unsupported by substantial evidence on the record considered as a whole.'"

   The appellants, the People's Counsel, Anne Arundel County, individuals in the area involved, and the Chesapeake Environmental Protection Association, Inc. (its standing is not now challenged) contend that the question presented is solely one of law, rather than the mixed question of fact and law that Judge Melvin saw.  The case was decided in the Circuit Court on the record before the Commission, and the evidence before the Commission[***6] was the testimony of an engineer of the Company and an employee of the supplier of the nuclear steam supply system and several exhibits, such as the Calvert County Code. There is no dispute as to the facts and we think that the question presented to us is, on the record before us, essentially one of law.

   The Company produced testimony that (a) in December 1966 it agreed to buy from General Electric Company a $25,000,000 turbine generator (the testimony was that due to the long time required for manufacture and the "tremendous influx of orders to the turbine generator suppliers," it was necessary to have a "lead time" of [**107] some six years to assure delivery when needed); (b) in May 1967 it signed a memorandum of understanding with Combustion Engineering, Inc. for construction of the proposed plant's nuclear steam supply system (and thereafter made substantial progress payments from time to time); (c) about a week later the deed to the site was [*413] delivered; (d) three days later the Company made a public announcement of its intent to construct a two-unit nuclear power plant at Calvert Cliffs; (e) immediately thereafter the Company caused to be drilled core borings[***7] in the earth of the proposed site to determine the composition and utility of the ground; (f) in June 1967 the Company ordered a second generator from Westinghouse Electric Company at a price of $25,000,000; (g) on July 31, 1967 the Company hired Bechtel Corporation (Bechtel) "to provide services for engineering and construction for the Calvert Cliffs nuclear power plant" (there is nothing in the record to show whether the hiring was in writing or oral, how definitive it was as to scope and time, or what specific services were covered); (h) in August 1967 certain seismological studies at the site were contracted for; (i) in December 1967 Bechtel prepared a bar chart showing excavation scheduled for June 1968, and in February 1968 a master flow chart that also estimated that excavation would begin in June 1968; (j) in January 1968 the Company sought and received from Calvert County a permit to "construct a metal shed" on land adjacent to the site (later also acquired by the Company) to use in testing condensor tubes; (k) later in January 1968 the Company filed with the Atomic Energy Commission (AEC) an application for a permit to construct the nuclear generating station (such a permit[***8] is required by the Atomic Energy Act of 1954, 42 U.S.C. § 2235, before construction of a nuclear facility can lawfully be begun; n1 (1) lumber companies cut marketable [*414] timber in February 1968; (m) in April 1968 C. J. Langenfelder & Sons, Inc. (Langenfelder) began clearing and grubbing operations; (n) on June 6, 1968 Langenfelder, pursuant to oral directions from Bechtel, confirmed by letter and later by a written contract to do grading and excavation, began to move earth in order to level the site to an elevation of Plus 1.  From June 6 to June 30 Langenfelder moved 104,000 cubic yards of earth, the first of the same kind of an ultimate total of 1,850,000 cubic yards, labelled as "unclassified excavation" in both the contract between Bechtel (acting for the Company) and Langenfelder, and in Langenfelder's invoice to the Company.  The Company's engineer described "unclassified excavation" in contrast to "structural excavation" (both being called for by the contract, as were other categories such as "compacted fill") as "the more easily removed material," calling for a lower price than "structural excavation" which was to be "the very deep, hard to remove material," calling[***9] for a higher price.

n1 The Company application for the permit shows the location of the plant on the site, capacity and physical size of the plant and required information as to the nuclear aspects of the plant, and, in the words of the Company's engineer-witness, the application was "another way of indicating that the plant design had progressed to the point where we could then begin to clear the ground and begin to go into actual physical work on the site." In answer to a question whether the AEC "only views the construction of the plant from the standpoint of nuclear pollution," the witness replied:
"That is not wholly correct * * *.  More nearly, I think, would be [that] they examine all the structures in the plant, together with all the equipment, from many aspects, not only nuclear; but the plant has to be designed in accordance with their requisites to withstand earthquakes, to withstand tornadoes, to withstand hurricanes, to withstand tidal waves, all of these physical things, in addition to nuclear aspects of the design and location."

[***10]

   The record shows that the following events took place after July 1, 1968. (1) The Commission's regulations effective [**108] both prior to and after July 1, 1968, required that major construction projects of a utility be reported to the Commission within one month following the beginning of such construction. On July 17, 1968 the Company submitted a report showing that the construction period for the Calvert Cliffs plant would be from June 1968 to December 1974. (2) On April 17, 1970 the Commission granted the Company a certificate of Public Convenience and Necessity for the transmission lines from the plant. (3) The Calvert County Building Code requires, subject to penalty for non-compliance, all persons "before erecting or constructing any building in Calvert County" to apply for a building permit.  The application must set forth in detail the location of the site, the size, [*415] type of material and estimated cost of the building.  The Company sought and obtained from Calvert County in January 1969 a permit for a $20,000,000 two-unit electric generating plant.

   The petition of the People's Counsel in this case was filed with the Commission in May of 1969.  In the[***11] same month, AEC held a two-day hearing at Prince Frederick in Calvert County on the Company's application for a construction permit and several months later granted the Company a permit to construct a nuclear production facility.

   The Commission found that:
 
"the beginning of fabrication of the major component parts of the generating station and the excavation and other physical activity at the site, coupled with the preparation and development of complete plans and entering into a contract with the general contractor and a substantial amount of performance under that contract by the general contractor, constituted the beginning of construction prior to July 1, 1968, within the meaning of Section 54A of the Public Service Commission Law * * *."
 
It was these findings that Judge Melvin found to be supported by substantial evidence.

   We find the Commission's findings to be clearly erroneous.  Section 54A forbids "the construction in Maryland of a generating station" without a certificate. If it be assumed -- and we do not suggest that the assumption is the fact -- that the Company's contractual directions to suppliers to build generators to be used years later in a station[***12] later to be built is part of the beginning of construction of that then physically non-existent station, it is manifest that the construction of the generators was not to be done in Maryland.

   The Commission's findings attribute controlling significance to the moving of earth and other physical activity at the site coupled with the drawing of plans and the [*416] hiring of a general contractor. All of these things except "excavation," which we find to have been no more than levelling of the site, were entirely preliminary to the beginning of construction in Maryland of a generating station. They do show evidence of the Company's undeviating intent to begin and to complete the nuclear generating station on the chosen site -- indeed that intent is conceded without reservation by the appellants -- but in the determination of whether construction has begun, intent is but one of two tests and of itself is not sufficient.  In Rupp v. Earl H. Cline & Sons, 230 Md. 573, 578 (1962), dealing with the meaning of the phrase "commencement of [a] building" under Code (1957), Art. 63, § 15 (which gives a mechanic's lien claimant priority over a mortgage recorded after the commencement[***13] of the building), the Court analyzed the analogous cases of Brooks v. Lester, 36 Md. 65 (1872), Jean v. Wilson, 38 Md. 288 (1873), and Kelly v. Rosenstock, 45 Md. 389 (1876), and found the law to be clear:
 
"that before there can be the commencement of a building which would give a mechanic's lien claimant a preference over a recorded mortgage there must be (i) a manifest commencement of some work or labor on the ground which every one can readily see and recognize [**109] as the commencement of a building and (ii) the work done must have been begun with the intention and purpose then formed to continue the work until the completion of the building.  If either of these elements is missing then there has been no 'commencement of the building' within the meaning of § 15 of Art. 63."
 
Consequently, we think construction of a generating station has not begun within the meaning of § 54A of Art. 78 without the requisite physical evidence of construction on the site at the critical date, despite the fullest evidence of intent to complete the proposed structure.

   The making of plans and the entering into of contracts [*417] is not enough.  In Mayor [***14]  & C.C. of Balto. v. Shapiro, 187 Md. 623 (1947), we remarked that the issuance of a use permit where the permittee has not begun work does not create a vested right or prevent revocation of the permit.  In Bogley v. Barber, 194 Md. 632, 639 (1950) the owner had spent $248.50 on architect's fees and more money to demolish an old dwelling incident to site preparation. Judge Markell for the Court stated "it would be hard to say that mere expenditure for plans, without doing any work on the property itself [the proposed new structure], created a non-conforming use or any vested constitutional right * * *." In Francis v. MacGill, 196 Md. 77, 85 (1950), a permit was issued 21 days before the zoning law was changed to prohibit the proposed use.  The owners had commenced site preparation and well drilling.  The Court held that no rights had vested under the permit, quoting Rice v. Van Vranken, 225 App. Div. 179, 232 N.Y.S. 506, to the effect that "'Adoption of zoning ordinance ipso facto revokes permit for construction of building violating zoning restrictions, where no construction has been begun.'"

   Anne Arundel County v. Snyder, 186 Md. 342, 347 (1946), is similar. [***15]There a man had bought land, had plans prepared by an architect and spent thousands of dollars in grading and landscaping in preparation for the construction of a boatyard.  On November 17 he applied for a permit.  On November 8 new zoning regulations were adopted that made the proposed use a prohibited one.  Judge Henderson for the Court said:

   "But it does not follow that the proposed business in the case at bar was established or existing.  No permit was issued, and if it had been, it would have conferred no vested right, nor would it have created an estoppel * * *."

   In Ross v. Montgomery County, 252 Md. 497 (1968), developers of a proposed high rise apartment bought land, caused plans costing $56,000 to be prepared, demolished three old houses on the site, caused to be made test borings [*418]and preliminary engineering studies, and completed a single excavation and the installation of a single footing.  No more was done within the life of the building permit, which required actual construction to be begun under it within six months, and thereafter the zoning law was changed.  It was held that no vested interest or estoppel had been created because construction[***16] had not begun.

   There remains of the findings relied on by the Commission only the finding that there had been "a substantial amount of performance * * * by the general contractor." This can only mean "the excavation and other physical activity at the site," since there is no showing of other acts done or caused to be done by Bechtel prior to July 1, 1968.  It is beyond question -- and the Company makes no real contention to the contrary -- that the cutting down of trees and the grubbing of the land does not amount to the beginning of construction.  There is left the moving by earth pushing machines in order to level the site of some 104,000 cubic yards -- 5.6% of the 1,850,000 cubic yards that the levelling eventually required.  The record strongly suggests and [**110] the Company's witness indicates explicitly that the Company relies largely, if not really solely, on the earth moving in June 1968 to show that construction began that month.  The Company's witness was asked why the Company had reported to the Commission in July 1968 that construction had begun the previous month and he said that:
 
"It was our judgment that sufficient physical work had been done on the site [***17]that constituted construction * * * in our judgment the excavation of 104,000 cubic yards of dirt was sufficient evidence of physical work."
 
The Company seeks to meet the test of some authorities that excavating for a foundation is the beginning of construction by labelling the moving of 104,000 cubic yards of earth that was accomplished prior to July 1, 1968 "unclassified excavation" but there can be little if any doubt [*419] from the pictures of the process and the result, and the other evidence in the record, that it was not foundation excavating, if it be assumed that such excavation would be enough.  Bechtel's letter of June 10, 1968 to Langenfelder refers to and discusses "excavating * * * and the rough grading." Langenfelder's bill for $100,800 for the moving of 104,000 cubic yards of earth during the period ending June 30, 1968 at a unit price of $0.97 a yard has opposite the heading "contract number" the explanation "Calvert Cliffs Grading." Wallace McWilliams, Jr., an engineer who was manager of the Electric Engineering Department of the Company (Engineering), which also has an Electric Construction Department (Construction), was the Company's witness.  He[***18] testified that Engineering controls the specifications and designs and that it gives these to Construction to cause the station to be built, and then supervises the construction to see that it is done according to plan.  The testimony shows that Engineering and not Construction was the active agent of the Company and in charge of the project prior to July 1, 1968.  McWilliams testified that the purpose of the "unclassified excavation" was "to remove the earth necessary to establish the foundations for the plant." He said also that unclassified excavation covers dirt easily removed whereas structural excavation is "the very deep, hard to remove material * * * structural excavation * * * only applies to that material which is way down deep in the ground." Asked the question "prior to July 1, 1968, had any foundation been laid?" McWilliams responded: "None for the plant, no, sir." He was next asked "had there been the bringing together of any materials such as bricks or mortar or wood or other items on the site for construction?" and his answer was "No."

   We find nothing in the legislative history of § 54A or in the subject matter with which it is concerned to show, or indeed to indicate, [***19] that the words "begin construction in Maryland of a generating station" were intended by the legislature to convey a meaning other than that they appear on their face to convey, and ordinarily would convey.  [*420] Chapter 493 of the Laws of 1968 that became § 54A of Art. 78 originated as Senate Bill 22, a Legislative Council bill, which was item 274 (1) of the Council's Report to the General Assembly of 1968, appearing at pp. 194-195 of the Report.  The bill was inspired by the attempts of a utility to install power lines near or over the Antietam Battlefield.

   As introduced, Senate Bill 22 merely added to the list of things a public service company could not do without prior approval of the Commission, the acquiring of any property or property interest by condemnation.  The Bill was amended during its passage by the legislature to its present form.

   42 U.S.C. §§ 2131 and 2235 require the obtaining from AEC of a construction permit before construction of a nuclear electric generating facility is begun. Regulations here pertinent, offered in evidence [**111] below, are found in 10 C.F.R. § 50.10 (b) and provide:

   "No person shall begin the construction of a production[***20] or utilization facility on a site on which the facility is to be operated until a construction permit has been issued.  As used in this paragraph, the term 'construction' shall be deemed to include pouring the foundation for, or the installation of, any portion of the permanent facility on the site; but does not include:

   "(1) Site exploration, site excavation, preparation of the site for construction of the facility, including the driving of piles, and construction of roadways, railroad spurs, and transmission lines;

   "(2) Procurement or manufacture of components of the facility;

   "(3) Construction of non-nuclear facilities (such as turbo-generators and turbine buildings) and temporary buildings (such as construction equipment storage sheds) for use in connection with the construction of the facility; and

   [*421] "(4) With respect to production or utilization facilities, other than testing facilities, required to be licensed pursuant to section 104 a. or section 104 c. of the Act, the construction of buildings which will be used for activities other than operation of a facility and which may also be used to house a facility.  (For example, the construction of a college laboratory [***21]building with space for installation of a training reactor is not affected by this paragraph.)"

   The regulations as to nuclear generating stations, certainly the most sophisticated type of generating stations, seem to apply to nuclear generating stations the general rules as to what constitutes construction and the beginning of construction.

   There being no evidence of legislative intent to the contrary, we must read the meaning of the words "begin construction in Maryland of a generating station" in § 54A as the same as the meaning the opinions and holdings in the Maryland permit-zoning cases cited earlier, involving the vesting of rights, gave the term "construction," and the same as the meaning the phrase "the commencement of the said building" in § 15 of Art. 63 (the Mechanic's Lien statute) has been given by the decisions of this Court.  The Maryland cases have flatly held that grading the site does not constitute the commencement of the building that is to be erected on the site. Rupp v. Earl H. Cline & Sons, cited earlier, puts it thus at p. 579 of 230 Md.:
 
"but even if it is assumed (for the purposes of this case) that there was no substantial change of[***22] plan and that the owner and builder had a continuing intention -- if and when they could get financing and permission -- to erect apartments of some type, we think it is apparent that the removal of soil from one part of the development to another even for the dual purpose of [*422]grading one site to a specified level and filling in the other to the required height was at most a preparatory operation that was not the 'commencement of the building.' While the removal of soil had the effect of leveling the apartment site, that fact did not constitute commencement for the purpose of fixing the time to which a lien could relate.  Kelly v. Rosenstock, supra. Nor did the grading or leveling -- since there was no work on the ground which everyone could readily see and recognize as the commencement of a building, Brooks v. Lester, supra -- have the effect of putting the party making the construction loan on notice that the building had been commenced, and we so hold.

   "To hold otherwise would be contrary to the previous decisions of this Court. If any change in the meaning and effect of § 15 (of Art. 63) is either desirable [**112] or required that is a matter for[***23] the legislature, not the courts, to consider."

   We think the legislature did not change the law as to when construction is begun when it enacted § 54A, but rather that it caused that law to be applied in a new specific area.  The Maryland law is supported by two persuasive cases from other jurisdictions.  In McClung v. County of Henrico (Va.), 108 S.E.2d 513, 516, McClung was arrested for commencing to build a veterinary hospital after his building permit had expired.  His defense was that the permit authorized the work under the statute which legalized "construction * * * which shall have been started within ninety days * * *." During the ninety days he removed trees and stumps, graded, set stakes at the four corners of the building to mark the grade levels, hauled a quantity of stone to the site and contracted to have trenches dug and concrete poured for the foundation.  The Supreme Court of Appeals of Virginia held that these doings did not add up to the beginning of construction, citing the Webster's New International Dictionary (2d Ed., p. 572) definition of construction as follows:
 
[*423] "'(1) Process or art of constructing; act of building; erection; act [***24]of devising and forming; fabrication; composition; also a thing constructed; a structure.  * * * (3) Form or manner of building or putting together the parts of anything; structure; arrangement.' The word 'construct' is defined as: 'To bring together, to construct, to pile up, to set in order.  * * * (2) To put together the constituent parts of (something) in their proper place and order; to build; form; make; as, to construct an edifice,'"
 
and noting the administrative practice (as having weight) that a building permit was not required for work on land but was required before concrete footings could be poured for the foundation of a building.

   In Arkansas Power and Light Co. v. Federal Power Commission, 125 F. 2d 982, the Circuit Court of Appeals for the Eighth Circuit held that the Commission was justified in revoking a permit to build a dam because the permittee had not commenced construction within the prescribed time, although several thousand yards of earth at the base of the site for the dam had been excavated for exploratory trenches, a portion of the foundation had been excavated and some $10,000 spent.  The Court upheld the Commission's finding that the work [***25]done was preliminary work, incident only to the commencement of construction and did not constitute the beginning of construction of the dam.

   We find significant support for our conclusion that the decisions cited above holding that construction had not begun in factual situations analogous to that before us in the fact that the Company did not obtain a building permit from Calvert County or a construction permit from the AEC until months after July 1, 1968, although it would have violated the law under both the local and the federal statute and binding regulations had it commenced construction before obtaining the permits.

   To the Company's argument that all the various steps [*424] it took and acts it did before July 1, 1968 must be considered together and that their cumulative effect adds up to the beginning of construction, two refuting answers come quickly to mind.  First, the Company really relied only on the moving of the earth to level the site as the evidence of the beginning of construction and the law is that such activity does not suffice.  Second, no one step or activity was enough to show construction and none lent weight in that regard to the others.  We are reminded[***26] of Judge McSherry's observation for the Court in the second Berry will case, Berry v. Safe Deposit Co., 96 Md. 45, 56, that:
 
"The sum of any number of zeros will always be zero, and this is true in the [**113]law of evidence as well as in arithmetic.  You may combine as many independent circumstances as you please, and if no one of them has any legal tendency to establish the fact to be proved then all of them taken together can have no greater probative value."

   The order of the Commission finding that construction was begun before July 1, 1968 was not supported by substantial evidence and did not reflect the controlling law.

   Order reversed, with costs, and case remanded to the commission for further proceedings.

DISSENTBY: BARNES

DISSENT:  
Barnes, J. dissenting:

   I dissent because, in my opinion, the majority of the Court has construed too narrowly the words "begin construction . . . of a generating station" in the Act of 1968, Ch. 493, now Art. 78, § 54A of the Maryland Code, effective July 1, 1968, and has applied inappropriate criteria in reaching that narrow construction, thus misconstruing the legislative intent in regard to the applicability of § 54A. [***27]

   [*425] It is apparent that the word "construction" has a broad and varied meaning.  In Webster's New International Dictionary (2nd ed. 1949), p. 572, the noun "construction" is defined as having six general groups of meanings, two of which are relevant here:

   "1. Process or art of constructing; act of building; erection; act of devising and forming; fabrication; composition; also a thing construed; a structure."

   * * *

   "3. Form or manner of building or putting together the parts of anything; structure; arrangement."

   It is interesting to observe that in 8A Words and Phrases, Permanent Ed., 1951, under the heading "Construct; Construction" there are 16 pages (pp. 471-486) of annotations of cases construing these words in various factual situations.

   The word "station" is also a word of broad meaning.  It has some 16 general groups of meaning.  See Webster's, op. cit., p. 2462.  The fourth meaning is:

   "4. The spot or place where anything stands, especially where a person or thing habitually stands, comes to a stand or is appointed to remain for a time; * * *"

   Courts have held that the word "station" when used in reference to railway "stations", not only[***28] includes the building used by the patrons of the railway, but also the railway yards or ground adjacent to the buildings.  See Hall v. Chicago B. & N. Ry. Co., 46 Minn. 439, 49 N. W. 239 (1891) and Morisette v. Canadian Pac. Ry. Co., 76 Vt. 267, 56 A. 1102 (1904).

   In some statutes, the word "construction" or the words "beginning of construction" are defined in the statutes themselves, thus relieving the Courts of the obligation to ascertain in what sense these words are used.  See, for example, the National Housing Act, 12 U.S.C. § 1701 q. [*426] (d) (7) defining "construction" as the "erection of new structures or rehabilitation, alteration, conversion, or improvement of existing structures"; 12 U.S.C. § 1749 c (g) in regard to Educational Institutions with the same definition as set forth in 12 U.S.C. § 1701 q. (d) (7), supra; 38 U.S.C. § 5031 (c) in regard to Nursing Facilities with the definition that "construction" means "the construction of new buildings, the expansion, remodeling, modification, or alteration of existing buildings, and the providing of initial equipment for any such buildings"; 42 U.S.C. § 292 a (2) in regard to the Public Health[***29] Service, that "[t]he terms 'construction' and 'cost of construction' include (A) the construction of new buildings and the expansion, remodeling and alteration of existing buildings, including architects' fees, but not including cost of acquisition of land or offsite improvements, and (B) equipping new buildings and existing buildings, whether or not expanded, remodeled or [**114] altered"; 42 U.S.C. § 295 (e) in regard to Research Facilities, containing the identical definition set forth in 42 U.S.C. § 292 a (2), supra, and in the regulations of the Atomic Energy Commission, 10 C.F.R. § 50.10 (b) where the term "construction" shall be "deemed to include pouring the foundation for, or the installation of, any portion of the permanent facility on the site; but does not include:

   "1) Site exploration, site excavation, preparation of the site for construction of the facility, including the driving of piles, and construction of roadways, railroad spurs and transmission lines;

   "2) Procurement or manufacture of components of the facility;

   "3) Construction of non-nuclear facilities (such as turbo-generators and turbine buildings) and temporary buildings[***30] (such as construction equipment storage sheds) for use in connection with the construction of the facility; and

   [*427] "4) With respect to production or utilization facilities, other than testing facilities, required to be licensed pursuant to section 104 a. or section 104 c. of the Act, the construction of buildings which will be used for activities other than operation of a facility and which may also be used to house a facility.  (For example, the construction of a college laboratory building with space for installation of a training reactor is not affected by this paragraph.)"
(All emphasis supplied.)

   It is significant, I think, in seeking to ascertain the legislative intent that the General Assembly did not place in the statute a definitive and restrictive definition of the words "begin construction . . . of a generating station." This is particularly significant in the light of the fact that such a definitive and restrictive definition was contained in the regulations of the Atomic Energy Commission, as we have seen, these regulations having been promulgated on September 9, 1960, long before the passage of the Act of 1968, Ch. 493.  By not using a definition[***31] which restricts the meaning of "begin construction" of a facility on the site, I conclude -- contrary to the suggestion in the majority opinion -- that the General Assembly did not intend the words "begin construction . . . of a generating station" to have a restricted meaning.

   To arrive at the legislative intent in the use of the general word "construction," with the many meanings that may be attributed to that word, one must look carefully at any modifying words and the general legislative setting in which the word and the modifying words appear.  It is significant to me that nowhere in § 54A does the General Assembly use the word "building" or "structure." It did not say "begin the construction of 'any building or structure to be used in connection with' a generating station," so that I conclude that it intended to use the phrase "construction . . . of a generating station" in its broad, sweeping meaning and not in a narrow, restricted meaning confined to a building or structure at the [*428] site of the generating station. Indeed, as has been already observed, the word "station" in one of its generally accepted meanings refers to the site or place[***32] on which a "thing," e.g. a building or structure, stands.  The use of this word, in itself, excludes the notion that the construction is limited to a building or structure. Then, too, the word "generating" with the word "station" indicates a broad and comprehensive meaning for the word "construction." These words include the steam engines, generating dynamos and indeed all of the real property, fixtures and personal property used in connection with the generation of electricity; and, all of these elements make up a "generating station." See Todd v. McCloy, 196 Ark. 832, 120 S.W.2d 160 (1938); Fisher Elec. Co. v. Bath Iron Works, 116 Mich. 293, 74 N. W. 493 (1898); and John A. Roebling's Sons Co. v. Humboldt Elec. L. & P. Co., 112 Cal. 288, 44 P. 568 (1896).

   In short, as I see it, the "beginning of construction" of a "building or structure" is quite different indeed from the "beginning of construction" of a "generating station, [**115] " and the majority, in my opinion, has applied a narrow and limited meaning to the words contrary to the broad and inclusive meaning intended by the General Assembly.

   I do not challenge or impugn in any way our holdings[***33] and those of our predecessors, as well as holdings of the highest Courts of our sister States, in the cases cited in the majority opinion in the various mechanics' lien cases and zoning cases.  Those holdings, in my opinion, simply do not apply to the language involved in the instant case.  Those decisions had to do with the beginning of construction of "buildings" and "structures" used in statutes having quite different purposes than those involved in § 54A.  In the mechanics' lien and zoning cases, the "construction" concept was concerned only with buildings and structures.  The purpose of the applicable statutes in those cases was to insure that there had been a definite commitment to the erection of that particular building or structure and that the public would be put on notice by [*429] the overt act of construction of the building or structure on the site. Not only must there be a bona fide intention to begin and complete the building or structure, but the overt act at the site must indicate a commitment to complete that particular building or structure.  Where a building is involved, the mere incidental grading of the site, the removal of trees, etc., [***34]is not a commitment to erect that particular building, but these activities could be equally useful for some other purpose or activity.  Hence, the requirement that the foundation of that building be begun to evidence to the public the bona fide intention to complete that building.  How different is the situation in the present case!

   The evidence before the Public Service Commission (the Commission) and its findings indicate that there is no challenge to the good faith of the Baltimore Gas & Electric Company (Company) in beginning construction of a generating station at the Calvert Cliffs site. Indeed, as the majority opinion points out, this is not challenged in the instant case.  The Company's commitment (as distinguished from any preliminary negotiations, ideas or plans) to constructing a generating station at Calvert Cliffs was established on December 23, 1966, when the Company agreed to purchase for $25,000,000 from the General Electric Company a turbine generator for Unit No. 1.  This was some 18 months prior to the effective date of § 54A.  On May 18, 1967, the Company and Combustion Engineering, Inc. signed a Memorandum of Understanding for the construction [***35]and fabrication of the nuclear steam supply system.  On May 26, 1967, the Company received delivery of a deed to the site, the Company necessarily having had to purchase the generators substantially in advance of their projected delivery to the site because of the long time required for their manufacture.

   Most importantly, the Company made its first public announcement of its intention to construct its two unit Calvert Cliffs Nuclear Power Plant on May 29, 1967.  Immediately following this public announcement, the Company [*430]began preliminary physical operations at the site by drilling core borings to be used in the design of the foundation of the Plant.

   On June 26, 1967, the Company placed its order for its Unit No. 2 generator from the Westinghouse Electric Company at a cost of some $25,000,000.  This generator and the one already purchased from General Electric Company were specifically designed to complement the nuclear steam supply system previously purchased from Combustion Engineering, Inc. and could only be reasonably used at the Calvert Cliffs site.

   Bechtel Corporation was engaged on July 31, 1967, as the general contractor for the Company with responsibility[***36] for the engineering and construction of the Nuclear Power Plant. Dames & Moore were employed by the Company in August of 1967 to make seismological studies at the Calvert Cliffs site to determine the suitability of the site for a nuclear power [**116] plant with particular reference to the ability of the land to withstand earthquakes.

   Also prior to July 1, 1968, when § 54A became effective, the Company had begun to make monthly progress payments to Combustion Engineering, Inc., and by July 1, 1968, had paid that corporation in excess of $4,000,000 for the completion of approximately 20% of the engineering necessary for the nuclear steam supply system and for such fabrication and assembly of supporting Unit No. 1 as had been completed.  In December 1967, Bechtel -- the general contractor -- had prepared a bar chart scheduling excavation at the site for June 1968.  A master flow chart in February 1968 had estimated that excavation would commence on or about June 1, 1968.  On January 26, 1968, the Company filed with the Atomic Energy Commission an application for a construction permit and operating license which was accompanied by the Preliminary Safety Analysis Report indicating[***37] that the plant design had so progressed as to proceed with actual physical work on the plant site.

   As early as February 1968, three lumber companies undertook selective tree cutting on the site and in April 1968 [*431] C. J. Langenfelder & Sons, Inc. (Langenfelder) began mass clearing and grubbing activities at the site. Bechtel first proposed that excavation begin on May 28, 1968, orally contracted for it with Langenfelder on May 31 and confirmed the agreement by letter on June 3, 1968.  Langenfelder began excavation on June 6, 1968.

   The agreement with Langenfelder in regard to excavation was formalized on June 10, 1968, by a written contract which would require ultimately "unclassified excavation" of in excess of 1,500,000 cubic yards of earth down to an elevation of Plus 1; such excavation has been defined as "easily removed material." In accordance with this contract, Langenfelder removed 104,000 cubic yards of earth at the site for which Bechtel was billed $100,000.  This excavation was for the purpose of establishing the level on which the nuclear reactor vessel foundations were to be constructed and excavation continued without interruption until it was completed near[***38] the end of 1968.

   Subsequent to July 1, 1968, i.e. on July 17, 1968, the Company filed -- as required by the Commission's regulations -- a report written within a month after the beginning of construction, which indicated that the construction period would be from June 1968 to December 1974.  The work on the site and plant has continued without interruption since June 6, 1968.

   Fred Stern, Project Manager of the Calvert Cliffs project for Combustion Engineering, Inc., testified that Combustion began work on the nuclear steam supply system in June 1967 and the work had continued to the time of the hearing before the Commission.  Mr. Stern is a well qualified expert in his field, having received a Bachelor's Degree of Mechanical Engineering from City College of New York in 1956 and a Master's Degree in Nuclear Engineering from Rensselaer Polytechnic Institute in 1960.  He testified that all of the major items of materials for the two units had been ordered prior to July 1, 1968.  The following testimony was given by Mr. Stern on cross-examination by People's Counsel:

   "Q. Now, this same system that you design [*432] could have been placed in New York or North Carolina, [***39] could it?  A. No, sir, not quite.  A similar steam could and is, not the same one.  There are always the particular requirements for a site and for a utility which go into the detail design of a piece of equipment like that.

   "Q. Depending upon how much electricity you want to generate, is that right? A. No, not how much electricity you want to generate, necessarily, but for example, each site has a particular set of seismic requirements.  So, you would have to design your structural [**117] steel in accordance with those seismic requirements, or a particular utility --"

   In its opinion in this case, the Commission stated, in part, the following:

   "It is perfectly clear that the Company has been proceeding with the construction of this station with all deliberate speed and under a time table that has required it to order certain component parts six to eight years in advance of the actual date on which the station will become operational, to begin physical activities at the site including among other things excavation work, core boring, clearing and grubbing, that occurred prior to July 1, 1968, and that the combination of the outside fabrication and the physical work performed[***40] at the site prior to July 1, 1968, coupled with a demonstrated continuation of this work, is construction within the meaning of the term 'begin the construction' in Section 54A.

   "Moreover, the Uniform System of Accounts prescribed by this Commission for electric companies, which has been in effect for many years, requires electric companies to include in Account 321, Structures and Improvements for nuclear production, a Balance Sheet Account, the cost [*433] of excavation including shoring, bracing, bridging, refill and disposal of excess excavated material as well as the grading and clearing when directly occasioned by the building of a structure.  Accordingly, from the viewpoint of accounting treatment the clearing and excavation performed during the month of June 1968 at the site of the plant constitutes a part of the structure and improvements of the facility.

   "Accordingly, it is the opinion and finding of the Commission after a full consideration of all the evidence in this case, and the review of the briefs and oral argument of counsel, that the beginning of fabrication of the major component parts of the generating station and the excavation and other physical activity[***41] at the site, coupled with the preparation and development of complete plans and entering into a contract with the general contractor and a substantial amount of performance under that contract by the general contractor, constituted the beginning of construction prior to July 1, 1968, within the meaning of Section 54A of The Public Service Commission Law; and, accordingly, the Baltimore Gas and Electric Company is not required to apply to this Commission for a certificate of public convenience and necessity under Section 54A of The Public Service Commission Law for the construction of its nuclear power plant at Calvert Cliffs, Calvert County, Maryland."

   Judge Melvin, in affirming the Commission's order dismissing the petition of People's Counsel, filed a carefully considered opinion in which he stated:
 
"[I]t is the court's opinion that the Commission applied the correct legal test and that its order of July 31, 1969, was not clearly erroneous or unsupported by substantial evidence on the record considered as a whole."

   [*434] As has been pointed out, the definition of "construction" may include "fabrication" so that the large contracts for the various units, etc., [***42]already mentioned, on which fabrication had begun for facilities for the generating station would bring the activity of the company within that broad definition.  But there is much more.  If notice to the public is one of the elements to be considered, the Company made a public announcement of its intention to proceed with the construction of a generating station at the Calvert Cliffs site on May 29, 1967, some 13 months prior to the effective date of § 54A -- July 1, 1968.  Commitment to the project is an element for consideration.  There can be little doubt from the facts above recited that the Company was irrevocably committed to the construction of a generating station at the Calvert Cliffs site well in advance [**118] of July 1, 1968.  If overt acts at the site are required, the evidence indicates that they too occurred. There were removal of trees, mass clearing, grubbing and the excavation of a very large amount of soil -- 104,000 cubic yards -- done for the explicit purpose of establishing the level on which the nuclear reactor vessel foundations were to be laid.  If continued and uninterrupted work on the project be required, this also has occurred.

   In Slapnicka [***43]  v. City of Cedar Rapids, 258 Iowa 382, 139 N.W.2d 179 (1965), preliminary engineering services consisting of studies, designs, traffic data, soil tests, estimates for the right-of-ways and construction costs were held to be road construction expenses and thus payable from a tax fund limited solely for the construction of roads.

   I do not understand that the Company "really relied only on the moving of the earth to level the site as the evidence of the beginning of construction," as the majority states.  On the contrary, as I understand it, the Company's position is that all of the preliminary steps already mentioned including the moving of the earth evidence the "beginning of construction . . . of a generating station," as these words were intended to mean by the General Assembly as already indicated.  In my opinion, [*435] this position is correct.  Many of the acts prior to the excavation work are evidence of the beginning of such construction and firmly committed the Company to the construction of a generating station at the site as all concede was its bona fide intention to do and this intention has been, and continues to be, carried out.

   In summary, all of the[***44] elements required for the beginning of construction of a generating station were present and found by the Commission to have been present prior to July 1, 1968, the effective date of § 54A, within the broad and inclusive language used by the General Assembly.  The Commission is by its very nature and by its particular relationship to the legislation in question especially qualified to aid the Courts in the discovery of the legislative intent.  Its contemporary construction of the legislation is entitled to great weight by us if it be thought that the language is ambiguous, which I do not consider it to be.  Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 615, 95 A. 2d 306, 311 (1953). See Department of Motor Vehicles v. Greyhound Corp., 247 Md. 662, 669, 234 A. 2d 255, 258 (1967).

   The majority, in my opinion, has placed this Court in the curious position of forcing jurisdiction upon a regulatory Commission which the Commission itself abjures.  This is novel, to say the least.

   I would affirm. 

ANNE ARUNDEL COUNTY, MARYLAND v. BOWEN, et al. 
No. 51 (Adv.), September Term, 1970
 
Court of Appeals of Maryland
 
258 Md. 713; 267 A.2d 168; 1970 Md. LEXIS 1045

 July  9, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment reversed.  Case remanded for further proceedings. Appellees to pay the costs.

CORE TERMS:  county executive, condemnation, charter, lease, acquire, ordinance, appropriation, public purpose, acquisition, demurrer, legislative function, duty, executing, negotiate, voters, enact, legislative branch, expenditure, leasehold, authorize, authority granted, office building, certified copy, ministerial, preamble, power of eminent domain, Public Local Laws, condemnation proceedings, particular property, capital improvement

COUNSEL: John M. Court, Assistant County Solicitor, with whom was Phillip F. Scheibe, County Solicitor, on the brief, for appellant.

   Morris Turk, with whom were Turk, Manis & Duckett on the brief, for appellees.

JUDGES: Hammond, C. J., and Barnes, McWilliams, Finan, Singley, Smith and Digges, JJ.  McWilliams, J., delivered[***2] the opinion of the Court.

OPINIONBY: McWILLIAMS

OPINION: [*713] [**168] While we resort to divination only rarely, we think it has helped us perceive what this appeal is all about.  As [*714] we see it the question is what must Anne Arundel County's condemnation petition allege in order to survive a demurrer. We shall relate only those circumstances which seem to have significance.

   On 26 November 1969 "Anne Arundel County, Maryland" (the County) filed its "Petition for Condemnation." The allegations, somewhat abridged, are as follows: 
 
1. The County is authorized by Section 1-317 of the county code "to acquire by condemnation for public purposes, as such purposes are set forth in any capital improvement expenditure appropriation ordinance" such interests in real property as the County Executive may deem "necessary or advisable."
2. The County Executive has determined "that it is necessary and proper" to acquire for the realignment of the Riva Road the 1.82 acres of appellees' (the Bowens) land which is precisely described and shown on plats filed as exhibits.
3. Attached as an exhibit, and by reference made part of the petition, is a formal communication, dated 17[***3] November 1969, from the Director of the Department of Public Works to the County Executive reciting unsuccessful attempts to purchase the property proposed to be used for improvement to the Riva Road and requesting that the "County Solicitor be directed to proceed to acquire the property described." The communication goes on to state that the "requested acquisition has been duly authorized in County Ordinances No. 31 in 1967, 39 [**169] in 1968 and 28 in 1969 and [that] the capital project there authorized is described in detail in project 81-83-239-Riva Road." An appraisal was attached and the zoning was said to be Agricultural.  Attached as an additional exhibit is a direction by the County Executive to the County Solicitor to begin condemnation proceedings against the Bowens, in the matter of [*715] "Capital Project for Riva Road North, Phase 1."
4. There is a public necessity for the condemnation.
5. The purpose is "the realignment of a public road."
6. A reasonable and bona fide effort to purchase the property has been unsuccessful.

   Resolution 30-69, dated 21 October 1969, of the County Council (the Council), ratifying certain other condemnations (this case was[***4] not mentioned), was filed as an exhibit, but for what purpose is unclear.  We shall treat it as surplusage.

   The Bowens demurred on the ground that the petition "fails to state or show, aside from mentioning Section 1-317, the authority, ordinance or resolution passed by the Council of Anne Arundel County for the necessity of and authority for the taking" of the property.  After a hearing the trial judge sustained the demurrer with leave to amend within 15 days.  He gave no reason for his action. The County declined to amend.  From the judgment for costs, entered 19 March 1970, this appeal was taken.

   Section 2 of Article XI-A of the Constitution of Maryland required the General Assembly to provide by a public general law "a grant of express powers" to counties establishing a charter form of government.  In obedience to the mandate the General Assembly enacted the Express Powers Act. Code, Art. 25A, § 5 (1966 Repl. Vol.).  Subsection (K) grants to charter counties the power "to provide for [the] grading * * * and repairing [of] any * * * road * * * within said county * * * condemned, ceded, opened, widened, extended or straightened as public property * * *." Subsection (B) grants[***5] the power "to provide for the acquisition by purchase, lease or otherwise, and condemnation of property required for public purposes in the county." Subsection (A) grants the power "to enact local laws * * *." In the preamble to the charter adopted by the voters of Anne Arundel County on 3 November 1964 there is expressed the desire of the people [*716] to "establish separate legislative and executive branches." Sec. 401 of the charter makes the County Executive "the chief executive and administrative officer of the County and the official head of the County government." Sec. 405 (a) requires him "to supervise, direct and control * * * the executive branch of the County." Sec. 306 vests in the Council the law-making power of the County but Sec. 309 forbids interference with the executive branch.  See M. P. Moser, County Home Rule -- Sharing the State's Legislative Power With Maryland Counties, 28 Md. L. Rev. 327 (1968).

   In 1965, soon after the new government assumed control, the Council enacted Bill No. 14, now codified as Sec. 1-317 of the Anne Arundel County Code.  It provides, in part, as follows:

   "The county is authorized to acquire by purchase, lease or condemnation [***6]for public purposes as such purposes are set forth in any capital improvement expenditure appropriation ordinances, the fee simple, leasehold or such other interests as the county executive may deem to be necessary or desirable in any real property located within the county, including any or all property rights, interests, easements or franchises in the same.  If the county executive is unable to agree with the owner or owners on the purchase price of such property or interest therein, he shall forthwith notify the solicitor for the county who shall thereupon institute in the name of the county [**170] for necessary legal proceedings to acquire by condemnation the property or any interest therein.  No property or interest therein shall be purchased, by condemnation or otherwise, unless funds for the same shall have been included in the capital budget, the award of a condemnation jury notwithstanding." (Emphasis added.)
 
In May 1969 the Council enacted Bill No. 28-69, referred [*717] to in the exhibit made a part of the condemnation petition, Section 10 of which "further" enacts "that funds for expenditures for the Capital Projects herein specified are hereby[***7] appropriated for the County Capital Construction Fund during the fiscal year beginning July 1, 1969 and ending June 30, 1970." Item 31 of Subsection E, Roads and Bridges, indicates an appropriation of $353,900 for "Riva Road I." The plats filed as exhibits with the petition suggest considerable engineering work by Matz, Childs and Associates, Engineers and Surveyors.

   Fully rendered the Bowens' argument seems to come to this: that the Legislature's grant of the power of eminent domain is to the County and that it would be improper for the County to delegate it to the County Executive; therefore, they conclude, the power cannot be exercised without "some action by the Council with respect to this specific piece of property," after which "the Executive Officers [could] carry out the ministerial duties necessary to effectuate the action of the Council." Much the same argument was made, and rejected, in Hormes v. Baltimore County, 225 Md. 371 (1961). There the County Executive of Baltimore County leased the second floor of an office building for ten years to house the County Health Department.  Hormes contended the County Executive was without power to negotiate and execute the[***8] lease until authorized to do so by an enabling act of the County Council.  It will be recalled that the voters of Baltimore County adopted their charter in November 1956.  The Anne Arundel charter was patterned after the Baltimore County charter and both are similar in many respects.  Judge Marbury, for the Court, noted that "it is abundantly clear that a system of government based on the traditional 'separation of powers' was intended." Id. at 375. As has been said the voters of Anne Arundel County spelled out the separation in their preamble. Judge Marbury went on to say:

   "It is clear that the County Executive and the County Administrative Officer are the directing heads of the general administration of County [*718]affairs and have the duty, power and obligation to carry on the day to day business of the County.

   "Carrying out this principle of 'separation of powers,' Article III of the Charter is entitled 'The Legislative Branch' and § 306 thereunder states that: 'The County Council shall be the elected legislative body of the county and is vested with all the law making power thereof * * *.  The County Council may enact public local laws for the county * * *.' [***9]

   "To make it even more certain that the two branches of the government would operate separate and apart § 310 [309 in the Anne Arundel charter] of the Charter prohibits interference by the Council, or any of its members, with 'any officer, agent or employee in the executive branch of the County government other than the County Executive. * * * nor shall they in any manner attempt to influence or coerce any such officer, agent or employee in the performance of his duties.' Thus the Charter has established a system of county government in which the executive branch and the legislative branch are separate and distinct, with neither having control over the other.

   "It, therefore, becomes necessary to decide which branch of government has the power to acquire property for County purposes by purchase or lease. Since [**171]the County Executive has the duty to supervise, direct and control the administrative services of the County, he must of necessity acquire appropriate office space and such other facilities as may be necessary from time to time to properly conduct the County's business.  * * * It seems obvious, and we so hold, that this is an executive rather than a legislative[***10] function.

   "By Article I, § 2-1 of the Baltimore County Code (1958 Ed.) the County is 'authorized and [*719] empowered to acquire by purchase, gift, devise, or condemnation any real or leasehold property needed for any public purpose * * *.' It could scarcely be reasonably contended that the acquisition of property for public use is a legislative function, and the appellant does not so contend. * * *.

   "So far as the execution of the lease is concerned the County Executive is specifically granted that power by Article IV, § 12 of the Charter, previously referred to.  The appellant argues, and we agree, that this is purely a ministerial function and that this section alone does not authorize the County Executive to negotiate and legally bind the County to the terms of the lease. But, in addition, § 2-1 of the Baltimore County Code authorizes the County to acquire real or leasehold property for any public purpose, so that we hold that this gives the County Executive the power to negotiate leases and to bind the County thereto without the necessity of any previous authorization or approval by the Council because the acquisition of office space by means of a lease is an [***11]  executive and not a legislative function. We further hold that the decision as to whether property is needed for a public purpose is one to be made by the Executive and that this also is an executive rather than a legislative function.

   "Examination of the Charter and Public Local Laws discloses nothing to suggest that the Council is required to authorize or approve leases of the type here in question, or any other contract into which the County may enter.
 
   "The leading authority, 2 McQuillin, Municipal Corporations (3d ed.), § 10.06, gives a simple, comprehensive test for determining whether a particular matter is a legislative or executive function:

   [*720] '* * * If it can be shown that the particular act could not be done without a law or ordinance, such act is considered as legislative.  The crucial test for determining what is legislative and what is administrative has been said to be whether the ordinance is one making a new law or one executing a law in existence.'

   "Applying this test and the provisions of the Charter and Public Local Laws, we conclude that the County Executive in negotiating, executing, and binding the County to this lease, was executing [***12]  authority granted by laws already in existence, so that his action was of an executive rather than a legislative character." Id. at 376-78. (Emphasis added.)

   In a sense it is true, as the Bowens argue, that the power of eminent domain has been granted to the County but it is also true that the County can exercise the power only through the duly authorized personnel of its executive branch. The legislative branch, the Council, by the enactment of Sec. 1-317, supra, has clothed the County Executive with the authority and the duty of exercising the power whenever its exercise is required in order to complete the execution of any project for which the Council has budgeted and appropriated the necessary funds.  It seems absurd to suggest that the same power granted to the County by the Legislature has been delegated to the County Executive. See Master Royalties Corp. v. Baltimore City, 235 Md. 74, 83 (1964) and Pressman v. D'Alesandro, 193 Md. 672 (1949).

   [**172] Having held, in Hormes, that the County Executive was simply "executing authority granted by laws already in existence" when he negotiated and executed a ten-year lease of a floor of an office building, [***13] we have no difficulty extending that holding to include, in the circumstances here present, the condemnation of the Bowens' property.  City of Bowie v. County Comm'rs of Prince George's County, 258 Md. 454 (1970). While we think the allegations [*721] of the condemnation petition, as we have discussed them, are sufficient to survive the demurrer perhaps it would have been better practice to allege with greater particularity the details of the appropriation ordinance or, better yet, to attach, as an exhibit, a certified copy of it.  Of course, at trial, the County will have the burden of proving its allegations.

   The record suggests that the executive branch of the County has been unsure of itself in respect of the necessity of obtaining Council approval of condemnation proceedings. Early on we referred to the filing, as an exhibit, of a resolution of the Council approving other cases.  To correct this apparent inadvertence the Council, on 2 February 1970, passed a resolution specifically approving the case against the Bowens.  A certified copy, we were told, was presented to the trial judge at the hearing on the demurrer. He declined to consider it because the demurrer had[***14] been filed earlier.  Since we think it was unnecessary we shall treat it also as surplusage.

   On 28 January 1970, the Council repealed and reenacted with amendments Sec. 1-317, supra, to take effect 14 March 1970.  Essentially the section remains unchanged except for the following provisions:
  
"[P]rovided, however, if the County Executive is unable to acquire such property by agreement, the County shall not acquire the same by condemnation unless (1) the ordinance appropriating funds therefor has designated the public purpose for which the property is to be acquired and has described with reasonable accuracy the particular property to be acquired, or (2) unless prior to the acquisition by condemnation the County Council by resolution so describes such property and determines and declares its acquisition to be necessary for the public purpose designated in the appropriation ordinance." (Emphasis added.)

   While the amended Sec. 1-317 has no effect on the decision [*722] here announced we doubt that it will accomplish much in the way of improvement in the County's condemnation procedures.  To write into the appropriation ordinance an accurate description of the[***15] "particular property to be acquired" may turn out to be both cumbersome and time consuming.  The alternative requirement may amount, in light of the language of the charter, to an impermissible invasion of the province of the County Executive. Hormes, supra.

   Judgment reversed.

   Case remanded for further proceedings.

   Appellees to pay the costs. 

COMMERCIAL CREDIT CORPORATION v. STATE OF MARYLAND 
No. 355, September Term, 1969
 
Court of Appeals of Maryland
 
258 Md. 192; 265 A.2d 748; 1970 Md. LEXIS 990

 May  12, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree reversed.  Case remanded for the passage of a decree conformable with the views expressed in this opinion.  Appellee to pay the costs .

CORE TERMS:  forfeiture, innocent, narcotic, lienor, conditional, forfeited, vendor, illegally, bus terminal, lienholder, ownership, exempt, owning, forfeiture statute, security agreement, assignee, seller, conditional sales contract, deter, motor vehicles, illegal use, odious, certificate, bought, federal government, federal statute, purchaser, rightful, railroad, acquire

COUNSEL: Richard C. Whiteford, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, and Sidney C. Miller, Jr., for appellant.

   H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Julian B. Stevens, Jr., State's Attorney for Anne Arundel County, and Raymond G. Thieme, Jr., Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*193] [**749] What to do with a gold (not solid) Cadillac is the problem thrust upon us in this appeal.  Shall it be handed over to the appellant, Commercial[***3] Credit Corporation (CCC) which, as assignee of a conditional contract of sale, claims to be the "owner," or shall its present possessor, Anne [*194] Arundel County, be allowed to declare it forfeited as provided by Code, Art. 27, § 301 (1967 Repl. Vol.)?  The facts are not in dispute.

   On 28 March 1968 Harold Leroy Scott (Scott) bought the Cadillac from Johnny's Used Cars (Johnny) for $5195, $1250 of which he paid in cash.  Johnny promptly passed on the details of the transaction to CCC which provided financing for most of his sales.  The customary credit investigation followed. CCC found Scott to be listed in the Baltimore telephone directory at the address given to Johnny.  The Johns Hopkins School of Medicine confirmed the details of his employment, e.g., salary, position and length of service.  A credit bureau reported no adverse information.  CCC inquired of the Federal Narcotics Bureau whether Scott had any history of violation of the narcotics laws.  The district supervisor replied that the "files of the Bureau of Narcotics, Baltimore, Maryland disclose[d] no criminal record or reputation of [Scott]" but he disclaimed any knowledge of the existence of such a record[***4] "with State or City officials, or whether such a record exists in other parts of the country."

   The security agreement executed by Scott was assigned to CCC.  The $5144.40 which CCC in turn paid to Johnny included a "finance charge" of $979.90; the stated monthly payment was $142.90.  The agreement was recorded among the financing records of Baltimore City on 2 April 1968.  The Department of Motor Vehicles issued its certificate of title, showing a conditional sale to CCC for $5144.40, to Scott on 15 April 1968.  In the security agreement Scott agreed that he would not use the vehicle "for hire or illegally." The agreement provides that title "shall remain in Seller until all amounts owing * * * are fully paid in cash" and that if Scott "defaults on any obligation or breaches any agreement or warranty * * * Seller may * * * take possession of it."

   It is stipulated that Scott was "fronting" for Edward Trogden when he bought the Cadillac and that Trogden had the exclusive use of it.  The State Police arrested [*195] Trogden in Anne Arundel County on 6 May 1968.  They found narcotics in the car which he was driving at the time.  As a result Trogden and Scott were convicted[***5] in the Circuit Court for Anne Arundel County of violating the narcotic laws.  CCC had no knowledge of the use being made of the car which, it is agreed, is worth less than the amount due.  If CCC did not become entitled to possession by virtue of the violation of the covenant not to make illegal use of the car it surely did become so entitled on 1 June 1968 when the payment due on that date was not paid.  Only one payment was made, on 6 May, and that was 90 cents short of the actual amount due.

   [**750] When CCC became aware of the intention of the State's Attorney to declare the vehicle forfeited it filed its petition in the Circuit Court praying a stay of the forfeiture and the return of the vehicle.  The petition was dismissed with prejudice on 9 September 1969 after a hearing before the chancellor, Sachse, J.

   I.

   The parties agree that there is presented for our consideration and decision a very "narrow issue," i.e., the meaning of "owner" as used in § 301; they agree also that until now we seem not to have considered the matter.  The text of § 301 follows:

   "In addition to any other fines or penalties provided for a violation of the provisions of this subtitle, any motor[***6] vehicle or other vehicle, vessel or aircraft used or employed in the concealment, conveying or transporting of any such narcotic drugs, or used during the course of any violation of this subtitle by any person or persons convicted of the same, shall upon the conviction or convictions be declared by the court to be forfeited to the county or to Baltimore City, as the case may be; provided that no vehicle shall be forfeited hereunder unless the owner thereof authorized or permitted such use or employment.  The county commissioners or the [*196] mayor and city council of Baltimore at their discretion may use the said vehicle for public purposes or may exchange, sell or convey it to another person or persons; and any cash or moneys received therefor shall be added to the general funds of the county or City of Baltimore." (Emphasis added, see below.)

   Section 301 first saw the light of day in March 1951.  Known as Senate Bill 406 it was passed by that body without a dissenting vote and sent to the House of Delegates where it was amended, passed as amended and returned to the Senate. The Senate concurred in the amendment, the language of which is set out above in italics.  Upon[***7] enactment it became Ch. 471 of the Laws of 1951.  What sparked the amendment is, of course, beyond our ken because, as Chief Judge Hammond, for the Court, lately observed, in Unsatisfied Claim and Judgment Fund v. Hamilton, 256 Md. 56, 57 (1969), "in Maryland there usually is little prepassage evidence of intent." He noted a "gratifying" compensation, however, in that "the usual paucity of objective evidence leaves room for the exercise of judicial perceptiveness and perspicacity in determining intent."

   Ch. 471 of the Laws of 1951 (§ 301, supra) added a new section to the Uniform Narcotic Drug Act which was enacted by Ch. 59 of the Laws of 1935, now Code, Art. 27, §§ 276-305 (1967 Repl. Vol.).  That a forfeiture provision was not included in the Uniform Act may seem, at first blush, a little strange.  It appears to have been so intended, however.  According to a note to the Uniform Law "* * * it was deemed best that each state provide such methods for search, seizure and forfeiture as would best harmonize with its constitution and laws already enacted." 9B U.L.A. 411 (1966).  But the need for deterring the use of motor vehicles in the drug traffic was not overlooked entirely. [***8] Section 291 of Art. 27 provides that "[a]ny * * * vehicle * * * which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the [*197] same, shall be deemed a common nuisance.  No person shall keep or maintain such a common nuisance." It seems fair to say that § 301 is aimed not at the innocent but at the guilty.  Clearly it is intended to provide "[i]n addition to any other fines or penalties * * *" (e.g., §§ 291 and 300) a deterrent to the relentless and satanic traffic in addictive drugs.  Equally clearly the proviso was inserted by the Legislature to preclude the confiscation of a vehicle whose owner neither "authorized [n]or permitted such use or employment."

   [**751] II.

   The question whether a conditional vendor can be held to be an "owner" as the word is used in § 301 must now be dealt with.  While, as we have noted, the question is novel to us, counsel have pointed to one nisi prius decision (Sherbow, J., in the Criminal Court of Baltimore, 1952) which, relying to some extent upon an unreported memorandum of an Assistant Attorney General, held that "the word 'owner' as used[***9] * * * [in § 301] includes the holders of conditional contracts of sale * * *" who had no knowledge of the unlawful use of the vehicles.

   In Black's Law Dictionary (4th ed. 1951) it is said that the term "owner" is a "nomen generalissimum, and [that] its meaning is to be gathered from the connection in which it is used, and from the subject matter to which it is applied." In Weinberg v. Baltimore & Annapolis R.R., 200 Md. 160 (1952), Judge Collins, for the Court, quoting from B & O R.R. v. Walker, 45 Ohio St. 577, 16 N. E. 475 (1888), said:

   "'The terms "owner" and "owning" depend somewhat for their signification upon the connection in which they are used.  "To own" is defined, "to hold as property; to have a legal or rightful title to; to have; to possess." And an owner is "one who owns; a rightful proprietor." An owner is not necessarily one owning the feesimple, or one having in the property the highest estate it will admit of.  One having a lesser [*198] estate may be an owner, and, indeed, there may be different estates in the same property, vested in different persons, and each be an owner thereof.' (Emphasis supplied.)" Id. 200 Md. at 166.[***10]
 
In Mayor & City Council v. Groh, 101 Md. 560 (1905), we held that a mortgagee was an "owner" within the meaning of a local condemnation statute and as such entitled to damages for the taking of his interest.  On the other hand, in Alban Tractor Co., Inc. v. State Tax Comm'n, 219 Md. 593 (1959), we held that "one who holds the legal title to tangible personal property only as security has never been, and is not now to be, taxed as an owner under the statutory scheme of taxation in this State." Id. at 599. But in Weinberg v. Baltimore & Annapolis R.R., supra, a lease which gave the railroad the right to terminate it before the end of the term should it "acquire its own bus terminal" was held to have come to an end despite the fact that it acquired only a leasehold interest in "its own bus terminal." We held that the words "'acquire its own bus terminal' mean that the railroad must become the owner of the bus terminal, not necessarily in fee simple but by ownership of an interest or estate therein as here acquired * * *." Id. at 167. In this regard, it should be noted that § 301 does not specify the kind of interest one must own to be protected from a forfeiture. [***11]

   What Judge Horney, for the Court, said in Huettner v. Savings Bank of Baltimore, 242 Md. 477 (1966), seems especially applicable here.  He said that where there is a conditional sales contract "possession * * * [is] delivered to the buyer but title and general ownership * * * [remain] in the seller, or the * * * assignee, pending payment of the purchase price by the buyer * * *." Id. at 481 (emphasis added).  See Beckwith Mach. Co. v. Matthews, 190 Md. 182 (1948); and 41 Op. Att. Gen. 115, 118 (1956). He said also in Huettner that "[t]he certificate of title issued by the D.M.V. is not a warrant of absolute ownership but is merely an indicia of ownership, which, like possession, may be rebutted by other evidence." Id. at 481-82.  The certificate in the instant case, [*199] of course, bears the notation that CCC holds a lien on the Cadillac.

   We think the Legislature intended the proviso to embrace innocent conditional vendors. Whether the assignees of all conditional vendors, in any and all circumstances, [**752] also were meant to be protected against forfeiture we are not now called upon to say and it should be understood that we refrain [***12]from so holding.  Given the circumstances of the instant case, however, we see no reason why the fact that CCC is technically Johnny's assignee should deprive it of immunity from forfeiture. Huettner v. Savings Bank of Baltimore, supra. After all, without its money Scott could not have bought the car.  Johnny has no stake in it and Scott has forfeited whatever interest he may have had.  CCC is the only one left with any real ownership in the car.

   III.

   Before looking around to see what has happened in other jurisdictions it ought, perhaps, to be recalled that forfeitures are odious. In 37 C.J.S., Forfeitures § 4 (b) at 8-9 (1943), it is said:

   "Forfeitures are not favored; they are considered harsh extractions, odious, and to be avoided when possible.  Statutes designed to relieve from the rigors of forfeiture are looked on warmly and construed liberally, so as to afford the maximum relief, and where a liberal construction of a statute will avoid the imposition of a forfeiture it will be so construed.  * * * For a statute to be construed so as to produce a forfeiture, its language must clearly show an intent to do so; forfeitures are never to be inferred from doubtful[***13] language."
 
See 36 Am.Jur.2d, Forfeitures and Penalties § 8 (1968); and 3 J. Sutherland, Statutory Construction §§ 603-06 (3d ed. 1943).  See also Ordway v. Central Nat'l Bank, 47 Md. 217, 241 (1877).

   The federal government and approximately twenty-four [*200] states, including Maryland, have vehicle forfeiture sanctions in their narcotics laws. See Note, Forfeiture of Innocent Lienor's Interest Where Automobile Used In Violation Of Narcotic Laws, 44 Ia. L. Rev. 598, 599 (1959). A survey of the state forfeiture statutes indicates that a substantial majority differentiate between the interests of an innocent "owner" and "lienor" and protection is provided for both.  See, e.g., Del. Code Ann. Tit. 11, § 2325 (1953).  The statutes of at least two states are silent in respect of what, if any, interest will be protected against forfeiture. See Mont. Rev. Codes Ann. § 54-112 to § 54-118 (1961); and N.C. Gen. Stat. § 90-111.2 (1965).  The Nebraska statute, on the other hand, states that purchasers of vehicles sold upon forfeiture "shall take title thereto free and clear of all rights * * * title and interest of all persons claiming to be[***14] owners thereof or to have liens thereon." Neb. Rev. Stat. § 28-472.01 (1969).

   There appear to be at least three forfeiture statutes, besides Maryland's, which protect against confiscation only the interests of innocent "owners." n1 The federal statute providing for the forfeiture of vehicles used to transport or conceal narcotics exempts only the interest of an innocent common carrier and an "owner * * * [whose] vehicle was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State." n2 49 U.S.C., § 782 (1963).  The federal courts have uniformly held that the holder of a security interest is not an "owner" within the meaning of the above quoted language [*201] and is thus not entitled to [**753] a judicial remission of the penalty.  See, e.g., General Finance Corp. v. U. S., 333 F. 2d 681 (5th Cir. 1964). It should be noted, however, that an innocent lienholder is not without a remedy.  He may obtain administrative relief from forfeiture by applying to the Secretary of the Treasury.  19 U.S.C., § 1618 (1965).  The federal statutes are discussed in Note, Forfeiture of Property [***15]  Used in Illegal Acts, 38 N. D. Law. 727 (1963).

 n1 It is interesting to note that the New Mexico forfeiture statute, which formerly protected only the interest of the "person owning such vehicle * * * [who] did not know * * * [or] could not have known" or its illegal use (Ch. 145, § 27 [1935] N.M. Laws), now provides protection against confiscating the interest of any innocent "legal or registered owner." N.M. Stat. Ann. § 54-7-26 (1969 Supp.).

n2 The Maryland statute, of course, exempts the interest of an "owner" who has not "authorized or permitted" the vehicle to be used illegally and would thus seem to protect a larger number of persons than the federal statute. Code, Art. 27, § 301 (1967 Repl. Vol.).

   The New York statute provides that the property subject to forfeiture may be returned "to the owner thereof" if "the ends of justice require * * * it." N. Y. Pub. Health Law § 3353 (4) (1954).  In City of Buffalo v. Brooks, 3 Misc. 2d 492, 155 N.Y.S.2d 758, opinion clarified, 3 Misc. [***16] 2d 875, 157 N.Y.S.2d 646 (Sup. Ct. 1956), aff'd, 5 App. Div. 2d 752, 169 N.Y.S.2d 447 (1957), the court, commenting on the City's argument that the statute was intended only to exempt owners in possession and not innocent conditional vendors, said:
 
"We cannot ascribe such a strict, narrow and strained interpretation to a remedial statute.  If we exclude those in that category as entitled to relief upon good cause shown, it is difficult to understand to whom the benefits of the statute are available.

   "It is a matter of common knowledge that a high percentage of automobiles sold are financed by conditional sales contract. Surely the legislature was not unaware of that which was and is common knowledge.  It did not intend to enact legislation that could seriously impede or obstruct the usual outlets of the automobile business."

   * * *

   "I hold that a conditional vendor is an owner and not a lienor within the meaning of the statute under discussion." Id. 155 N.Y.S.2d at 763.

   The Rhode Island statute exempts from forfeiture the [*202] interest of "any person owning such vehicle * * * [who] did not know and * * * by the exercise of due diligence could not have[***17] known" of the vehicle's illegal use. R.I. Gen. Stat. § 21-28-39 (1968).  At this writing the statute seems not to have been construed.

   The forfeiture of vehicles is not confined to violations of the narcotics laws.  A number of states (not including Maryland) and the federal government have enacted statutes to deter the use of motor vehicles in connection with violations of the liquor laws.  Several of these statutes contain clauses exempting from forfeiture the interests of innocent "owners" only.  The decisions dealing with the question whether the innocent lienholder is protected by such statutes are not in agreement.  Those cases which hold that the statute does protect the lienholder seem to proceed upon one or the other of two theories: (1) the legislature intended that the statute protect all innocent persons; see General Motors Acceptance Corp. v. State, 12 S.W.2d 968 (Tex. 1929); and West Barnes Motor Co. v. State, 95 So. 675 (Miss. 1923); see also Shrouder v. Sweat, 96 S. E. 881 (Ga. 1918); and State v. Jones-Hansen-Cadillac, 172 N. W. 36 (Neb. 1919); (2) the lienholder became an "owner" prior to forfeiture because a provision of the security agreement[***18] was breached when the vehicle was illegally used; see Naylor v. Simmons, 194 P. 94 (Idaho 1920) and Seignious v. Limehouse, 93 S. E. 193 (S.C. 1917). The latter theory can, of course, be employed in the case at bar since, as we observed early on, the security agreement provides that the "[p]urchaser agrees * * * not to * * * use [the vehicle] * * * illegally" and that "[i]f [the] purchaser defaults on any obligation or breaches any agreement * * * under this contract, [the] Seller may lawfully enter any premises where vehicle may be found and take possession of it." The argument [**754] might have been made (it was not) that CCC became the veritable "owner" of the Cadillac upon its being used illegally, thereby completely obviating the need for divining the intention of the Legislature.

   Those cases which reject the first theory appear to [*203] place great emphasis upon the notion that a lienor is not an "owner" within the generally accepted sense of the word and thus the statute should not be construed so as to protect the lienor's interest.  See Commonwealth v. Bowers, 304 Pa. 253, 155 A. 605 (1931); and State v. One Pontiac Coach Automobile, 55[***19] S. D. 8, 224 N. W. 176 (1929). The second theory was rejected by the court in Commonwealth v. One Five Passenger Overland Sedan, 90 Pa. Super. 376 (1927) because: (1) "the vehicle became subject to forfeiture at the same time the * * * [lienor's] right of possession arose, and the claim of the Commonwealth is paramount" (Id. at 382); and (2) to adopt the "ownership because of breach" theory would frustrate the operation and effect of the forfeiture statute. See also State v. One Studebaker Automobile, 50 S. D. 408, 210 N. W. 194 (1926). Cases interpreting vehicle forfeiture statutes employed to deter violations of liquor laws are collected and discussed in 14 A.L.R.3d 221 (1967).

   Of the various approaches noted above, the one employed in City of Buffalo v. Brooks, supra, seems to us to be persuasive and, of course, it is in line with our own thinking.  As has been said, forfeiture statutes should be construed liberally in favor of the claimant.  Such a construction, of course, should be consistent with the purpose of the statute.  The purpose of Code, Art. 27, § 301, supra, is to deter violations of the narcotics laws but not at the expense of innocent persons. [***20] It must be assumed that "the legislature was not unaware of that which was and is common knowledge [and that it] * * * did not intend to enact legislation that could seriously impede or obstruct the usual outlets of the automobile business." n3 City of [*204] Buffalo v. Brooks, supra. A contrary assumption would surely be unreasonable. n4

n3 It is notable that in 1950 (one year prior to the enactment of the Maryland forfeiture statute) 47% of all passenger car sales were accomplished with a conditional sales contract or with borrowed money.  The figure climbed to 58% by 1968.  It is even more interesting to note that 46% of new car sales in 1950 were financed as opposed to 69% by 1968.  U.S. Dept. of Commerce, Statistical Abstract of the United States 552 (90th ed. 1969).

n4 Professors Hart and Sacks suggest that in determining what purpose ought to be attributed to a statute, "[t]he statute ought always to be presumed to be the work of reasonable men pursuing reasonable purposes reasonably unless the contrary is made unmistakably to appear." H. Hart, Jr. and A. Sacks, The Legal Process 1157 (1958).

[***21]

   Decree reversed.

   Case remanded for the passage of a decree conformable with the views expressed in this opinion.

   Appellee to pay the costs.

   NOTE: Two days after this opinion was filed it came to our attention that the Legislature on 31 March, the last day of its 1970 session, enacted Senate Bill 883, repealing §§ 276 through 313D of Article 27 and substituting in lieu thereof §§ 276 through 302, under the new subheading "Health -- Controlled Dangerous Substances." The bill, sponsored by the Legislative Council, was introduced on 20 March.  Signed by the Governor on 28 April, it became Chapter 403 of the Laws of Maryland of 1970.  The effective date is 1 July 1970.  It is said to be "a comprehensive revision [of all laws concerning drugs] patterned after the suggested legislation proposed by the [U. S.] Department of Justice."

   Although the case was argued on the day (1 April) following the passage of Senate Bill 883 by the Legislature, counsel did not refer to the fact.  It will be observed that Chap. 403 makes what seems to be a significant change in the provisions relating to forfeitures. 

LICHTENBERG, et al. v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 356, September Term, 1969
 
Court of Appeals of Maryland
 
258 Md. 204; 265 A.2d 222; 1970 Md. LEXIS 991

 May  12, 1970, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Case remanded, without affirmance or reversal, for further proceedings conformable with this opinion, costs to abide the result.

CORE TERMS:  surety, liquidated damages, completion, construct, specifications, developer, easements, plat, deed, affirmance, reversal, performance bond, right to recover, general issue, guaranteed, recorded, issuance, roadway, streets

COUNSEL: Preston A. Pairo, with whom were Pairo & Pairo on the brief, for Jerome M. Lichtenberg et ux., part of appellants and by Ascanio S. Boccuti, with whom were B. Conway Taylor, [***2]  Jr., and Due, Whiteford, Taylor & Preston on the brief, for Security Insurance Company of Hartford and Fidelity & Deposit Company of Maryland, other appellants.

   John M. Court, Assistant County Solicitor, with whom was Phillip F. Scheibe, County Solicitor, on the brief, for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*205] [**223] This is an appeal from judgments of $14,500 and $5,400 recovered by Anne Arundel County (the County) in suits against Mr. and Mrs. Jerome M. Lichtenberg (the Lichtenbergs) and Security Insurance Company of Hartford, [*206] as successor by merger to New Amsterdam Casualty Company, in the first case, and against the Lichtenbergs and Fidelity and Deposit Company of Maryland, in the second.

   In July, 1965, the Lichtenbergs, who are experienced real estate developers, sought the County's approval of a plan to subdivide a part of Michaelton Manor, a development owned by them.  Anne Arundel County Code (1957) § 32-9 requires approval of the preliminary subdivision plat, and § 32-13 gives the subdivider several choices as to the[***3] manner in which the cost of road construction and of the installation of other facilities will be secured as a condition precedent to obtaining final approval of the plat. The Lichtenbergs chose the alternative offered by § 32-13 2(c):

   "(c) A written agreement may be made and recorded in the land records of the county, between the board of county commissioners and the developer to complete necessary improvements in the subdivision within a certain time, but prohibiting the issuance of deeds or the conveyance of property or contracts of sale for any lot in the subdivision or issuance of building permits until the work is satisfactorily completed or guaranteed by a contract between the board of county commissioners and the developer; such contract to be recorded in the land records of the county, and to be guaranteed by a surety performance bond of a surety company, or a personal bond secured by a certified check; * * *"

   On 21 July 1965 the Lichtenbergs entered into an agreement with the County in which they obligated themselves to construct certain roads in Michaelton Manor on or before 1 September 1967 in accordance with specifications filed with the agreement.  To the agreement[***4] was attached a performance bond for $14,500, signed by the Lichtenbergs as principals, with New Amsterdam Casualty Company [*207] (now Security Insurance Company of Hartford) as surety.

   The agreement with the County contained provisions pertinent to the issue before us:

   "Whereas, the parties of the first part have agreed to construct and complete the building of said roads in accordance with the specifications attached hereto on or before September 1, 1967, and for the purpose of guaranteeing the completion of the construction of said roads in accordance with this agreement and the plat * * * filed herewith and made a part hereof, the parties of the first part have executed a bond with approved surety in the amount of $14,500.00, which said amount is intended to be taken as liquidated damages and have delivered said bond to the party of the second part, and upon delivery of said bond and its approval and the completion of work, as aforesaid, the party of the second part agrees to take over and maintain said roads upon completion of work, as aforesaid."

   * * *

   "It Is Understood And Agreed by the parties hereto that if the parties of the first part fail to construct the[***5] roads by the time specified in accordance with the plans and specifications and to convey [**224] the roadbeds and drainage easements as herein provided or shall otherwise fail to perform this agreement as herein set forth, the party of the second part shall have the right to refuse to take over and/or maintain said roads until completed or, at its option may enter into and upon said roads and to construct said roads and the parties of the first part, as well as the bond given to secure the due compliance of this agreement shall nevertheless remain liable to Anne Arundel County, Maryland, to the full [*208] amount thereof, which sum shall be construed to be liquidated damages, and further to enable the party of the second part to carry out the above provision should it so elect, the parties of the first part have delivered to the party of the second part a fee simple deed with Special Warranty for said roads, streets, easements, structures and facilities which said properties the parties of the first part hereby warrant to be free of any liens or encumbrances and which said deed the said party of the second part may accept at any time it may deem desirable, and the parties [***6]of the first part do further warrant that they have not or will not encumber said roads, streets, easements, structures, and facilities." (Emphasis supplied).

   * * *

   "Nothing herein shall be construed to waive the right of the County to maintain a suit against the Principals and/or Surety for liquidated damages specified."

   These provisions were referred to in the bond:

   "Whereas, The above bounden Principal has undertaken to construct a certain roadway (or roadways) and other facilities in Anne Arundel County, Maryland, according to a certain agreement, plans and specifications with the County, dated . . . [no date was inserted], copies of which are attached hereto and made a part hereof, and

   "Whereas: It is one of the conditions of said agreement with Anne Arundel County, that the Principal Jerome M. Lichtenberg and Evelyn E. Lichtenberg, his wife, shall cause a bond for liquidated damages to be given to carry out and faithfully perform the conditions therein.

   "Now, Therefore, the Condition of this Obligation is such, That if the said Principal shall [*209] carry out the terms and conditions of said agreement, in every respect then this obligation to be void; otherwise[***7] to remain in full force and effect."

   For some time, nothing much appears to have been done on the roads.  For an unaccountable reason on 31 July 1967, two years after the first agreement had been signed, the County entered into a second agreement with the Lichtenbergs, covering additional road construction.  The format of the second transaction was identical with that of the first, even including the 1 September 1967 completion date, although strangely enough, the agreement was not accepted by the County until 25 September 1967.  This time, however, the penal sum of the bond was $5,400 and the corporate surety was Fidelity and Deposit Company of Maryland.

   September, 1967, came and went.  At the trial below, Lichtenberg testified that some paving had been done, apparently under the first agreement, in December of 1966.  The chief of the County's inspection division testified that the work was partially completed by January, 1968.  On 20 June 1968, the County's Department of Public Works commenced to press for completion, and on 1 October of that year the County notified the Lichtenbergs and their sureties that there had been a default under both agreements and demanded payment [***8]of the amounts specified in the bonds.

   Three weeks later, the County sued the Lichtenbergs and both sureties and moved for summary judgments.  The sureties and the Lichtenbergs filed general issue pleas and affidavits in opposition to the summary [**225] judgments. The sureties then cross-claimed against the Lichtenbergs.

    The cases finally came on for trial in July of 1969 and resulted in the entry of the judgments for the County against the sureties and judgments in the same amount in the sureties' favor against the Lichtenbergs.

   The question presented is a narrow one.  In their brief, [*210] the Lichtenbergs contend that it was error to permit the County to recover the amounts stipulated in the bonds when no damage was proved, since to permit a recovery of liquidated damages when the amount of damages is ascertainable is tantamount to allowing the recovery of a penalty; and that the County, to recover, must show that it asserted the remedies reserved to it under the agreements.  The County countered with the contention that these were statutory bonds and that recovery of the amounts of the bonds could be had without proof of actual damages.

   At argument before us, the[***9] Lichtenbergs raised another point: that subsequent to trial below, the work had been entirely completed, and the roads accepted by the County.  Although counsel for the County conceded that the roads had been accepted, there is nothing in the record before us to show that they were or to suggest the circumstances under which any acceptance took place.

   Because this may strike at the heart of the County's right to recover, we need not consider the County's motion to "strike" the appeal, grounded on the theory that the Lichtenbergs and the sureties are relying on a defense not available to them at the time they filed their general issue pleas -- that the roads had been substantially completed by the time the trial began.

   We shall remand the case to the trial court, without affirmance or reversal, for further proceedings, during the course of which the Lichtenbergs and their sureties will be accorded an opportunity to establish by competent testimony the manner in which the roads were conveyed to and accepted by the County.  It will then be possible for the court to determine what effect, if any, such an acceptance may have had on the County's right to recover on the bonds.  See Sioux [***10]  City v. Western Asphalt Paving Corp., 223 Iowa 279, 271 N. W. 624, 109 A.L.R. 608 (1937) and cases collected in Annotation, 109 A.L.R. at 625; 10 Appleman, Insurance Law and Practice, § 5837 (1943) at 60; Rule 835 b (8); and compare, Eastern [*211] Heavy Constructors, Inc. v. Fox, 231 Md. 15, 20, 188 A. 2d 286 (1963).

   Case remanded, without affirmance or reversal, for further proceedings conformable with this opinion, costs to abide the result. 

FRANKLIN v. FRANKLIN 
No. 332, September Term, 1969
 
Court of Appeals of Maryland
 
257 Md. 678; 264 A.2d 829; 1970 Md. LEXIS 1351

 May  5, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Affirmed.  Costs to be paid by appellee.

CORE TERMS:  divorce, Maryland Rule, desertion, mensa, personal safety, marital, custody, little doubt, young man, straighten, visitation, affection, furniture, mutually, married, talked, settle, elder, admits, love

COUNSEL: Emanuel Klawans and Noah A. Hillman for appellant.

   George B. Woelfel, Jr., for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*679] [**829] Little will be gained by recounting the trivia attending this domestic brouhaha.  We shall affirm the decision of the trial judge, Melvin, J., and in so doing we shall draw generously upon his version of what happened.

   The appellant (Regina) is 43; the appellee (Kenneth) is 52.  They were married in 1946.  The elder son, Kenneth, Jr. (Junior), is 21.  The younger son, Richard, is 12.  On 4 April 1968 Regina filed her bill for a divorce a mensa and the usual ancillary relief.  Kenneth's cross-bill for a divorce a mensa was docketed not long thereafter.  The case came on for trial on 2 January 1969. Two full days were required to produce the 250 pages of testimony.  In the words (slightly edited) of Judge Melvin:

   "Regina left the marital[***3] home in March, 1968.  (She says March 19th and Kenneth says March 5th.) I find that when she left she did so deliberately and with the intention on her part that the marriage relation would no longer exist.  The principal question in the case is whether she was legally justified in leaving.  She says she was so justified.  It is significant that she did not allege [*680] in her bill of complaint that the separation was mutually voluntary.

   "[**830] Regina's chief complaint and the reason given by her for leaving was the conduct of Junior and the failure of Kenneth to remove him from the home.  There is little doubt that the boy left much to be desired in his conduct, both in and outside the home.  Nor is there any doubt that his attitude towards his mother and his treatment of her were for the most part reprehensible.  Apparently, ever since he was sixteen years old he showed little respect or devotion towards her.  She admits, however, that Kenneth 'would try to reason with him' and 'tried to straighten him out,' sometimes even by 'fighting him.' According to Kenneth, the ill-feeling between Regina and Junior was mutual and, on her part, she 'showed no love' for her son, [***4] 'cursed him,' and in general 'treated him like a dog.' He says he tried to reason with her about the way she treated the boy but 'never got a civil answer from her.' In spite of this he told Junior that she was 'still his mother and [that he] must show her respect' and reprimanded him for his conduct towards her.  As noted above his efforts in this regard were admitted by Regina.

   "The situation with the son, and the fact that for other reasons the parties were not getting along too well with each other, resulted in a visit together to an attorney's office.  This visit took place approximately one month before Regina finally left.  At this meeting a separation was discussed.  She said she wanted Junior out.  According to her Kenneth told the attorney he wanted her out and she could have the furniture. He denies making such a statement, saying a 'lot of things' were discussed 'but nothing materialized.' In any event, they agreed to try to make a go of their marriage 'for a while' longer.  But [*681]approximately one month later Regina left, taking the furniture with her.  There is no evidence that, at the time she left, Kenneth was aware that she was leaving, by agreement[***5] or otherwise.  Nor is there evidence of any mistreatment of her by either the son or husband during that interim.

   "No doubt the relationship between Regina and Junior resulted in much unpleasantness for her.  But the responsibility for this unpleasant relationship can not be placed entirely on Kenneth, nor indeed entirely upon Junior -- although Junior's general conduct is certainly not to be condoned.  As the parties themselves recognized when they entered into a reconciliation agreement in 1963, their responsibility as parents is a 'joint responsibility.' Kenneth's attempts to 'straighten out' Junior have already been mentioned.  Admittedly it is the father's lot to discipline an unruly son, but the mother can be helpful also, and there is no evidence in the case of any efforts or suggestions on Regina's part to deal constructively with the situation.  Her only solution to the problem was to get Kenneth to put Junior out of the house.  I do not find that Junior's conduct toward her was such as to pose a serious threat to her personal safety, and there is no evidence corroborating her testimony that he has ever inflicted any physical injury upon her."

   * * *

   "Regina further contends[***6] that even though her leaving may have been without legal justification, Kenneth has acquiesced in the separation and therefore he should be denied a divorce. In short, she claims that Kenneth's conduct after the separation evidences a willingness on his part that the separation continue.  The evidence claimed to support this is the testimony of Regina [*682] that on two occasions, once through counsel and once by telephone to his place of employment, she offered to get together with him to discuss their differences, but he refused.  Kenneth admits these overtures to 'settle their differences' and that he told her they came 'a little too late.' He said they were made in December, 1968.  It will be noted that this was approximately nine (9) months after the separation and [that they] came at a time when the case had already been twice scheduled for trial on the merits.  It is also significant that [**831] Regina at no time offered to return to the home.  Her position, at best, has consistently been that she will not and can not return so long as Junior remained there.  Kenneth's position has been just as consistent that he was not willing to remove Junior from the family[***7] home.  As already indicated, it is my opinion that the failure or refusal of Kenneth to remove his son did not, under the circumstances, constitute marital misconduct on his part.

   "Under all the circumstances, I think that Kenneth's conduct after the separation amounted to mere acquiescence in circumstances he could not prevent, which is not sufficient to establish a voluntary agreement to separate."

   Judge Melvin dismissed Regina's bill of complaint and granted a divorce a mensa to Kenneth.  He awarded the custody of Richard to Kenneth and gave Regina liberal visitation rights.  In this appeal Regina contends Kenneth was guilty of constructive desertion, that she was not guilty of desertion, that she was not guilty of desertion because Kenneth consented to the separation and to its continuance, that custody should have been awarded to her and that Junior's conduct and Kenneth's refusal to put him out were properly in issue at the trial.  While we see no merit in any of these contentions the question of custody seems to call for some comment.

   [*683] Judge Melvin appears to have given this careful and thorough consideration.  We quote from his oral opinion at the conclusion[***8] of the evidence:

   "As you know I have talked to young Ricky, and I might say that he is probably the most sensible person I have talked to in this whole case.  I think that both Mr. and Mrs. Franklin should be very proud of him.  He impressed me as being a fine young man with intelligence, and, I think, an awareness of what the situation really is.  He expressed no bitterness or displeasure or lack of affection for either parent.  In fact, I am convinced in my own mind that he has a great deal of love and affection for both of them.  He doesn't want to go to one place to the exclusion of the other.  * * * [H]e did express the opinion that he would like to live with both parents, and of course that's a completely natural reaction for a normal, healthy twelve year old boy to have.  He knows that he can't live with both of the parents all the time under the present circumstances, unless the parties do become bona fide reconciled, and [he] expressed the opinion that he would prefer to spend most of the time at his father's home, and I am not really sure that he used the word most of the time. I think what he meant by that was that he would like to be able to call that his home; [***9] that's where his friends are, most of his friends, and that's what he considers to be his home, again a natural reaction and a natural opinion for him to have.  Under all the circumstances I feel in view of the fact that the child involved is a boy, twelve years old, growing up into all the problems involved with being a teenager, and taking into consideration as I think I should in a situation like that, his own feelings, since he appears to me to be a young man of some discernment, it would appear to me that the father [*684]should have the legal custody of the child but with liberal visitation rights on the part of Mrs. Franklin."
 
Indeed we think Regina has little to complain about in this regard.  The decree gives her the right to have Richard every other weekend, two weeks during the summer, Christmas and Thanksgiving every other year and at "such other or different times as * * * [they] may mutually agree upon." Moreover, if she elects to live near the home in Deale there is little doubt that she will see Richard pretty much at will.

   One of the odd things about the case is the fact that Junior told Regina before she left that he was about to get married and that[***10] he would thereafter live elsewhere with his wife.  And, as Judge Melvin [**832] pointed out, "there's very little, if any testimony, concerning any real difficulties that took place during that month.  [One of] the two big fights that have been mentioned took place almost two years ago, and the other one, as I recall, was testified to as having taken place in January [1968], I believe." Of course Junior, his wife and their infant child came back to the home in the fall but as he said it was only temporary and that he was "getting away from there in the spring." If, as Regina insists, Junior was the cause of their troubles, then with his exodus accomplished she and Kenneth may yet settle their differences.  After all they are still husband and wife.

   While we agree with Judge Melvin's findings of fact, we could not disturb them even if we did not agree, since they are not clearly erroneous.  Maryland Rule 886 a.  The applicable principles of law are too well settled to require discussion.

   Affirmed.

   Costs to be paid by appellee. 

COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLISRAILROAD COMPANY, et al.; THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROADCOMPANY, et al. 
No. 299, September Term, 1969
 
Court of Appeals of Maryland
 
257 Md. 529; 263 A.2d 592; 1970 Md. LEXIS 1334

 April  6, 1970, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  bus, driver, bus driver, front, passenger, carrier, sudden, traffic, looked, beside, intersection, brakes, stop sign, merging, exit, lane, definite, airport, violent, phantom, started, seat, own testimony, parking lot, stopping, suddenly, path, dynamite, merge, floor

COUNSEL: Douglas R. Due for Commissioner of Motor Vehicles, one of appellants; Martin Moncarz for Edwin J. Thalheimer, other appellant.

   Robert B. Barnhouse, with whom were Piper & Marbury on the brief, for The Baltimore & Annapolis Railroad Company, et al., appellees.

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

OPINIONBY: HAMMOND

OPINION: [*531] [**593] Thalheimer, a plaintiff below, who was injured when he fell to the floor of a bus, appeals from judgments in favor of the owner and the driver of the bus following directed verdicts at the close of the plaintiff's case.  A phantom car was said by the bus driver to have[***4] been involved and the jury found for Thalheimer in his suit against the Commissioner of Motor Vehicles.  The Commissioner joins Thalheimer in appealing from the judgments in favor of the owner and operator of the bus but does not seriously challenge the jury's finding that he was liable.

   The bus, a carrier for hire, was on a regular run and Thalheimer was a regular passenger. After it had discharged passengers at the lower level of the Terminal Building at Friendship Airport and begun its journey on what is referred to as Lower Road towards its next stop, Thalheimer started to walk from a rear seat to a front seat. The bus stopped at the stop sign facing Lower Road. Just beyond that point Lower Road, Upper Road (which runs in front of the upper entrance to the Terminal Building over Lower Road) and Service Road (which runs by the International Building and to the freight area) all merge. Upper Road comes down grade to the right of Lower Road and Service Road is to the right of Upper Road.  Lower and Upper Roads are one-way, Service Road is a two-way road, and remains so after the other two fully merge into it.

   [**594] Seeing no traffic ahead or to the right, the bus driver[***5] started up.  After he had gone about forty feet, he says a small white-topped foreign car cut sharply in front of [*532] the bus from the left.  The driver stopped the bus in time to avoid contact, the car kept on going, and Thalheimer fell to the floor of the bus.

   Traffic coming down Upper Road is faced by a "Yield" sign and beyond the sign goes tangentially right until it straightens out on the northbound lane of Service Road.  Traffic on Lower Road does likewise.  Traffic on both roads is directed into Service Road by arrows painted on the merging area beyond the end of those two roads.  Once on Service Road, traffic can proceed onto Elm Road (an extension of Service Road) and out of the Airport.

   To the left of the bus as it sat at the stop sign at the end of Lower Road, there was a parking lot enclosed by a wire fence.  Some distance beyond the end of Lower Road, and apparently not visible from the end of Lower Road, is Cedar Road, which at that time was used as an entrance to the parking lot on the left. While Cedar Road apparently was not designed as an exit from the parking lot, the airport authorities had provided for the contingency that a potential parker would find[***6] the lot closed and have to turn around and exit by installing a stop sign at the end of Cedar Road and its intersection with the merging area and signs directing a vehicle exiting therefrom to proceed in the proper direction away from the merging area.

   All the evidence in the case was produced by the plaintiff.  The only eyewitness was the bus driver, an adverse witness, whose deposition was read into evidence.  He stated that as the bus sat at the stop sign at the end of Lower Road, he looked to his right and straight ahead to see if traffic was sufficiently clear to permit him to merge. He did not look to his left -- to do so would have been "unnatural." Seeing that traffic was clear, he pulled forward into the merging area.  After proceeding approximately forty feet, he heard the sound of a car's muffler, or motor, which "could have been off to the [left] side." He simultaneously looked to the left and downward, saw the car "flash in his eye" directly in front of the bus, and "dynamited" his brakes. The car then [*533] continued out of the Airport. The bus came to a stop directly in front of Cedar Road.  The driver first stated that the car had come from Cedar Road, but[***7] later indicated that it also may have come out of Lower Road and around the left side of the bus.

   The other witnesses produced by the plaintiff were the plaintiff himself and the captain of the Airport police, who testified regarding the roads involved.

   We think the trial judge correctly directed verdicts for the owner and driver of the bus. The plaintiff in a negligence action bears the burden of establishing that it was the negligence of the defendant which caused his injuries without disclosing the intervention of any independent factor which caused those injuries.  Jones v. Baltimore Transit Co., 211 Md. 423, 426. A passenger on a bus who is injured as the result of a stop of the bus establishes an inference that the stop was due to negligence of the driver where he shows that the stop was extraordinarily sudden or violent (so long as in doing so there are not shown other circumstances, besides such negligence, which necessitated the stop).  Kaufman v. Baltimore Transit Co., 197 Md. 141, 146. It is, however, well settled in this State that a passenger on a bus or other common carrier who bases a negligence action on the sudden stop of the carrier cannot establish a case[***8] "merely by adjectival descriptions of the nature of the stop," but rather must show in addition some "definite, factual incident" created by the stop which shows it to be so abnormal and extraordinary that it can be legally found to have constituted negligence in operation. [**595]Retkowsky v. Baltimore Transit Co., 222 Md. 433, 438. n1

n1 Examples of cases in which such a "definite, factual incident" has been found to have been shown are Baltimore Transit Co. v. Sun Cab Co., 210 Md. 555, 562 ("rocking, swaying or jiggling of the streetcar that threw the other passengers back and forth"); Baltimore Transit Co. v. Pue, 243 Md. 256, 261-262 ("[the plaintiff fell] flat on her back from a standing position, with such force that the driver said he heard her hit the floor"; "the driver, on his own testimony, stopped the bus in the middle of the intersection from a speed of twenty-five miles an hour within a distance of half the length of the bus"); Kaufman v. Baltimore Transit Co., 197 Md. 141, 146 (dicta -- seated passenger hurled from his seat against the seat in front of him); United Railways & Elect. Co. v. Phillips, 129 Md. 328, 331 ("such a violent jerk that it caused the passengers to scream").

[***9]

   [*534] An examination of the record in the case at bar indicates that no such "definite factual incident" was shown by the plaintiff.  The bus driver described the stop and its surrounding circumstances variously as "quick"; "a dynamite stop" ("a quick stop would be what they call a dynamite stop"); "I hit the brakes and heard a sound of a thud.  There he was laying beside me;" "[I] heard the noise [of the car's muffler] and saw the top of that car right on me. That is why I had to dynamite my brakes to stop;" "I dynamited and looked at the same time." The plaintiff said "he slammed his brakes;" "I'd just started to get up and as I started he slammed his brakes, I was holdin' on to the seat like this, and I was reachin' for the front;" "the way he threw his brakes on I thought I was goin' to go out the window." He further stated that neither of the two other passengers who were on the bus at the time fell off their seats or showed other signs of disturbance, and that no packages or other things were thrown around.

   The only part of this testimony which might be considered a "definite factual incident" as opposed to mere "adjectival description" is the fact that the driver[***10] testified that he heard the plaintiff fall with a "thud." We find that such characterization standing alone is not one which necessarily is indicative of abnormality in the stop and thus not one which will permit the inference that the stop legally constituted negligence.  Such a "thud" could be produced by any fall, violent or otherwise, particularly when the passenger fell at a point directly behind the driver.

   However, even assuming that the plaintiff sufficiently proved the abnormality and negligence of the stop, there are other facts and circumstances which prevent the inference that the stop was due to the negligence of the driver. Kaufman v. Baltimore Transit Co., supra. Reasonable minds would not disagree that a driver who is [*535] confronted with the sudden appearance of another vehicle directly in front of him acts as a reasonably prudent man by stopping as quickly as possible.

   The appellants argue that this was an emergency which the driver himself created, since by his own testimony he admitted that he did not look to the left either prior to or during his exit from Lower Road into the merger area.  From this they draw the inference of negligence sufficient[***11] to take the case to the jury, saying that had the driver looked he would have seen the car in time to bring the bus to a comfortable stop.  The photographs in the record make it clear that upon stopping at the end of Lower Road the reasonable driver would be expected to look only forward and from that point the exit from Cedar Road is not even visible, if the car came from that point.  Once the driver begins his exit from Lower Road into the merging area, his attention is naturally directed to the front and the right so that he may successfully avoid traffic both ways on Service Road and that going his way on Upper Road.

   [**596] Again, if it be assumed that the driver's failure to look to the left might constitute negligence, that negligence was not the proximate cause of the plaintiff's injuries here.  The sudden entry into the direct path of the bus described by the bus driver was an intervening superseding cause of the harm to Thalheimer.  Even if the driver of the bus had looked to his left and seen the phantom car -- either behind him, beside him, or at the end of Cedar Road (which are the only possible positions of the car under the testimony produced by the plaintiff) -- [***12] he clearly was not bound to anticipate that the car would suddenly pull directly into his path. Jones v. Baltimore Transit Co., 211 Md. 423; Baltimore Transit Co. v. O'Donovan, 197 Md. 274; Oliver v. Baltimore Transit Co., 247 Md. 625.

   In Jones it was held that a verdict was properly directed for the Transit Co. in an action for injuries resulting from a sudden stop necessitated by a car, going in the same direction as the bus, suddenly cutting in [*536] front of the bus. The plaintiff contended that excessive speed of the bus was a concurrent cause of her injuries.  We said (at p. 429 of 211 Md.):
 
"Appellant's own testimony shows that the sudden stop of the bus was required by a car suddenly cutting in front of the bus. There was, of course, no contradiction of this evidence.  * * * The cause of the accident clearly was the unexpected and unforeseeable action of the automobile that violated the rules of the road by invading the lane of the bus."
 
Similarly, in O'Donovan it was held that a verdict should have been directed for the Transit Co., in an action for injuries resulting from the bus's collision with a disabled automobile at an intersection[***13] when the car, in violation of the boulevard rule, pulled into the bus's path. The plaintiff argued that the driver failed to maintain a proper lookout.  Judge (later Chief Judge) Henderson said for the Court (at pp. 278-279 of 197 Md.):

   "In the instant case we think the bus driver had the right to assume that the other vehicle, in a place of safety by the grass plot, would remain there and yield the right of way.  We find no merit in the contention that the bus driver was at fault in failing to observe the automobile when it made its initial stop by the stop sign, nearly 100 feet from the point of impact.  * * *

   "The chief contention is that the bus driver failed to stop 'when it was, or should have been, apparent to him that the automobile was standing disabled ahead of him.' * * *

   "* * * Taking [the automobile driver's] testimony in its most favorable light, his car stopped, with its whole length blocking the eastbound lane a matter of seconds before impact.  * * * But whether it could have been stopped sooner or not, the proximate cause of the plaintiff's [*537] injury was the unexpected intrusion into or blocking of the eastbound lane by the [automobile]. It was[***14] not negligence for the bus driver to make an emergency stop under the circumstances."

   The appellants find solace in Baltimore Transit Co. v. Pue, 243 Md. 256, where it was found that the jury could have found that a concurring and contributing cause of the sudden stop at an intersection made by the bus driver was his failure to maintain a proper lookout.  If in the case at bar the phantom car came from behind or beside the bus, Pue is distinguishable from Jones and the case at bar, in that in Pue the car which was coming west on 40th Street as the bus was coming east turned in front of the bus, necessitating the sudden stop, and had to have been seen had the bus driver looked at the road instead of the traffic light at the intersection. The bus driver in Pue never saw the car in its proper lane since his attention was centered exclusively on the [**597]traffic light he was approaching.  He saw the car turning directly in front of him at the intersection just in time to avoid hitting it.

   If, on the other hand, the phantom car in the case at bar emerged from Cedar Road, Pue is distinguishable from O'Donovan and the case at bar in that the boulevard[***15] rule did not apply to the Pue situation.  Tates v. Toney, 231 Md. 9.

   These reasons persuade us that verdicts were properly directed for the appellees.

   Judgments affirmed, with costs. 

HARRIS USED CAR CO., INC., et al. v. ANNE ARUNDEL COUNTY,MARYLAND 
No. 286, September Term, 1969
 
Court of Appeals of Maryland
 
257 Md. 412; 263 A.2d 520; 1970 Md. LEXIS 1322

 April  1, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

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

CORE TERMS:  non-conforming, subject property, abandonment, spent, garage, zoning, quonset hut, cinder block, salvage, tires, stuff, zoning ordinance, nonconforming use, ordinance, abandoned, bought, truck, effective, dollars, junk, used car lot, junk yard, certificate, estoppel, tractor, stored, gates, expenditure, chancellor, agricultural

COUNSEL: William J. Boehm and Stanford G. Gann, with whom were Levin, Gann & Hankin on the brief, for appellants.

   Paul F. Borden, Assistant County Solicitor, with whom was Phillip F. Scheibe, County Solicitor, on the brief, for appellee.

JUDGES: Hammond, C. J., and Barnes, Finan, Singley and Digges, JJ.  Singley, J., delivered the opinion of the Court.  Barnes, J., dissents.  Dissenting opinion at page 419 infra.

OPINIONBY: SINGLEY

OPINION: [*414] [**521] In the summer of 1964, Harris Used Car Co., Inc. (Harris) purchased from Edward G. Lavender a tract of approximately 3 acres on Evergreen Road about 100 feet west of Route 3 in Gambrills, Maryland, in the Fourth Election District of Anne Arundel County (the County).  On 24 April 1964, Lavender, acting in Harris' behalf, had obtained[***3] from a County zoning official an Occupancy Certificate authorizing the tract, which was zoned agricultural, to be used as a "Used Car lot and Salvage auto garage." Attached to the application for the certificate was the sworn statement of Lavender and three residents of the area that "* * * the Garage on Evergreen Road in Gambrills, Maryland, owned by Edward G. Lavender, has been used as a garage continuously since 1942."
 
   Relying on the permit, Harris moved some vehicles from Baltimore and commenced the operation of an automobile junk yard on the property.  On 17 December 1965, the County notified Harris that it was voiding the Occupancy Certificate because it had been issued in error.  No appeal was taken to the County's Board of Appeals, but after the time for appeal had expired, Harris requested the County's Office of Planning and Zoning "* * * to review this matter with the hope of reissuing the Certificate."

   Six months later, in July of 1966, the County filed a bill in equity against Harris, its president and the manager of the junk yard seeking an injunction forbidding the use of the property for a "used car, salvage auto garage, and junk business * * *." [**522] The case[***4] finally came on for trial in October of 1968, and from a decree entered on 6 March 1969, enjoining Harris from using the property for any purposes not permitted in an agricultural zone and requiring the removal of "all wrecked and salvage vehicles and parts and used cars," Harris has appealed.

   Harris raises two questions: (i) Does it have a valid non-conforming use? (ii) Assuming that a non-conforming [*415] use has not been established, is the County estopped from revoking the Occupancy Certificate by delay?

   (i)

   The trial below extended over two days, during which the court heard fourteen witnesses.  The testimony was sometimes conflicting, often indecisive and discursive.  At the conclusion of the hearings the chancellor (Melvin, J.) filed an opinion in which he found the following facts:

   "1. The defendant corporation purchased the property (3.1 acres) in August, 1964.

   "2. The former owner, Edward T. Lavender, conducted an extensive auto junk and salvage business on the property from about 1940 until 1945.  Thereafter, pursuant to a federal order, Lavender disposed of practically all the used and junked cars and discontinued the business in 1946 or 1947.  Although there [***5]may have been two or three abandoned vehicles on the property at that time, the property was no longer used by Lavender as an auto junk yard or used car lot.

   "3. Between 1945 and 1947 a quonset hut and cinder block building were erected on the property in which Lavender stored some old auto parts.

   "4. For a two year period between 1946 and 1948 Lavender rented the cinder block building to Laurence W. Chaney who used the building to maintain his vehicular equipment used in connection with his lumber business.  Chaney, a defense witness, testified that during this two year period, Lavender conducted 'no business' on the property.

   "5. For another one or two year period prior to 1961, the cinder block building was leased to a sewer cont[r] acting company which used it to store and maintain its vehicular equipment.

   "6. In 1961 the cinder block building 'and the ground under it' were rented to Mitchell Harris [*416] [who was in no way connected with the appellant Harris] who said he used the building until March of 1964 only to repair his own vehicles.  In March and April 1964 he used it to 'work on other people's cars' also.  He also said that during the three year period, [***6] 1961-1964, Lavender conducted no business on the property.

   "7. On April 24, 1964, a county zoning official issued a zoning certificate of occupancy to the corporate defendant [Harris] purporting to authorize use of the property as a 'used car lot and salvage auto garage.'

   "8. On December 17, 1965, this certificate of occupancy was revoked by the Office of Planning and Zoning and no appeal was taken from this administrative action by the defendants."

   We are mindful that Rule 886 a provides that when a case has been tried below without a jury the judgment of the lower court will not be set aside on the evidence unless it is clearly erroneous.

   There is substantial evidence in the record to support the chancellor's conclusion that Lavender had abandoned his use of the property as an automobile junk yard or used car lot by 1947, which was several years prior to the effective date of the first comprehensive zoning ordinance for the Fourth Election District, within which the property lies, on 25 July 1950.  We have reviewed this finding, as we must, in the light most favorable to the party prevailing [**523] below, Space Aero Products Co. v. R. E. Darling Co., 238 Md. 93, [***7] 105, 208 A. 2d 74, 699 (1965) and on the record before us cannot hold that the finding was erroneous much less clearly erroneous.

   Sec. 35-10 of the Zoning Ordinance of Anne Arundel County, effective 1 July 1952, provides:

   "A lawful nonconforming use existing on the effective date of the adoption of this chapter may continue; provided, however, upon any change from such nonconforming use to another [*417] nonconforming use in a more restricted classification, or to a conforming use, or in the case of the abandonment of such nonconforming use for the period of one year, the right to continue such original nonconforming use shall cease.  A nonconforming use may change to a use permitted in the most restricted district in which such existing nonconforming use is permitted under this chapter or to a more restricted classification." Zoning Ordinance of Anne Arundel County (1958).

   In its brief, Harris asserts that the date on which zoning of the area first became effective was 2 December 1947, citing Laque v. State, 207 Md. 242, 249, 113 A. 2d 893 (1955). We are not persuaded by this argument, because the property in Laque was located in the Fifth Election District, [***8] where the ordinance before the Court had first been made applicable to that District by a resolution of the Board of County Commissioners adopted on 2 December 1947. 

   As we see this case, the issue is not necessarily whether the non-conforming use was abandoned, compare Landay v. Bd. of Zoning Appeals, 173 Md. 460, 196 A. 293, 114 A.L.R. 984 (1938) with Dorman v. Mayor & C.C. of Baltimore, 187 Md. 678, 51 A. 2d 658 (1947) but rather whether the property was being used for any non-agricultural purpose on the date the first zoning ordinance became effective, whether it be 25 July 1950, as the court assumed, relying on Laque v. State, supra, or 1 July 1952, when the first comprehensive ordinance became effective for the entire County, as the County contended, Stieff v. Collins, 237 Md. 601, 207 A. 2d 489 (1965). There was evidence to support a finding that no such use existed on either of these dates.  A mere intention to use is not enough to establish a non-conforming use.  Chayt v. Bd. of Zoning Appeals, 177 Md. 426, 9 A. 2d 747 (1939); Beyer v. Mayor & C.C. of Baltimore, 182 Md. 444, 34 A. 2d 765 (1943).

   [*418] (ii)

   Harris would have us hold that the[***9] County was estopped from revoking the Occupancy Certificate because while a permit illegally, erroneously or mistakenly issued vests no rights in the holder, Mayor & C.C. of Baltimore v. Shapiro, 187 Md. 623, 634, 51 A. 2d 273 (1947), in the absence of fraud, substantial expenditures made in reliance on the permit may confer certain rights.  Town of Berwyn Heights v. Rogers, 228 Md. 271, 179 A. 2d 712 (1962); 2 Metzenbaum, Law of Zoning Ch. X-f-1 (2d Ed. 1955) at 1167; 2 Rathkopf, The Law of Zoning and Planning, Ch. 57-6 § 3 (3d Ed. 1966); 8 McQuillin, Municipal Corporations § 25.95 (3d Ed. 1965) at 272.

   Assuming the correctness of Harris' contention, the record provides no hook on which Harris can hang its hopes.  Only two oblique hints appear, one in the testimony of Burgone, the manager of Harris' yard, when he described a meeting with a County zoning official:
 
"I said that we had spent several thousands of dollars on -- after we got the permit.  We had the permit.  We was in business in Baltimore City.  We disposed of our business and come down here and invested thousands of dollars n1 and I [**524]would like to know what was happening."
 
The[***10] second appeared, curiously enough, when Lavender was being cross examined by the County's attorney:
 
"Q41 And I imagine that this was a condition of your contract with Harris that he would be able to operate the property as a Used car and salvage business when he bought it?
"A No, I told them that I used to run a junk yard there and he asked me, 'did you do any burning,' and I said, 'Yes, I did [*419] burning.' And that was all.  Now whether he [in] ferred that I sold it to him as a going business or not I don't know.
"Q42 What I am getting at is you know the property is zoned agricultural?
"A Yes, sir, it was zoned agricultural.
"Q43 There's quite a difference between the price [of] agricultural land and commercially zoned land?
"A Yes."
 
Later Lavender admitted that Harris did not settle for the property until the Occupancy Certificate had been issued.

n1 At argument, Harris' counsel said that expense had been incurred in moving an unspecified number of cars from Baltimore to Gambrills.

[***11]

   It is quite remarkable that there is not a shred of evidence of how many "thousands of dollars" Harris spent, or on what they were spent, and neither an intimation of the price Harris paid for the property, nor an opinion of its value if it be limited to agricultural use.  The proof before us fell far short, under our decisions, of sustaining Harris' claim of a vested right.  In Ross v. Montgomery County, 252 Md. 497, 250 A. 2d 635 (1969), $56,000 had been spent in architect's fees in reliance on a building permit which was nullified by a zoning change; in Mayor & C.C. of Baltimore v. Shapiro, supra, 187 Md. at 634, nine cars had been towed to a lot and dismantled; and in Board of County Comm'rs of Anne Arundel County v. Snyder, 186 Md. 342, 46 A. 2d 689 (1946), "several thousand dollars" had been spent on grading and landscaping.  In all three cases, we held that the expenditure or change in position raised no estoppel. To rely on estoppel, Harris would have had to show substantial prejudice.  This he has failed to do.

   Decree affirmed, costs to be paid by appellants.

DISSENTBY: BARNES

DISSENT:  
Barnes, J., dissenting:

   I dissent because in my opinion (1) the majority[***12] is in error in concluding that there was no non-conforming [*420] use; (2) the trial court was clearly in error in concluding that there was an abandonment of the non-conforming use it assumed, arguendo, to have validly existed; and, (3) in any event, there was sufficient evidence to establish an estoppel against the County from revoking the Occupancy Certificate.

   (1)

   It should be pointed out, in limine, that the trial court never decided that no valid non-conforming use existed.  It decided the case primarily on the ground that the non-conforming use -- assuming without deciding that it validly existed -- had been abandoned. In its opinion, the trial court stated:
 
"The first comprehensive zoning ordinance for the Fourth Election District in which the subject property is located became effective July 25, 1950.  The first comprehensive zoning ordinance covering all of Anne Arundel County was adopted July 1, 1952.  There is some question in the court's mind as to which of these two dates should be regarded as the critical date with respect to nonconforming uses.  However, for the purposes of this case it is not necessary to decide which date is the decisive[***13] one for even assuming July 25, 1950 to be the correct date, and further assuming, without deciding, that a nonconforming use [**525] for a used car lot and salvage yard existed on that date, the evidence is clear that such use was abandoned for much more than a year prior to the filing of the instant suit."

   The majority, however, although stating that there was substantial evidence to support the chancellor's considering that there had been an abandonment of the use, takes the position that "the issue is not necessarily whether the non-conforming use was abandoned, * * * but rather whether the property was being used for any non-agricultural purpose on the date the first zoning ordinance became [*421] effective, whether it be 25 July 1950, as the court assumed, * * * or 1 July 1952, when the first comprehensive ordinance became effective for the entire County, as the County contended * * *." It is clear to me that the Chancellor did not decide this issue below, that his eight findings of fact do not address themselves specifically to the non-existence of any use of the subject property for a used car lot and salvage auto garage on the critical dates, and that the evidence[***14] in the record indicates that there was such a use on those dates.

   Before discussing the testimony before the lower court, I should state that I have grave doubts that this Court should decide the question of the existence of the non-conforming use in view of the fact that the lower court did not decide it.  Maryland Rule 885 provides in part as follows:

   "This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; * * *."

   Not only does the record fail to show that this issue was decided by the lower court, but the record plainly shows that it was not decided by the trial court.

   See Higgins v. Mayor and City Council of Baltimore, 206 Md. 89, 101, 110 A. 2d 503, 509 (1955) and Hare v. Mayor and City Council of Baltimore, 200 Md. 477, 486, 90 A. 2d 217, 221 (1952).

   Assuming, arguendo, that the issue is properly before this Court, it appears to me that the testimony established and the Chancellor found that the former owner, Lavender, "conducted an extensive auto junk and salvage business on the property from about 1940 until 1945" and that because of a federal[***15] order he had "disposed of practically all of the used and junked cars * * * in 1946 or 1947." During that period, between 1945 and 1947, Lavender erected on the property a quonset hut and a cinder block building in which he stored old auto parts.  The erection of these buildings for commercial purposes and their [*422]actual use with the surrounding land for those purposes, in an otherwise agricultural area, was notice to the surrounding property owners and to the public generally that the land was being devoted by its owner to a commercial use.  See Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A. 2d 731 (1967), and cases therein cited, and Roach v. Board of Zoning Appeals, 175 Md. 1, 199 A. 812 (1938).

   Hugh M. Proutt, who has lived in the neighborhood of the subject property since 1952 and who was familiar with the subject property in 1939 and thereafter, described the use of the property in 1939 for selling used cars and parts.  He testified the property had a hundred and fifty or two hundred cars on it at one time or another.  "They were all back in the woods." Lavender "phased out during the war [World War II]." In 1950, Lavender had reduced the number [***16]of automobiles "to four or five cars he had left there sitting down back in the woods." The quonset hut, erected in possibly 1945 or 1946, was used by Lavender to keep "some used parts in there and his wife kept the tractors in there, and wagons, different stuff." The cinder block garage, built prior to 1947, "had used parts in there, tires. I think the Chaney Lumber Company rented it for a while to grease and change oil in their trucks and tractors and repair them there." In further explanation of the use of the subject property in 1950 Mr. Proutt stated: "Well I don't think he had over two, three [**526] or four back there, but I know he had a couple of tractors and he had old fencing and used wagons back there, and he had the garage filled up with tires and parts and in fact I rented part of a locker in there, freezer locker in there." When Lavender leased the property to Mitchell Harris in 1963 or 1964, Lavender "had one or two [vehicles] down in the woods behind the garage. I know he had an old packard there for a long time.  I know he had another tractor that sat out front there that he finally sold to somebody back on Evergreen Road.  "The concrete garage was used regular[***17] for parts in there." From 1947 until the Mitchell Harris lease, Lavender had "quite a few scattered around there.  Some behind -- in fact he had a [*423] scale built out on the side of Route 3 -- 301, that was in front of the place and he had stuff in there, he used until the road come by in 1958 and he had to tear that down.  * * * he put it [the scale] there to * * * weigh the junk but I don't think he ever got the scale put in, it was a scale house." In reply to a question, "So far as you know did Mr. Lavender ever cease operations on that premises," Mr. Proutt answered, "Not as I know of, no." He also testified that Lavender continued to use the buildings for automobile parts.  "He bought cars and take [took?] parts off them and sold them, kept the tires and whatever good parts there were on the later model cars."

   Lawrence W. Chaney, who had rented the cinder block building from Lavender from 1946 to 1948 and who was generally familiar with the subject property, testified that he used the building for a maintenance shop and that Lavender from 1948 forward had two or three vehicles scattered on the property and other "stuff" he had bought from the Government.  He testified: [***18] 
 
"He [Lavender] had bought the stuff that resembled, I don't know what they really were, they just resembled gates, and had some stuff he had bought from the Navy.  I think he had some machinery, some lathes and stuff like that, stored in the building, stuff that he had to be sold, machinery.  There was lathes, a press and stuff like that."

   Vernon Hardesty, in the crane rental business who lives approximately three miles from the subject property, used to help Mr. Lavender in his scrap business before he joined the Army in 1950.  He helped to build the quonset hut. In 1948 he worked for Lawrence Chaney and greased trucks in the concrete block building. Hardesty testified that Chaney
 
"used it to grease trucks and to service trucks and they also had a mechanic there.  His name was Thomas, Lawrence Thomas or Lowell [*424] Thomas.  I don't recall his first name.  He had, also had the parts there in the quonset hut. He had tires. As a matter of fact I got a few tires from him.  I bought some tires from him out of that shed."
 
He visited Mr. Lavender in 1954 after he had been discharged from the service, and he observed that there were automobiles parked[***19] in front of the quonset hut and beside the house.  He signed a "petition" for Mitchell Harris in the early 1960's "stating that this was a property being used for automotive service."
 
   John H. Hamilton, whose property adjoins the subject property, testified that in 1941 he asked Mr. Lavender for a job and was given one tearing down motors and taking crank shafts out of motors.  When Mitchell Harris became tenant there were four cars on the property -- "an old Buick, a Mercury and a Ford, and a Chevrolet, because I went to Lavender to buy the wheels off.  I wanted to put them on a pickup truck and Mr. Lavender say he couldn't sell it to me." Some of the cars were down in the woods.  There was a "20-30 tractor down there, and old, old one," and there was "a caterpillar there, an old '50 caterpillar." There were also "a lot of old parts and stuff * * * scattered around there."

   [**527] Edward C. Lavender, who operated the Arundel Salvage Company at the subject property, testified in regard to his operations on the subject property. In 1943 he had about 90 cars on the place; in 1944 about 20 or 30; and, in 1945, 1946 and 1947 about seven.  In 1949 he gave two of the cars to someone[***20] to get them out of the way.  In 1950 he thought there were three or four cars there.  They were located back of the garage. In addition to the cars he had other items on the subject property, i.e., "* * * government aerials, or something.  We sold them as gates and I bought quite a lot of stuff, of that surplus government stuff, and I had in the garage a lathe, a milling machine, drill press, and a power saw that I bought at government surplus, and something else.  I just [*425] don't remember what it was.  Oh, it was two lathes.  There was a bench lathe and a big, I think it was a twelve inch length or ten inch length, and the other one was about six inch length." He built the quonset hut and the cinder block building around 1945 or 1947.  In 1950 and thereafter "if somebody would come and want to sell his car or something, I would buy it off him." He recalled buying a mobile crane from Byrd Brothers Company, as well as a shear to cut iron and sold some scrap metal to them around 1952 or 1955.  He recalled advertising in the paper to sell the gates for $1.00 or $1.50 a piece.  The last sale of scrap iron to Byrd Brothers Company was between 1957 and 1960.  During the tenancy[***21] of Chaney Lumber Company of a portion of the cinder block building, used for repair work on trucks, Mr. Lavender used the other stalls for storing "some tires and a few motors and generators and starters and carburetors and I don't know what all." In the quonset hut there were stored "motors, tires and heads a few rear ends and different things like that." While Mitchell Harris was tenant, Lavender sold a bulldozer, trailer and truck from the subject property and bought one or two cars and sold them to Harris.  He testified that he procured the occupancy permit on advice of an attorney when "Harris was getting his license.  . . ."

   Verni Gregg Burgone, manager for Harris, testified that when he first went on the subject property, after the company assumed control of it, "there were some vehicles around the back . . . I had to go down and clear off the property --"

   The witnesses for the County, in my opinion, did not establish the nonexistence of the non-conforming use or the cessation or abandonment of it. Charles O. Smith, an investigator for the County Planning and Zoning Office, who lives some three miles from the subject property stated that between 1948 or 1949 and 1953 or 1954[***22] -- a five year period -- he observed no activity whatever on the subject property. When asked if he noticed any vehicles on the property, however, he stated "There may have been [*426] some farm tractors or may have been a couple of vehicles that wasn't in view, but I never observed any on the property." When asked on cross-examination in regard to what was in the quonset hut and cinder block building, he stated "I never was in either one therefore I wouldn't know." When asked if he had seen the old vehicles back of the quonset hut down in the ravine, he said he did not see any, but admitted he had never walked over the property through the woods.

   Russell C. Turner testified he had not seen radiators, tires, batteries and parts on the subject property or any fencing or war surplus materials, but he had never walked in the ravine or behind the quonset hut.

   In summary, the overwhelming weight of the evidence establishes the fact that the subject property was used for a salvage or junk yard at the time of the critical dates necessary to establish a non-conforming use, and the weak negative evidence produced by the County was of little value in view of the admissions that the County's[***23] witnesses had not been on the subject property and thus would have been unable to see the old automobiles, parts, gates, etc., in the buildings and wooded ravine.  [**528] As I have already observed, the lower court made no finding that a non-conforming use had not been established (it was assumed, without deciding, that one did exist); in my opinion, if such a finding had been made, it would have been clearly in error.

   The majority states: "There was evidence to support a finding that no such use existed on either of these dates [July 25, 1950 or July 1, 1952].  A mere intention to use is not enough to establish a non-conforming use.  Chayt v. Bd. of Zoning Appeals, 177 Md. 426, 9 A. 2d 747 (1939); Beyer v. Mayor & C.C. of Baltimore, 182 Md. 444, 34 A. 2d 765 (1943)." I have been unable to find sufficient evidence to support such a finding and, in any event, the trial court made no such finding as I have already stated.  The majority is correct in stating that a mere intention is not enough to establish a non-conforming use, but there was far more in the present case than a mere intention.  Mr. [*427]Lavender not only continually stored old automobiles, [***24] gates, parts, etc., on the open premises and sold them from time to time, but prior to 1950 he erected the quonset hut and the cinder block building in which prior to, at and after the critical dates (cited by the majority) he stored parts, tires, etc., and also sold them from time to time.  In my opinion, these were ample manifestations of Mr. Lavender's intention to use the subject property for the non-conforming purposes on the critical dates.  The facts in the present case distinguish it, in my opinion, from the Chayt and Beyer cases relied on by the majority.  In Chayt, vacant land, owned by the Maryland Jockey Club and held for the intended future expansion of a stable, was unused and unimproved when the City of Baltimore enacted a zoning ordinance placing the vacant land in a residential use district.  A majority of the Court (three judges dissenting) held that under the provisions of the Baltimore City Zoning Ordinance there was no "existing use" to give the vacant (and unused) land the status of a non-conforming use.  Chief Judge Bond, for the majority of the Court in Chayt, quoting from the opinion of the Supreme Court of Pennsylvania in the Appeal of Haller [***25]  Baking Co., 295 Pa. 257, 261, 145 A. 77, 79, stated:

   "'As understood in the ordinance 'existing use' should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose; i.e., the conduct of business.'"

   It would be difficult to find a more effective way to make known to the community the non-conforming character of the use of the subject property than to store and sell used automobiles, tires, gates, and other salvage materials on the land itself and to erect two intended commercial buildings -- a quonset hut and cinder block building -- on the premises which were actually used for the storage and sale from time to time of automobile parts, tires and miscellaneous articles of like nature.

   The Beyer case did not involve the establishment of a [*428] non-conforming use which had clearly existed when the Baltimore City Zoning Ordinance was passed in 1931.  The question in Beyer was whether the non-conforming use had been abandoned in 1938.  I will consider this case more fully later in this opinion on the question of the alleged abandonment of the non-conforming use.

   The present case has certain[***26] similarities to Nyburg v. Solmson, 205 Md. 150, 106 A. 2d 483 (1954). In Nyburg, there was an attempt by the Board of Municipal and Zoning Appeals of Baltimore City to limit the non-conforming use of an open space in front of the owner's garage to the storage of 10 vehicles, the use allegedly made of the open space when the Baltimore City Zoning Ordinance was passed.  This restriction was struck down by the Baltimore City Court on appeal from the Board's decision and this Court affirmed the order of the Baltimore City Court.  Judge (now Chief Judge) Hammond stated for the [**529]Court, after reviewing the evidence:
 
"The evidence fully supports a finding that the use was continuous, substantial and commercial.  The use meets the test adopted in Chayt v. Board of Zoning Appeals, 177 Md. 426, 434, of an existing use; that is to say, the utilization of the premises so that they are known in the neighborhood as being employed for the conduct of a given business."
(205 Md. at 159, 106 A. 2d at 487).

   See also Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A. 2d 731 (1967), supra; Higgins v. City of Baltimore, 206 Md. 89, 110 A. 2d 503 (1955), supra; [***27] Hare v. Mayor and City Council of Baltimore, 200 Md. 477, 90 A. 2d 217 (1952), supra; Amereihn v. Kotras, 194 Md. 591, 71 A. 2d 865 (1950); and, Roach v. Board of Zoning Appeals, 175 Md. 1, 199 A. 812 (1938), supra.

   (2)

   In my opinion, the lower court was clearly in error in holding that there had been an abandonment of the non-conforming [*429] use.  The landmark case on abandonment of a non-conforming use is Landay v. Board of Zoning Appeals, 173 Md. 460, 196 A. 293, 114 A.L.R. 984 (1938). That case involved properties on Greenmount Avenue in Baltimore City used for a junk business when the Baltimore City Zoning Ordinance was passed, but which thereafter were vacated for three years when the junk use was discontinued.  The appellant Landay then renewed the junk use and demanded and was refused a certificate of occupancy for this use by the Zoning Commissioner, who was affirmed by the Board of Zoning Appeals.  In reversing the Baltimore City Court's order sustaining the Board, this Court stated:

   "Abandonment in law depends upon the concurrence of two, and only two, factors; one an intention to abandon or relinquish; and two, some overt act, or some failure[***28] to act, which carries the implication that the owner neither claims nor retains any interest in the subjectmatter of the abandonment. 1 C.J.S. Abandonment, 8.  Time is 'not an essential element' of abandonment, although the lapse of time may be evidence of an intention to abandon (Id., 9, 16), and where it is accompanied by acts manifesting such an intention it may be considered in determining whether there has been an abandonment. Nor is mere non-user evidence of abandonment unless it continues for the statutory period of limitations of actions to recover the right or property.  Id., 16.  It is said too that: 'It is a universally accepted principle that mere non-user of property over a period of time, when unaccompanied by any other acts indicating an intention to relinquish or abandon title thereto or ownership thereof, does not amount to an abandonment.' 1 C.J.S. 10."
(173 Md. at 469-70, 196 A. at 297).

   It should be pointed out that the applicable ordinance [*430] in the instant case provides that "in case of the abandonment of such nonconforming use for a period of one year, the right to continue such original nonconforming use shall cease." Thus, there[***29] is a one year period instead of a three year period (the period of the Statute of Limitations) mentioned in the quotation from Landay, supra.

   Landay was cited with approval and followed by this Court in Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 34 A. 2d 765 (1943), supra.  Judge (later Chief Judge) Marbury quoted in the opinion in Beyer the above quoted portion of the opinion in Landay.  In the Beyer case, the Court found that there had been an abandonment of a nonconforming slaughterhouse use when the owner had sold all of the visible machinery, including boilers, pipes used for refrigeration and machinery for moving carcasses from one part of the plant to another; had taken down the smokestack -- a necessary part of [**530] the building to be used for slaughtering and meat packing; and had made no attempt to replace the smokestack or the machinery.  These facts, unlike those in Landay and the present case, were inconsistent with an intention to continue the non-conforming use.

   The present case, involving a use similar to that involved in Landay, is, in my opinion, a far stronger case for the appellant on the facts than was [***30]the Landay case.  In the instant case it is clear that Mr. Lavender had no intention whatever to abandon the non-conforming use and that at no time was there a cessation of the non-conforming use, although the intensity of that use varied from time to time depending upon economics and other conditions. Indeed, a temporary total discontinuance of the non-conforming use does not result in its abandonment. Feldstein v. LaVale Zoning Board, supra, Landay v. Board of Zoning Appeals, supra. The testimony, already considered in detail, certainly demonstrates that neither essential element of abandonment exists in the present case, and the trial court was clearly in error in finding an abandonment of the non-conforming use.

   [*431] (3)

   I am of the opinion that there was sufficient evidence in the present case to estop the County from revoking the Occupancy Certificate issued on April 24, 1964, to the Harris Used Car Company to use the subject property as "a used car lot and salvage auto garage."

   We have recently reviewed the law in regard to when, in zoning cases, a municipality may be estopped from interfering with a use after it has issued a valid permit[***31] for that use in Richmond Corp. v. Board of County Commissioners for Prince George's County, 254 Md. 244, 255 A. 2d 398 (1969), so that it is not necessary to do more here than to refer to the opinion in that case for the law applicable to the present case.  A conflict among legal authorities revolves around whether money spent or other substantial change in position taken in good faith in anticipation of obtaining a permit, but before a permit is issued, can be considered as sufficient prejudice to estop the municipality, or whether the permit must have been issued prior to the expenditure or other substantial change in position.  The latter view is the present majority view and the Maryland view.  The minority position is, however, increasing in the number of jurisdictions adopting it.

   In Richmond Corporation, all of the expenditures of the applicant in assembling the land and preparing the plans and specifications were incurred before the application for the permit was filed.  The same situation existed in the cases cited by the majority in support of its position that Harris had not shown substantial prejudice.  In Ross v. Montgomery County, 252 Md. 497, 250 [***32]A. 2d 635 (1969), the applicants had spent some $56,000 in an architect's fee in preparation for construction pursuant to a permit issued to them, but they permitted the permit to expire by not beginning construction in time.  In the meantime the zoning law had been amended so as to prohibit the proposed use.  We made it clear that in Ross there was no revocation of a valid permit by the municipality.  We stated:

   In reaching our conclusion in this case, although [*432] we are aware that a substantial sum has been spent on planning, we are mindful that this is not a situation where a valid and subsisting permit has been revoked by operation of an ordinance which effected a rezoning repugnant to the use for which the permit had been issued.  In the case at bar, the permit, which the planning was intended to complement, expired for want of performance, and with that expiration any vested right, which may have existed, became forfeit."
(252 Md. at 506-07, 250 A. 2d at 640-41).

   [**531] The implication is that if there had been such an attempted revocation there may well have been an estoppel from interference with a vested right.

   In Mayor & City Council of [***33]  Baltimore v. Shapiro, 187 Md. 623, 51 A. 2d 273 (1947), subsequent to an issuance of a permit, five cars were on one day towed to a vacant lot and dismantled a few weeks later.  The parts and scrap were removed, and sometime later four more cars were towed to the lot for storage.  This Court stated that the "activity appears to have been merely preliminary or casual" and did not amount to the commencement of work on the lot or the necessity of substantial expenditure based on faith in the permit sufficient to create a vested right.

   In Board of County Commissioners of Anne Arundel County v. Snyder, 186 Md. 342, 46 A. 2d 689 (1946), the "several thousand dollars" spent in grading and landscaping had been spent prior to the filing of the application for the intended use.  Unfortunately, this use was prohibited by adoption of a zoning ordinance a few days after the application was filed.  No permit was ever issued by the zoning authorities in Anne Arundel County.

   In the case at bar, however, the evidence is clear that Harris spent "several thousands of dollars" subsequent to the obtention of the permit.  This is uncontradicted evidence, as is the evidence that Harris disposed[***34] of its entire business in Baltimore City and moved it down to the [*433] subject property. Counsel for Harris wrote to the Zoning Offices on January 27, 1966, protesting against the refusal to reissue the Certificate of Occupancy theretofore revoked, and stated:

   "As you are probably aware, Harris purchased the property on Route No. 3, Gambrills, Maryland for the express purpose of operating a Used Car & Salvage Yard.  Authorization and approval was obtained from the County prior to the settlement and based on the issuance of the aforesaid Certificate; Harris moved his place of business, advertised his new location and cultivated new customers at a great deal of expense, time and trouble.

   "Moreover, the refusal to reissue the Certificate will cause Harris Used Car & Salvage Yard, Inc. to go out of business.  Therefore, it is my opinion that the denial of the Certificate by the County is without cause or justification. To that end, I would appreciate it if you would have your office again review this matter with the hope of reissuing the Certificate." (Emphasis supplied.)
 
This letter was introduced into evidence without objection as Plaintiff's Exhibit[***35] No. 7.  The majority indicates that there was no specification of the amount of money spent and what specifically it was spent for, but, in my opinion, there was sufficient evidence to show that the amount was substantial and that it was spent in reliance on the issuance of the permit. Cross-examination was available to the County if specificity was desired, but there was no cross-examination in regard to these items.

   The testimony of Mrs. Marion J. McCoy, Planning and Zoning Officer of the County and a witness for the County, was that the use of the subject property in Harris' business was substantial.  As a result of her personal investigation of the subject property the morning of the trial, she testified that she noticed "various sundry of inoperable wrecks or junked vehicles, passenger vehicles, commercial [*434] vehicles of all types, buses, parts are laying a sundry throughout the area to the rear.  * * * it's well occupied." In regard to the lower land in the rear, she stated "It appears that, if I were making an educated guess, I would say its pretty much a hundred per cent used.  . . ." Later she testified:
 
"You can probably see fifty to a hundred feet in here[***36] but your visibility is limited because of the height of the trucks and the buses more than anything.  You can see that [sic] are there.  For instance [**532] the back truck, the back ones were Jacobs, some sort of panel truck. I couldn't see on the other side of those.  It could have been single passenger automobiles behind that.  They are stacked.  When you get to the house area it's just a miscellaneous, a sundry of cars parked all different ways.  You can't look beyond, you know a certain eye level there.  And around the garage were all the -- sat right immediately to the road were all the blocks and engines and everything.  I think you get so interested in seeing what he has got there that I didn't really attempt to see any more depth to the operation at that point."

   Is is obvious from the testimony that this is a substantial business operation involving a large number of automobiles, buses, trucks and parts. This operation is no "preliminary and casual" dismantling of five cars or temporary storage of four cars as were involved in the Shapiro case.

    In summary, Harris, in my opinion, by the testimony mentioned made a prima facie showing of "substantial prejudice" [***37] and this was not rebutted by the County.

   There is no suggestion that the Occupancy Certificate was issued as a result of fraud or any other impropriety.  There is a "strong presumption" that the zoning officials having the responsibility for the Occupancy Certificate acted properly and regularly in issuing it.  See Lerch v. Maryland Port Authority, 240 Md. 438, 457, 214 A. 2d [*435] 761, 771 (1965), and prior Maryland cases therein cited.  There is no evidence in the case which would rebut the presumption.  For the zoning officials to wait for some 20 months to seek to revoke the Occupancy Certificate adds the element of substantial delay, with its obvious injury to Harris if forced to remove its business after its operation of that business on the subject property for so long a time as a part of the estoppel of the County.

   I would reverse the decree of March 6, 1969, of the lower court in its entirety and require the County, as appellee, to pay the costs. 

BOURBON, et al. v. GOVERNOR OF MARYLAND, et al. 
No. 24 (Adv.), September Term, 1970
 
Court of Appeals of Maryland
 
258 Md. 252; 265 A.2d 477; 1970 Md. LEXIS 996

 March  20, 1970  
 May  13, 1970, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

CORE TERMS:  governor, voter, proposing, elected, electorate, election, veto, Constitutional Law, regular session, three-fifths, general election, delegated, repeal, ratified, proposed amendment, inoperative, prescribed, session, interim, entity, ineffective, sovereign, conferred, reticence, ensuing, specified time, immediately preceding, votes cast, submitting, reconsider

COUNSEL: Alfred L. Scanlan, with whom were Shea & Gardner and John B. Wright on the brief, for appellants.

   Wilbur E. Simmons, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert F. Sweeney, Deputy Attorney General, on the brief, for appellees.

JUDGES: Hammond, C. J., and McWilliams, Finan, Singley, Smith and Digges, JJ., and Robert C. Murphy, Chief Judge of the Court of Special Appeals, specially assigned.  Hammond, C. J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*253] [**478] PER CURIAM ORDER

   For reasons to be stated in an opinion to be filed later, it is this 20th day of March, 1970,

   Ordered[***3] by the Court of Appeals of Maryland that the summary judgment of the Circuit Court for Anne Arundel County dated March 11, 1970 appealed from, be and it is hereby, affirmed with costs to be paid by the appellants; and it is further

   Ordered that the mandate be issued forthwith.

    [*254] By per curiam order of March 20, 1970, we affirmed a decree of the Circuit Court for Anne Arundel County in which Judge Evans, rejecting the declarations sought in a bill filed by appellants (citizens, taxpayers and voters), declared that the General Assembly, at its 1970 session, could repeal a bill proposing an amendment to the Constitution of Maryland (the original amendment) it had duly passed at its 1969 session and substitute a revised version (the new amendment), and that a statute which provided for the election of an interim Lieutenant Governor would not violate Art. II, § 10, of the Constitution which provides that the power of appointing civil officers is in the Governor with the advice and consent of the Senate.  Judge Evans declined to rule whether or not the Legislature validly could provide in the new amendment that if both the original and the new were voted on and approved at the [***4]1970 election, the new should prevail and become part of the Constitution.

   Appellants do not here question the legality or propriety of electing an interim Lieutenant Governor, believing themselves precluded by Buchholtz v. Hill, 178 Md. 280, which approved the creation of an elected clerk to the Commissioners [**479] of Allegany County even, they say, "though the language of [Art. II, § 10, of the Constitution of Maryland], if read literally, would seem to argue for a different result." They have a similar reticence to challenge Judge Evans' failure to pass on the question of inconsistent amendments, a reticence that arises from their reading of Hillman v. Stockett, 183 Md. 641, "which indicates that an issue of this type is premature at this time and would not seasonably arise unless and until such time as the two amendments were both ratified * * *."

   This leaves for consideration only the simple and direct question of whether Art. XIV, § 1, of the Constitution, which authorizes amendment of the Constitution by a proposal by the General Assembly and approval of the [*255]proposal by the electorate, permits a subsequent regular session of a legislature to repeal[***5] and reenact with amendments a bill proposing an amendment which had been duly passed at an earlier regular session of that same legislature.  Our answer is as simple and direct as the question.  The legislature can validly recall and reframe a proposal for amendment of the Constitution before the specified time for submitting the proposal to the electorate arises.  The reasons for our answer are also simple and direct.  In Art. XIV, § 1, the people made the legislature the entity to formulate and offer to the electorate proposals for its approval or rejection for changes in the organic law and § 1 does not say or indicate that such a proposal that has not actually come before the electorate for consideration in the manner specified in § 1 may not be reconsidered and reformulated by the proposing entity. Simplicity, certainty, order and clarity in the amending process would be furthered, in our view, by submission of only the one proposal ultimately deemed suitable and appropriate, rather than by submission of two or more inconsistent versions of an idea for change, with the resultant necessity for the voters to pick and choose the better or the best and with the real possibilities[***6] that in voter disgust both or all would be rejected or, in confusion, both or all adopted.

   The question before us arose in this way: during the regular session of 1969 the General Assembly proposed eight amendments to the Constitution of the State by passing Chapters 784 to 791, inclusive, of the Laws of 1969.  Chapter 787 proposed creation of the office of Lieutenant Governor. By the passage of Ch. 76 of the Laws of 1969, the legislature provided for an election to be held on November 4, 1969, to permit the voters to adopt or reject the proposed amendments to the Constitution.  In Cohen v. Governor of Maryland, 255 Md. 5, this Court held Ch. 76 to be invalid and ineffective because Art. XIV, § 1 of the Constitution of Maryland requires proposed constitutional amendments to be submitted to the voters at "the next ensuing general election" and the election [*256] established by Ch. 76 was not in the opinion of the Court a general election. Chapter 787 of the Laws of 1969 also provided that if the amendment it proposed was ratified in 1969, the Lieutenant Governor would be elected with the Governor in 1970 but if the ratification occurred at the election of 1970 the Lieutenant[***7] Governor would be first elected in 1974 and the Governor, subject to confirmation by the General Assembly at its next regular session, would nominate a person to serve as Lieutenant Governor from 1970 to 1974.

   Since the decision in Cohen postponed action by the voters on the proposed amendment creating the office of Lieutenant Governor until the regular election of 1970 (as it did action on the other seven proposed amendments of 1969), the General Assembly gave further thought to the amendment establishing the office of Lieutenant Governor, and when it convened in regular session in 1970 each house approved by a three-fifths vote a bill (H.B. 3), which provided that (1) Ch. 787 of the Laws of 1969 "be and it is hereby withdrawn and recalled for appropriate legislative [**480] action"; (2) Ch. 787 "be and it is hereby repealed"; (3) the Lieutenant Governor is to be first elected in 1974 and in the interim between 1970 and 1974 "the person, if any, who in November, 1970, is elected to the statutory position of Lieutenant Governor shall assume and hold the constitutional office of Lieutenant Governor for a regular four year term which begins on the same day as the term of the[***8] Governor-elect." n1

n1 The "statutory position of Lieutenant Governor referred to in H.B. 3 was created by H.B. 4, the relevant portions of which are:

   "(d) The Lieutenant Governor shall perform the functions and duties assigned to him by the Governor from time to time; but no power specifically vested in the Governor by the Constitution of this State may be assigned to the Lieutenant Governor.

   * * *

   "(f) If the Constitution of Maryland is amended to establish the Lieutenant Governor as a constitutional office, the person elected to and holding office under this section shall be the Lieutentant Governor under the constitutional office for the remainder of the term then existing.

   "(g) If the proposed constitutional amendment to create the constitutional office of Lieutenant Governor is not submitted to the qualified voters of the State of Maryland in November, 1970, or is rejected by the qualified voters of the State, then these aforegoing subsections creating the statutory position of Lieutenant Governor shall be void on December 1, 1970."

[***9]
 
   [*257] H.B. 3 further provided that if a court held the recall and repeal of Ch. 787 and the substitution of the amended version were ineffective, with the result that Ch. 787 must be submitted to the voters in 1970, both that chapter and the amendment proposed by H.B. 3 should be on the ballot at the general election of November 1970, and that if both are ratified, H.B. 3 should prevail over Ch. 787.

   Article XIV, § 1, of the Constitution provides that the General Assembly may propose amendments to the Constitution, that each amendment shall be embraced in a separate bill "embodying the Article or Section, as the same will stand when amended," that such a bill shall be passed by three-fifths of all the members of each house "by yeas and nays, to be entered on the Journals with the proposed Amendment." The bill or bills "proposing amendment or amendments" shall be published in specified newspapers "once a week for four weeks immediately 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 votes cast[***10] are to be returned to the Governor and if it appears to him that a majority were cast in favor of the amendment he shall so proclaim "and thenceforth said amendment or amendments shall be part of the said Constitution." When two or more amendments are submitted they shall be so submitted that each shall be voted on separately.

   It is clear that in acting under a provision in a State constitution like Art. XIV, § 1, the legislature does not exercise its ordinary legislative power or any sovereignty of the people that has been entrusted to it but acts under a limited power which the people have conferred upon it and which with equal propriety and appropriateness [*258] might have been conferred upon either house, the governor, a special commission or other body or tribunal.  In proposing amendment of the Constitution the legislature does not have the plenary powers it has in enacting laws but only the powers specifically delegated to it.  Jameson, Constitutional Conventions (4th ed.), Ch. VIII, §§ 538-574, 16 Am. Jur. 2d, Constitutional Law § 32, p. 205.  In Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 428-429, we had occasion to note that: [***11] 

   "Commentators, lay and judicial, concur almost unanimously in the view that the general power of a state legislature [**481] to make, alter and repeal laws, pursuant to the constitution by which the people created the legislature, does not include the power or the right to make or remake the fundamental law, the constitution.  A state constitution may aptly be likened to a legislative act enacted directly by the people themselves in their sovereign capacity as a political entity (that is, by the voters, for 'the original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper,' Anderson v. Baker, 23 Md. 531, 619), and therefore is the fundamental, extraordinary act by which the people establish the structure and mechanism of their government.  Cooley, Constitutional Limitations (8th Ed.), p. 355; Jameson, Constitutional Conventions, pp. 84-86, 422 and 586; Hoar, Constitutional Conventions, pp. 80-82; 16 Am.Jur.2d, Constitutional Law § 26; Staples v. Gilmer (Va.), 33 S.E. 2d 49, 53; Ellingham v. Dye (Ind.), 99 N. E. 1; State v. Cox, 8 Ark. 436, 444. Essentially, a constitution[***12] is fundamental legislation directly by the people acting politically in their sovereign capacity, while a law is a rule of conduct prescribed by the legislative agents of the people under and subject to the [*259]delegated limitations of the previously ordained superior legislation, the Constitution.

   "This Court has recognized that laws and legislative actions relating to amendment or revision of the constitution differ greatly and significantly from one another."

   In Warfield v. Vandiver, 101 Md. 78, this Court held that a bill proposing an amendment to the Constitution need not be submitted to the Governor for signature because it was not a potential law enacted under the Constitution but a potential part of the Constitution.  Judge McSherry for the Court said (pp. 113-115 of 101 Md.):

   "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 each amendment shall be embraced in a separate[***13] 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.  * * * 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 [*260] 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[***14] it, it will become a law.  If he does not approve it, and the two 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 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 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 [**482] 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[***15] bill proposing an amendment must be signed by the Governor before 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."
 
   [*261] Dodd, at page 150 of his book The Revision and Amendment of State Constitutions gives the Vandiver decision, correctly we think, this interpretation:
 
"The Maryland Court said that the word 'bill' was used in the amending clause simply to express a proposal or project, and not in the same manner as the word was used elsewhere in the constitution to refer to bills which should become law by legislative enactment and executive approval."

   Thus this Court has held that the people in Art. XIV, § 1, of the Constitution have delegated to the legislature the power to suggest, to propose, to offer to the electorate a proposal or project for their adoption or rejection.  This proposal or project is to be set forth in a bill passed as specified.  The bill which is the[***16] proposal or project is inoperative unless and until adopted by the voters. To use the loose analogy of contract law, the legislature makes an offer to the people which the people have no chance or right to accept until it is, as directed by § 1, published during the weeks immediately preceding the election at which the offer is to be accepted or refused by the voters. If a bill embodying an amendment is no more than a proposal and is inoperative from its passage until its adoption by the electorate, as the decisions have held is the case, we see no obstacle to the conclusion that the people did not reserve a vested right to vote on a formalized proposal for amendment that has not yet been published, and we think the same legislature that has made a proposal under the power conferred on it by the people in § 1 can later reconsider its action and offer another proposal, formalized as § 1 requires.

   The anomaly of using the legislature, a creature of the Constitution, to act to some extent in legislative fashion to provide the mechanics for the people to change that Constitution has not gone unnoticed.  In Board of Supervisors of Elections v. Attorney General, this anomaly was[***17] pointed out, the Court saying (p. 432 of 246 Md.):
 
[*262] "To use the Legislature, a body created by the constitution, to provide the mechanics and sinews for changing that constitution by ascertaining the will of the people, * * * and at the same time to class their legislative actions as not encompassed by the provisions of the constitution as to laws may at first thought seem so illogical as to be unsound.  Yet it has been accepted generally as sound and proper."

   As we see it, the people contemplated in adopting § 1 that in making a proposal for amendment the legislature necessarily would avail itself of some of the powers and procedures customarily used in legislating.  We find no necessity to hold that the powers contemplated in the delegation of § 1 do not include the power to recall, revise and reframe a proposal for amendment [**483] up to the time it must be published by the Governor. Compare Baltimore Fidelity Warehouse Co. v. Canton Lumber Company, 118 Md. 135.

   Cases in other States are not particularly helpful since in all but one the time or extent of reconsideration involved, or both, is substantially different from this case and, for the[***18] most part, they are advisory opinions which offer no reasoned basis for the result reached, but they do support the conclusion we have reached. n2

 n2 The case of In re Senate Concurrent Resolution (Colo., En Banc), 328 P. 2d 103, held that the recall and amendment in substance of a prior proposal for amendment of the Constitution by a subsequent session of the legislature would be valid and proper.  See also Crawford v. Gilchrist (Fla.), 59 So. 963; In re Opinions of the Justices (Ala.), 39 So. 2d 665; Opinion of the Justices (Mass.), 135 N.E.2d 741; In re Opinion of the Justices (Mass.), 197 N. E. 95; Clements v. Powell (Ga.), 116 S. E. 624.

   Appellants argued that uncertainty, looseness and confusion would flow from permitting what they challenge.  As we said earlier, to us it appears that certainty, order and clarity will be promoted by affirmance of the decree appealed from. 

GRAY-WILL CONSTRUCTION CO., INC. v. GUNTHER, et ux. 
No. 202, September Term, 1969
 
Court of Appeals of Maryland
 
256 Md. 740; 261 A.2d 730; 1970 Md. LEXIS 1211

 February  11, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  developer, objected, homeowner, offered evidence, directed verdict, flooding, offering, waived

COUNSEL: Mrs. Anne Kay Kramer, with whom was Reuben Shiling on the brief, for appellant.

   Court did not hear argument for appellees.  Charles L. Shuman on the brief for appellees.

JUDGES: Hammond, C. J., and Barnes, Finan, Singley, Smith and Digges, JJ.

OPINIONBY: PER CURIAM

OPINION: [*740] [***2] [**730] A jury found persuasive the evidence of a homeowner who is an engineer and of his wife (the appellees), and of a qualified realtor that the negligence of a real estate development firm (the appellant) had from time to time caused flooding of the home property of the appellees [*741] which had damaged them to the extent of $7,000.  The appeal by the developer from the judgment entered on the jury's verdict asks us to hold that the episodes of flooding and the resulting damages were not attributable to any act or omission of the developer and that there was no evidence before the jury which could support its finding of the amount of damages suffered.

   [**731] Counsel for the developer at the trial -- who was not counsel on appeal -- preserved nothing for this Court to pass on.  The homeowners offered evidence of negligence and damages which was not objected to.  The developer made a motion for a directed verdict at the end of the plaintiffs' case but, when it was denied, waived the motion by offering testimony, and did not renew the motion at the conclusion of all the evidence.  The court's charge to the jury was not objected to by either side.  No question is now[***3] presented to us for review.

   Judgment affirmed, with costs. 

PAAPE v. GRIMES 
No. 115, September Term, 1969
 
Court of Appeals of Maryland
 
256 Md. 490; 260 A.2d 644; 1970 Md. LEXIS 1179

 January  14, 1970, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Beardmore, J.

DISPOSITION: Order reversed and case remanded for further proceedings.  Costs to be paid by appellee.

CORE TERMS:  settlement, rate of interest, legal rate, demurrer, installment, specific performance, per annum, unenforceable, inferred, mortgage, seller, buyer, monthly payment, legal rate of interest, specifically enforced, plus accrued interest, ambiguity, interest rate, indefinite, vague, unpaid, Maryland Rule, merchantable title, legal interest, material term, mortgage debt, real estate, vagueness, inferring, promptly

COUNSEL: James K. Carmody, with whom were Goodman, Bloom & Carmody on the [***3]brief, for appellant.

   William E. Kirk for appellee.

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

OPINIONBY: DIGGES

OPINION: [*491] [**645] On April 2, 1968, Elizabeth King Grimes, appellee (seller) and Ronald C. Paape, appellant (buyer), executed an agreement for sale of a lot located in Fairfax subdivision, Sixth District of Anne Arundel County.  Mrs. Grimes, on July 18, 1968, informed Paape she was cancelling the contract, and she failed to appear on July 27, 1968, the designated date for settlement. Thereupon the buyer filed his bill of complaint in the Circuit Court for Anne Arundel County seeking specific performance of the agreement.  To this bill the seller demurred on the ground that (1) the contract "is too vague and indistinct with respect to the date of settlement," (2) the contract is unenforceable "in that it is too vague and indistinct [*492] for it does not state the rate of interest to be charged . . .", and (3) for other reasons to be set forth at the hearing.  After a hearing the Chancellor, Judge Beardmore, agreed with the second contention and sustained the demurrer without leave [***4]to amend.  It is this order the buyer seeks to have reversed.

   The three pertinent paragraphs of the contract referred to in the demurrer read as follows:

   "That the terms of sale shall be as follows: The sum of FIVE THOUSAND ($5,000.00) DOLLARS cash at time of settlement as hereinafter set forth, of which sum the herein mentioned deposit shall be a part, and the balance to be in the form of a purchase money mortgage in the amount of THIRTY-FOUR THOUSAND FIVE HUNDRED ($34,500.00) DOLLARS, which the Buyer shall execute and the Seller shall accept, having a term of TEN (10) years and payable in 119 installments of $247.18, payable monthly on the first day of each month following settlement and one (1) installment, the last, in the amount then remaining unpaid of the original mortgage of $34,500.00 plus accrued interest on said balance.  A $5,000.00 principal payment shall be made with the 40th and 80th installments. n1 (Emphasis added.)

   . . .

   "That settlement shall be . . . on or before ninety (90) days from date hereof, or as soon thereafter as report of title can be obtained.

   . . .

   "TIME IS OF THE ESSENCE OF THIS AGREEMENT."

n1 The contract is typewritten with the exception of the last sentence quoted above which is handwritten in ink.  This was apparently assented to by the parties to the contract by placing their initials in the margin.

[***5]

   All parties acknowledge this case is controlled by this [*493] Court's frequently stated rule that to be specifically enforced a contract for the sale of land must be definite and certain in all of its terms, free from ambiguity and in accordance with the Statute of Frauds.  Lambdin v. Przyborowski, 250 Md. 108, 242 A. 2d 150 (1968); Grooms v. Williams, 227 Md. 165, 175 A. 2d 575 (1961); Fett v. Sligo Hills, 226 Md. 190, 172 A. 2d 511 (1961).

   [**646] The primary contract provision challenged as being too indefinite is the first set forth above.  The italicized words are the only mention of interest in the contract and nowhere is the rate specified.  The seller accordingly contends that the provision "plus accrued interest on said balance" affords no standard for a court to enforce.  The buyer argues that when interest is provided for but no rate specified, the court can and should imply the legal rate of interest prevailing at the time and place of the making of the agreement.

    No Maryland case seems to have considered specifically whether the legal rate of interest can be inferred from use of the word "interest" or the phrase "with interest." n2 In Brown v. [***6]  Hardcastle, 63 Md. 484 (1885), there was a mortgage which provided that interest on the mortgage debt at one percent was to be paid until the principal became due.  It was silent as to any provision concerning interest in the event the principal was not paid upon maturity.  This Court at page 492 said: "There is nothing to indicate an intention that this low rate of interest was to be charged so long as the debt was unpaid. The legal consequence of nonpayment at the time appointed subjected the debtor to legal interest thereafter, . . ." (Emphasis added.)

n2 In Bond v. Weller, 141 Md. 8, 118 A. 142 (1922) the contract provided for a monthly installment of $58.34 and interest.  Even though the provision for interest is similar to that in the instant case, the Court found the contract unenforceable because of vagueness in other of its provisions and accordingly did not discuss the use of the term and interest.

   Maryland Rule 642 provides in part: "A judgment by confession or by default shall be so[***7] entered as to carry interest from the time the judgment was rendered.  A [*494] judgment on verdict shall be so entered as to carry interest from the date on which the verdict was rendered." n3 The courts of this State in applying this rule have uniformly inferred that the interest rate to be charged is the legal rate, now six percent per annum. United States v. Swift & Co., 152 F. Supp. 738 (D. Md. 1957), aff'd 257 F. 2d 787 (4th Cir. 1958), cert. denied, 358 U.S. 837 (1958); Picking v. Local Loan Co., 185 Md. 253, 44 A. 2d 462 (1945). The Maryland Constitution, Article III, Section 57 provides: "The Legal Rate of Interest shall be Six per cent. per annum; unless otherwise provided by the General Assembly." Even though the General Assembly by the recent enactment of Chapter 453 of the Acts of 1968 (Code (1957, 1969 Cum. Supp.) Art. 49) made substantial changes in the interest and usury laws so as to authorize for most purposes an interest rate of up to eight percent per annum it has never changed the legal interest rate of six percent as set by the Constitution.

n3 At common law judgments did not carry interest.  City Pass. R. W. Co. v. Sewell, 37 Md. 443 (1873). Statutory provisions which Maryland Rule 642 supersedes provided for interest on judgments without specifying the rate.

[***8]

   Other jurisdictions which have considered the precise point have had little difficulty in construing the term "interest," when no specific rate is mentioned, to mean interest at the legal rate. Patrick v. Kirkland, 53 Fla. 768, 43 So. 969 (1907); Hornstein v. Cifuno, 86 Neb. 103, 125 N. W. 136 (1910). The justification for the decisions seems to be that these courts are not supplying a missing material term but simply ascertaining the intention of the parties by reference to that rate of interest that is prima facie reasonable in those states.  Some jurisdictions have carried this reasoning even further by inferring that interest shall be paid at the legal rate even where there is no mention whatsoever of interest.  Clark et al. v. Andrew et al., 11 F. 2d 958 (5th Cir. 1926); McCarty v. Harris, 216 Ala. 265, 113 So. 233 (1927); Cavanna v. Brooks, 97 N. J. Eq. 329, 127 A. 247 (1925); [*495] Keystone Hardware Corp. v. Tague, 246 N. Y. 79, 158 N. E. 27 (1927).

   [**647] In the case now before the Court it is apparent by the use of the phrase "plus accrued interest" the parties intended that some interest was to be paid.  There is no indication that the[***9] rate is to be settled at some future time, a provision which would clearly make the contract specifically unenforceable. See Standard Homes v. Pasadena Co., 218 Md. 619, 147 A. 2d 729 (1959) (where the contract merely outlined provisions which were to be settled by future agreement of the parties).  In the limited situation where the word "interest" appears in the instrument minus any sufficient indication of the rate to be charged, we hold that interest at the legal rate is inferred. That this rate conforms to the parties' intention in this case is strongly evidenced by reference to an amortization table, which shows that the mortgage of $34,500 provided for in this contract amortized over twenty years at six percent generates a monthly payment of exactly $247.18 when applied first to interest and balance to principal, precisely the monthly payment called for in the contract.  Of course the term of the mortgage contemplated in the contract is only ten years, but there are provisions for "balloon" payments of $5,000 each on the 40th and the 80th monthly installments, with all the remaining unpaid principal due on the 120th installment. Calculations of a pay-out figure based [***10]on a time period different from that over which the payments are to run are not unusual in modern real estate financing.  This method of repayment results from a desire to have lower monthly payment requirements and still have the mortgage debt paid in full at an earlier date than would otherwise result.

   Some Maryland cases have used language indicating that a "rate of interest" must be expressed in the contract in order to make it specifically enforceable, notably Lambdin v. Przyborowski, supra; Fett v. Sligo Hills, supra; Smith v. Biddle, 188 Md. 315, 52 A. 2d 473 (1947). [*496] All of these cases, however, involved rather sketchy and informal contracts which did not mention interest.  Although the cases use the phrase "rate of interest" we think it clear that the focus of this Court was with the total lack of interest provisions of any kind, believing a provision for interest was a missing material term in the contracts then before us.  Here the contract is specifically and explicity laid out, with a provision for "interest" expressed. We here are merely giving legal definition to a term that is already a part of the contract.  To the extent that the three cases cited[***11] and any others imply that where a contract expressly provides for interest, the rate of interest must be specifically stated in order for the contract to be definite enough to be specifically enforced, they are hereby overruled.

   In Manning-Shaw v. McConnell, 244 Md. 579, 224 A. 2d 445 (1966) and Silverman v. Kogok, Adm'r, 239 Md. 71, 210 A. 2d 375 (1965), we held unenforceable because of vagueness contracts which clearly stated the rate of interest to be charged and the amount of monthly payment to be made.  But in each case the contract did not indicate whether the monthly payments were to include the interest charges or when the interest charges were payable.  Our contract reads "plus accrued interest on said balance" and we think this term has the plain meaning that as each installment becomes due the payment of $247.18 includes an interest charge on the previous month's balance of principal.  The typical contract which we have heretofore held unenforceable was an attenuated and shorthand agreement. Here we have a contract prepared in legally sufficient detail so as to entitle it to be specifically enforced.

   Our decision on this point is sustained by such cases as [***12] Triebert v. Burgess, 11 Md. 452 (1857); Caplan v. Buckner, 123 Md. 590, 91 A. 481 (1914) (both of which decided that a mortgage would be held to mature at a reasonable time if no date for maturity was fixed); Hartsock v. Mort, 76 Md. 281, 25 A. 303 (1892) and Applestein [*497] [**648] v. Royal Realty Corp., 180 Md. 274, 23 A. 2d 684 (1942) (which inferred that interest on a mortgage was payable only as the principal became due unless otherwise specified).  See also Quillen v. Kelley, 216 Md. 396, 140 A. 2d 517 (1958); Baker v. Dawson, 216 Md. 478, 141 A. 2d 157 (1958); and the recent decision of this Court in Gilbert v. Banis, 255 Md. 179, 257 A. 2d 206 (1969), in which Judge Singley, speaking for the Court, carefully reviews the Maryland law on indefiniteness in the specific performance of contracts to sell land.  Judge Singley in Gilbert, at 185, quoted with approval from Quillen v. Kelley, supra:

   "'It needs little, if any, citation of authority to sustain the statement that if an agreement be so vague and indefinite that it is impossible to collect from it the full intention of the parties, it is void, Strickler Eng. Corp. v. [***13] Seminar, 210 Md. 93, 101, 122 A. 2d 563, Robinson v. Gardiner, 196 Md. 213, 217, 76 A. 2d 354, and the vendee is entitled to a refund of any payments made upon the purchase price.  Globe Home Impvt. Co. v. Brothers, 204 Md. 73, 74, 102 A. 2d 748. But courts are reluctant to reject an agreement, regularly and fairly made, as unintelligible or insensible.  The agreement will be sustained if the meaning of the parties can be ascertained, either from the express terms of the instrument or by fair implication.  The law does not favor, but leans against the destruction of contracts because of uncertainty; therefore, the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained. Middendorf, W. & Co. v. Milburn Co., 134 Md. 385, 387, 388, 107 A. 7. Cf. Trotter v. Lewis, 185 Md. 528, 45 A. 2d 329; Schloss v. Davis, 213 Md. 119, 131 A. 2d 287.'" (Emphasis added.)

   [*498] Further support for the position we take is found in the enactment by the Legislature of the Uniform Commercial Code (Code (1957, 1964 Repl. Vol) Art. 95B), which was in force in 1968 when our contract was born. [***14] Although a sale of real estate is not subject to the Commercial Code, it is interesting to note that in Section 3-118 (d) dealing with negotiable instruments, it is provided "Unless otherwise specified a provision for interest means interest at the judgment rate at the place of payment . . . ." This is a strong indication that the inferring of interest at the legal rate, where there is a provision for interest but the rate is not specified, complies with the policy of this State as expressed by the Legislature.  This public policy conforms to this Court's policy of enforcing legal agreements freely entered into between parties when their intention is reasonably discernible, and the court is not making an agreement for them.

   Appellee also urges that the clause providing for settlement "on or before (90) days from date hereof, or as soon thereafter as report of title can be obtained" is so indefinite as to destroy the enforceability of the contract. She contends that this "thereafter" clause refers not to the 90th day set for settlement, July 3, but to the date of the contract, April 2.  She argues that this is the only reading consistent with the time is of the essence clause. Thus[***15] she says settlement must be had as soon as the title report is obtained, or on the 90th day, whichever comes first.  Under this view there could be no extension of the settlement period beyond 90 days.

   We cannot accept this unnatural reading of the time provisions and hold that the word "thereafter" refers to the 90th day and not to the day the contract was made.  The clear meaning of the language here is that if settlement does not take place on the 90th day because of title difficulties, the time for settlement will be extended until a title report can be obtained, if initially promptly ordered.  Provisions similar to the one here in question [**649] are a common feature of real estate contracts.  See Shoreham [*499] Developers v. Randolph Hills, 248 Md. 267, 235 A. 2d 735 (1967); Chapman v. Thomas, 211 Md. 102, 126 A. 2d 579 (1956).

   The time is of the essence clause still has operative effect.  If a report of title is obtained before the 90th day and indicates the seller is in position to convey a merchantable title, settlement must take place, unless waiver occurs, on or before that 90th day.  See Chapman v. Thomas, supra. If the report showing merchantable[***16] title although initially promptly ordered is not obtained within the 90 day provision of the contract, then the time for settlement is extended until a date "as soon thereafter as report of title can be obtained," not exceeding such reasonable period as may be necessary for that purpose, with time being of the essence as to this new date.  North Ave. Land Co. v. Balto. City, 102 Md. 475, 483, 63 A. 115 (1906).

   Appellee raised additional points concerning the subordination clause and the addenda relating to moving the dwelling house from the property.  The demurrer to the bill does not mention either defense and therefore they cannot be considered because of noncompliance with Rule 373 b (in that it does not "state in detail the question of law or insufficiency of substance upon which the demurrer is founded").  Grooms v. Williams, 227 Md. 165, 175 A. 2d 575 (1961); Balto. County v. Glendale Corp., 219 Md. 465, 150 A. 2d 433 (1959); Rule 885.

   We are here concerned only with ambiguity in the language of the contract, since this case is before us as a result of the trial court's ruling on the demurrer. Finding no bar to specific enforcement of the contract upon examination[***17] of the grounds detailed in the demurrer we will reverse the order of the lower court.

   Order reversed and case remanded for further proceedings.  Costs to be paid by appellee. 

RIZZI et ux. v. GOVERNOR OF MARYLAND et. al. 
No. 284, September Term, 1969
 
Court of Appeals of Maryland
 
255 Md. 698; 259 A.2d 258; 1969 Md. LEXIS 753

 December  4, 1969, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, by per curiam order dated November 4, 1969, costs to be paid by appellants.

CORE TERMS:  serial, annuity, certificate, installment, annual, Enabling Acts, maturity, redemption, mandatory, enabling, issuing, evidencing, directory, issuance, bond issues, municipal, certificates of indebtedness, sinking fund, bond issue, calculated, redeemed, shorter, arbitrary and capricious, interest rates, proposed sale, credit rating, debt service, total amount, set forth, fifteen-year

COUNSEL: Edward F. Shea, Jr. and Joseph Sherbow, with whom were Sherbow, Shea & Doyle on the brief, for appellants.

   Jon F. Oster, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees.

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

OPINIONBY: FINAN

OPINION:  [**259] [*699] FINAN, J. delivered[***2] the opinion of the Court.

   This is a taxpayers' suit brought by the complainants, husband and wife, registered voters and owners of property in Baltimore, on which State and city real estate taxes are levied, seeking injunctive and declaratory relief relative to a proposed sale of $40,000,000 of State bonds.  The proposed sale represented five separate issues of State bonds to have been known as the Second, Third, [*700]Fourth, Fifth and Sixth Series of the State and Local Facilities Loan of 1969, all of which had been consolidated for public offering by a resolution of the Board of Public Works (Board) at a meeting held September 18, 1969. n1 The Governor, State Comptroller and State Treasurer, in their individual capacity and as the officials constituting the Board, were party defendants.  

n1 This Court issued a per curiam order on November 4, 1969, wherein it affirmed the decree of the lower court dated October 21, 1969, which had approved the sale of the Second, Third and Fourth Series ($18,760,000) and held the proposed sale invalid as to the Fifth and Sixth Series ($21,240,000).

[***3]

   This suit was engendered by the inflationary fiscal climate which presently and for many months has affected public financing throughout the nation.  This climate which has produced spiraling interest rates has caused state and local governments to reappraise their programs for funding capital expenditures.  In Maryland, concern became acute last January when the Board sold $55,805,000 of State bonds designated as the "State and Local Facilities Loan of 1969, First Series." The coupon rates on the bonds were 5%, 4.25% and 4.40% and the net interest cost to the State on all of the bonds was at the rate of 4.3255%.  The maximum interest rate which the Board may pay is controlled by each of the enabling acts authorizing State loans, which for the purpose of the bond issues involved in this case is 5% per annum.  Maryland Code Art. 31, § 2B(e)(3).

   For an understanding of the problem presented in this case it is essential that we bear in mind that in addition to the 5% interest limitation expressly set forth in the enabling acts, all of the acts require the Board to issue certificates of indebtedness evidencing the loan according to what is known as "the serial annuity plan" so worked[***4] out as to discharge the principal represented by the certificates "within fifteen (15) years" from the date of issue; n2 provided, however, it is not necessary for the [*701] Board to provide for the redemption of any part of the principal for the first two [**260](2) years from the time of issue.  An enabling act, typical of all acts consolidated under the several "Series" comprising the "State and Local Facilities Act of 1969," is Chapter 72 of the Acts of 1962, Section 1 of which reads as follows:

   "Section 1.  Be it enacted by the General Assembly of Maryland, that the Board of Public Works is authorized and directed to issue a State loan to be known as the Sewage Treatment Works Loan of 1962, in the aggregate amount of Five Million Dollars ($5,000,000).

   "The certificate evidencing said loan may be issued all at one time or, in groups, from time to time, as hereinafter provided.  All of said certificates evidencing said loan, or any group thereof shall be issued according to what is known as the serial annuity plan so worked out as to discharge the principal represented by said certificates within fifteen (15) years from the time of its issue; provided, however, that[***5] it shall not be necessary to provide for the redemption of any part of the principal represented by any certificates for the first two (2) years from the time of the issuance of said certificates." 

 n2.  The fifteen year limitation is a Constitutional requirement set forth in Art. III, § 34 of the Constitution of Maryland:

   "No debt shall be hereafter contracted by the General Assembly unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same; * * * "

   Bonds issued under a "serial annuity plan" customarily have been divided into series maturing over a fifteen year period.  On this basis, interest only is paid during the first two years; then annually for the next thirteen years, interest and a portion of the principal is paid.  The amount of principal to be paid each year is so calculated that as interest[***6] payments decrease, principal payments increase in such amounts that the total annual cost for interest and principal remains approximately [*702] the same throughout the 13 years.  The method is similar to the level payment plan of a home mortgage. Thus, the amount of real and personal property taxes which must be collected to repay the bonded indebtedness remains substantially constant over the 13 year period, during which both principal and interest are paid.

   In accordance with its practice of selling bonds twice a year the Board planned to market on July 16, 1969, $59,830,000 of bonds to be known as the "State and Local Facilities Loan of 1969, Second Series." n3 However, confronted with the interest limitation of 5% and the knowledge of soaring interest rates, the Board, and understandably so, became market shy and postponed the July sale. After the Board postponed the July 16, 1969 sale, the public press reported that the Board was considering various alternatives to attempt a sale of bonds within the statutory 5% interest limitation.  

n3.  Maryland Code, Art. 31, § 2B(a) (1968 Cum.Supp.) vests the Board of Public Works with the authority to consolidate several authorized bond issues into a single public offering.

[***7]

   One alternative was to issue bonds that had a shorter maturity period than the 15 years which traditionally had been used.  This proposal was prompted by the knowledge that bonds bearing an interest rate limitation of 5% and a 15 year maturity period were unmarketable.  Accordingly, on September 18, 1969, the Board met and adopted resolutions to issue bonds with more attractive short term maturity dates.  The five separate issues totaling $40,000,000 and their terms and conditions are as follows:

    1.  $5,920,000 State and Local Facilities Loan of 1969, Second Series.

   This issue would be for a five-year term.  Interest only would be paid during the first year and the principal would be paid in annual installments over the remaining four years.  It appears that the amount of the principal installments has been so calculated that the total of [*703] principal installment and the interest will be approximately the same throughout each of the four redemption years.

   2.  $7,810,000 State and Local Facilities Loan of 1969, Third Series.

   [**261] This issue would be for a five-year term.  Interest only would be paid during the first two years and the principal would be paid[***8] in annual installments over the remaining three years.  It appears that the amount of the principal installments has been so calculated that the total of principal installment and the interest will be approximately the same in each of the three redemption years.

   3.  $5,030,000 State and Local Facilities Loan of 1969, Fourth Series.

   This issue would be for a four-year term.  Interest only would be paid during the first year and the principal would be paid over the remaining three years. It appears that the amount of the principal installments has been so calculated that the total of principal installment and interest will be approximately the same in each of the three redemption years.

   4.$6,105,000 State and Local Facilities Loan of 1969, Fifth Series.

   This issue would be for a three-year term.  Interest only would be paid during the first two years and the total principal would be payable in the third year.

   5.  $15,135,000 State and Local Facilities Loan of 1969, Sixth Series.

   This would be for a fifteen-year term.  Interest only would be paid during the first two years; in the third year 90% of the principal would be [*704] paid; in the fourth through fifteenth[***9] year, each year $125,000 of principal would be paid.  In this issue the annual payments of principal and interest would vary from year to year.  In the third year, the payment would be very large.

   The three basic issues raised by the complainants both in the lower court and before us are (1) that the proposed action by the Board to issue bonds for less than fifteen years violates the provisions of Art.III, § 34 of the Constitution of Maryland, (2) that the action of the Board in issuing the proposed bonds is arbitrary and capricious because it will increase the burden to the taxpayer and impair the State's AAA credit rating, and (3) the proposed manner of issuing the bonds violates the "serial annuity plan" provided by the enabling acts and Maryland Code (1968 Cum.Supp.) Art. 31, § 2B(e)(5).

   We believe that the desire to have the assurance attendant to a Court interpretation is the reason prompting the inclusion in this case of the issue regarding the period of amortization for State bonds provided by Art. III, § 34 of the Constitution of Maryland, rather than any sincere doubt on the part of the complainants as to its true meaning.  The complainants present the argument that[***10] the language of Art. III, $34, makes it mandatory that bonds be issued for a full 15 year term and not for any lesser term.  Such an interpretation would require that the phrase "within 15 years" be interpreted as meaning "at least" or "not less than." We find no support for such an interpretation in the language used in Art. III, § 34.  Black's Law Dictionary, 4t Ed., defines "within" as:

   " * * * In inner or interior part of, or not longer in time than.  In re White's Estate, 130 Kan. 714, 288 P. 764, 765. Through.  Mississippi Cent.R.Co. v. Pace, 109 Miss. 667, 68 So. 926, 927. Inside the limits of. Sacks . Legg, 219 Ill.App. 144, 148; Ex parte Watson, 82 W.Va. 201, 95 [*705] S.E. 648.On. Continental Life Ins.Co. v. Wilson, 36 Ga.App. 540, 137 S.E. 403.

   "When used relative to time, has been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than.  Glenn v. Garrett, Tex.Civ.App. 84 S.W.2d 515, 516."

   In McDougald v. Incorporated Town of Broken Bow, 71 Okl. 231, 176 P. 959 (1918), after reviewing many legal definitions of [**262] the word "within," the[***11] Court ruled that the word, as used in the Constitution of the State of Oklahoma providing that municipal bonds be repaid within 25 years, was intended to have its natural meaning and that an issue of bonds maturing in 15 years came within the meaning of the word as used in the Constitution.  In Pumphrey v. Stockett, 187 Md. 318, 49 A.2d 804 (1946), our predecessors in construing the election laws of this State refused to define "within" in such a manner as would equate it with "at least" or "not less than." Accordingly, it is our opinion that the "State and Local Facilities Loan of 1969," Second, Third, Fourth, Fifth and Sixth Series, which are amortized over periods of five years, five years, four years, three years and fifteen years respectively, are not in violation of Art. III, § 34 of the Constitution of Maryland.

   Nor do we think that the action of the Board in issuing the proposed bonds was arbitrary and capricious. We believe that the Board in issuing shorter term bonds was pursuing a reasonable alternative.  The record reveals the testimony of a knowledgeable investment banker, Mr. Melrose B. O'Rourke, Vice President in charge of municipal bonds for Stein Brothers[***12] & Boyce, a large brokerage house based in Baltimore which deals in municipal issues throughout the country, to the effect that, historically the shorter term bonds pay lower interest rates.

   It is true that the issuance of the bonds as proposed in the "State and Local Facilities Loan of 1969," as set forth in the opinion, will increase the real property tax [*706] burden over the next five years; however, the total amount of taxes paid will be no greater than if the bonds were amortized over a fifteen year period.  As a practical matter, the total amount which a taxpayer will pay to service the bonds will be less since the total amount of interest paid is less when bonds are liquidated over a short period of time. Furthermore, there is no ligic to the contention that the proposed plan for issuing the bonds will affect the AAA credit rating now enjoyed by this State. To the contrary shorter term bonds come closer to placing the State on a "pay as you go" basis and should actually enhance the State's credit rating.

    Viewing these fiscal considerations against the background of the emergency which confronted the State and the necessity for it to obtain the funds necessary to[***13] begin and complete public improvement projects already authorized, we do not think the Board's action was arbitrary and capricious but rather was in promotion of the general welfare of the public.  Truitt v. Board of Public Works, 243 Md. 375, 391, 392, 221 A.2d 370 (1966).

   We think that Judge Evans, in his opinion in the court below, gave such an excellent review of the historical development in Maryland of "serial annuity financing" that we adopt his opinion treating upon the third contention raised by the complainants:

   "The Complainants' third contention is that under Article 31, § 2B (The Consolidating Act) of the Annotated Code of Maryland (1968 Cum.Supp.), and under the enabling acts which authorize State loans (Enabling Acts), the Board is required to issue bonds according to the serial annuity plan.  They further contend that none of the proposed bonds, and particularly the Fifth and Sixth Series, comply with the definition of serial annuity plan.

   Section 1 of the Enabling Acts of each of the bond issues which make up the five consolidated bond issues contains the following language:

    [*707] 'The certificates evidencing said loan may be issued all at one [***14]time, or in groups, from time to time, as hereinafter provided.  All of said certificates evidencing said loan, or any group thereof, shall be issued according to what is known as the serial annuity plan so worked out as to discharge the principal represented by said certificates within fifteen (15) years from the time of its issue;'

   "[**263] Moreover, the Enabling Acts require that, in the resolution authorizing the issuance of the loan, the Board

   ' * * * set forth in detail the dates when any of the certificates representing said loan or any portion thereof are to be redeemed and the amount to be redeemed upon such dates, respectively, according to the serial annuity plan applied to said loan as a whole or to the group of certificates evidencing a part of said loan issued at a particular time, as the case may be.'

   The term "serial annuity plan" is apparently unique to Maryland.  The first use of the term in a bond statute occurred in Chapter 267 of the Acts of 1914 which created The State Roads Loan of 1914.  The total loan was to be divided into two parts.  $3,000,000 of the loan was to be dated 1 August 1914 and $3,600,000 was to be dated 1 February 1915.  Section[***15] 1 of the Act provided:

   ' * * * and the principal amount of said loan shall be payable upon the serial annuity plan herein below specified and all within fifteen years after the issuance thereof.'

   Section 2 of the Act actually set out the series as follows:

   'That in issuing the certificates of indebtedness for said loan as herein provided in Section [*708] 1, the Governor, the Comptroller of the Treasury and the Treasurer of this State, or a majority of them, shall issue said certificates according to what is known as the Serial Annuity Plan, and each series as issued shall be lettered beginning with "A" and so on down the Alphabet until the said amount of Six million six hundred thousand dollars ($6,600,000) shall have been issued, so that the entire principal shall be redeemable as follows; of the three million dollars ($3,000,000) issue bearing date August 1, 1914: 

Series "A"          $180,000            August 1, 1917
Series "B"          188,000             August 1, 1918
Series "C"          195,000             August 1, 1919
Series "D"          203,000             August 1, 1920
Series "E"          211,000             August 1, 1921
Series "F"          220,000             August 1, 1922
Series "G"          228,000             August 1, 1923
Series "H"          237,000             August 1, 1924
Series "I"          247,000             August 1, 1925
Series "J"          257,000             August 1, 1926
Series "K"          267,000             August 1, 1927
Series "L"          278,000             August 1, 1928
Series "M"          289,000             August 1, 1929'

 [***16]

   "A similar schedule was set forth in the statute for the remainder of the loan.

   Thus, for the first time the Legislature not only required that bonds be issued according to the serial annuity plan, but actually defined the term by setting forth exactly what it meant.

   From 1914 to 1947, the bond issue enabling acts directed the use of the serial annuity plan and actually set out the series, the amount of each series and the redemption dates.  Each of these loans was prorated over a fifteen-year period in such a manner that the principal plus interest for any given year remained approximately [*709] the same.  Chapter 694 of the Acts of 1947 initiated the language presently employed in all bond issues. The series was not set out as had been the [**264] case, but the term "serial annuity plan" was retained.  Since 1947, the Board has followed the practice of issuing bonds according to a fifteen-year serial annuity plan.  Although the term "serial annuity plan" has never been judicially defined, its meaning is well understood in the world of finance.

   "In Municipal Finance Administration, International City Manager's Association, Chicago, 1962, p. 309, bonds are[***17] classified as follows:

   'Bonds, according to method of redemption, fall into the two general types - sinking fund and serial. An issue of the former type becomes due in a lump sum at the end of the term of the loan and is met by annual payments to a sinking fund of amounts which, when invested at compound interest, will produce the amount of the principal by the time it becomes due.  An issue of serial bonds, on the other hand, is retired by annual installments directly from appropriations.

   'Serial bonds, in turn, are of two general types.  In the case of annuity series the annual debt service payment covering interest and principal during each year bonds are outstanding is approximately the same; interest payments, accordingly, are higher in the early years and decline as principal payments are made.  It is much like an FHA mortgage where the monthly payment remains the same throughout the life of the mortgage.  Straight serials provide for approximately equal annual payments of principal; interest payments are large in early years and decline gradually as the bonds approach maturity. In recent years serial bonds have largely replaced [*710] sinking fund bonds in municipal[***18] borrowing, and in some states the use of the sinking fund bonds by municipalities is no longer legal.'

   "In Business and Finance Dictionary, Random House, New York, 1962, Serial Annuity Bonds are defined as: 'Serial Bonds in which the annual installments are so arranged that the payments for interest and principal are approximately the same each year.'

   Both Mr. Nossel, the Deputy Comptroller with twenty-nine years' experience in the State Comptroller's office, and Mr. O'Rourke testified that the phrase "serial annuity plan" had a specific meaning with which they were familiar.  In his testimony, Mr. O'Rourke first distinguished term bonds which come due all at one time from serial bonds which mature in consecutive years.  Bonds issued according to the serial annuity plan are serial bonds issued in such manner as to achieve level debt service or a uniform yearly cost to the State to pay interest and principal on any particular bond issue.The word annuity refers to the tables which are used in the mathematics of computing the amounts of principal which come due each year.

   The issuance of bonds according to the serial annuity plan, then, means that the bonds are issued in series[***19] so that one series is retired annually, in such amounts that the annual debtservice payment covering interest and principal during each year that the bonds are outstanding remains approximately the same.  Under such a method, as interest payments decline, principal payments increase.

   The Respondents agree that "serial annuity plan" has the above-stated meaning, but they maintain that the language in the Enabling Acts and in Article 31, § 2B(e) 5 is directory [*711] and not mandatory and that, therefore, the State is not required to issue bonds according to the serial annuity plan.

   Article 31, § 2B authorizes the Board to consolidate and offer for sale certificates of indebtedness representing two or more State loans or installments thereof.  Article 31, § 2B(e) states, in part:

   'In the adoption of the resolution authorizing the sale of each 'State and [**265]local facilities loan' the Board of Public Works shall also determine and set forth the following matters: * * * (5) the dates when any of the certificates representing said loan are to be redeemed upon such dates, respectively, according to the serial annuity plan applied to such loan.'

   The Respondents maintain[***20] that the abovequoted provision is directory and not mandatory and rely on the use of the word 'permissive' in Subsection (f) of Article 31, § 2B to support this contention:

   'The provisions of this section are permissive only and the decision as to the consolidation of State loans or installments thereof shall be made in the discretion of the Board of Public Works.  * * * .'

   Whether Subsection (e) 5 read with Subsection (f) requires that all consolidated bond issues be issued according to the serial annuity plan is not a question which it is necessary for this court to decide.  This court thinks it is clear that the Legislature, in enacting Article 31, § 2B, intended only to give the Board additional powers to consolidate State loans.  It was not the intention to give the Board additional powers to override specific limitations upon the Board's power which the Legislature imposed [*712] in the Enabling Acts. Subsection (h) of the same act provides in part:

   '* * * Nothing contained in this section shall be deemed to amend any such enabling act, except with respect to the manner of issuance and sale of the certificates of indebtedness as set forth herein.'

   "Clearly, Article[***21] 31, § 2B does not empower the Board to vary the type of bond to be issued or the manner in which it is to be redeemed when there is a clear legislative prescription.  It is only necessary to decide, then, whether the language used in the Enabling Acts is mandatory or directory.

   The Respondents maintain that the phrase "shall be issued according to the serial annuity plan" which is found in Section 1 of the Enabling Acts should be interpreted as being directory only.  However, the word "shall" of itself demonstrates a mandatory intent unless the context indicates otherwise.  Barnes v. State, ex rel Pinkney, 236 Md. 564, 574, 204 A.2d 787 (1964). We see nothing in the language of the enabling acts which would indicate that the word "shall" should be given an unusual connotation or that the Legislature meant Section 1 to have a meaning other than the meaning which it has on its face.

   The Respondent relies solely upon Hitchins v. City of Cumberland, 215 Md. 315, 138 A.2d 359 (1958) to support his argument thay the Enabling Acts are directory only.  In the Hitching case the Court was asked to find a bond issue invalid because the authorizing resolution contained no definite[***22] date of sale other than the date specified in the event no referendum petition was filed.  The passage whose interpretation was in dispute was as follows:

   'All bonds of a municipal corporation shall [*713] be authorized by resolution or ordinance of the legislative body of said municipal corporation which shall contain the following: * * * (3) the form of the notice soliciting bids for the purchase of said bonds which shall set forth the date, place and time for receiving and opening bids * * * .' (p. 323)

   "The Court, in upholding the validity of the bond issue, refused to interpret the above passage as meaning that the resolution authorizing a bond must fix a definite date for opening of bids.  Their refusal was not based, however, upon an indifference to the long-standing rule that a mandatory intent is inferred from the use of the word "shall." The Court stated at page 324 that the word "form" as used in the authorizing resolution does not connote a complete or executed [**266] document.  We do not feel that the Hitchins case can be relied upon to overturn the long-established rule that "shall" is presumed to be mandatory and "will" directory.

   We conclude, therefore, [***23] that the language of the Enabling Acts makes it mandatory upon the Board to issue bonds according to the serial annuity plan.  The question remaining, then, is which, if any, of the proposed bond issues complies with the definition of serial annuity plan?  The uncontradicted testimony of both Mr. O'Rourke and Mr. Nossel was that the Second Series, Third Series and Fourth Series were in accordance with the serial annuity plan and that the Fifth and Sixth Series were not.

   The court finds that the Second, Third and Fourth Series of the State and Local Facilities Loan of 1969 meet the requirements of the serial annuity plan as defined by this court and are, therefore, valid, and that the Fifth and Sixth Series of the State and Local Facilities Loan of 1969 do not meet the requirements of the serial [*714] annuity plan as defined by this court and, therefore, are invalid.

   "For the reasons stated above, when presented, the court will sign adecree enjoining the sale of the State and Local Facilities Loan of 1969, Fifth and Sixth Series."

   To the able opinion of Judge Evans we would add the following observation which we think fortifies his conclusion that the words "serial annuity [***24]plan," as used in the enabling acts and as found in Art. 31, § 2B were intended as words of art with a specific connotation.  We think it significant that elsewhere in Art. 31, § 11, wherein provision is made for the creation of public debt by certain public bodies, other than the State, it is provided that the "method and time of maturing bonds" shall not be otherwise except upon a serial maturity plan." The immediate query is: was a distinction meant to be observed here, where the phrase "serial maturity plan" is used in connection with bonds of public bodies, other than the Stae, instead of "serial annuity plan," which latter phrase applies to bonds issued by the State?  We think a distinction was intended.  The difference is further emphasized by other language found in Art. 31, § 11 which provides that, "the public body may, in its discretion, provide for the maturity of said series in consecutive annual installments or at longer intervals, and the amounts of each series may vary but in no event shall the final series mature after the maximum period from the date of the issue of such bonds as hereinafter limited shall have expired * * * ."

   We think it[***25] was the intent of the Legislature to provide, under the terms of a "serial maturity plan," for more varying and flexible terms regarding the schedule of maturity than may be allowed under a "serial annuity plan." With the use of the latter, we think that the redemption period for principal was intended to be more than one year, as this would be in keeping with the meaning of an "annuity plan," and, as has been heretofore expressed [*715]in this opinion, the intended objective is to achieve a level debt service so as to assure uniform yearly costs to the State, in payments of interest and principal, on any particular issue.  Under a "serial annuity plan" a "ballooning" of payments on principal in any one year, as is provided by the Fifth and Sixth Series, would be prohibited.

   It is for the reasons set forth in this opinion that this Court filed a per curiam order on November 4, 1969 affirming the decree of the lower court. 

POTTS etc. v. GOVERNOR OF MARYLAND, et al. 
No. 47, September Term, 1969
 
Court of Appeals of Maryland
 
255 Md. 445; 258 A.2d 180; 1969 Md. LEXIS 721

 November  6, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Appeal dismissed, appellant to pay the costs.

CORE TERMS:  governor, emergency, moot, appointed, election, minority party, election laws, appoint, subject to dismissal, general election, reviewable, preservation, appointment, supervisors, preceding, candidate, elected, expired

COUNSEL: Donald B. W. Messenger for appellant.

   Henry R. Lord, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert F. Sweeney, Deputy Attorney General, on the brief, for appellees.

JUDGES: Hammond, C. J., and Barnes, McWilliams, Singley and Smith, JJ.

OPINIONBY: PER CURIAM

OPINION: [*446] [**181] Appellant, Lucille B. Potts, "Republican [***2]member n1 of the Board of Election Supervisors of Prince George's County * * * individually and on behalf of all Republican Election Board members similarly situated" brought this action against the Governor of Maryland and the Secretary of State of Maryland.  She sought a declaratory decree that Chapter 1 of the Acts of 1969 ("the Act") is unconstitutional and an injunction restraining the Governor and Secretary of State "from appointing, issuing certificates of appointment, or allowing persons [*447] appointed under the provisions of [the Act] to take office as Election Board Members throughout the State of Maryland or from removing from office any of the [then] Board Members of the Several Election Boards throughout the State." For reasons which will appear, the question presented is now moot. Therefore, we shall dismiss the appeal.

n1 Appellant presumably was appointed to the Board of Election Supervisors of Prince George's County prior to July 1, 1967, the effective date of Chapter 392 of the Acts of 1967 revising the election laws. Accordingly, it is assumed from the language of the bill of complaint, although it does not so state, that she was the person so appointed to represent the Republican Party under the provisions of the law as it then existed.

[***3]

   This litigation is a direct by-product of a complete revision of the election laws in 1967 and the election of Governor Spiro T. Agnew as Vice-President of the United States.

   From 1896 until the enactment of present Code (1968 Repl. Vol.) Art. 33, § 2-1 by Chapter 392 of the Acts of 1967 effective July 1, 1967, the Maryland election laws provided for a Board of Election Supervisors of three people with the provision that "two of them shall always be selected from the two leading political parties of the State, one from each of said parties." Code (1957), Art. 33, § 1.  Provision was made for recommendation by the two principal parties.  Technically, so long as a governor appointed one person from the Democratic list and one person from the Republican list, he complied with the law.  As a practical matter, a governor appointed the third member from his own party, but he was not obliged under the law to appoint that person from the list submited by the State central committee of his party and did not always appoint from that list.  See Riggin v. Lankford, 134 Md. 146, 150, 105 A. 172 (1918).

   In 1967 something new was added with the provision that "[t]wo of them shall always[***4] be selected from and represent the majority party and one shall always be selected from and represent the principal minority party", and the definition of "majority party" as "the party whose candidate for Governor received the highest number of votes at the last preceding general election" and "principal minority party" as "the party whose candidate for Governor received the second highest number of votes at the last preceding general election." Code (1968 Repl. Vol.) Art. 33, § 1-1 (a) (11).  This meant [*448] that the majority party was the Republican Party by virtue of the election of Governor Agnew the previous November.  All three appointments were required to come from the party lists.  On January 7, 1969, Governor Agnew resigned and, for the seventh time in the history of the State, the General Assembly elected a governor. Governor Mandel, the person so elected, is a Democrat.

   The Act became effective immediately upon its approval by the Governor on February 11, 1969, since it had been passed as an emergency measure "necessary for the immediate preservation of the public health and safety".  It amended Section 1-1 (a) (11) of Art. 33 for the purpose of redefining the[***5] majority party.  In essence it defined it as the party of the incumbent governor from time to time with similar amendment as to the principal minority party.

   [**182] Appellant attacks the Act on two grounds, (1) that as "an emergency bill, [it] in effect creates and abolishes an office and shortens a term of office and grants a franchise or special privilege, within the meaning of, and in contravention of the provisions of the Maryland Constitution, Art. XVI, § 2 and is thereby unconstitutional", and (2) that no emergency necessitating the immediate preservation of the public health or safety was presented and that the declaration of emergency is subject to review of the courts for determination of whether an emergency exists.  Both contentions are without merit.

   We have consistently held that a legislative declaration of emergency is conclusive and not reviewable. Heaton v. Mayor and City Council of Baltimore, 254 Md. 605, 255 A. 2d 310 (1969); First Continental v. Director, 229 Md. 293, 302, 183 A. 2d 347 (1962); Hammond v. Lancaster, 194 Md. 462, 476, 71 A. 2d 474 (1950); Norris v. Baltimore, 172 Md. 667, 686, 192 A. 531 (1937); Culp v. Comm'rs of Chestertown[***6] , 154 Md. 620, 623, 141 A. 410 (1928).

   Under Art. II, Sec. 13, and Art. XVII, Sec. 8, of the Constitution of Maryland, appellant's term as a member of the Board of Election Supervisors began on the [*449] first Monday of June of 1967 and expired on the first Monday of June of 1969.  The act in question in no manner altered that term.  It created no new office and abolished no existing office.  It was nothing more or less than a prescription of the qualifications of such individuals as might be appointed to take office the first Monday of June in 1969 and thereafter.

   An appeal is subject to dismissal if the case has become moot. Maryland Rule 835 b (8).  Appellate courts do not sit to give opinions on abstract propositions or moot questions, and appeals which present nothing else for decision are dismissed as a matter of course.  State v. Sheridan, 248 Md. 320, 236 A. 2d 18 (1967); Washburne v. Hoffman, etc., 242 Md. 519, 219 A. 2d 826 (1966); Lloyd v. Supervisors of Elections, 206 Md. 36, 111 A. 2d 379 (1954); Hammond v. Lancaster, supra, 471-72, citing DeTocqueville, Democracy in America, Part First, Chapter VI; Bryce, American Commonwealth, (3rd ed.) [***7] Chapter XXIII, pp. 256-59; State v. Shields, 49 Md. 301, 305 (1878).

   Since the term of appellant and the term of all other members of the various Boards of Election Supervisors then in office, Democrat or Republican, expired on the first Monday of June of 1969, the case is now moot. Accordingly, the appeal must be dismissed.

   Appeal dismissed, appellant to pay the costs. 

COHEN, Administrator of the Estate of Josephus Brown v.AMERICAN HOME ASSURANCE COMPANY, et al.; AMERICAN HOME ASSURANCE COMPANY v.BROWN 
No. 46, September Term, 1969
 
Court of Appeals of Maryland
 
255 Md. 334; 258 A.2d 225; 1969 Md. LEXIS 711

 November  3, 1969, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Decree affirmed; American Home Assurance Company to pay the costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants, insured and administrator of insured's son's estate, sought review of ruling in declaratory judgment action in the Circuit Court for Anne Arundel County (Maryland) that appellee insurance company was bound to defend appellant insured but not appellant administrator. Appellee cross-appealed award of attorney's fees that were incurred by appellant insured in declaratory judgment action.

OVERVIEW:  Appellant insured gave her car keys to her son with the understanding that his friend would drive the car. She explicitly told him not to drive her car because she believed that his license was suspended. Her son drove the car and died as a result of an automobile accident. His friend was not at the scene of the accident. Appellant insured and appellant administrator of son's estate were sued. When appellee insurance company refused to defend, appellant insured brought this declaratory judgment action. On appeal, the court found that the son obtained the car keys by deception and concluded that his use of the car was not the particular use contemplated when permission was granted. Since use was not within scope of the permission granted, coverage did not exist. Appellee argued that it did not have to pay appellant insured's attorney's fees for the declaratory judgment action. The court disagreed and held that appellee was required to pay attorney's fees for declaratory judgment action. Action was necessary to compel appellee to do what it had already agreed to do: defend its insured.

OUTCOME:  Ruling was affirmed; appellee was not required to defend appellant administrator because son's use of car was outside scope of permission granted by appellant insured. Appellant insured was entitled to payment of attorney's fees by appellee because appellee's failure to defend forced her to bring the declaratory judgment action.

CORE TERMS:  insured, permission, insurer, named insured, actual use, declaratory judgment action, breach of contract, declaratory judgment, coverage, omnibus clause, household, special circumstances, driving, assured, granddaughter, Insurance Law, general rule, misrepresentation, trailer, driven, tenant, drive, recoverable, resident, material misrepresentation, particular use, policy of insurance, reasonable expenses, insurance policy, actual operation

CORE CONCEPTS -  

Insurance Law: Contracts & Claims: Policy Interpretation: Contract Interpretation Rules
Generally if a signed application is a condition precedent to inception of the risk and an applicant is charged with knowledge of that requirement, failure to sign the application precludes the making of a binding contract because of the lack of a meeting of the minds. But if the contract does not require a signed application, acceptance of an unsigned application and delivery of the policy complete the contract and bind both the insured and the insurer.

Insurance Law: Contracts & Claims: Policy Interpretation: Contract Interpretation Rules
It is not always essential that a proposed insured personally sign application in order to create a binding insurance contract. An insurer cannot avoid the obligation of the policy on the ground that the application was not signed by the insured, where the insurer's agent signed it for the insured as authorized by him, or where the insurer's agent assured the plaintiff beneficiary that signature of the application by the insured would not be necessary. Indeed, an insurer is liable on a policy issued on an application signed only by its agents in their own names, notwithstanding false representations in the application, where the insured is not responsible for such misrepresentations. Similarly, if an insurance agent fills out and signs an application without the authority or knowledge of the applicant, the insurer is liable on the policy, notwithstanding provisions therein avoiding the policy for any misrepresentations.

Civil Procedure: Trials: Factual Findings by the Court
Insurance Law: Reinsurance: Concealment, Misrepresentation & Fraud
The burden is on an insurer to establish an insured's fraud or misrepresentation in an application for insurance. Ordinarily, whether a representation in an insurance application is true or false, or material to the risk, is for the jury to determine. When trial judge is the trier of facts, his findings are not to be disturbed unless clearly erroneous.

Insurance Law: Automobile Insurance: Permissive Users
Three rules apply to omnibus clauses, namely (1) the strict or conversion rule, (2) the liberal rule, and (3) the moderate or "minor deviation" rule.

Insurance Law: Automobile Insurance: Permissive Users
A court does not need to determine whether it adheres to the strict or conversion rule or the moderate or minor deviation rule, when the actual operation is not within the scope of permission granted.

 Insurance Law: Automobile Insurance: Permissive Users
The term "actual use" is construed to mean the particular use contemplated when permission was granted.

Insurance Law: Automobile Insurance: Permissive Users
In determining whether the use comes within the purview of the omnibus clause one must examine the total facts.

Insurance Law: Automobile Insurance: Permissive Users
The term "actual use" is drafted into policies to confine the coverage to situations where the employment made of the vehicle at the time of the accident was within the scope of the permission granted. Coverage depends in that situation upon the scope of the permission granted.

Civil Procedure: Appeals: Reviewability: Preservation for Review
Maryland Rule 828 b 1 specifies that the printed extract shall contain such parts of the record reasonably necessary for the determination of questions presented on appeal. This section is a mandatory requirement.

Insurance Law: Automobile Insurance: Defense Obligations
Where insurer fails to defend until after adverse decision in declaratory judgment action instituted by it, insurer is not liable to pay attorney's fees and expenses incurred by insured in declaratory judgment act in absence of fraud, bad faith, or stubborn litigiousness on insurer's part. But, despite qualifications placed upon this rule by courts, it still appears to be unfair to insured. After all, insurer contracted to defend insured and failed to do so. It guessed wrong as to its duty and should be compelled to bear consequences thereof. If other authorities follow this rule, it would actually amount to permitting insurer to do indirectly that which it could not do directly. That is, insured has a contract right to have actions against him defended by insurer, at its expense. If it can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear expense of such litigation, insured is actually no better off financially than if he had never had contract right mentioned above.

Contracts Law: Remedies: Compensatory Damages
Insurance Law: Automobile Insurance: Defense Obligations
The Hadley v. Baxendale rule for the measure of damages for breach of contract has been adopted in the State of Maryland as well as generally by courts of the United States. The rule is that the amount of damages recoverable for breach of contract is such as may reasonably be considered as arising naturally from the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Ordinarily a plaintiff in an action on an insurance policy cannot recover special damages for the detention of money due to him under the policy beyond what the law allows as interest. But when an insurer willfully refuses to perform the obligations required by a liability insurance policy, such as to defend a suit in behalf of the insured or to pay a judgment against him, in consequence of which the insured suffers loss, a court can compel the insurer to respond in damages for such loss.

Insurance Law: Automobile Insurance: Defense Obligations
Insurance Law: Contracts & Claims: Policy Interpretation: Contract Interpretation Rules
 Whether one speaks in terms of defendant insurance company having authorized the expenditure by its failure to defend or whether one speaks in terms of the attorney's fees for the declaratory judgment action being a part of the damages sustained by an insured by defendant insurance company's wrongful breach of the contract, a court holds that defendant is bound to pay the fees incurred by an insured in bringing the declaratory judgment action to establish that defendant had not done that which it had agreed with her to do.

COUNSEL: William A. Franch, with whom were Wray & Serio on the brief, for appellant and cross-appellee.

   William E. Brannan, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee Unsatisfied Claim and Judgment Fund.

   Louis G. Close, Jr., with whom were Due, Whiteford, Taylor & Preston on the brief, for appellee and cross-appellant.

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

OPINIONBY: SMITH

OPINION: [***4]

   [*336] [**226] This is a declaratory judgment action brought to determine to what extent, if at all, coverage existed on a policy of insurance issued by appellee and cross-appellant, American Home Assurance Company (American Home).

   Cross-appellee, Frances Louise Brown, on December 9, 1965, owned a 1958 Chevrolet sedan.  On that day it was involved in an accident while operated by her son, Josephus.  He was killed subsequent to that accident.  The administrator of his estate is an appellant.

   On September 22, 1965, Mrs. Brown says she applied to Basin and Basin Insurance Agency, Inc., for an automobile liability policy, the office of this firm being located on Ritchie Highway across the road from the Department of Motor Vehicles in Glen Burnie.  There was filed in evidence an application [**227]made to Basin and Basin purportedly signed by "Francis Brown" dated September 22, 1965.  At the top of the application it is indicated that the name of the insured is "Francis Louise Brown".  The driver information shown is listed with reference to "Frances", a "female" born on the date of birth of Mrs. Brown and holding a Maryland motor vehicle operator's license with number [***5]identical to Mrs. Brown's.  The application was for a 1958 Chevrolet four door sedan.  Policy # "3104629" appears at the top of the application. Also in evidence is what purports to be policy #3104629 in the name of Francis Louise Brown covering what is described in one place as a 1958 Chevrolet with serial number corresponding to that of Mrs. Brown's car, while [*337] in another place the indication is that the policy coverage is on a 1961 Chevrolet with an entirely different serial number.

    The insurance application, in response to a requirement to list all drivers, listed only Mrs. Brown.  She denied authorizing anyone to sign her name, denied ever having signed her name "Francis Brown" and introduced a number of documents with her first name spelled "Frances".  Her testimony indicated no knowledge as to the circumstances under which the signature "Francis Brown" was affixed. Also filed in evidence were various invoices from Basin and Basin directed to Frances Brown or Frances L. Brown.  The first of these specified its application to 1958 Chevrolet four door sedan with serial number corresponding to that owned by Mrs. Brown.

   Josephus Brown resided with his wife in a trailer[***6] near his mother and father.  He was not a member of the same household as his mother.  Mrs. Brown's husband had a back injury about two years prior to the time when insurance was obtained, being bedridden at times.  Mrs. Brown said she needed the automobile for transportation to and from work.  She testified that when she applied for the insurance it was her intention that she be the sole driver of the car.

   On December 9, 1965, Mrs. Brown drove Josephus and his wife to her place of employment in Odenton.  She stated that at that time she believed her son's motor vehicle operator's license which had been previously suspended had been reinstated.  Her son had led her to believe this because he had been driving a truck for a company that was building a motel near Laurel.  On December 9 he was unemployed.

   Mrs. Brown said that on the day in question her son, Josephus, had a series of conversations with her in which he asked for the keys for her car.  He wanted, so it is said, to travel to the Sierra Bar for the purpose of making transportation arrangements with regard to contemplated employment.  She ultimately delivered the keys to [*338] Josephus with the understanding that a friend, [***7] Scott, was to drive the car.  She testified on direct examination, "I made it definitely clear to [Josephus] that he was not to drive that car * * *." A similar statement was made on cross-examination. Unfortunately, Josephus did not heed the admonition of his parent and was driving the car at the time of the accident.  Scott was not then around.  There is no evidence relative to the nature of the "actual use" at the time of the accident, as to the location of the accident nor of the point of beginning and point of destination of the trip in progress when the accident occurred.

   Suit was brought in the Circuit Court for Anne Arundel County against Frances L. Brown and the estate of Josephus Brown as a result of the accident.

   American Home declined to defend either Mrs. Brown or the administrator of her son's estate.  This suit for declaratory judgment was then brought.  Judge Childs in the Circuit Court for Anne Arundel County held American Home bound to defend Mrs. Brown, but not responsible for the defense of the suit against the estate of Josephus Brown, thus producing the appeal and cross appeal here presented.  We shall affirm the decision of Judge Childs.

   [**228] Questions[***8] presented to us are (1) was a policy of insurance issued to Frances Brown?; (2) was there material misrepresentation to American Home by Frances Brown?; (3) did the insuring agreements contained in the American Home policy extend coverage to both defendants in the damage suit?; (4) are counsel fees and expenses to be allowed to the counsel of record for Frances Brown and the estate of Josephus Brown in the damage suit?; and, (5) is the attorney of record for the plaintiff in the declaratory judgment proceeding entitled to be reimbursed for attorney's fees and disbursements for the prosecution of the declaratory judgment action? Further facts will be developed as the questions are discussed.

   [*339] I and II

   Apparently American Home concedes, as indeed it must, that the misspelling of "Frances" as "Francis" would not in itself be grounds for contending that a policy of insurance was not issued to Frances Brown.  See Erie Insurance v. Lane , 246 Md. 55, 227 A. 2d 231 (1967). American Home here contends that the policy was not validly issued because Mrs. Brown did not sign the application and it claims that there was misrepresentation because in her application she said the [***9]car would be used only by her.  The trial judge in his opinion said:

   "American Home in its answers to interrogatories admitted that Basin and Basin was its agent in procuring the policy in question, but contended that the policy was void ab initio because it further argued that the application contained a material misrepresentation in that it includes the statement that the use of the car would be one hundred percent that of Frances Brown.  American offers no authority for this legal proposition, therefore the court must assume it could find none.  The argument would seem somewhat specious on its face for if it were the intent of the parties that the car would be operated entirely by Mrs. Brown, there would be no reason to include provision III under Insurance Agreements wherein the company agreed that the word 'insured' includes -- the spouse, if a resident of the same household, and any person while using the automobile with permission of either spouse.  Moreover, there is a recognized difference between the term 'use' and the term 'operate.' Melvin v. American Auto Insurance Co., 232 Md. 476.

   "There is no merit to the contention that American was not liable because [***10]Mrs. Brown did not actually sign the application.  She went to American's agent, made a deposit, answered [*340] all questions asked of her, honestly it appears, and undoubtedly would have signed the application had she been requested to do so.  If anyone were misled by this procedure, the moving party was American's own agent.  It cannot at this point blame Mrs. Brown for an irregularity in its own procedure."

   American Home cites no authority for its position relative to signing.  The general rule relative to necessity and sufficiency of signing of an application is set forth in 43 Am.Jur.2d, Insurance, § 209 (1969), where it is said:

   "Generally if a signed application is a condition precedent to inception of the risk and the applicant is charged with knowledge of that requirement, failure to sign the application precludes the making of a binding contract because of the lack of a meeting of the minds.  But if the contract does not require a signed application, acceptance of an unsigned application and delivery of the policy complete the contract and bind both the insured and the insurer.

   "It is not always essential that a proposed insured personally sign the application[***11] in order to create a binding insurance contract.  In several cases where the application was signed by another for the insured with the knowledge of the [**229] insurer's agent, the policies issued have been sustained, notwithstanding provisions of the contract requiring that the application be signed by the insured personally.  Such is the rule where the application has been signed by a third person at the direction of the insured or by his authority and he has ratified the act.  The insurer cannot avoid the obligation of the policy on the ground that the application was not signed by the insured, where the insurer's [*341] agent signed it for the insured as authorized by him, or where the insurer's agent assured the plaintiff beneficiary that signature of the application by the insured would not be necessary.  Indeed, an insurer is liable on a policy issued on an application signed only by its agents in their own names, notwithstanding false representations in the application, where the insured is not responsible for such misrepresentations. Similarly, if an insurance agent fills out and signs an application without the authority or knowledge of the applicant, the insurer [***12]is liable on the policy, notwithstanding provisions therein avoiding the policy for any misrepresentations."

   In New York Life Insurance Co. v. Rogers, 156 Md. 88, 143 A. 651 (1928), the question presented was whether delivery of a policy by an agent of an insurer to the beneficiary, who paid the premium, was rendered ineffective by the fact that an endorsement on the policy, stating truthfully that the insured had no other application for life insurance then pending, was not signed by him personally, but by the beneficiary at the agent's suggestion.  The Court said:
 
"Although the amendment of the application was prepared with a view to its being signed by the insured, its practical purpose was accomplished by the verification suggested and obtained by the agent to whom the policy was entrusted for delivery.  The certification was by a premium paying party who had knowledge of the fact of which the defendant wished to be assured. No question has been raised as to the accuracy of the statement thus certified.  The agent apparently believed, and the evidence admits of the inference, that the plaintiff had the requisite authority to certify in his brother's name to the [***13]statement contained in the amendment." Id at 91.

   [*342] In this case the policy makes no reference to a signed application.  It states that the company "[a]grees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations * * *".  No reference is made in the declarations to the application or to any intention of American Home that it was necessary for the application to be signed by Mrs. Brown.

   The burden is on the insurer to establish the insured's fraud or misrepresentation in an application for insurance.  Erie Insurance v. Lane, supra. Ordinarily, whether a representation in an insurance application was true or false, or material to the risk, is for the jury to determine.  Monumental Ins. Co. v. Taylor, 212 Md. 202, 129 A. 2d 103 (1957), and Sun Ins. Office v. Mallick, 160 Md. 71, 153 A. 35 (1931). The trial judge was the trier of facts. Under Maryland Rule 886 a his findings are not to be disturbed unless clearly erroneous.  He determined that a policy of insurance was issued to Mrs. Brown and that there was no material misrepresentation to American[***14] Home by Mrs. Brown.  There was evidence to support those findings.

   III

    Insuring Agreement III (a) of the policy issued by American Home to Mrs. Brown reads as follows:

   "III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage [**230] liability the unqualified word 'insured' includes the named insured * * * and also includes any person while using the automobile * * * provided the actual use of the automobile is by the named insured or such spouse or with the permission of either . . . ."
 
Thus we are again brought face to face with the proper application of the omnibus clause and again find ourselves in agreement with the statement of Judge Hall in the dissenting opinion in Matits v. Nationwide Mutual [*343] Insurance Company, 33 N. J. 488, 166 A. 2d 345 (1960), when he said:

   "The simple words, perhaps too simple, 'actual use * * * with the permission' of the policyholder or named assured, found in substantially similar form in practically all automobile liability policies issued in every jurisdiction save compulsory insurance states, have engendered probably as much reported litigation as any common[***15] contractual phrase.  The absence of an express definition of the key words, either legislatively or within the instrument, coupled with the infinite variety of factual situations arising, has resulted in the widest conceivable range of judicial approach, reasoning and result." Id. at 498.
 
We quoted that language in American Home Assurance Co. v. Erie Ins., 252 Md. 116, 248 A. 2d 887 (1969).

   The Josephus Brown estate relies upon the case of Casualty Company v. Mitnick , 180 Md. 604, 26 A. 2d 393 (1942). In that case the omnibus clause covered "not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided further that the actual use is with the permission of the named insured." The owner and "named insured" kept the car for the use of his granddaughter. The granddaughter regularly kept the key and did all the driving. On the occasion covered by the case she had permitted a friend to drive at the request of the friend who was in her company at the time of the accident.  There was no evidence that the owner knew of the friend's driving the car or had consented to it. [***16] The only testimony on the point was that he had instructed his granddaughter to let nobody but herself drive it.  Chief Judge Bond for the Court said:

   "This court is unable to agree with the contention that the granddaughter, Mrs. Phillips, [*344] was not under this policy an insured for whose judgment debt the insurer would in any case be liable.  It is argued that the words 'person using,' and 'use,' in the omnibus clause, refer to the actual driving of the car, not to taking the car out and controlling the trip while driven by another.  But using a car in the ordinary acceptation of the words seems clearly to include a borrower's making use of it by riding while driven by another.  Mrs. Phillips was 'still the director of the enterprise, still the custodian of the instrumentality confided to [her] keeping, still the master of the ship.'" (citing authorities) Id. at 607.

   In Melvin v. American Auto Insurance Company, 232 Md. 476, 194 A. 2d 269 (1963), the omnibus clause provided the persons insured were "the named insured and any resident of the same household" and provided coverage for "[a]ny other person * * * legally responsible for the use of * * * an[***17] automobile * * * not owned * * * by such person * * * provided the actual use thereof is by a person who is an insured * * * with respect to such automobile * * *." The son of the owner of the vehicle was a resident of the same household as the named insured. He had general permission to use the car.  He went to a party and after leaving asked a friend to drive, the son remaining in the car. It was argued by American Automobile Insurance Company in that case that the "actual use" was by the friend, and not by the son, because the friend was actually operating the [**231] car at the time of the accident.  In an opinion by Judge (later Chief Judge) Henderson this Court said:

   "We see no reason to limit the meaning of the words 'actual use' to the operation of a vehicle, where the operator is the agent or servant of another and subject to his immediate and present direction and control.  There appears to be no case that has construed the words [*345] in the context of this policy, but there are cases in which the word 'use' has been so construed.  In Casualty Co. v. Mitnick, 180 Md. 604, 607, Chief Judge Bond, for this Court, said that 'using a car in the ordinary acceptation[***18] of the words seems clearly to include a borrower's making use of it by riding while driven by another.' (Citing authorities).  The cases also indicate that 'actual use' means the particular use contemplated when permission is granted and relied on.

   * * *

   "The appellee cites 7 Appleman, Insurance Law and Practice, sec. 4354 as stating: 'The term "actual use", as employed in the present policy, was drafted to confine the coverage to situations where the employment made of the vehicle at the time of the accident was within the scope of the permission granted.' We think it is clear, however, that the policy there referred to was one in which the coverage extended only to persons using the vehicle with the permission of the named insured. Thus, coverage depends in that situation upon the scope of the permission granted.  In sec. 4361, Appleman states that '[t]he ordinary rule is usually stated to be that the bailee of an automobile, having possession with the permission of the named insured, cannot validly permit a third person to operate the vehicle so as to bring such third person within the policy protection'.  We may note that there are many cases to the contrary.  But in sec. [***19] 4360, the author states: 'The term "actual use" refers to the actual employment of the vehicle at the time of the accident, rather than to the identity of the operator at such time.' Thus, so far as the meaning of the words is concerned, the author would seem to agree that use and operation are not synonymous.

   [*346] "In the instant case Barry was covered as a resident of his father's household, and did not need to rely upon the permission granted.  The policy in the instant case is broader than any of the policies in the cases cited by Appleman and relied upon by the appellee.  Here the test is use rather than permission." Id. at 478-80.

   In Zurich Company v. Monarch Company, 247 Md. 3, 230 A. 2d 330 (1967), the omnibus clause covered "any other person using such automobile with the permission of the named insured, provided his actual operation * * * is within the scope of such permission, * * *." Quade secured permission from Mrs. Fuller, a "named insured" to use the automobile for his personal use.  He was held not to be a member of the household within the meaning of the policy.  Heiston wanted to use the car.  Quade told him he would have to obtain the permission [***20]of Mrs. Fuller.  Quade was led to believe that permission was given and delivered the keys to Heiston.  Judge Finan for the Court there said:

   "We are aware that with Heiston operating the Fuller vehicle with Quade, the permittee, present in the back seat, that in keeping with the holding of this Court in Casualty Co. v. Mitnick, 180 Md. 604, 26 A. 2d 393 (1942), that Heiston's operation of the vehicle might be deemed Quade's use of the vehicle, as Chief Judge Bond in Casualty Co. v. Mitnick, supra, said at p. 607:
 
'using a car in the ordinary acceptation of the words seems clearly to [**232]include a borrower's making use of it by riding while driven by another.'

   "However, in the instant case Heiston's girl friend was present in the front seat -- he was on a date with her -- and, although Quade was present, the benefit of the use of the car inured to Heiston.  As Heiston stated in his deposition:
 
[*347] "'Q. If you had permission to use the car did he [Quade] have to be with you?
"'A. No, sir.'

   "This also reveals that Heiston's deception was of such quality as to vitiate any validity that normally might have been accorded the proposition[***21] that the use was that of the first permittee at the time of the accident." Id. at 10.

   In American Home Assur. Co. v. Erie Ins., supra, the omnibus clause covered "any other person using such automobile with the permission of the named insured , provided his actual operation * * * is within the scope of such permission * * *." (emphasis in policy) We there pointed out the three rules said to apply to omnibus clauses, namely (1) the strict or conversion rule, (2) the liberal rule, and (3) the moderate or "minor deviation" rule.  Heiston in that case had been granted permission for a specific purpose with the admonition that he "come straight back".  The errand for which permission was granted would have taken 30 to 45 minutes.  The accident took place while Heiston was off on a mission of his own some two and half hours after he borrowed the car and while proceeding in an absolutely opposite direction from that for which permission was granted. We there determined that we did not have to decide whether we adhere to the strict or conversion rule or the moderate or "minor deviation" rule, that the "actual operation" was not "within the scope of * * * permission [granted]". [***22]

   In Mt. Beacon Insurance Company v. Williams, 296 F. Supp. 1094 (D.Md. 1969) Chief Judge Thomsen said:

   "This Court concludes that the Court of Appeals of Maryland would hold that the words in the policy should 'be given their customary, normal meaning,' see quotation from American Home Assurance Co., supra, and would construe the term 'actual use' to mean 'the particular use contemplated when permission [was] granted.' [*348] Melvin, supra, 232 Md. at 479, 194 A. 2d at 271." Id. at 1100.
 
   Again, we do not consider ourselves obliged to determine whether we follow the strict or conversion rule or the moderate or "minor deviation" rule.  We distinguish the facts here from Casualty Company v. Mitnick, supra, and also from Melvin v. American Auto Insurance Company, supra. We believe that in determining whether the use comes within the purview of the omnibus clause one must examine the total facts.  In Mitnick, supra, there was a general grant of use of the automobile.  It was kept for the complete use of the granddaughter. It is true that she violated the instructions given to her by her grandfather when he told her that no one else was to operate[***23] the car, but the car was generally available for her use and convenience and was being so used at the time of the accident.

   In Melvin, supra, coverage was based on the fact that the car was really being used at the time by a member of the household who, therefore, was a named insured, a member of the household who for his own convenience at the moment while using the car requested someone else to operate.  Accordingly, the Court was not obliged there to determine whether it accepted the comment in 7 Appleman, Insurance Law and Practice, § 4354 which states:
 
"The term 'actual use', as employed in the present policy, was drafted to confine the coverage to situations where the employment made of the vehicle at the time of the accident was within the scope of the permission granted."
 
[**233] Judge Henderson there pointed out, however, that in a situation such as this where it was permission that was involved, "coverage depends in that situation upon the scope of the permission granted."

   There is no evidence in this case as to the particular mission upon which Josephus Brown was engaged at the [*349] time of the accident.  Scott was not operating the[***24] vehicle, and there is no evidence before us to indicate he was even in it.  Accordingly, the case comes close to Zurich Company v. Monarch, supra, in that it might well be said that the keys were obtained by deception.

   When one considers the total circumstances here involved, the inevitable conclusion is that the use here made by Josephus Brown was not within the scope of the permission granted and was not the particular use contemplated when the permission was granted.

   IV

   It was agreed between the parties that $405.00 were reasonable counsel fees for the defense of Mrs. Brown and that expenses of $3.90 incurred were reasonable.  The trial judge said:

   "Its refusal to defend Mrs. Brown was unjustified and the court will therefore award her the stipulated amount of $405.00 as reasonable counsel fees and expenses of $3.90."

   American Home says in its brief that although it agrees that attorney's fees ought to be allowed to counsel for defending persons where it is subsequently determined that those persons were covered by a contract of liability insurance, "* * * it is perfectly clear that the only real defense in the damage action was on behalf of Calvin E. Cohen, Administrator[***25] of the Estate of Josephus Brown, Deceased.  From the evidence in this declaratory judgment proceeding it is clear that there was no agency between Frances and Josephus and that a Motion for Summary Judgment would remove her from the proceedings.  For this reason, the Appellee does not feel that the total sum of the agreed fees was properly charged to it under the circumstances."

   In Riggs Nat'l Bank v. Welsh, 254 Md. 207, 254 A. 2d 172 and 255 A. 2d 289 (1969), we quoted the comment of Judge Marbury for this Court in State Roads Comm. [*350] v. Sharper, 231 Md. 411, 190 A. 2d 647 (1963), wherein it is said:

   "Maryland Rule 828 b 1 specifies that the printed extract shall contain such parts of the record reasonably necessary for the determination of questions presented on appeal.  It is noted that this section is a mandatory requirement." (emphasis in original) Id. at 413.

   The record extract contains the following comment on the part of counsel for the estate of Josephus Brown and Mrs. Brown:
 
"Now, we have come, Your Honor, to an agreement as to the figure on the counsel fees.  If the Court should rule in our favor, we have agreed that in defense [***26]of the damage suit, counsel fees in the amount of $405.00 should be awarded, plus disbursements of $3.90, coming to a total of $408.90."

   No issue was taken with this statement by counsel for American Home nor does the printed extract contain anything indicating an apportionment between Mrs. Brown's case and the case of her son.  It was American Home that made the election some two and a half months after the accident to attempt to avoid any defense of Mrs. Brown, its assured, by advising her that it regarded the policy issued to her "as null and void from inception because of a material misrepresentation in the signed application which was made a part of the above mentioned policy and which served as an inducement to [the] company to issue said policy." On the record here [**234] presented we have no basis for concluding that the trial judge was in error when he determined the counsel fees awarded to be proper fees for the defense of Mrs. Brown alone.

   V

   American Home, having sought unsuccessfully to [*351] avoid its defense of its assured, Mrs. Brown, objects to the action of the trial judge when he said:

   "There remains the question of attorneys' fees and costs[***27] in bringing the declaratory decree action.  The court is in sympathy with the argument that the purpose of buying insurance would largely be defeated if the insurance company were to refuse to honor its commitment until forced to do so through suit.  This is especially so when the grounds of denying liability are as tenuous as those advanced in the case of [Frances] Louise Brown.  On the other hand, the grounds for denying coverage to the estate are substantial and the law is largely as yet unsettled.  See Zurich v. Monarch, supra; Ohio Casualty v. Pennsylvania National, 238 F. S. 706; 4 A.L.R. 3rd 10. This being the case, the court will allow two-thirds of the amount stipulated as being a reasonable counsel fee, since the court feels that even without the problem of Josephus' situation the major portion of the work would have been involved. Accordingly, it will award $676.67 as attorneys' fees and $21.38 as expenses."

   It calls to our attention the holding of this Court in Erie Insurance v. Lane, supra, where Judge Marbury for the Court said:

   "The trial judge in his declaratory judgment included a provision for the payment to appellee's counsel of an attorney's[***28] fee of $250.  The appropriateness of this action is not contested on this appeal.  However, appellee in her brief, in the event the judgment is affirmed, asks us to provide for an additional fee to her counsel for defending this appeal.  In Maryland, except in special circumstances, not here present, the practice has been to require successful parties [*352] to pay their own counsel fee.  25 C.J.S., Damages, Section 50 a. Cf. Freedman v. Seidler, 233 Md. 39, 194 A. 2d 778; Harry's Tavern, Inc. v. Pitarra, 224 Md. 56, 166 A. 2d 908." Id. at 64-65.

   It further calls our attention to Freedman v. Seidler, 233 Md. 39, 194 A. 2d 778 (1963), where Judge Horney for the Court said:

   "Nor should the lower court have allowed counsel fees as a part of the damages.  The general rule is that costs and expenses other than the usual and ordinary court costs are not recoverable in an action for damages, and, in the absence of special circumstances or statutory requirement, counsel fees are not a proper element of damages in an action for breach of contract." Id. at 47.
 
That case involved an equity action for injunctive relief and a money judgment for damages[***29] allegedly sustained as result of the breach by one tenant of the restrictive covenant in the lease between himself and the landlords prohibiting competition with another tenant of the same landlords.  The Court recognized that there were cases in which there might be attorney's fees allowed because immediately after the above quotation the opinion went on to say:
 
"The record in this case does not disclose such special circumstances as are required to justify the allowance of a fee for legal services, and, in this respect the present case is clearly distinguishable from McGaw v. Acker, Merrall & Condit Co., 111 Md. 153, 73 Atl. 731 (1909). There the fee allowed was for legal services in a separate litigation against another party which the wrongful act of the defendant had required.  Here, [**235] the fee allowed was for legal services rendered in this litigation.  The fact [*353] that the landlords impleaded the offending tenant did not require the injured tenant to join him as a third party defendant.  Nor did the impleading or joinder of the offending tenant as a third party create such special circumstances as would justify the award of counsel fees." Id.[***30] at 47-48.

   American Home also cites Harry's Tavern, Inc. v. Pitarra, 224 Md. 56, 166 A. 2d 908 (1961). That case involved a controversy over the sale of a tavern business.  Judge (later Chief Judge) Henderson there said for the Court:

   "On the second point, it is the general rule that costs and expense of litigation, other than the usual and ordinary court costs, are not recoverable in an action for damages.  1 Sedgwick, Damages §§ 229, 232 (9th ed.).  The general rule was recognized in McGaw v. Acker, Merrall & Condit Co., 111 Md. 153, 160, but it was there held that the expense of an attorney's fee was recoverable where the wrongful act of the defendant forced the plaintiff to engage in litigation with others.  The exception has been recognized in other cases.  See Note, 45 A.L.R. 2d 1183, and McCormick, Damages, § 68.  But in the absence of special circumstances, attorney's fees are not a proper element of damages in a suit for breach of contract. See id. § 61; Blum v. William Goldman Theatres, 164 F. 2d 192, 198 (3d Cir.), and 48 Col. L. Rev. 640; Comments, 34 Tul. L. Rev. 146. We find no such special circumstances in the instant case." Id.[***31] at 63.

   We find persuasive the comment made in 7A Appleman, Insurance Law and Practice (1962), § 4691 where, after pointing to certain decisions holding that where an insurer failed to defend until after an adverse decision [*354] in a declaratory judgment action instituted by it, the insurer was not liable to pay the attorney's fees and expenses incurred by the insured in the declaratory judgment act "in the absence of fraud, bad faith, or stubborn litigiousness on the part of the insurer" and the author went on to comment:
 
"But, despite the qualifications placed upon this rule by the court, it still appears to be unfair to the insured. After all, the insurer had contracted to defend the insured, and it failed to do so.  It guessed wrong as to its duty, and should be compelled to bear the consequences thereof.  If the rule laid down by these courts should be followed by other authorities, it would actually amount to permitting the insurer to do by indirection that which it could not do directly.  That is, the insured has a contract right to have actions against him defended by the insurer, at its expense.  If the insurer can force him into a declaratory judgment[***32] proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above."

   There is a decided split of authority on the subject.  The "contra" view is well expressed in the recent declaratory judgment case of Gerhardt v. Continental Ins. Cos., 48 N. J. 291, 225 A. 2d 328 (1966), where it is said:
 
"The remaining question is whether she is entitled to recovery for the counsel fees and costs incurred by her not only in the workmen's compensation proceeding but also in her legal action in the courts.  Since the insurer defaulted on its obligation to defend the insured in the workmen's compensation proceeding, it must [*355] bear, as a traditional element of damage, the expense including the reasonable counsel fee incurred by the insured in defending there in its stead.  (citing authorities).  We do not understand the insurer to dispute this, although it does contend that no fee for legal services may be allowed or included in the taxed costs in the action instituted and prosecuted by the insured in the [**236] Law Division[***33] and in our appellate courts. This contention is clearly sound under R.R. 4:55-7 and the judicial precedents. See Verhagen v. Platt, 1 N. J. 85, 91, 61 A. 2d 892, 4 A.L.R.2d 1309 (1948); Textileather Corp. v. American Mutual Liability Insurance Company, 110 N.J.L. 483, 485-488, 166 A. 214 (E. & A. 1933).

   "The insured suggests that she might be brought within the fund in court doctrine under R.R. 4:55-7 but there is nothing to support this.  Cf.  Grober v. Kahn, 47 N. J. 135, 219 A. 2d 601 (1966). She also suggests that inherent equitable powers might be invoked and she points to widespread out-of-state practices for the allowance of counsel fees against insurance companies which have improperly refused to make payment thereby compelling their insureds to incur the burdensome expenses of instituting law suits.  See 6 Appleman, Insurance Law and Practice §§ 4031-39 (1942).  Those practices generally rest on statutory provisions which have no counterpart in New Jersey.  When our court rules were originally adopted they embraced the view that sound judicial administration will best be advanced by having each litigant bear his own counsel fee except in those few situations specially designated[***34] in R.R. 4:55-7.  See Janovsky v. American Motorists Ins. Co., 11 N. J. 1, 7, 93 A. 2d 1 (1952). There have been calls for restudy of [*356] the counsel fee rules ( Bergen Builders, Inc. v. Horizon Developers, Inc., 44 N. J. 435, 439, 210 A. 2d 65 (1965); 89 N.J.L.J. 308 (1966)) and the subject was dealt with fully at the June 1966 Judicial Conference.  No modifying action has thus far been taken and in the absence thereof the pre-existing rules are to be deemed controlling." Id. at 300-01.

   Decisions in some states on the subject have rested upon statutory provisions as, for instance, see Phoenix Indemnity Co. v. Anderson's Groves, Inc. (originating from Florida), 176 F. 2d 246 (5th Cir. 1949); Connecticut Fire Insurance Company v. Reliance Insurance Company of Madison, Wisconsin, 208 F. Supp. 20 (D.Kan. 1962); Runyan v. Continental Casualty Company, 233 F. Supp. 214 (D.Ore. 1964); Curran v. Security Insurance Company, 195 F. Supp. 562 (W.D.Ark. 1961), appeal dismissed, 296 F. 2d 733 (8th Cir. 1961); Farmers Casualty Company (Mutual) v. Green (a Kansas case) 390 F. 2d 188, (10th Cir. 1968).  See also annotation in 8 L.Ed.2d 921 indicating that states[***35] with such statutes include Arkansas, Florida, Illinois, Kansas, Louisiana, Missouri, Nebraska, Oregon, South Dakota and Texas.

   In this case, there was a policy provision by which the company obligated itself to "reimburse the insured for all reasonable expenses, other than loss of earnings, incurred at the company's request." Some courts have held such provision to be a basis for requiring the company to pay attorney's fees.  For instance, in Standard Accident Ins. Co. of Detroit v. Hull, 91 F. Supp. 65 (S.D.Cal. 1950), the court said:

   "Query 2: Do the fees of attorneys for Hull and Berry constitute reasonable expenses, 'incurred at the Company's request' by the insured, in view of (1) The act of the Company in filing action for declaratory relief, naming Hull and Berry as defendants, and causing them to be served with process; (2) The prayer of [*357] plaintiff's complaint, not merely requesting but requiring defendants to appear and set up their claim.

   "Our answer is yes.  The language of the plaintiff's agreement is clear and the record shows Hull and Berry employed attorneys and incurred obligations for attorney's fees herein." Id. at 68. (emphasis[***36] in original)
 
In Occidental Fire and Casualty Company v. Cook, 92 Idaho 7, 435 P. 2d 364 (1967), where the company had instituted the declaratory judgment action, Justice Smith said for the Court:

   "Appellant contends that the trial court erred in awarding attorneys' fees [**237]to Lloyd Cook under the terms of the insuring agreement.  Section II (e) of the 'Insuring Agreements' contained in the insurance contract, reads:

   'The company shall -- reimburse the insured for all reasonable expenses, other than loss of earnings incurred at the company's request.'
The fact that this is a declaratory judgment action should have no effect on the award of 'reasonable expenses' to the insured. Lloyd's rights are being determined in this cause and he is required to defend.  Appellant Company cannot avoid its responsibility under Section II (e) of the insuring agreements, on the ground that the action is for declaratory judgment relief, when the effect upon the insured is as burdensome in its consequences as any other type of legal action.  Standard Accident Ins. Co. of Detroit v. Hull, 91 F. Supp. 65, 68 (S.D. Cal.1950), a declaratory judgment action; see also Coast Lumber[***37] Co. v. Aetna Life Ins. Co., 22 Idaho 264, 125 P. 185 (1912)." Id. at 11.

   On the other hand, in Milwaukee Mechanics Ins. Co. [*358] v. Davis, 198 F. 2d 441, 445 (5th Cir. 1952), in similar circumstances the court said:

   "To say that a plaintiff in a declaratory judgment action, or for that matter in any law suit, 'requests' the defendant to employ attorneys to contest the action, is a mere play upon words and is contrary to the real substance of the transaction." Id. at 445.

   In Vermont, a state without statutory authority for allowing attorney's fees in a declaratory judgment action, the court in Utilities Construction Corp. v. Peerless Ins. Co., 233 F. Supp. 64 (D.Vt. 1964), without citing authority, said: 
 
"* * * Phoenix shall reimburse Utilities and Central Vermont for all expenses which Utilities and Central Vermont have incurred in the prosecution of this action for declaratory judgment." Id. at 71.

   Some courts have proceeded upon the theory that attorney's fees in the declaratory judgment action flow from breach of the contract.  For instance, in Morrison v. Swenson, 274 Minn. 127, 142 N.W.2d 640 (1966), the court said:

   "The[***38] only other question remaining is whether it was proper for the court to permit plaintiff to recover his legal fees incurred in the declaratory judgment action, although the general rule is that legal fees are ordinarily not recoverable unless there is statutory authority for it.  Dworsky v. Vermes Credit Jewelry, Inc., 244 Minn. 62, 69 N.W.2d 118; Smith v. Chaffee, 181 Minn. 322, 232 N.W. 515; Stickney v. Goward, 161 Minn. 457, 201 N.W. 630, 39 A.L.R. 1216.

   "However, this action is in the nature of an action to recover damages for breach of contract. Legal fees incurred in the declaratory [*359] judgment action were damages arising directly as the result of the breach.  We think that the injured party in an action of this kind ought to be permitted to recover whatever expenses he has been compelled to incur in asserting his rights, as a direct loss incident to the breach of contract. See, 7A Appleman, Insurance Law and Practice, § 4691." Id. at 137-8.

   As previously indicated, Missouri is one of the states with a statute authorizing the award of counsel fees in certain cases.  In Southwestern Bell Tel. Co. v. Western Casualty & Sur. Co., 269 F. Supp. 315 (E.D.Mo. [***39] 1967), in a declaratory judgment action the court determined there was coverage under the insurance policy. After determining the statute to be penal in nature and that the insurer's failure to defend in that instance was sufficiently vexatious to come within the statute, the court said:
 
"This position is buttressed by the numerous statements to the effect that damages for breach of contract must place the plaintiff in a position as good as if the contract had been fully and properly performed [**238] from the beginning (see Landie [v. Century Indemnity Co., Mo. App., 390 S.W.2d 558 (1965)]) and the statement in Willis v. American National Life Ins. Co., Mo. App., 287 S.W.2d 98 (1956), that the provision allowing plaintiff attorney's fees in an action to recover loss which the insurer vexatiously refused to pay is 'a matter of right connected with the performance of the contract, and not entirely of remedy, and such attorney's fees are a part of the insured's "recovery"'.  (Citations omitted.)

   "It appears that damages which seek only to restore plaintiff to the position in which he would have been had defendant performed the contract as it provided are not penal, [***40] but a matter [*360] of right under the circumstances of this case, and we, therefore, hold that in addition to the right to reimbursement for sums expended in the processing and/or settlement of the suits by Belt, Mosley and Washington, and for any amounts for which Bell became obligated as a result of such suits or settlements up to the maximum permitted by the insurance policy, Bell is also entitled to the expenses, costs and attorney's fees incurred in the instant suit." Id. at 319.

   The matter of authorization of expenses was considered by this Court in Anderson v. Md. Casualty Co., 123 Md. 67, 90 A. 780 (1914). There the insured was sued on a claim covered by the policy.  The policy provided that at its "cost" the company would investigate all accidents and defend all suits against the insured, of which notice should be given as stipulated, with an agreement that the company would not be responsible for any expenses incurred by the insured unless first specifically authorized by the insurer in writing.  Shortly before the case came to trial the attorney for the insurance company complained in writing to the insured that it seemed to be in sympathy with the plaintiff [***41]in the case, stated that matters might be developed in the course of the trial which might compel him to withdraw in order to protect the interests of the insurance company, and requested the name of counsel for the insured in order that he might be given the facts in possession of the insurance company's attorney, thereby enabling the insured's attorney to get ready for trial in the shortest possible space of time.  Judgment was entered against the insured which the insurance company paid, but it declined to pay the fees of the attorney for the insured who had participated in the trial after the insurer wrote to the insured. The Court there said:

   "In our opinion the appellant's right to recover in this case does not depend upon its ability [*361] to show that its expenditure for counsel fees was specifically authorized in writing by the insurer. The provision that the Casualty Company would not be responsible for expense incurred by the insured in the absence of such authorization could only apply where both parties were proceeding in accordance with the terms of the agreement.  The notice in pursuance of which the appellant employed counsel was not consistent with the [***42]policy, but in direct opposition to its provision that the insurer should defend the action.  It was given in reference to the contingency of the withdrawal of the Casualty Company from the case and its refusal to further perform its contractual duty to defend.  It contemplated a possible recission and not a certain performance of the agreement.  The letter from the general attorney to the appellant could not, therefore, be held to constitute an authorization of expenditures within the meaning of the clause in the policy dealing specifically with that subject.  But in our view of the case there can be no doubt as to the liability of the appellee to make the reimbursement here claimed, under its express agreement to defend the accident suit at its own cost, unless it can show the existence of conditions sufficient in law to relieve it of that obligation.  Our conclusion is that the prayer directing a verdict for the defendant should have been refused." Id. at 71-72.

   [**239] In Casualty Ins. Co. v. Messenger, 181 Md. 295, 29 A. 2d 653 (1943), a liability insurance policy was issued covering operations of a tractor and trailer within a radius of 500 miles of Salisbury. [***43] An accident occurred at Yamassee, South Carolina, which the company held to not be within a radius of 500 miles of Salisbury.  Judgment was obtained against the insured and his tractor [*362] and trailer were sold by the sheriff at auction in South Carolina.  The insured brought suit in Maryland for the loss of his tractor and trailer. He established the point of accident to have been within a radius of 500 miles of Salisbury.  In sustaining the action of the trial court and jury in awarding the verdict to the insured for the loss of his vehicles, Judge Delaplaine said for the Court:

   "The final controversy concerns the amount of damages allowable to the insured. This policy does not insure against damage to the insured's vehicles; but the refusal of the insurance company to defend the attachment suit and to pay the damages resulting from the accident in South Carolina caused the insured to lose his truck and trailer. Unquestionably the company's failure to perform these obligations constituted a breach of contract. The rule for the measure of damages for breach of contract, as laid down in England by Baron Alderson in the leading case of Hadley v. Baxendale, 9 Exch, [***44] 341, 5 Eng. Rul. Cas. 502, 504, has been adopted in the State of Maryland as well as generally by the [courts] of the United States.  The rule is that the amount of damages recoverable for breach of contract is such as may reasonably be considered as arising naturally from the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the [probable] result of the breach of it.  Winslow Elevator & Machine Co. v. Hoffman, 107 Md. 621, 635, 69 A. 394, 396, 17 L.R.A., N.S., 1130; Primrose v. Western Union Telegraph Co., 154 U.S. 1, 14 S. Ct. 1098, 1106, 38 L. Ed. 883, 894, 15 Am. Jur., Damages, Sec. 52.  Ordinarily a plaintiff in an action on an insurance policy cannot recover special damages for the detention of money due [*363] to him under the policy beyond what the law allows as interest.  New Orleans Insurance Co. v. Piaggio, 16 Wall. 378, 21 L. Ed. 358, 360. But when an insurer wilfully refuses to perform the obligations required by a liability insurance policy, such as to defend a suit in behalf of the insured or to pay a judgment against him, in consequence of[***45] which the insured suffers loss, the court can compel the insurer to respond in damages for such loss.  Miholevich v. Mid-West Mutual Auto Insurance Co., 261 Mich. 495, 264 N. W. 202, 86 A.L.R. 633; Noshey v. American Automobile Insurance Co., 68 F. 2d 808; 29 Am. Jur., Insurance, Sec. 1269." Id. at 300-301.

   American Home produced the current situation when it refused to defend its assured. Accordingly, whether one speaks in terms of its having authorized the expenditure by its failure to defend or whether one speaks in terms of the attorney's fees for the declaratory judgment action being a part of the damages sustained by the insured by American Home's wrongful breach of the contract, we hold American Home bound to pay the fees incurred by Mrs. Brown in bringing the declaratory judgment action to establish that American Home had not done that which it had agreed with her to do.  Thus, we find no error in the rulings of the trial judge.  Any holding in Erie Insurance v. Lane, supra, subject to a contrary interpretation is[***46] hereby expressly overruled.

   Decree affirmed; American Home Assurance Company to pay the costs. 

HICKMAN v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD 
No. 143, September Term, 1969
 
Court of Appeals of Maryland
 
255 Md. 267; 257 A.2d 426; 1969 Md. LEXIS 707

 October  13, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  injured person, ascertain, lane, motor vehicle, investigating officer, seriously injured, police officer, phantom, investigative, investigate, northbound, crossed, driver

COUNSEL: Norman F. Summers, with whom was Julian S. Brewer, Jr., on the brief, for appellant.

   Court did not hear argument from appellee, for whom were[***2] Francis B. Burch, Attorney General, William E. Brannan, Assistant Attorney General, Jerome T. May and Wray, Serio & Hopper, on the brief.

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

OPINIONBY: HAMMOND

OPINION: [*268] [**427] Warner Hickman was seriously injured when, according to the investigating officer, as he was driving north on Route 170 in Anne Arundel County at an apparently high rate of speed on a rainy night, after having imbibed alcohol, his car was unable to stay in its lane around a long sweeping curve, crossed into the southbound lane, came back into the northbound lane and ran off the road into a gully and up an embankment into a tree.

   Hickman gave timely notice of his intention to sue the Unsatisfied Claim and Judgment Fund Board.  He followed this by a petition under Code (1967 Repl. Vol.), Art. 66 1/2, § 167, which alleged that an automobile going south on Route 170 crossed over into the northbound lane, causing Hickman to cut to his left and run off the road, and prayed an order allowing him to sue the Board.  The Circuit Court for Anne Arundel County refused the relief he[***3] sought because he had not made, as § 167 requires as a prerequisite to the right to sue the Fund Board, "[a]ll reasonable efforts * * * to ascertain the identity of the [phantom] motor vehicle and of the owner and operator thereof * * *."

   Judge Melvin said:

   "In this case there was no evidence presented to the court of any efforts made by the applicant or anyone on his behalf at any time to ascertain either the 'identity of the motor vehicle or the owner and operator thereof.' In fact, at the hearing before the court the petitioner seems to have proceeded as if the statutory requirement [*269] of making 'all reasonable efforts' did not exist.  In his testimony, he was not even asked, what, if any, efforts he or anyone else made, or, if efforts were not made, why not.

   "In argument his counsel concedes that no effort was made by the petitioner, and there is no evidence that anyone else made an effort.  The court is, nevertheless, asked to assume from the circumstances that it would have been useless to do so and that therefore it is not necessary to show that any effort was made.  The court is unwilling to make such an assumption.

   "It seems to the court that[***4] as a minimum the petitioner should have informed the police officer at some time of the circumstances of the accident. With the investigative resources available to the police, including the reports of any other accidents in the area, such information may or may not have resulted in locating or identifying the other car or its owner or operator.  But there is no requirement that the 'reasonable effort' be successful, only that it be made."
 
We think Judge Melvin was right.

   It is argued that Hickman was so seriously injured that it would be unreasonable to expect him to have told the police officer of the other car. Hickman testified that he did talk to the officer before he was taken to the hospital and it is conceded that he did not make any reference to another car, when it would have been most natural for him to have immediately vented his resentment at one who had injured him.  Hickman left the hospital less than a month after the accident and then put himself in the hands of a lawyer.  His lawyer tells us in his brief:
 
"It was then the judgment of Counsel that any investigative efforts would have been fruitless, and, other than obtaining the Police Report, [***5] [*270]which was void of information regarding the identity of the other vehicle, Counsel did not then pursue the matter further but accepted the Appellant's version of the factual circumstances [**428] of this case. Appellant also points out that the subject accident occurred in an area of Anne Arundel County which is sparsely populated.  This would preclude all hope of obtaining any other witness to this case.  For Counsel or Appellant to investigate this case further would [have been and] be 'unreasonable'."

   The difficulty with these arguments is that the statute requires "all reasonable efforts" to be made to ascertain the identity of the car involved and its owner and driver. It does not permit the injured person to be the judge of the need to investigate or of the probability of success.  The statute does not grant the right to sue in a "hit and run" case to one who, when faced with the need to seek the facts, becomes fainthearted or completely indolent.  At the least, it cannot be assumed that if the investigating officer had been told of the other car at the time of the accident or later, relevant information would not have resulted.  Admittedly here the appellant[***6] made no identifying effort and we cannot equate "no" with "all reasonable."

   Order affirmed, with costs. 

DUDLEY v. MONTGOMERY WARD & CO., INCORPORATED 
No. 13, September Term, 1969
 
Court of Appeals of Maryland
 
255 Md. 247; 257 A.2d 437; 1969 Md. LEXIS 704

 October  10, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment reversed and judgment entered for William C. Dudley for costs.  Costs in this Court to be paid by appellee.

CORE TERMS:  summary judgment, adultery, pledge, fault, notice, matter of law, duty, supplier, supporting affidavit, desertion, merchandise, material fact, duty to support, inherent power, fully complied, living together, uncondoned, severance, supplied, marital, furnish, severed, couple, tie, asserting, genuine, divorce, opened, decree, debit

COUNSEL: Henry L. Conway, Jr., with whom was John A. Blondell and Blondell & Conway on the brief, for appellant.

   Robert A. Williams for appellee.

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

OPINIONBY: HAMMOND

OPINION: [*249] [**438] Montgomery Ward and Co., Incorporated, on August 20, 1968, filed suit against William C. Dudley (Dudley) and his wife Mary in the Circuit Court for Anne Arundel County for that it furnished them "at their request" goods and merchandise for which they had not paid, and moved for summary judgment, with a supporting affidavit and attached statement of account dated August 14, 1968, which showed an account with "William C. Dudley, 1506 Eastway, Glen Burnie, Md. and Mary J. Dudley (his wife), 513 First Avenue SW, Glen Burnie, Md.," on which there was due a balance for goods purchased in May, June, July and August 1968 of $2,374.71.  Dudley, the appellant, on September 18, filed general issue pleas and an answer which alleged a genuine dispute between the parties of material [**439] facts since "at the time these charges were made by his wife he was[***4] living separate and apart from her because of her adultery," and that the goods sold were not necessaries. The answer was supported by an affidavit made by Dudley reciting (1) the adultery and the allegation that the wife had thrown him out of the marital abode; (2) that when the May debit was made, Dudley's case against the wife for divorce based upon her adultery was pending, and at the time of the August debit had been tried and was being held sub curia; and (3) that no children were [*250]born of the marriage; "and so I believe and therefore aver that $2,374.71 worth of goods and merchandise * * * [were] not for suitable necessaries but were purchased by my wife to spite me."

   On December 24 Dudley moved for summary judgment on the grounds that (1) "as shown by his affidavit in opposition to plaintiff's motion for summary judgment" he never authorized the purchase of the goods; and (2) on March 9, 1968, several months after the parties had separated, Mrs. Dudley committed adultery as demonstrated by an opinion of Judge Melvin in the Circuit Court for Anne Arundel County so holding, and a decree of that court signed by Judge Melvin on December 10 divorcing Dudley a vinculo[***5] from his wife. Photostatic copies of the opinion and decree were filed with Dudley's motion. Dudley did not file a new affidavit but referred in his motion to the one he had filed earlier.

   Montgomery Ward answered that motion by asserting that the account "was opened in the name of and behalf of [Dudley] by his then legal wife," that Montgomery Ward had no knowledge of the separation, the adultery or the divorce proceedings "at the time the account was opened and the merchandise purchased and charged," that Dudley's denial in his affidavit that the goods were necessaries is expressed as a belief and is not a statement of fact, and that Dudley's motion was not supported by an affidavit.  In an affidavit in support of its answer, the supplier swore that "the items represented by the account" were necessaries.

   Montgomery Ward and Dudley each asked for a hearing, and one was held.  On the record we have detailed, Judge Childs granted Montgomery Ward a summary judgment against Dudley, apparently accepting either its theory that Dudley's affidavit was ineffective as a block to its motion because it violated Maryland Rule 610 b in making only a bald general assertion that the goods[***6] furnished were not necessaries, in failing to set forth facts that would be admissible in evidence and to assert that the affiant was competent to testify to such facts, [*251] and that they were within his personal knowledge; or its theory that Dudley's motion for summary judgment required a valid supporting affidavit to be effective, or both.

   We agree that Dudley's affidavit was defective and that if Dudley's case had depended solely on his affidavit Montgomery Ward would have been entitled to judgment.  Frush v. Brooks, 204 Md. 315; Tri-State Properties, Inc. v. Middleman , 238 Md. 41.

   We think, however, that the law governing a husband's liability for necessaries furnished his wife makes the undisputed fact that the wife had left the husband and committed adultery the only revelant and material fact in the case and entitled Dudley after the hearing to a judgment in his favor as a matter of law. Generally, a husband has a duty to support his wife and if he fails to do so will be liable to pay one who furnishes the wife necessaries even though the couple are living apart voluntarily or without the fault of the wife. We need not discuss or decide the theories variously[***7] relied on to impose this liability on the husband.  One view -- apparently the Maryland view, see McFerren v. Goldsmith-Stern Co., 137 Md. 573 -- is that the wife becomes an agent of the husband to pledge his credit.  This agency has been called "implied," [**440] "of necessity" and "compulsory." 41 Am. Jur. 2d Husband and Wife § 349; 2 Williston, Contracts (3d ed.) § 270A, p. 151.  The Restatement -- Restitution -- suggests that the true basis may be the rules making up the doctrine of unjust enrichment. n1

n1 Restatement, Restitution § 113: "A person who has performed the non-contractual duty of another by supplying a third person with necessaries which in violation of such duty the other had failed to supply, although acting without the other's knowledge or consent, is entitled to restitution therefor from the other if he acted unofficiously and with intent to charge therefor."

   Whatever its sound basis, this liability of the husband arises and continues by reason of the marital tie, McFerren [***8]  v. Goldsmith-Stern Co., supra; Winchester v. Winchester, 138 Md. 95. When that tie is severed by a court or when the wife misbehaves to a point which [*252] would permit the husband to obtain its severance, his obligation to pay for supplied necessaries terminates completely.  Kerner v. Eastern Hospital, 210 Md. 375, 379, 381-82, flatly so held in a recognition of and obedience to the long and well established rule of law to that effect. n2

n2 See Tod v. Stokes, 12 Mod. 244, 88 English Repr. 1294; Town of Milton v. Bruso (Vt.), 10 A. 2d 203; M'Cutchen v. M'Gahay (N.Y.), 11 Johns 281; Sawyer v. Richards (N.H.), 23 A. 150; Denver Dry Goods Co. v. Jester (Colo.), 152 P. 903; 41 Am.Jur.2d Husband & Wife § 333; Annotation, Necessaries Furnished to Wife -- Liability, 60 A.L.R.2d 7, § 16, pp. 31-32.

   Adultery, uncondoned, is a leading form of wifely misbehavior which ends the husband's liability to provide or pay for necessaries. n3

n3 See Morris v. Martin, 1 Strange 647, 93 English Repr. 757; Manwairing v. Sands, 2 Strange 706, 93 English Repr. 797; Bolton v. Prentice, 2 Strange 1214, 93 English Repr. 1136; Hunter v. Boucher (Mass.), 3 Pickering 289; Gill v. Read, 5 R. I. 343; Alley v. Winn, 134 Mass. 77; State v. Schweitzer (Conn.), 18 A. 787; Webster v. Boyle-Pryor Const. Co. (Mo. App.), 144 S.W.2d 828; State v. Falkner (N.C.), 108 S.E. 756; 41 Am.Jur.2d, Husband and Wife, § 354; Annotation, Necessaries Furnished Wife -- Liability, 60 A.L.R.2d 7, 33, § 17 n. 1.

[***9]

   One who supplies necessaries to a wife without the approval of the husband is not helped by his lack of knowledge of her desertion or her adultery. Under the general holdings of the courts, he supplies a wife at his financial peril and bears the burden of proving that the husband is liable.  Judge Delaplaine for the Court said in Kerner v. Eastern Hospital at p. 381 of 210 Md.:

   "But when a wife deserts her husband without his fault she forfeits all rights to support from him, and carries with her no authority to pledge his credit even for necessaries [citing cases].  This is especially true where the person furnishing the necessaries knows that the husband and wife are not living together, and yet makes no further inquiries."
 
Kerner's holding that the seriously erring wife cannot pledge the husband's credit even though the supplier does not know that she is separated and at fault is well supported [*253] by the cases.  See Morris v. Martin, 1 Strange 647, 93 English Repr. 757; Manwairing v. Sands, 2 Strange 706, 93 English Repr. 797; Bolton v. Prentice, 2 Strange 1214, 93 English Repr. 1136 (reporter's note); Cowell v. Phillips (R.I.), 20[***10] A. 933; Vusler v. Cox (N.J.), 22 A. 347; Sibley v. Gilmer (N.C.), 32 S. E. 964; Audrain County v. Muir (Mo.), 249 S. W. 383; Steinfield v. Girrard (Me.), 68 A. 630; Smith v. Smith (Mich.), 41 N. W. 499; James McCreery & Co. v. Martin (N.J.), 87 A. 433; 41 Am.Jur.2d Husband & Wife § 363; Annotation, Necessaries [**441] Furnished Wife -- Liability, 60 A.L.R.2d 7, 43, § 27 n. 5. n4

n4 These cases make it clear that the duty of a husband to provide his wife with necessaries is one which is imposed by the law and as such the husband's liability to one who has so supplied the wife is solely dependent upon the existence of the circumstances which give rise to that duty, that is, the couple is living together or are separated voluntarily or without the fault of the wife, and the husband has failed to adequately supply the wife with necessaries. Thus, the misconduct of the wife brings that duty to an end, regardless of notice to the supplier that a separation has occurred, or that the wife is at fault. The Cowell, Sibley, Smith and McCreery cases point out that a separate contractual duty of the husband may arise and continue even after a separation at the fault of the wife where the husband, by his conduct prior to the separation, has led the supplier to believe that his wife has authority to trade on his credit.  In such a situation the wife will continue as an apparent agent of the husband until the supplier receives notice of the separation or that an agency relationship no longer exists.  See also Jones v. Gutman, 88 Md. 355; McFerren v. Goldsmith-Stern Co., 137 Md. 573. But, as in our case.
"there seems [to be] no ground for [an assumption that the wife has authority to pledge the credit of the husband for necessaries, unless he receives notice to the contrary] on the part of the tradesman who deals with the wife for the first time.  He is supposed to know that the wife's power to pledge her husband's credit is not without limit, that she can only do so for the purpose of obtaining those necessaries which the law requires him to furnish her, and to the extent that they remain unfurnished, he can readily ascertain by inquiry the fact of the wife's authority to pledge her husband's credit for the purchases which she desires to make." James McCreery & Co. v. Martin (N.J.), 87 A. 433, 434.

[***11]

   In view of the established law and the undisputed desertion and adultery, Montgomery Ward's claim of lack of notice and lack of knowledge of the facts n5 and its [*254] claim that the goods were necessaries, even if assumed to be true in fact, were irrelevant and immaterial.

n5 If a court properly could, as it cannot, make findings of fact or draw inferences of fact in considering the entry of a summary judgment, it would be hard to escape a finding that Montgomery Ward was on notice that the Dudleys were separated in view of the account attached to its affidavit, which revealed that its records show them as living at separate addresses.

   Our view is that such non-compliance with the provisions of the summary judgment rules as there was should not have required judgment for a plaintiff who, on the record before the trial judge when judgment was entered, was clearly not entitled to prevail as a matter of law.

   Rule 610 a 1 provides that a party against whom a claim is asserted may make a motion for summary[***12] judgment "at any time." Rule 610 a 3 provides:

   "The motion must be supported by affidavit when filed with the pleading asserting the claim or before the adverse party has filed his initial pleading to it; otherwise the motion may be made with or without supporting affidavits."
 
Since Dudley's motion for summary judgment was filed after his pleas had been filed, no supporting affidavit was then required by the rules.  Fletcher v. Flournoy, 198 Md. 53, 58. Further, Rule 610 d 1 says that summary judgment shall be rendered forthwith:
 
"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * Where appropriate, the court on the hearing may render judgment for the opposing party even though he has not filed a cross-motion for summary judgment."

   [**442] Entry of a summary judgment has been approved by this Court under the last sentence of Rule 610 d 1 and the inherent power of the Court, although the summary judgment rules had not been fully complied with.  Fletcher [*255]v. Flournoy, [***13]  supra; Frush v. Brooks, supra; Hunt v. Montgomery County, 248 Md. 403; Myers v. Montgomery Ward & Co., Inc., 253 Md. 282. We think the facts and circumstances of this case would have made it appropriate to enter judgment for Dudley in any event.

   Judgment reversed and judgment entered for William C. Dudley for costs. Costs in this Court to be paid by appellee. 

ANNE ARUNDEL COUNTY, MARYLAND v. CUSHMAN 
No. 383, September Term, 1968
 
Court of Appeals of Maryland
 
255 Md. 153; 257 A.2d 150; 1969 Md. LEXIS 694

 October  9, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order affirmed; costs to be paid by appellant.

CORE TERMS:  zone, collection, unit price, retroactive, bid, mutual mistake, specifications, reformation, effective, calendar year, supplemental, contractor, chancellor, appendix, lump sum, notice, direct examination, lump sum contract, original contract, ample evidence, inactivity, extract, counted, printed, lulled, laches, acquiescence, calculation, prolonged, inherited

COUNSEL: John B. Court, Assistant County Solicitor, with whom was Phillip F. Scheibe, County Solicitor, on the brief, for the appellant.

   William J. Boehm for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*154] [**151] Anne Arundel County (the County) appeals from an order of the Circuit Court for Anne Arundel County which had the effect of reforming the supplements to a contract for the collection of refuse which Cushman had entered into with the County and specifically enforcing the supplements as reformed.  The controversy was before us in Cushman v. Anne Arundel County, 246 Md. 525, 228 A. 2d 825 (1967) where we remanded the case to the Circuit Court for Anne Arundel County for further proceedings because the lower court had dismissed Cushman's complaint on the pleadings without taking testimony. [***3] We treated the dismissal as a summary judgment which had been improvidently entered in a case where there was a dispute as to material facts.  Waldman v. Rohrbaugh, 241 Md. 137, 139, 215 A. 2d 825 (1966). On remand, Cushman amended his bill of complaint, and sought reformation of his supplemental contracts as an alternative to specific performance.

    The factual background of the dispute is set out in detail in our opinion filed in Cushman v. Anne Arundel County, supra, 246 Md. at 527-31, and need only be summarized here.  In 1959, the County asked for lump sum bids for the collection of refuse in certain areas of the third and fifth election districts of the County for the calendar year 1960.  The specifications called for a contract which would be automatically renewable for four successive calendar years on the same terms and conditions, subject, however, to termination by either party at [*155] the end of any calendar year on four months' written notice.

   Cushman's bid of $53,328 for the collection of refuse in zone 7, which lay partly in the third and partly in the fifth district, was the low bid and he was awarded a contract for the year 1960.  The contract contained[***4] a further provision which is of some significance here:
 
"* * * Right to renegotiate this contract shall be reserved to either of the parties hereto upon written request delivered to the place of business of the other party not later than four (4) months prior to the end of any calendar year for the purpose of adjusting the compensation hereunder for the number of properties served in existing zones, or to include new areas to be served in such zones. Such adjustment shall be at the same rate per collection unit as applies under this contract.  The contract for each renewal period shall be executed and performance bond furnished not less than thirty (30) days prior to the beginning of each annual period." (emphasis added).

   The argument which arose related to ten supplements to the contract, respectively entered into between Cushman and the County on 19 February 1960 (retroactive to 1 January 1960); n1 1 July 1960 (effective on that date); 16 February 1961 (retroactive to 1 January 1961); 1 July 1961 (effective 1 July 1961); 26 February 1962 (retroactive to 1 January 1962); 1 July 1962 (effective 1 July 1962); 18 February 1963 (retroactive [**152] to 1 January 1963); [***5]9 July 1963 (retroactive to 1 July 1963); 21 February 1964 (retroactive to 1 January 1964); 22 July 1964 (retroactive to 1 July 1964), each of which added new collection units, for which Cushman was to [*156] be compensated, as specified by the supplement, at an annual rate of $13.65 per additional unit.

n1 It is important to note that the first supplement was made less than two months after the contract became effective and that thereafter the contract was supplemented at intervals of about six months.  Both parties seem to have ignored the provision for an annual renegotiation on four months' notice.

   The nub of the controversy lies in the computation of the unit price. Simply stated, the County contended that zone 7 contained 3908 collection units on 1 January 1960; Cushman, that zone 7 contained 2932 units.  However, as will be pointed out, it was not until late in 1964 that the number of units was precisely ascertained.  When the number of units which the County believed to be in zone 7 was divided[***6] into the lump sum contract price in ostensible compliance with the formula set out in the contract provision quoted above, the County came up with a unit price of $13.65; and Cushman, based on his calculations, with a unit price of $18.11.

   During the period 1 January 1960 to 31 December 1964, 1288 collection units were added to zone 7 by the contract supplements, each at the County's unit price of $13.65.  If Cushman's calculation of a unit price of $18.11 can be sustained, the County owes Cushman the additional sum of $19,809, which was the amount entered by the order from which the County has appealed.

   The County assigns four reasons why the order should be reversed:

   i. The lower court "misunderstood" and "misstated" a stipulation as to the original collection unit count.

   ii. Cushman's oral complaints were insufficient "to be heard in derogation of the explicit substantive terms of the contract."

   iii. Cushman "was estopped to complain by his prolonged foreknowledge in the premises" and waived "any right of reformation by his prolonged acquiescence."

   iv. The weight of Cushman's evidence was "rendered questionable by an improper leading, direct examination of a friendly[***7] witness."

   i.

   The stipulation to which the County refers developed in a colloquy between counsel and the lower court.  Rather than attempt to analyze the effect of the exchange, we [*157] shall assume for purposes of this opinion that the County's contention is well taken.  Entirely apart from the stipulation, however, there was ample evidence from which the chancellor could have found the facts on which he relied: first, that in 1960, the County assumed that there were 3908 collection units in zone 7; second, that 1288 units were added between 1960 and 1964; and third, that by actual field count in November, 1964, there were found to be 4220 units in the zone. It requires no mathematical wizardry to divine that there must have been 2932 units in zone 7 in 1960, before 1288 units were added.  It seems to be conceded by both sides that it was not the County's practice to take into account "abatements": i.e., the deletion of collection pick-ups from the route, because of vacancy or other reasons.

   ii. and iii.

   The thrust of these two contentions, as we understand them, is that the parol evidence rule prevents a written agreement from being contradicted, added to or varied[***8] by parol, except where there is a mutual mistake of fact, and that Cushman's familiarity with zone 7 renders the mistake, assuming that there was a mistake, a unilateral mistake, which will not support reformation absent the element of fraud or duress.  Glass v. Doctors Hospital, Inc., 213 Md. 44, 131 A. 2d 254 (1957); Ray v. Eurice, 201 Md. 115, 93 A. 2d 272 (1952).

   It seems to us that this bridge was crossed in the earlier case, where this Court, speaking through Chief Judge Hammond, said:
 
"* * * We think the County, having called for a lump sum contract which contemplated [**153] on the County's part either existing knowledge or prompt ascertainment of the number of existing units to be serviced, cannot say that it was misled by what Cushman alleges was temporary and tentative acquiescence in the County's estimate of the number of units or by his delay [*158]in asserting a higher unit price." 246 Md. at 532.

   To us, it seems quite significant that neither the contract nor the specifications referred to the number of collection units in zone 7, nor fixed a unit price. There was no evidence that Cushman had counted the units prior to sometime in 1964, [***9] when his field check tallied with the County's.

   It is quite clear from the testimony that until 1964, when the County made a field count at Cushman's insistence, the County had no reliable figures on the number of collection units in zone 7.  George Cureton, a witness for the County, testified that he was construction engineer in the County's Department of Public Works during the period in controversy.  When asked where he got the information that there were 3908 collection units in zone 7, he said, "This is the figure that was left to me, I inherited that." He then explained that the figure had come from Mr. Joesting, his predecessor.

   Cureton then described his discussion with Cushman:
 
"Q.25 Did he [Cushman] ever complain to you about the supplemental agreements that were being signed shortly after the original contract had been extended?
"A. The first letter went out --
"Q.26 What was his complaint?
"A. The first letter went out, like I say, the middle of January or thereabouts, and I don't know whether it was Mr. Dunn [the County Treasurer] or who he came down with, but we had a meeting in Mr. Pantaleo's [the Director of Public Works] office and at that time we[***10] told him, the only thing I told him was these were the only figures we had to work with, I mean, there was no other way that we could come up with another figure.  This is what the man had left us to work with and we had to go [*159] with it.  And, it's been said before, if there was any change indicated that this would have to be taken care of sometime later."

   Edward M. Dunn, Jr., who was County Treasurer in 1960 and 1961, and County Commissioner after 1961, called as a witness by Cushman, testified that Cushman had been "almost a weekly visitor" during this period, and that Cushman was told:
 
"* * * It was a matter of routine, it had been done with the other contractors, we called a survey or census, we called it then, indicated the County owed [Cushman] money, he'd be paid, if it indicated he was being overpaid we might look for an adjustment from that standpoint."

   Contrary to the County's contention that Cushman acquiesced, there was ample evidence that Cushman repeatedly questioned the accuracy of the County's figure of 3908 collection units, and urged that a count be made in the field.

   Theodore Pantaleo, the County's Director of Public Works at the time, [***11]also testified for Cushman.  He said that Cushman's visits to him were "numerous" and that they related to the unit count.  The testimony continued:
  
"Q.22 In other words, Mr. Cushman was the last man to have his zone counted?
"A. If I remember, that's correct, yes.
"Q.23 Now, Mr. Pantaleo, did you ever discuss the facts with Mr. Cushman in regards to the survey, [**154] that when it was completed what position the County would take?
"A. Oh, I think I took the position that I certainly would recommend that some adjustment be made to compensate him for the difference.
"Q.24 Did you advise Mr. Cushman of this?
"A. I did.
[*160] "Q.25 And as a result he was pacified and he continued his services?
"A. That's correct."

   The County's delay was attributable to a shortage of personnel, and Cushman was lulled into inactivity by the County's repeated assurances that a count would be made, and an adjustment of payments effected, either in Cushman's favor or against him, depending on the results of the count.  This does not constitute laches under the cases.  Parker v. Bd. of Election Supervisors, 230 Md. 126, 130, 131, 186 A. 2d 195 (1962). Nor do we believe that[***12] Cushman is estopped from obtaining relief.  Chesapeake Homes v. McGrath, 249 Md. 480, 489, 240 A. 2d 245 (1968).

   It should be emphasized that the mutual mistake found by the chancellor lay not in the original contract, but only in the 10 supplemental agreements, which had adopted a figure of $13.65 per unit, arrived at by dividing 3908 units, described by the County's own witness as an "inherited" figure, into the lump sum bid of $53,328 and rounded off the resulting figure of $13.6458.

   As we see it, this is almost the classic example of a permissible correction of a written instrument by a court of equity to express the true intention of the parties, when the true intention has not been stated because of a mutual mistake. Mattingly v. Houston, 235 Md. 54, 200 A. 2d 160 (1964); Painter v. Delea Att'y, 229 Md. 558, 184 A. 2d 913 (1962); Hoffman v. Chapman, 182 Md. 208, 34 A. 2d 438 (1943); 4 Pomeroy, Equity Jurisprudence § 1376 (5th Ed. 1941).

   iv.

   The last point made by the County is that Edward M. Dunn, Jr., at the time of the trial an Anne Arundel County Councilman who had been called as a witness by Cushman, was asked 22 leading questions during his direct[***13] examination, which somehow caused a cloud to be cast on "the weight of Cushman's evidence." This contention can be readily disposed of.  In the first place, the transcript clearly shows that before Dunn testified, the [*161] chancellor ruled that Dunn was an adverse witness and that he could be asked leading questions.  It is not clear that an exception was taken to this ruling, but even assuming that there was, no objection was made when any of the questions was asked.  There is nothing for us to review.  Maryland Rule 522; Rose v. State, 240 Md. 65, 212 A. 2d 742 (1965); Gwaltney v. Morris, 237 Md. 173, 205 A. 2d 266 (1964).

   One final question remains.  Cushman has moved that we strike the reply brief filed by the County, primarily because there is contained in the appendix the form of proposal and specifications released by the County for waste collection contracts put out for bids in November 1964.  Cushman argues, and we think correctly, that the material was not in evidence below, is not part of the "original papers" as contemplated by Rules 826 b and c and cannot be included in the extract provided for by Rule 828.  The County argues that the motion to strike comes[***14] too late, but cites no authority for this, and that Maryland Code (1957, 1965 Repl. Vol. 1968 Cum. Supp.) Art. 35, Sec. 66 A (the Act) requires us to take judicial notice of the material contained in the appendix.

   Assuming, arguendo, that the County is entitled to rely on an Act, which by its terms took effect 1 July 1968, after the trial of the case below, the County's argument overlooks the fact that the Act provides that "[t]he public laws, ordinances, regulations, and resolutions approved and enacted by the respective counties * * * shall be judicially [**155] noticed or shall be read in evidence either from the printed volume thereof or from a true copy of an amendment thereto, published by the authority of said bodies." By no stretch of the imagination can the Act be construed to encompass notices to bidders, bidding requirements, specifications and a form of proposal proffered without any indication that they were adopted by resolution and published.  The material was not offered in evidence below, formed no part of the transcript, and should not have been included in the printed [*162] extract. It is obvious that Cushman's motion was made under Rule 855, which[***15] fixes no time limit, and not under Rule 836, which does.  The appendix will be stricken.

   Order affirmed; costs to be paid by appellant. 

BOBLIT v. WARDEN, MARYLAND PENITENTIARY 
App. No. 2, September Term, 1968.
 
Court of Appeals of Maryland
 
254 Md. 36; 253 A.2d 525; 1969 Md. LEXIS 846

 June  2, 1969, Decided

   PRIOR HISTORY: [**1]

   Application for leave to appeal from the Circuit Court for  Anne Arundel  County (MELVIN, J.).

DISPOSITION: Application denied.

JUDGES: Before HAMMOND, C.J., and MARBURY, BARNES, FINAN and SMITH, JJ.

OPINION:  [*526] PER CURIAM.

   The application of Charles D. Boblit for leave to appeal from denial of Post Conviction relief by Judge Ridgely P. Melvin, Jr. on February 3, 1969 is denied for the substantive reasons (as distinguished from reasons based on waiver or for failure to have raised the point at trial) set forth by Judge Melvin in his opinion denying relief. 

BALENSON v. MARYLAND AIRPORT AUTHORITY, et al. 
No. 374, September Term, 1968
 
Court of Appeals of Maryland
 
253 Md. 490; 251 A.2d 870; 1969 Md. LEXIS 983
 
 May  9, 1969, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J. April 8, 1969, Per Curiam Order filed.

DISPOSITION: Order reversed, with costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Taxpayer appealed from order of the Circuit Court for Anne Arundel County dismissing his complaint for declaratory relief and permanent injunction against state and local authorities, alleging Md. Code Ann. Art. 62C, § 7 (1957, 1968 Repl. Vol., 1968 Supp.) was unconstitutional.

OVERVIEW:  Taxpayer challenged constitutionality of statute creating Maryland Airport Authority. State maintained that statute was constitutional because it must be assumed that payments were to be made by the Authority. City contended that the transaction was unconstitutional because State was not obligated to make the payments. Amicus curiae argued that constitutional issue would be moot if governor signed a bill recently passed by the legislature. The court explained that the state constitution required that a debt must be authorized by a law providing for the collection of an annual tax in an amount sufficient to pay the interest and to discharge the principal. The court held the act unconstitutional because it created a debt greater in amount than the general obligation bonds which were authorized, only part of which would have been available for the purchase of the airport.

OUTCOME:  The court reversed dismissal of the complaint, holding that statute was invalid under Maryland constitution, because no tax was provided for in the bill that authorized the debt.

CORE TERMS:  airport, ownership, dollars, purchase price, reimburse, Constitutional Law, annual tax, expenditures, annual, ordinance, general obligation, installments, collection, invalid, outstanding, capital improvement, sufficient to pay, law providing, purpose of providing, legislative session, date of transfer, pension system, authorizes, moot, depreciation, twenty-two, obligated, appointed, passenger, supplied

 CORE CONCEPTS -  

Constitutional Law: State Constitutional Operation & Amendment
Governments: State & Territorial Governments: Finance
See Md. Const. art. III, § 34.

Governments: Legislation: Construction & Interpretation
The Court of Appeals of Maryland has consistently held that courts cannot invade a function vested solely in the legislature, however plausible may be the conjecture that a matter was within the legislative purview.

Governments: State & Territorial Governments: Finance
The tax must be provided for in the bill which authorizes the debt.

COUNSEL: E. Stephen Derby and Charles C. G. Evans for appellant.

   Morton L. Goldner, Special Assistant [***3]  City Solicitor, with whom were George L. Russell, Jr., City Solicitor, and Ambrose T. Hartman, Deputy City Solicitor, for appellee Mayor and City Council of Baltimore.

   S. Leonard Rottman, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees Maryland Airport Authority and Board of Public Works.

   Amicus curiae brief filed by Samuel D. Shapiro (Leonard J. Kerpelman on the brief).

   Amicus curiae brief filed by Greater Baltimore Committee, Inc. (Benjamin C. Howard, Daniel B. Leonard and Miles & Stockbridge on the brief).

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

OPINIONBY: SINGLEY

OPINION: [*491] [**871] The Circuit Court for Anne Arundel County dismissed a bill of complaint for declaratory relief and for a permanent injunction filed by Balenson against the Maryland Airport Authority (the Authority), Maryland's Board of Public Works (the [*492] State Board) and the Mayor and City Council of Baltimore (the City) which sought among other relief prayed to have subsection 7 of § 1 of Ch. 451 of the Laws of 1968, codified[***4] in Maryland Code (1957, 1968 Repl. Vol., 1968 Supp.) Art. 62C § 7, (the Act), declared unconstitutional, null and void; to enjoin the Authority from purchasing Friendship International Airport (Friendship) pursuant to § 7 (a) of the Act, and to enjoin the State Board from making any payment to the City under § 7(c) of the Act in connection with the purchase of Friendship.

   By a per curiam order entered on 8 April 1969, we reversed with costs the lower court's dismissal of the complaint.  Our reasons for so doing follow.

   The City built Friendship after World War II on some 3,300 acres which it had acquired in northern Anne Arundel County.  It is owned by the City and operated by the City's Airport Board.  At 30 June 1968, the facility represented a total capital investment, before depreciation, of $31,977,329, of which $23,928,893 had been contributed by the City, the balance having been provided from State and federal funds.  During twenty-one years of operation, Friendship has accumulated operating losses totalling $12,733,282, after making provision for the payment of interest on and the repayment of the principal of the City's outstanding airport bonds as they matured, [**872] [***5] but before depreciation. The fiscal year ended 30 June 1968 was the first year in which Friendship showed a profit, which for that year amounted to $216,744.  It was stipulated below that 2,695,475 passengers used Friendship in the 12 months ended 30 June 1968.

   On 27 November 1967, the Legislative Council, after reciting (a) that the Council, through its Budget and Finance Committee, had studied the question of State ownership of Friendship; (b) that there had been unanimous expression of approval of State ownership by various representatives of the City and by other interested parties; (c) that the Council also endorsed the principle of State ownership of Friendship; (d) that "[i]t is necessary now to determine the method by which the State shall operate [Friendship] as well as the purchase price to be paid to the City * * *", and (e) that it was the consensus of the Council that a representative committee should be [*493] appointed to prepare a plan implementing early State ownership of Friendship, adopted a resolution calling for the appointment of a Committee of twelve members, three to be appointed by the Governor, three by the Mayor and six by the President of the[***6] Legislative Council.  The Committee, which was charged with the responsibility of immediately "preparing a plan for State ownership of Friendship * * *, with the plan to include an agreed purchase price to be paid by the State to the City * * * and the legislation to implement State ownership" of Friendship, was to report to the General Assembly by 1 February 1968.

   The Committee report found:
 
"1. That the City of Baltimore cannot conveniently provide the necessary large capital funds n1 required immediately to meet urgent improvement programs at Friendship International Airport in order to meet the needs of air-carrier service to the State.
2. That the State can better provide the improved highway system required to serve the Airport.
3. That the State is in a better position to join with other agencies in providing high-speed ground transportation to and from the Airport.
4. That the State can better provide satellite airports for non-air carrier operations at the rapidly approaching time when this activity must be removed from Friendship.
5. The fact that the passenger traffic at Friendship is but approximately 20% from the City and 80% from other areas of the State[***7] and elsewhere.
6. The fact that the service to residents and businesses in at least 12 Maryland counties which generate the majority of the air passengers at Friendship will suffer if the City cannot make timely and adequate provision for meeting the growing needs at the Airport."

 n1 The Committee estimated that it was a capital improvement program costing not less than $60,000,000, to be completed by 1973.

   The Committee in its report to the General Assembly recommended [*494] that the State acquire Friendship on the following terms: (1) "[t]he State grant the City * * * $22 million in five equal installments"; (2) "[t]he State will assume the obligation for the outstanding 7th Airport Serial Loan Bonds of the City in the amount of $3,700,000"; [**873] and (3) "* * * [t]he State will agree to reimburse the City * * * up to * * * $4 million * * *" for current capital expenditures. To the report was attached a draft of the Act.

   The Act was introduced and passed at the 1968 session of[***8] the General Assembly and by its terms took effect on 1 July 1968.  It provided for the creation of the Authority; empowered it to acquire, construct, maintain and operate airports within the State; and to issue revenue bonds.  § 7 of the Act incorporated the substance of the Committee's recommendations, except that it called for payment in four rather than five annual installments:

   "(a) The Authority shall purchase, and the Mayor and City Council of Baltimore shall sell to the Authority for the sum of twenty-two million dollars, any and all of the right, title and interest which the Mayor and City Council of Baltimore has in the airport facilities known as Friendship International Airport upon the following terms and conditions:

   (1) The Mayor and City Council of Baltimore shall convey by lawful instrument all land and improvements comprising Friendship International Airport to the Maryland Airport Authority.

   (2) All outstanding bonds in the amount of three million seven hundred thousand dollars ($3,700,000) resulting from the seventh bond issue, known as the Seventh Airport Serial Loan Issue by the City of Baltimore in connection with the past development and operations of[***9] Friendship International Airport, and all interest payable in connection with these bonds shall be paid by the City of Baltimore and reimbursed by the Authority on an annual basis.

   (3) Until the date of transfer hereinbefore mentioned, the City of Baltimore shall continue the current [*495] capital improvements programs in progress by utilizing authorized unexpended State and federal grants together with funds of the City of Baltimore.  It is understood that these improvements programs are those financed or to be financed by the City of Baltimore airport serial loans identified as Airport Serial Loans Seven and Eight.  It is further understood that the City of Baltimore will not issue the Eighth Airport Serial Loan in the amount of four million dollars ($4,000,000).  The Authority shall reimburse the City of Baltimore for the aforementioned expenditures under this section, in an amount not to exceed a maximum of four million dollars ($4,000,000.).  It is the intent of the State to make the city whole for capital improvements.

   (4) The current operating revenue of Friendship International Airport from July 1, 1968, shall remain in an airport account, which will be designated [***10]as a special airport fund account, from which operating expenses will be paid and the balance turned over to the Authority upon transfer of the airport by the City to the Authority as provided in this section.

   (b) The purchase price of twenty-two million dollars ($22,000,000) shall be paid to the City of Baltimore in four (4) equal payments.  The first payment in the amount of five million five hundred thousand dollars ($5,500,000.) shall become due on the date of transfer of deed to Friendship International Airport from the Mayor and City Council of Baltimore to the Authority, and thereafter payment shall be made in three (3) annual payments.

   [**874] (c) Payment of funds to the City of Baltimore shall be made by the Board of Public Works upon their determination that the conditions set forth in subsection (a) of this section have been fulfilled.  (1968, ch. 451, § 1.)"
 
The Act also required the State to reimburse the City for its contributions to the City pension system on behalf of Friendship [*496] fire-fighting and police personnel who might elect to remain members of the pension system after 1 July 1968.

   At the same legislative session there was enacted[***11] Ch. 449 of the Laws of 1968, which authorized the State to issue $20,000,000 of general obligation bonds "* * * for the purpose of providing the payment on account on the purchase of Friendship * * * for organizational expense of creating the Maryland Airport Authority, * * *" for payment of present bonded indebtedness, and other necessary and incidental expenses.

   On 1 July 1968, the day when the Act became effective, an ordinance authorizing the City's sale of Friendship on the terms and conditions set forth in the Act was introduced in the Baltimore City Council and referred to the Committee of the Whole.  The ordinance authorizing the sale was passed on 12 July 1968, and approved on 16 July 1968 as Ordinance 232.  On 14 August 1968, the City's Board of Estimates adopted a resolution ratifying the sale of Friendship, described in the resolution as "no longer needed by the City for public use", in accordance with the provisions of Ordinance 232, i.e., the terms and conditions prescribed in § 7 of the Act.

   On 30 August 1968, Dr. Balenson brought the taxpayer's suit n2 in which he challenged the constitutionality of § 7 of the Act and the validity of the City's Ordinance 232. [***12] Under our view that § 7 of the Act is invalid because it failed to observe the mandate of Maryland Constitution, Art. III, § 34, we do not reach the other points made by the appellant.

n2 The Balenson case was consolidated below with a companion case instituted on 23 July by Samuel Shapiro.  Only the Balenson case is before us in this appeal.

   Constitution, Art. III, § 34 provides:

   "No debt shall be hereafter contracted by the General Assembly unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same; and the taxes laid for this purpose shall not be [*497]repealed or applied to any other object until the said debt and interest thereon shall be fully discharged.  * * *"

   In Birmingham v. Bd. of Public Works, 249 Md. 443, 239 A. 2d 923 (1968), we found Ch. 652 of the Laws of 1966 (the Nursing[***13] Home Loan Act of 1966) invalid because the phrase "necessary to produce revenue to meet all interest and principal" payable on the bonds to be issued was inadvertently omitted from the provision for the imposition of the annual tax, and held that we were powerless to correct the omission.

   The historical reason for the constitutional safeguards which have governed the creation of State debt for more than a hundred years has been considered at length in Johns Hopkins University v. Williams, 199 Md. 382, 86 A. 2d 892 (1952) and in Maryland Industrial Development Financing Authority v. Meadow-Croft, 243 Md. 515, 221 A. 2d 632 (1966) and need not be repeated here.  It should be pointed out, however, that by enacting the Act, the Legislature [**875] created three distinct obligations: § 7 (b) required the payment of a purchase price of $22,000,000 in four annual installments of $5,500,000 each; § 7 (a) (2) required the Airport Authority to reimburse the City for all principal and interest payments on $3,700,000 Seventh Airport Serial Loan Bonds, which mature serially until 30 June 1980; and finally, § 7 (a) (3) required the Authority to reimburse the City for expenditures[***14] made in support of a capital improvement program, not to exceed $4,000,000 in the aggregate.  The majority rule is that such a purchase gives rise to a debt in the amount of the payments to be made at future dates.  2 Antieau, Municipal Corporation Law (1968) § 15.36 at 433; Walla Walla City v. Walla Walla Water Co., 172 U.S. 1, 19 S. Ct. 77, 43 L. Ed. 341 (1898). Compare, however, Hall v. Mayor & City Council of Balto., 252 Md. 416, 250 A. 2d 233 (1969), where rentals payable by Baltimore City under a long-term lease were held not to constitute a debt, and see Wyatt v. State Roads Comm'n, 175 Md. 258, 267-68, 1 A. 2d 619 (1938).

   But, says the State, the Act does not make it clear who is to make the payments and it must be assumed that such payments are not an obligation assumed by the State, but are to be [*498] made by the Authority, presumably from airport revenues collected by the Authority.  Such a holding, the State argues, would be consistent with this Court's obligation so to interpret an act as to uphold its constitutionality, citing Johns Hopkins University v. Williams, supra , and our duty to give effect to the statute according to the intention [***15]of the legislative body, relying on Stephens v. Montgomery County Council, 248 Md. 256, 235 A. 2d 701 (1967); State Dept. of Assessments & Taxation v. Ellicott-Brandt, Inc., 237 Md. 328, 206 A. 2d 131 (1965). While these principles are frequently invoked in aid of statutory construction, we have consistently held that courts cannot invade a function vested solely in the legislature, however plausible may be the conjecture that a matter was within the legislative purview.  Birmingham v. Bd. of Public Works, supra, citing Redwood v. Lane, 194 Md. 91, 69 A. 2d 907 (1949); Rogan v. B. & O. R. R. Co., 188 Md. 44, 52 A. 2d 261 (1947); State Tax Comm'n v. Potomac Elec. Power Co., 182 Md. 111, 32 A. 2d 382 (1943); and Hammond v. Haines, 25 Md. 541, 90 Am. Dec. 77 (1866).

    It is interesting to note that the City contends that the Act does obligate the State to make the payments, and that if the State is not so obligated, then "the entire transaction must fall." Of even greater significance is the fact that Ch. 449 of the Laws of 1968 authorized the State to create an obligation of $20,000,000 for "* * * the purpose of providing payment on account on the [***16]purchase of Friendship * * *" (emphasis supplied) and that Senate Bill 179, introduced at the 1969 legislative session, authorized the State to issue $16,500,000 of general obligation bonds to "be used for payment of the balance due for the purchase of Friendship Airport" (emphasis supplied), i.e., the three annual payments of $5,500,000 each due in the State's fiscal years ending 30 June 1970, 1971 and 1972.  This would seem to indicate that by 1969, at least, the Legislature thought that the State had obligated itself to pay the purchase price.

   The Greater Baltimore Committee, which filed an amicus curiae brief, would have us hold that Senate Bill 179, if signed by the Governor, would make the constitutional issue moot. But this overlooks the constitutional requirement that the "debt shall [*499] be authorized by a law providing for the collection of an annual tax * * * sufficient to pay the interest * * * and also to discharge the principal * * *." As we see it, the tax must be provided for in the bill which authorizes the debt.  See McKeldin v. Steedman, 203 Md. 89, 98 A. 2d 561 (1953). The Act created an indebtedness of almost $30,000,000.  Ch. 449, a separate[***17] bill adopted contemporaneously, [**876] authorized an issue of $20,000,000 of general obligation bonds, only a part of which would have been available for the purchase of Friendship, and it was not until a year later that Senate Bill 179 authorized an additional $16,500,000.

   It follows that the court below was in error when it failed to enter a declaration that § 7 of the Act was unconstitutional and invalid, and when it failed to grant the injunctive relief prayed.  It was on this account that the order dismissing the bill was reversed. 

WOODLAND BEACH PROPERTY OWNERS' ASSOCIATION, INC. v. WORLEY,et ux. 
No. 233, September Term, 1968
 
Court of Appeals of Maryland
 
253 Md. 442; 252 A.2d 827; 1969 Md. LEXIS 979

 May  8, 1969, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed May 16, 1969; Denied May 26, 1969.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Pitcher, J.

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

CORE TERMS:  declaration, beach, park, demurrer, improved, declaratory relief, plat, decree pro confesso, justiciable issue, deed, declaratory decree, duly recorded, sustaining, designated, improving, streets, guard, unrestricted use, aforementioned, immaterial, Uniform Declaratory Judgments Act, specific charge, harmless error, subject matter, property owner, per annum, equitable, detective, speaking, holder

COUNSEL: Nicholas J. Fotos for appellant.

   No brief filed on behalf of appellees.

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

* McWilliams, J., heard the argument in this case, but did not participate in the decision or opinion of the Court.

OPINIONBY: BARNES

OPINION: [*443] [**828] This appeal principally involves the correctness of a declaration [*444] by the Circuit Court for Anne Arundel County (the late Judge Pitcher) in regard to the rights[***3] and obligations of certain lot owners in a development in Anne Arundel County known as Woodland Beach.
 
   The appellant, Woodland Beach Property Owners' Association, Inc. (Woodland), is the record title holder of the beaches and parks in Woodland Beach for the purpose of keeping and maintaining them for the benefit of the property owners in that development.  It filed a bill of complaint on August 11, 1967, with two exhibits, against the appellees, Raymond H. Worley and Lillian Worley, his wife, who owned lots Nos. 2121 and 2122 in the development.  The allegations in the bill of complaint are substantially as follows:

   Woodland was incorporated as a Maryland corporation on May 24, 1932.  Its charter, filed as an exhibit, indicates that it had no capital stock, had 15 trustees and was formed for the purposes of owning, maintaining, improving, beautifying and keeping the beaches, parks and lumber buildings and structures; of maintaining, improving and beautifying the streets, roads and avenues at Woodland Beach; of owning and operating a club house or community house at the development for social, civic and recreational purposes; and, to promote and protect the rights and interests of[***4] the property owners at Woodland Beach.

   By a deed, dated May 24, 1933, Frank I. Williams and Edith McC. Williams, his wife, conveyed to Woodland all of the parts of the development indicated on the duly recorded plats of Woodland Beach and also all of their right, title and interest in the streets, roads, avenues and drives designated on the plats together with other properties mentioned in the deed (also attached as an exhibit), all upon the express covenant and condition that it would keep and maintain the parks for the benefit of the lot owners of Woodland Beach and that it would at all times keep, maintain and improve the streets, roads, avenues and drives for the benefit and use of the residents and inhabitants of Woodland Beach and for the benefit of the general public.

   The respondents below, and appellees in this Court, Mr. and Mrs. Worley, owned lots Nos. 2121 and 2122 on duly recorded Plat No. 1, Sheet No. 2 of Woodland Beach. They acquired [*445] these lots by mesne conveyances from Frank I. and Edith McC. Williams, his wife, on February 26, 1957, by a deed, duly recorded, from Bessie Pitts, et al.

   Woodland, pursuant to its charter, by-laws, its aims and purposes, [***5] as well as in pursuance of the trust reposed in it by the developer-grantors, improved certain beaches and parks for the use and enjoyment of the property owners and a reasonable contribution to the expense for the necessary maintenance of the beaches was computed at a cost of $3 per annum for each property owner. Each property owner was given the right to join Woodland for $6 per annum dues which included the $3 assessment or to pay the $3 maintenance expense.

   [**829] Woodland also contracted with the ABC Detective Agency to post a guard at the improved beaches for the purpose of excluding all persons not having a right to use the community property and also in requiring proof of ownership and payment of the assessment by lot owners otherwise qualified to use the beaches.

   The Worleys, notwithstanding appropriate notice to them of the rules and regulations, attempted to obtain entrance to one of the improved areas posted by the ABC Detective Agency and refused to disclose any credentials whatsoever, and further, attempted to enter the area forcibly by assaulting the guard posted by the detective agency who was acting within the scope of his duties as requested by Woodland. [***6]

   Woodland has never desired and does not at the present time desire to shut the Worleys off from using the improved beaches and parks and has always been willing to consent to such use by them, provided, however, that they cooperate with Woodland in bearing at least their part of the burden for the maintenance of the beaches and parks.

   It is then alleged in the bill of complaint that a present actual controversy exists between the parties in regard to the right of Woodland to require a reasonable contribution to the expenses of the necessary maintenance of these parks and beaches from each and every lot owner, including the Worleys, as a prerequisite to their using the improved beach areas.

   The prayers for relief are substantially as follows:

   1. That the Circuit Court pass a declaratory decree "requiring [*446] a reasonable contribution to the expenses of necessary maintenance and repairs of the public parks by all property owners who use it."

   2. That the Circuit Court also declare pursuant to the Uniform Declaratory Judgments Act, Code (1957).  Article 31A, that Woodland has the right to contract with a detective agency to post guards for the purposes of enforcement of this[***7] policy and in insuring that only property owners and their guests use the improved beaches and parks, provided "that the property owners obtain a receipt that they have contributed to the reasonable expenses of maintenance" of the improved beaches.

   3. That the Worleys be restrained from using any of the improved areas and beaches unless they first contribute the reasonable fixed assessment per property; and,

   4. That Woodland have other and further relief.

   Although the Worleys were duly summoned, they did not timely file an answer or other pleading to the bill of complaint.  Woodland, on February 13, 1968, filed a motion for a decree pro confesso together with the usual military affidavit.  On June 14, 1968, the Circuit Court, sua sponte, denied Woodland's motion for a decree pro confesso and filed its opinion, which, as will be later considered more fully, was in effect a declaration in regard to the matters set forth in the bill of complaint.  Thereafter, on June 17, 1968, the Worleys filed a demurrer to the bill of complaint, in which the following was alleged as reasons for the demurrer:

   1. That the Worleys when they purchased their lots "acquired a vested interest[***8] to use the designated park area on said plat irrespective of any transfer of said dedicated area by the original developer" to Woodland.

   "2. And for such reasons as are more particularly set out in the Court's Memorandum Opinion which was filed in this case on June 14, 1968."

   3. That the bill of complaint is bad in substance and insufficient at law.
 
   4. For other reasons to be shown at the time of hearing.

   On August 1, 1968, the Circuit Court passed an order reciting that the demurrer came on for decision under Local Rules [*447] without hearing, and sustaining the demurrer, [**830] without leave to amend.  Woodland filed a timely appeal from this order.

   The appellant raises the point in this appeal that the lower court erred in sustaining the demurrer to the bill of complaint.  We agree that this action was erroneous, but, as we will later develop, it was, in our opinion, harmless error, not justifying a reversal in this case.

   In a number of prior cases we have indicated, with increasing emphasis, that a demurrer is seldom appropriate in an action for declaratory relief under the Uniform Declaratory Judgments Act (the Act).  As we stated in Causey v. Gray, 250 Md. [***9] 380, 391, 243 A. 2d 575, 583-84 (1968):

   "Even in regard to the paragraphs of the bill of complaint concerning the alleged oral agreement, the allegations present a case for declaratory relief as a justiciable issue is raised.  It is immaterial to the granting of declaratory relief that the court might possibly rule against the plaintiff and declare that the oral contract was unenforceable because of the provisions of the Statute of Frauds.  As Judge Prescott, for the Court, stated in Shapiro v. Board of County Comm'rs for Prince George's County, 219 Md. 298, 303-04, 149 A. 2d 396, 398-99 (1959):

   "'It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action.  Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff.  The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled[***10] to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if [*448] he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree. 1 Anderson, Declaratory Judgments, Section 318.'"

   Speaking generally, it is only when the declaration sought does not present a justiciable issue -- as, for example, if a husband in a declaratory judgment suit seeking a divorce prayed for a declaration that his wife was guilty of constructive desertion, such a declaration being specifically excluded by § 6 of the Act -- that a demurrer would be appropriate, if the lack of a justiciable issue clearly appeared on the face of the bill of complaint or declaration.

   As Judge (later Chief Judge) Prescott indicated in Shapiro, supra, if there is a justiciable issue presented by the bill of complaint or declaration seeking declaratory relief under the Act, a declaration should be given even if it is not the declaration sought by the plaintiff and, indeed, is entirely or partially contrary to the theory[***11] of the plaintiff on which declaratory relief is sought.  This departure from the established practice in other proceedings at law or in equity may make it somewhat difficult to apply in proceedings under the Act, but we hope that the trial judges of the State will bear this unusual practice in mind when considering proceedings under the Act. See Hunt v. Montgomery County, 248 Md. 403, 410, 237 A. 2d 35, 38 (1968).

   In the instant case, the trial court, in effect, made a declaration in its memorandum opinion filed June 14, 1968, in connection with its denial of Woodland's motion for a decree pro confesso.  In that memorandum opinion, the lower court reviewed the facts alleged in the bill of complaint and in the exhibits filed with it.  The lower court then reviewed and distinguished the cases principally relied on by Woodland, i.e., Bina v. Bina, 213 Iowa 432, 239 N. W. 68, 78 A.L.R. 1216 (1931) and Kepler v. [**831] Border, 179 Iowa 318, 161 N. W. 302 (1917), pointing out that in neither of these cases was there an agreement for the maintenance and repair of the easements of way involved in those two cases.  The lower court then referred to the decision of[***12] the Court of Appeals of New York in Weil v. Atlantic [*449] Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13, 133 N.E.2d 505 (1956) and to our decision in Klein v. Dove, 205 Md. 285, 107 A. 2d 82 (1954). The "declaration" by the lower court was as follows:

   "Without speculation as to how the Association arrived at its Three Dollar ($3.00) assessment fee or concerning itself with the differences between maintaining and improving said parks (beaches), this Court, by adopting the same reasoning as the Court in Klein v. Dove, supra, finds that the Respondents in the instant case are entitled to the free and unobstructed use of the parks (beaches) designated on the aforementioned plats.

   "In dismissing the Complainant's Motion for a Decree Pro Confesso, this Court points out the distinction that the Association was charged with the responsibilities of maintaining said parks (beaches) for the benefit of the lot owners and of maintaining the aforementioned club house for the benefit of the members of said Association." (Emphasis in the original)

   The facts as alleged and as appear in the exhibits indicate that Woodland was obligated to maintain the areas in question, [***13] and no obligation was placed upon the lot owners to contribute any part of the expense of such maintenance.  In some developments, the title instruments impose a specific charge on the individual lots as covenants running with the land to provide for such maintenance.  See Wehr v. Roland Park Co., 143 Md. 384, 387-88, 122 A. 363, 364-65 (1923), but the title instruments in the instant case do not purport to impose such a charge.  On the contrary, the obligation to maintain is placed upon Woodland, without any provision giving Woodland the right to collect any sum, equitable or otherwise, from the lot owners.  It is clear to us that under these circumstances we should not imply the existence of such a covenant and charge on the land.  As Judge Grason, for the Court, quoting with approval from the opinion of the trial court, stated in Brady v. Farley, 193 Md. 255, 258, 66 A. 2d 474, 475 (1949):

   "In the recent case of Norris v. Williams, 189 Md. 73, 76, [*450] 54 A. 2d 331, 332, Judge Delaplaine, speaking for the Court, said:

   "'However, restrictions upon the use of land are in derogation of the natural right which an owner possesses to use and enjoy his property, [***14] and are repugnant to trade and commerce.  Consequently, restrictive covenants are construed strictly against their establishment and effect, and liberally in support of the unrestricted use of the land.  Himmel v. Hendler, 161 Md. 181, 155 A. 316; Ferguson v. Beth-Mary Steel Corporation, 166 Md. 666, 172 A. 238; Baltimore Butchers, Abbatoir & Live Stock Co. v. Union Rendering Co., 179 Md. 117, 17 A. 2d 130; Yorkway Apartments v. Dundalk Co., 180 Md. 647, 26 A. 2d 398; Matthews v. Kernewood, Inc., 184 Md. 297, 305, 40 A. 2d 522; Scholtes v. McColgan, 184 Md. 480, 490, 41 A. 2d 479.'

   "In the case of Scholtes v. McColgan, 184 Md. 480, 41 A. 2d 479, 484, the Court said:

   "'There must be borne in mind the often repeated doctrine that doubts should be resolved in favor of the unrestricted use of property.'"

   In our opinion, the "declaration" of the lower court in this regard was correct.

   Curiously, the Worleys, through their solicitor, filed the demurrer already mentioned on June 17, 1968 -- three days after the memorandum opinion was filed -- and stated as its second reason for its demurrer "such reasons as are more particularly set forth in the court's[***15] memorandum [**832] opinion which was filed in this case on June 14, 1968." It is not surprising that the lower court found these reasons persuasive and, indeed conclusive, so that it passed the order of August 1, 1968, sustaining the demurrer without leave to amend.

   All of these actions were unusual in the procedural sense and are not to be commended, but in substance the trial court did, in our opinion, effectively give a sufficient declaration under the circumstances, in its memorandum opinion of June 14, 1968.  We will give effect to the substance of the matter rather than [*451] to reverse because of errors in form and procedure, because, in our opinion, Woodland was not injured by the errors and obtained a proper declaration by the trial court.  See Maryland Rule 873 a.

   Order affirmed, the appellant to pay the costs. 

STOVALL v. SECRETARY OF STATE, et al. 
No. 85, September Term, 1968
 
Court of Appeals of Maryland
 
252 Md. 258; 250 A.2d 107; 1969 Md. LEXIS 1082

 February  4, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed.  Costs to be paid by the appellants.

CORE TERMS:  pecuniary loss, alumni, contingency, taxation, class action, accredited, subtitle, total amount, Laws of Maryland, injunctive relief, pecuniary, certification, sustaining, demurrer, alumnus, repeal, laches

COUNSEL: Paul J. [***2]  Cockrell for appellants.

   Martin B. Greenfeld, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees.

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

OPINIONBY: McWILLIAMS

OPINION: [*259] [**108] Three taxpayers (appellants), one of whom is an alumnus of Morgan State College, appeal from an order of the Circuit Court for Anne Arundel County, Evans, J., sustaining, without leave to amend, appellees' demurrer to their petition "for an order declaring Section 1 of Chapter 41 of the Laws of Maryland of 1963 to be null and void" and for broad injunctive relief. Judge Evans concluded they were without standing to sue and that, in any case, they were barred by laches. Since we agree appellants lacked standing we do not reach the question of laches. We shall adopt Judge Evans' statement of the facts.

   "Prior to 1963 the State College System in Maryland consisted of five State Teachers' Colleges which were controlled by a board consisting of the State Board of Education and the State Superintendent of Schools, and Morgan State College, a liberal arts[***3] institution controlled by its own Board of Trustees.

    "In 1963, by Chapter 41, Laws of 1963, the General Assembly revised the structure of the State College system.  It created a new Board of Trustees and gave it jurisdiction over the five State Teachers' Colleges, [*260] which were renamed as State Colleges.  It further directed the new Board to expand the five colleges into full liberal arts institutions.  Morgan State was not immediately brought under the new Board, but Section 1 of the Act provided that, upon the happening of a certain contingency -- that is, when three [or more] of the State Teachers' Colleges were accredited by the Commission on Institutions of Higher Education of the Middle States Association of Colleges and Secondary Schools -- the Secretary of State would certify that fact to the Board[s] of Trustees of Morgan State College and [of] the State Colleges.  After the first day of July next following the certification by the Secretary of State, the responsibility for the government of Morgan State would rest in the Board of Trustees of the State Colleges.

   "On 7 June 1967 the President of the Board of Trustees of the State Colleges advised the Secretary[***4] of State that all five of the State Colleges were fully accredited by the Middle States Association of Colleges.  On 12 June 1967 the President of the Board of Morgan State College advised the Secretary of State that, in his view, the contingency had not occurred.  The Secretary of State, in response, held a conference on 27 June 1967 with the Presidents of the respective Boards.  Mr. Cockrell [counsel for appellants] as Chairman of the Political Action Committee of the Morgan Alumni Association attended the meeting and presented the views of the Alumni Association.  After considering all of the documentary material and the views expressed at the meeting, the Secretary, in a letter of 28 June 1967, stated that he was of the opinion that the contingency had occurred and so certified that fact to both Boards.  As a result of the Secretary's certification, on 1 July 1967 the Morgan Board went out of existence, and control of Morgan was assumed by the Board of Trustees of the State Colleges.

   "The * * * [appellants] are citizens and taxpayers of the State of Maryland. One of * * * [them] is also [*261] an alumnus of Morgan State College and a member of the Morgan State College[***5] Alumni Association.  He joins in this action on behalf of himself and on behalf of all members of the Alumni Association.  The * * * [appellants] allege [**109] that Section 1 of Chapter 41 is vague and indefinite and that in any event, the contingency that any three of the State Colleges be accredited has not occurred.  They further allege that the proper procedure was not followed by the Secretary of State. They ask for broad declaratory and injunctive relief."

   Additionally it should be noted that appellants, as taxpayers, brought their action in behalf of themselves individually and in behalf "of the class they represent; namely, citizens and taxpayers of the State of Maryland." It might also be noted that appellants insist Judge Evans' sustaining of appellees' demurrer, without leave to amend, was arbitrary, capricious, and violative of "understandings reached between counsel * * * [and approved] by the lower court." Although the existence of some such "understandings" is alleged in appellants' brief, the record, except for the docket entries, is silent in this regard.  The relevant docket entries are as follows:

"1968 Jan. 8   Hearing on Demurrer held in Open
               Court before Judge Matthew S. Evans.
               Court will rule after Memorandum
               and Amendments are filed.  [Emphasis

               added.]
 1968 Mar. 6   Opinion fd.
 1968 Mar. 6   Decree fd."

 [***6]

   Appellants "strongly take issue" with the docket entries quoted above claiming Judge Evans promised to allow amendments to the petition in the event his ruling was unfavorable to them.  Appellees just as strongly espouse the accuracy of the docket entries.  In the circumstances, it seems strange that appellants made no effort, in the court below, to resort to the provisions of Maryland Rules 826 e and 827.  The relief afforded therein is not, of course, available here.  Rule 885.

   [*262] There appears to be no dispute about appellants' failure to allege an illegal expenditure of tax-derived funds resulting in either a pecuniary loss to them or an increase in their taxes.  They insist, however, that it is unnecessary for them to make such an allegation.  We shall examine their arguments in support of this proposition.

   Prior to its repeal on 1 July 1967, pursuant to the provisions of Sec. 1 of Chapter 41 of the Laws of Maryland of 1963, Code, Art. 65A § 9 (1968 Repl. Vol.) read as follows:

   "All persons holding degrees from Morgan College shall be classed as alumni of the State institution, and the general and local alumni associations of Morgan College shall be recognized[***7] by the State institution.  The rank and status of each student of Morgan College, as certified by the dean and approved by the president thereof, shall be accepted by the State College as the basis for the organization of the students."
 
Appellant Stovall contends that all persons upon whom Morgan State College, before 1 July 1967, had conferred degrees acquired, by virtue of § 9, supra, "significant legal status, rights, recognition" and benefits which the repealing statute, Chapter 41 of the Laws of 1963, "failed to restore or re-enact." This fact alone, it is argued, gives Stovall and the members of the Alumni Association standing to sue.  If this argument has any merit it has certainly escaped us.  It is neither alleged nor suggested that the Alumni Association or any of its members has been prejudiced by the repeal of § 9.  The members continue to be alumni and there is no intimation that the College has refused or will refuse to recognize the Association.  Even in that most unlikely event, it can hardly be said that the Association, or any of its members, would thereby acquire standing to maintain this suit.  Indeed, in the past we have denied standing to litigants[***8] the threats to whose rights and property were far more tangible and discernible than anything claimed by appellants.  E.g., Dutton v. Tawes, 225 Md. 484, 171 A. 2d 688 (1961); Phillips v. Ober, 197 Md. 167, 78 A. 2d 630 (1951); Hammond v. Lancaster, 194 Md. 462, 71 A. 2d 474 (1950); Baltimore Retail Liquor Package Stores Ass'n v. Board of [**110] License [*263] Comm'rs, 171 Md. 426, 189 A. 209 (1937); Ruark v. International Union of Operating Eng'rs, 157 Md. 576, 146 A. 797 (1929).

   In Maryland taxpayers have standing to challenge the constitutionality of a statute when the statute as applied increases their taxes, but if they cannot show a pecuniary loss or that the statute results in increased taxes to them, they have no standing to make such a challenge.  Murray v. Comptroller, 241 Md. 383, 216 A. 2d 897 (1966). Nevertheless, argue appellants, because their suit is a "class action," pecuniary loss or increased taxation need not be alleged.  In support of this argument they rely on Sun Cab Co. v. Cloud, 162 Md. 419, 159 A. 922 (1932), which held, they say, "that taxpayers interested in avoiding the waste of funds derived from taxation which[***9] would be involved in conducting a void referendum election, have sufficient interest to entitle them to apply to a court of equity for an injunction against the holding of the election." We think they have misread Sun Cab.  The taxpayers in that case were held to have standing because they alleged pecuniary damage.  Chief Judge Bond, for the Court, said:
 
"The property loss to them [complainants as taxpayers], or the loss of civil rights, which according to our rules must be established as a foundation for the interposition of a court of equity, may be small, when apportioned among them. Probably the loss to one taxpayer in any such proceeding seldom amounts to twenty dollars, the minimum of the debt or damage which a court of equity may consider.  Code, art. 16, sec. 109; Kenneweg v. Allegany County, 102 Md. 119, 62 A. 249, 250. But, when a suit is instituted by one or more taxpayers in representation of all, the case is quite different.  The amount involved and sought to be protected is then the total amount of loss to taxpayers, or the total amount which may be wrongfully expended." Id. at 427.

   Appellants point to Code, Art. 65A § 20 (1968 Repl. Vol.) [***10] which, before it was repealed, read as follows:

   "The exercise of the powers granted by this subtitle [*264] will be in all respects for the benefit of the people of this State, for the increase of their education and prosperity, and for the improvement of their health, living conditions and general welfare, and as the operation and maintenance of projects by said College will constitute the performance of essential governmental functions, said College shall not be required to pay any taxes or assessments upon any project or any property acquired or used by said College under the provisions of this subtitle or upon the income therefrom; and the bonds issued under the provisions of this subtitle, their transfer and income therefrom (including any profit made on the sale thereof) shall at all times be free from taxation by the State of Maryland or by any of its political subdivisions, or by any town or incorporated municipality or any other public agency within the State."
 
They argue that § 20 "tends to enlarge the benefits and rights of taxpayers insofar as Morgan State College is concerned so that standing to sue need not be predicated solely on pecuniary interest[***11] in a class action." Appellants have made no effort to develop this argument nor have they attempted to support it by the citation of authority.  We think it is too esoteric to have any validity here.

   Appellants' final argument is that, in effect, they have alleged pecuniary loss. They direct our attention to paragraphs Nos. 36 and 37 of their petition, which are as follows:

   "36. That the illegal assumption of control over the property and affairs by the Board of Trustees of State Colleges as aforesaid was in violation of the rights of your Petitioners and the classes they represent, and further that Petitioners [**111] have been grievously harmed in the premises and that all administrative and other recourses having been exhausted as set forth above, there is no adequate remedy at law.

   "37. And for further reasons to be presented at any hearing regarding these proceedings."
 
[*265] Appellants suggest that the transfer of control has resulted in increased taxes.  In our judgment, however, the language of the quoted paragraphs can neither support a conclusion nor necessarily imply that pecuniary loss or increased taxes have been alleged.  In Citizens Comm. v. [***12] County Comm'rs, 233 Md. 398, 400, 197 A. 2d 108 (1964), where a similar situation was presented, we said:

   "While the appellants claim that the carrying out of the provisions of the alleged unconstitutional and invalid laws, ordinances and resolutions, has resulted in loss and damage to them and all other taxpayers in the county, they have failed to prove or show any special damage or loss which is peculiar to themselves as taxpayers or otherwise."

   Decree affirmed.  Costs to be paid by the appellants. 

MERRITT BUILDING AND SUPPLY CO., INC. v. SHAULIS, et al. 
No. 49, September Term, 1968
 
Court of Appeals of Maryland
 
252 Md. 133; 249 A.2d 177; 1969 Md. LEXIS 1069

 January  14, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment reversed and judgment entered in favor of appellant against the appellees for $1,225.00, with interest from November 28, 1967. Costs to be paid by the appellees.

CORE TERMS:  contract price, satisfaction, written contract, quantum meruit, substantial performance, new contract, calculated, entitled to recover, promissory note, labor done, contractor, supplied, pertaining, corrections, forfeiture, aluminum, abused, siding, roof

COUNSEL: Harry B. Shapiro for appellant.

   No brief filed on behalf of appellees.

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

OPINIONBY: MARBURY

OPINION: [*133] [**177] The appellant, Merritt Building and Supply Co., Inc. (Merritt), and the appellees, William F. Shaulis and Emily M. Shaulis, [**178]his wife, entered into a written contract[***2] on May 16, 1966, whereby Merritt agreed to make certain improvements on [*134] appellees' behalf to their home in Arnold, Anne Arundel County, Maryland.  All work was "to be done to Mr. & Mrs. Shaulis' satisfaction." The appellees signed a promissory note and agreed to pay the contract price of $3,100.00 in 60 monthly installments, plus interest at 5 1/4% per annum, payment to commence 60 days after the completion of the home improvements.  Appellant subcontracted the work to a Mr. Joseph Gibson who performed the items listed in the contract, such as putting on a new roof, and installing aluminum siding. Gibson returned on four or five occasions to make corrections that the appellees had requested.  Not having received any payment, by an amended declaration, the appellant brought suit against the appellees on their contract and promissory note. The appellees' defense was that the work had been improperly performed and did not meet their satisfaction as required by the contract.

   On November 14, 1967, at trial, the lower court, sitting without a jury, heard testimony pertaining to the instant case.  During the course of this hearing it became apparent that some of the work had[***3] not been completed properly.  At the request of both parties the lower court inspected the appellees' premises immediately after the hearing.  On November 16, 1967, the appellant filed a petition to transfer the action from law to equity, and made a tender to complete any and all unfinished work or any and all work that was not properly performed.  In fact, the appellant offered to bring in another qualified contractor who would be approved by the court and/or the appellees in order to complete or correct the work.  After the hearing and before judgment, the lower court allowed the appellant to amend its declaration to include the common counts.  The lower court in an opinion and order dated November 28, 1967, denied the appellant's petition and gave judgment for defendants-appellees for costs.  From that order Merritt has appealed.

   On appeal, Merritt makes four contentions: (1) that the decision of the lower court was against the weight of the law and evidence; (2) that the lower court's decision constituted a forfeiture and a penalty upon the appellant; (3) that the lower court's rulings on the testimony and evidence constituted prejudicial error; and (4) that the lower court abused[***4] its discretion in refusing to transfer the case from law to equity.

   [*135] In regard to appellant's first contention, the contract between the parties provided that the work was to be performed to Mr. and Mrs. Shaulis' satisfaction. The lower court found that the appellant's performance would not even meet an "objective reasonable man" test.  The trial judge stated in his opinion that on his personal inspection of the premises he observed that in several areas the aluminum siding had been installed without starter strips and that it was possible to see the chimney flashing from the ground.  The trial court observed: "Elsewhere on the roof the shingles humped and drooped, especially at the edges where rake boards should have been used.  . . . Defective roof sheathing was visible under the overhang of the eaves." In addition there was ample testimony by the appellees' witnesses of improper performance so that we cannot say that the lower court erred in holding that the appellant was not entitled to recover under its express contract.

   However, we do agree with the appellant that the lower court's refusal to allow it a quantum meruit recovery constituted a forfeiture and a[***5] penalty.  The general principles pertaining to a quantum meruit recovery were set forth by Judge Hammond, now Chief Judge, in Hirsch v. Yaker, 226 Md. 580, 582, 174 A. 2d 728, 729:
 
"The rule running through the cases is that where a defendant has actually received [**179] and retained the benefit of work and labor done or materials supplied to him, which he has ordered, although not done or supplied in precise conformity with those orders, the law implies an obligation to pay for the net benefit received, and the common count for work and labor done will lie to enforce that obligation to the extent that, under the circumstances, the labor, services or materials are fairly worth."
 
The appellees did not argue that all the work called for in the contract was not done, but they contended that everything that was done was performed improperly and not in a workmanlike manner.  We hold that the appellant is entitled to recover under the common counts.

   [*136] The measure of recovery in this type of case has been stated in Orem v. Keelty, 85 Md. 337, 36 A. 1030. In that case, a contractor could not recover under a written contract because his work was not[***6] performed in strict compliance with the agreement.  However, justice and equity demanded that a new contract be implied.  In 85 Md. at 346, 36 A. at 1032, this Court said: "This new contract provides that the plaintiff shall recover the value of his work, and that the defendant shall be allowed such damages as have been caused by the delay.  The value of the work, if properly performed, is measured by the contract price." In the instant case, the contract price was set at $3,100.00. One of the appellees' witnesses, Mr. Harry Curry, estimated that the necessary corrections on the Shaulis' house would cost $1,875.00.  (This figure included some minor items not specifically included in the original contract.) We hold that the appellant is entitled to the difference between the contract price $3,100.00) and the estimated damages ($1,875.00), which amounts to $1,225.00.

   Appellant's third contention is that the lower court erred in its rulings on the testimony.  Counsel for the appellant attempted to show that the required work had been substantially performed.  The lower court stated that evidence of "substantial performance" was not relevant since the work was to be completed to [***7] the Shaulis' satisfaction. If the appellant had been allowed to establish substantial performance their damage would have been calculated by deducting from the contract price whatever sum would be required to complete or correct the work.  Gamble v. Woodlea Co., 246 Md. 260, 228 A. 2d 243; Evergreen Amusmt. Corp. v. Milstead, 206 Md. 610, 112 A. 2d 901; Hammaker v. Schleigh, 157 Md. 652, 147 A. 790. Since damages calculated under that measure of damages equals the amount this Court awarded the appellant, we need not decide whether the lower court's rulings were prejudicial.  We also do not deem it necessary to decide whether the trial court abused its discretion in not transferring the case from law to equity since this Court has awarded the appellant all the relief to which it was entitled either at law or in equity.

   For the above reasons, and pursuant to Maryland Rule 875 a, the judgment of the lower court will be reversed and judgment [*137] entered for the appellant against the appellees for $1,225.00, with interest from November 28, 1967.

   Judgment reversed and judgment entered in favor of appellant against the appellees for $1,225.00, with interest from [***8]  November 28, 1967. Costs to be paid by the appellees. 

TYLER v. COMMISSIONER OF MOTOR VEHICLES 
No. 310, September Term, 1967
 
Court of Appeals of Maryland
 
252 Md. 39; 248 A.2d 885; 1969 Md. LEXIS 1057

 January  13, 1969, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

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

CORE TERMS:  claimant, notice, physically incapable, giving notice, notice of intention, brain damage, time to time, visited, adult

COUNSEL: John D. Hackett[***2] , with whom was Andrew J. Graham on the brief, for appellant.

   James L. Wray, with whom were Francis B. Burch, Attorney General, and William E. Brannan, Assistant Attorney General, on the brief, for appellee.

JUDGES: Hammond, C. J., and Marbury, Barnes, Finan and Singley, JJ.

OPINIONBY: PER CURIAM

OPINION: [*40] [**886] This appeal involves a notice of intention to make claim filed by George P. Tyler, the appellant, under the Unsatisfied Claim and Judgment Fund statute, Code (1957) Article 66 1/2, Sections 150 to 179, Chapter 836 of the Laws of 1957, as amended.

   The appellant, a 52 year old heavy equipment operator at Fort Meade for 21 years and a volunteer fire fighter with the Anne Arundel County Fire Department, was struck and severely injured apparently by a hit-and-run driver of a motor vehicle on Maryland Route 424 on September 26, 1965.  The notice of intention to make claim was not filed until April 26, [*41] 1966, or 35 days after the 180 day period after the accident required by Article 66 1/2, Section 154 (a).

   Section 154 (a) makes the filing of notice of intention to make claim "a condition precedent" to the right to apply for payment from the Fund[***3] unless the claimant can prove to the court that he "was physically incapable" of giving the notice within the 180 day period and gave the notice "within 30 days after he became physically capable" so to do. n1

 n1 The second alternative, i.e., that he gave notice to the Board within 30 days after receiving notice that an insurer had disclaimed on a policy of insurance, is obviously not applicable to the appellant's situation.

   In Mundey v. Unsatisfied Claim and Judgment Fund Board, 233 Md. 169, 195 A. 2d 720 (1963), in which we sustained a trial court's denial of a right to sue when the notice was one day late, we construed the words "physically incapable of giving notice" in Section 154 (a) and held that these words "clearly import a greater incapacity than mere inability to give notice in person or to give notice only with difficulty.  The mere fact that a patient is hospitalized, or confined to bed and a wheel chair would not necessarily prevent communication." (233 Md. at 172, 195 A. 2d 721.) See also[***4] Hart v. Comm'r of Motor Vehicles, 226 Md. 584, 174 A. 2d 725 (1961).

   The Circuit Court for Anne Arundel County (Childs, J.) in a careful opinion reviewed the evidence and found that the appellant had suffered no brain damage as a result of the injury and, indeed, testified that he was "straightened out mentally." The trial court further found that the appellant was aware of the existence of the Fund and that he was visited from time to time during the 180 day period by adult relatives and friends capable of communicating or inquiring on his behalf in regard to his possible relationships to the Fund.  The trial court reluctantly concluded that the appellant was not physically incapable of giving notice within the meaning of the statutory language as we have interpreted it and denied the petition of the appellant to sue the Commissioner of Motor Vehicles, appellee, under Article 66 1/2, Section 167.  Our review of the record indicates that the findings of the trial court were sustained [*42]by the evidence and will not be disturbed.  Maryland Rule 886 a.  The decision of the trial court is in accord with our decision in Mundey. Unsatisfied Claim and Judgment Fund v. Mosley,[***5] 234 Md. 386, 389-90, 199 A. 2d 366, 368 (1964).

   The present case is clearly distinguishable on the facts from our decision in Mosley in which the trial court found from [**887] the facts that the injuries to the claimant's body and the substantial and continuing brain damage established the claimant's physical incapacity to give notice. As we have indicated, the facts in the present case, found adversely to the claimant, are quite different.

   Order affirmed, the appellant to pay the costs. 

WHITE, et ux. v. LAND HOMES CORPORATION 
No. 413, September Term, 1967
 
Court of Appeals of Maryland
 
251 Md. 603; 248 A.2d 159; 1968 Md. LEXIS 473

 December  5, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Order of court sustaining demurrer reversed; case remanded for entry of order overruling demurrer and for trial on the merits; costs to abide the result.

CORE TERMS:  third-party, demurrer, cause of action, third party, answerable, ejectment, sound discretion, covenant of general warranty, sustaining, trespass, demurred, circuity of action, subject property, impleading, secondarily liable, joint tortfeasor, Maryland Rule, amended declaration, leasehold interest, judicial action, opinion filed, general issue, indemnitor, predicated, guarantor, allowance, impleader, insurer, surety, declaration

COUNSEL: I. Winston Mezger and Carl A. Muly, with whom were Mezger and Mezger on the brief, for appellants.

   Louis M. Riehl for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*604] [**160] This litigation commenced on 7 June 1965 when Mr. and Mrs. Donald Saunders (the Saunders), the plaintiffs below, filed an action in ejectment (which, in the same count, sounded in trespass and on the case) in the Circuit Court for Anne Arundel County against Mr. and Mrs. Robert White (the Whites), the defendants below and appellants here.  The Saunders alleged that on 6 March 1964 they had acquired title to a leasehold interest in lot 30 and a part of lot 29, as shown [*605] on the plat of Hillside Acres, in Anne Arundel County; that the Whites, who are owners of a leasehold interest in an adjacent property, had taken possession of the bed of St. George Place, a paper street shown on the same plat; that St. George Place abuts the Saunders' property on the northwest; that title to one-half the bed of St. George Place is vested in the Saunders, and that they[***4] have an easement over St. George Place.  The Saunders sought damages from and an injunction against the Whites.

   The Whites demurred to the declaration, and their demurrer was sustained, presumably because the declaration combined three separate causes of action in the same count.  The Saunders then filed an amended declaration, based on the same facts, but containing separate counts in ejectment, trespass, and on the case.  Damages and an injunction were sought in each count.  The Whites filed a plea of not guilty to the ejectment count, and a general issue plea to the other counts.  They further set up as an equitable defense the fact that both the Saunders and the Whites held title derived from the same grantor, Land Homes Corporation (Land Homes).

   At this juncture the Whites moved n1 pursuant to Maryland Rule 315 a to join Land Homes as a defendant and filed a third-party claim, alleging that the Whites were successors in title to White Villa Corporation; that White Villa Corporation had taken title from Land Homes under a lease which contained a covenant of general warranty, and that Land Homes would be answerable to the Whites, if the Saunders succeeded.  After it had been made[***5] a party, Land Homes demurred to the third-party claim on the ground that it was answerable to the Whites, if at all, only in an action in assumpsit; that the Whites had not yet suffered any loss; that Land Homes was under no duty to the Whites to bear the expense of defending an action based on an unfounded claim, and that in any event, Land Homes' liability, if any, would be limited to the consideration paid by the Whites for the property, plus interest and court costs.

n1 As required by Rule 315 b, since the case had been at issue for more than 30 days.

   [*606] Land Homes also demurred, but for different reasons, to the Saunders' amended declaration. This demurrer was overruled and the question is not before us.

   It is from the order sustaining, without leave to amend, Land Homes' demurrer to the Whites' third-party claim that the present appeal was taken.

   In their briefs, the Whites raise nine points while Land Homes raises seven: some of which, in each case, may be pertinent to the merits, but not to [***6]the ruling on demurrer. As the case was presented in argument, and as we see it, there are but two issues raised by the sustaining of the demurrer: (i) Could Land Homes be impleaded as a third-party defendant?  (ii) Did the Whites' third-party claim state a cause of action against Land Homes?

   Rule 315 a provides:

   "Where the defendant in an action claims that a person not a party to the action is or may be liable to him for all or part of the plaintiff's claim against him, he may at any time after commencement of the action cause to be served a summons and third-party claim, together with a copy of the previous pleadings, upon such third party. * * *"

   [**161] We have recognized that Rule 315 is substantially the same as Rule 14 of the Federal Rules of Civil Procedure n2 and have held that "The third-party practice was designed primarily to avoid a separate trial involving a repetition of testimony and to ensure more consistent judgments on related claims.  * * * In any event, it is generally held that the allowance of a third-party claim rests in the sound discretion of the trial court." Gorn v. Kolker, 213 Md. 551, 554-55; 133 A. 2d 65 (1957). Accord, Apex Express, [***7] Inc. v. Baicovitz, 249 Md. 351, 240 A. 2d 106 (1968); Bradyhouse v. Levinson, 230 Md. 519, 523, 187 A. 2d 838 (1963); Allen & Whalen, Inc. v. Grimberg Co., 229 Md. 585, 586, 185 A. 2d 337 (1962); Northwestern Nat'l Ins. [*607]Co. v. Rosoff, Ltd., 195 Md. 421, 73 A. 2d 461 (1950). Cf. Great Atl. & Pac. Tea Co. v. Royal Crown Bottling Co., 243 Md. 280, 287, 291, 220 A. 2d 598 (1966).

n2 The critical phrase "* * * a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him" is identical.

   Land Homes argues that the Saunders' cause of action against the Whites is in ejectment and tort, while any claim which the Whites may have against Land Homes is in contract.  As the court below recognized, this is no bar to the impleading of Land Homes as a third party defendant.  We have previously held that the fact that the original plaintiff's claim is in contract does not preclude the original defendant from filing a third-party complaint in[***8] tort.  Allen & Whalen, Inc. v. Grimberg Co., supra, 229 Md. 585, 587; McCormick v. St. Francis de Sales Church, 219 Md. 422, 149 A. 2d 768 (1959); see also, Lee's, Inc. v. Transcontinental Underwriters, etc., 9 F.R.D. 470 (D. Md. 1949). There is no reason to believe that the reverse is not equally true, particularly since "[t]he usual basis for third-party impleader is that the third-party defendant is or may be secondarily liable for all or some part of the plaintiff's claim against the original defendant as in the case of an indemnitor, guarantor, surety or insurer or a joint tortfeasor obligated by substantive law to make contribution." Allen & Whalen, Inc. v. Grimberg Co., supra, 229 Md. at 587-88; Great Atl. & Pac. Tea Co. v. Royal Crown Bottling Co., supra, 243 Md. at 289.

   While a demurrer is an appropriate way of raising the sufficiency of a third-party claim, Allen & Whalen, Inc. v. Grimberg Co., supra, 229 Md. at 588; Ennis v. Donovan, 222 Md. 536, 161 A. 2d 698 (1960); Nohowel v. Hall, 218 Md. 160, 146 A. 2d 187 (1958), and while the allowance of a third-party claim rests with the sound discretion of the trial court, Bradyhouse v. Levinson, [***9] supra, 230 Md. at 523; Gorn v. Kolker, supra, 213 Md. 551, at 554-55, "[This] does not necessarily mean, however, that where the action of the lower court is clearly arbitrary or has no sound basis in law or in reason, it could not be reviewed, but it does mean that we will not reverse the judgment of the trial court, unless there is grave reason for doing so." Northwestern Nat'l Ins. Co. v. Rosoff, Ltd., supra, 195 Md. at 434.

   [*608] In the opinion filed below, the court readily conceded that Land Homes might be answerable to the Whites:

   "There can be no doubt that if the Defendants [the Whites] are evicted from the subject property by reason of the Plaintiffs [the Saunders] having a paramount title and if the subject property was conveyed to them in a deed from Land Homes which contained a covenant of general warranty, then Land Homes will be liable for damages for breach of that covenant.  Crisfield v. Storr, 36 Md. 129 [1872]."

   Relying on Allen & Whalen, Inc. v. Grimberg Co., supra, the court below concluded that Land Homes, if liable on the warranty, would not, in the language of Rule 315 a, "* * * be liable [to the Whites] for all or[***10] part of [the Saunders'] [**162] claim." In our view, the court's reliance on Allen & Whalen was misplaced, and the conclusion which it reached was erroneous as a matter of law.

   The facts in Allen & Whalen make it readily distinguishable from the case before us.  Yoder, the prime contractor on a government job, entered into two subcontracts: one, with Allen & Whalen, for the purchase of air conditioning equipment manufactured by Worthington Corporation; another, with Grimberg, for the installation of the equipment.  When Allen & Whalen failed to pay for the equipment, Worthington brought suit.  Allen & Whalen, which had filed a general issue plea and a counterclaim in the suit brought by Worthington, then filed a third-party claim against Grimberg, alleging negligence and breach of warranty. Grimberg's demurrer was sustained without leave to amend.

   We affirmed the sustaining of the demurrer. Chief Judge Brune, speaking for this Court, said:

   "The requirement of Rule 315 a that the third-party claim must be for all or a part of the plaintiff's claim against the original defendant for which the third-party defendant is or may be liable to the original defendant is, [***11]as we have pointed out, explicit in the rule itself and is recognized in the Northwestern Insurance case.  [*609] The identical requirement of Rule 14, F.R.C.P. is recognized by a number of authorities.  Barron & Holtzoff, Federal Practice and Procedure (Rules Ed.), Vol. 1 A, § 426, in discussing Rule 14 say: 'The claim against the third-party defendant must be that of the original defendant but it must be based upon the plaintiff's claim against the original defendant.' See also 3 Moore's Federal Practice (2nd Ed.) § 14.07, pp. 418-19, and 1961 Cum. Supp., § 14.15, n. 22 a, p. 57; Murtagh v. Phillips Waste Oil Pick-up & Road Oiling Service, 17 F.R.D. 495 (E.D., Mich.); North American Philips Co. v. Brownshield, 9 F.R.D. 132 (D. C., S. D., N. Y.); Hull v. United States Rubber Co., 7 F.R.D. 243; Liberty Mutual Ins. Co. v. Valleningham, 94 F. Supp. 17 (D. C., D. C.); Kohn v. Teleprompter Corporation, Tele-Q Corp., 22 F.R.D. 259 (D. C., S. D., N. Y.).  Cf. United States v. De Haven, 13 F.R.D. 435 (D. C. Mich.); United States v. Dobrowolski, 16 F.R.D. 134 (D. C., Md., Coleman, Ch. J.)." 229 Md. at 588-89.
 
We think that this means[***12] that a third-party claim will lie in any case where it can be alleged that the third-party defendant is necessarily answerable to the original defendant should judgment be entered against him. This is the rule of the federal decisions.
 
"* * * Thus impleader is authorized to bring in a third party who would necessarily be liable over to the defendant for all or any part of the plaintiff's recovery, whether by way of indemnity, subrogation, contribution, express or implied warranty, or otherwise." Barron and Holtzoff, Federal Practice and Procedure (1960) Vol. 1 A, § 426 at 664-69.
 
This would have been the teaching of Nohowel v. Hall, supra, 218 Md. 160, which involved the impleading of a party who had given a covenant against incumbrances in a real estate transaction, had not the case gone off on other grounds.  In fact, as Chief Judge Marbury pointed out in the opinion filed for [*610] the Court in Northwestern Nat'l Ins. Co. v. Rosoff, Ltd., supra, modern third-party practice had its genesis in
 
"* * * the old remedy of 'vouching' which started in the English land laws.  If A sold land to B with a warranty, and C claimed the land belonged[***13] to him and sued B, then B could give A notice of the pendency of the suit and an opportunity to join in the defense.  Whether he did or whether he did not, a judgment [**163] against B would then be conclusive in a subsequent action against the vouchee both as to the plaintiff's right to recover and as to the amount.  * * * The old remedy of vouching-in is discussed in Consolidated Hand-Method Lasting-Machine Co. v. Bradley, 171 Mass. 127, 50 N. E. 464, 68 Am. St. Rep. 409. For the general historical background, see 33 Columbia Law Review 1147, 19 Minn. Law Review 163, Moore's Federal Practice 2 Ed., Vol. 3, paragraph 14.02, pages 407-409." 195 Md. at 426.

   Land Homes also challenges the sufficiency of the third-party claim.  It argues that since the Whites' claim against Land Homes arises ex contractu, their recovery must be in an action of assumpsit, Rule 340 b 1, and that the Whites' claim, which alleges in one count that suit has been brought against them in ejectment, trespass and on the case, and in another count that they hold title under a covenant of general warranty from Land Homes, does not state a cause of action under the Rule.  Land Homes then goes further[***14] and says that the claim is defective because it combines a tort and contract action in a single count, Rule 340 c. Kirchner v. Allied Contractors, Inc., 213 Md. 31, 131 A. 2d 251 (1957); because there is no recital of consideration, Wright v. Gilbert, 51 Md. 146 (1879), and because the mere recital of a dispute and controversy is not enough, Busby v. Conoway, 8 Md. 55 (1855).

   No Maryland case dealing with the sufficiency of a third-party claim has been cited and we have found none.  However, both Maryland Rule 315 and Federal Rule 14 are predicated on the concept of a "claim", which has been defined as a "group or aggregate of operative facts giving ground or occasion for [*611] judicial action" n3 as distinguished from the narrow concept of a "cause of action." 3 Moore, Federal Practice (2d Ed. 1968) § 14.07 at 509.

n3 Clark, The Cause of Action (1934) 82 U.Pa.L.Rev. 354.

   The federal courts have been quite liberal in holding a third-party claim sufficient if it alleges facts under which[***15] the third-party defendant "is or may be liable to" the original defendant "for all or part of the plaintiff's claim in order to avoid circuity of action." Handel-Maarschaapij, etc. v. Faradyne Electronics Corp., 37 F.R.D. 357 (D.S.D.N.Y. 1964); Friedman v. Wilson Freight Forwarding Co., 181 F. Supp. 327 (D.W.D.Pa. 1960); Fruit Growers Co-op v. California Pie & Baking Co., 2 F.R.D. 415 (D.E.D.N.Y. 1942); Balcoff v. Teagarden, 36 F. Supp. 225 (D.S.D.N.Y. 1940). In Friedman, for example, the third-party claim simply recited that if the original defendant were found liable to plaintiff, "then and in that event [the third-party and fourth-party defendants] are liable over to this defendant." This was held to be substantial compliance with Rule 14, since it stated a claim on which relief could be granted.

   We are inclined to follow the rule of the federal cases, and to regard as sufficient any third-party claim which sets out facts under which, if proved, the third-party defendant is, or may be liable for all or part of the plaintiff's claim.  As Judge Knox said in Teagarden, "* * * It cannot be questioned that Rule 14 should be liberally construed to the end that[***16] circuity of action may be avoided, and that disputed jural relationships 'growing out of the same matter' be resolved in one action." (citing cases).  36 F. Supp. at 225. As we see it, the niceties of common law pleading need not necessarily be controlling if the claim recites facts which, if proved, would support judicial action. Paraphrasing Judge Knox's conclusion in Teagarden, "to sanction the narrow construction proposed by Land Homes would be tantamount to an emasculation of Rule 315 a, with a consequent loss of its beneficent objectives."

   Order of court sustaining demurrer reversed; case remanded for entry of order overruling demurrer and for trial on the merits; costs to abide the result. 

SHORE ACRES IMPROVEMENT ASSOCIATION, INC. et al. v. ANNEARUNDEL COUNTY BOARD OF APPEALS et al. 
No. 91 (Adv.), September Term, 1968
 
Court of Appeals of Maryland
 
251 Md. 310; 247 A.2d 402; 1968 Md. LEXIS 445

 November  8, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order affirmed, appellants to pay costs.

CORE TERMS:  aggrieved, enabling act, zoning, county board, acre, person aggrieved, agricultural, rezoning, supplied, feet, aggrieved party, three hundred, residential, protestant, recreation, planned, rezoned, eighty, property rights, adversely affected, party aggrieved, parcel of property, standing to bring, court of appeals, straight line, golf course, acre tract, specially, recreational, accommodate

COUNSEL: Jerome F. Connell for appellants.

   Malcolm B. Smith, with whom were Smith & Wohlgemuth on the brief, for appellees.

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

OPINIONBY: FINAN

OPINION: [*311] [**403] This zoning case involves an appeal by Shore Acres Improvement Association, Inc. (Improvement Association) and Rudolph Lerp, Sr. (Lerp) from a decision of the Circuit Court for Anne Arundel County, Judge E. Mackall Childs presiding.  [*312] The appellants filed an appeal in the Circuit Court from a decision of the County Board of Appeals of Anne Arundel County.  Their standing to bring such an appeal was challenged.  The lower court held the appellants had no standing to bring the appeal and dismissed their petition.  This is an appeal from that decision.

   The appellee, Thomas I. Baldwin (Baldwin), is the owner of approximately three hundred and eighty (380) acres of what was agriculturally zoned land immediately adjacent to the community known as Shore Acres in the second district of Anne Arundel[***3] County.  Baldwin sought to develop the property as a planned residential community oriented around a golf course and recreational area.  Since there is presently no zoning classification in Anne Arundel County for a planned unit development, Baldwin, on September 1, 1966, filed a series of rezoning applications seeking reclassification of approximately two hundred and six (206) acres of his three hundred and eighty (380) acre tract to those categories which would accommodate his planned community.  The requests were: from agricultural to cottage-type residential about one hundred and fourteen (114) acres; from agricultural to garden apartment-type residential about eighty-seven (87) acres; from agricultural to light commercial about five (5) acres. The balance of the three hundred and eighty (380) acre tract was to be left in its agricultural classification to accommodate the golf course, club house and recreational area.  All of the applications were considered together and on November 17, 1966, after a hearing before the Zoning Hearing Officer, the requests for rezoning as to each parcel of property were denied.

   Baldwin appealed the decision to the Board of Appeals which on March [***4]13, 1967, after a public hearing, rendered its opinion and order granting the requested rezoning as to each parcel of property. The decision of the Board of Appeals was appealed to the Circuit Court for Anne Arundel County by the Improvement Association and Lerp.  Subsequently, Baldwin was granted leave to intervene and thereupon challenged the standing of the Improvement Association and Lerp to take the appeal.  It was conceded in the court below, and was admitted [*313] in the brief of the appellants, that Lerp was not a party to the proceedings before the Board of Appeals.

   [**404] The record in the case disclosed that wherever Lerp's signature appeared in the proceedings it was in his capacity as president of the Improvement Association.  Other than this the record was devoid of any evidence that he had ever entered his appearance as a party before the Zoning Hearing Officer or the Board of Appeals in his individual capacity.  Accordingly, the court refused his testimony and ruled that Lerp was not a "party aggrieved" and dismissed his appeal.

   As to the Improvement Association, the evidence presented disclosed that it was a property owner and a protestant of record. [***5]

   The property which it owned was located within the development of Shore Acres and was used for a community hall and recreation area.  It is situated three thousand seven hundred and sixty (3,760) feet in a straight line from the nearest point of Baldwin's property and is approximately nine thousand four hundred (9,400) feet by road from the nearest point of Baldwin's land.  The lower court pointed out that the rezoned area could not be seen from the Improvement Association's land.  After hearing all of the evidence on behalf of the Improvement Association, the court ruled that it too lacked standing and dismissed the appeal.  It is from these decisions that this appeal is taken.

   Mr. Lerp's Appeal

   We affirm the action of the lower court in dismissing the appeal of Mr. Lerp on the grounds that he was not a party to the proceedings before the Board of Appeals.

    The appellants contend that the word "party" as used in the Anne Arundel County Code (1967 Ed.) Vol. 1, Sec. 2-102 is broad enough to include any person or taxpayer aggrieved by the decision of the Board of Appeals and not limited to a person or taxpayer aggrieved by the decision who was also a party to the proceedings before [***6]  the Board of Appeals.  We cannot agree with this connotation given to the word "party." Sec. 2-102 provides:

   "Within thirty days after any decision by the county board of appeals is rendered, any party who is aggrieved [*314] thereby may appeal such decision to the circuit court of the county, which shall have the power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing, as justice may require.  * * *.  Within thirty days after the decision of the circuit court is rendered, any party to the proceeding who is aggrieved thereby may appeal such decision to the court of appeals of the state. The review proceedings provided by this section shall be exclusive." (Emphasis supplied.)

   The conclusion that the word "party," as used in § 2-102, means an aggrieved "party" who was also a party to the proceeding before the Board is supported by a reading of the enabling act, Code (1966 Repl. Vol.) Art. 25A, § 5 (U), which authorizes the chartered counties of Maryland to establish county boards of appeals, and a review of the procedure for processing zoning[***7] applications in Anne Arundel County adopted pursuant to the enabling act.

   Art. 25A, § 5 (U) (the enabling act) in part provides:
 
"* * * Provided, that upon any decision by a county board of appeals it shall file an opinion which shall include a statement of the facts found and the grounds for its decision.  Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.  Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the [**405] Court of Appeals. The review proceedings provided by this subsection shall be exclusive." (Emphasis supplied.)

   Article 25A, § 5 (U) (the enabling act) specifically provides for the manner in which an appeal may be taken from a county board of appeals to the circuit court and as is stated [*315] above, by the language that we have italicized in the statute, only an[***8] aggrieved party to the proceedings is authorized by the enabling act to appeal from the county board of appeals to the circuit court of the county.  Anne Arundel County followed this procedure authorized by the enabling act by enacting § 2-102 of the Anne Arundel County Code (1967 Ed.) Vol. 1.  The fact that the intent of § 2-102 was to impart to the word "party" the technical meaning that "party" be construed as a person or entity who was a party to the proceedings, becomes inescapable, when we contrast § 2-102 with § 536 of the Anne Arundel County Code (1967 Ed.) Vol. 2, which latter section provides for appeals from decisions of the Zoning Hearing Officer.  It should be noted that § 536 does not require the person or entity taking the appeal from the Zoning Hearing Officer to the County Board of Appeals to be a party to the proceeding before the Zoning Hearing Officer.  Sec. 536 provides:
 
"Within 30 days after a decision of the Zoning Hearing Officer is rendered, any person or persons, jointly or severally, or any taxpayer or any official, office, department, corporation, board, or bureau of Anne Arundel County aggrieved by any decision of the Zoning Hearing[***9] Officer shall have the right to appeal therefrom to the County Board of Appeals." (Anne Arundel County Code, 1967 Edition, Vol. 2, page 545, Section 536.) (Emphasis supplied.)

   The language used in § 536 (providing for appeals from the Zoning Hearing Officer) when compared with that used in § 2-102 (providing for appeals from the County Board of Appeals) shows a transition from the use of the words "person," "taxpayer" and "corporation," all of which have the most broad application, to the use of the word "party," and the use, within the same section (2-102), of the reference to "any party to the proceeding who is aggrieved." We think the intent is clear and unambiguous that the language of § 2-102 was to dutifully and properly follow that employed by Art. 25A, § 5 (U), the enabling act. Accordingly, when the word "party" is used in conjunction with proceedings, unless there be express qualifying language to the contrary, it would appear that it should be [*316] construed in a technical sense.  Such an interpretation is in harmony with the definition given in Black's Law Dictionary (4th Ed., 1951):
 
"'Party' is a technical word, and has a precise meaning in[***10] legal parlance.  By it is understood he or they by or against whom a suit is brought, whether in law or equity; the party plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons, (they are parties in the writ, and parties on the record;) and all others who may be affected by the suit, indirectly or consequentially, are persons interested, but not parties.  * * *."

   This construction is consonant with that adopted by this Court in DuBay v. Crane, 240 Md. 180, 184, 213 A. 2d 487, 489 (1965), wherein we stated:
 
"* * * While it is not necessary that a protestant testify before the administrative agency, it is incumbent upon him, if he contemplates appealing an adverse decision, to, at least, have the record show that he was a party to the proceeding.  Failing that he cannot maintain an appeal, such as that in Baltimore County.  See Baltimore County Charter, Art. VI, § 604." (Emphasis supplied.)

   It is true that § 604, of Art. VI of the Baltimore County Charter employs after the word "party," wherein it first appears, the words "to the proceedings," and such words do not follow the word "party" where it first [***11]appears in § 2-102.  However, [**406] both § 604 of Art. VI of the Baltimore County Charter and § 2-102 of the Anne Arundel County Code use the phrase "parties to the proceedings" later in the section.  We do not think this difference between § 604 of Art. VI of the Baltimore County Charter and § 2-102 of the Anne Arundel County Code is significant.  We note that § 604 of Art. VI of the Baltimore County Charter was enacted to replace § 34-7 of title 34 of the Baltimore County Code (1958), which provided that "any person" or "any taxpayer" aggrieved by a decision of the board, could maintain an appeal to the circuit court of the county.  Here [*317] again, we note that when a change was made from the use of the word "person" or "taxpayer" to that of "party", it is obvious that it was intended that the word "party" assume a technical connotation.

   Mr. Lerp not being a party to the proceedings before the County Board of Appeals, the lower court properly dismissed his appeal.

   Shore Acres Improvement Association, Inc. Appeal

   This appellant's community hall and recreation area is located 3,760 feet measured in a straight line, and approximately 9,400 feet by road, from [***12]the rezoned property.  The rezoned area cannot be seen from the appellant's community hall or recreation area.

   In Bryniarski v. Montgomery County, 247 Md. 137, 144, 230 A. 2d 289, 294 (1967), Judge Barnes writing for the Court, gave a scholarly review of the requirements necessary for one to qualify as an "aggrieved person," in order to appeal to the board or from the board to a court of record in a zoning case, stating:

   "Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals is one whose personal or property rights are adversely affected by the decision of the board.  The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.  DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487 (1965). The circumstances under which this occurs have been determined by the courts on a case by case basis, and the decision in each case rests upon the facts and circumstances of the particular case under review.  Certain principles, however, have[***13] evolved.  They are as follows:

   "2. * * *

   "(c) A person whose property is far removed from the subject property ordinarily will not be considered [*318] a person aggrieved. Wilkinson v. Atkinson, 242 Md. 231, 218 A. 2d 503 (1966); DuBay v. Crane, supra; City of Greenbelt v. Jaeger, 237 Md. 456, 206 A. 2d 694 (1965); Marcus v. Montgomery County Council, 235 Md. 535, 201 A. 2d 777 (1964); Pattison v. Corby, 226 Md. 97, 172 A. 2d 490 (1961). But he will be considered a person aggrieved if he meets the burden of alleging and proving by competent evidence -- either before the board or in the court on appeal if his standing is challenged -- the fact that his personal or property rights are specially and adversely affected by the board's action."

   We think the principles set forth in Bryniarski, supra, and the cases cited therein are dispositive of the instant case.  Although, the Improvement Association complained that the rezoning of the Baldwin tract would aggravate the traffic congestion in the foreseeable future on Shore Acres Drive and Jones Station Road, due to the distance of its property from Mr. Baldwin's tract, the lower court did not believe it to[***14] be "especially affected in a way different from that suffered by the public generally." DuBay v. Crane, supra. We do not think the lower court erred in dismissing the appeal.  Maryland Rule 886 a.

    Order affirmed, appellants to pay costs. 

LUNTER, et ux v. LAUDEMAN 
No. 332, September Term, 1967
 
Court of Appeals of Maryland
 
251 Md. 203; 246 A.2d 540; 1968 Md. LEXIS 431

 October  15, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed, the costs to be paid by the appellants.

CORE TERMS:  pier, aldermen, boat, port, navigation, feet, duty, wharves, foot, water, wharf, zoning, warden, pollution, front, substantial evidence, confined, license, navigable waters, regulation, capricious, constructed, nuisance, fast land, legally sufficient, null and void, touching, permanent, ordinance, toilet

COUNSEL: William P. Hepburn for appellants.

   James D. Laudeman, Jr. and Allan C. Wescott for appellee.

   Amicus curiae brief filed by Mayor and Aldermen of City of Annapolis.  George B. Woelfel, Jr. on the brief.

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

OPINIONBY: BARNES

OPINION: [*204] [**541] The principal questions in this case involve the scope of an appeal to the Mayor and Aldermen of the City of Annapolis (the City) from a decision of the Port Wardens of the City under Section 40 of the Charter of the City, and the sufficiency of the evidence presented to support the decision reached by them on such appeal.

   [*205] James D. Laudeman, Jr., the appellee, (Laudeman) has legal title to a lot in the City of Annapolis which fronts on Weems Creek[***4] on the west side of the foot of Tucker Street, between Tucker Street and Annapolis Street.  It contains 1.31 acres and is improved by a dwelling house which fronts on the west side of Tucker Street.  The Weems Creek frontage was originally 159.36 feet at the natural shore line.  When the concrete bulkhead which the evidence showed was in the process of construction is completed, the Weems Creek frontage will be 184.82 feet. n1 The lot is zoned Residential C.

n1 The original acreage was 1.19 acres.  The bulkhead improvement added .12 acres, a total of 1.31 acres.

   On June 30, 1966, Laudeman filed an application with the Port Wardens to erect a pier 6 feet wide and 90 feet long, with mooring piles, extending into Weems Creek in a northwesterly direction at right angles to a portion of the concrete bulkhead.

   At the hearing before the Port Wardens on July 14, 1966, Laudeman, who resides at Glyndon, in Baltimore County, testified that there were three other persons who had an interest with him in the lot, Messrs. [***5] Frey, Forbes and Gavin, all of whom had sailboats, as he did, 35 feet in length.  He made it clear that there was no intention to make the property or the proposed pier into a commercial marina, but that the 90 foot pier was needed so that he, his [**542]associates and the tenant on the property would have sufficient depth of water for their boats which draw approximately five feet of water. He also indicated that he and his associates were seeking to improve the appearance of the property and in doing this, would add to the attractiveness of the neighborhood.  There was testimony before the Port Wardens that the pier would have 11 or 12 slips for boats. There were several neighboring property owners who objected to the granting of the license (or permit) to Laudeman.  After consideration, the Port Wardens, by a unanimous decision, approved a 62 foot pier with four permanent slips.  Laudeman did not appeal this decision by the Port Wardens pursuant to Section 40 of the Charter, but the protesting neighboring property owners did appeal to the Mayor and Aldermen of Annapolis.

   [*206] Sections 36 and 37 of the Charter of the City provide for the appointment of not less than[***6] three nor more than five persons by the Mayor and Aldermen as Wardens of the port of the City.  These Port Wardens are removable at the pleasure of the Mayor and Aldermen and take a prescribed oath that they "will discharge the trust of warden[s] of the port of the City of Annapolis to the best of my ability, without favor, affection or partiality." Under Section 36, these Port Wardens were duly appointed and qualified.  One of them is William R. Jackson, the City Engineer.

   Sections 38, 39 and 40 of the Charter are the important sections for this case and are as follows:

   Sec. 38 (Port Wardens) Powers generally.

   "The wardens, or a majority of them, shall have power to determine upon and regulate all matters relating to the erection or building of wharves in the said port, so far as respects the distance said wharves may be extended into the water, and the materials of which they shall be constructed, and the manner and form of construction, always keeping in view the preservation of the navigation of said port by not permitting any wharf to be carried out in such manner as to render the navigation of the same too close and confined, or to be built of such materials[***7] or constructed in such manner as may be deemed not sufficiently substantial and lasting."

   Sec. 39. Same -- License to build wharf, etc.

   "No person holding lands on the waters of said port, nor any person whatever, shall build any wharf, or carry out any earth or other material for that purpose without license from said wardens, or a majority of them, to do the same; and if any persons shall offend against the provisions of this section, or if any person shall build any wharf a greater distance into the waters of said port, or in a different form, or of different materials than determined and allowed by the wardens, or a majority of them, he shall be subject to such fine as the mayor and aldermen may ordain."

   [*207] Sec. 40. Same -- Appeals to mayor and aldermen.

   "In all differences that shall arise between any citizen of Annapolis and the said wardens, touching the discharge of their duty, an appeal shall lie to the mayor and aldermen." (Emphasis supplied.)

   Two hearings on the appeal took place before the Mayor and Aldermen. One was held on August 29, 1966, at 8:00 p.m., at which extensive evidence was taken and arguments presented. [***8] The other hearing was held on September 12, 1966, at 8:00 p.m., and was, in effect, a continuation of the first hearing. The vote of the Mayor and Aldermen was taken upon a motion to reduce the length of the pier to 55 feet with no more than two permanent slips.  The motion was passed unanimously.

   Laudeman, thereafter on October 13, 1966, filed a bill of complaint in the Circuit Court for Anne Arundel County praying [**543] for a declaration that the action of the Mayor and Aldermen in reducing the length of the pier and the number of slips be declared to be arbitrary, capricious, unreasonable, illegal, null and void and in excess of the power granted by Sections 36 through 40 of the Charter, for a mandatory injunction directing the Mayor and Aldermen and the Port Wardens to issue the permit for a 62 foot pier without restriction as to the number of permanent slips and for other relief.  The appellants, Frank Lunter and Evelyn Lunter, his wife, nearby property owners, were permitted by the Chancellor to intervene as parties defendant.  After answers were filed and a hearing was held, the Chancellor (Sachse, J.) filed a well considered opinion indicating that the action of the[***9] Mayor and Aldermen was null and void and the action of the Port Wardens was proper.  On September 27, 1966, the Chancellor passed a final decree in accordance with his opinion, directing that the license for the 62 foot pier with four permanent slips be issued by the Port Wardens and requiring the costs to be paid one-half by Laudeman and one-half by the intervening defendants.  Mr. and Mrs. Lunter took a timely appeal to this Court from this decree.  Laudeman took no cross appeal.

   In our opinion (1) the Mayor and Aldermen were confined to a review of the decision of the Port Wardens within the scope [*208] of the powers granted to the Port Wardens by Section 38 of the Charter and (2) there was no legally sufficient evidence to support the action of the Mayor and Aldermen in reducing the length of the pier and the number of slips.  The Chancellor's decree will be affirmed.
 
   (1)

   Section 38 of the Charter of the City confers power on the Port Wardens to determine upon and regulate all matters (1) relating to the erection or building of wharves in the port; (2) the distance the wharves extend into the water; and (3) the materials of which the wharves are constructed[***10] and the manner and form of such construction.  All of these powers are subject to the overriding purpose of the grant of power, i.e., keeping in view (a) the preservation of the navigation of the port by not permitting any wharf to render navigation too close and confined or (b) to be built of such materials and constructed in such a manner as will be deemed not sufficiently substantial and lasting.  This is the scope of the grant of power by the General Assembly to the Port Wardens.

   In Section 29 of the Charter, granting general powers to the Mayor and Aldermen, power is given to "enact all laws and ordinances necessary to preserve the health of the city; * * * to provide for the appointment, and define the duties of city commissioner, police officers * * * harbor masters * * * and all other officers whom they may create, and to define their duties and compensation; * * * to cause a survey * * * of the city, its harbor, streets * * * to be made; * * * to declare and adjudge as nuisances any encroachments on the streets, lanes and alleys, and cause the same to be removed at the expense of the person offending; * * * and generally for promoting and securing the [***11]good government of the city." (Emphasis supplied.) There is no general grant of powers in regard to the Port Wardens, whose powers and duties are governed by Sections 36 to 40 of the Charter. n2

n2 Curiously there is no general grant of the entire police power of the State as was done, with one reservation, in the Baltimore City Charter. Cf. Sec. 6 (24) of the Baltimore City Charter (1949).

   Section 40 grants the right of appeal from the decisions of the Port Wardens to the Mayor and Aldermen. The language [*209] of this somewhat unusual provision in regard to an appeal is of importance in this case.  The scope of the appeal is set forth in Section 40 where it provides "In all differences that shall arise between [**544] any citizen of Annapolis and the said wardens, touching the discharge of their duty, an appeal shall lie to the Mayor and Aldermen." (Emphasis supplied.) This language limits the appeal to the duties imposed upon the Port Wardens by Section 38, which, as we have indicated, are [***12]three in number subject to two overriding purposes.  There is no attempt by Sections 36 to 40 to invest the Port Wardens with the exercise of any portion of the police powers other than that specifically granted and this would appear to be a logical arrangement, as the exercise of other portions of the police power is granted to other officials specially qualified to exercise those other powers, as we shall point out.

   The Port Wardens do not have any power to enforce or construe any applicable zoning laws or regulations. These zoning ordinances appear in Chapter 26 of the Code of the City and have an entire and complete system of enforcement entirely apart from any power exercised by the Port Wardens. Appeals under the zoning ordinances of the City must be taken to the Board of Appeals as provided for in Sections 26-38 and 26-39 of the Code.  This Board of Appeals was created pursuant to a specific grant of legislative power by the General Assembly in the Act of 1933, Chapter 599 (Code (1957), Art. 66B, Secs. 10-37).  Section 26-38(a) of the City Code recites that the Board of Appeals is created in accordance with that Act.  We, and our predecessors, have held that the zoning powers[***13] of municipal corporations are derived from the State Enabling Acts and not from any general grant of the State's police power to municipal corporations.  See Gino's, Inc. v. Mayor and City Council of Baltimore, 250 Md. 621, 630-31, 244 A. 2d 218, 223-24 (1968) and Maryland cases cited therein.

   The enforcement of the police powers in regard to health is provided for in Chapter 14 of the Code of the City.  This enforcement power is given to the health officers and no part of that power is given to the Port Wardens.

   It is apparent to us that the provisions of the Charter clearly define the scope of the powers and duties of the Port Wardens [*210] and thus confine such powers and duties to those set forth.  They were not intended to include the exercise by the Port Wardens of any other police powers of the City. Section 40, effectively, by its terms, confines the scope of the appeal to the Mayor and Aldermen to "differences * * * touching the discharge of their duty" and the Mayor and Aldermen may not lawfully go beyond that scope of appeal.  We do not reach or decide whether by appropriate charter amendment or otherwise, the scope of appeal could be broadened.

   Our construction[***14] of Sections 38 and 40 of the Charter is fortified by a consideration of the legislative history of these sections.

   Sections 38 and 40 as well as Sections 36, 37 and 39 were first passed by the General Assembly by the Act of 1785, Chapter 26.  The language of Section III of the Act of 1785 is identical in all relevant respects to the present language of Section 38 as is the language of Section VIII of that Act with the present language of Section 40. n3

n3 This language was continued in the Code of Public Local Laws of 1860, Art. 2, §§ 49-54 and in the Code of Public Local Laws of 1888, Art. 2, §§ 41-45.  The Codes of Public Local Laws of both 1860 and of 1888 superseded and were enacted in lieu of all prior laws of the State.  See the Act of 1860, passed January 12, 1860 and the Act of 1888, Chapter 74.  The language was continued in the Charter in the City Code of 1914, and, as indicated, in the Charter in the present City Code of 1960.

   [**545] The Act of 1785, Chapter 26 contains the following preamble: [***15]

    "Whereas the dispatch and ease of vessels in taking and discharging their lading depends to a considerable degree upon the convenience afforded by proper wharfs; And Whereas certain rules and regulations are necessary to enable the citizens of Annapolis to erect wharfs for the convenience of trade in such manner as not to prejudice the navigation of said port, either by extending too far upon the channel of the river, or by erecting wharfs in such places of said port, or in such manner, as may be deemed improper and prejudicial."
 
[*211] Then follows the enactment of Sections II through IX of the Act of 1785.

   The General Assembly by the Act of 1745, Chapter 9 had provided that improvements (including wharves) in waters in front of their land should "be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever." See Causey v. Gray, 250 Md. 380, 387-90, 243 A. 2d 575, 581-83 (1968) for a review of this and subsequent legislation.  We stated in the opinion in that case:
 
"The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the [***16]navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.  When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a 'franchise -- a vested right, peculiar in its nature but a quasi property of which the lot owner cannot be lawfully deprived without his consent.' B & O R. R. Co. v. Chase, 43 Md. 23, 36 (1875). When the lot owner makes improvements in front of his lot, complete title then vests in him in the improvements provided it is in front of his lot and does not appropriate the riparian rights of his neighbors.  B & O R. R. Co. v. Chase, 43 Md. at 36-37." (250 Md. at 387, 243 A.2d at 581.)

   The Act of 1785 was intended, so far as the port of Annapolis was concerned, to authorize the creation of the Port Wardens, with definite powers to regulate and limit the extent and construction of wharves to be erected by riparian owners. n4 The [*212] [***17] statutory setting and the preamble to the Act of 1785 itself, indicate that the General Assembly intended that the Port Wardens have the designated powers and no other and that the scope of the appeal to the Mayor and Aldermen should be confined to the consideration of those powers and duties.

n4 It should be remembered that the Act of 1785 was passed while the Articles of Confederation, effective in Maryland on March 1, 1781, were in effect and prior to the effective date of the United States Constitution on March 4, 1789. The United States under the Articles of Confederation had no power to regulate interstate commerce and there were no federal courts to exercise the admiralty and maritime jurisdiction conferred upon the new federal courts by the Federal Constitution, so that in 1785 the State of Maryland not only had title to land under navigable waters, but also had full, complete and plenary power to regulate navigation in navigable waters. After the effective date of the Federal Constitution and the implementing Acts of Congress, the regulation of interstate commerce gave the federal government certain powers over the extent to which obstructions could be erected in navigable waters -- hence the necessity to submit the application to the United States Corps of Engineers for consideration and approval.

[***18]

   (2)

   In considering the question of whether there was legally sufficient evidence to support the action of the Mayor and Aldermen in reducing the length of the pier from 62 to 55 feet and the number of [**546] slips from four to two, it was contended by the appellants that the appeal was a trial de novo in which the parties could -- as they did -- present new and additional evidence from that presented before the Port Wardens. We need not decide this question in that, assuming, arguendo, that the appeal contemplated a hearing de novo, we are of the opinion that there was not sufficient evidence to sustain the action of the Mayor and Aldermen which was, in a legal sense, arbitrary, capricious and unreasonable and, therefore, null and void as the Chancellor decided.

   As we have indicated, there was a large amount of evidence at the hearings before the Mayor and Aldermen but there was no evidence that the 62 foot length of the pier was considered to be a peril to navigation in Weems Creek or that this length would "render the navigation * * * too close and confined." On the contrary, Mr. Lunter, one of the appellants, testified:

   "We don't fear a sixty foot[***19] pier being built, but we do fear for boats there to be used as a private [*213] marina, for rendezvousing, and then we being back in this cove, and not only ourselves, but the people on the Severn, going towards Severn River, being back in some coves there, are going to have this same problem of pollution."

   Admiral Heineman testified that there were in Weems Creek piers which apparently projected out 60 feet and he estimated the average as approximately 40 feet. Mr. Buchanan, President of the Wardour Improvement Association consisting of 70 families in Wardour, testified:
 
"Their objection to the application for this pier, really involved the intent and the fact that there were multiple pier or for multiple boats at a location which is entirely residential.  We worry about the pollution of the Creek.  We worry about the fact that it is a residential area, and we would like to keep it that way.  And, I think this is primarily the objections that the citizens of Wardour have.  I don't think there was any desire on their part to keep a bona fide owner of property from having a pier that was necessary to house his boat. But this seemed to be something that was a little[***20] unusual for one owner to have four boats on one pier."

   There was no objection or any evidence in regard to the width of the pier, its materials or construction.

   In summary, the objections of those opposing the issuance of the license to erect the pier were in regard to the possible use of the pier for commercial purposes or by more boats than supposedly permitted in a Residential C zone and the possible use of toilets on boats moored to the pier thus causing pollution in Weems Creek.

   In regard to the objection relating to use, the problem, if any, is a zoning problem over which, as we have seen, the Port Wardens have no jurisdiction. Laudeman, who is a member of the Bar, testified that he had no intention of changing the residential character of the neighborhood and, indeed, offered to execute and record a covenant running with the land to insure [*214] the enforceability of this representation.  He also stated his reasons for needing a 62 foot pier and why this length would be satisfactory to him after a close investigation of the depth of the water, thereby obviating the necessity for any cross-appeal on his part from the decision of the Port Wardens.

   So far as pollution[***21] from use of toilet facilities on the boats is concerned, counsel for the applicant pointed out how unlikely it would be that this would result, as the property of Laudeman would be the one most adversely affected by it and, moreover, there would be no necessity for such use while the boats were moored less than 62 feet from the shore with toilet facilities available on land.  In any event, the Port Wardens have no jurisdiction over the problem of pollution. Whatever jurisdiction over this problem is given by the Code [**547] of the City has been granted to the Health Officer.  Here again, if and when pollution attributable to the use of toilets on the moored boats occurs, any neighboring property adversely affected and specifically injured will most likely have appropriate remedies available to protect themselves.  See, e.g., Section 13-1 and Section 14-5 of the City Code in regard to the casting or throwing of filth into the waters or on the shore and the power of the Health Officer to require the removal of filth which has become a nuisance. It should be pointed out, however, that our predecessors have held that so far as the prevention and removal of nuisances by the City[***22] are concerned, only those nuisances which are declared to be such by ordinance or were nuisances at common law may be prevented or removed by the City.  See Burley v. City of Annapolis, 182 Md. 307, 311-12, 34 A. 2d 603, 605 (1943). In fact, there was no credible evidence before the Mayor and Aldermen of any pollution or of the likelihood of its occurrence and there was positive evidence that it would not likely occur.  If and when it may occur in the future, there appear to be adequate remedies, both public and private, to resolve the danger.

   William R. Jackson, the City Engineer, who is a Port Warden and who acts as chairman of that body, testified in regard to the action of the Port Wardens in granting a 62 foot pier (vs. the 90 foot pier requested), and that, in his opinion, the Port Wardens had no jurisdiction to consider either zoning or [*215]health problems possibly arising from the use of boats at the pier. He indicated that the Port Wardens, like the Army Engineers, were primarily concerned with navigation.

   The evidence indicated that Weems Creek and Spa Creek were comparable bodies of water. The depth of water in the channel is approximately the same ranging [***23]from 8 to 12 feet in Weems Creek and 7 to 12 feet in Spa Creek.  The boat traffic in Weems Creek is far less than that in Spa Creek indicating that there is less congestion of navigation in Weems Creek than there is in Spa Creek.  Then too, as has already been observed, there are existing 60 foot piers in Weems Creek which have not interfered with navigation.

    The evidence was uncontradicted that four persons had an interest in the property of Laudeman and that the dwelling had a tenant.  Laudeman testified that he ultimately hoped to have four apartments in the dwelling house.  It would seem clear that the granting of four slips by the Port Wardens was not unreasonable but was supported by substantial evidence. There was no evidence before the Mayor and Aldermen indicating that this action by the Port Wardens was unreasonable, arbitrary or capricious.

   The decision of the Port Wardens in regard to the length of the pier, its location and construction and the number of slips granted by the license was fully supported by the evidence and there was no legally sufficient evidence indicating that this decision was incorrect.

   Not only did counsel for Laudeman point out that, in his opinion, [***24] the Mayor and Aldermen had no jurisdiction to consider zoning and health problems on the appeal from the Port Wardens, but this opinion was in effect confirmed by the town attorney who stated at the first hearing:
 
"* * * [A]ny decision you make, has got to be supported by substantial evidence as required by the City Code.  And that deals only with congestion and hazards to navigation."
 
Unfortunately this good advice was not taken by the Mayor and Aldermen. The action of the Mayor and Aldermen in reducing [*216] the length of the pier and number of slips was unsupported by substantial evidence, and was, therefore, in law, arbitrary, unreasonable and capricious action.  The Chancellor was correct in declaring such action null and void. See State Department of Health v. Walker, 238 Md. 512, 209 A. 2d 555 (1965), Serio v. Mayor and City Council [**548]of Baltimore, 208 Md. 545, 119 A. 2d 387 (1956). Cf. Daniel Loughran Co. v. Lord Baltimore Candy & Tobacco Co., 178 Md. 38, 12 A. 2d 201 (1940)

   Decree affirmed, the costs to be paid by the appellants. 

ABELL, et al. v. SECRETARY OF STATE 
No. 225 (Adv.), September Term, 1968
 
Court of Appeals of Maryland
 
251 Md. 319; 247 A.2d 258; 1968 Md. LEXIS 446

 October  9, 1968, Decided  
 November  8, 1968, Filed

   PRIOR HISTORY: [***1]  
Appeal from Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed, costs to be paid by appellants.

CORE TERMS:  demurrer, machine, referendum, slot, editorial, signatures, voters, place of business, session, referendum petition, abolition, possessed, summary judgment, process of law, final ruling, writ of mandamus, effective date, effective, gradual, emergency, phase-out, eventual, election, publicity, matter of law, first line, curia, municipalities, one-half, supplied

COUNSEL: Neal P. Myerberg and Oliver R. Guyther for appellants.

   Lewis A. Noonberg, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.

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

OPINIONBY: BARNES

OPINION: [*320] [**259] The principal question in this appeal is whether or not Chapter 617 of the Laws of 1963, or a part of that Act, providing for the gradual and eventual total abolition[***3] of slot machines by July 1, 1968, could lawfully be referred to a vote of the electorate of Maryland at the general election to be held on November 5, 1968, under Article XVI of the Maryland Constitution upon petitions filed on May 31 and June 26, 1968.

   Chapter 617, which was introduced into the General Assembly of Maryland as House Bill 475, has the following title:

   "AN ACT to add new Section 264B to Article 27 of the Annotated Code of Maryland (1957 Edition and 1962 Supplement), title 'Crimes and Punishments,' subtitle 'Gaming,' to follow immediately after Section 264A thereof, and to be under the new subheading 'Slot Machines,' defining the term 'Slot Machines,' and providing that it shall be unlawful to locate, possess, keep, maintain or operate such machines within this State, providing certain exceptions as to those counties and municipalities wherein such machines were licensed prior to the effective date of this Act, and providing, as to such counties and municipalities, [*321] a limitation upon the maximum number of such machines that may be located, possessed, kept, maintained or operated in any place of business, or in any building, or upon any premises and further[***4] providing for the gradual and eventual [**260] total abolition by July 1, 1968, of all slot machines within this State, making non-compliance with the provisions of this Act a misdemeanor, and relating generally to slot machines and to their location, possession, keeping, maintenance or operation within this State."

   Section 1 contains the usual enacting clause and sets forth the new Section 264B under the new subheading "SLOT MACHINES." The first paragraph of the new Section gives the definition of a slot machine. Then follow three subdivisions with Roman Numerals I, II, and III.  Subdivision I provides that it shall be unlawful to possess, maintain or operate any slot machine in Maryland except as provided in subdivision II.  Subdivision II contains three further subdivisions (A), (B) and (C).  II (A) contains four additional subdivisions (1), (2), (3) and (4).  We will set out II (A) and (B) in full:

   "II. In those counties and municipalities of this State wherein the County Commissioners or municipal authorities thereof, prior to the effective date of this Act, licensed such slot machines for operation therein.

   "(A) After July 1, 1965, it shall be unlawful for any person, [***5] firm or corporation to conduct any place of business wherein is located or kept, other than in a building or upon any premises used solely for storage, a number of slot machines in excess of the maximum numbers hereinafter set forth, and it shall be unlawful for any person, firm or corporation to possess, keep or maintain, other than in a building or upon any premises used solely for storage, or operate within any one building, or upon any premises, as hereinafter defined, a number of slot machines in excess of the following maximum numbers of such machines:

   "(1) At any time after the effective date of this [*322] Act, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of March 1, 1963.

   "(2) At any time after July 1, 1965, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of January 1, 1963, or thirty (30) machines, whichever shall be the lesser number.

   "(3) At any time after July 1, 1966, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of[***6] January 1, 1963, or twenty (20) machines, whichever shall be the lesser number.

   "(4) At any time after July 1, 1967, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of January 1, 1963, or ten (10) machines, whichever shall be the lesser number.

   "(B) After July 1, 1968, it shall be unlawful for any person, firm or corporation, whether as owner, lessor, lessee, licensor, licensee, or otherwise, to possess, kept, maintain or operate, or have in or upon any place of business, building or premises for any purpose any slot machines whatsoever."

   II (C) defines "premises." III provides that violation shall be a misdemeanor, with punishment by a specified fine or imprisonment or both.

   Section 2 of Chapter 617 provides that the provisions of the Act are not intended to apply to pinball machines if they do not permit any compensation or reward beyond an automatic replay of a game or games mechanically provided upon the machine.

   Section 3 sets forth the usual severability clause.  Section 4 repeals all inconsistent laws and Section 5 provides that the Act "shall take effect on July 1, 1963." The Act was approved[***7] by the Governor on April 30, 1963.

   [**261] As originally introduced as House Bill 475, Chapter 617 provided for total abolition by July 1, 1966, instead of July 1, 1968.  [*323] II (A) originally had the date July 1, 1963 instead of July 1, 1965.  In the first line of II (A) (2) the date was July 1, 1963 instead of July 1, 1965; in the first line of II (A) (3) the date was July 1, 1964 instead of July 1, 1966; in the first line of II (A) (4) the date was July 1, 1965 instead of July 1, 1967; and, in II (B) the date was July 1, 1966 instead of July 1, 1968.  The extended times were inserted in the original bill by amendment so that the gradual and eventual abolition of slot machines was extended by amendment for an additional two years.  There was an appropriate amendment to the title of the Act to indicate that the gradual and eventual total abolition was by July 1, 1968, rather than by July 1, 1966, as originally set forth in the title.

   Section 2 in regard to pinball machines was also inserted by amendment and the following sections renumbered.

   Section 2 of Article XVI of the Maryland Constitution providing for the referendum provides in relevant part:

   "Section 2. [***8]  When laws to take effect; effect of filing of referendum petition.

   "No law enacted by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it contain a Section declaring such law an emergency law and necessary for the immediate preservation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two Houses of the General Assembly; provided, however, that said period of suspension may be extended as provided in Section 3 (b) hereof.  If before said first day of June there shall have been filed with the Secretary of the State a petition to refer to a vote of the people any law or part of a law capable of referendum, as in this Article provided, the same shall be referred by the Secretary of State to such vote, and shall not become a law or take effect until thirty days after its approval by a majority of the electors voting thereon at the next ensuing election held throughout the State for Members of the House of Representatives of [*324] the United States.  An emergency law shall remain in force notwithstanding such[***9] petition, but shall stand repealed thirty days after having been rejected by a majority of the qualified electors voting thereon; * * *." (Emphasis supplied.)

   Section 3 of Article XVI provides as follows:

   "Section 3. Number of signers necessary for petition; effect of petition signed by more than one half required number.

   "(a) The referendum petition against an Act or part of an Act passed by the General Assembly, shall be sufficient if signed by three per centum of the qualified voters of the State of Maryland, calculated upon the whole number of votes cast therein for Governor at the last preceding Gubernatorial election, 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 a 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.

   "(b) If more than one-half, but less[***10] than the full number of signatures required to complete any referendum petition against any law passed by the General Assembly, be filed with Secretary of State before the first day of June, the time for the law to take effect, and [**262] for filing the remainder of signatures to complete the petition shall be extended to the thirtieth day of the same month, with like effect."

   On May 31, 1968, petitions in proper form were filed with the Secretary of State containing signatures in excess of a figure representing one and one-half per cent of the required qualified voters not more than one-half of whom were residents of [*325] Baltimore City or of any one County, to refer the entire Chapter 617 to the electorate at the next general election, i.e., in November, 1968.  On June 26, 1968, the remaining number of required signatures were filed with the Secretary of State.  On the same dates petitions with the required number of signatures were filed to refer designated portions of Chapter 617 (including the final phase-out provision).  Each of the petitions contained a sufficient number of apparently valid signatures to suspend the operation of a referable law.  The Secretary[***11] of State refused to refer the Act or any portion of it, on the ground that the petitions were filed some five years too late, and notified J. Franklin Abell, one of the appellants, as president of the Maryland Local Option Association (the Association which had filed the petitions) by a letter of June 26, 1968, of his decision.

   Mr. Abell and four others, as taxpayers, voters and two as officers of Maryland Local Option Association filed a petition for the issuance of a writ of mandamus and for other relief in the Circuit Court for Anne Arundel County on June 26, 1968, against the Secretary of State alleging the relevant facts and praying that the writ of mandamus issue commanding the Secretary of State (1) to certify the petitions to refer the entire Act, (2) to refer a part of the Act, and (3) to issue an interlocutory order commanding the Secretary of State to refer both the entire Act and a part of it at the next election in the event the Circuit Court "shall find it necessary to take the matter raised by this Petition sub curia for a period of time subsequent to July 1, 1968, the effective date of the said Chapter 617 of the Acts of 1963."

   The Secretary of State filed a demurrer[***12] on the morning of June 27, 1968, on the ground that the petitions were filed five years too late and also alleged that the petition for the writ of mandamus should be dismissed.  A hearing on the demurrer was held before Judge Paul T. Pitcher.  After having heard the arguments of counsel for the respective parties, Judge Pitcher stated: 
 
"Alright, I have heard enough, Gentlemen, on this.  For the purposes of the preliminary argument on [*326] whether or not we want to stay the effect of this thing on July 1st, Mr. Noonberg, [Assistant Attorney General representing the Secretary of State] I am going to overrule your demurrer. However, that doesn't foreclose the whole matter.  But I want to get on with the argument on the merits of the matter."

   Judge Pitcher then heard further argument.  At the conclusion of argument, Mr. Noonberg stated:
 
"If Your Honor please, I would like to procedurally mention that if Your Honor prefers we would at this time, we could move for summary judgment in favor of the Secretary of State on the merits, or we could, we rely on our demurrer which raises the issue also on the merits, which ever Your Honor prefers.  I know that the time[***13] gun here is a pressure that the petitioners are suggesting, and we would submit which ever way Your Honor wants us to handle it.  If Your Honor finds that the petition should be dismissed, the court could do so either on a demurrer or on a motion for a summary judgment which we would be happy to file.

   "The Court: Mr. Noonberg, anybody that tried to make a decision in a case with the import of this one in an hour on the morning of June 27th, or any other [**263] particular time, unless he was an authority on every one of these cases that have been cited here, and I don't know of any Judge in Maryland that is, would be doing less than justice.  As far as the actual merits of this matter are concerned I wouldn't think about making a decision this morning."

   Then after the propriety of a stay was discussed and argued, Judge Pitcher made no decision in this regard.

   The docket entry was as follows:
 
"1968 June 27 -- Hearing on Petition for a Writ of Mandamus held in Open Court before Judge Pitcher.  Demurrer filed.  Memorandum of Points and Authorities in Support of Respondents Demurrer filed.  Counsel [*327] heard.  Court overrules Demurrer. Court holds in abeyance."[***14]

   The docket entries also show that on June 27, 1968, the letter to Mr. Abell from the Secretary of State was filed and on July 31, 1968, two letters were filed, one from the Secretary of State dated July 15, 1968, to Mr. Abell in regard to the signatures on the June 26 and July 1 additional petitions, the other from counsel for the petitioners forwarding the letter of July 15 to Judge Pitcher.

    Judge Pitcher unfortunately died suddenly on August 9, 1968, while holding the case sub curia. The matter was then considered by Judge Evans who filed his opinion on September 5, 1968.  In his opinion, Judge Evans stated:
 
"After hearing, Judge Pitcher indicated that he would overrule the demurrer, but did not make a final ruling.  Judge Pitcher passed away on 9 August 1968, holding the case sub curia.

   "No answer was filed or evidence taken in this case and, as the demurrer goes to the merits of the action, counsel agreed that, after listening to their arguments made before Judge Pitcher and reading the proceedings and briefs filed, I should make a final ruling on the demurrer." (Emphasis supplied.)

   Judge Evans concluded that the petitions were filed too late and passed [***15]an order sustaining the demurrer without leave to amend.  From this order the appeal was timely taken by the petitioners to this Court.  In view of the importance of the case we expedited the hearing and after hearing argument and considering the briefs of the parties we concluded that the order of the Circuit Court should be affirmed, and passed a per curiam order on October 9, 1968 indicating our affirmance of the order, and requiring the appellants to pay the costs.  We now state the reasons for our decision.

   The appellants presented three arguments to us:

   (1) Chapter 617, in its entirety or in part, may lawfully be referred to referendum upon the filing of the requisite number of qualified signatures of voters before June 1 of the year in [*328] which the Act or part of it becomes operative and effective, i.e., on July 1, 1968.

   (2) Judge Evans erred in sustaining the demurrer to the petition when Judge Pitcher had previously overruled the demurrer.

   (3) Because of an editorial in the Baltimore News-American of June 28, 1968, and an editorial in the Baltimore Evening Sun of July 8, 1968, an atmosphere was created in which the petitioners could not have a fair and impartial[***16] trial, thus denying them due process of law as required by Article 23 of the Declaration of Rights of the Maryland Constitution and by the Fourteenth Amendment to the Constitution of the United States.

   We will consider the three arguments in the order named and we will later state such additional facts as are necessary for the consideration of the third argument.

   (1)

   The argument of the appellants is based on the theory that although Chapter [**264]617 was passed by the General Assembly at the 1963 Session and was approved by the Governor on April 30, 1963, the Act or at least that part of the Act which provides for the final phase-out of slot machines on July 1, 1968, did not become fully implemented, operational or effective until that latter date so that the first half of the petitions could be filed as late as May 31, 1968. The difficulty with this theory is that it is contrary to the express provisions of Section 2 of Article XVI of the Maryland Constitution.  As already indicated Section 2 provides that no law "shall take effect until the first day of June next after the session at which it is passed" unless it is declared to be an emergency law.  Section 2 then[***17] continues "If before said first day of June there shall have been filed with the Secretary of State a petition to refer to the vote of the people any law or part of a law capable of referendum" the law shall not become a law or take effect until approved by a majority of the voters, but an emergency law shall remain in force and only stand repealed when rejected by a majority of the voters. This language is in mandatory form and it is clear from the language of Section 2 that the petition must [*329] be filed before the first day of June next after the session at which the law was passed.  The words "said first day of June" refer to the previously mentioned "first day of June next after the session at which it is passed" and this language definitely establishes when the referendum petition must be filed to be effective.

   Our predecessors, in Winebrenner v. Salmon, 155 Md. 563, 565, 142 A. 723, 724 (1928), a case involving the referability under Article XVI of an act making an appropriation to maintain the State government, have indicated (but not held) that our construction of Section 2 of Article XVI is correct.  In that case, Judge Adkins, for the Court, stated: [***18] 

   "By Article 16 of the Constitution of Maryland, known as 'The Referendum,' the people reserved to themselves power by petition to have submitted to the registered voters of the state, to approve or reject at the polls, any act or part of any act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.  The method of accomplishing this is by a petition signed by the designated number of vote[r]s, or percentage (depending upon whether the act to be submitted is a general or a local law), the petition to be filed before the first day of June following the passage of the act." (Emphasis supplied.) (155 Md. at 565, 142 A. at 724.)

   The United States District Court for the District of Maryland reached the same conclusion in a per curiam opinion filed on June 28, 1968, in the case of Mills v. Agnew, 286 F. Supp. 107. This case was heard by Thomsen, C. J. and Watkins, D. J.  That Court stated:

   "Plaintiffs' final charge is that '[t]he Attorney General and Secretary of State have refused to allow the bill to referendum in violation of the constitution of the State of Maryland and the due process and equal[***19] protection clauses of the 14th Amendment to the Constitution of the United States.' This argument raises [*330] no substantial question under the United States Consitution.  As was clearly pointed out by the Attorney General of Maryland in his opinion dated June 19, 1968, Section 2 of Article XVI of the Maryland Constitution requires that a petition for a referendum must be filed before the first day of June next after the session at which the act in question was passed, regardless of the date the Act is to go into effect and regardless of any date or dates contained within the Act providing for a phase-out or other staggered period.  See also Winebrenner v. Salmon, 155 Md. 563, 565, 142 A. 723 (1928). The Act in question was passed in 1963, and the petition for referendum was not filed until 1968." (286 F. Supp. at 110.)

   The Attorney General has brought to our attention that Judges Bowen and Powers [**265] recently reached the same conclusion in the Circuit Court for St. Mary's County in the cases of Abell, Inc., et al v. Burroughs, et al, Equity No. A-3147; Wester, et al v. Lyons, et al, Equity No. 2575 and Downes, et al v. Garner, et al, Equity No. 2058A[***20] (all consolidated).  No appeal was taken from the orders implementing the court's decision in those cases.

   The appellants earnestly argue that Article XVI permits the reference of a part of an act (which it does) and in view of the fact that the General Assembly separated into separate subparagraphs of subdivision II of Section 264B the times when portions of the Act should become operative, these respective subparagraphs, including subparagraph (B) phasing out all slot machines after July 1, 1968, should be considered parts of the Act "effective" at the times mentioned and hence such portions should be subject to referendum if valid referendum petitions are filed prior to the respective dates of the parts of the Act involved.  However reasonable such a construction might appear to be as a matter of policy (and on this we express no opinion) the short answer to it is that the mandatory words of Section 2 require that the referendum petitions be filed before the first day of June "next after the session at which [the Act in question] may be passed." As we pointed out recently [*331] in Ferguson v. Secretary of State, 249 Md. 510, 517, 240 A. 2d 232, 236 (1968), this[***21] Court cannot by construction eliminate (or modify) a mandatory provision in Article XVI and that if a change in that amendment is thought wise or desirable "the remedy is by an appropriate amendment to Article XVI."

   (2)

   We now turn to the second question argued by the appellants, i.e., that Judge Evans erred in sustaining the demurrer to the petition when Judge Pitcher had previously overruled the demurrer. From the portions of the Record already set forth above, it is clear to us that Judge Pitcher did not intend to make a final ruling on the demurrer, as the trial court pointed out in its opinion.  As the matter was submitted to Judge Evans after Judge Pitcher's death, Judge Evans acted properly in considering the case on the demurrer and he properly concluded that, on the allegations of the petition, no relief could be granted the petitioners as a matter of law. Accordingly, he sustained the demurrer without leave to amend.  The alternative procedure of permitting the Secretary of State to file a motion for summary judgment as suggested by his counsel, would have reached the same result since there was no dispute as to any material fact. Consequently, the Secretary of State[***22] would have been entitled to judgment as a matter of law. See Maryland Rule 610.  In our opinion Judge Evans was justified in giving a final ruling on the demurrer, but, in any event, the result would have been the same on the suggested alternative procedure.  There was, therefore, no prejudice to the appellants from the disposition of the case by the ruling on the demurrer.

   (3)

   In their brief, the appellants print two editorials, one entitled "A Friendly Judge" appearing in the Baltimore News-American of Friday, June 28, 1968 (the day after the present case had been argued in the lower court), the other, entitled "Still the Slots" appearing in the Baltimore Evening Sun of July 8, 1968, in regard to a case decided in the Circuit Court for Calvert County.  The appellants argue that this was prejudicial publicity which denied them due process of law, relying in part upon the decision of the Supreme Court of the United [*332] States in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966).

    Although the editorial of June 28, 1968, is provocative and contains at least one inaccurate statement, i.e., that Judge Pitcher had ordered a stay of the phase-out law[***23] (which he did not), nevertheless there is no showing whatever that this editorial or the one of July 8, 1968, influenced in any way the decision in this case, which, [**266] as we have seen, ultimately turned upon the determination of a question of law.  No jury trial was involved.  The publicity referred to by the appellants is quite different from that involved in Sheppard and, as we have indicated, the situation in the two cases was much different.

   In any event, the appellants did not raise the issue that the prejudicial publicity denied them due process of law in the lower court and the editorials do not appear in the Record.  Nor did the appellants avail themselves of the right under Code (1965 Replacement Volume) Article 75, § 44 to seek removal of the case to another court after the editorials had been published.  This issue is, therefore, not properly before this Court for appellate review.  Maryland Rule 885. 

SELTZER v. SELTZER 
No. 312, September Term, 1967
 
Court of Appeals of Maryland
 
251 Md. 44; 246 A.2d 264; 1968 Md. LEXIS 412

 October  8, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed.  Costs to be paid by appellant.

COUNSEL: Arthur A. Anderson, Jr. for appellant.

   Eugene M. Lerner for appellee.

JUDGES: Hammond, C. J., and Marbury, Barnes, McWilliams, Finan, Singley and Smith, JJ.

OPINIONBY: PER CURIAM

OPINION: [*44] [**265] Appellant complains to us because the trial judge required him to pay a previously ordered alimony award to his former wife and a similar award for support of the minor children of the parties.

   [*45] Appellee, without the consent of the lower court or appellant, took the children to Italy in October, 1966, where they[***2] remained until the summer of 1967.

   Appellant contends he should not be ordered to make payments for the support of his children during the time they were in Italy.  He also contends that he should not be obliged to pay his former wife alimony for the same period because she took the children to Europe without the consent of the lower court, thereby denying appellant visitation.

   Appellant had a continuing common law obligation to support his children. Kriedo v. Kriedo, 159 Md. 229, 150 A. 720 (1930). This responsibility does not necessarily terminate when the child is not within the jurisdiction.  State v. James, 203 Md. 113 at 124, 100 A. 2d 12 (1953).

   It is clear that the court in the exercise of a sound discretion may vary or modify an order for support and maintenance of children.  Code (1966 Repl. Vol.), Art. 16, §§ 25, 66.  Price v. Price, 232 Md. 379, 194 A. 2d 99 (1963); Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A. 2d 463 (1965). We see nothing to show that the trial court's exercise of discretion in the case before us was not sound.

   Judgment affirmed.  Costs to be paid by appellant. 

PUMPHREY et ux. v. PELTON 
No. 266, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 662; 245 A.2d 301; 1968 Md. LEXIS 763

 August  19, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Reversed and remanded for entry of a decree in accordance with this opinion.  Costs to be paid by appellee.

CORE TERMS:  food, selling, modification, franchise, franchise agreement, written consent, ice cream, termination, waived, spoken, waive, written permission, frozen dessert, manufacturing, chancellor, territory, producing, terminate, assigned, helping, patents, renew, time provision, defaulted, estoppel, newcomer, shipments, carboys, silent, business of selling

COUNSEL: W. Harvey Beardmore, with whom were Rouse and Beardmore on the brief, for appellants.

   Frank C. Serio, with whom were Wray and Serio on the brief, for appellee.

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

OPINIONBY: SMITH

OPINION: [*662] [**301] Appellants (Pumphrey) entered into a contract on March 22, 1956, [***2] relative to the operation of "Dairy Queen" stores in the Linthicum area of Anne Arundel County.  [**302] The contract was [*663]originally with Ella L. Kelly, et al., (Kelly) and was by them assigned to appellee (Pelton).  In the Dairy Queen operation Pelton held the state franchise. He assigned the franchise for certain counties to Kelly in 1951, which contract was assigned back to Pelton by Kelly in 1961.

   Dairy Queen markets what is known in the trade as a "soft" ice cream or ice milk.  The contract included the right to use the registered trade name "Dairy Queen" and certain patented equipment.

   By the terms of the contract Dairy Queen was to be the only product sold on the premises without the written permission of Kelly and, later, Pelton. Pumphrey sold other products without such written permission. This originally was with the knowledge of Kelly and later with the knowledge of Pelton.

   Kelly and two other Dairy Queen operators testified as to sales of non-Dairy Queen products by other franchise holders in Pelton's territory with Pelton's knowledge and without his written consent. Pelton admitted this.

   On December 11, 1964, Pelton through counsel notified Pumphrey[***3] of his violation of that part of the contract requiring written permission for such sales, stated that the default of performance gave Pelton the right to terminate, advised of a willingness to negotiate a supplementary agreement and requested that appellants or counsel communicate with Pelton's counsel by December 31.  There had been an earlier suggestion that Pumphrey pay Pelton three and one-half percent of his gross food sales, a suggestion which failed to meet with the approval of Pumphrey.

   On December 31, 1964, Pelton addressed a letter to Pumphrey wherein he stated that he exercised the option contained in the franchise agreement to declare the agreement void by virtue of the violations on the part of Pumphrey.  He further declared his intention to purchase certain of the equipment at a price to be determined by appraisal in accordance with the agreement.  He invoked Clause 23 of the contract, which provided:

   "23. The Second Party further agrees that after the termination of this contract for any reason whatsoever the Second Party will not engage in the business [*664] of selling, producing, manufacturing, or delivery of frozen dessert products of any nature whatsoever, [***4] including, but not limited to, ice cream, sherbert, frozen custards, and ice mixes, or in any business relating to the same directly or indirectly, in the counties of Cecil, Anne Arundel, Harford and Baltimore, in the State of Maryland, for a period of ten (10) years after the termination of this contract."

   On October 1, 1965, Pelton filed his bill of complaint in the Circuit Court for Anne Arundel County alleging that the franchise agreement was "properly terminated," attaching a copy of the letter of December 31 as an exhibit.  He asked that Pumphrey be enjoined from selling, producing, manufacturing or delivering frozen dessert products in accordance with the franchise agreement and that he be required to sell to Pelton each Dairy Queen freezer in accordance with the terms of the contract.

   Pelton urged in his argument to the chancellor that he was entitled to cancel the contract because of the alleged violations by Pumphrey and also that he was not obliged to renew the contract after March 22, 1965, for a subsequent year. Pumphrey contended below and here contends that his violations of the contract were not "substantial," although admitting that food sales for which no written [***5]consent had been obtained amount to approximately fifty percent of his gross sales.  He also contended that the restriction against selling ice cream and other products after termination was an unreasonable restriction of trade.

   The chancellor found violations of the contract by Pumphrey.  He granted the injunction prayed by Pelton enjoining Pumphrey [**303] "from engaging in the business of selling, producing, manufacturing, or delivery of frozen dessert products of any nature whatsoever, or in any business relating to the same, directly or indirectly, for a period of ten years * * *." He limited the injunction, however, to the territory covered by the Pumphrey franchise, finding in his opinion "that to enforce Section 23 of the contract prohibiting the above in the four counties of Cecil, Anne Arundel, Harford and Baltimore would [*665]not be equitable and that such prohibition should extend only to the area where the Defendants had exclusive protection during the time in which the contract was enforced.  Roane, Inc. v. Tweed, [89] A. 2d 548 (Delaware, 1952)."

   Clause 19 of the contract said:

   "19. The Second Party and First Party agree each with the other, that [***6]this contract shall continue for a term of 5 years from the date hereof and thereafter shall be automatically renewed for successive terms of one year each; and the time limit for the exclusive operating rights of said equipment and use of the registered trade name 'Dairy Queen' in the prescribed territory shall be for the period of time covered by said patents and copyrights and any extensions thereof, so long as the Second Party herein perform their covenants as required by this contract."

   It is our opinion that we must first determine the duration of the contract in the light of the attempt of Pelton to cancel as of the end of the year (March 22).  The contract contains no provisions for notice of intent to renew. Accordingly, it is not to be confused with an option to terminate or renew, the renewal provisions being automatic.  See 17 Am. Jur. 2d, Contracts, § 495.  We believe a fair reading of this contract is: it is terminable only for cause, by the expiration of the patents and copyrights of Dairy Queen, or by breach of one of the covenants of the contract.  The fact that Clause 19 provides that it terminates upon the expiration of the patents and copyrights saves[***7] it from the rule that a contract may not exist in perpetuity in the absence of an express provision.

   In this case Pelton testified he was familiar with the Kelly operation prior to his taking it over in 1961.  He was aware that Kelly made periodic inspections among his various operators.  Each operator had a contract similar to that of Pelton.  Pelton was aware and assumed Kelly to have been aware that each of those operators prior to the assignment to Pelton was selling non-Dairy Queen products without the written consent of Kelly.  Pelton further testified that at the convention he held at Carvel Hall Hotel in Annapolis of Dairy Queen operators in 1962 he [*666] had one of his operators talk relative to food. At one point Pelton was asked:

   "Well, let me ask you this question, Mr. Pelton, weren't you trying to encourage these men to sell food along with the Dairy Queen products?"

   To which he replied:

   "I was trying to explore the possibility and to submit to these people other people's experience.  I felt that it should be entered into.  For, in doing so, would -- it would be hopeful of helping them building their business, helping them make more money and helping[***8] me make more money.  There is a economic reason behind all, of everything that you do."

   Pelton admitted that at that convention he said those who were already selling food could continue to sell food, the same kind of food that they had sold.

   In 1963 Pelton (as did Dairy Queen nationally) encouraged his people to enter into a franchise agreement relative to "The Brazier" food program and operators were advised that this was the only approved program.  Under that program five percent of the gross proceeds from the sale of food would have accrued to Pelton.  Notwithstanding that, however, Pelton testified [**304] those who were already in the sale of food in 1963 were allowed to continue without paying him anything.  He announced, however, that those who were not selling any non-Dairy Queen products who did not wish to go into the Brazier program could go into the sale of food upon the payment of three and one-half percent of the gross sales to him.

   In National School Studios v. Mealey, 211 Md. 116, 126 A. 2d 588 (1956), speaking through Judge Collins, we said, at page 131:

   "It has been held in this State that one may waive the breach of the contract and later be[***9] bound by his election.  Key v. Dent, 6 Md. 142; Orem v. Keelty, 85 Md. 337, 36 A. 1030. 'He who is silent when he ought to have spoken, will not be heard to speak when [*667] he ought to be silent.' Jaworski v. Jaworski, 202 Md. 1, 10, 95 A. 2d 95; Burke v. Burke, 204 Md. 637, 647, 106 A. 2d 59."

   In John B. Robeson v. Gardens, 226 Md. 215, 172 A. 2d 529 (1961), Judge Prescott (later Chief Judge) said, at pages 222-224:

   "There are few principles of contract law better established, or more uniformly acknowledged, than that a party to an executory bilateral contract, who keeps the same in existence after a known breach by the other party and accepts further performance from the party who has committed the breach, waives the breach, in the absence of an assertion of his intention to retain the rights accruing to him as a result of said breach, assented to by the other party; and if the injured party thereafter does not make good his promises of performance, he is responsible for such failure.  3 Williston, Contracts (Rev. ed.), § 688, states it thus:

   'The principle is general that whenever a contract not already fully performed on either side is[***10] continued in spite of a known excuse, the defense thereupon is lost and the injured party is himself liable if he subsequently fails to perform, unless the right to retain the excuse is not only asserted but assented to.'
 
"In Restatement, Contracts, § 309, we find:
 
'Where the duty of a party to a bilateral contract has been discharged by the failure of a condition to exist or to occur or by the actual or threatened nonperformance of a return promise, he is again subjected to the duty if he renders any further performance, or assents to the rendering by the other party of any further performance of a condition or promise beyond what is due as the exchange for performance previously rendered, provided that he renders or assents to such further performance

   (a) with knowledge of the facts establishing his discharge, or * * *.'
 
 [*668] "See particularly Comment a, thereunder.  Professor Corbin states the same principle in 3 A Corbin, Contracts, § 755.

   "The above authorities have been specifically cited, with approval, by this Court in Nat. School Studios v. Mealey, 211 Md. 116, 126 A. 2d 588, Nichols v. Nicholas, 217 Md. 79, 141 A. 2d[***11] 746, and Gould v. Transamerican Associates, 224 Md. 285, 167 A. 2d 905; and they correctly expound the law of this State.  In the Mealey case, the rule was applied to a salesman of school children's photographs, who had a known excuse for nonperformance of his contract of employment, but continued to perform for a while and then breached a term of the contract.  In Nichols v. Nicholas, we held that the owners of certain real property had waived the time provision of an option agreement by continuing to accept payments on account of the purchase price after the expiration date of the time provision. For recent decisions of this Court dealing with the question of waiver, see Eastover Stores, Inc. v. Minnix, 219 Md. 658, 150 A. 2d 884 and Hill v. Benevicz, 224 Md. 79, [**305] 167 A. 2d 104. Compare 1 American Law of Property, § 3.95.

   "The early case of Md. Fertilizing Co. v. Lorentz, 44 Md. 218, also illustrates the principle here being discussed.  That case involved an agreement to ship 12,000 carboys of oil at the rate of 2,000 carboys per month for six consecutive months.  After the shipper had absolutely defaulted in one month and partially defaulted[***12] in two others, full shipments were resumed and accepted.  The acceptance of the later shipments was held to constitute a waiver of the purchaser's right to terminate the contract and to deny the seller's right to continued performance."

   In Mascaro v. Snelling and Snelling of Baltimore, Inc., 250 Md. 215, 235, 243 A. 2d 1, we said:
 
"As Judge Learned Hand said in the Second Circuit's opinion in Dwinell-Wright Co. v. White House Milk [*669] Co., 132 F. 2d 822, 825 (2d Cir. 1943): 'Here, as often, equity does not seek for general principles, but weighs the opposed interests in the scales of conscience and fair dealing.' Putting this another way, equitable estoppel may bar the relief sought.  In the White House case, the complainant knew of the defendant's use of the brand name on its cans of evaporated milk, and was selling White House tea and coffee to the defendant for resale.  In denying relief, the court said '* * * the owner may have so conducted himself as impliedly to assure the newcomer that he does not object, and the newcomer may have built upon that assurance.' 132 F. 2d at 825.

   "Or, as was said in Holly Hill Citrus Growers' Assn. v. Holly Hill [***13] Fruit Products, Inc., 75 F. 2d 13, 17 (5th Cir. 1935):
 
'There is a kind of evidential estoppel which, though it may not amount to a complete estoppel in pais, is raised when persons who have spoken or acted one way under one set of circumstances, and with one objective in mind, undertake under other circumstances and when their objective has changed, to testimonially give a different color to what they formerly said and did.'"

   Pelton relies upon and the chancellor cited Clause 18 of the contract which reads:
 
"No waiver, in whole or in part, of any breach or violation of this contract shall be deemed a waiver of any subsequent breach or violation."

   In Johnson Lumber Co. v. Magruder, 218 Md. 440, 447-448, 147 A. 2d 208 (1958) Judge Prescott (later Chief Judge) for this Court said:
 
"The whole doctrine of equitable estoppel is a creature of equity and governed by equitable principles.  It was educed to prevent the unconscientious and inequitable assertion of rights or enforcement of claims which might have existed or been enforceable, had not the [*670] conduct of a party, including his spoken and written words, his positive acts and his silence [***14]or negative omission to do anything, rendered it inequitable and unconscionable to allow the rights or claims to be asserted or enforced."

   See also Travelers v. Nationwide, 244 Md. 401, 414, 224 A. 2d 285 (1966) and cases there cited.

   The conduct of parties to a contract may be evidence of a subsequent modification of their contract.  Williston on Contracts, 3rd Ed., sec. 623; Saul v. McIntyre, 190 Md. 31, 36, 57 A. 2d 272; Evergreen Amusement Corporation v. Milstead, 206 Md. 610, 616-617, 112 A. 2d 901; and Solomon's Marina, Inc. v. Rogers, 221 Md. 194, 198, 156 A. 2d 432. Cf. Walker v. Assoc. Dry Goods, 231 Md. 168, 179, 189 A. 2d 91.

   In this case the breach was a continuing one.  The Pumphrey sales of non-Dairy Queen products were not a series of broken incidents.  They apparently began [**306] at the inception of the contract.  Certainly, they continued with the full knowledge of Pelton from the time that Pelton first became involved.  They continued with Pelton's acquiescence up until the fall of 1964. At that time Pelton began to request three and a half percent of the gross proceeds of the sales if he were not to then object to the sale of[***15] non-Dairy Queen products.  As stated earlier, however, Pelton himself testified that in 1963 he stated publicly to his assembled franchise holders that those who were then selling non-Dairy Queen products might continue to do so without paying him anything.

   The conduct of the parties here may be interpreted as evidence of a subsequent modification of the contract to permit the sale of non-Dairy Queen products by Pelton.  Regardless of such modification, we hold that Pelton by his conduct as expressed by his own testimony has waived his right to object to the sale of non-Dairy Queen products by Pumphrey.  The sale of non-Dairy Queen products by Pumphrey was a continuous matter.  Therefore, this was a continuing waiver, not a series of waivers to which Clause 18 might be applicable.  He could waive Clause 18 as well as any other part of the contract.

   [*671] Having agreed by his conduct to a modification of the contract or, in the alternative, by his conduct having waived Pumphrey's breach, Pelton may not now terminate the contract on the ground of Pumphrey's sale of non-Dairy Queen products without the written consent of Pelton.

   We do not reach the question of whether the restriction[***16] against selling ice cream after the termination of the agreement was an unreasonable restraint of trade.

   Reversed and remanded for entry of a decree in accordance with this opinion.  Costs to be paid by appellee. 

SEARS, et ux. v. POLAN'S 5 cents TO $ 1.00 STORE OFANNAPOLIS, INC., et al. 
No. 267, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 525; 243 A.2d 602; 1968 Md. LEXIS 753

 July  5, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed August 2, 1968; Denied September 9, 1968.

PRIOR HISTORY:  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Decree affirmed, appellants to pay costs.

CORE TERMS:  purchaser, acre, parcel, vendor, rezoning, buyer, specific performance, contract of sale, broker, terminated, settlement, zoning, seller, duty, consummation, assigned, tract, real estate agent, right of way, acre tract, extrinsic evidence, sale of land, deposit, escrow, notice, plat, chancellor, breached, rules of evidence, opposing party

COUNSEL: George B. Woelfel, Sr., with whom were William M. Travers and John S. Collins on the brief, for appellants.

   Morris Turk, with whom was Harry C. Blumenthal on the brief, for appellees.

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

OPINIONBY: FINAN

OPINION: [*526] [**603] The vendors appeal a decree of the Circuit Court for Anne Arundel County in an equity suit, in which two cases were consolidated in one, which dismissed their bill seeking rescission [*527] of a contract for the sale of real estate and ordered[***4] them to specifically perform, as prayed in the purchaser's bill of complaint.  We affirm the lower court.

   On July 25, 1964, Bernard W. Sears and his wife contracted for the sale to Polan's 5 cents to $1.00 Store of Annapolis, Inc., for $100,000, of "40 acres, more or less, lying on the South side of Best Gate Road, on the East side of the abandoned B & A Railroad right of way, being a portion of the property described among the land records of Anne Arundel County in Liber 775, folio 189." The evidence showed that at the time of the contract the Searses owned a parcel of ground at that location in excess of 61 acres. The agreement provided that "The exact area sold is to be determined by a survey to be ordered and paid by the Buyer and a copy thereof made a part of this agreement, * * *:" Upon acceptance of the contract, the buyer was given 90 days to conduct tests on the land if he so desired, and 10 days after that to submit an application [**604]for rezoning of the tract. However, the buyer was given the right to waive the rezoning condition to the contract.  Settlement was to be within 30 days after final determination by the zoning authority.

   A separate agreement, executed[***5] the same day and made a part of the sales contract, recited that the parties had agreed upon a price of $2,500 per acre and that if the survey should produce a deviation from the 40 acres purported to be sold by the primary contract, adjustments would be made to the $100,000 purchase price to the extent of $2,500 for each acre of variance.

   The vendors' broker was Carlton L. Foster, Inc., whose authorized agent, Ronald C. Paape, exclusively represented the vendors in the negotiations preceding the contract.  In accordance with the agreement, the buyer drew a $5,000 check payable to Carlton L. Foster (individually) as an escrow deposit, and left it with Paape, who neither deposited it in a bank nor informed the vendors of its existence.

   On October 20, 1964, for a stated consideration of one dollar, Polan's, Inc., assigned its rights under the Searses' contract to the broker's representative, Ronald C. Paape, and on July 7, 1965, Paape assigned the contract to The Paape Development Company, Inc.  These assignments were made without the knowledge of the vendors. In fact, when the buyer's attorney [*528] sent the rezoning application to the Searses for signature as legal owners[***6] of the tract, the named purchaser on the application was still Polan's, Inc., even though the contract had already been assigned to Paape.  The application was filed with the county on October 26, 1964, along with a survey map, prepared by J. R. McCrone, Jr., Inc., which indicated that the Searses' tract was comprised of three separate parcels, and that the two unimproved parcels added up to 37.7 acres.

   When the rezoning application was submitted, Anne Arundel County was in the process of converting from county commissioners to a charter form of government. As a result, many zoning applications, including the Polan's, Inc. application, lay dormant.  After several delays in obtaining rezoning, the purchaser decided to waive the rezoning condition, and by letter dated November 9, 1965, the attorney for "the Paape Development Company, Inc., assignee of Polan's 5 Cents to $1.00 Store of Annapolis, Inc.," informed the vendors that it was ready to settle on November 12.  Apparently, this was the first notice to the Searses that the contract had been assigned.

   The appellants filed a bill for declaratory relief praying for a decree declaring the contract null and void, and The Paape Development[***7] Company, Inc., then filed a bill for specific performance. The cases were consolidated for trial purposes by agreement of the parties.

   The appellants make a tridentated attack on the contract's amenability to specific performance, contending: (1) that the description of the land contained in the contract was so vague and insufficient as to render the contract unenforceable; (2) that the real estate agent Paape violated his fiduciary relationship with the vendor, in that he was serving two masters, which vitiated the assignment of the contract; and (3) that the appellees did not pursue the rezoning of the property with proper diligence.

   i

   It is well settled law, in this state and elsewhere, that to successfully maintain a bill for specific performance of a contract for the sale of land "'the description [of the land used in the contract] must be such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as is admissible [*529] under the rules of evidence, what property was intended by the parties to be covered thereby.  The description need not be given with such particularity as to make a resort [**605] to extrinsic evidence unnecessary. [***8] Reasonable certainty is all that is required.' Kraft v. Egan, 76 Md. 243; Engler v. Garrett, 100 Md. 387." Powell v. Moody, 153 Md. 62, 66, 137 A. 477, 478 (1927), followed in this Court in Baker v. Dawson, 216 Md. 478, 491, 141 A. 2d 157, 164 (1958), and Neuland v. Millison, 188 Md. 594, 604, 53 A. 2d 568 (1947). The fact that the agreement itself calls for a survey to render the description more precise does not affect the validity of the contract providing there is sufficient identity of the land to have allowed a meeting of the minds of the parties to the contract.  "A description may be sufficient although the contract contemplates a survey to prepare a more complete description." Neuland v. Millison, 188 Md. 594, 604, 53 A. 2d 568 (1947); Powell v. Moody, 153 Md. 62, 67, 137 A. 477 (1927).

   In the instant case the description in the contract of the land to be conveyed was sufficiently definite to identify the land in the minds of the contracting parties with reasonable certainty.  The Searses owned three parcels of land south of Best Gate Road, on the east side of the B & A Railroad right of way. The contract called for the conveyance of a tract[***9] of 40 acres more or less, with an addendum providing for an adjustment at the rate of $2,500 per acre pending the result of the survey, which was expressly contemplated by the parties to the contract, more accurately describing the property by metes and bounds.  At the time of the execution of the contract the Searses owned approximately 61 acres of land south of Best Gate Road and east of the B & A Railroad right of way. Parcels two and three combined contained 37.7 acres, parcel two containing 27 1/8 acres and parcel three, 10 1/2 acres. From the survey prepared by J. R. McCrone, Jr., Inc., it is obvious that parcels two and three comprised the 40 acre tract to which the parties to the contract had reference as the subject matter of their agreement.  Parcel number one appears to consist of 23.4 acres, which if it were to be combined with the contiguous parcel number two would form a tract in excess of fifty acres. It is obvious that the parties to the contract contemplated the combining of parcels two and three to form the 40 acre tract.

   [*530] Marion J. McCoy, an employee of the Planning and Zoning Office of Anne Arundel County, testified that an application for the rezoning[***10] of the subject property had been filed on October 26, 1964, which application bore the purported signature of Mr. Sears, and that a plat was filed with the application which the witness identified as similar to the Plaintiff's Exhibit No. 6, which plat designates by metes and bounds the three parcels owned by the Searses, including parcels two and three.  Subsequently, another plat was prepared by J. R. McCrone, Jr., Inc., designated as Plaintiff's Exhibit No. 7, which is substantially the same as Exhibit No. 6 and which shows parcels two and three to contain 40 acres, although at the hearing it was testified by the surveyor that only 37.7 acres remained in the designated 40 acre tract because several outgoing conveyances had not been subtracted from the 40 acre tract. We think it can be said with reasonable certainty that the contract embraced the 37.7 acres comprising parcels two and three of the Searses' land.

   ii

   On the surface a plausible argument is seemingly presented by the appellants' contention that Paape was serving two masters; however it does not withstand analysis.  Paape was agent for Carlton L. Foster, Inc., the broker, and in such a capacity he had an obligation[***11] to the vendors to obtain a purchaser at the price, and under terms and conditions, acceptable to the vendors, for which he was to receive a realtor's commission, in this case $10,000.  However, prior to the consummation of the sale, he was engaging in activity on behalf [**606] of the buyer, he eventually became the assignee of the contract of sale and ultimately assigned it to The Paape Development Company, Inc., which is the plaintiff in the suit for specific performance. A recitation of these facts would make it appear that Paape breached his fiduciary relationship as agent for the vendors, in that he placed himself in a position where he would be subject to a conflict of interests and failed to disclose his own interest in the contract to his principals while he was still their agent. The duty imposed upon the real estate agent in such a situation has been succinctly stated by Judge Hammond, now Chief [*531] Judge, in Hardy v. Davis, 223 Md. 229, 164 A. 2d 281 (1960), wherein speaking for the Court he stated:

   "During the term of the agency, a real estate broker cannot act for both vendor and vendee in respect of the same transaction because of possible conflict[***12] between his interest and his duty in such case, and he must disclose to his principal all facts or information which may be relevant or material in influencing the judgment or action of the principal in the matter. Coppage v. Howard, 127 Md. 512, 523; Restatement (Second), Agency Sec. 381." Id. at 232.

   It has also been stated that "an agent can properly deal with the other party to a transaction if such dealing is not inconsistent with his duty to the principal." Restatement (Second), Agency § 391, Comment b; and it was held in Hardy v. Davis, supra, that it was proper for the agent to loan money to the buyer to complete the purchase.

   The basic question which has to be answered is, when was the agency between the vendors (the Searses), and the real estate agent (Paape) terminated. We are of the opinion that it was terminated at the time of the execution of the contract of sale on the 25th day of July, 1964.  At that time Paape had secured a purchaser for the 40 acres at the price of $100,000, the price set by the Searses and under the terms and conditions acceptable to them, including the guarantee of the purchase money mortgage by Bernard Polan, individually. [***13]It is true that the consummation of the sale was contingent upon the rezoning of the property, subject to waiver of the same by the purchaser. However, the consummation of the contract imposed no additional duties upon the real estate agent.

   It is true that Paape held a check of the purchaser originally named in the contract of sale in the amount of $5,000, which was made payable to the broker, Carlton L. Foster.  However, the contract provided that "* * * the Purchaser agrees to deposit with Carlton L. Foster, Inc., * * * in escrow, the sum of Five Thousand ($5,000.00) Dollars, and upon settlement of this contract the same shall be paid to the Seller." His duties as an escrowee did not relate to other details attendant to the [*532] consummation of the contract of sale, his responsibility being to see that the $5,000 was available for payment to the vendors at the date of settlement. There is no evidence in the record that he was not prepared to do this.  Paape's retention of the check in the file for many months was certainly a censurable business practice, n1 however, there is nothing in the record to show that there were insufficient funds in the bank to cover the check[***14] on the date it was delivered in escrow or on the proposed settlement date.

n1 Code (1957), Article 56, § 227A (1968 Repl. Vol.), in the absence of instructions to the contrary, now requires the broker or agent to deposit such funds "expeditiously."

   The freedom of action given the agent after the termination of the agency was set forth by this Court in Hardy v. Davis, supra:

   "The rule is that after the agency has terminated, the obligations the agent bears during the agency, including the duty of disclosure, generally no longer [**607]exist.  The books spell out the accepted rule that an authority created to perform a specific act or accomplish a particular result is terminated when the purpose which called it into being is achieved.  Mechem, Agency (2nd Ed.), Secs. 552b, 553.  Thus, where an agent, employed to sell property, has procured a purchaser and the sale has been made, absent particular agreement to the contrary or unusual circumstances, the agency is terminated and the agent is free[***15] to act for himself or the opposing party as long as he does not hinder, delay or interfere with the sale which has been entered into by the seller and the purchaser. An instruction to this effect, in a case where a broker originally employed by the seller represented the purchaser at the settlement, was approved in Mayne v. Eig, 215 Md. 270, 282 because the instruction '* * * relates only to actions subsequent to the signing of the contract.' In Owners Realty Co. v. Cook, 123 Md. 1, 4, the broker was a lawyer and the buyer he produced was his father.  After the contract was signed, the [*533]broker examined the title as lawyer for his father, the purchaser. He raised several questions which did not appear unreasonable or designed to avoid the sale.  The general rule against dual representation during the agency was recognized but found inapplicable because when the contract was reduced to writing 'The sale was then virtually accomplished and the agency of the appellee for that purpose was at an end.  There was no subsisting or continuing duty with which his subsequent service to the purchaser was in conflict.' The Court concluded: 'The agencies he accepted for the parties[***16] to the sale were successive and not simultaneous.'

   "Cases in other states that hold the agency terminates when the contract is signed and that the agent is thereafter free to act in ways that might otherwise be adverse to his principal, include Moore v. Stone, 40 Iowa 259; Short v. Millard, 68 Ill. 292; Cockrell v. Maxcey (Tex. Civ. App.), 202 S. W. 2d 293; Jones v. Allen (Tex. Civ. App.), 294 S. W. 2d 259." 223 Md. at 233, 164 A. 2d at 283.
 
See also Silverman v. Kogok, Adm'r, 239 Md. 71, 76, 77, 210 A. 2d 375 (1965); Buffington v. Wentz, 228 Md. 33, 178 A. 2d 417 (1962). We agree with the lower court's finding that there was no duty breached by Paape that he owed to the Searses.

   iii

   Finally, the appellants contend that the appellees did not exercise proper diligence in obtaining the rezoning of the property.  The application for rezoning was made within the time specified in the contract of sale and due to conditions beyond the control of the purchaser, the zoning matter never came on for hearing.  After the change in the county government, with the attendant changes in zoning procedures, the Planning and Zoning Officer on May 21st, 1965 notified[***17] the original purchaser that new applications were to be submitted but qualified the notice, stating: "we regret that we cannot accept these applications until the office of the Zoning Hearing Officer is in operation." Again, on July 1, 1965 another notice was sent [*534] stating that a considerable backlog of pending cases existed and that the Zoning Hearing Officer would reserve "your number for 30 days from the date of this writing." In September of 1965 the vendors were orally notified that the purchaser waived the rezoning requirement, an election given it under the contract, and that it was prepared to make settlement. Although, the agreement provided that time was of the essence of the contract, we, as did the lower court, find no evidence of any culpable delay attributable to the purchaser.

   In the suit brought by the appellants to void the contract of sale, the burden of proof rested with them.  Dormay [**608] Construction Corp. v. Doric Co., 221 Md. 145, 156 A. 2d 632 (1959); Crowther v. Hirschmann, 174 Md. 100, 197 A. 868 (1938). We think the appellants failed to meet this burden and that the chancellor properly dismissed their bill.

   In the purchaser's[***18] suit for specific performance we find that the evidence supported the enforceability of the contract and the chancellor properly decreed its specific performance.

   Decree affirmed, appellants to pay costs. 

EASTHAM v. YOUNG 
No. 300, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 516; 243 A.2d 559; 1968 Md. LEXIS 752

 July  3, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing or in Alternative to Amend Mandate Filed July 18, 1968. Motion for Rehearing Denied and Mandate Amended July 29, 1968.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Order appealed from affirmed, and case remanded, costs to abide the final result.

CORE TERMS:  venue, specific performance, appearance, injunction, personal property, general appearance, raising, reside, resident, territorial jurisdiction, preliminary injunction, irreparable injury, motion to vacate, demurrer, buyer, mortgage, waived, voluntary appearance, motion to quash, declaration, appearing, summons, joined, lived, subject matter, power to act, land lies, irreparable, chancellor, furniture

COUNSEL: Karl G. Feissner, with whom was William L. Kaplan on the brief, for appellant.

   Submitted on brief by Herbert D. Morrison and Samuel M. Ivrey for appellee.

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

OPINIONBY: HAMMOND

OPINION: [*517] [**560] Mrs. Eastham, a resident of Montgomery County, complains that she can not be sued in Anne Arundel County, as the trial court held she could be, to compel specific performance of a contract for the sale of real estate she owned in Anne Arundel County, and furniture and garden and boating equipment thereon, and asks us[***3] to free her from the toils of the Circuit Court for Anne Arundel County.

    Reversal is sought on two theories.  Mrs. Eastham says that a suit to compel specific performance of a contract to convey real estate is properly brought against a sole defendant only in the county of his residence and that she timely objected to venue in Anne Arundel County.  Judge Sachse held that Code [*518](1966 Repl. Vol.), Art. 16, § 100, gave the Anne Arundel County Court power to act under its provision that a resident of another county can be sued in the county where the land lies if, inter alia, the suit is "to enforce any [**561]charge or lien" on the land. n1 The chancellor, having decided that Mrs. Eastham had waived venue, did not have to decide the point for the Circuit Court for Anne Arundel County had basic jurisdiction of the subject matter and acquired jurisdiction of the person of Mrs. Eastham when she made a voluntary general appearance.

n1 Other instances permitting such suit under § 100 are defendants who reside in different jurisdictions, lands partly in one and partly in another jurisdiction, suits for partition, and proceedings to foreclose or collect mortgages.

[***4]

   If we had to decide the point we would incline to the view that an ordinary suit for specific performance against a sole defendant must be brought in the county wherein that defendant resides, rather than in the county where the land lies if it lies in a different county.

   Ordinarily one is entitled to be sued only in the county of his residence, in equity or in law, Pinkston Tr. v. Higham, 224 Md. 513, 518. ("The rules as to the place where a defendant may be sued applicable at law (Code (1957), Art. 75, § 75) are also generally applicable in equity.") This Court held in Dorsey v. Omo, 93 Md. 74, 83, that a bill to compel performance of a contract to assign a mortgage was not authorized to be brought against a sole defendant in the county where the mortgaged land lay under § 100 (then 72) of Art. 16, but must be brought in the county where the sole defendant lived. The opinion spoke of jurisdiction and lack of jurisdiction but it is apparent that territorial jurisdiction or venue was involved and not fundamental or basic jurisdiction of the subject matter. The Court said:
 
"Now in none of this legislation is there an intimation that a bill for the specific performance[***5] of a contract could be filed out of the county where the sole defendant resided and in the county where the land is located, simply because the subject-matter of the contract [*519] was a lien on the land situated beyond the limits of the county where the defendant lived. Under sec. 76 [now § 104] it is clear that the Circuit Court for Howard County [county of defendant's residence] would have had jurisdiction to entertain this bill and to decree specific performance of the contract set up and relied on therein; and as there is no proceeding here for partition, for foreclosure, for a sale under a mortgage or for the enforcement of a lien or charge on land sec. 72 [now § 100] does not give either exclusive or concurrent jurisdiction to the Circuit Court for Prince George's County [location of the land].  Having no jurisdiction over the person of the defendant because the case does not belong to any of the classes where jurisdiction is given though the defendant does not reside in the county where the bill is filed, the Circuit Court for Prince George's County had no authority to pass the decree requiring the mortgagee, Alverda S. Dorsey, to perform[***6] the contract * * *."

   That generally an equity court which has jurisdiction over the person of a defendant may compel him to convey land in another jurisdiction is established by Donigan v. Donigan, 208 Md. 511, 522, and the authorities therein set forth at some length.  See also 27 Am. Jur. 2d Equity § 17 (1966) and § 104 of Art. 16 of the Code (1966 Repl. Vol.).

   In Evans v. Zouck, 172 Md. 12, 14, Judge Offutt for the Court said:

   "The territorial jurisdiction of a court of chancery, unless enlarged by statute, is limited to the area within which its process is effective (21 C. J. 149), so that 'no jurisdiction whatever exists unless the parties to be affected are by service of process or voluntary appearance within the jurisdiction and subject to the control of the court, or the res is within the jurisdiction.' * * * That principle, no doubt, underlay the decision in Dorsey v. Omo, 93 Md. 74, 80 * * *, [**562] that a resident of one county is not within the jurisdiction of the courts of another county."
 
[*520] See also Pinkston Tr. v. Higham, supra, 224 Md. 513, 519, where we said:
 
"It is apparent, we think, that Mr. Pinkston[***7] was sued in the proper county under those rules [referring to Code (1957), Art. 75 § 75, applicable in equity as well as at law, Evans v. Zouck, 172 Md. 12, 16, and Zouck v. Zouck, 204 Md. 285, 291]; but even if he had not been, his voluntary appearance would have cured such a defect, and there is no question as to such appearance both through his answer and his cross-bill long before he sought to attack the jurisdiction of the Circuit Court for Montgomery County.  * * * See Dorsey v. Omo * * * and comment thereon in Evans v. Zouck, supra * * *.

   "We hold that the Circuit Court for Montgomery County had jurisdiction over this suit * * *."

   Although the Circuit Court for Anne Arundel County may not have been able to compel Mrs. Eastham's appearance before it in Young's suit against her, she waived objection to that court's territorial jurisdiction or venue and could not, after that waiver successfully challenge the court's right to proceed with the case and determine the merits.  The authorities hold that the Code provisions exempting one from suit out of the county of his residence confers upon him a privilege which he waives by appearing in another county without [***8]timely objecting to venue. Colt Co. v. Wright, 162 Md. 387; Ireton v. Baltimore, 61 Md. 432; Kisner v. State, 209 Md. 524, 534; Fisher, Admrx. v. DeMarr, 226 Md. 509, 515-18; McCormick v. Church, 219 Md. 422; Pinkston Tr. v. Higham, supra.

   The chronology was this.  On July 25, 1967, the buyer Young filed suit against Mrs. Eastham for specific performance and for $3,000 for out-of-pocket costs or, alternately, $10,000 damages, and for a preliminary injunction to restrain the removal or damaging of the personal property sold.  The bill alleged that the seller "has removed or allowed to be removed from the premises described certain of its furniture and furnishings which were to be included in the sale * * *," and that Mrs. [*521] Eastham had refused to honor the contract.  An affidavit of Young filed on August 7 supported the allegations of the bill and alleged that unless an injunction were granted in his opinion, "immediate substantial and irreparable injury will result before any adversary hearing can be held * * *."

   On August 9 the court granted a preliminary injunction to run for ten days against the damaging or removing of the personal property. [***9] On August 18 Mrs. Eastham moved the court to vacate the "Ex Parte Injunction issued without notice" on the grounds that:

   "1. The pleas filed herein raising the question of venue of this Court are valid, and would result in this action being dismissed.

   "2. The Court should not have granted the Ex Parte Injunction in that no affidavit gave 'specific facts' of what immediate, substantial and irreparable injury would result.

   "3. The Court made no effort to communicate with Defendant nor Defendant's Counsel, although said Counsel had been in touch with Counsel for Plaintiff.

   "4. Plaintiff's action is one for damages."

   On August 21, three days after the motion to vacate had been filed, Mrs. Eastham filed the pleading erroneously referred to in paragraph one of the motion to vacate as already filed.  It was titled [**563] "Motion Raising Preliminary Objection," and read:

   "COMES NOW the Defendant and moves the Court to dismiss this action in that the Defendant is sued out of the County in which she resides."
 
Supporting this pleading were an affidavit of Mrs. Eastham that:

   "Gladys D. Eastham, being first duly sworn, states that she is a resident of Montgomery[***10] County, Maryland, and that such vocation as she has is carried on solely in Montgomery County, Maryland, and none other,"
 
[*522] and Rule 323, Maryland Rules of Procedure, and Code, Art. 75, § 75 (as "points and authorities").

   On August 22 Young filed a motion for an interlocutory injunction incorporating by reference his earlier motion for a preliminary injunction and his affidavit in support thereof, and reiterating his allegation as to irreparable damage.

   On September 1 a hearing was had, at which Mrs. Eastham's lawyer appeared and argued her contentions, and on September 7 the court issued an order enjoining Mrs. Eastham as Young had prayed, denying her preliminary objections and granting leave to file an answer to the bill within twenty days.

   Mrs. Eastham appealed from the order of September 7, and filed a combined demurrer and answer, all on September 26.  The answer set up the defenses that there had been no meeting of the minds of the parties, and that there was duress and lack of certainty in the contract and improper joinder of equitable and legal claims.

   We conclude that on this state of the record there was a waiver of the defense of improper venue. Maryland[***11] Rule 124 a 1 provides that an appearance may be made by filing a pleading, and section c provides that the filing of a motion raising a preliminary objection will be treated as an appearance for the limited purpose for which the motion is filed.  Rule 323 provides that at the option of the pleader the defense of improper venue may be made by motion which "shall be filed before any other pleading on behalf of the party making the motion * * *." We said in Mangione v. Braverman, 234 Md. 357, 362: "The question of venue should be raised by preliminary motion, Md. Rule 323 a or by dilatory plea * * *." We held in McCormick v. Church, 219 Md. 422, that if a defense available under Rule 323 is asserted as part of a pleading which goes to the merits, there has been a general appearance which constitutes a waiver of the preliminary objection, and at pages 428-29 said:
 
"But the other defenses raised by that portion of the motion which sought to strike the declaration clearly went to the merits, and were in the nature of special pleas, which were improperly joined in the motion to quash. In Glenn v. Williams, 60 Md. 93, 124, it was [*523] said that a plea in abatement [***12]cannot be joined with a plea in bar, and if such is done the latter will take precedence.  * * * Rule 323 contemplates that no pleading (including a motion) shall be filed before a motion under that Rule.  We have held that even if it be shown that a person was not properly summoned, such right may be voluntarily waived, and that upon the filing of a general issue plea, no further action is necessary in reference to a writ of summons. * * *

   "* * * [Thereafter, referring to Md. Rule 124 c, the Court continued:] In Keen v. Keen, 191 Md. 31, 41, we recognize that a special appearance may be filed for the purpose of questioning the jurisdiction of the court, or if it be desired to quash summons or other proceedings, but we said: 'if an appearance, no matter how characterized, is in effect a general appearance, it will have the result of binding the party appearing in subsequent proceedings in this case.' In the instant [**564] case the assertion of defenses on the merits, in the motion to strike the declaration, was an invocation of the jurisdiction of the court, even though, procedurally, it was improperly coupled with the motion to quash. We think the filing of the motion[***13] operated as a general appearance and constituted a waiver of the preliminary objection.  A person who denies that a court has jurisdiction and asks relief on that ground cannot ask anything of the court which is inconsistent with the want of such jurisdiction. * * * The cases cited in a note, 111 A. L. R. 925, 929, support the statement that 'It is generally held that moving to strike a pleading from the files is asking for such relief that it operates as a waiver of any objections to the court's lack of jurisdiction.' See also note 31 A. L. R. 2d 262, and 3 Am. Jur. Appearances, § 19, p. 793, and supplement."
 
See also, Capron v. Mandel, 250 Md. 255, 241 A. 2d 892 (1968).

   In the case before us Mrs. Eastham concededly intended to [*524] proceed under Rules 124 c and 323.  Had she filed her "motion raising preliminary objection" before she filed any other pleading, her appearance would have been only for the limited purpose of challenging venue. However, she filed that motion three days after she filed her motion to vacate the injunction and in the first motion she raised defenses on the merits, such as lack of facts to support the granting of the injunction[***14] and that the action is one for damages, which are inappropriate unless made on the premise that the court has power to act in the case before it.  In our view, Mrs. Eastham's first pleading did not restrict her appearance to raising the limited question of venue (to which she referred generally) but, rather, to the merits and, therefore, she waived her right to object to venue later, under the rules and cases cited above.

   We think the injunction should not have been issued.  The only allegation of fact is that certain personal property had been removed.  As to the future, the only allegation is that in the opinion of the buyer there will be irreparable injury in regard to the personal property if the injunction is not issued. There was no allegation that the personal property remaining was unique or irreparable or that its value in money could not be measured or recovered by the buyer if she were found entitled to it.

   In remanding the case for trial we do not give any indication as to whether the chancellor should or should not order specific performance of the contract.

   The appellee moved to dismiss the appeal because the answer of the appellant to the bill had not been filed[***15] before the appeal was entered, as Code (1968 Repl. Vol.), Art. 5, § 7, requires.  The appellant's demurrer and answer and her appeal were filed together on September 26, and the demurrer and answer are part of the record before us.  We think that the requirements of the statute were sufficiently gratified.

   Order appealed from affirmed, and case remanded, costs to abide the final result. 

CAUSEY et ux. v. GRAY, et al. 
No. 246, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 380; 243 A.2d 575; 1968 Md. LEXIS 738

 July  1, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Orders affirmed, the costs to be paid by the appellants.

CORE TERMS:  division line, water, riparian rights, demurrer, navigable waters, riparian, decree, front, fill, overruling, accretion, raising, plat, equitable jurisdiction, oral agreement, river, proprietor, tract, pier, feet, von, fast land, equitable relief, subject matter, apportionment, ordinance, man-made, circle, riparian owner, coterminous

COUNSEL: Nicholas J. Fotos for appellants.

   Noah A. Hillman, with whom was Morris Turk on the brief, for appellees.

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

OPINIONBY: BARNES

OPINION: [*381] [**577] This appeal seeks a review of three orders of the Circuit Court for Ann Arundel County: (1) overruling a motion of the appellants raising a perliminary objection of want of jurisdiction in equity (Sachse, J.), (2) overruling a demurrer of the appellants to the bill of complaint filed by the appellees (Childs, J.), and (3) overruling a motion by the appellants for a rehearing and suspension of the final decree filed in the suit (Childs, J.).

   The bill of complaint, filed by Dorothy Gray and Alice V. Peters, appellees in this Court and owners of Lot 59, against Eugene W. Causey and Joyce Causey, his wife, appellants, [***3] owners of Lot 58, Genevieve K. von Ascheberg and River Club Estates, Inc. (defendants below but not appellants here) alleged that the plaintiffs owned Lot 59 with a frontage of 127.84 feet in a development called River Club Estates on Rhodes River, having acquired it by a duly recorded deed dated March 16, 1964, from Paul Johannes, a certified copy of the deed being filed as an exhibit.  It was further alleged that Mrs. von Ascheberg, a widow, had originally owned the tract of which Lot 59 was a part and had in 1950 conveyed the tract to River Club Estates.  Mrs. von Ascheberg had caused the tract to be laid out into lots and roads and the original plat was duly recorded.  Paul Johannes, the predecessor in title of the plaintiffs, had acquired Lot 59 from River Club Estates on January 15, 1963.

   The defendants, the Causeys, had acquired Lot 58 from River Club Estates on May 15, 1963.  The dwelling on Lot 58 was constructed by Johannes and was occupied by the Causeys in September, 1963.  Lot 58 adjoins the plaintiffs' Lot 59 on the south.

   [*382] Prior to the conveyance of Lot 59 to the plaintiffs by Johannes, the Causeys and Johannes are alleged to have entered into an oral arrangement [***4]whereby it was agreed that they would dredge in front of their respective properties and fill in a portion of the frontage of those properties. They also agreed that a drain pipe was to be located on Lot 59 near the division line of Lot 58 to extend through the fill area.  Johannes and the Causeys agreed to a division of costs between them and each paid the costs in accordance with the agreement.

   The dredging and the land fill were completed and the Causeys built a wooden retaining wall with a pier extending from the wall, as shown on a plat filed as plaintiffs' Exhibit 7.  It was further alleged that the plaintiffs were informed that Johannes and the Causeys agreed upon a division line through the newly created land between Lots 58 and 59 as a S. 16 degrees 00' 40" W line for a distance of 44.09 feet from the end of the division line between the two lots to a pipe set, but notwithstanding this agreement in regard to the division line, the Causeys now claim that the division line is an extension of the fixed division line between Lots 58 and 59 (S. 47 degrees 59' 40" W) for a distance of 45.40 feet to a pipe found.  It was alleged that the extension of the boundary line as claimed[***5] by the Causeys does and will wrongfully deprive the plaintiffs of the full use of [**578] their waterfront lot and their natural riparian rights incident to their ownership of their lot.  The claim of the Causeys is also alleged to be in breach of their agreement with Johannes in regard to the division line.

   It was further alleged that the plaintiffs had sought to settle the dispute in regard to the division line on an equitable basis by offering to create a new line with a bearing of S. 34 degrees 31' 55" W.

   It was also alleged that Mrs. von Ascheberg had wrongfully claimed the fill area and the area marked "Marsh" on Exhibit 7 as belonging to her and had either individually or through River Club Estates attempted to take charge of the area, convey it by deeds and place restrictions on it, notwithstanding the plaintiffs' claim to riparian rights.

   It was finally alleged that in order to prevent a multiplicity of actions, the Court should assume jurisdiction for the purpose [*383] of settling the rights of the parties with respect to the location of boundary lines and riparian rights.

   The plaintiffs prayed for a declaratory decree:

    (a) fixing a proper division line through[***6] the fill area;

   (b) settling the riparian rights of the plaintiffs in so far as challenged by Mrs. von Ascheberg and River Club Estates; and

   (c) granting other and further relief.

   All of the defendants raised a preliminary objection pursuant to Maryland Rule 323 a (1) for lack of jurisdiction on the ground that the jurisdiction of the cause of action was exclusively at law and not in equity in that disputed boundary lines and questions of title to land in possession of the alleged wrongful possessor were involved.  The Circuit Court (Sachse, J.) overruled the motion raising the preliminary objection on July 11, 1966.

   The defendants then filed a combined demurrer and answer to the whole bill of complaint.  The demurrer set forth the following grounds:

   1. The Statute of Frauds is a complete defense to the alleged oral agreement or agreements.

   2. The bill of complaint shows on its face that the plaintiffs are not riparian owners.

   3. There is no allegation that the line allegedly agreed upon was uncertain or in dispute.

   4. The bill of complaint shows on its face that the Causeys were in possession of the land claimed by the plaintiffs.  The answer admitted certain allegations, denied[***7] others, and asserted several defenses.

   The Chancellor (Childs, J.) took testimony and concluded that the alleged oral agreement had not been established by the evidence.  He concluded that the equity court had jurisdiction, that riparian rights were involved and that the trial court should proceed to apportion the land fill in an equitable manner, in accordance with the established rules, and declare the proper division line for the riparian rights of the owners of Lots 58 and 59.  The Chancellor set forth his findings and conclusions in a well-considered written opinion, overruled the demurrer and passed the final decree of May 16, 1967, on the [*384] merits in which he declared that Lots 58 and 59 shown on the Amended Plat of River Club Estates border on the waters of Rhodes River in Anne Arundel County and have full riparian rights, established the division line between those two lots over any land fill, decreed that the owners of Lot 59 (the appellees) pay the owners of Lot 58 (the Causeys) $42.30 for certain improvements and divided the costs equally between the parties.

   [**579] In order to understand more fully the factual situation, the contentions of the respective[***8] parties and the decree of the Chancellor, a plat has been prepared and the reporter is directed to print the plat as part of this opinion. n1 (See p. 394 infra.)

n1 The S. 34 degrees 31' 55" W. line which the plaintiffs alleged was offered as a basis for a possible settlement is not shown on the plat, as the offer of settlement was never accepted.

   The Chancellor in applying the rule of apportionment stated in Baltimore v. Baltimore & Philadelphia Steamboat Co., 104 Md. 485, 65 A. 353 (1906), and Mutual [**580] Chemical Co. v. Baltimore, 33 F. Supp. 881, infra properly determined the division line as follows:
 
"Using the plat of River Club Estates, it will be noted that the two lots face upon a shallow cove running from lot 58 through lot 59 inclusive.  Three lines which subtend this cove, disregarding its minor deviations, would consist of the following: (a) a line connecting the shore line termini of lot 59; (b) a line which extends the 108.38 foot line of lot 58 southerly; (c) [***9] a line which extends the 75.71 foot line of lot 56 northerly to intersect the extension of (b).  See attached diagram.  The resulting lines are nearly of equal length. Next, the center of a circle was located which circle would pass through the center points of the above three lines.  The center of such a circle was scaled and determined to lie in the river approximately 190 feet from the western conterminus of the dividing line between lots 58 and 59 on a bearing therefrom South 39 degrees West.  Insofar as the lots on this cove are concerned, lines running from their termini at the shore line to the center of the circle so described [*385] would proportionately divide land-fill placed between the original property lines and the water. The Court accordingly will decree this line to be the true division line across the filled area.  This will leave undisturbed the defendants' dock, and encompass only some eight and one-half feet of the bulkhead."

   After the filing of the decree, the Causeys on June 14, 1967, filed a petition for rehearing and suspension of the operation of the decree reciting that counsel for the defendants had suggested in argument that there might be an [***10] ordinance of Anne Arundel County applicable to the fixing of a boundary and that thereafter Section 35-28 of the Anne Arundel County Code was found and promptly disclosed to the Chancellor in chambers, but that the court in its opinion did not make it clear that this ordinance was considered in reaching its decision and further that the plaintiffs had not met the burden of producing sufficient evidence upon which the court could equitably apportion the riparian tracts. It was also alleged that the acquiescence by Johannes, as predecessor in title to the plaintiffs, in the divisional line created by the extension of the boundary line between the two lots, prevented a change in the division line by application of the doctrine of estoppel.  It was prayed that there be a hearing on the petition, that the decree be stayed and reconsidered and, in the alternative, that the location of the division line be reconsidered. The Chancellor on June 14, 1967, without further argument or a hearing filed a written memorandum stating why, in his opinion, the provisions of the Ordinance were not applicable and that there had been a proper determination of the division line on the evidence and authorities. [***11] The petition for a rehearing was denied the same day.  A timely appeal was taken by the Causeys from both the decree of May 16, 1967, and the order of June 14, 1967.  An appeal was also taken from the order of July 11, 1966, overruling the motion raising a preliminary objection.

    On July 16, 1967, the Causeys filed a petition for the transmission of the record on appeal without the transcript on the ground that the transcript was not needed in that the merits of the final decree would not be challenged in this Court but only the actions of the Chancellor in overruling the motion raising [*386] a preliminary objection, in overruling the demurrer and in the denial of the petition for a rehearing.  The Chancellor filed an order on July 18, 1967, directing that the record be transmitted to this Court without a transcript of the testimony on condition, as set forth in the petition, that there would be no challenge to the merits raised in this Court.

   [**581] The Causeys, as appellants, raised before us three questions already mentioned:

   1. Did the Chancellor err in denying the motion of the appellants raising the preliminary objection that the equity court had no jurisdiction[***12] over the subject matter?

   2. Did the Chancellor err in overruling the demurrer to the bill of complaint?

   3. Did the Chancellor abuse his discretion in denying the relief prayed for in the petition for rehearing?

   We have concluded that these questions should be answered in the negative and that we should affirm the orders of the lower court.

   1.

   The Causeys earnestly argue that the equity court will not determine a question of title to land if the defendant is in possession of the disputed land because the remedy at law by way of an action of ejectment or of trespass quare clausum fregit is a full, complete and adequate remedy which eliminates the necessity for intervention by the chancery court.  It is further contended that the present case is primarily a boundary dispute involving the determination of a question of title and hence there is no equitable jurisdiction. As Judge Childs aptly stated in his opinion in the lower court: "This argument is an over-simplification of the problem."

   It is correct, as the Causeys argue, that ordinarily the equity courts will not decide matters of title when the defendant is in possession of the land involved in the dispute.  See Barnes [***13]  v. Webster, 220 Md. 473, 475, 154 A. 2d 918, 920 (1959), and cases cited in the opinion in that case.

   This general rule, however, is not applicable when there is a dispute in regard to new land, either created by accretion or man-made, added to fixed land on navigable waters. When the riparian rights of the owners of the fixed land bordering navigable [*387] waters is involved, equitable apportionment cannot be obtained in a court of law.  For this reason, the remedy at law is not adequate and the equity courts in this State have entertained equitable jurisdiction to afford this equitable relief. See Classen v. Chesapeake Co., 81 Md. 258, 31 A. 808 (1895).

   It should be kept in mind that the "title" of private owners to "riparian land" is created quite differently from the title to fixed land.  It is well established that the title to land under navigable water is in the State of Maryland, subject to the paramount right of the United States to protect navigation in the navigable waters. Smith v. Maryland, 18 How. (59 U.S.) 71, 15 L. Ed. 269 (1855); Day v. Day, 22 Md. 530, 537 (1865); Smoot Sand & Gravel Co. v. Columbia Granite & Dredging Corp., 146 Md. 384, [***14] 388, 126 A. 91 (1924). The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.  When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a "franchise -- a vested right, peculiar in its nature but a quasi property of which the lot owner cannot be lawfully deprived without his consent." B & O R. R. Co. v. Chase, 43 Md. 23, 36 (1875). When the lot owner makes improvements in front of his lot, complete title then vests in him in the improvements provided it is in front of his lot and does not appropriate the riparian rights of his neighbors.  B & O R. R. Co. v. Chase, 43 Md. at 36-37.

   The first statute in Maryland in regard to the right of riparian owners of land contiguous to navigable waters in improvements[***15] in waters in front of their land was passed [**582] by the General Assembly in 1745, when Maryland was still a Proprietary Colony.  See Chapter 9 of the Laws of 1745.  By this Act, it was provided that "all improvements of what kind soever, either wharfs, houses or other buildings, that have or shall be made out of the water, or where it usually flows (as an encouragement [*388] for such improvers) be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever." See Dugan v. Mayor & City Council of Baltimore, 5 G. & J. 357, 367-68 (1833); Wilson v. Inloes, 11 G. & J. 351, 358-59 (1840); Casey v. Inloes, 1 Gill 430, 501-02 (1844); B & O R. R. Co. v. Chase, supra; Baltimore v. St. Agnes' Hospital, 48 Md. 419 (1878).

   There were important statutory changes in 1862, when the General Assembly passed Chapter 129 of the Laws of 1862, portions of which now appear as Code (1957) Article 54, Sections 45, 46 and 48.

   These sections provide as follows:
 
"§ 45.  Accretion to land on navigable river.

   The proprietor of land bounding on any of the navigable waters of this State shall be entitled to all accretions to said land[***16] by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable."
"§ 46.  Right to make improvements in front of land on navigable river.

   The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates.  But no such improvements shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made."
"§ 48.  Patent not to affect riparian rights, nor issue for land covered by navigable waters.

   No patent hereafter issued out of the Land Office shall impair or affect the rights of riparian proprietors, as explained and declared in §§ 45 and 46; and no patent shall hereafter issue for land covered by navigable waters."

   [*389] An excellent and comprehensive history[***17] of the Maryland statutory law and of the cases construing those statutes appears in Judge Coleman's opinion in Mutual Chemical Co. of America v. Mayor and City Council of Baltimore, 33 F. Supp. 881 (D. Md. 1940) and in a more abbreviated form in Mayor & City Council of Baltimore v. Crown Cork & Seal Co., 122 F. 2d 385 (4th Cir. 1940) affirming in part and reversing in part the decree in the Mutual Chemical Co. case.  It would unduly prolong this opinion to give that most interesting history here.  It is sufficient for the present case to observe that the Mutual Chemical Co. case was filed in the Federal Court on the basis of diversity of citizenship and Maryland law was applied.  The District Court's decree in that case was reversed in part so that the trial court could give additional equitable relief to other riparian owners by way of equitable determination of their division lines from the terminus of their lot lines to the pier line established in the Patapsco River by the United States.  There was no suggestion in the case in the District Court or before the Fourth Circuit on appeal that equitable jurisdiction did not exist because of an adequate remedy[***18] at law, although the City of Baltimore did challenge the jurisdiction of the District Court on other grounds.

   In our opinion equitable jurisdiction is established when the apportionment of riparian rights or man-made or filled land in navigable waters is the relief prayed.  [**583] The Supreme Court of Appeals of Virginia is of the same opinion.  See Cordovana v. Vipond, 198 Va. 353, 94 S. E. 2d 295, 65 A.L.R.2d 138 (1956).

   In Cordovana, the suit was between coterminous owners of lots on the Lafayette River, a navigable river in the Commonwealth of Virginia.  As in the case at bar, the exhibits showed that the course of the river was irregular. The Chancellor decreed a division line by extending the course of a divisional line of one of the lots.  In reversing the decree, Mr. Justice Whittle said, at 198 Va. 357-8, for the Supreme Court of Appeals of Virginia:

   "A riparian owner is entitled, in conformity with these (riparian) rights to have the extent of his enjoyment [*390] upon the line of navigability of the watercourse determined and marked, and his boundaries defined.  The right is based upon principles of equity and a court of chancery is the proper [***19] tribunal to make the apportionment and to determine the boundaries between coterminous owners.
"* * * We said in Grover v. Foster, 94 Va. 650, 651, 652, 27 S. E. 493, that * * *: 'In making the apportionment the prime object, upon plain principles of justice, should be to give to each proprietor of the shore, and as directly in his front as practicable, a parcel of land under the water of a width at its outer end upon the line of navigability proportioned to that which it has at the inner or shore end.  Wonson v. Wonson, 14 Allen (Mass.) 71; and Gould on Waters §§ 162, 163.'" (Emphasis supplied.)

    The law generally requires the equitable division of accretions or man-made fill between coterminous owners.  See Farnham, Waters and Water Rights (1904) page 2481; Gould, Law of Waters (1900), § 162; Annotation: "Apportionment and division of area of river as between riparian tracts fronting on the same bank, in absence of agreement or specification." 65 A.L.R.2d 143, 147, 183-188, 193-194; 56 Am. Jur. Waters, § 274, pages 727-730, § 463, pages 876-877; 65 C.J.S. Navigable Waters § 111 pages 341-342.  The Chancellor properly denied the motion raising the[***20] preliminary objection that the equity court had no jurisdiction over the subject matter.

   2.

   The Chancellor also properly overruled the demurrer to the bill of complaint. Our holding that there was jurisdiction in equity to declare the proper division line between Lots 58 and 59 with regard to the land fill indicates that declaratory relief was proper and, in our opinion, the allegations of the bill of complaint and the attached exhibits indicated that the owners of the two lots were riparian owners who were entitled to a declaration in regard to the proper division line. The Causeys also challenged the sufficiency of the allegations of paragraphs 8, 9, 11 and 12 of the bill of complaint setting out the alleged [*391]oral agreement in regard to the division line and other matters, principally on the ground that the Statute of Frauds was a complete defense. Assuming, arguendo, that this construction were correct, it would not justify the sustaining of the demurrer to the whole bill of complaint, as it is well established that a demurrer to an entire bill of complaint must fail if, eliminating any portion of it that may be defective, enough remains to present a sufficient[***21] ground for equitable relief. Smith v. Smith, 216 Md. 141, 145, 140 A. 2d 58, 60 (1958); see also Jackson v. Cupples, 239 Md. 637, 641, 212 A. 2d 273, 275 (1965).

   Even in regard to the paragraphs of the bill of complaint concerning the alleged oral agreement, the allegations present a case for declaratory relief as a justiciable issue is raised.  It is immaterial to the granting of declaratory relief that the court might possibly rule against the plaintiff and declare that the oral contract was unenforceable because of the provisions of the Statute of Frauds.  As Judge Prescott, for the Court, stated in Shapiro v. Board [**584]of County Comm'rs for Prince George's County, 219 Md. 298, 302-03, 149 A. 2d 396, 398-99 (1959):

   "It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action.  Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the[***22] ultimate ruling may be unfavorable to the plaintiff.  The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree. 1 Anderson, Declaratory Judgments, Section 318."

   It may be added that, in any event, the Causeys suffered no [*392] injury from this portion of the Chancellor's ruling, as the Chancellor found from the evidence that the alleged oral agreement had not been established.

   3.

   Finally, we are of the opinion that the Chancellor did not abuse his discretion in denying the relief prayed for in the petition for a rehearing timely filed pursuant to Maryland Rule 690.

   The principal ground for the rehearing was whether a provision of the Zoning Ordinance of Anne Arundel County, Section 35-28 of the 1957 Anne Arundel County Code, was applicable and preempted the Chancellor's power to establish the riparian division line in[***23] this case.  This section provides:

   "Sec. 35-28 Piers, wharves and mooring piles.

   Piers, wharves, mooring piles and all structures proposed to be located below the mean low water line shall be placed within lines extending at right angles to the main course of the stream or river from the land on which they abut, such right angles to start at the intersection of the side property lines with the mean low water line.  Where in the opinion of the zoning official this regulation would cause unusual hardship, he may permit all such structures to be located within the extensions of the last course of the side property lines into the water; or, if this is impracticable, he shall require all such structures to be placed so as to cause as little interference from width and length to neighboring properties as is reasonably practicable, subject to appeal to the board of appeals.  (7-1-52 as amended to 11-23-54, § 1.)."
 
These contentions go to the merits of the case, which we will not consider on the denial of a motion for a reargument, or in the absence of the transcript of the testimony.  The only issue before us is whether the Chancellor abused his discretion in denying the motion. [***24] Holcomb v. Fender, 203 Md. 480, 101 A. 2d 814 (1954); see Leitch v. Anne Arundel County, 248 Md. 611, 237 A. 2d 748 (1968).

   [*393] The Causeys contend that the Chancellor abused his discretion in overruling the petition for a rehearing without having had a hearing on the petition as requested by the Causeys in the petition.  As the principal ground for the petition had already been raised at the argument on the merits (even though the provisions of the ordinance were later submitted to the Chancellor in chambers, and found not to be applicable) and the other points were sufficiently stated in the petition itself, we [**585] are of the opinion that there was no abuse of discretion in the prompt ruling on the petition for rehearing by the Chancellor without further argument.  See Holcomb v. Fender, 203 Md. 480, 487, 101 A. 2d 814, 817 (1954).

   Orders affirmed, the costs to be paid by the appellants.

   [*394] [SEE ILLUSTRATION IN ORIGINAL] 

CONOVER v. CONOVER 
No. 258, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 322; 242 A.2d 481; 1968 Md. LEXIS 730

 June  7, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  alimony, decree, permanent alimony, divorce, awarding, abused, physical condition, ability to work, lived together, compensate, destroyed, fault, matrimonii, marriage, vinculo, retired

COUNSEL: B. Eugene Collins, with whom[***2] were Harry D. Hughes and Collins & Hughes on the brief, for appellant.

   C. Edward Hartman, II, with whom were Hartman & Crain on the brief, for appellee.

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

OPINIONBY: MARBURY

OPINION: [*323] [**481] This appeal is from a decree of the Circuit Court for Anne Arundel County by Judge Childs granting the appellant, Paul J. Conover, a divorce a vinculo matrimonii from the appellee, Esther A. Conover, on the ground of voluntary separation for the statutory period.  The decree also ordered that the plaintiff pay the defendant $135 per month as permanent alimony; that he pay the defendant's counsel fees of $300; and that he pay the costs of the proceedings below.  The appellant appeals only from that part of the decree ordering him to pay $135 per month as permanent alimony. The Conovers were married on November 10, 1956.  At that time both were members of the Marine Corps.  No children were born of the marriage. Mrs. Conover resigned from the service at the request of her husband on April 9, 1962.  Mr. Conover retired from the Corps during the[***3] summer of 1964 and in December of 1964 the couple separated.  On November 16, 1966, almost two years after the separation, Mr. Conover filed a bill of complaint seeking a divorce a vinculo matrimonii and on January 26, 1967, Mrs. Conover filed a cross bill praying for alimony, maintenance, and support.

   The question now before us is whether the trial judge abused his discretion in awarding the wife permanent alimony in the amount of $135 per month.  The basis for this award as found by the trial judge was that the income of the wife was insufficient to care for her needs.

   The testimony taken at the trial below shows that the appellant's yearly income is between $11,480 and $12,920.  It further shows that the appellee's income is $6,000 [**482] a year, or $325 per [*324] month after taxes. She testified that her expenses for rent, utilities, automobile payments, gasoline and food totaled $298 per month.  This list of fixed expenses did not include clothes, insurance, medical expenses, etc.  She testified that she would require $135 additional per month to meet normal living expenses and that even this amount would not fully compensate her for the loss of privileges[***4] she would suffer when she ceased to be the wife of a retired service man.

   In making the argument that the trial court abused its discretion the appellant relies on Code (1957), Article 16, Section 5, which reads as follows: "In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife's income is insufficient to care for her needs." Comparing the evidence in this case with the above statute we do not find that the trial court abused its discretion in awarding $135 per month to the appellee.  Taking into account the items not included in the list of fixed costs that were testified to below and the loss of government perquisites sustained by the appellee when the marriage terminated, $135 per month seems to be a reasonable figure to compensate her for her additional expenses.

   It has long been the law of this state that the awarding of alimony is within the sound discretion of the trial court.  Pet v. Pet, 238 Md. 492, 209 A. 2d 572; Lopez v. Lopez, 206 Md. 509, 112 A. 2d 466; Bradshaw v. Bradshaw, 189 Md. 322, 55 A. 2d 719.

   In Waters v. [***5]  Waters, 191 Md. 436, 62 A. 2d 250, this Court made the following statement, setting out some of the factors to be considered in granting alimony:
 
"In determining an award of alimony and whether 'the wife's income is insufficient to care for her needs,' the court should consider the husband's wealth and earning capacity, the station in life of the parties, age, physical condition, the ability to work, the length of time the parties have lived together, the circumstances leading up to the divorce, and the fault which destroyed the home.  . . . Also, of course, to be taken into consideration are the assets and income of the wife."

   [*325] Taking these factors into consideration in the instant case we find no abuse of discretion on the part of the chancellor.

   Decree affirmed, with costs. 

ESCHINGER v. BUS, et al. 
No. 137, September Term, 1967
 
Court of Appeals of Maryland
 
250 Md. 112; 242 A.2d 502; 1968 Md. LEXIS 706

 May  28, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Case remanded, without affirmance or reversal, costs to abide the ultimate result.

CORE TERMS:  zoning, zone, floating, rezoning, maritime, marina, reclassification, acres, spot, zoned, agricultural, zoning ordinance, special use, classification, neighborhood, repair, heavy, residential, establishment, superimposed, municipality, restrictive, waterfront, space, boat, map, special exception, residents, hearing officer, primary duty

COUNSEL: Malcolm B. Smith, with whom was Smith & Wohlgemuth on the brief, for appellant.

   W. Harvey Beardmore, with whom was Rouse & Beardmore on the brief, for appellees.

JUDGES: Hammond, C. J., and Horney, * McWilliams, Finan and Singley, JJ. Hammond, C. J., delivered the opinion of the Court.

* Horney, J., participated in the hearing of the case and in the conference in regard to its decision, but did not take part in the adoption of the opinion since he had retired from the Court prior to the filing of the opinion.

OPINIONBY: HAMMOND

OPINION: [*113] [**503] The appellant, Eschinger, owns one hundred acres of land fronting on Brewer's Creek, a tributary of the South River in [*114] Anne Arundel County.  In 1956 he was granted a rezoning of 1.44 acres at the waterfront from agricultural to heavy commercial to permit the building of a marina. The surrounding ninety-eight acres plus remained agricultural.

    In 1965 when he sought additional mooring spaces, Eschinger was told by the zoning authorities that he lacked space on his commercially zoned land to build an additional pier and, what to him was worse, that seven of his existing twenty-seven[***3] slips at the north end of the marina were beyond the commercial line and, therefore, illegal.  This irregularity, it developed, was due to the mistake of the surveyor who laid out the commercial area.

   Eschinger then sought rezoning to heavy commercial of the 0.21 acres occupied by the seven innocently illegal slips and also sought the same classification for 0.12 acres at the south end of the marina to permit the construction of twelve new slips, six of which he intended to use for boats awaiting engine repairs and six for rental to local boat owners who needed space and had requested it of him.

   The Zoning Hearing Officer denied the applications in December 1965.  The Board of Appeals concluded that Eschinger should have sought reclassifications to one of the two maritime districts, new classifications in the County, created by the County Commissioners on June 25, 1964, and remanded the matter for consideration anew by the Zoning Hearing Officer. Eschinger amended his applications to request the rezoning of the 1.44 acres from heavy commercial to Maritime B and of the 0.21 and 0.12 acres from agricultural to Maritime B.

   The Zoning Hearing Officer again denied the applications. [***4] The parties submitted the case to the Board of Appeals on the transcript and exhibits of the prior hearing and on September 30, 1966, the Board granted the requested rezoning. The protesting neighbors appealed to the Circuit Court and Judge Melvin reversed the Board, saying:

   "In granting the present rezoning to a Maritime B classification, the Board found '[T]here has been shown a specific need for extension of the existing marine services to the property zoned Agricultural, on the North and South boundaries of the property zoned [*115] Heavy Commercial.' Presumably this was an attempt to fit the rezoning under the category of legally permissible spot zoning. To do so there must be in the record evidence of such a change in the character of the neighborhood as to justify the reclassification."

   This does not seem to have been an entirely precise statement of the law.  In Alvey v. Michaels, 231 Md. 22, 27, which involved an Anne Arundel County marina, we said:

   "As to the question that this would be spot zoning legally permissible under the circumstances, we have held that such is legal when there is a need for a service in the area for the accommodation and[***5] convenience of the residents of the residential zone, such as grocery stores, drug stores, barber shops, etc.  Temmink v. Board of Zoning Appeals, 205 Md. 489, 495, 109 A. 2d 85. We do not find on the record that another marina within this area would come within this category.  Such a departure from the surrounding zoning is only allowed where [**504] there is an absence or insufficient service of such facilities in the area."

   The Board found, justifiably we think on the evidence before it, that there had been no mistake in the original zoning to heavy commercial, no change in the character of the neighborhood as far as commercial uses were concerned, but that since 1956 there had been a tremendous intensification of residential use in the neighborhood and a corresponding local growth in the ownership and use of boats as well as a similar growth in the County and State and that "there was evidence to prove need for extension of the subject facilities." The Board went on to find that:

   "There is no dispute that the subject area has had a rapid residential growth, despite the presence of an existing marina facility in the immediate area.

   "Maritime B District is a restrictive[***6] zoning classification, to meet a specific community need, and is proper zoning for this property.  It is, in fact, a dezoning of the Heavy Commercial zoning to a more restrictive [*116]classification, and therefore, a protection to future residential growth against the establishment of various other uses permitted in a Heavy Commercial zone.

   "There has been shown a specific need for extension of the existing marina services to the property zoned Agricultural, on the North and South boundaries of the property zoned Heavy Commercial."

   After his reference to whether the rezoning was permissible or impermissible spot zoning, Judge Melvin went on to say (in reference to Eschinger's argument and the Board's finding that there was a need for "additional services and facilities") that:
 
"In this court's opinion the evidence in the case, at most, shows that the 1.44 acres presently zoned Heavy Commercial satisfies a need for docking and engine repair facilities for the residents of the area.  The evidence is not sufficient, however, to warrant a finding that there is a need for additional rezoning to satisfy these needs."
 
Judge Melvin then analyzed the evidence at[***7] some length and drew inferences from it to support his conclusion.  It appears to us that he substituted his judgment for that of the Board on evidence that, at the least, would permit a finding either way, and drew inferences from the evidence that were contrary to those reasonably drawn by the Board, despite the fact that the law confers upon the Board the primary duty of determining facts and drawing permissible inferences.

   We choose to remand rather than reverse the case because the parties argued and the court decided the case without reference to the legal ground of the Board's decision.  The Board rested its decision on the new maritime zones created in 1964, finding need, and compatibility with the surrounding area. ("There is no dispute that the subject area has had a rapid residential growth, despite the presence of an existing marina facility in the immediate area.") Judge Melvin, in considering legal versus illegal spot zoning, made his decision on the theory that Anne Arundel County had only the traditional Euclidean [*117]zones dealt with in this context in Cassel v. City of Baltimore, 195 Md. 348, and Alvey v. Michaels, supra. The briefs of the parties[***8] in this Court dealt only with the mistake and change rule and spot zoning in the context of Euclidean zones, although Ch. 35 of the Code of Anne Arundel County, 1957 Ed. (as amended and so including the maritime zones) was in evidence.

   There is much to indicate that the 1964 maritime zones are floating zones. The recitals of these enactments declare that the Planning Board:
 
"is desirous of maintaining the Zoning Ordinance in a manner commensurate with the needs of a growing and dynamic metropolitan waterfront community * * * [and] the Board specifically finds [**505] the need for the establishment of maritime districts."
* * *
 
The 1964 amendment did not change the official zoning map of the County, and did not place any property in the new category.  Rather, the legislative plan created two new zones -- Maritime District "A" and Maritime District "B", which could be superimposed on existing zones anywhere on the waterfront. The ordinance provides that:

   "Maritime Districts A are intended primarily for areas bordering the navigable waters of Anne Arundel County where facilities can be located for launching, mooring, storage of and making of light repairs[***9] to water craft not exceeding twenty-six feet in overall length * * *.

   * * *

   "Maritime Districts B are intended primarily for land bordering the navigable waters of Anne Arundel County where facilities for the sale, construction, repair, storage, launching, berthing, securing, fueling, and general servicing of water craft of all types, as well as accessory uses will be developed."

   In each District there are minimum square feet area requirements, height limitations, requirements for paved and drained off-street parking areas sufficient to service a prescribed number [*118] of cars, prohibitions against parking on nearby public roads and streets, set back requirements, required screening off of more restricted zones, lighting restrictions, and specified numbers of toilet and lavatory facilities, including showers, meeting health department standards.

   Reno, Non-Euclidean Zoning: The Use of the Floating Zone, 23 Md. L. Rev. 105, 107 (1963), gives this description of a floating zone:

   "In recent years a new device in zoning has developed which provides the machinery for the establishment of small tracts for use as a shopping center, a garden apartment or a light industry[***10] in accordance with a comprehensive plan for the entire municipality, and at the same time leaves the exact location of each tract to be determined in the future as demand for a shopping center, a garden apartment or a light industry develops in a specific area.  This device is the creation of special use districts for these various uses, which at the time are unlocated districts, but which can be located by a petition of a property owner desiring to develop his specific tract for any of these special uses.  Such unlocated special zoning districts are popularly referred to as 'floating zones,' in that they float over the entire municipality until by application of a property owner one of these special use zones descends upon his land thereby reclassifying it for the special use. The zoning ordinance is carefully drawn so as to impose restrictive use limitations upon the owner in these special use zones in order to protect the adjoining residential areas. Usually there is a minimum lot requirement with large set-back restrictions for the structures, both from the streets and from the adjoining residences.  Also in the case of light industry, limitations exist as to architecture of [***11]the buildings with requirements as to landscaping."
 
Professor Reno points out (pp. 118-19-20) that:

   "In both the Rodgers case [Rodgers v. Village of Tarrytown, 302 N. Y. 115, 96 N. E. 2d 731 (1951)] [*119] and the Huff case [Huff v. Bd. of Zoning Appeals , 214 Md. 48] there was a complete system of established use districts covering the entire municipal area, with a single floating zone for a specialized use superimposed upon these established districts.  * * * Thus, in both cases where the floating zone device was upheld, there existed a comprehensive zoning plan for the municipality to which the floating zone was merely a special exception applicable to the entire plan, analogous to special exceptions applicable [**506]to individual zones. This raises the question as to whether the legality of the floating zone device is dependent upon the existence of an established Euclidean zoning system over which the floating zone is superimposed. * * *

   * * *

   "From these cases we can conclude that the most liberal courts still interpret the zoning power to mean Euclidean zoning with the creation of established territorial use districts.  The advent[***12] of the floating zone device creates a supplementary device similar to the special exception to give greater flexibility to the established use districts but cannot be used as a substitute for the accepted method of Euclidean zoning."

   For amplifications of the concept of floating zones and recognition of their validity and applicability, see Bigenho v. Montgomery County, 248 Md. 386; Tauber v. Montgomery County, 244 Md. 332; Beall v. Montgomery County, 240 Md. 77; Costello v. Sieling, 223 Md. 24; Huff v. Bd. of Zoning Appeals, 214 Md. 48.

   The Maritime Districts of Anne Arundel County would seem to fit the descriptions of floating zones given by Professor Reno and the cases cited. Upon remand the Circuit Court for Anne Arundel County will consider in the context of the zoning ordinance of the County as a whole, and determine the meaning and effect of the Maritime Districts zoning ordinance in relation to whether the reclassification of the Eschinger property was or was not permissible spot zoning as a floating zone. In this [*120] connection it will be desirable and perhaps necessary to consider the provision of the County Charter, 2 Anne Arundel County[***13] Code (1957), Appendix A, Sec. 535 (a) that the Zoning Hearing Officer:
 
"shall grant or deny [after conducting a public hearing] such reclassification in accordance with appropriate zoning regulations, but no reclassification shall be granted by the Zoning Hearing Officer except on the basis of an affirmative finding that there was a mistake in the zoning map or that the character of the neighborhood be changed to such an extent that the zoning map should be changed,"
 
first in relation to the following paragraph reading:

   "(b) Other authority of zoning hearing officer.  Subject to appropriate principles, standards, rules, conditions and safeguards set forth therein, the Zoning Hearing Officer may grant variances from and make special exceptions to the zoning laws, regulations, ordinances or resolutions,"
 
and further in relation to Sec. 602 (a) of the Charter authorizing the Board of Appeals to hear appeals from the action of the Hearing Officer on reclassifications, variances and special exceptions de novo, with no requirement that mistake or change must be found as a basis of rezoning.

   Case remanded, without affirmance or reversal, costs to abide [***14] the ultimate result. 

PHIL J. CORPORATION v. MARKLE, et. ux. 
No. 126, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 718; 241 A.2d 718; 1968 Md. LEXIS 657

 May  10, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed, the costs to be paid by the appellant.

CORE TERMS:  tenant, landlord, rent, lease, septic, leased, decree, apartment, clearly erroneous, declaratory relief, declaration, rental, prayed, pipe, counterclaim, water, supplemental relief, forcible detainer, grocery store, grace period, septic tank, supplemental, calculated, monetary, repossession, operable, plumber, toilet, repair, original petition

COUNSEL: Gerald Kunes, for appellant.

   Thomas A. Farrington, with whom were Hal C. B. Clagett and Sasscer, Clagett, Powers & Channing, on the brief, for appellees.

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

OPINIONBY: BARNES

OPINION: [*720] [**719] The appellant, Phil J. Corporation, tenant under a lease dated September 1, 1964, from the appellees George A. Markle and Holly Markle, his wife, landlords, of the property known as "Markle's Corner," challenges in this appeal a decree of the Circuit Court for Anne Arundel County (Sachse, J.), filed November 28, 1966, as amended on December 5, 1966, adjudging in a suit for declaratory and other relief that the septic system was adequate for the operation of the business of the tenant prior to January 15, 1965, and subsequent to February 15, 1965, that the tenant was entitled to possession of the leased premises on which the net rent due as of September 30, 1966, was $13,183.46 and granting leave to the tenant to remain in possession until, and to pay on or before, December[***4] 20, 1966, the net rental of $13,183.46 plus any rental which became due and was unpaid by December 20, 1966.

   The lease of September 1, 1964, is a long one containing 20 separate paragraphs by which the landlords leased to the tenant Markle's Corner, located at the southeast corner of the intersection of Maryland Route No. 198 and Brock Bridge Road in the Fourth Election District of Anne Arundel County, containing 12,771 square feet of land, more or less, with the improvements, for a ten year period beginning September 1, 1964, and ending August 31, 1974, for a rental of $84,000 payable at the rate of $700 a month.  Each monthly installment of rent "shall be and fall due and payable in advance on the first day of each and every calendar month throughout the term of this lease." There were provisions for a renewal term of five years commencing September 1, 1974, with a rental of $60,000 payable in monthly installments of $1,000, as well as an option provision for purchase at the end of the ten-year term at the fair market value of the leased premises.  Paragraph 4 of the lease provides:

   "4. Lessors shall furnish water and sewerage facilities from their home adjacent to the[***5] leased premises until such time as public sewer and water facilities are made available, at which time Lessees shall be obligated [*721]to pay for such facilities as charges are imposed for the use thereof."
 
Paragraph 6 of the lease provides:

   "Lessees shall make all repairs necessary to maintain the building in as good a state of repair as it is now, including all interior plumbing and heating installations, motors and wiring, but not including the roof, which shall be kept in good repair and maintenance by the Lessors.  Any repairs or improvements in the nature of alterations considered necessary and proper by Lessee, in furtherance of its restaurant business, shall be made at its expense, and at the expiration of this Lease, or any renewal thereof, shall revert to and become the sole and exclusive property of Lessors."
 
Paragraph 15 of the lease provides:

   "15. If Lessee shall fail or neglect to perform any of the terms, conditions or covenants on their part to be performed, Lessors hereby agree that Lessee shall have a grace period of fifteen (15) days within which to correct any such failure, but upon expiration of said days grace period, Lessors shall, [***6]without notice, have the right to enter upon said premises or any part thereof and repossess same and expel Lessee and any and all persons claiming under or through it, and remove any and all furnishings or articles stored upon premises, forcibly if necessary and at Lessee's expense, without being in any manner guilty of trespass or without prejudice to any remedies [**720] or rights which they might otherwise have at law or in equity for damages, breach of contract or arrear of rent."

   The lease also provided that the first floor of the leased premises would be used and operated by the tenant as a restaurant, including the sale of alcoholic beverages for consumption on or off the leased premises and that the second floor of the leased premises would be used by the tenant as an apartment or apartments with the furnishings presently contained therein, the [*722] tenant being entitled to sublet the apartment or apartments to tenants of its choice and to retain as its own the rents derived therefrom.

   The tenant entered into possession of the leased premises and made certain renovations preparatory to the operation of the restaurant business.  The tenant was late in its rental[***7] payments for October, November and December, 1964, and the rental payment for January, 1965, was over 15 days late. At this time the landlords advised the tenant that it had breached the terms of the lease, and that a further breach would result in the exercise by the landlords of their right of entry under the terms of the lease. The tenant, however, failed to pay the February, 1965, rent within the 15 day grace period provided by paragraph 15 of the lease and on February 18, 1965, the landlords filed a complaint for forcible detainer in the People's Court for Anne Arundel County asking that they be restored to the leased premises.

   On February 23, 1965, the tenant filed a bill of complaint for declaratory relief in the Circuit Court for Anne Arundel County in which it alleged, inter alia, that the landlords had failed to provide an adequate septic system, that the tenant was willing to "post the rent in escrow pending the correction of the septic system" and had so advised the landlords' counsel, but notwithstanding this offer the landlords had filed the forcible detainer action against the tenant. The bill of complaint asserted six prayers for relief:

   1. That the forcible[***8] detainer action be enjoined pending a hearing on the merits;

   2. That the tenant be granted possession of the premises pending a determination on the merits;

   3. That the payment of the pending month's rent and rent to become due be held in abeyance pending a hearing in regard to application of rent for installation of a septic system or payment into court as so directed;

   4. That the court decree declaratory relief granting the tenant continued possession and title to the leased premises as so determined by the agreement of the parties;

   5. That the court award the tenant "an appropriate amount of damages as so proved upon a hearing of this cause";

   [*723] 6. That the tenant have other and further relief.

   Upon a petition of the tenant filed on March 2, 1965, for temporary relief, pendente lite, the Chancellor passed an order for the landlords to show cause why the tenant should not be permitted to correct the existing septic system by the most economical and feasible method as permitted by the Anne Arundel Sanitary Regulations and apply the rent for that purpose.  The landlords answered this petition indicating a breach of the provisions of the lease by the tenant in not[***9] paying the rent. No relief was then granted by the Chancellor, but on April 7, 1965, pursuant to another petition for temporary relief, filed by the tenant, the Circuit Court enjoined the landlords from taking possession of the leased premises pending a hearing of the cause.

   In their answer to the bill of complaint, the landlords alleged that the tenant by withholding the rent required to be paid by the lease was "an arbitrary act on its part in breach of its obligation under the terms of the said agreement entitling the defendants [**721] (landlords) to repossession of their property by the rights of re-entry and repossession provided in the lease agreement of September 1, 1964." The landlords further alleged that "they are entitled to repossession of their property and damages to them by plaintiff's (tenant's) willful and arbitrary breach of its contractual obligations to them." The landlords prayed that:

   1. The lease be declared null and void because of the tenant's breach.

   2. The landlords be restored to possession of the leased premises.

   3. The landlords have other and further relief.

   On August 26, 1966 -- shortly before the hearing on the merits on September 15, 1966[***10] -- the landlords filed a motion for leave to file a supplemental counterclaim, reciting the accrual of rent of $13,300 plus interest, the claim having matured subsequent to the filing of the answer by the landlords. This was opposed by an answer by the tenant and on the same day the Chancellor passed an order reciting the proceedings, and indicating that to grant the motion would require that time be given the tenant to file various pleadings with possible further hearings which would "make it impossible to try the case on the day set." [*724] The Chancellor thereupon denied the motion of the landlords for leave to file a supplemental counterclaim.

   The case came on for trial on the merits on September 15, 1966, and elaborate testimony was taken.  The Chancellor wrote a well-considered and careful opinion, evaluated the testimony and concluded from it that the septic system was adequate except from the period January 15 to February 15, 1965, calculated the net amount rent due and later passed the decree, already mentioned, which is the subject of this appeal.

   The tenant makes three contentions before us:

   1. The Chancellor, under the pleadings in the case, and because of the [***11]nature of the suit seeking a declaratory judgment, should not have declared the rights of the landlords in regard to the rent due and entered a monetary judgment for the rent due.

   2. By denying the counterclaim of the landlords, the Chancellor was "estopped" from granting a monetary judgment for rent.

   3. The Chancellor was clearly erroneous in finding from the evidence that the septic system was operable.

   We are of the opinion that these contentions lack merit and the decree of the Chancellor will be affirmed.

   1.

   As we have already indicated, the tenant in his bill of complaint for declaratory relief also prayed for supplemental relief by the award of an appropriate amount for damages.  The tenant also prayed for other and further relief.  In their answer the landlords prayed for a declaration of nullity of the lease because of the alleged breach resulting from the failure to pay rent and for other relief.  The question of the payment or non-payment of rent because of the alleged inadequate septic system was an integral part of the "actual controversy" between the parties.  It is clear from the Uniform Declaratory Judgments Act, Code (1957), Article 31A and particularly Section [***12]1 that the "declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree."

   [*725] As Judge (now Chief Judge) Hammond aptly said, for the Court, in McNally v. Moser, 210 Md. 127, 141, 122 A. 2d 555, 563 (1956), a suit for declaratory relief involving a lease allegedly illegal as a violation of a zoning ordinance:
 
"The granting of the judgment for the rent due and unpaid at the time of the [**722]decision was proper.  Although its granting was not prayed in the original petition, further relief may be granted by the court either on the original petition for declaratory relief or on a subsequent motion.  Borchard, ibid., pp. 430, 431; Turner v. Manufacturers' Cas. Ins. Co., 206 Md. 601, 112 A. 2d 670."

   By praying for the allowance of damages, and for other relief, the tenant in the original bill of complaint presented in its pleadings the granting of supplemental relief. It is apparent that damages could only be calculated by off-setting past due rental payments.  It is clear that the declaration and supplemental relief need not be in favor of the plaintiff; [***13] it may be made in favor of the defendant as well.  See Case v. Comptroller of the State of Maryland, 219 Md. 282, 149 A. 2d 6 (1959).

   In our opinion, the issue in regard to the amount of rental due was raised by the bill of complaint and no subsequent motion to raise the issue was necessary. 

   The general rule in equity is that once equitable jurisdiction has attached, the equity court will give full and complete relief in order to avoid circuity of action, even though the relief ultimately given is relief ordinarily granted at law by way of a monetary judgment.  Dormay Construction Corp. v. Doric Co., 221 Md. 145, 156 A. 2d 632 (1960). See also Allview Acres, Inc. v. Howard Investment Corp., 229 Md. 238, 182 A. 2d 793 (1962).

   There is no reason, in our opinion, to depart from this important principle in equity suits involving declaratory relief.

   In addition, the entire issue in regard to the payment of rent and the amount due was fully tried in the trial court and argued without objection by the tenant. If the tenant otherwise might have had any objection to the resolution of this issue, it was waived.  Hamilton v. State, 225 Md. 302, 170 A. 2d 192 (1961); [*726] [***14] Basoff v. State, 208 Md. 643, 119 A. 2d 917 (1956); Wathen v. Pearce, 175 Md. 651, 664-5, 3 A. 2d 486 (1939).

   2.

   The tenant earnestly urges upon us that the filing by the landlords of a motion to file a supplemental counterclaim in regard to rent indicates that the issue was not already presented by the original pleadings and the denial of the motion by the Chancellor effectively removed the issue from decision in the case.  We do not agree.  In the first place, the issued was raised in the original pleadings, as we have indicated.  Secondly, the denial of the motion by the Chancellor was not on the basis that the issue was not raised in the original pleadings, but rather on the basis that the granting of the motion would cause additional delay so that the trial on the merits could not proceed as scheduled on September 15, 1966.  It is apparent from the course of the trial, the evidence taken without objection on the issue and the Chancellor's action on this issue in the decree, that the Chancellor was of the opinion that the issue was before the court for final determination.  In our opinion, the Chancellor properly acted in making the determination.

   3.

   We now come to the[***15] most important issue presented by the tenant. The tenant contends that the Chancellor was clearly erroneous in finding from the evidence that the septic system was operable. Maryland Rule 886 a defines the scope of our review of factual determination by the lower court when an action has been tried by the lower court without a jury as follows: "* * * the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of witnesses." The tenant recognizes that its burden is a heavy one to persuade us that the Chancellor's findings of fact were clearly [**723]erroneous and in our opinion the tenant has not met this burden.

   It would serve no useful purpose and would unduly prolong this opinion to set out in detail the conflicting evidence on which the Chancellor decided that but for the one month period between January 15 and February 15, 1965, the septic system [*727] was operable. It is sufficient to observe that a plumber produced by the tenant testified that when he completed his work for the tenant in January, 1965, the water from the apartment toilet[***16] backed up down stairs; he put coloring in the new downstairs toilet and it came out of a pipe on the State road; and, that he did not see how it was possible for the system to take care of the previously operated grocery store and filling station, it being his opinion that the septic system was inadequate for even a small family of three people.  A plumber, called to testify by the landlords, however, testified that he inspected the septic system on February 18, 1965, and that the system was clear.  A former tenant who operated a grocery store in the leased premises immediately prior to the lease to the tenant, testified for the tenant that the toilet and sink in the store were not used very much, but that the two upstairs apartments were rented, and during his five years of operation, he had no trouble with flushing or odor.  He testified that the septic tank was cleaned out once or twice a year and that he had never heard of any complaints from the apartment tenants. The proof also showed that the County Department of Environmental Health had no record of any refusal to grant a certificate of health in regard to the existing septic facilities, and indeed, the Department wrote a[***17] letter on December 20, 1965, to counsel for the landlords indicating that a Sanitarian of the Department had made an inspection and reported that the septic system was functioning properly.  Mr. Markle, one of the landlords, testified that when he returned from Florida in February, 1965, he found that the pipe near the building had been broken.  He removed a section of the pipe to clean it out toward the building and found that the pipe was solidly filled with grease, chunks of concrete, paper and rags like cheesecloth or dish rags.  After running the cleaner through the pipe, the water then ran into the septic tank. He then had the septic tank cleaned out and since that time the septic system had operated for the premises and for the trailer which is also rented by the landlords. He further testified that the grocery store and two apartments had used the system since 1949 until the lease to the tenant and that he had no trouble with the operation until the tenant took possession and complained that the system did not operate even before the business opened. [*728] He further testified that the water was of good quality, that he and his family drank it and that no one had ever[***18] complained of it except the tenant. There was other testimony which corroborated the testimony of Mr. Markle.  The Chancellor accepted the testimony offered on behalf of the landlords and concluded that the opinion of the plumber whose testimony was offered by the tenant was not well founded.  It is apparent to us that we cannot say that the findings of fact of the Chancellor were clearly erroneous.

   Decree affirmed, the costs to be paid by the appellant. 

KATSKI, et al. v. BOEHM, et ux. 
No. 121, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 568; 241 A.2d 129; 1968 Md. LEXIS 641; 5 U.C.C. Rep.Serv. (Callaghan) 49

 May  1, 1968, Decided

   PRIOR HISTORY: [***1]  
Four appeals in one record from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Orders affirmed; costs to be paid by appellants. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants challenged orders of the Circuit Court for Anne Arundel County (Maryland), which denied their motions to strike confessed judgments entered against them on bank notes payable to appellees.

OVERVIEW:  Appellants and one of the appellees were officers and stockholders of a corporation. Appellees advanced money to finance the company, and when the company had financial problems, appellees paid the company's debts in exchange for confessed judgment notes. The notes were endorsed by appellants in their individual capacities. When the monthly payments were not made, appellees caused confessed judgments to be entered against the company and appellants. Motions to vacate the judgments were filed and the trial court denied the motions. The appellate court affirmed holding that there were no issues of fact which should have been submitted to the trier of facts; that the controversy was capable of being decided as a matter of law; and that when the court denied the motions, it took such action as justice required.

OUTCOME:  Appellate court affirmed orders denying appellants' motion to strike confessed judgments entered against them on bank notes payable to appellees holding that there were no issues of fact which should have been submitted to the trier of facts and that the controversy could be decided as a matter of law. 

CORE TERMS:  payee, matter of law, holder, alteration, co-payee, confession, endorser, borrowed, presentment, salary, vacate, stock, lent, meritorious defense, liberally, material alteration, security agreement, confessed judgment, endorsement, struck, equitable jurisdiction, prudence, Maryland Rule, fiduciary relationship, fraudulent, stricken, vacated, printed, payroll, tenor
 
CORE CONCEPTS -  

Civil Procedure: Relief From Judgment: Motions to Alter & Amend
See Md. R. 645b.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
A judgment by confession possesses all the incidents, is supported by the same presumptions, and is entitled to the same faith and credit, as any other judgment, and that is so whether the confession is by the defendant in person or by another with his consent. But while that is true, the widespread and general practice of embodying, in promissory notes, warrants of attorney authorizing a confession of judgment for the amount thereof, together with counsel fees, lends itself too readily to fraud and abuse, and in Maryland at least such judgments are freely stricken out on motion to let in defenses.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
Although a motion to strike a confessed judgment must be supported by satisfactory proof of conditions which make such action necessary to serve the ends of justice, the court in dealing with it should be very careful to see that no improper advantage has been taken of the maker of such note in entering judgment.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
Courts of law exercise an equitable jurisdiction over judgments entered by confession upon notes and warrants of attorney, and it is necessary to justice that they should liberally exercise that jurisdiction, and may therefore, on application of the defendant, vacate them and permit him to make a defense on the merits, provided the proper showing of a meritorious defense is made.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
To be successful in moving to strike a judgment by confession, one must adduce evidence in support of his motion sufficient to persuade the fair and reasoned judgment of an ordinary man that there are substantial and sufficient grounds for an actual controversy as to the merits of the case. If he does so, he is deemed to have met the burden of showing he has a meritorious defense, without the necessity of showing he will eventually prevail.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
If the evidence presented by a defendant on a motion to strike a confessed judgment is such that persons of ordinary judgment and prudence could fairly draw different inferences from it, the controversy should not be decided as a matter of law but instead should be submitted to a trier of fact. If a meritorious defense is made out (by affidavits or testimony), the court should liberally exercise its equitable jurisdiction over judgments entered by confession and, on application of a defendant who prima facie shows such defense, vacate the judgment to permit a trial on the merits.

Commercial Law (UCC): Negotiable Instruments (Article 3): Liability of Parties
As a matter of law, no consideration is necessary for an instrument given in payment of or as security for an antecedent obligation of any kind. Md. Ann. Code art. 95B, § 3-408.

Commercial Law (UCC): Negotiable Instruments (Article 3): Indorsement
 The interest of officers and stockholders of a corporation, and their desire to keep the company in business are sufficient consideration to support an endorsement on a negotiable instrument.

Commercial Law (UCC): Negotiable Instruments (Article 3): Enforcement of Instruments
Under the proper circumstances, the Uniform Commercial Code allows incompetency to be raised as a defense against the holder of a note. Md. Ann. Code art. 95B, §§ 3-305, 3-306 (1957, 1964 Replacement Volume).

Commercial Law (UCC): Negotiable Instruments (Article 3): Enforcement of Instruments
Physical distress, debility or pain will not support an inference of mental incapacity unless so severe as to render a person unable to comprehend the nature of his act and its consequences.

Commercial Law (UCC): Negotiable Instruments (Article 3): Dishonor & Notice of Dishonor
See Md. Ann. Code art. 95B § 3-504(1).

Commercial Law (UCC): Negotiable Instruments (Article 3): Dishonor & Notice of Dishonor
Md. Ann. Code art. 95B, §§ 3-501(1)(b) and 2(a) provide that presentment for payment and notice of dishonor, unless excused, are necessary to charge an endorser but Md. Ann. Code art. 95B, § 3-511 2(a) provides that presentment or notice is entirely excused if waived by the party to be charged.

Civil Procedure: Parties, Claims & Joinder: Capacity of Parties
Md. R. 203a requires that an action shall be prosecuted in the name of the real party in interest.

Commercial Law (UCC): Negotiable Instruments (Article 3): Liability of Parties
See Md. Ann. Code art. 95B § 3-407.

Commercial Law (UCC): Negotiable Instruments (Article 3): Liability of Parties
The official comment to Md. Ann. Code art. 95B § 3-407 suggests that an alteration made by the holder reducing the rate of interest is not a material alteration.

Civil Procedure: Early Pretrial Judgments: Judgment by Confession
Under Md. R. 645b, on motion duly made to vacate a confessed judgment, the lower court shall take such action as justice may require. The court's discretion shall be liberally exercised. In the usual case, the elements of defense are made out in affidavits and if these amount to a prima facie defense or disclose an apparent conflict in evidence as to the merits of the case, the court should liberally exercise its equitable jurisdiction, vacate the judgment, and permit a trial on the merits.

COUNSEL: C. Edward Hartman, II, with whom were Hartman & Crain and Hillard P. Albert on the brief, for appellants.

   William J. Boehm, with whom was Louis M. Strauss on the brief, for appellees.

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

OPINIONBY: SINGLEY

OPINION:  [**130] [*570] SINGLEY, J., delivered the opinion of the Court.

   William J. Boehm, who is one of the appellees here and was one of the plaintiffs below, is a member of the bar, in practice in Annapolis, Maryland. In[***2] 1954, he was instrumental in forming Bay Electric Co., Inc. (the Company) which was engaged in the electrical contracting business and from 1954 to 1963 "more or less managed and operated the business from the administrative standpoint" and was the Company's executive vice president.

   At the time of the events which gave rise to this litigation, Mr. Boehm was vice president and director of Bay Electric; was receiving a salary which ranged from $50 to $200 per week; owned "eleven or twelve per cent" of the Company's stock; and [**131] acted as its counsel.  The appellants Clayton O. Katski and Jane Perry Katski, who were defendants below, were the president and secretary-treasurer respectively of Bay Electric.  Presumably, [*571] Mr. and Mrs. Katski owned the remainder of the Company's stock, although the record is silent on this point.

   By 1963, according to Mr. Boehm's undisputed testimony "[The] [Company] had progressed from a small corporation to a rather sizeable one, with contracts totaling close to $900,000.  * * * All during that period of time we had our financial problems.  I would advance any sums needed that the banks would not loan.  Unfortunately our company[***3] did not have a good bank credit and we were unable to get money * * * ."

   In 1963, Mr. Boehm guaranteed a $25,000 line of credit (not here involved) from Maryland National Bank to the Company at which time his salary was increased from about $75 per week to about $150 per week.

   In April of 1965, Mr. Boehm borrowed $3500 from Maryland National Bank, assigning his trust account as security, and lent to Bay Electric $3440 to cover unpaid checks for materials and payroll.

   On 31 July or 1 August 1965, Maryland National Bank lent Bay Electric Company, directly, $67,000 (not here involved).  As primary collateral the Bank took a security agreement from Bay Electric on all of its equipment.  Mr. and Mrs. Katski and Mr. Boehm guaranteed the loan, whereupon Mr. Boehm's salary was increased to $200 per week.  On about 1 October 1965, because of further financial difficulties, Mr. Boehm's salary was stopped and Mr. Katski's salary reduced to $150 a week.

   In November of 1965, Mr. Boehm and his wife borrowed $13,000 from Union Trust Company and Mr. Boehm then lent it to Bay Electric to meet payrolls.

   On 3 January 1966, Mr. and Mrs. Boehm borrowed another $7,000 from Union Trust Company[***4] and Mr. Boehm borrowed $20,000 from Annapolis Banking & Trust Company.  Mr. Boehm lent it all to Bay Electric to meet payroll taxes for which he, with other officers of the Company, was indirectly responsible.

   In August, 1966, Mr. Boehm learned that a check not covered by sufficient funds had been issued by Bay Electric for $18,000 to pay employees' withholding and social security taxes.  Mr. Boehm, who feared that he was again responsible for such [*572] taxes and possibly subject to criminal indictment for non-payment, borrowed $18,000 from Maryland National Bank and lent it to Bay Electric to cover the checks.  The earlier security agreement on equipment which had secured the $67,000 loan (by then reduced to $38,000) was re-executed to cover the $38,000 and the $18,000 and, as additional security, Mr. Boehm obtained for Maryland National Bank an assignment of Bay Electric's earned contract retainages, totaling $72,000.

   At the same time, Mr. Boehm noted that the Maryland National Bank security agreement did not cover Bay Electric's inventory valued at about $35,000.  Mr. Boehm as trustee took from Bay Electric a chattel mortgage for $30,000, as security for Mr. and Mrs. [***5] Boehm's $20,000 Union Trust loan and his $20,000 Annapolis Banking & Trust loan.

   No notes were ever taken by Mr. Boehm form Bay Electric, the only evidence of indebtedness being recorded on the books of account of Bay Electric.

   Mr. Boehm made inquiry of Mr. Katski in November, 1966, and was told that contract retainages were $75,000, and that Mr. Boehm's loans from the various banks had been reduced by Bay Electric as follows: the Annapolis Banking & Trust loan from $20,000 to $15,000; the Union Trust loan from $20,000 to $19,000, and the Maryland National Bank loan from $18,000 to $12,000.

   On 11 December 1966, a fire occurred at the Bay Electric plant, destroying all of the [**132] inventory subject to Mr. Boehm's security agreement as well as severl buildings owned by the Katskis.

   This was the situation on 23 December 1966, when Mr. Boehm met with Mr. and Mrs. Katski and Kenneth L. Dunn, the Company's accountant, at the Katskis' residence.  After a discussion, Mr. Boehm prepared and presented to Mr. and Mrs. Katski, in their capacity as officers of Bay Electric, five confessed judgment notes, all payable on demand:

   (1) $3500 payable to Maryland National Bank and[***6] William Boehm, Trustee, as co-payees. n1 n2

    [*573] (2) $9000 payable to William Boehm as sole payee. n3

   (3) $19,000 on a printed Union Trust Company from payable to William J. Boehm, Dorothy H. Boehm and Union Trust Company, as co-payees, with interest at 10% per annum.

   (4) $12,000 on a printed Maryland National Bank form payable to Maryland National Bank as sole payee.

   (5) $15,000 on a printed Annapolis Banking & Trust Co. form n4 payable to Annapolis Banking & Trust Co. and William J. Boehm, as co-payees. 

 n1.  This note apparently related to the loan made by Maryland National to Mr. Boehm in April, 1965. 

n2., n 3.  The judgments later entered on these notes were vacated, and they are not involved in this appeal. 

n4.  This note, although not stated to be payable on demand, was so treated by the parties and the lower court, perhaps in reliance on Uniform Commercial Code (U.C.C.), § 3-108.

   These notes were then endorsed by Mr. and Mrs. Katski in their individual capacities and[***7] delivered to Mr. Boehm.  At this point, Mr. Boehm resigned as an officer, director and attorney of Bay Electric, delivered his stock in the Company to Mr. and Mrs. Katski, and accepted their check for $25, in payment for the stock.

   On 27 December 1966, the Katskis went to Mr. Boehm's office and delivered to him a signed and partially completed assignment of certain insurance proceeds which was intended to guarantee the payment of the notes which Mr. Boehm proposed to give to the banks.

   Mr. Boehm then visited the banks, and found them unwilling to accept the Bay Electric notes, endorsed by the Katskis, in substitution for the notes signed by himself or his wife and himself, but the banks did agree to renew the loans evidenced by the Boehm notes provided that monthly payments were made.  Mr. Boehm then returned to his office, described the situation to the Katskis, advised them that he would have to hold the notes, and made the following changes:

   (1) On the $3500 note he struck out Maryland National Bank as co-payee, leaving himself as sole payee. n5

   (2) On the $19,000 note he struck out Union Trust Company as co-payee, leaving himself and his wife as copayees, [*574] [***8] and changed the interest rate from 10% to 6%.

   (3) On the $12,000 note he struck out Maryland National Bank as sole payee and substituted himself as sole payee.

   (4) On the $15,000 note he struck out Annapolis Banking & Trust Company as co-payee, leaving himself as sole payee. n6 

n5.  See, fn. 2, supta; fn. 7, infra.

n6.  This is conceded by appellants in their brief, page 8, although an examination of the note discloses that "Annapolis Banking & Trust Company" was stricken where it appeared in print, but not where it had been inserted in Mr. Boehm's handwriting.  Presumably, the parties and the court concluded that it was Mr. Boehm's intention to strike the bank's name in both places.

   When the monthly payments were not made, on 17 January 1967 Mr. and Mrs. [**133]Boehm caused a confessed judgment to be entered against Bay Electric and the Katskis on the $19,000 note and Mr. Boehm on 18 January 1967 had similar judgments entered on the $12,000 note and the $15,000 note.  Motions to [***9]vacate the judgments were filed by the Katskis and by the trustee for the creditors of Bay Electric, who had been granted leave to intervene as a defendant.

   From orders denying the motions to strike the judgments entered on the $19,000, $15,000 and $12,000 notes n7 this appeal was taken.  

n7.  The record shows that judgments on the $9,000 and $3500 notes referred to in the statement of facts were vacated, and the cases were set down for trial, but that the liens were retained.  The court also granted motions to strike the 15% attorney's fee provided for in the notes for $19,000, and $12,000, and the 10% attorney's fee provided for in the $15,000 note, since Mr. Boehm as payee and holder was not represented by an attorney.  See, Weiner v. Swales, 217 Md. 123, 141 A.2d 749 (1959). These questions are not before us in the present appeal.

   The appellants' motions to vacate the judgments were filed under Maryland Rule 645 b which provides that " * * * the clerk shall issue a summons to the defendant notifying[***10] him of the entry of the judgment and requiring him to appear in the cause * * * and show cause, if any he has, why the judgment should be vacated, opened or modified."

    [*575] The Katskis assigned the following grounds for their motions:

   I.  That the execution of the notes by Bay Electric was without consideration.

   II.  That the Katskis' endorsement of the notes was without consideration.

    III.  That Mr. Katski was incompetent at the time of the signing of the notes.

   IV.  That Mr. Boehm was guilty of a breach of fiduciary relationship.

   V.  That no demand was made on the Katskis.

   VI.  That certain of the notes were payable to payees other than Mr. Boehm, or Mr. Boehm and his wife.

   The trustee for the creditors of Bay Electric adopted grounds I and VI in his motion and modified grounds III and V to make them applicable to Bay Electric as maker.

   After a protracted hearing at which testimony was taken, the lower court denied the motions to vacate the judgments entered by confession on the $19,000, $15,000 and $12,000 notes. n8 The present appeal was taken from these orders.  

n8.  See, fn. 7, supra.

[***11]

   Judge Offutt, speaking for our predecessors in Keiner v. Commerce Trust Co., 154 Md. 366, 370-71, 141 A. 121 (1927) described the Maryland practice with respect to the vacating of confessed judgments:

   "A judgment by confession possesses all the incidents, is supported by the same presumptions, and is entitled to the same faith and credit, as any other judgment (Freeman on Judgments, par. 1337), and that is so whether the confession is by the defendant in person or by another with his consent.  Ibid. But while that is true, the widespread and general practice of embodying, in promissory notes, warrants of attorney authorizing a confession of judgment for the amount thereof, together with counsel fees, lends itself too readily to fraud and abuse, and in this state at least such judgments 'are freely stricken out on motion to let in defenses.' [*576] Phillips v. Taylor, 148 Md. 162. And although such a motion 'must be supported by satisfactory proof of conditions which make such action necessary to serve the ends of justice' ( Wisner v. Reeside, 139 Md. 223), the court in dealing with it 'should be very careful to see that no improper advantage has [**134] [***12] been taken of the maker of such note in entering judgment' International Harvester Co. v. Neuhauser, 128 Md. 181.

   "Necessarily, one making the motion assumes the burden of supporting the facts alleged in it, and as to all matters not going to the merits of the controversy, such as surprise or deceit in the entry of the judgment itself, he must prove such facts by a fair preponderance of the evidence.  But as to defenses going to the merits of the claim upon which the judgment rests, a different rule prevails.  In such cases, if the evidence adduced in support of the motion is sufficient to persuade the fair and reasoned judgment of an ordinary man that there are substantial and sufficient grounds for an actual controversy as to the merits of the case, the defendant should be deemed to have met the burden of showing that he has a meritorious defense. In other words, if the evidence is such that persons of ordinary judgment and prudence could honestly and fairly draw different inferences from it, one favoring the plaintiff and the other the defendant, the court should not itself decide that conflict, but should submit it to a jury.  And while the rule thus stated is not universally[***13] approved, it seems to be supported by the weight of authority, is consistent with justice and equity, and is in harmony with the decisions of this court.  'Courts of law exercise an equitable jurisdiction over judgments entered by confession upon notes and warrants of attorney, and it is necessary to justice that they should liberally exercise that jurisdiction, and may therefore, on application of the defendant, vacate them and permit him to make a defense on the merits, provided the [*577] proper showing of a meritorious defense is made.' Freeman on Judgments, par. 1340. 34 C.J. 415; Wisner v. Reeside, supra; International Harvester Co. v. Neuhauser, supra; Phillips v. Taylor, supra."

   The rule has been recently restated by Judge (now Chief Judge) Hammond in the opinion of the Court in Stankovich v. Lehman, 230 Md. 426, 432, 187 A.2d 309 (1963):

   "To be successful in moving to strike a judgment by confession, one must adduce evidence in support of his motion sufficient to persuade the fair and reasoned judgment of an ordinary man that there are substantial and sufficient grounds for an actual controversy as to the merits of the case.  If he does so, he is deemed[***14] to have met the burden of showing he has a meritorious defense, without the necessity of showing he will eventually prevail.  This is to say that if the evidence is such that persons of ordinary judgment and prudence could fairly draw different inferences from it, the controversy should not be decided as a matter of law but instead should be submitted to a trier of fact.  If a meritorious defense is made out (by affidavits or testimony, Johnson v. Phillips, supra ), the Court should liberally exercise its equitable jurisdiction over judgments entered by confession and, on application of a defendant who prima facie shows such defense, vacate the judgment to permit a trial on the merits.  Cropper v. Graves, 216 Md. 229; Remsburg v. Baker, 212 Md. 465, 470; Keiner v. Commerce Trust Co., 154 Md. 366, 370-371."

   The lower court concluded that the appellants failed to meet the burden of the rule which required them to adduce evidence from which persons of ordinary judgment and prudence could fairly draw different inferences, which would have the consequence that the controversy should not be decided as a matter of law, but should be submitted to a trier of fact.  We agree[***15] that the appellants did not meet this burden and proceed [*578] to a detailed consideration of [**135] their contentions and an analysis of the testimony offered to support them. n9 

n9.  The confessed judgment notes here involved are negotiable instruments within the definition of the Uniform Commercial Code and are subject to the provisions of Art. 3 of the U.C.C. Maryland Code (1957, 1964 Replacement Volume) Art. 95B, § 3-104.

   I.

   The execution of the notes by Bay Electric was without consideration.

   Testimony that the notes were for amounts previously borrowed by Mr. Boehm or Mr. Boehm and his wife and made available to Bay Electric was uncontroverted. As a matter of law, no consideration is necessary for an instrument given in payment of or as security for an antecedent obligation of any kind.Uniform Commercial Code (U.C.C.), § 3-408; Maryland Code (1957, 1964 Replacement Volume) Art. 95B, § 3-408; 11 Am.Jr., Bills and Notes, § 229.

   II.

   The Katskis' endorsement of the notes [***16]  was without consideration. 

   Consideration can be found, as a matter of law, since the interest of the Katskis, as officers and stockholders of Bay Electric, and (as Mrs. Katski testified) their desire to keep the Company in business were sufficient to support their endorsement. Gordon v. State National Bank of Bethesda, 249 Md. 378, 239 A.2d 915 (1968); Foland v. Hoffman, 186 Md. 423, 47 A.2d 62 (1946); Crothers v. National Bank, 158 Md. 587, 149 A. 270 (1930); New v. Page, 144 Md. 606, 125 A. 403 (1924).

   III.

   Mr. Katski was incompetent at the time of the signing of the notes.

   Offered in support of this contention was Mrs. Katski's testimony that Mr. Katski had been ill with a respiratory infection following the fire of 11 December 1966, "had been under a lot of strain," "was very nervous," "had been to the doctor several times." The Katskis' physician, who saw Mr. Katski [*579]on 12 December and 19 December, testified that Mr. Katski was "upset," "anxious" and "distraught," and prescribed large doses of Thorazine, which he described as "a combination drug containing a tranquilizer and anti-depressant" and "specifically advised [Mr. Katski] not[***17] to make [business] decisions." However, on further cross examination, the physician admitted that Katski, although "distraught, despondent, dejected," "was not disoriented." Also of significance is Katski's own testimony that he left the 23 December meeting, to personally photostat the notes which he and his wife had signed, which was confirmed by the Company's accountant, Kenneth L. Dunn, and that he wrote the $25 check given for Mr. Boehm's stock.

   Under the proper circumstances, the U.C.C. allows incompetency to be raised as a defense against the holder of a note.  Code (1957, 1964 Replacement Volume) Art. 95B, §§ 3-305, 3-306.  The lower court found, however, that the testimony did not establish incompetency as a matter of law, and we agree.  Physical distress, debility or pain will not support an inference of mental incapacity unless so severe as to render a person unable to comprehend the nature of his act and its consequences.  Mead v. Gilbert, 170 Md. 592, 185 A. 668 (1936); See also, Lynn v. Magness, 191 Md. 674, 62 A.2d 604 (1949). No such inference can be drawn here.

   IV.

   Mr. Boehm was guilty of the breach of a fiduciary relationship.

   The thrust of[***18] this argument, that an attorney-client relationship existed between [**136] Mr. Boehm and the Katskis, finds no support in the testimony.  In her direct examination, Mrs. Katski was asked the question, "Can you tell the Court if Mr. Boehm was the lawyer for you and Mr. Katski and for Bay Electric?" and answered, "Yes, he was." In response to the question, "And how long had he been?" she said, "I would say since 1949-1950, approximately twelve or thirteen years." Mrs. Katski was then asked, "Had Mr. Boehm also been connected with Bay Electric Company in any way?" and she replied, "Yes, he helped to form the corporation." However, on cross examination Mrs. Katski admitted that "about five times" she had "bought property and signed notes and mortgages individually" [*580] and was represented by an attorney, who was not identified, and then, in answer to the question, "Now, you say Mr. Boehm was your personal attorney or attorney for the Bay Electric?" replied, "He was an attorney for Bay Electric, if the need be, he handled personal things.  He did not really handle anything personal for me because I'd never had anything come up personally." Later, when pressed with respect to[***19] the misrepresentation alleged to have constituted a breach of the fiduciary relationship, Mrs. Katski alluded to a statement made by Mr. Boehm with respect to two notes in amounts of $9,000 and $3,500 which are not before us in the present case.

   The lower court correctly found no evidence of a fiduciary relationship.

   V.

   No demand was made on the makers and endorsers.

   The trial court found that

   "Demand was made by William J. Boehm in January, 1967 while the Defendants were in his office and at that time, the Defendants were unable to pay the interest or principal payment on same.  At that time the Defendants were informed that in view of the fact payment was not forthcoming, the notes would be reduced to judgment."

   U.C.C. (Code, Art. 95B), § 3-504(1) defines presentment as "a demand for acceptance or payment made upon the maker, acceptor, drawee or other payor by or on behalf of the holder" and the official Comment indicates that the rules regarding presentment have been simplified "to make it clear that any demand upon the party to pay is a presentment, no matter where or how." §§ 3-501(1)(b) and 2(a) provide that presentment for payment and notice of dishonor, [***20]unless excused, are necessary to charge an endorser but § 3-511 2(a) provides that presentment or notice is entirely excused if waived by the party to be charged.  Since each of the notes before us contains such a waiver, the court could have properly found, as a matter of law, that no demand or notice of dishonor was required.

    [*581] VI.
 
   Certain of the notes were payable to payees other than Mr. Boehm or Mr. Boehm and his wife.

   This issue has two aspects: First, was Mr. Boehm authorized to strike the names of the banks from the three notes?  Second, if his action was unwarranted, can judgment be entered in actions in which the banks as co-payees, did not join?

   The appellants contend that the unilateral action of Mr. Boehm in striking the names of the banks was a material alteration which releases the maker and endorsers and rely on U.C.C., § 3-407.  They then argue that U.C.C., § 3-116 provides that an instrument payable to two or more persons, not in the alternative, can only be enforced by all of them.  The appellee contends that the change was made by Mr. Boehm, in the presence of the Katskis, on 27 December 1966, with their consent and agreement, and while[***21] this does not appear to be disputed, it is unsupported by testimony.

   [**137] The court below made the following finding:

   "The evidence presented clearly showed that the Defendants did not enter into any agreement with any banks, or procured any sums of money from the banks, or delivered any of the executed notes to any of the banks, nor intended to deal with any bank.  There was no dispute that the Plaintiffs were holders of the notes.  The Plaintiffs obtained the money from the bank and loaned same to the Defendants.  There was no obligation to the bank by any of the Defendants nor was the bank a party to any of the Agreements for indemnification of the Plaintiffs.  The banks could not maintain any suit on the notes as they were not a real party in interest."

   We are not inclined to disturb this finding, which is supported by the evidence, Maryland Rule 886; Hall v. Morris, 213 Md. 396, 132 A.2d 113 (1957); Taylor v. Wesley Freeman, Inc., 186 Md. 474, 47 A.2d 500 (1946), and the conclusion finds support in Maryland Rule 203 a, which requires that an action shall be prosecuted in the name of the real party in interest.

    [*582] The court below might also have[***22] found, as a matter of law, that the alteration made in the notes by Mr. Boehm did not discharge the maker or endorsers, and that the obligations could be enforced by Mr. and Mrs. Boehm, or by Mr. Boehm without the joinder of the banks, despite the provisions of U.C.C., § 3-116 that an instrument payable to two or more persons, not in the alternative, may only be enforced by all of them.

    § 3-407 of the U.C.C. provides:

   "(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in

   (a) The number or relations of the parties; or

   (b) An incomplete instrument, by completing it otherwise than as authorized; or

   (c) The writing as signed, by adding to it or by removing any part of it.
 
   (2) As against any person other than a subsequent holder in due course.

   (a) Alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;

   (b) No other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according[***23] to the authority given."

   Since Mr. Boehm was not a Subsequent holder in due course, the maker and endorsers are not discharged unless Mr. Boehm's act was both material and fraudulent. Fraud, concededly, does not come into play here, and materiality hinges on whether there is a change in the contract of those who have signed. Whether the maker and the endorsers are obligated to one payee, two payees or three is not, in our view, material: The contract was to repay a certain sum, at a certain time, and a certain rate of interest.  Admittedly, the banks, had their names not been stricken, could have assigned their interest to Mr. Boehm; and conversely, Mr. Boehm and the banks could have [*583] negotiated the notes with any number of persons.  The official Comment to § 3-407 suggests that an alteration made by the holder, reducing the rate of interest (Mr. Boehm did this in the case of the $19,000 note) is not a material alteration. Epstein v. Paskow & Epstein, New York Supreme Court, New York County, 4 U.C.C.Rep.Serv. 1066 (1968) holds that the insertion of "6%" in a note providing that it was payable "With Interest" was not a material alteration under § 3-407; [***24] and Navitsky v. Gregas, Ct.Com. Pleas, Schuylkill Co., Pa., 39 Pa.D. & C.2d 143, 3 U.C.C.Rep.Serv. 817 (1966) holds that [**138] § 3-407 did not apply to the addition of the words "or assignee" to the endorsement after it had been signed, since the alteration had no effect on the obligation of the maker to pay the note.  See also, Poelcher v. Zink, 375 Pa. 539, 101 A.2d 628 (1954), holding that erasure of the amount stated in figures was not a material alteration where the amount stated in words remained.

   Even apart from the argument that the appellants consented to the striking of the names of the banks, we conclude that as a matter of law the alteration was neither fraudulent nor material and that the notes may be enforced according to their tenor, as altered. n10 It follows that Mr. and Mrs. Boehm and Mr. Boehm could maintain the action without the joinder of the banks.  

n10.  See U.C.C., § 3-407, official Comment 3.d., which points out that where blanks are filled in, "there is no original tenor."

[***25]

   Under Rule 645 b, on motion duly made to vacate a confessed judgment, the lower court shall take such action "as justice may require." We have held that the court's discretion shall be liberally exercised.  Leahy, Executrix v. McManus, 237 Md. 450, 454, 206 A.2d 688 (1965); Remsburg v. Baker, 212 Md. 465, 129 A.2d 687 (1957) and cases cited therein.  In the usual case, the elements of defense are made out in affidavits and if these amount to a prima facie defense or disclose an apparent conflict in evidence as to the merits of the case, the court should liberally exercise its equitable jurisdiction, vacate the judgment, and permit a trial on the merits.  Plitt v. McMillan, 235 Md. 349, 353, 201 A.2d 787 (1964); Stankovich [*584] v. Lehman, 230 Md. 426, 432, 187 A.2d 309 (1963); Johnson v. Phillips, 143 Md. 16, 122 A. 7 (1923).

   In the case before us, the appellants elected to support their motions with oral testimony.  In the argument of the case before us, it was suggested by counsel for the appellee, and we are inclined to agree, that the court had before it all of the evidence which would have been adduced in a trial on the merits.  From our review[***26] of the testimony, we are of the opinion that there were no issues of fact which should have been submitted to the trier of facts; that the controversy could be decided as a matter of law; and that when the court denied the motions, it "took such action as justice may require", in the language of the Rule. 

M & S FURNITURE SALES COMPANY, INC. v. THE EDWARD J. DeBARTOLO CORPORATION 
No. 198, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 540; 241 A.2d 126; 1968 Md. LEXIS 636

 April  29, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Entry of final judgment pursuant to Maryland Rule 605 a as to count one of declaration affirmed; appellant to pay costs on appeal.

CORE TERMS:  tenant, landlord, defamatory, actionable, libel, innuendo, slander, special damages, declaration, padlocking, colloquium, chaining, spoken, defamation, amended declaration, inducement, entrance, demurrer, pleaded, honest, quod, lockout, resulting injury, shopping center, special damage, actual damage, third parties, third persons, repossessed, attributed

COUNSEL: Lawrence F. Rodowsky, with whom was Albert P. Hand on the brief, for appellant.

   Robert J. Thieblot, with whom were Allen, Thieblot & Hughes on the brief, for appellee.

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

OPINIONBY: HORNEY

OPINION: [*542] [**127] The question presented by the appeal in this action for libel is whether the facts stated in the amended declaration in explanation of the alleged libelous conduct were sufficient to show that the conduct complained of was defamatory per se.

   The facts as set forth in the original one-count declaration are to the effect that the plaintiff-appellant (M & S Furniture Sales Company), the tenant herein, operates a store in the[***4] Glen Burnie Mall Shopping Center; that the defendant-appellee (Edward J. De Bartolo Corporation), the landlord herein, is the owner of the shopping center; that the landlord, acting through employees, ordered the tenant out of the store, n1 at noon on December 6, 1966 and closed the main entrance with a screen equipped with an internal lock (ordinarily used as a protection against burglary when the store was not open for business) as well as the rear delivery doors by chaining and padlocking both entrances; that the landlord, by such chaining and padlocking, which remained throughout the afternoon, published and communicated to persons in and about the shopping [*543] center, including fellow tenants and its prospective customers, that the tenant had not paid its honest debts and therefore the landlord had repossessed the premises; that the publication was untrue and false in that the tenant had performed all obligations required of it under the lease three days prior to the lockout; and that the false publication defamed and libeled the tenant in its business reputation.

n1 Apparently the tenant and landlord had a dispute as to the rent, but at the time of the lockout all rent due and payable had been paid by the tenant to the landlord.

[***5]

   The demurrer of the landlord on two grounds -- that special damages had to be pleaded because the acts alleged to be defamatory and libelous were not actionable per se and that it had not been alleged that third persons understood the conduct to be defamatory -- was sustained with leave to amend.

   The tenant then filed an amended two-count declaration. The second count, based on trespass quare clausum fregit, to which the landlord filed a general issue plea and on which issue has been joined, is not before us on this appeal. The amended first count is the same as the original except that a sentence reading --
 
"The fellow tenants of the plaintiff, its prospective customers, its store manager, and persons in and about the Glen Burnie Mall Shopping Center recognized the chains and padlocks as symbols of a creditor's or landlord's execution and understood the publication to impute to the plaintiff a failure to honor business contracts and a failure of business credit."
 
was included in the innuendo. On the first count the lower court concluded that the conduct of the landlord was not actionable per se, but was rather an attempt to allege defamation by innuendo[***6] which [**128] as such necessitated an allegation of special damages to be actionable and sustained the demurrer to the amended declaration without further leave to amend.  This appeal followed.

   The tenant contends that the conduct of the landlord, in that it imputed inability to pay its debts, was actionable per se, and, in the alternative, that if such conduct was not actionable per se it was a question for the jury to determine despite the absence of an allegation of special damages. The landlord in effect contends that its conduct was not defamatory on its face and [*544]therefore was not actionable per se and that if its conduct was actionable per quod, then, in addition to the innuendo, the tenant should have alleged special damages.
 
   This case is unusual in that the alleged defamation consists entirely of conduct rather than spoken or printed words.  So far as we have found there are only four cases directly in point.  See the annotation, Defamation by acts, gestures, pantomime or the like, in 71 A.L.R.2d 808, § 4 at p. 814.  In American Stores Co. v. Byrd, 229 Md. 5, 181 A. 2d 333 (1962), however, spoken words combined with conduct were held[***7] to be actionable.

   It would seem therefore that actions or conduct as well as spoken or printed words could be actionable per se or per quod.  The distinction is based on a rule of evidence and the difference between them lies in the proof of the resulting injury. In the case of words or conduct actionable per se, their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved.  In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage. The cases in this state are collected in 14 M.L.E., Libel and Slander, § 11.  See also 33 Am.Jur., Libel and Slander, § 5; 53 C.J.S., Libel and Slander, § 170 b, c.

   There may be some question as to whether conduct should be classified as libel or slander but as it makes no difference in this case we will assume, as the parties seem to have done, that it constitutes libel if it was defamatory at [***8] all.  Whether alleged defamatory action is actionable per se is in the first instance a question of law for the court.  Avirett v. State, 76 Md. 510, 25 Atl. 676 (1893).

   As we read the amended declaration, the conduct of the landlord was not defamatory on its face because the ordinary and natural meaning of the conduct did not necessarily import a defamatory meaning.  Avirett v. State, supra, at p. 521 of 76 Md.  The tenant alleged by way of innuendo that the conduct of the landlord was intended and understood to mean that the [*545] tenant did not pay its honest debts and that the landlord had therefore repossessed the premises.  As to this, the tenant insists that the innuendo as stated is sufficient in the light of the inducement and colloquium. But as we read them, these parts of the pleadings are of little assistance in this connection.  If the conduct amounted to defamation and was published to third persons, it is clear that the lockout had reference to the tenant so that the colloquium is really not in issue here as it was in Haines v. Campbell, 74 Md. 158, 21 Atl. 702 (1891). Furthermore, it is difficult to distinguish between the alleged defamatory[***9] conduct and the surrounding circumstances.  But this is not important here because even considering the surrounding circumstances the lower court concluded, as have we, that the conduct of the landlord as alleged in the innuendo was susceptible of more than one meaning and for that reason could not be considered actionable per se.  An innuendo cannot enlarge or [**129] add to the purport of the words or conduct declared on or properly impute a meaning which the publication either alone or in connection with the inducement or colloquium does not warrant or fairly imply.  Lewis v. Daily News Co., 81 Md. 466, 472, 32 Atl. 246 (1895); Geraghty v. Suburban Trust Co., 238 Md. 197, 208 A. 2d 606 (1965).

   Taking the conduct of the landlord in its ordinary sense, it would not necessarily convey the idea that the tenant had not paid or met his honest debts or obligations.  Normally all that the chaining and padlocking would likely indicate is that the store was closed for business.  The closing could have been feasible for a number of reasons.  There was no allegation that anyone other than the tenant himself had witnessed the employees of the landlord chaining and padlocking[***10] the store entrances. Nor is there an allegation of such peculiar circumstances as would give to the conduct of the landlord the particular meaning attributed to it by the tenant as there was in DeWitt v. Scarlett, 113 Md. 47, 77 Atl. 271 (1910). In DeWitt, where the alleged defamatory action was shown to have acquired a peculiar meaning in the trade, it was held that the publication of the name of a merchant with a blank rating was understood as denoting a lack of credit and therefore actionable [*546] per se.  Obviously the occurrence here is not comparable to the situation there.  No circumstances were alleged which would give the innocuous manner of protecting a stock of goods from burglary a pernicious meaning.  The allegations in the declaration do not therefore support the innuendo.

   Even if it is assumed that the conduct was such as would support the meaning attributed to it in the innuendo, the question as to whether third parties so understood it would be for the jury, Haines v. Campbell and American Stores Company v. Byrd, both supra, but since the conduct was not defamatory per se (that is not necessarily defamatory considering all the circumstances), [***11]the settled rule in this state that special damage must be alleged and proved comes into play.  Foley v. Hoffman, 188 Md. 273, 52 A. 2d 476 (1947); Thompson v. Upton, 218 Md. 433, 146 A. 2d 880 (1958); Heath v. Hughes, 233 Md. 458, 197 A. 2d 104 (1964); Maas v. National Casualty Co., 97 F. 2d 247 (4th Cir. 1939). Since a court may not infer damage as a result of this conduct, the application of the rule requiring its allegation is clear.  Newbold v. Bradstreet, 57 Md. 38, 52 (1881).

   As special damages were not pleaded, the demurrer was properly sustained.

   Entry of final judgment pursuant to Maryland Rule 605 a as to count one of declaration affirmed; appellant to pay costs on appeal. 

FERGUSON v. SECRETARY OF STATE 
No. 345, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 510; 240 A.2d 232; 1968 Md. LEXIS 632

 April  10, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Order affirmed, the costs to be paid by the appellant.

CORE TERMS:  signature, signers, personal knowledge, referendum, registered, voter, affiant, mandatory, bona fide, appropriation, registration, procuring, genuine, summary judgment, certify, emergency, supplied, voting, budget, Constitutional Law, referendum petition, legislative history, public institution, fatally defective, fiscal year, income tax, full text, session, verification, referable

COUNSEL: Douglas R. Taylor for appellant.

   Lewis A. Noonberg and[***2] Thomas A. Garland, Assistant Attorneys General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.

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

OPINIONBY: BARNES

OPINION: [*511] [**232] In the 1967 Session of the General Assembly of Maryland House Bill 378 was enacted, which, among other things, provided for a graduated income tax in Maryland.  The Governor signed the bill on April 14, 1967, and it became Chapter 142 of the Laws of 1967.

   Immediately after the enactment of this law Courtland D. Ferguson (Ferguson), the appellant in this Court and petitioner below, together with the Fighting Taxpayers Association, the Free State Voters and other interested groups prepared and circulated a petition containing the full text of House Bill 378 in the counties and in Baltimore City.  On May 31, 1967, prior to the effective date of Chapter 142 on June 1, 1967, Ferguson presented to C. Stanley Blair, Secretary of State, appellee in this Court and respondent below, petitions to refer Chapter 142 to referendum pursuant to Article XVI of the Maryland Constitution.  The petitions contained 20,828[***3] signatures by [**233]Ferguson's count and on June 30, 1967, petitions for 10,863 signatures by Ferguson's count were also presented to the Secretary of State. Of the signatures presented the Secretary of State found that 28,970 were apparently valid. n1

n1 There was no dispute that the number of signatures filed on May 31, 1967, was sufficient to suspend Chapter 142 until July 1, 1967, and that the number of signatures filed before July 1, 1967, with the signatures on file, was sufficient to refer Chapter 142 to referendum if the affidavit complied with the provisions of Section 4 and the law was referable at all under Section 2 of Article XVI.

   [*512] Article XVI of the Maryland Constitution, entitled "The Referendum" provides in relevant part as follows:
 
"Section 2.  When Laws to take effect; effect of filing of referendum petition.

   No law enacted by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it contain [***4]a Section declaring such law an emergency law and necessary for the immediate preservation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two Houses of the General Assembly; provided, however, that said period of suspension may be extended as provided in Section 3 (b) hereof.  If before said first day of June there shall have been filed with the Secretary of the State a petition to refer to a vote of the people any law or part of a law capable of referendum, as in this Article provided, the same shall be referred by the Secretary of State to such vote, and shall not become a law or take effect until thirty days after its approval by a majority of the electors voting thereon at the next ensuing election held throughout the State for Members of the House of Representatives of the United States.  An emergency law shall remain in force notwithstanding such petition, but shall stand repealed thirty days after having been rejected by a majority of the qualified electors voting thereon; provided, however, that no measure creating or abolishing any office, or changing the salary, term or duty of any officer, [***5] or granting any franchise or special privilege, or creating any vested right or interest, shall be enacted as an emergency law.  No law making any appropriation for maintaining the State Government, or for [*513] maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.  The increase in any such appropriation for maintaining or aiding any public institution shall only take effect as in the case of other laws, and such increase or any part thereof specified in the petition, may be referred to a vote of the people upon petition.

   * * *
  
"Section 4.  Form of petition: verification of signatures.

   A petition may consist of several papers, but each paper shall contain the full text of the Act or part of Act petitioned upon; and there shall be attached to each such paper an affidavit of the person procuring the signatures thereon that of the said person's own personal knowledge every signature thereon is genuine and bona fide, and that the signers are registered voters of the State of Maryland, and of the City of Baltimore, or County, as the case may be, [***6]as set opposite their names, and no other verification shall be required." (Emphasis supplied.)

   The affidavit on all of the petitions was as follows:

   "AFFIDAVIT
 
STATE OF MARYLAND, . . . COUNTY,
to wit:

   I HEREBY CERTIFY that on this . . . day of . . . , 1967, before me, the subscriber, a Notary Public [**234] of the State of Maryland, in and for the County aforesaid, personally appeared . . . and made oath in due form of law that he procured the signatures on the aforegoing Petition to refer General Assembly of Maryland HB 378, Legislative Session 1967, to a vote of the registered voters of Maryland for their approval or rejection, and that of his own personal knowledge every signature thereon is genuine and bona fide, and that to the best of his [*514] knowledge, information and belief, the signers are registered voters of Maryland.

   AS WITNESS my hand and Notarial Seal.

   . . .

   Notary Public
 
My Commission Expires . . ." (Emphasis supplied.)

   The Secretary of State having declined to certify and validate the petitions, Ferguson on June 22, 1967, filed a petition for a writ of mandamus in the Circuit Court for Anne Arundel County to require the Secretary[***7] of State to do this.  The Secretary of State answered the petition alleging that the petitions did not comply with the requirements of Section 4 of Article XVI of the Maryland Constitution and, in any event, Chapter 142 embodies a tax provision, the income from which supports the budget of the State for the fiscal year 1967-1968, and as such could not be referred to referendum under the provisions of Article XVI.

   On July 17, 1967, the Secretary of State filed a motion for summary judgment supported by the affidavit of James P. Slicher, Director of the Department of Budget and Procurement of the State, setting forth the financial details in regard to the budget of the State for the fiscal year 1967-1968, and appropriations for the budget which were in part predicated upon the receipt of $183,144,000 from the income tax.

    After argument, the Circuit Court (Sachse, J.) rendered an oral opinion indicating that the petitions did not comply with the provisions of Section 4 of Article XVI in that the affidavit did not state that the signers were registered voters upon the personal knowledge of the affiant, but rather to the best of the affiant's "knowledge, information and belief," and[***8] further that Chapter 142 was not referable under Article XVI in any event.  On September 15, 1967, the trial judge signed an order granting the motion of the Secretary of State for summary judgment and requiring Ferguson to pay the costs.  From that order an appeal was duly perfected to this Court.

   We are of the opinion that the affidavit to the petitions did not comply with the mandatory requirements of Section 4 of [*515] Article XVI of the Maryland Constitution as a result of which the petitions were fatally defective. The Secretary of State was correct in declining to certify and validate these petitions and hence the summary judgment for the Secretary of State was properly granted by the Circuit Court.  We do not reach the interesting question in regard to whether or not Chapter 142 may be referred to referendum under Article XVI.

   It is clear from the language of Section 4 of Article XVI that it is mandatory that an affidavit be attached to each of the several papers making up the petition for referendum of the person procuring the signatures that "of the said person's own personal knowledge" (1) every signature on the paper is genuine and bona fide, and (2) that the[***9] signers are registered voters of the State and City of Baltimore or County as set opposite their names. Although the affidavit in the present case fully complies with the requirements of Section 4 as to the first mandatory requirement, it clearly fails in regard to the second mandatory requirement, i.e., to state that of the affiant's personal knowledge the signers are registered voters of the State and City of Baltimore or County as set opposite their names.  The second requirement is stated to be on "knowledge, information and belief" rather than on "personal knowledge."

   [**235] We indicated in Tyler v. Secretary of State, 229 Md. 397, 184 A. 2d 101 (1962), that there must be a strict compliance with the mandatory provisions of Section 4 of Article XVI.  Judge Macgill (specially assigned), for the Court stated in Tyler:

   "We believe that it is clear, in any case, that the stringent language employed in Section 4 of the Article shows an intent that those seeking to exercise the right of referendum in this State must, as a condition precedent, strictly comply with the conditions prescribed." (229 Md. at 402, 184 A. 2d at 104.)

   In arriving at a determination of[***10] the legislative intent the history of Chapter 673 of the Acts of 1914, by which Article XVI was presented as an amendment to the Maryland Constitution, should be considered.  The original provision of what is now Section 4 contained the language of the present Section 4 [*516] in regard to the signatures but provided that the affidavit of the person procuring the signatures could state as to the voting status that "said person verily believes the signers to be registered voters of the State of Maryland, and of the City of Baltimore or County, as the case may be, as set opposite their names." (Emphasis supplied.) This language, however, was changed by the General Assembly after introduction of the proposed legislation, so that the words "the said person verily believes" were stricken as was the phrase "to be" after the word "signers", and in lieu of the words "to be" the word "are" was inserted so that the language was finally established as it presently appears in Section 4.  From this legislative history we concluded in Tyler that:

   "It is established that the affidavit is an integral part of the referendum petition, that the one procuring the petitions or circulating[***11] them is the agent of the signers, and that the data required as to the qualifications of the signers is as important as the signatures themselves.  (Citing cases.)

   * * *

   "Maryland is one of the few jurisdictions which exacts of the affiant not merely his belief, but his personal knowledge of the matters to which he makes oath.  Personal knowledge is defined in Black's Law Dictionary, Third Edition, as 'Knowledge of the truth in regard to a particular fact or allegation, which is original, and does not depend on information or hearsay.' The question as to whether or not a person is a registered voter is not a matter of a legal conclusion.  Cf. Wood v. Byrne (N.Dak.), 232 N. W. 303. It is a matter of fact, to be ultimately determined by an examination of the lists of registered voters compiled and kept by the supervisors of elections." (229 Md. at 403-04, 184 A. 2d 104-05.)

   In Tyler the question involved was the falsity of the statement in the affidavit (in proper form) that the affiant of his personal knowledge swore that the signers were registered voters of the State of Maryland when in fact at least one was not.  We [*517] held that this at least raised a presumption [***12]of fraud which cast the burden on the proponents of the referendum to show that the remaining signatures were genuine and bona fide and that the signers were registered voters as required by law.  The case was remanded for this determination.  It is clear to us, however, that the principles enunciated in Tyler are equally applicable to the present case and indicate that the affidavit used in this case is fatally defective.

   Ferguson earnestly urges upon us that "personal knowledge by the affiants of the signer's registration is impossible" and therefore could not have been intended as a mandatory part of the required affidavit.  As pointed out by the Court in Tyler, however, it is not at all impossible to obtain such personal knowledge by an examination of the lists of registered voters, and the legislative history of Chapter 673 of the Acts of 1914 makes it quite clear that the General Assembly [**236] rejected the original language permitting the affidavit to be made on "belief" in this regard and changed it to the present requirement of "personal knowledge."

   No doubt the requirement of "personal knowledge" in regard to the signer's registration does add a substantial[***13] difficulty to the obtention and preparation of the required petitions for referendum, but this Court cannot by construction eliminate a mandatory provision deliberately adopted by the General Assembly requiring that the affidavit in regard to the signer's registration be made on the affiant's personal knowledge. See Buchholtz v. Hill, 178 Md. 280, 286, 13 A. 2d 348, 351 (1940). If the burden is too heavy, the remedy is by an appropriate amendment to Article XVI.

    As there have been a number of instances in the past in which Acts of the General Assembly have been referred to the people pursuant to Article XVI, it is rather apparent that it is not impossible to fulfill the requirement of the affidavit of personal knowledge for the registration of the signers.

   Order affirmed, the costs to be paid by the appellant. 

HARRIS v. BOWIE 
No. 174, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 465; 240 A.2d 242; 1968 Md. LEXIS 625

 April  4, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  crosswalk, pedestrian, sidewalk, roadway, curb, block, motorist, street, lane, prolongation, struck, intersection, right of way, crossing, lateral, walkway, marking, paved, highway, corner, duty of care owed, burden of care, public street, matter of law, north side, designating, plaintiff-appellee, southbound, extending, oncoming

COUNSEL: Hamilton O'Dunne, with whom was Patrick A. O'Doherty on the brief, for appellant. [***3]

   James G. Perry for appellee.

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

OPINIONBY: MARBURY

OPINION: [*466] [**243] This case originated as an action for negligence brought by the plaintiff-appellee, Theodore Carl Bowie, against the defendant-appellant, Rebecca Linda Harris, to recover for injuries sustained by the appellee when he was struck by the automobile operated by the appellant. The case was submitted to a jury and one of the questions that was left to its decision was, whether the evidence showed the existence of a sidewalk on the north side of Alder Street so that they could further find that the plaintiff was in a crosswalk when he was struck by the defendant's car.  The jury returned a verdict for the plaintiff and from the judgment entered thereon this appeal was taken.

   The circumstances surrounding the happening of the accident are as follows. On December 17, 1965, at about 4:35 p.m., [*467] the appellee was crossing Pennington Avenue from east to west on his way to Cleve's Bar, situated on the north west corner of Alder, a dead-end, unpaved street, forty feet wide and approximately[***4] one block long, debouching at the west side of Pennington Avenue.  The appellant was, at the same time, operating her automobile in a southerly direction in the curb lane of Pennington Avenue, which runs approximately north and south at this point and is a four lane boulevard. The plaintiff testified that he looked both ways before starting to cross and that on seeing southbound traffic in both lanes about a block away he thought he had time to cross.  On reaching the center of the street he saw two southbound cars about half a block away with the car in the curb lane about one and one-half car lengths behind the car in the left lane. The appellee stated that the next time he looked the appellant's car was about four feet from him and that he began to run and had one foot on the curb when he was struck. The appellant's vehicle was in the curb lane at all times and there were no skid marks or indications that she swerved to avoid striking the appellee.

   The appellant contends that the court should have ruled as a matter of law that there was no sidewalk on Alder Street instead of submitting the issue to the jury and further, that as this would mean that there was no crosswalk across [***5] Pennington Avenue, the plaintiff would be guilty of contributory negligence as a matter of law. We do not agree with this contention.

   The importance of the fact of the existence, vel non, of a crosswalk is the duty of care owed by pedestrians and motorists. In general the law is that a pedestrian has the right of way in a crosswalk while a motorist has the right of way between street crossings. Code (1957), Article 66 1/2, Section 236.  This is not to say that a pedestrian may blindly step into the path of an oncoming automobile simply because he is in a crosswalk, nor does it mean that he is negligent per se if he crosses in the middle of a block. The place where he crosses, whether it be in the middle of the block or in a crosswalk, simply causes the greater burden of care to rest on the pedestrian or the motorist. Henderson v. Brown, 214 Md. 463, 135 A. 2d 881.

   The definitions for crosswalk, sidewalk and other relevant [*468] terms used here are defined in Code (1957), Article 66 1/2, Section 2(a) as follows:
 
"(9) Crosswalk. Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other marking on the surface or that portion of a[***6] roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.
"(52) Sidewalk. That portion of a street between the curb lines, or the lateral [**244] lines, of a roadway, and the adjacent property intended for the use of pedestrians.
"(47) Roadway. That portion of a highway improved, designed, or ordinarily used for vehicular travel.
"(20) Intersection. The area embraced within the prolongation or connection of the lateral curb lines, or if none, the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict."

   From these definitions it will be seen that if a crosswalk is not indicated by lines or markings on the roadway that its existence is dependent on the presence of sidewalks, the prolongation of which would form the crosswalk. It is not necessary that the walkway be paved, Lipphard v. Hanes, Admr'x, 232 Md. 405, 194 A. 2d 93, but it is necessary that there be an area, apart from the "roadway", that is intended for pedestrian use.  The[***7] intention to set aside an area for a sidewalk, in the absence of official records designating it as such, may be ascertained primarily by its actual physical appearance and the use to which it is put, although a crosswalk can not be established by customary pedestrian usage.  State v. Miller, 199 Md. 521, 87 A. 2d 401; Van v. McPartland , 242 Md. 543, 219 A. 2d 815.

   In the instant case the presence of a sidewalk is indicated by the extension of curbings for a short distance along Alder Street west of Pennington Avenue; the fact that the paved walkway on Pennington Avenue continued to the corner past Cleve's Bar to the northwest radial curb; and the fact that Alder Street [*469]is indicated as a public street by a street sign on the east side of its intersection with Pennington Avenue.  In addition, there were two steps leading from a side entrance of Cleve's Bar onto the area between the side of Cleve's Bar and the prolongation of the curb line on the north side of Alder Street, which, according to some testimony, had been used by pedestrians. Furthermore, the record shows that there were storm drains under the curbs at both the north and south corners of Pennington[***8] Avenue and Alder Street and that there was a fireplug located at the southwest corner of Pennington Avenue and Alder Street.

   Because of these physical indications, the jury could have properly concluded that there existed a sidewalk and consequently a pedestrian crosswalk in the area where the appellee was struck, and this issue was properly submitted to the jury.

   Appellee's counsel in his brief has urged us to remand this case to the trial court for further proceedings to assess costs and expenses in accordance with Maryland Rule 421 d 2 which provides:

   "If a party, after being served with a request to admit any matters, serves a sworn statement refusing such admission and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, the court, upon application, may order the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees, unless the court finds that there were good reasons for the refusal or that the admissions sought were of no substantial importance."
 
The basis for this contention was the plaintiff's request for admission of [***9]facts and motion in limine in which the plaintiff sought to "limit the issues in this case by prohibiting at trial the raising of issue in defense thereof that Alder Street, extending westerly from its intersection with Pennington Avenue:
 
1. Is not a public street.
2. Is not used by the public.
[*470] 3. Does not have sidewalks.
[**245] 4. Does not, by operation of law, create unmarked pedestrian crosswalks extending across the bed of Pennington Avenue at its intersection with Alder Street which crosswalks are each of a width of eight (8) feet."

   We find no merit in this contention because before trial a hearing was held by Judge Melvin, when counsel for the respective parties were heard, which resulted in an order by the court overruling these motions.  These proceedings were held in chambers and the record contains nothing with reference to what transpired at the hearing.  Furthermore, the plaintiff-appellee did not file a cross-appeal preserving the question for our review of the correctness of Judge Melvin's ruling.

   Judgment affirmed, with costs. 

COLE, et al. v. SECRETARY OF STATE, et al. 
No. 341, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 425; 240 A.2d 272; 1968 Md. LEXIS 620

 April  3, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order reversed; remanded for issuance of writ of mandamus; costs to be paid by appellees.

CORE TERMS:  peace, referendum, general law, local law, election, prescribed, voters, delegation, duties, Laws of Maryland, qualification, clerk, subject matter, select committee, votes cast, gubernatorial, territorial, preceding, appointed, appointment, Public Local Law, writ of mandamus, confined, constables, residents, senator, local option, regulating, licensing, referable

COUNSEL: H. Warren Buckler and William B. Calvert, with whom were James A. Cole and C. Bowie Rose on the brief, for appellants.

   Lewis A. Noonberg, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees.

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

OPINIONBY: SINGLEY

OPINION: [*426] [**273] Maryland Constitution, Art. IV, § 42 authorizes the Governor, with the advice and consent of the Senate, to appoint such justices of the peace as may be prescribed by law and provides that those so appointed shall have such jurisdiction, duties and compensation as may be fixed by law.  By constitutional amendment ratified[***3] in 1940, § 41 B of Art. IV vests in the Legislature power to establish a people's court in any county and to fix the number, qualifications, tenure and method of selection of judges, their powers, duties and compensation; the jurisdiction of the court, and right of appeal therefrom; and the number, qualifications, tenure, method of selection, duties and compensation of the court's clerks, constables, and employees.  § 41 B also relieves the Governor of the necessity of appointing justices of the peace under § 42 when § 41 B is implemented in any county.
 
   The effect of the two sections, read together, is to accord a county, if so authorized by the Legislature, the option of substituting a people's court for a system of justices of the peace, constables, and magistrates.  This Cecil County chose to do by causing to be introduced at the 1967 legislative session House [*427]Bill 562 which was ultimately enacted as Chapter 256 (the Act) of the Laws of Maryland 1967.  The Act amended seven sections of Art. 52 of Maryland Code (1964 Replacement Volume and 1966 Supplement), added two new sections to the same Article, and added 14 sections to the Code of Public Local Laws of Cecil[***4] County.  The purpose of the legislation was to transfer the civil and criminal jurisdiction formerly conferred upon justices of the peace and trial magistrates to the People's Court of Cecil County, which was created by the Act.  The Act was approved by the Governor on 14 April 1967 and by its terms was to become effective 1 June 1967.

   On 24 May 1967 there were filed with the appellee, C. Stanley Blair, Maryland's Secretary of State, petitions to refer the Act to the people of Cecil County at the next election of members of the House of Representatives, as permitted by Art. XVI, § 2 of the Maryland Constitution. n1 It is conceded that the petitions were in proper form, were signed by qualified and registered voters, and bore the requisite affidavits and the number of signatures necessary to cause a referral of a public local law to the voters of a county, as provided by Constitution, Art. XVI, § 3 (a). n2

n1 "If before said first day of June there shall have been filed with the Secretary of the State a petition to refer to a vote of the people any law or part of a law capable of referendum, as in this Article provided, the same shall be referred by the Secretary of State to such vote, and shall not become a law or take effect until thirty days after its approval by a majority of the electors voting thereon at the next ensuing election held throughout the State for Members of the House of Representatives of the United States."

[***5] 

n2 "The referendum petition against an Act or part of an Act passed by the General Assembly, shall be sufficient if signed by three per centum of the qualified voters of the State of Maryland, calculated upon the whole number of votes cast therein for Governor at the last preceding Gubernatorial election, 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 a 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."

   [*428] [**274] On 26 July 1967, the Secretary of State, relying on an opinion of the Attorney General, advised the appellants that he did not consider the Act a public local law, and that the number of signatures n3 on the petition, while sufficient to support the referral[***6] of a public local law, did not meet the requirement of Constitution, Art. XVI, § 3 respecting the referendum of a public general law. n4

n3 1747: i.e., in excess of the minimum requirement of 10% of the 11,994 votes cast in the county in the gubernatorial election last preceding the filing of the petitions.

n4 3% of the entire votes cast in the State in the last preceding gubernatorial election.

   On 7 August 1967, the appellants, residents of and taxpayers in Cecil County, filed in the Circuit Court for Anne Arundel County a petition for a writ of mandamus and for injunctive relief against the Secretary of State and the Governor to require the Act to be submitted to referendum and to enjoin the Governor from proceeding under the Act.  In their answer and motion for summary judgment the defendants maintained that the Act was not a public local law and that the petitions failed to meet the constitutional requirement for the referendum of a public general law. From an order of 18 October 1967 granting [***7]the defendants' motion and dismissing the petition, this appeal was taken.  The sole question presented is whether the Act is a "Public Local Law for any one County" for the purposes of Constitution, Art. XVI, § 3 (a).

   An examination of the legislative history of the Act, as reflected in the journals of the Senate and the House of Delegates, discloses that the Act was introduced in the House as House Bill 562 by the Cecil County delegation, and after the first reading, was referred to a select committee consisting of the county's delegation and Delegate Winton B. Osborne of Harford County for consideration.  The delegation reported favorably, and the bill was passed by the House. n5 In the Senate, the Act was introduced by a senator from the legislative district in [*429] which Cecil County is located; was referred to a select committee consisting of the two senators from that district and Senator Mary L. Nock and upon a favorable report of that committee, was passed by the Senate. n6

n5 Journal, House of Delegates, 1967 at 354, 852, 853, 1175, 1772.

n6 Journal, Senate, 1967 at 1108, 1543, 1544.

[***8]

   This, of course, is the manner in which public local laws are customarily routed through the legislature, and differs from the routine followed with respect to public general laws, which are referred to standing committees of the Senate and of the House.  The rules of the Senate and the House recognize this distinction. n7

n7 House Rule 36 provides "* * * All Bills or Resolutions referred to a committee shall be referred to a Standing Committee of the House, except that those of a strictly local nature, or those amending the particular Code of Public Local Laws, and not having State-wide implications shall be referred to a county delegation or to the Baltimore City delegation as a select committee, or other select committee. * * *" (Italics added).  Senate Rule 36 (a) is substantially identical, except that the word "Senate" is substituted for "House" and the italicized words or those are omitted.

   While the treatment accorded the Act by the Legislature may be indicative [**275]of legislative intent, [***9] it is by no means controlling. n8 Of more significance, however, is the fact that Chapter 894 of the Laws of 1963, which created the People's Court of Anne Arundel County and is virtually identical to the Act before us, was the subject of referendum as a public local law. Laws of Maryland 1965 at 1717.  When Chapter 118 of the Laws of 1933 reduced the number of justices of the peace and deputy sheriffs in Howard County, the Attorney General ruled that the law should be the subject of a local referendum. 18 Op. Att'y Gen. 225 (1933). The same result was reached in 24 Op. Att'y Gen. 231 (1939), where the Attorney General concluded that Code (1924), Art. 10, § 18 A, which limited the right of Washington County trial magistrates to practice [*430] law, was referable on a local basis, although it took the form of an amendment to the general law.

n8 Gaither v. Jackson, 147 Md. 655, 128 A. 769 (1925); Bradshaw v. Lankford, 73 Md. 428, 21 A. 66 (1891). See also, Baltimore Fidelity Warehouse Co. v. Canton Lumber Co., 118 Md. 135, 84 A. 188 (1912); Berry v. Baltimore & Drum Point R. R. Co., 41 Md. 446, 462 (1875); Everstine, The Legislative Process in Maryland, 10 Md. L. Rev. 91, 94-5 (1949).

[***10]

   These examples should be contrasted with the manner in which Chapter 616 of the Laws of Maryland 1961 was treated.  Chapter 616 implemented Constitution, Art. IV, § 41 C, which created the Municipal Court of Baltimore City and amended Code (1957) by adding §§ 107 through 128 to Art. 26; amending portions of Arts. 5, 27, 52, and 66 1/2; and making substantial changes in the public local laws.  When referendum was sought by petitions, Chapter 616 was properly referred to the electorate of the State as a public general law, Laws of Maryland 1963 at 2241, since it affected the substantive rights of persons beyond the limits of Baltimore City and made significant changes in the judicial system: inter alia, Code Art. 27, §§ 558, 559, 589 as amended, extended the jurisdiction of the municipal court to offenses committed on transportation facilities bound to or from the city; and Art. 52 as amended, altered the duties of the clerks of the Baltimore City Court and the Superior Court of Baltimore City.

   In two cases this Court has held that statutes similar to the Act were public local laws.  Herbert v. Baltimore County, 97 Md. 639, 55 A. 376 (1903) involved the validity of Chapter[***11] 147 of the Laws of 1900, which re-enacted the Laws of Baltimore County relating to justices of the peace and constables. One of the bases for the attack was that the statute violated Constitution, Art. III, § 33 which provides "And the General Assembly shall pass no special law, for any case, for which provision has been made, by an existing General Law." Our predecessors held that a "special" law as contemplated by the Constitution is a law which provides for an individual case and quoted from the opinion filed for the Court by Judge (later Chief Judge) Alvey in State ex rel. Webster v. Co. Commrs. of Balt. Co., 29 Md. 516, 520 (1868):
 
"The special laws contemplated by the Constitution, are those that provide for individual cases.  Local laws of the class to which the Act under consideration belongs, on the other hand, are applicable to all persons, and are distinguished from Public General Laws, [*431] only in this that they are confined in their operation to certain prescribed or defined territorial limits, and the violation of them must, in the nature of things, be local.  It is not, therefore, by any means, necessary, in order to give a Statute the attributes [***12]of a public law, that it should be equally applicable to all parts of the State.  All that is required to make it a public law of general obligation, is, that it shall apply to all persons within the territorial limits prescribed in the Act.  That is the character of the Act before us, and of that large portion of the Statute law of our State, comprised in the codified division [**276]under the title of 'Public Local Laws.'"
 
See also, Quenstedt v. Wilson, 173 Md. 11, 194 A. 354 (1937) where the Court struck down a statute providing for the appointment of a police justice for Prince George's County for reasons other than that it was a public local law. Cf., Funk v. Mullan Contracting Co., 197 Md. 192, 200-01, 78 A. 2d 632 (1951).

   The Attorney General argues that the Act is not one of local significance only and relies on the fact that while the Act adds 14 sections to the Code of Local Laws of Cecil County (Code of Local Laws of Maryland, [1961] Art. 8, §§ 288B to 288-O, inclusive), the Act also repeals and re-enacts seven sections of the Public General Laws (Code, [1964 Replacement Volume, 1966 Supplement] Art. 52, §§ 6 (d), 18, 19 (1), 102, 108 (7), 119[***13] (a), 120, and adds two new sections, 25 G and 125 C. n9 The strength of the Attorney General's contention can be measured by an examination of the changes made in the general law.

n9 Chapter 256, Laws of Maryland 1967 designated § 125 C as § 125 D.

   Code, Art. 52, deals generally with justices of the peace. Some of the sections, e.g., §§ 1-4 dealing with qualification, are uniformly applicable to the entire state; others, e.g., § 6, fixing monetary limits of civil jurisdiction, are designed to meet the needs or desires of the several counties. Sections of the latter [*432] type were amended by the Act.  These changes are of a purely mechanical nature and have no effect outside of Cecil County. n10

n10 § 6 (d) set the monetary limitations of the jurisdiction of trial magistrates in Allegany, Cecil, Charles, Washington and Queen Anne's Counties. The Act amended § 6 (d) adding the following language:

   "From and after June 1, 1967, the civil jurisdiction vested in justices of the peace designated as trial magistrates in Cecil County shall be transferred to and vested in the People's Court of said county as established in the local laws thereof; and in addition the court shall have jurisdiction in all such cases where the amount in controversy does not exceed the amount set in the local laws."

   § 18 authorized justices of the peace in Queen Anne's, Prince George's and Charles Counties to accept payment of fines and costs in installments.  The Act added "the judge of the People's Court for Cecil County" to those so authorized. 

   § 19 provided for suspension of sentence and probation by justices of the peace in Baltimore, Calvert, Charles, Montgomery, Prince George's, Harford, Carroll, Kent and Queen Anne's Counties and by the judges of the People's Court of Howard County.  The Act added Cecil County.

   § 102 provided for the designation of one justice of the peace in Cecil County as committing magistrate.  The Act added the provision:

   "From and after June 1, 1967 committing magistrates for Cecil County shall be appointed pursuant to the local laws thereof and shall have the authority and duties and receive compensation as specified in such local laws."

   § 108 (7) provided for the number, qualifications, salary, and situs of the trial magistrates in Cecil County.  The Act provided that no trial magistrates were to be appointed after 1 June 1967.

   § 119 (a) provided for the appointment of one justice of the peace at large in each county, excepting Anne Arundel, Harford, Montgomery, Prince George's, Kent and Washington Counties.  The Act added Cecil County to the counties excepted.
 
   § 120 required every trial magistrate, judge and substitute judge of the People's Courts of Anne Arundel, Montgomery and Prince George's Counties to give bond in the penalty of $5,000 and required a $1,000 bond of justices of the peace and clerks to trial magistrates, except in Anne Arundel, Montgomery and Prince George's Counties.  The Act added Cecil County to the counties where a $5,000 bond was required and a $1,000 bond was not.

[***14]

   [*433] Two new sections were added by the Act to Code, Art. 52: § 25 G transferred to the judges of the People's Court of Cecil County the criminal jurisdiction theretofore conferred on trial magistrates.  It should be noted parenthetically that §§ 25-25 F are [**277] substantially similar, and relate respectively to the People's Courts of Montgomery, Harford, Prince George's and Anne Arundel Counties; the Housing Court of Baltimore County; and the People's Court of Wicomico County.  § 25 H relates to the People's Court of Dorchester County.

   § 125 C, also added to Code, Art. 52, provided that the words "trial magistrate of Cecil County" appearing in the Code and the public and local laws shall mean "judge of the People's Court of Cecil County."

   §§ 125, 125 A and 125 B contain similar provisions with respect to the People's Courts in Montgomery, Prince George's and Anne Arundel Counties.

   After analyzing the nature of the amendments which the Act made to Code, Art. 52, we do not share the appellees' view that the Act was essentially general, rather than local in scope.  The classification of a particular statute as general or local is based on subject matter and substance[***15] and not merely on form.  Ness v. Baltimore, 162 Md. 529, 536, 160 A. 8 (1932); State v. Stewart, 152 Md. 419, 425, 137 A. 39 (1927). Nor does the fact that the statute takes the form of an amendment to the general law make it a public general law rather than a public local law if its subject matter is exclusively local. State v. Stewart, supra. If we apply the test adopted by Judge Alvey in State ex rel. Webster v. Co. Commrs. of Balt. Co., supra, i.e., that local laws differ from general laws only in that they are confined in their operation to certain prescribed or definite territorial limits, the conclusion is inevitable: the Act was a local, not a general, law.

   This conclusion is strengthened by the fact that §§ 288B to 288-O, added to the Code of Local Laws of Cecil County, set up the local People's Court; provided for the manner in which the judge was to be appointed or elected; prescribed his qualifications; provided for a substitute judge; defined the court's jurisdiction; authorized the adoption of rules; outlined the procedure; provided for the appointment of a clerk and described [*434] his duties; fixed the salaries of the judge, the substitute judge, [***16] the clerk, and his assistant; made provision for the payment of a pension to a retired judge or his surviving spouse; and set up a system of committing magistrates.

   Prior to the amendment of our constitution on 2 November 1915, when Art. XVI was ratified, referendum by petition did not exist in Maryland.  Legislative referendum was possible only with respect to local laws, since this Court had consistently held that to condition the operative effect of a law of general applicability upon approval by the voters of the State was an improper delegation of legislative authority.  Hammond v. Haines, 25 Md. 541, 90 Am. Dec. 77 (1866); Burgess v. Poe, 2 Gill 11 (1844). As a consequence, many of the early cases which distinguished between laws of local application and laws having a general effect dealt with the question of whether the statute under consideration was referable.

   Examples of statutes held to be local laws can be found in Ness v. Baltimore, supra, (Blue Laws for Baltimore City); n11 Bd. of Ed. v. Mayor, etc. of Frederick, 194 Md. 170, 69 A. 2d 912 (1949) (law permitting condemnation of school property in Frederick); Herbert v. Baltimore County, supra (regulating [***17]compensation of justices of peace in Baltimore County); Hammond v. Haines, supra (extending local option to residents of town of North East); Fell v. State, 42 Md. 71 (1875) (local option, Caroline County); Hamilton v. Carroll, 82 Md. 326, 33 A. 648 (1896) (relocation of county seat); State ex rel. Webster v. Co. Commrs. of Balt. Co., supra (Baltimore [**278] County roads); Burgess v. Poe, supra (adoption of primary school system on a county-by-county basis).

n11 But see, Levering v. Supervisors of Elections, 129 Md. 335, 99 A. 360 (1916) which was distinguished in Ness v. Baltimore, 162 Md. at 537, 160 A. at 11.

   On the other hand, some statutes, local in form, have been held to be general laws, since they affect the interest of the whole state.  Norris v. Mayor & City Council of Baltimore, 172 Md. 667, 192 A. 531 (1937) (statute requiring use of voting machines in Baltimore City); n12 Bradshaw v. Lankford, 73 Md. 428, [*435]21 A. 66 (1891) (prohibition of oyster dredging[***18] in Somerset County); Gaither v. Jackson, 147 Md. 655, 128 A. 2d 769 (1925) (Baltimore City ordinance licensing auctioneers); Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936) (state law licensing paper hangers in Baltimore City).  The rationale of these cases lies in the concept that while the immediate objective sought to be achieved was local in character, the statutes indirectly affected matters of significant interest to the entire state: i.e., regulation of elections, control of natural resources, n13 and protection of state revenues derived from licenses.

n12 The decision of the Circuit Court for Prince George's County on 20 June 1967 in Sawyers v. Board of County Commissioners, cited by the appellees, adopted the rule of the Norris case.

n13 See also, Stevens v. State, 89 Md. 669, 43 A. 929 (1899), which upheld an act regulating the sale of wildfowl and game in Baltimore City and certain counties.

   Our consideration of the provisions of the Act leads us to the view that in subject matter[***19] and substance it is a law which is confined in its operation to prescribed territorial limits, equally applicable to all persons within such limits.  It is thus readily distinguishable from a general law, which deals with the general public welfare, a subject which is of significant interest not just to any one county, but rather to more than one geographical subdivision, or even to the entire state.  Constitution, Art. XVI, § 3 (a), Art. XI A, § 4.

   Since we have concluded that the Act was local in character, it was properly the subject of a petition for referendum by the voters of Cecil County as provided by Constitution, Art. XVI, § 3 (a).  The appellees' motion for summary judgment should not have been granted and the writ of mandamus sought by the appellants should have issued.

   Order reversed; remanded for issuance of writ of mandamus; costs to be paid by appellees. 

ALTENBURG v. SEARS, et al. 
No. 117, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 298; 239 A.2d 569; 1968 Md. LEXIS 603

 March  19, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment for costs reversed; judgment n.o.v. granted; and case remanded for a new trial as to damages; the appellees to pay the costs.

CORE TERMS:  driver, ambulance, ambulance driver, lane, intersection, emergency, brake, red, signal, emergency vehicle, directed verdict, siren, feet, collision, stopping, highway, green, rear, traffic control signal, traffic signal, stop sign, slow down, right-of-way, approaching, forcefully, colliding, neglected, front, fast, use reasonable care

COUNSEL: Samuel F. Kenney, with whom were Robert J. Callanan, John L. Moring, Jr. and Callanan, Goff, Moring & Callanan on the brief, for appellant.

   F. Gray Goudy, with whom was Herbert Burgunder, Jr., on the brief, for appellees.

JUDGES: [***3]

   Hammond, C. J., and Horney, Marbury, Barnes, McWilliams and Singley, JJ. Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*300] [**570] The question presented by the appeal in this tort action, arising out of the rear-end collision of an ambulance with an automobile that had stopped at a traffic signal is whether the trial court erred in denying the motions of the "automobile operator" for a directed verdict or a judgment n.o.v. against the "ambulance driver" and owner of the ambulance.

   The accident occurred near the intersection of the Roscoe Rowe Boulevard with North Taylor Avenue in the northerly environs of Annapolis.  It was daylight, the weather was clear and the roads were dry.  Both the ambulance (an authorized emergency vehicle owned by the Arundel Volunteer Fire Department driven by the defendant-appellee Raymond R. Sears) and the automobile (operated by the plaintiff-appellant Robert C. Altenburg) were traveling in a southerly direction toward Annapolis.  The boulevard at the place of the accident is a divided highway with two marked lanes in each direction and a third lane for southerly bound vehicles turning left at the avenue.

   At the[***4] time of the accident, the ambulance was carrying a highway accident victim to the Anne Arundel County General Hospital.  The ambulance driver, who had entered the boulevard from U.S. Route 50, sounded the ambulance siren from the time he left the main highway until the happening of the accident.  The top of the ambulance was also equipped with a spinning red "beacon ray" which was functioning and red "tunnel lights" at each of the four corners which were on.  There were ten to twelve motor vehicles ahead of the ambulance in the right-hand lane and four or five vehicles ahead of the ambulance in the left hand lane. The vehicles ahead of the ambulance in the slow or right lane promptly moved onto the gravel shoulder upon the approach of the ambulance, but the automobile operator, who was the last of several motorists in the fast lane ahead of the ambulance, apparently did not hear the siren or see the red lights and made no attempt to move out of the way.  As soon as he could see that the way was clear, the ambulance driver moved over into the fast or left lane behind the automobile operator with the intention of entering the left turn lane which began approximately twenty-five to thirty[***5] feet (or two car lengths) from the intersection. [**571] The automobile operator [*301]came to a stop at the intersection in obedience to the changing traffic control signal as another motor vehicle came to a stop in the slow lane along side of him.  While the leading automobile was in a stopped position, the right front of the following ambulance collided with the left rear of the automobile as the ambulance driver was attempting to turn into the left turn deceleration or storage lane. The resulting damage to the respective vehicles was minimal but the automobile operator sustained an injury to his neck.  After the accident the automobile operator, at the request of the ambulance driver, followed him to the hospital.

   Three witnesses testified at the trial.  The pertinent testimony of the patrolman (Officer Disney), who investigated the accident not at the scene but at the hospital (after each of the parties had informed him of their movements in approaching the intersection and as to the position of the respective motor vehicles when the accident happened) was to the effect that the automobile driver told him that he had come to a gradual stop and was waiting in the fast [***6]lane for the traffic signal to change from red to green when the accident occurred and that his statement was made in the presence of the ambulance driver who did not then contradict it.

   The ambulance driver was called as a witness by the plaintiff and extensively examined.  He testified that the traffic signal was green when he was between one hundred and one hundred and twenty-five feet from the intersection but had not noticed it again until after the accident; that in the meantime he began to brake the ambulance "gently" with the intention of making a left turn at the intersection; that there "was a little too much" going on for him to really observe it all; that when he was still some distance from the intersection he noticed that the automobile in front of him had stopped; that he had not then applied his brakes harder because he did not want to "shake up" the injured passenger; that he had not applied them sooner because he hoped the automobile driver would "pull-up" closer to the intersection so that he could "pull-into" the left turn lane but had been precluded from so doing by the automobile stopping too far from the intersection; and that, for that reason, he had not forcefully[***7] applied his brakes until [*302] he was eight to ten feet from the stopped automobile.  Although he had previously testified that the automobile had stopped suddenly when he was "trying to make this third lane," he admitted on redirect, when asked if he could have stopped had he applied the brakes "more strongly," that it was possible.  In addition to testifying that he surmised, from the fact that the automobile operator had not reacted to the siren and flashing lights, that he had not heard or seen the ambulance, he stated that it was the policy of the fire department to stop at all red lights.

   The automobile operator testified that he had applied his brakes approximately thirty-five or forty feet from the traffic light; that his stop had been a normal one and that he had been sitting at the light for "about thirty seconds or so" when he felt the jolt.  Although the ambulance driver could not remember whether he had passed to the right or left of the automobile after the accident, the automobile operator, in reply to a question as to whether there was room enough between the rear of his automobile and the entrance to the left turn lane for the ambulance to enter it, stated that [***8]the ambulance driver backed up after the collision, went to the left of the automobile, asked the automobile driver to "follow [him] to the hospital" and led the way.

   At the close of all the evidence, the motion for a directed verdict in favor of the plaintiff was denied, the case was submitted to the jury on instructions which were not [**572] excepted to n1 and the jury returned a verdict in favor of the defendants.  When the trial court denied the motion for a judgment n.o.v. or, in the alternative, for a new trial and entered a judgment for costs, the plaintiff appealed.

n1 The plaintiff excepted to the original charge with respect to the doctrine of last clear chance, but when the trial court fully instructed the jury in this regard no further exceptions were taken.

   The trial court erred in denying the motion for judgment n.o.v. On motions for a directed verdict or for judgment n.o.v., as the case may be, if the evidence, considered in the light most favorable to the party against whom [***9]the motion has been made, is capable of only one conclusion, the motion should be granted.  [*303] Dunnill v. Bloomberg, 228 Md. 230, 179 A. 2d 371 (1962); Garozynski v. Daniel, 190 Md. 1, 57 A. 2d 339 (1948).

   Under several of the provisions of the motor vehicle law, the drivers of emergency vehicles are given the right of way and excused from obeying certain rules of the road -- see §§ 183 (b) and (c), 214 and 235(a) of Article 66 1/2 n2 -- but the drivers of such vehicles are not relieved from using due care for the safety of others.  These statutory due care requirements have been interpreted to mean that the drivers of emergency vehicles are [*304] liable for ordinary negligence (though their conduct may not be measurable by the same yardstick as is applicable to drivers of conventional vehicles) and must use reasonable care under the circumstances.  M. & C. C. of Baltimore v. Fire Insurance Salvage Corps, 219 Md. 75, 148 A. 2d 444 (1959); Martin v. Rossignol, 226 Md. 363, 174 A. 2d 149 (1961). See also Baltimore Transit Co. v. Young, 189 Md. 428, 56 A. 2d 140 (1947).

n2 Section 183 (b) and (c), concerning the stopping of emergency vehicles at stop signals and signs, provide:

   "(b) Emergency vehicles -- Stopping.  -- The driver of any authorized emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety but may proceed cautiously past such red or stop signal or stop sign. At other times drivers of authorized emergency vehicles shall stop in obedience to a stop sign or signal.

   "(c) Same -- When special privileges may be assumed.  -- No driver of any authorized emergency vehicle shall assume any special privilege under this article except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law."

   Section 214, as to when speed restrictions are applicable to emergency vehicles, provides:

   "The prima facie speed limitations and provisions relative to right-of-way stopping at through highways, rules of the road, traffic-control devices and signals set forth in this article shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle.  This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others."

   Section 235(a), concerning the right-of-way of emergency vehicles, provides:

   "(a) Vehicles.  -- Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer."

[***10]

   Thus, even though the drivers of authorized emergency vehicles are given special privileges under § 183 (b) and (c) and § 214, both supra, they are, nevertheless, required to exercise such reasonable care and diligence as the circumstances of the case may impose.  M. & C. C. of Baltimore [**573] v. Fire Insurance Salvage Corps, supra.

   Exactly how much warning the leading driver should give of his intention to slow down or stop and what precautions the following driver should take to avoid a collision cannot be defined in a precise rule.  Rather, as was said in Brehm v. Lorenz, 206 Md. 500, 112 A. 2d 475 (1955), the duties of the respective drivers are correlative in that the driver of the front vehicle must exercise ordinary care not to slow down or stop without giving the driver of the rear vehicle adequate warning of his intention and in that the driver of the rear vehicle must exercise ordinary care to avoid colliding with the front vehicle. Ordinarily, as it was in Brehm, the question as to which of the drivers involved in a rear-end collision neglected to use due care is for the jury to decide.  To the same effect, see Moore v. Reid, 249 Md. 167, [***11] 238 A. 2d 874 (1968); Clark v. Junkins, 245 Md. 104, 225 A. 2d 275 (1967); Christman v. Weil, 196 Md. 207, 76 A. 2d 144 (1950); Sieland v. Gallo, 194 Md. 282, 71 A. 2d 45 (1950) and Mitchell v. Dowdy, 184 Md. 634, 42 A. 2d 717 (1945). Only in exceptional cases, where it is clear (as is the situation here) that reasonable minds would not differ with regard to the facts, will the question of negligence pass from the realm of fact to that of law.  Bernardi v. Roedel, 225 Md. 17, 168 A. 2d 886 (1961).

   Under the facts of this case, we think it is apparent that the automobile operator was free from contributory negligence and that the ambulance driver was negligent as a matter of law.  [*305] The salient facts are such as to indicate that reasonable minds would not differ as to the verdict.  The ambulance driver admitted that he had been remiss in watching the intermittent red and green traffic control signal. He neglected to effectively brake the ambulance after he knew that the automobile had stopped.  He correctly surmised that the automobile operator was unaware of the presence of the ambulance. And, what is more important, he did not forcefully apply the[***12] ambulance brakes until he was within eight to ten feet of the stopped automobile. Obviously, the ambulance driver did not exercise ordinary care to avoid colliding with the automobile.

   We hold that the motion for judgment n.o.v. should have been granted.

   Judgment for costs reversed; judgment n.o.v. granted; and case remanded for a new trial as to damages; the appellees to pay the costs. 

YULE v. CROWLEY 
No. 143, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 260; 239 A.2d 87; 1968 Md. LEXIS 598

 March  8, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order denying motion reversed and cause remanded for entrance of order in conformity with this opinion; costs to abide the result.

CORE TERMS:  nisi, period of time, final judgment, Maryland Rule, intermediate, mandatory, entrance

COUNSEL: Submitted by Morris Levine for the appellant.

   No brief filed for appellee.

JUDGES: Hammond, C. J., Marbury, Bury, Barnes, Finan and Singley, JJ.  Finan, J., delivered the opinion of the Court.

OPINIONBY: FINAN

OPINION: [*261] [**88] This is an appeal from the denial of appellant's motion for a transfer of action from law to equity.  Appellant commenced an action at law against Michael S. [***2] Crowley and Sally M. Crowley, his wife, who is not a party to this appeal.  On February 17, 1967, the lower court entered judgment nisi in favor of appellant against Sally M. Crowley, but dismissed the action against Michael S. Crowley, the court noting that "were this a cause in equity, the results may have been different." On February 21, 1967, appellant filed motions to transfer the suit to equity and for a partial new trial.  On May 19, both motions were denied in open court.

   Prior to 1961, Maryland Rule 515 a read as follows:

   "Where it shall appear that the plaintiff is or may be entitled to some relief or remedy, but not in the particular court, or on the side of the court in which the action is brought or the relief is prayed, the plaintiff shall not on that account be nonsuited or the action dismissed, but the action may, in the discretion of the court in which pending be transferred by an order to such proper court or docket, either of equity or law, in the same county, as the nature thereof may require, and upon such terms as to the payment of costs as the court may order."
 
The 1961 amendment to this rule deleted the italicized words and substituted the words[***3] "shall be." The obvious import of [*262] this amendment was to create the right of mandatory removal to the proper court, if the motion be timely made, where it appears that "the plaintiff is or may be entitled to some relief or remedy."

   Rule 515 b provides that when the law action is before a non-jury court, as in this case, the transfer may be made at any time before the final judgment is entered.  Normally, this is three days after the date of the judgment nisi. Md. Rule 567 a, e.

   The facts show that appellant filed his motions on February 21, four days later than the February 17 judgment nisi. However, the Court notes that February 17 fell on a Friday.  Under the Maryland Rules, where a period of time prescribed by the rules is seven days or less, "intermediate Sundays, Saturdays and legal holidays shall not be counted in computing the period of time." Md. Rule 8.  Therefore, the appellant's motions were actually filed on the second "day" after the entrance of the judgment nisi, well within the time allowed by Rule 515 b.

   This Court in adopting the amendment to Rule 515 a, as proposed by the Rules Committee, recognized that substantial injustice may result from a[***4] refusal to transfer an action where the movant has made the error of commencing his action on the wrong side of the court.  Such an error, of itself, is not ground for dismissal or nonsuit, and when a motion for transfer is appropriately made, the court, since 1961, must grant the transfer.

   Order denying motion reversed and cause remanded for entrance of order in conformity with this opinion; costs to abide the result. 

COOPER v. ATLANTIC FEDERAL SAVINGS & LOAN ASSOCIATION OFFORT LAUDERDALE 
No. 138, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 228; 239 A.2d 89; 1968 Md. LEXIS 594

 March  7, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse and Pitcher, JJ. 

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  deficiency decree, mortgage, mortgagor, demurrer, foreclosure proceedings, summary judgment, foreclosure, mortgagee, retained jurisdiction, foreclosure sale, final decree, common law, decree, Compiled General Laws, personam jurisdiction, terminate, prayed, prayer, sound judicial discretion, foreclosure action, purchase price, declaration, terminated, overruling, chancellor, purchaser, resident, notice, vel

COUNSEL: Submitted by William A. Franch and Wray & Serio for the appellant.

   Submitted by Albert J. Goodman, Theodore G. Bloom and Goodman & Bloom for appellee.

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

OPINIONBY: MARBURY

OPINION: [***2]

   [*228] [**89] The defendant-appellant in this case, J. Milton Cooper, and his then wife, Elaine E. Cooper, on August 5, 1960, signed [*229] a note in favor of the plaintiff-appellee, Atlantic Federal Savings and Loan Association of Fort Lauderdale, in the amount of $30,000, which was secured by a mortgage on a piece of real property located in Palm Beach County, Florida. Subsequent marital discord resulted in the separation of the Coopers and the payments on the mortgage fell in arrears.  Thereafter, on March 19, 1964, a complaint was filed in the Circuit Court of Palm Beach County, Florida, in Chancery, to foreclose the mortgage. At that time the appellant was not a resident of Florida and personal service of process could not be had upon him. However, constructive service was had by publishing in a local newspaper and mailing a copy of the notice to the appellant who then resided in Washington, D. C.  The Florida court, in exercise of its jurisdiction thus obtained, proceeded with the foreclosure proceedings and as the appellant did not appear to defend, a decree pro confesso was entered, followed by a summary final decree and the property was sold to the appellee, [***3] the highest bidder, for $1,000. The property was subsequently resold for $26,000 and the appellant was credited with this amount, minus costs.  This left a deficiency of $9,293.49.

   [**90] The appellee, on finding that the appellant was then a resident of this state, obtained the services of a Maryland attorney and brought the present action to recover the deficiency.  The declaration was filed in the Circuit Court for Anne Arundel County along with a notice to plead, a motion for summary judgment, and an affidavit in support of the motion.  After service of process upon him, the appellant filed a "Demurrer to Declaration in Assumpsit and to Motion for Summary Judgment." On September 9, 1966, there was a hearing on the demurrer before Judge Sachse, who, on January 10, 1967, overruled the demurrer. The appellant then entered a general issue plea and after further affidavits and admissions, Judge Pitcher granted the appellee's motion for summary judgment and entered judgment on April 26, 1967, for the appellee against the appellant in the amount of $9,293.49, with interest from April 20, 1967, and costs of suit.

   The appellant apparently concedes the validity of the foreclosure[***4] proceedings and the amount of the deficiency, and the only matter now before this Court is the correctness vel non [*230] of the overruling of appellant's demurrer. The bases for the demurrer are a Florida statute, two Florida cases, and paragraph 15 of the final decree rendered by the Florida court.  It is apparent to us that the lex loci contractus governs this case and this seems to be conceded by the parties.

   The statute, Florida Statutes, Section 702.06, provides as follows:

   "Deficiency decree; common law suit to recover deficiency.  -- In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original [***5]mortgagor."
 
The contention of the appellant is that the Florida courts have construed this statute to mean that when, pursuant to a foreclosure action, a court retains jurisdiction for the purpose of entering a deficiency decree, that this is a bar to bringing an action at law to collect a deficiency under the mortgage. A reading of the statute and the cases cited does not show this to be the case. On its face, the statute does give the complainant the right to maintain a suit at common law to recover a deficiency unless three circumstances are present, i.e., where the mortgage was for the purchase price and the mortgagee is the purchaser at the foreclosure sale and also is granted a deficiency decree against the original mortgagor. The last requirement did not occur in this case and no deficiency decree was granted but the court simply by paragraph 15 of its final decree retained jurisdiction to do so "when and if such deficiency decree shall appear proper."

   In Reid v. Miami Studio Properties, 190 So. 505, 506 (Fla.), [*231] the court was considering Compiled General Laws, 1927, Section 5751, a predecessor of Section 702.06, and the question before the[***6] court was whether an action at law could be maintained when the plaintiff prayed for a deficiency decree in the foreclosure proceedings and the prayer was not considered.  There the court said:

   "We understand the law to be that where there is no prayer for a deficiency and where one is not sought or entered in the foreclosure proceeding the law courts may be resorted to to recover one.  * * * [W]e see no basis for the logic that he is precluded from an action at law to recover one if the chancellor is importuned [**91] to enter it and declines to consider the question or to make any ruling thereon.

   * * *

   "In fine, we understand Section 5751, Compiled General Laws of 1927, to mean that if a deficiency decree is asked for in a foreclosure and granted, that settles the question of what forum may be sought for relief but if not asked for or if asked for and overlooked or not considered, the right of the claimant is not affected.  He may sue at law and recover such portion as he may prove himself entitled to."

   In First Federal Savings and Loan Association of Broward County v. Consolidated Development Corporation, 184 So. 2d 471, 472, the complainant prayed for a deficiency[***7] decree and the court retained jurisdiction to grant such a decree. Subsequently, however, the complainant requested that the court terminate its jurisdiction and the court entered an order to that effect. The complainant then brought an action at law in a neighboring county where his action was dismissed by way of summary judgment. The appellate court sustained the dismissal but held that the original court, where the foreclosure action was brought, still had jurisdiction.  In doing so the court reasoned as follows:
 
"If he had denied plaintiff's right to a deficiency decree with or without prejudice, doubtless jurisdiction would have been terminated; or, if a deficiency decree [*232] had been granted, jurisdiction would have been terminated, except for its enforcement.  Jurisdiction is power, which power is for the benefit of the parties involved.  For the purposes of deficiency decrees vel non this power is not for the benefit of the court; hence, it cannot waive its jurisdiction in that regard.  It may refuse or refrain from exercising the power, but the chancellor cannot abjure a court of equity of its innate or inborn jurisdiction by mere words of jacitation.  It[***8] is our conclusion that the Palm Beach County Circuit Court still has jurisdiction of the subject matter of the question of a deficiency decree notwithstanding the plaintiff's motion filed there to 'terminate jurisdiction' and the ex parte order entered thereon."
 
The case now before us, however, is on an entirely different footing since here the defendant was no longer residing in the state where the foreclosure took place and there were no means by which the Florida court could get in personam jurisdiction over him.  In order that a deficiency decree be valid and binding the court must have in personam jurisdiction over the mortgagor. Stewart v. Eaton, 287 Mich. 466, 283 N. W. 651, 120 A.L.R. 1354; 37 Am. Jur., Mortgages, Section 861.  This the Florida court could not do as the mortgagor had left the state.  As was pointed out by the Florida court in Matz v. O'Connell, 155 So. 2d 705, 708 (Fla.):
 
"Although § 702.06, Florida Statutes, F.S.A., in effect states that in all suits for the foreclosure of mortgages the entry of a deficiency decree shall be within the sound judicial discretion of the court, such a statute may not be applied except where the court[***9] had personal jurisdiction over the person of the maker."

   To hold that the Florida statute barred the mortgagee from obtaining jurisdiction in another state simply because the court handling the foreclosure proceedings retained jurisdiction to enter a deficiency decree "when and if such deficiency decree shall appear proper," would enable a defaulting mortgagor to escape liability for a deficiency simply by moving across a state [*233] line.  The purpose of the statute is not to deny a mortgagee the right to recover a deficiency where the foreclosure sale fails to produce the full amount of the debt but is to protect the mortgagor from the harassment and expense of having to defend multiple actions brought in different courts for the same purpose.

   [**92] Our reading of the foregoing statute and cases leads us to the conclusion that the trial court was correct in overruling the defendant's demurrer. Accordingly, the judgment must be affirmed.

   Judgment affirmed, with costs. 

JACKSON v. TOWNSHEND, etc. 
No. 37, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 8; 238 A.2d 81; 1968 Md. LEXIS 569

 February  15, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed February 19, 1968; Denied March 4, 1968.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed.  Costs to be paid by the appellant.

CORE TERMS:  parcel, advertisement, mortgage, separately, bid, mortgage debt, sale price, zoned, tract, mortgaged property, foreclosure, adequacy, supplied, foot, acre, foreclosure sale, general rule, prejudicial, divisible, mortgagor, assignee, decree, impending, purchaser, acreage, selling, front, susceptible, prudence, buyers

COUNSEL: Raymond Godbersen for appellant.

   William E. Kirk for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*9] [**81] Appellant (Jackson) asks us to upset the mortgage foreclosure sale of his property.  Appellee (Townshend), the attorney who made the sale, insists we should affirm the [**82] chancellor, before whom he prevailed.  The purchaser was not made, nor did he become, a party to these proceedings.

   In October 1962 Richard Salter and his wife became the owners of Parcel No. 1 (see plat).  On 26 July 1963 they acquired Parcel No. 2 and on the same day, to secure a loan of $6,000 (the purchase price of Parcel No. 2), they mortgaged both parcels to Loyola Federal Savings and Loan Association (Loyola).  In January 1964 they conveyed both parcels to Jackson, subject to the mortgage, which he assumed. [***3] The record indicates that Parcel No. 1 represented an investment of $7,000.

   Jackson, instead of making the monthly payments as they became due, fell into the habit of allowing two or three payments [**83] to become overdue and then paying them all at once.  There is no evidence that Loyola made any objection to this practice.

   On 21 June 1966, the March, April, May and June payments being overdue, Loyola sent to Jackson, by certified mail, a letter advising him that the mortgage had been turned over to Townshend for foreclosure. The letter further stated that the first advertisement of sale would appear in the "Anne Arundel County papers" on Thursday, 23 June.  Why this letter was returned to Loyola by the postal authorities, marked "Unclaimed," we do not know.  On 22 June, Loyola rendered a statement to Jackson showing a principal balance of $5,033.54 and payments totaling $236.00 (plus $110.08 for the expense account) to be due. The "date payment [was] due" according to the statement was 1 July 1966.  The statement also showed an unexpended balance of $265.77 in the expense account.

   [*10] Although the foreclosure case was not docketed until 28 June, the first[***4] insertion of the advertisement of sale was published in the 23 June issue of the Maryland Gazette.  19 July was designated as the day of sale. On 14 July Jackson sent 2 checks, one dated 12 July and one dated 15 July, each for $174.72, to Loyola in settlement of the payments then due plus the late charges.  On 18 July both checks were returned to Jackson, by certified mail. The covering letter appears to confirm a statement made to him in a telephone conversation on that day to the effect that the checks could not be accepted because "the mortgage * * * [had] been placed in the paper for foreclosure." The record seems to indicate this was his first knowledge of the impending foreclosure. At 9:00 a.m., on 19 July, the day of the sale, Jackson's attorney telephoned Townshend and offered to bring the payments to date and pay all costs.  Townshend told him "it was too late * * * the Board of Directors would not accept a part payment." Both parcels were sold to Ronald Hollander who, at $12,100, was the highest bidder therefor.  Two days later, 21 July, Jackson tendered the entire mortgage debt and all costs and expenses, which, of course, was refused.

   Jackson contends, among other[***5] things, that the advertisement of sale was inadequate.  He contends also that if the two parcels had been offered separately it would have been unnecessary to sell both of them.  In dealing with these contentions we shall relate whatever additional facts and circumstances may be necessary.

   I.

   The advertisement informed the public that Townshend would sell "on the premises"

   "All those two parcels of ground situate, lying and being in the First Election District of Anne Arundel County, State of Maryland,

   "PARCEL NO. 1: KNOWN AND DESIGNATED as Lots Nos. 211, 212, 213, 214 and 215, * * * as shown on the Map of Woodland Beach, Sheet No. 1 * * *."

    * * *

   "PARCEL NO. 2: KNOWN AND DESIGNATED [*11] as Lots Nos. 216, 217, 218, 223, 224, 225, 226, 227, 228, 229 and 230, * * * as shown on the Map of Woodland Beach, Sheet No. 1 * * *."

   * * *

   "The above described property is improved by a two story, frame dwelling with modern conveniences.

   "TERMS OF SALE: A cash deposit of $750.00 will be required of the purchaser * * *.

   "For further particulars, apply to:
William W. Townshend, Jr., Attorney
Towns-Worth Building, South Street
Annapolis, Maryland"

   In assessing the adequacy[***6] of the advertisement it must be remembered that Townshend was the attorney named in the mortgage [**84] and that he represented Loyola in the settlement of the mortgage transaction.  It is reasonable to assume that he examined the title to both parcels or that he had before him, at the time, abstracts made by a title examiner.  He must, therefore, have been aware that Parcel No. 1 fronted on Mayo Road, a main thoroughfare (State Route 214), and that Blue Ridge Road and Bay Bridge Road (40 foot streets) formed two of the boundaries of Parcel No. 2.

   Townshend testified that he did not inspect the premises before preparing the advertisement and that, at the time, he did not know that Parcel No. 1 was commercially zoned. He said he knew there was "some type of building there," but he thought it was "just sort of a converted private garage." He did not mention it in the advertisement because he "didn't feel that it had that much value * * * that both pieces had to be sold together as one unit." How he was able to reach that conclusion without inspecting the property was not made clear.  In fact, the building was occupied by an auto body and paint shop and producing $75 per month[***7] in rent.  He admitted that he learned Parcel No. 1 was commercially zoned about two weeks before the sale.  He made no effort, however, to readvertise or to correct or revise the advertisement or the handbills. Townshend represented in the advertisement that he was in a position to provide further particulars but his testimony suggests that his [*12] knowledge of the property was deficient in at least several significant respects.  It is unlikely, therefore, he would have been able to provide an interested person with full information about the property even if he had been asked.

   In our judgment the advertisement suggests nothing more than an impending sale of a string of 20 foot lots in Woodland Beach "improved by a two story, frame dwelling with modern conveniences." We see nothing to indicate that there was being offered for sale a compact piece of land containing nearly 1/2 acre fronting on a main thoroughfare and two side streets, a substantial portion of which is zoned commercial and which was producing a total of $135 per month in rent.  Nor is there anything to hint the presence of a large food market (Meleddy's Super Market) on the opposite corner or that there are[***8] other commercial operations in the immediate neighborhood.  It seems unlikely that buyers of property susceptible to commercial exploitation, once having read the advertisement, would have given the matter any further consideration, unless, of course, they were otherwise familiar with Jackson's property.

   Long v. Warden, 148 Md. 115, 119-20, 128 Atl. 745 (1925), presented to the Court a situation somewhat like the situation here, except that there the sale price was grossly inadequate.  The comment of Judge Offutt, who delivered the Court's opinion, is interesting:

   "In the advertisement of sale the assignee announced that he would
 
"'on Friday, August 8th, 1924, at 10:30 A. M., on Baltimore Street in front of the Second National Bank, in Cumberland, Allegany County, State of Maryland, sell to the highest bidder all those two tracts of land lying in Allegany County, Maryland, adjoining each other, on the National Highway, about three miles west of the City of Cumberland, both of said two tracts forming together 18 3/4 acres more or less.'

   "It is apparent from these facts, (1) that the property was not properly advertised, (2) that it was not properly sold, and (3) [***9] that it sold for a grossly inadequate price.

   [*13] "No one could possibly learn from the advertisement that any part of the property was to be sold in lots, and indeed the most natural inference to be drawn from the language of the advertisement was that both parcels were to be sold together, because, while it referred to the fact that there were two tracts, it stated that they 'adjoined each other,' and gave [**85] the total acreage of both tracts, but did not give the separate acreage of either.  So that persons desiring to buy a single lot would not have been induced to attend the sale, because there was nothing in the advertisement to indicate that the property would be sold in divisions smaller than the entire acreage; certainly there was nothing in it to indicate that any part of it was to be sold in fifty foot lots.

   "When it was sold, however, it was not sold by the entirety, nor by tracts nor by lots.  The 7.9 acre tract was sold as one piece, and three fifty foot lots were sold from the 10.85 acre tract, so that while the advertisement failed to notify prospective buyers desiring to bid on single lots that single lots would be offered, the manner of sale[***10] prevented persons who may have desired to bid on the whole 18 3/4 acres from bidding.  Certainly it would be difficult to contrive any method of selling property less likely to bring its fair market value than that followed in this case." (Emphases supplied.)

   Although advertisements as terse and scanty as the one now being considered ought not to be encouraged we are nevertheless unable to say, in the circumstances here present, that it is so lacking in sufficiency as to require setting the sale aside.

   In Butler v. Daum, 245 Md. 447, 451, 226 A. 2d 261 (1967), the "rules generally controlling the adequacy of an advertisement of a judicial sale" were restated.  Judge Horney, for the Court, said:
 
"[T]he advertisement is sufficient if it describes the property so that it can be located by the exercise of ordinary intelligence and so that more detailed information [*14] concerning it can be obtained if desired, Brooks v. Bast, 242 Md. 350, 219 A. 2d 84 (1966), Ruby v. Bowlus, 217 Md. 115, 140 A. 2d 513 (1958), cert. den. 358 U.S. 856 (1958), deTamble v. Adkins, 210 Md. 414, 124 A. 2d 276 (1956), Preske v. Carroll, 178 Md. 543, 16 A. 2d 291 (1940);[***11] and (2) the failure to mention or fully describe the nature and extent of the improvements will not vitiate a sale unless the exceptant meets the burden of overcoming the presumption of the validity of the sale by showing that the omission was prejudicial to the sale of the property at a fair and adequate sum and that a resale would be likely to produce a greater amount, Brooks v. Bast, supra, Hardy v. Gibson, 213 Md. 493, 133 A. 2d 401 (1957), Sawyer v. Novak, 206 Md. 80, 110 A. 2d 517 (1955), Preske v. Carroll, supra."

   Jackson failed to show that the sale price was unfair or inadequate and the record is devoid of any evidence that a resale would be likely to produce a greater amount.

   II.

   There were facts and circumstances which should have suggested to Townshend that it might be necessary to offer the parcels separately or that the matter ought to be looked into, at least.  To begin with the advertisement recites that two parcels would be sold.  They are separately described and specifically distinguished from each other.  Each was acquired by the Salters at a different time.  Then there is the fact that the statement of the mortgage claim was only $4,896.97[***12] and, since the proceeds of the mortgage loan were used to buy Parcel No. 2, Townshend knew that the purchase price (of Parcel No. 2) was something under $6,000.  Whether he knew that $7,000 had been paid for Parcel No. 1 in August 1962 is not wholly clear but it is reasonably certain Loyola knew it, assuming both parcels had been appraised before the loan was approved. It should immediately have become apparent that the sale of one or the other of the two parcels might bring enough to satisfy the mortgage debt and pay all expenses.  For all Townshend knew an inspection of the property might have disclosed substantial improvements; [*15] in fact, some improvements had been made.  Another circumstance which [**86] should have suggested caution was Jackson's efforts to bring the monthly payments to date before the sale. Perhaps the most significant fact was Townshend's discovery about two weeks before the sale that Parcel No. 1 was zoned commercial, whereas Parcel No. 2 was zoned residential.

   That Parcel No. 1 was occupied by a going business known as American Auto Body and Paint Shop Townshend learned for the first time when he arrived at the scene to conduct the sale. [***13] The auctioneer announced to the three bidders who were present that "the front lots were commercial." Although the residence was the only structure mentioned in the advertisement the sale was conducted in front of the commercial building.

   It would have been a very simple matter to have offered each parcel separately. If Parcel No. 1 had brought enough to satisfy the mortgage claim and pay the costs and expenses it would, of course, have been unnecessary to offer Parcel No. 2.  If the high bid for Parcel No. 2 had been sufficient there would have been no point in offering Parcel No. 1.  If the bid for neither had been sufficient they could then have been sold together.  Townshend points out that the mortgage provides (in the fine print) that "the property as a whole may be sold, and it shall not be the duty of the party selling to sell the same in parts or lots, but such party may do so." We do not think, however, that such a provision abrogates the basic obligation of the attorney or assignee to act pursuant to the long established equitable principles governing the conduct of persons in a fiduciary relationship to others.  Ex Parte Aurora Fed. Sav. & Loan Assoc., 223 Md. 135, [***14] 162 A. 2d 739 (1960).

   In 37 Am. Jur., Mortgages, § 621, the general rule is stated:
"Thus, the general rule is that mortgaged property which consists of several distinct known lots, parcels, or tracts shall be first offered for sale in parcels, especially where the debtor requests that such a mode of sale be adopted, or the decree directs the sale of land or so much thereof as is necessary to pay the debt.  But this rule, while a wholesome one, is not an arbitrary [*16] one, and should not be enforced where there is a valid reason for a sale of property en masse; as, for example, where the latter mode will insure the best prices and be most advantageous to all parties concerned, or where the separate parcels are used as one property and all are essential to such use, or where the property is first offered in parcels and no bids are received or those received are insufficient to pay the mortgage debt.

   "Generally, where the mortgaged property is divided or is divisible, only so much of it should be sold as will satisfy the mortgage debt." (Emphasis supplied.)

   But Townshend argues that his failure to offer the parcels separately does not matter since the sale price, [***15] $12,100, was not inadequate. While we must agree, in the context here prevailing, that the sale price was adequate, we stop short of saying that adequacy of price, per se, is a handy panacea to be relied upon in any circumstance and in all seasons.  Certainly a mortgagor should not have thrust upon him the liquidation of all of the mortgaged property, despite the adequacy of the sale price, when the satisfaction of the mortgage debt can be accomplished, without undue inconvenience, by the sale of any part or parts thereof susceptible of being separately offered and sold, provided, of course, the mortgagor can meet the burden of showing that the manner of sale was, in fact, prejudicial. Mays v. Lee , 100 Md. 227, 59 Atl. 848 (1905).

   In Webster v. Archer, 176 Md. 245, 4 A. 2d 434 (1939), it was said:

   "The mere fact that mortgaged property which is divisible is sold as a whole [**87] rather than by parcels is not itself evidence sufficient to justify annulment of the sale, but in addition to that it must appear that that method of selling it was prejudicial to the mortgagor, his privies, or creditors, and the burden of showing that is upon one attacking the sale[***16] .  Unless the precise method of sale is prescribed by contract or decree, some discretion is necessarily granted to the trustee, attorney, or assignee, making the sale, as to the manner in which the property will be offered.  That discretion [*17]will naturally be affected by the character and location of the property and other circumstances peculiar to the case, so that it is impossible to lay down a hard and fast rule that divisible property must under all circumstances be sold in parts." (Emphasis supplied.) Id. at 254-55.

   We are not persuaded that Jackson has sustained the burden imposed upon him by Webster, supra. Even if we make the unlikely assumption that he first learned of the impending sale on 18 July, the day before the sale was scheduled, there was still sufficient time to ask Townshend to offer the parcels separately. There is nothing here to show this was done nor is there anything to suggest Townshend would have refused such a request.  In Mays v. Lee, supra, where the order setting the sale aside was affirmed, "[t]he evidence as set out in the record show[ed], that the Michael farm alone, if the property had been sold as separate farms, [***17] would have sold for a sufficient sum to have paid the debt and the expenses of sale." (Emphasis supplied.) 100 Md. at 229. There is nothing in this record, rising above the level of inference or conjecture, to show that either of the two parcels, had they been offered separately, would have generated a bid sufficient to pay the debt and the expenses.

   It occurs to us, moreover, that Jackson's course of action was singularly inept.  While he did not attend the sale himself, his attorney was present with instructions to participate in the bidding.  Jackson was asked, at the hearing, what he instructed his attorney to do at the sale, but he refused to say, claiming a "confidential relationship between attorney and client." We know only that his attorney made several bids. What they were and why he did not go on to become the purchaser we can only speculate.  It well could have been that his attorney forced the price up to a predetermined level and then quit.  Such an approach, if true, was surely irrational especially in light of the fact that the only risk involved in going on to become the high bidder would have been the ensuing increase in Townshend's commissions, and, perhaps, a[***18] higher fee for the auctioneer, either or both of which he might later have persuaded the court to reduce.  In this connection it should be recalled that, two days [*18]after the sale, Jackson offered to pay the mortgage debt and expenses. If he was, in fact, able to do that then it is likely he could have fulfilled any commitment his attorney might have made at the sale.  The notion persists that Jackson's complaint is an afterthought.  Certainly if we require the attorney making the sale to exercise the same degree of judgment and prudence that a careful owner would have adopted in the sale of his own property, Webster v. Archer, supra and Thomas v. Fewster, 95 Md. 446, 52 Atl. 750 (1902), we can scarcely condone the virtual absence of that same degree of judgment and prudence on the part of the owner.  It might be different, of course, if Jackson had been abroad, ill, incompetent or under some disability.  Here, however, he had the benefit of counsel from whom he surely received advice since he sent him to the sale to act in his behalf and in accordance with his instructions.

   Since there has been no showing of inadequacy of price or other prejudice the order of the[***19] trial judge must be affirmed.

   Order affirmed.

   Costs to be paid by the appellant.

   [*19] [SEE ILLUSTRATION IN ORIGINAL] 

FULLER v. FULLER 
No. 101, September Term, 1967
 
Court of Appeals of Maryland
 
249 Md. 28; 237 A.2d 925; 1968 Md. LEXIS 571

 February  14, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Pitcher, J.

DISPOSITION: Decree affirmed, appellee to pay the costs.

CORE TERMS:  divorce, desertion, corroborated, thoro, recrimination, mensa, cross-bill, spouse, third person, cohabitation, furniture, marital, desert, ending, food, psychiatrist, temporarily, consulted, deserted, meantime, clothes

COUNSEL: Harry Goldman, Jr., for appellant.

   Theodore G. Bloom, with whom were Albert J. Goodman and Goodman & Bloom on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes, Finan and Singley, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*29] [**925] The legal battle that precipitated this appeal is a product of domestic strife that caused the litigants herein first to engage in physical violence and finally to seek a divorce a mensa et thoro through the courts of this State.

   Mr. and Mrs. Fuller were married October 18, 1952, in Annapolis.  Mr. Fuller was engaged in an accounting business in which his wife took an active part until it was sold in 1965.  Early in June of 1966 Mr. Fuller became disturbed by the way his financial affairs were being handled, and upon making an analysis of his books and bank statements ascertained that during the period of January 1, 1966, through May 31 of the same year, his wife, who at that time had almost complete charge of his finances, had given him $173 while she had spent $3400 for her personal benefit, including $1500 for country[***3] club stock which he had instructed her not to buy.  Being in doubt as to what steps he should take, he consulted an attorney and acting on his advice, Mr. Fuller closed out a joint account in his and his wife's name and deposited the funds in [**926] his personal account.  He also confiscated from his wife's purse all credit cards and took steps to preclude her from obtaining credit on his account with area merchants.

   On June 6, 1966, when she learned of her husband's actions in removing her from a position of financial control, Mrs. Fuller, who was under the care of a psychiatrist at the time, became enraged and with an admitted intention to kill her husband, attacked him.  She was prevented from using a knife and gun on her husband only by his defensive maneuvers and by his leaving the premises in his car.  Mr. Fuller returned that evening accompanied by a policeman and got some of his clothes, telling his wife at this time that he was leaving temporarily. After spending the next four days at his mother's, Mr. Fuller returned home, having in the meantime consulted his wife's psychiatrist, who thought that it would be safe to do so.  On [*30] his return, all attempts to[***4] reconcile were rejected by her and on June 18, while he was away on a business trip, she moved from their home taking with her all her clothes, all the food and a substantial amount of furniture, and moved into an apartment.

   In the meantime, on June 8, 1966, Mrs. Fuller had obtained the services of an attorney who filed a bill for divorce a mensa et thoro on her behalf, alleging that Mr. Fuller had deserted her and left her destitute without means of support.  On June 29, 1966, Mr. Fuller filed a cross-bill alleging desertion by his wife on June 18, 1966, and further, that in addition to paying household expenses that he was giving her $50 a week and thereby was providing adequate support.

   After hearing testimony by the parties and their witnesses, Judge Pitcher found that the acts of the husband in withdrawing financial control from his wife did not amount to desertion, especially in light of the $50 per week that he provided for her.  He also found that leaving the home temporarily on June 6, 1966, did not constitute desertion by him since he intended to and actually did return four days later, and left only to protect his personal safety.

   With respect to the cross-bill, [***5] Judge Pitcher ruled that on the undisputed facts set forth above, that by moving from their home on June 18 shortly after her attack on her husband, without justification and with no intention to return, that Mrs. Fuller had deserted her husband.  Accordingly, he dismissed the wife's bill of complaint and awarded the husband a divorce a mensa et thoro on his cross-bill, on the ground of her desertion of him.

   On appeal before us the main thrust of the appellant's argument is that the appellee's evidence was not sufficiently corroborated by a non-party witness. To show the desertion of a spouse two elements need be present.  In Zulauf v. Zulauf, 218 Md. 99, 105, 145 A. 2d 414, Judge Horney said, speaking for this Court:
 
"Abandonment and desertion as grounds for a divorce contain two inherent elements: (i) the ending of cohabitation and (ii) the intention of the offending party [*31] to desert. Givner v. Givner, 201 Md. 333, 93 A. 2d 563 (1953). See also Thurlow v. Thurlow, 212 Md. 222, 129 A. 2d 170 (1957); Evan v. Evan, 200 Md. 473, 90 A. 2d 178 (1952)."
 
In the recent case of Taylor v. Taylor, 238 Md. 312, 315, 208 A. 2d 685, we said: [***6] "Every element necessary to justify the relief sought must be corroborated. Hodges v. Hodges, supra [213 Md. 322]; Kelsey v. Kelsey, 186 Md. 324, 328, 46 A. 2d 627 (1946)." However, in a hotly contested case where there is little chance of collusion, slight corroboration will be sufficient.  Fedder v. Fedder, 248 Md. 162, 235 A. 2d 553; Comulada v. Comulada, 234 Md. 287, 199 A. 2d 197; Heinmuller v. Heinmuller, 133 Md. 491, 105 Atl. 745.

   There is no dispute that there was ample evidence of an ending of cohabitation. This was corroborated by the testimony of Timothy Charles Fuller, who testified that [**927] his mother moved from the marital home in June of 1966 and had not returned; that upon returning from his enlistment in the Navy on August 12 that he lived with his mother for about a week and then went to live for a while with his adoptive father because he was unable to get along with his mother.

   The remaining element to be corroborated was the intent on the part of Mrs. Fuller to desert on June 18.  The actual intent of a person is a state of mind and as such can be shown to the world at large only through the outward acts and manifestations of the[***7] one who has formed the intent.  This may be shown by what one has said or by inferring intent from what one has done.  In many respects a person's actions may be more reliable indications of his true intent than what he had said to a third person, for one's intent as communicated to a third person today can easily be recanted tomorrow with nothing lost, while his acts, once done, are irrevocable and their consequences are there for the world to see.

   In the instant case but one inference can be drawn from the acts of Mrs. Fuller.  By leaving the home provided by her husband, taking with her the food and furniture, and by her persistent disregard for his entreaties to return and failure to even answer his letters she left no doubt of her intent to put an end to the existing marital relations.

   [*32] The appellant also claims that her husband is barred from the relief granted by recrimination. This defense is available only where the spouse seeking relief is guilty of a marital offense that would give the other party grounds for a divorce. A review of the record shows no such offense on the part of Mr. Fuller.

   While the appellant's counsel insists that certain evidence was obtained [***8]as a result of an illegal wiretap we need not consider this aspect of the case since Judge Pitcher found it unnecessary to consider the contents of these alleged calls, having ample grounds from other sources on which to base his decision.

   Decree affirmed, appellee to pay the costs. 

DIGGS v. SIOMPORAS, et al. 
No. 69, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 677; 237 A.2d 725; 1968 Md. LEXIS 692

 February  8, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs and Melvin, JJ.

DISPOSITION: Decree affirmed; appellant to pay the costs.

CORE TERMS:  optionee, optionor, deed, specific performance, confirmatory, purchase price, laches, real estate agent, option period, tendered, procured, convey, abatement, Maryland Rule, extension of time, defect in title, deed dated, procurement, marketable, purchaser, waive, unmarketability, safekeeping, expiration, insistence, chancellors, purported, thereupon, recorded, conveyed

COUNSEL: George B. Woelfel, Sr. for the appellant.

   Submitted on brief by Douglas F. Lyons for the appellees.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes, Finan and Singley, JJ. Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*678] [**725] The somewhat unusual question presented by this appeal is whether the prospective purchasers of a lot of land under an option may waive a defect in the title and compel conveyance of the land subject to the flaw on the refusal of the record titleholder to execute a deed. The Circuit Court for Anne Arundel County decreed specific performance and the purported seller appealed.  The optionor-appellant is Charles Diggs and the optionees-appellees are Thomas J. Siomporas and Burton Hazel.

   The optionees, who were interested in either of two lots in a development known [**726] as "Woodland," engaged a real estate agent to purchase one of them.  One lot was owned by Frances Sparrow and the other was owned by Charles Diggs.  The agent went to see both owners.  Frances Sparrow[***3] was not interested in selling, but Charles Diggs was and asked $3000 for his lot.  He also agreed to sign an option upon the making of a down payment to close the deal.  When this information was relayed to the optionees, one of them (Thomas Siomporas) gave the agent a check for $100 payable to the optionor. The agent thereupon prepared the option in question which, in addition to the initial payment of $100, provided for payment of the balance of $2900 in sixty days. The option also contained a provision that "if title is not good and merchantable and free of encumbrances, this contract shall become void and neither party shall have any claims against the other." When the option and check were taken to the optionor, who could not read or write, the agent having first read and explained the transaction to him, the optionor executed the option by making an x-mark and Margaret Coates signing his name for him.  The execution of the option was witnessed by the real estate agent.

   The description of the optioned lot was taken from a deed dated May 22, 1930 from W. Meade Holladay, widower, to Charles Diggs, which purported to convey 2.5 acres of land known as Lot 9 on the plat of "Woodland" [***4] recorded in the [*679] county land records.  A subsequent title examination, however, disclosed a defect in the title in that Lot 9 had been conveyed to Douglass and Pearl Duvall by a deed dated July 20, 1929 and recorded before the deed to Charles Diggs.  As a consequence title to Lot 9 had not passed to the optionor. But, as the record on the whole indicates, the parties had Lot 10 in mind as that which was meant to have been conveyed by W. Meade Holladay to Charles Diggs.

   When the defect was discovered, the optionees decided to accept whatever interest the optionor could convey in Lot 10 and take a chance of perfecting the title thereto by securing a confirmatory deed from the heirs of W. Meade Holladay who had died.  On the last day of the option period, the optionees, accompanied by the real estate agent, went to the optionor, declared they were ready to buy the lot and tendered $2900 in cash to the optionor. He refused the tender, saying that he was not going to do business with them.  On the same day, the agent, on the insistence of the optionor, took back the $100 check "in an attempt to relieve [himself] of any responsibility" and returned it to the drawer for[***5] safekeeping so that he, the agent, would not lose it.  In his answer to the amended bill of complaint, the optionor averred that he had returned the check "with the understanding that the transaction was closed and that he did not want the money without doing something for it" and denied that the optionees "offered to pay him the option in full when he did not have title to the property and that it was not until after the sixty day option had expired and the money refunded that he told them he would not go through with any further dealings." At the hearing, the optionor, besides testifying that he insisted that the agent take the check back "'cause I haven't done nothing for it," further stated that he gave the check back on the same day it was given to him; that the optionees were never ready and willing to perform; and that they never tendered $2900 to him.  He also denied having executed the option.

   Subsequently, the optionees got in touch with the heirs of the original grantor and, having convinced them of the mistake made by the predecessor in title, procured a deed to Lot 10 in the name of the optionor. The deed, dated some five months [*680] after the expiration of the[***6] option was sufficient to give the optionor good title to the lot.  After the confirmatory deed had been obtained, the optionees attempted to induce the optionor to execute a deed conveying the lot to them but were not successful.  Thereupon, this suit for specific performance was brought.

   [**727] The chancellors (Childs and Melvin, JJ.), noting the variance between the answer of the optionor to the bill of complaint and his testimony at the hearing, found that the optionees were ready, willing and able to complete the transaction and that the optionor was not released from his obligation when the optionees waived the defect in the title.  They concluded that performance of the option "was prevented solely through the action of the defendant."

   On appeal, the optionor contends variously that the contract was an option; that under his version of the facts the optionees were never willing to perform; that on the return of the $100 check and expiration of the option period, the option ceased to exist; that there was no consideration for an extension of time; that the provision in the option with respect to unmarketability vitiated the contract because he had no title to convey during[***7] the option period; and that since this suit was not brought until more than a year after the confirmatory deed was procured, the optionees were guilty of laches.

   The optionees conceded that the contract was an option but contended that they had performed thereunder when they waived the defect in title and tendered the optionor the balance of the purchase price within the option period.

   The lower court, having seen and heard the witnesses, chose to believe the testimony presented by the optionees. We will not disturb that finding. Maryland Rule 886 a.  Accepting the testimony of the optionees as true, we agree with the chancellors that the optionees attempted to exercise the option within the specified time by tendering the purchase price but were prevented from so doing by the deliberate acts of the optionor. For these reasons, the authorities cited by the appellant-optionor -- for the proposition that when an option has by its terms expired it cannot thereafter be accepted and no extension of time absent a valuable consideration can extend it -- are not in point.

   [*681] An option is a continuing offer to sell during the duration thereof which on being exercised by the optionee[***8] becomes a binding and enforceable contract.  1A Corbin on Contracts § 264; 1 Williston on Contracts § 25; 17 Am.Jur.2d Contracts § 32; 77 C.J.S. Sales § 33.  And when the optionee indicates an intention to exercise the option and tenders the amount of the purchase price, he has performed under the option and is entitled to specific performance. Messina v. Moeller, 214 Md. 110, 133 A. 2d 75 (1957); Blondell v. Turover, 195 Md. 251, 72 A. 2d 697 (1950); Trotter v. Lewis, 185 Md. 528, 45 A. 2d 329 (1946). The fact that the $100 check was returned had no effect.  The optionees tendered the balance of the purchase price and the check was given to the real estate agent, solely on the insistence of the optionor, after he had refused to receive $2900 in cash.  The check was then returned to the drawer because the agent did not want the responsibility of its safekeeping.

   Options to purchase commonly contain a clause providing that if the title is not marketable, the optionee is entitled to a return of the deposit.  The provision is for the protection of the prospective purchaser. A purchaser, therefore, may waive a defect in title and take whatever interest[***9] the seller has with restitution or abatement of the purchase price under such circumstances as the court may determine.  81 C.J.S. Specific Performance § 21 b (2) (a); 49 Am. Jur. Specific Performance §§ 105, 106; 5A Corbin on Contracts § 1160; 5 Williston on Contracts § 1436.  Cf. Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 455, 171 A. 2d 736, 746 (1961). The optionees in the present case, apparently because their procurement of a confirmatory deed for the optionor had perfected his title, did not seek an abatement. By the same token, the procurement of the confirmatory deed makes it unnecessary for [**728] us to consider the effect of the clause voiding the option in the event the title was unmarketable. n1 A question as to laches was not raised below [*682] but had it been, laches would have been inapplicable because the failure of the optionees to reasonably comply with the terms of the option was due to the intransigence of the optionor.

n1 Even if a confirmatory deed had not been procured it is clear that the optionor could not set up his defective title as a defense to the suit of the optionees for specific performance. See Medoff v. Vandersaal, 116 Atl. 525 (Pa. 1921), where the word "void" in an unmarketability clause was interpreted to mean "voidable" with the right of choice in the party beneficially interested.

[***10]

   Decree affirmed; appellant to pay the costs. 

LEITCH, et al. v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY 
No. 5, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 611; 237 A.2d 748; 1968 Md. LEXIS 685

 February  7, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed February 16, 1968; Denied February 27, 1968, and Opinion Modified.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed, appellants to pay costs.

CORE TERMS:  subject property, proffer, acre, condemnation, comparable, dwelling, purchase price, new trial, per acre, courtroom, appraisal, sustaining, settlement, zoned, evidence to support, circumstances surrounding, board of education, appraisal report, outbuildings, residential, testifying, acreage, appellate review, stressed, reversible error, sound discretion, contract of sale, Maryland Rule, condemned property, comparable sale

COUNSEL: Allan C. Westcott for appellants.

   Thomas J. Wohlgemuth for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes, Finan and Singley, JJ. Finan, J., delivered the opinion of the Court.

OPINIONBY: FINAN

OPINION: [*612] [**748] Appellants, Charles F. Leitch and wife, by contract dated August 25, 1965, agreed to purchase from Mitchell H. Latimer and wife for the sum of $40,000, a 23 acre tract of land in Anne Arundel County located in the middle of several developed [**749] subdivisions.  There was also a hand written notation on the contract acknowledging the purchasers' understanding that the Board of Education had expressed an interest in acquiring a portion of the tract.  The property as of the date of the contract was improved by an extremely dilapidated and vandalized [*613] dwelling and outbuildings. Subsequent to the date of contract, and prior to ultimate settlement on October 11, 1965, the dwelling was rehabilitated sufficiently to obtain financing as improved property and ultimately to house a tenant paying $125.00 per month in rent, although there[***4] was testimony that part of the rent was paid by the services of the tenant improving the property.  During the period between contract and settlement, the appellee, Board of Education of Anne Arundel County (Board), passed a resolution dated September 1, 1965, resolving that 5.5 acres of the property contracted for by the appellants was a necessary acquisition for expansion of the adjacent Edgewater School property. During this period representatives of the Board communicated offers of purchase to appellant Charles Leitch which offers were characterized by Leitch as "an insult to the amount of money that I have paid for the property." Immediately after settlement, the appellants (the Leitchs having since been joined in purchase by appellants Marcel Bernard and wife) made a counter-offer to the Board in the form of two proposals, one of which redrew the line of taking so as to exclude the dwelling house and consisted of 5.5 acres, asking $32,000.00, the other accepting the line as proposed by the Board but asking $45,000.00, for 5.5 acres.

   The Board and the appellants being unable to mutually agree, condemnation proceedings were filed by the Board in December, 1965.

   Both parties[***5] continued efforts to negotiate a settlement. Each had an appraisal made by a competent real estate appraiser, however, the two appraisals differed by some $12,000.  The matter proceeded to trial in June, 1966.  At the trial, it was shown that the property was zoned cottage residential and that appraisals were made on that basis.

   Mr. Ogle, who submitted appraisals on behalf of the appellee, used five comparable sales including the subject property which showed a range in price per acre from $1,600 to $2,300.  His testimony as to the value of the subject property was $1,700 per acre for the land, the 5 1/2 acres amounting to $9,652, and $5,000 for the house and outbuildings and $2,029 for loss of road frontage, making a total of $16,654.  Mr. Richebourg, who testified for the appellants, stated that in recent years there had [*614] been no comparable sales of property in the immediate area of the subject property. However, he quoted per acre values from four sales in nearby agriculturally zoned areas, making adjustments in values for adaption to land zoned cottage residential. His values per acre ranged from $1,577 to $3,500.

   Mr. Richebourg also endeavored to testify[***6] regarding lot sales on the premise that the subject property was zoned for residential subdivision requiring a minimum lot size of 100 by 200 feet.  The appellee objected to Mr. Richebourg's so testifying and also objected to his testifying in detail as to the list of all of the properties submitted by him.  The court sustained these objections and the appellants made no proffer after the objections were sustained.  However, Mr. Richebourg did give an evaluation of the condemned property of $3,000 per acre for a total of $13,500 for 4 1/2 acres; $4,000 for the one acre homesite and $10,097 for the depreciated value of the dwelling and outbuildings, for a total of $27,597 for the condemned property.

   The appellant Charles Leitch attempted to testify as to his contract with the Latimers, in an effort to show how the $40,000 purchase price was intended to be broken down as to portions of the property.  However, [**750] the appellee's objection to this testimony was sustained and the appellant thereafter made no proffer. Judge Childs' instructions to the jury in our opinion were quite adequate; neither party took exceptions to the instructions.

   In its inquisition, the jury[***7] brought in a value of $16,654, which coincided with Mr. Ogle's appraisal. The court entered a judgment of condemnation for that amount from which the appellants have appealed.

   The appellants assign the following reasons for taking this appeal: (1) the exclusion by the court of the testimony of appellants' appraiser, Mr. Richebourg, regarding lot sales in the immediate vicinity of the subject property; (2) the court's alleged preclusion from consideration by the jury of the testimony of Mr. Richebourg relating to the contents of his appraisal report after it was admitted in evidence; (3) the court's sustaining the appellee's objection to appellant Charles Leitch's testifying as to the circumstances surrounding his purchase of [*615] the subject property after such sale had been introduced by the Board of Education as a comparable sale; (4) that the award of condemnation was against the evidence; and (5) the abuse of the court's discretion in its denial of the appellants' motion for a new trial.

   We will discuss the merits of the grounds on which this appeal is taken in the order in which they were advanced by the appellants.

   i

   In the case of State Roads Commission of Maryland [***8]  v. Wood, 207 Md. 369, 114 A. 2d 636 (1955), Judge Henderson speaking for the Court stated:
 
"It is likewise conceded that evidence of sale of comparable land is admissible in condemnation cases, and that a wide discretion rests in the trial court as to what is properly comparable." Id. at 373, 114 A. 2d at 638.

   Also in Wood, this Court held that it did not subscribe to the rule that sales of platted lots cannot be used to determine the value of unplatted lots in the same vicinity, stating:
 
"We think the rule is stated too narrowly.  It is universally recognized that comparisons with sales of similar land may be made, and that the adaptability of the land condemned to development purposes may be considered." Ibid.
 
See also Lustine v. State Roads Commission, 217 Md. 274, 280, 142 A. 2d 566 (1958). The Court, however, in Wood, stressed that a proper foundation must be laid for such testimony.

   Reading the record, it is not clear as to just what Mr. Richebourg was attempting to achieve by his recitation of lot sales.  After discussing acreage values, he stated:
 
A. * * *.  I also considered the sale of lots in -- and
I'm not comparing[***9] lot sales with acreage sales --
(Mr. Wohlgemuth) Your Honor --
A. -- but if you study this --
[*616] (Mr. Wohlgemuth) -- at this point I would object if he's not comparing them, I don't think it would be --
(Court) All right, sustained.
 
   Whether the appellee's objection was aimed at the fact that Mr. Richebourg was not using the lot sales for comparison purposes, and accordingly such testimony may have been irrelevant, or whether the objection was prompted by the thought that Mr. Richebourg was endeavoring to introduce "market data" into the record, which with some adjustment may have been pertinent as to the market value of the subject property, is unknown.  As stated above, the appellants made no proffer of what they intended to prove by Mr. Richebourg's testimony, and Mr. Richebourg went on to conclude his testimony with a summarization of his evaluation of the subject [**751] property. Under the circumstances, we see no reversible error in the court's sustaining this objection. n1

n1 The appellants made no timely proffers (Rule 522b) after the objections to Mr. Richebourg's testimony were sustained.  The manner in which an exception to such a ruling of the court is best reserved for appellate review is found in Fowler v. Benton, 229 Md. 571, 575, 185 A. 2d 344 (1962), wherein Judge Prescott states most lucidly an adequate procedure.

   "Maryland Rule 522 a and b does not require a formal exception to a ruling of the court, but states that it is sufficient if a party 'makes known to the court the action which he desires the court to take * * *.' A simple and effective manner of preserving for appellate review the correctness of the trial court's rulings when failing to admit offered testimony is for counsel to ask specific questions of a witness, and obtain a ruling by the court on each question * * *; and, if the question itself does not disclose its relevancy, then counsel should call to the court's attention the nature of its materiality.  Another easy and also effective method of obtaining appellate review not only of the immediate question asked but also those of a similar nature is, after an objection has been sustained to a question asked, to make a formal proffer of what the witness' testimony would be in answer to the question asked and those of a similar nature, place the proffer in the record, and obtain a ruling by the court on its admissibility."

[***10]

   [*617] ii

   The contents of the appraisal report by Philip Richebourg, which was the appellants' exhibit F, appears from the record to have been admitted in evidence.  It contained a total of fifteen comparable sales for the purpose of providing evidence from which a fair market value of the subject property could be ascertained.  Six of the fifteen sales consisted of lot sales.  This was the "market data" to which Mr. Richebourg referred when he testified.

   The court verbally speculated as to whether or not the jury would read the report page by page.  The court then asked Mr. Richebourg to describe the sales which he felt to be the most comparable and this he did.  When the court suggested that Mr. Richebourg summarize his testimony rather than go over the sales one by one, the appellants made no objection to this procedure.  We do not find that this effort of the trial court to keep the conduct of the trial moving along was in any way prejudicial to the appellants' case.

   iii

   The court's sustaining of the appellee's objection to appellant Charles Leitch's testimony as to the circumstances surrounding his purchase of the subject property from the Latimers was proper.  The appellants[***11] introduced the contract of sale into evidence as their exhibit B and it was in the record to speak for itself.  Lanasa v. Beggs, 159 Md. 311, 151 Atl. 21, 26 (1930). It contained the amount of the purchase price and described the property.  It would have been purely self-serving for Mr. Leitch to have been allowed to testify to the undocumented breakdown in his own mind as to how he arrived at the $40,000 purchase price and as to which portion of the property he thought worth more than other portions.  It should be borne in mind that this was a contract in which the Board was not a party.  It is true the appellee used the purchase price of the entire 23 acre tract as a comparable sale; Mr. Ogle broke it down into $5,000 for the dwelling and $35,000 for the acreage. However, Leitch did testify, without objection, that at the time of the condemnation, he placed a value on the dwelling of $15,000, and on the dwelling and 5.5 acres a value of $45,000.  Again, [*618] when the objection to Leitch's testimony breaking down the purchase price into component parts was made, the appellants made no proffer as to what they intended to prove by his testimony.  We do not think the[***12] sustaining of the objection was reversible error.

   [**752] iv

   The only question regarding the evidence in this case, insofar as the verdict is concerned, to which this Court should address itself is whether there was legally sufficient evidence to support the verdict.  We think there was.  In Bergeman v. State Roads Commission, 218 Md. 137, 144, 146 A. 2d 48, 52 (1958), this Court stated:

   "It is trite to observe that the weight of evidence is for the triers of fact, or for the court on motion for new trial. We are only concerned with the legal sufficiency of the evidence to support the verdict, and in passing upon that question the testimony, and all proper inferences therefrom, must be considered in a light most favorable to the plaintiff's case."
 
See also 5 Nichols, Eminent Domain § 17.1(4) (3d ed. 1962):

   "In those cases where the question of quantum may be the subject of review upon appeal, the appellate court, too, is reluctant to interfere with the decision of the lower tribunal.  Such decision will ordinarily not be disturbed unless the amount of the award is obviously and grossly inadequate or excessive. In the face of conflicting evidence[***13] the appellate court will generally refuse to modify the decision so long as there is some evidence to support the decision.  The court will not, so long as the award is within the range of credible testimony, reweigh the evidence or retry the facts."

   v

   The appellants in their motion for a new trial stressed the prejudice which was done to their case because of the absence of appellant Charles Leitch from the courtroom, due to his misunderstanding the instruction of the court calling for the sequestration [*619] of non-party witnesses.  The record shows that Leitch was not sitting with his counsel at the time the court gave this directive: "All witnesses other than actual parties who are about to testify in this case are requested to remain outside the courtroom until called." Leitch thereupon left the courtroom with other witnesses.  However, the other three appellants remained in the courtroom and apparently it was not until some time later that the appellants' counsel discovered Leitch's absence, and that he had not received the benefit of evaluating the testimony of other witnesses.

   It is unfortunate that Mr. Leitch assumed the instruction to be directed at him, but we[***14] fail to see how his misinterpretation constituted any error on the part of the court.  It certainly would have been easy for Leitch to inquire of his counsel whether the court's instruction was applicable to him.

   The rule that the granting of a motion for a new trial rests with the sound discretion of the court is so well established as not to require elaboration. See Brinand v. Denzik, 226 Md. 287, 173 A. 2d 203 (1961). We find nothing even approaching an abuse of discretion in the lower court's denial of the appellants' (defendants') motion for a new trial.

   Being mindful that at no time did the appellants make any proffer of what they intended to prove by any of the witnesses, after objection to their testimony was sustained by the court, and further being aware that they offered no exception to the instructions given by the lower court, we find no merit to any of the grounds on which they have based their appeal.  The judgment of the lower court is affirmed.

   Judgment affirmed, appellants to pay costs. 

MARTIN AND BURCH, et al. v. MAYOR AND ALDERMEN OF ANNAPOLIS,et al. 
Nos. 64, 65, 66, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 551; 237 A.2d 728; 1968 Md. LEXIS 681; 49 A.L.R.3d1138

 February  6, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Modification of Order as to Costs Filed February 21, 1968; Denied March 4, 1968.

PRIOR HISTORY:  
Three appeals in one record from the Circuit Court for  Anne Arundel  County; Macgill, C. J.

DISPOSITION: Orders affirmed, the costs to be paid by the appellants.

CORE TERMS:  hotel, ordinance, height, parking, feet, zoning, restaurant, motel, site, residential, maritime, building permit, foot, apartment, zoning ordinance, saving clause, setting forth, ambiguity, accessory, erected, acre, permitted use, industrial, regulations, issuance, invalid, facing, personal service, injunctive relief, fireproof

COUNSEL: Lawrence F. Rodowsky and Robert S. Paye for appellants.

   Neil Tabor and William L. Siskind, with whom was Allan C. Westcott on the brief, for Hospitality House of Annapolis, Inc., one of appellees; Malcolm B. Smith on the brief, for Mayor and Aldermen of Annapolis, part of appellees; and William A. Franch on the brief, for the Yacht Basin Company, other appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes, Finan and Singley, JJ. Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*553] [**729] The three appeals and cross-appeals, Nos. 64, 65 and 66, September Term, 1967, consolidated for briefing pursuant to the order [***4]of the Court, and argued together, represent the three last legal battles in a campaign by various property owners and of Historic Annapolis to prevent the construction by Hospitality House of Annapolis, Inc. (Hospitality House), one of the appellees, of a hotel with restaurant and parking facilities on waterfront land on Annapolis harbor on the east side of Compromise Street at the foot of St. Mary's Street.  Another aspect of the controversy was before us in Martin v. Mayor and Aldermen of Annapolis, 240 Md. 579, 214 A. 2d 800 (1965). 

   For convenience, we will refer to No. 66 as the "Zoning Appeal Case," to No. 64 as the "Height Case" and to No. 65 as the "Hotel Case." We will consider them in that order in this opinion.

   The Zoning Appeal Case (No. 66)

   The hotel site involved in the litigation is on waterfront land in the City of Annapolis on the east side of Compromise Street at the foot of St. Mary's Street.  It is leased by Hospitality House from The Yacht Basin Company, a Maryland corporation.  It is located within that portion of Annapolis zoned as a Maritime District.  It is also within the Historic Area of Annapolis established by Section 6-13 of the Annapolis City[***5] Code (1960 Edition).  This Historic Area covers a section of the downtown and harbor area of Annapolis.  A Board of Review was authorized by that section of the Code "to review the appropriateness of exterior architectural features of buildings and structures" thereafter erected in the Historic Area and to make recommendations thereon. Much of the same area has been designated as a National Historic Landmark.

   [*554] The original building permit was issued on May 22, 1964, to Hospitality House for the construction of a hotel on the site in question. Filed with the application were plans for a proposed seven-story hotel with 137 rental units and a one-story restaurant located in the northeastern part of the site. On the southwestern part of the site a portion of the parking area for guests of the hotel was proposed to be provided by an elevated parking deck. There were also additional parking spaces at ground level on the northwestern portion of the site, adjacent to the hotel, but separate and apart from the elevated deck.  There were a total of 140 parking spaces.

   Hospitality House was notified on May 27, 1964, by the Mayor of Annapolis and the City Engineer that the Mayor[***6] and Aldermen of Annapolis (the Council) had adopted a resolution "cancelling" the permit.  This cancellation of the permit resulted from the failure of the City Engineer to submit the plan to a Board of Review in accordance with Sections 6-33 to 6-40 of the City Code. All of the terms of the members of the Board of Review had expired in 1960, and no new members had been appointed.  The City Attorney ruled that the Board of Review could still act and the Board of Review advised the Mayor that it disapproved the plans.  Section 6-39 of the City Code, however, provides that disapproval by the Board of Review shall not be cause for the denial of the permit if the application otherwise complied with the provisions of the City Code.

   Captain William A. P. Martin, his wife, and other residents and taxpayers, the appellants, on June 1, 1964, filed two administrative appeals; one to the Zoning Board of the City setting up certain alleged violations of the zoning ordinances in the issuance of the permit, and the other to the City's Board of Appeals (the "Building Board") established under Section 107.1 of [**730] the National Building Code (the National Building Code is incorporated by [***7]reference into the City Code by Section 6-13 of the City Code) stating certain reasons why the application allegedly did not comply with provisions of the City's Building Code.

   Among other things, it was alleged in the appeal to the Zoning Board that the use as a hotel and certain other facilities shown on the plans was not permitted in the Maritime District, [*555] that the building exceeded the height limitations and that there were insufficient parking spaces.  After a hearing, the Zoning Board on August 3, 1964, ruled that the application should have been denied because it found that the application contemplated certain commercial uses, not accessory to a hotel, which were not permitted in the Maritime District and the building permit should not have been issued until an accessory parking permit was issued.  The Zoning Board, however, also indicated that hotels and accessory restaurants were permitted uses in the Maritime District and that in all respects, other than those noted, the application complied with the Zoning Code.  Section 26-40 of the City Code gives any aggrieved party a right to appeal to the Circuit Court for Anne Arundel County from a decision of the Zoning[***8] Board, but none of the parties appealed from its decision.

   On August 4, 1964, the Building Board dismissed the companion appeal on the ground that it was "moot" in view of the decision of the Zoning Board on August 3 and again none of the parties appealed.

   On August 10, 1964, Hospitality House reapplied for a building permit and in its new application stated that it was "not making application for any commercial facilities on the subject property, except for a hotel or motor inn and restaurant." On the same date, Hospitality House also applied to the Council for a parking permit "as an accessory use to the hotel or motor inn to be erected." The issuance of the parking permit by the Council was attacked in an equity suit and this permit was the subject matter of the prior appeal in Martin v. Mayor and Aldermen of Annapolis, 240 Md. 579, 214 A. 2d 800 (1965), supra.

   A new building permit was issued to Hospitality House on October 6, 1964, and on October 14, 1964, the same persons who had instituted the prior administrative appeals filed two new appeals to the Zoning Board and to the Building Board, alleging as grounds for the respective appeals substantially the same grounds[***9] as those alleged in the prior appeals.  At the second hearing before the Zoning Board the appellants offered as their only evidence the transcript of the first hearing together [*556] with certain exhibits introduced by them at the first hearing and the new application.

   The Zoning Board on December 31, 1964, rendered its decision affirming the issuance of the permit, stating, inter alia, that it "adheres to its prior decision that a hotel or motel is permitted in a maritime zone," and that the "building falls within the height exceptions set forth in Section 26-32 of the City Code and is therefore not subject to the height regulations provided in Chapter 26." Section 26-32 of the City Code provided that "fireproof hotels" were excepted from the 50 foot height limitation otherwise applicable to buildings in Maritime Districts and under Section 26-31.  An appeal was taken from the decision of the Zoning Board to the Circuit Court.

   Prior to the decision of the Zoning Board the Council on December 14, 1964, amended Section 26-32 of the City Code to provide that no building in the Historic Area could exceed 45 feet in height but that the ordinance "shall not apply to any construction[***10] for which application has been made for a building permit prior thereto, and further shall not apply to any proposed construction currently the subject of appeal to administrative agencies of the City of Annapolis or to the Circuit Court for Anne Arundel County, such construction to be subject to ordinance relating to height in effect at the time of such appeal."

   [**731] The Building Board in a decision rendered on March 8, 1965, upheld the issuance of the permit as having been properly issued under the provisions of the City Building Code.  No appeal was taken from this decision of the Building Board.

   At the time of the decision of the Zoning Board on December 31, 1964 (and also on August 3, 1964) Chapter 26 of the City Code in regard to zoning provided that the City of Annapolis was divided into nine use classifications in descending order: Residential, Educational and Cultural, Civic, Community Shopping Center, Personal Service, Retail Business, Commercial, Industrial and Maritime. The system of classification adopted was to list in a separate section the "permitted uses" in each district followed by another section setting forth the "prohibited uses" within the same district. [***11] Section 26-6 provides that the uses listed in the sections setting forth the "permitted [*557]uses" within a district are "known by the names opposite the respective sections and items" for purposes of reference throughout the Chapter. To illustrate how this system of classification operates, the "residential uses" in the Chapter are those listed in items 1 through 22 of Section 26-10. This section begins by stating: "In all residential districts, land and buildings shall be used, and buildings shall be arranged, intended and designed to be used for one or more of the following specified uses." Then follow the items of residential use including dwellings, apartment houses, churches, etc. These "residential uses" are then referred to in other sections of the City Code as "residential uses" for purposes of identification.  For example, in Section 26-19(a) 1 it is provided that a residential use is prohibited in a Personal Service District and Section 26-26(1) provides that residential uses are prohibited in an Industrial District.

   Maritime Districts are established by Sections 26-27 and 26-28.  Section 26-27 provides, in relevant part, as follows:
 
"Maritime districts[***12] -- Permitted uses.

   In all maritime districts, land and buildings shall be used and buildings shall be arranged, intended or designed to be used, for any one or more of the following specified uses:
1. Boat anchorage
2. Boat building
3. Boat houses
* * *
 
9. Cabinet working
10. Carpenter shops
* * *
 
16. Plumbing shops
* * *
  
21. Welding
* * *
 
23. Seafood processing.
 
"Sec. 26-28 Same -- Prohibited Uses.

   In a maritime district, land and buildings shall not be used and buildings shall not be arranged, intended [*558] or designed to be used for any one or more of the uses prohibited in industrial districts, items 5 to 32."

   Turning to Section 26-26, the Prohibited Uses in an Industrial District, we find the following:
 
"1. Residential uses
2. Educational and cultural uses
3. Community shopping centers
4. Personal service uses
5. Abattoir or stockyard
6. Acetylene gas manufacture
7. Acid manufacture
* * *
 
31. Tannery
* * *." (Emphasis supplied).

   A "Hotel" is listed as a permitted "personal service use" in Section 26-19 (c) 2.

   [**732] Section 26-8 provides as follows:

   "In any case where it[***13] is not clear from the provisions of this chapter that a proposed use is intended to be prohibited in a district, the provisions of that section setting forth the uses permitted in that district shall prevail and if the proposed use is not one in the list of those permitted, it shall be prohibited as though it were included in the prohibitions.  The method of naming the uses permitted in a district, followed immediately by naming the uses prohibited in that district, is intended for clarity and to promote the definitive application of the regulations."

   While the appeal from the Zoning Board decision of December 31, 1964, was pending in the Circuit Court, the Council on November 15, 1965, enacted the following amendment to Section 26-27 (Maritime districts -- permitted uses):

   "WHEREAS, the Mayor and Aldermen of the City of Annapolis have been advised that some question has been raised as to whether or not a hotel or motel [*559]is a permitted use in a Maritime District under Section 26-27 of the Code of the City of Annapolis.

   "WHEREAS, the Mayor and Aldermen of the City of Annapolis believe that a hotel or motel is a permitted use within such a Maritime District under [***14]the existing provisions of the Code of the City of Annapolis, and the purpose of this Ordinance is to dispel any doubt or clarify any ambiguity which may have existed prior to the passage of this Ordinance by specifically naming a hotel or motel as a permitted use within such a district, subject to the limitation hereinafter provided; and

   "WHEREAS, the Mayor and Aldermen of the City of Annapolis further desire by the passage of this Ordinance to restrict or limit those types of hotel or motel structures which may be erected or constructed in a Maritime District to those structures which have 100 rooms or more as it is believed that such structures will more adequately serve the public convenience and necessity for hotel or motel accommodations and will more nearly promote the public welfare as such types of hotels or motels are generally modern, fire-proof structures which more adequately serve the public interest.

   "SECTION I: BE IT ESTABLISHED AND ORDAINED BY THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS that Section 26-27 of the Code of the City of Annapolis (1960 Edition), title 'Zoning', subtitle 'Maritime districts -- Permitted uses' is hereby amended by adding Paragraph 24[***15] to follow immediately after Paragraph 23 of said Section, and to read as follows:

   Section 26-27 Maritime districts -- Permitted uses.

   * * *

   "24. Hotels or motels having 100 or more rooms together with uses accessory thereto such as a restaurant and a swimming pool."

   [*560] The Zoning Board held that a hotel use was permitted in a Maritime District and Chief Judge Macgill in the Circuit Court filed a carefully considered opinion and affirmed the Zoning Board's decision holding that the purpose of Section 26-28 was to prohibit in Maritime Districts only those uses which were prohibited in Industrial Districts by items 5 to 32 in Section 26-26. We agree and will affirm the lower court's order of October 7, 1966, affirming the Zoning Board.

   The Annapolis Zoning ordinance, as we have seen, follows the usual form in setting forth the zoning districts on a descending scale.  It begins with the most restricted district -- Residential -- and proceeds through Institutional, various classes of Commercial, then to Industrial and ends with the Maritime District.  The Personal Service District precedes the Maritime District in the listing of districts, so that it is [**733] [***16] reasonably concluded that the Personal Service District was considered to be a lighter use district than the Maritime District.  In the absence of a specific provision to the contrary in the zoning ordinance, the law generally is that zoning districts having less restricted uses permit the uses of the more restricted use districts.  As Mr. Justice Baldwin stated for the Supreme Court of Errors and Appeal of Connecticut in Corthouts v. Town of Newington, 140 Conn. 284, 287, 99 A. 2d 112, 114 (1953):

   "Generally the districts of less restricted uses admit the uses of the more restricted ones."
 
See Katobimar Realty Co. v. Webster, 20 N. J. 114, 124, 118 A. 2d 824, 829 (1955).

    It is clear to us that the proposed hotel use was not intended to be prohibited in the Maritime District so that the provisions of Section 26-8 do not apply.  If it had been intended to prohibit such a use this could have been easily accomplished by providing in Section 26-28 that items 4 through 32 rather than items 5 through 32 of the uses prohibited in Industrial Districts were prohibited in the Maritime District.  The deliberate choice of items 5 to 32 and the exclusion of items 1 to[***17] 4 shows a specific legislative intent not to prohibit personal service uses (item 4), which includes a hotel use, from the Maritime District.  Under Section 26-8, therefore, it is not necessary to consider the list of permitted uses, in order to resolve any ambiguity, inasmuch [*561] as no ambiguity exists.  For the same reason it is not necessary to consider other well-established rules of construction urged upon us by Hospitality House that are applicable when an ambiguity exists, such as strict construction of a zoning ordinance as being in derogation of the common law and contemporaneous and long continued administrative interpretation.

   The permit was issued to Hospitality House for the erection of a structure 80 feet high.  Section 26-31 setting forth the "Height and rear and side yard regulations" provided in regard to Industrial and Maritime Districts: "For all buildings, maximum height, 50 feet; no yards required." Section 26-32, providing for "Height Exceptions" stated: "The height regulations of this chapter shall not apply to the construction of the following: 1. * * * fireproof hotels * * *." As the lower court stated in its opinion, the evidence before the Board [***18]established that the proposed hotel structure was substantially fireproof, so that there was no basis for disturbing the Board's finding that the height exception in the ordinance applied.

   We have concluded also that the lower court was correct in holding that the pending matter of Hospitality House came within the saving clause of the ordinance of December 14, 1964, placing a height limitation of 45 feet for construction in the Historic Area, in which the site of the hotel is located. We will give our reasons for this conclusion when we later discuss the Height Case.

   In view of our conclusions as above set forth, it is not necessary for us to consider the questions raised and argued by Hospitality House (1) that the ruling of the Board on the first appeal was res judicata in regard to whether hotels were excluded from the Maritime District, and (2) that the passage of the ordinance of November 15, 1965, which specifically provided that a hotel with 100 or more rooms was a permitted use under Section 26-27, rendered that issue moot at the time of trial in the lower court.

   The Height Case (No. 64)

   On December 14, 1964, the City passed an ordinance which repealed and re-enacted[***19] with amendments Section 26-32 and which provided, in relevant part, as follows:
 
[*562] "Section I: * * * In the Historic Area of the City as defined in Section 6-33 of this Code no building shall be constructed or increased in height in excess [**734] of forty-five (45) feet except as may be permitted by the Mayor and Aldermen by resolution passed by a favorable vote of the majority of the entire membership thereof.  * * *
"Section II: * * * this Ordinance shall take effect from the date of its passage, but shall not apply to any construction for which application has been made for a building permit prior hereto, and further shall not apply to any proposed construction currently the subject of appeal to administrative agencies of the City of Annapolis or to the Circuit Court for Anne Arundel County, such construction to be subject to Ordinance relating to height in effect at the time of such appeal."

   A number of interesting questions are raised by the parties in the Height Case.  These questions involve whether or not (1) the appellants had shown the required "special damages" to establish standing to challenge the provisions of the ordinance of December 14, 1964, [***20] as it applied to Hospitality House, (2) the attempted reservation of the Council of the power to grant a variance, a special exception or to legislate directly was a valid exercise of power, (3) if the attempted reservation of power was invalid, the invalid provision was severable from the provision of the ordinance establishing the 45 foot height restriction, and (4) the hotel came within the saving clause of the ordinance.

   Inasmuch as we are of the opinion that the hotel did come within the saving clause of the ordinance, it is unnecessary for us to consider the other questions mentioned.

   On October 6, 1964, Hospitality House had been granted a permit to build a hotel and when the ordinance of December 14, 1964, was enacted the permit was the subject of two administrative appeals -- one to the Zoning Board, which was not decided until December 31, 1964, and the other to the Building Board, which was not decided until March 5, 1965.  It seems clear to us that, as the lower court held, the saving clause was [*563] intended by the Council to apply to the Hospitality House permit to construct a hotel and the language of the saving clause described precisely that permit and pending[***21] proceedings.

   The appellants, however, earnestly contend that because of certain changes in the working drawings filed by Hospitality House with the City Engineer from the preliminary plans originally filed in August, 1964, on which the permit of October 6, 1964, was issued, the hotel is, in effect, being constructed under a new permit and not under the permit issued prior to the ordinance of December 14, 1964.

   The preliminary plans showed a proposed rectangular seven story hotel building, approximately 80 feet in height, with dimensions of 164 feet by 58 feet on a one and one-half acre site to be erected entirely on the land.  There were 137 rooms.  There was an attached one-story restaurant facing the water and an open two level parking structure adjacent to the south side of the hotel facing Compromise Street.  The 164 foot side of the structure and the two story parking extension faced Compromise Street at a slight angle.

   In the final working drawings filed with the City Engineer in October, 1965, the site was reduced in size, the height lowered and the building "swung around" so that the short side of the building faced Compromise Street, with the long side projecting out[***22] into the water on piling for approximately 80 feet. The main hotel structure was a six story building, 221 feet by 78 feet, with a height of 59 feet 8 inches, the 78 foot portion of the building facing Compromise Street as already indicated.  There were approximately 155 rooms. All of the parking was located under cover in a wing of the building adjacent to the north side of the main hotel structure.  This wing consisted of two stories, the ground level being used for parking and the second level being used for a restaurant facing the water.  The site was reduced from 1.51 acres to one [**735] acre, the .51 acre being relinquished by Hospitality House to its lessor, The Yacht Basin Company.  The portion of the building structure on land rests on the same land occupied by the proposed structure shown in the preliminary plans.

   The City Engineer approved the plans filed in October, 1965, as amendments to the original plans.  Construction commenced [*564] under the approved plans in December, 1965, and continued thereafter.

   In our opinion, the plans submitted in October, 1965, were substantially similar to the plans originally submitted by Hospitality House.  The basic scope [***23] of the original plans was not changed.  Both sets of plans call for the same use, i.e., the erection of a hotel, with acccessory parking and restaurant facilities.  There were modifications in the placement of the hotel and facilities on a reduced portion of the original site, but these modifications did not result in any substantial change in the original plans. The subsequent changes were amendments to the original plans, but the original permit with those changes and amendments continued.  The situation at bar is analogous to that considered by our predecessors in Nuova Realty Co. v. City of Baltimore, 197 Md. 266, 78 A. 2d 765 (1951), which involved the provision in the Baltimore City ordinance providing that the Board of Municipal and Zoning Appeals could not consider certain types of permits within two years after rejection of an application of a "similar" permit for the same premises.  An application for a gasoline service station for the premises had been filed on July 12, 1949, and this application was disapproved by the Board.  The applicant, on August 12, 1949, -- one month later -- filed a "revised" plan for a gasoline service station on the same premises, but with[***24] a provision for a larger building than the one in the first application which was to be erected farther back from Hillen Road, with changes in the location of the gasoline tank and other changes to make the application conform with the Baltimore City Zoning Ordinance. In holding that the second application sought a "similar permit" and that the Board should not have considered it in view of the two year provision, Judge Grason, for the Court, stated:

   "It was not only a 'similar permit for the same premises' but it was the original permit with some changes and corrections to make it conform with the requirements of the Zoning Ordinance. The second application was at best an amendment of the first application." (Emphasis supplied).  (197 Md. 272, 78 A. 2d 768).

   [*565] The present case is to be distinguished from Norwood Heights Improvement Association v. Baltimore, 191 Md. 155, 60 A. 2d 192 (1948), and Greenberg v. Mayor and City Council of Baltimore, 224 Md. 618, 169 A. 2d 403 (1961), relied on by the appellants.  In Norwood Heights the second application was for a very different apartment layout than that set out in the first application.  The first application[***25] was for 118 apartments out of a total of 179 apartment units which were to be located on a 5.2 acre portion of the entire tract which exceeded the density provisions of the Baltimore City Zoning Ordinance. The second application was for a new layout with only 80 apartment units out of a total of 168 apartment units located on the 5.2 acre portion of the entire lot, which complied with the density provisions of the ordinance. In Greenberg, the second application was not barred because the Board had not rejected the first application, the Baltimore City ordinance provision only applying when the Board rejected the original application.  See 224 Md. at 618.

   In view of our opinion that the plans filed in October, 1965, were substantially similar to the plans filed in August, 1964, it is not necessary for us to pass upon the contentions urged upon us by Hospitality House that the City Engineer's approval of the October, 1965, plans was a discretionary act which cannot be collaterally attacked in the pending proceeding and [**736] that, in any event, the appellants are barred from raising any question involving the alleged changes in plans because of laches and a failure [***26]to pursue their administrative remedies.

   We will affirm the lower court's decree of October 7, 1966, in the Height Case denying injunctive relief against the appellees.

   The Hotel Case (No. 65)

   In the Hotel Case, the appellants, James W. Burch and others, filed a bill of complaint, later amended, against the Mayor and Aldermen of Annapolis, Hospitality House and The Yacht Basin Company in which they sought a declaration that the ordinance of November 15, 1965, amending Section 26-27 of the City Code so as to include as item 24 of the permitted uses in a Maritime District, hotels having 100 or more rooms together with accessory uses such as a restaurant and swimming pool, [*566] was unconstitutional and invalid and that the City be enjoined "from permitting the use of maritime zoned land in the City of Annapolis for hotel or motel use over 100 rooms." We have already set out this ordinance in relevant part and it need not be repeated here.  Substantial testimony by well-qualified experts was produced by the respective parties indicating, on the one hand, the alleged injurious effects of such a provision, and, on the other hand, that there would allegedly be no injurious effects [***27]from the provisions of the ordinance, that the 100 room provision was reasonable and that the provision was in accordance with the more modern concepts.  Chief Judge Macgill in a carefully considered, closely reasoned, opinion concluded that (1) the plaintiffs, James W. Burch and Historic Annapolis, Inc., who are also appellants here, had standing to sue, (2) the portion of the ordinance of November 15, 1965, requiring a minimum of 100 rooms was invalid, (3) the invalid portion of the ordinance was not separable from the rest of the ordinance and the Mayor and Aldermen of the City did not intend the ordinance to take effect without its invalid portion so that the whole ordinance was invalid, and (4) prior to the enactment of the ordinance of November 15, 1965, hotels were permitted in Maritime Districts, as the lower court had decided in the Zoning Case, so that no injunctive relief would be granted against the defendants.

   As we have already indicated in the Zoning Case, we are of the opinion that the lower court was correct in holding that hotels were permitted in Maritime Districts when the application for the permit by Hospitality House was filed, and prior to the passage of the[***28] Ordinance of November 15, 1965, so that we do not reach the other three questions considered by the lower court. We will affirm the order of October 7, 1966, in the Hotel Case denying injunctive relief against the appellees.

    Orders affirmed, the costs to be paid by the appellants. 

ANNE ARUNDEL COUNTY, MARYLAND, et al. v. BOARD OF EDUCATIONOF ANNE ARUNDEL COUNTY, et al. 
Nos. 31, 186, 278, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 512; 237 A.2d 426; 1968 Md. LEXIS 677

 January  19, 1968, Decided

   PRIOR HISTORY: [***1]  
Appeal in case No. 31 from the Circuit Court for  Anne Arundel  County; Evans, J.

   Appeal in case No. 186 from the Circuit Court for  Anne Arundel  County; Melvin, J.

   Appeal in case No. 278 from the Circuit Court for  Anne Arundel  County; Macgill, C. J.

DISPOSITION: Orders in numbers 186 and 31 affirmed; decree in number 278 affirmed; costs in all three cases to be paid by Anne Arundel County.

CORE TERMS:  county council, county executive, county superintendent, superintendent, school budget, rent, board of education, budget, duty, charter, county charter, comfortable, convenient, clerical, ample, county board, inconsistency, supplied, budgetary, annex, office space, repeal, restore, space, irreconcilable, mandatory, carrying, furnish, leased, county government

COUNSEL: [***5]

   John M. Court, Assistant County Solicitor, with whom was Bennett Crain, Jr., County Solicitor, on the brief, for appellants in Cases Nos. 31 & 186; Bennett Crain, Jr., County Solicitor, with whom was John M. Court, Assistant County Solicitor, on the brief, for appellants in Case No. 278.

   Thomas J. Wohlgemuth (in all three cases) for appellees.

   Amicus curiae brief filed in Cases Nos. 31 and 278 by Maryland County Commissioners Association.  William O. Doub, H. Warren Buckler and Evan Crossley on the brief.

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

OPINION: [*515] [**427] We are here concerned, in deciding appeals in three cases of the September Term, 1967, with skirmishes in a running battle between Anne Arundel County and the Board of Education of Anne Arundel County over the power of the County to control expenditures of the Board and the limits of that power.  Argued together were Number 186, filed in the Circuit Court on July 26, 1966, a mandamus action by the Board against officials of the County to compel payment by the County to the Board of rent for[***6] quarters leased by the Board to house the Superintendent of Schools and his official family (a mandatory item in the opinion of the Board and a discretionary item in [*516]the opinion of the County), in which Judge Melvin issued the writ, and No. 31, filed in the Circuit Court on August 31, 1966, by the County against the Board for a decree declaring the County's power to deny the rent for the premises leased by the Board for the staff of the Superintendent, in which Judge Evans sustained the Board's demurrer on the ground that the County had no standing to sue.  Argued immediately thereafter was No. 278, a suit by the County against the Board for an injunction restraining the Board from spending in excess of $440,000, the amount appropriated and allocated by the County for a capital improvement of a school project, the "Nike Site School Project" (the Board, it was alleged, had removed $29,000 from the County appropriation for the "Area Secondary School -- 1969" and added that amount to the $440,000 it intended to expend for the "Nike Site School Project"), in which Judge Macgill held that neither Anne Arundel County nor its controller had standing to maintain the action for[***7] an injunction and dismissed the bill.

   I -- Number 186

   We think that the mandamus action was correctly decided by Judge Melvin and find it appropriate to rely on his opinion therein, as follows:

   "By its amended petition the Board of Education prays that a Writ of Mandamus issue directing the defendants (Anne Arundel County, Maryland; the Controller of Anne Arundel County, Maryland; and the County Council of Anne Arundel County, Maryland) to '(a) pay over to the Plaintiff the sum of $54,000 for rent of administration building annex illegally deleted from the school budget and (b) to increase the tax levy rate in Anne Arundel County to insure the financing of the same if necessary.'

   "The evidence shows that this sum was included by the plaintiff in its school budget for the fiscal year 1966-67 for the purpose of paying a year's rent on an 'administration building annex' leased by the plaintiff.  The lease agreement provides that the [**428] building is 'to be used for office purposes for the lessee.'

   [*517] "The Board's school budget, filed as an exhibit with the amended petition, explains the need for the office space in these words:

   'Administration Building Annexes[***8] -- The administrative and supervisory staffs of the Board of Education increase proportionately as more and more children are enrolled in the county's schools.  The present administration building, used thirty years ago as a high school, has long been inadequate.  Several years ago, it became necessary to rent additional space on West Street, and at Legion Avenue to provide facilities adequate to house the Department of Special Services, and the Department of Instruction.  This year, arrangements have been completed to lease a single building sufficiently large to house these two departments, and to relieve somewhat, the crowded conditions that continue to exist in the administration building on Green Street.  The Director of Construction and the Supervisors of Maintenance and Operation will continue to maintain offices in the building once known as the Pasadena Elementary School.'

   "On March 1, 1966, pursuant to § 68 and 68A of Article 77 of the Maryland Code (1965 Replacement Volume) the Board submitted its budget to the County Executive who failed to include the $54,000 rent money for the administration annex in the proposed county budget which he submitted to the County Council. [***9]On May 16, 1966, before the passage of the budget ordinance, the Board, by its President, wrote to the County Council requesting that the $54,000 denied by the County Executive be restored.  The Council did not do so, and no funds were appropriated by the county for the requested rent.

   "The Board's position in this dispute is that the County Council is under a mandatory duty to provide the rent requested.  The Council's position is that it is a matter entirely within the Council's discretion whether or not to do so.

   [*518] "In support of its position the Board cites § 160 of Article 77 of the Maryland Code (1965 Replacement Volume) which reads as follows:

   'The county board of education shall provide the office of the county superintendent of schools with ample, convenient, and comfortable quarters, and with adequate clerical equipment; and the county superintendent of schools and his professional assistants shall be provided with such means of transportation as are necessary for the effective and efficient performance of their official duties. They shall be reimbursed for all actual and necessary traveling and other expenses and disbursements incurred or made by[***10] them in the performance of their official duties, and no part of the traveling or personal expenses of the county superintendent and his professional assistants incurred in the performance of their official duties shall be included in or counted as a part of their annual salary.

   'The board of county commissioners of each county shall not deny any part of the amount requested for any one school year by the county board of education to be raised by local taxation in order to carry out the provisions of this section.' (Emphasis supplied.)

   "The Board contends that in leasing the administration building annex it was carrying out its legal duty to provide the 'office of the county superintendent of schools with ample, convenient, and comfortable quarters, and with adequate clerical equipment,' and that having done so the Council cannot legally deny any part of the amounts requested to pay the rent therefor.  The defendants contend that the above-quoted Section 160 does not apply to them at all, but that even if it does apply, the requirement to provide 'quarters' for the 'office of the county superintendent' simply means that 'the man who is county superintendent shall be provided[***11] with quarters befitting [**429] the importance of his post,' and that since space for the superintendent's personal [*519] office and that of his administrative assistant and one assistant superintendent, with their clerical help, a conference room and lavatories, are already provided elswehere, there is no duty upon the Board to provide more space and consequently no duty upon the Council to provide funds for the additional space. I cannot agree that, within the context of this section, the term 'office of the superintendent' is so limited.

   "Section 159 n1 of the Maryland Code, supra, imposes upon the county superintendent responsibility for the 'administration of the office of the county superintendent of schools.' (Emphasis supplied.) By law, the county superintendent is the executive officer, the secretary and treasurer of the county board of education.  It is on his advice that the educational policies of the county are determined (§ 53 and § 54).  Through him 'and his professional assistants' the county board of education exercises 'control and supervision over the public school system of the county' (§ 55).  (Emphasis supplied.) It would unduly prolong[***12] this opinion to enumerate all the detailed duties and responsibilities of the superintendent which are set forth throughout Article 77.  Suffice it to say that they are many and varied and as stated by the Court of Appeals in Bd. of Ed. v. Montgomery County, 237 Md. 191, 'show the important role the superintendent plays in carrying out the general policies of the State Board of Education.'

   "In Bd. of Ed. v. Montgomery County, supra, the Court of Appeals said that Article 77 is 'part of a carefully conceived legislative structure in which the respective powers and limitations of local school boards, the State Board of Education and county governments are delineated and balanced.' In that case the Court, after referring to the important role of the county superintendent, held that the professional and clerical assistants [*520] deemed necessary by him, subject to the approval of the Board, are a vital part of the over-all educational policy of the State Board, and under the law the number of such assistants 'is to be fixed by the Board and is not subject to curtailment by the Council.' Thus the number of professional and clerical assistants which the superintendent and[***13] the Board deem necessary to enable the superintendent to properly carry out the administrative duties 'of the office of the county superintendent of schools' is a matter over which the County Council has no control.  As said by the Court, 'It was for the Legislature to determine in what respects to give final decision as to financial needs to the educational expertise of the Board and when the general appropriating function of the Council was to govern.'

   "It is the opinion of this court that, like the sections construed by the Court of Appeals in Bd. of Ed. v. Montgomery County, supra, Section 160 is also part of the 'carefully conceived legislative structure' referred to in that case, and that the duty imposed upon the Board by that section to 'provide the office of the county superintendent of schools with ample, convenient and comfortable quarters' includes the duty to provide 'ample, convenient and comfortable' office space ['quarters'] not only for the superintendent himself but for the personnel appointed by the Board to assist him in carrying out the duties of his office.

   "In this court's view, if the legislature had intended that the Board's only duty under Section[***14] 160 was to provide the county superintendent with an 'ample, convenient and comfortable office, with adequate clerical equipment,' it would have said so in just those terms.  The defendants, nevertheless, argue that within the context of Section 160, 'the office of the county superintendent [**430] of schools' should be construed to mean 'the county superintendent of schools.' So construed, Section 160 would read as follows: 'The county board of education shall provide the county superintendent of [*521] schools with ample, convenient, and comfortable quarters, and with adequate clerical equipment; * * *.' In this context the word 'quarters' could well mean 'living accommodations.' See Webster's Third New International Dictionary.  Needless to say, no one has yet suggested that Section 160 requires the Board to provide the superintendent with such an emolument.

   "The preceding section, Section 159, imposes upon the county superintendent the duty to 'nominate, for appointment by the county board of education, all the professional, clerical, statistical and stenographic assistants of the office [of the county superintendent of schools].' (Emphasis supplied.) This clearly [***15]shows the legislature contemplated that the office of the county superintendent of schools would include more than the person who holds the position of county superintendent. Indeed, the defendants virtually concede this to be so when they suggest in their brief that 'quarters' for the 'office' should be construed to include office space for the superintendent, an administrative assistant and one assistant superintendent, 'together with an appropriate number of secretaries or stenographers.'

   "The difficulty with the defendants' argument in this regard is that the evidence shows that the 'assistants of the office' number many times the number suggested by them.  It is also to be noted that there is no evidence that the 'quarters' provided by the Board in the administration annex building are anything more or less than 'ample, convenient and comfortable' as required by Section 160, or that they are being used by anyone who is not assisting the county superintendent in carrying out the manifold duties required of him by law.  This being so the County Council is specifically required by the terms of the section to furnish the necessary funds to pay for the quarters so provided. [***16]

   "But as mentioned above, the defendants contend that Section 160 does not control the issue presented [*522] by this case.  Instead, they say, Section 68A controls.  This section, passed at the 1965 Session of the General Assembly, reads as follows:

   'In Anne Arundel County, the following provisions shall apply notwithstanding anything to the contrary in this article.  The annual school budget shall be submitted to the county executive, in such form as is required by the Anne Arundel County charter, not less than one hundred twenty days prior to the end of the fiscal year of said county.  The county executive shall indicate in writing what item or items of the annual budget of the County Board of Education have been denied in whole or in part, and the reasons for the denial in whole or in part of the respective items.  The County Council may, in their discretion, restore any or all items denied by the county executive in said budget submitted by the Board of Education. Should the County Council appropriate to the County Board of Education a sum greater than the 40-cent levy aforesaid, it may, but need not, establish a separate school levy or tax.'

   "Defendants argue that[***17] since the county executive denied the requested rent money, the County Council was under no legal obligation to restore the item so denied.  This court cannot agree.

   "It seems clear that the primary purpose of Section 68A was to change the procedural requirements of Section 68 relating to the school budget in the following respects:

   (a) To require that the Board's school budget be submitted in the first instance to the county executive, rather than directly to the County Council as provided by Section 68.

   [**431] (b) To provide that the county executive, rather than the County Council, as required by Section 68, 'shall indicate in writing what item or items' of the Board's budget have been denied and the reasons for such denial.

   [*523] (c) To require the Board to submit its budget to the County not less than 120 days prior to the end of the County's fiscal year, rather than '20 days before the usual date for levying county taxes' as Section 68 provides.

   "These changes in the law were obviously made to accommodate certain procedural requirements of the County Charter. See Article VII of the County Charter, Budgetary and Fiscal Procedures.

   "The real dispute[***18] in this case arises concerning the effect upon the mandatory provisions of Section 160 of the further provision of Section 68A that 'The County Council may, in their discretion, restore any or all items denied by the county executive in the said budget submitted by the Board of Education.' Defendants contend that this provision is irreconcilable with Section 160 and since Section 68A is a later enactment, the earlier enactment must be disregarded insofar as it requires the County Council to provide the requested funds.  This court finds no such inconsistency between the two sections requiring a holding that the mandatory provisions of Section 160 no longer apply in Anne Arundel County.  As said by the Court of Appeals in Pressman v. Elgin, 187 Md. 446, p. 450:

   'The law does not favor repeals by implication, unless there is a manifest inconsistency between the earlier and later statutes, or unless their provisions are so repugnant and irreconcilable that they cannot stand together.  No Court should ever hold that a statute has been repealed except where the language of a later statute shows plainly that the Legislature intended a repeal. State v. Clifton, 177 Md. [***19] 572, 10 A. 2d 703; Buchholtz v. Hill, 178 Md. 280, 288, 13 A. 2d 348. Statutes which relate to the same subject-matter and are not inconsistent with each other are in pari materia, and should be construed together so that they will harmonize with each other and be consistent with their general object and scope, even [*524] though they were passed at different times and contain no reference to each other.'

   "Under the County Charter the Council may not 'increase [emphasis supplied] any expenditure recommended by the County Executive for current or capital purposes.' (Section 709, County Charter.) In the court's view the provision in Section 68A that the Council may increase the county executive's proposals with respect to the school budget, and no other, serves merely to make abundantly clear that in spite of Section 709 of the Charter, the Council does have the authority, with respect to fiscal matters affecting the school system, to increase the proposals of the county executive. The appropriating authority under the County Charter is the County Council and it is to that body that Section 160 directs its mandate, not to the county executive. The[***20] mandate of the section, directed to the County Council, is 'not to deny any part of the amount requested * * * by the county board of education.' (Emphasis supplied.) The fact that the county executive did not propose to the Council that it obey this mandate did not thereby absolve the Council of its legal duty to do so.

   "Defendants' argument presupposes that the county executive, in the first instance, has the power to deny any items in the school budget submitted to him by the Board.  It is true that Section 704 of the County Charter allows the county executive to amend the budget proposals submitted to him by agencies 'of the county government.' But, 'The board of education is not a part of the executive branch of the county government nor an agency under its control.' Bd. of Ed. v. Montgomery County, supra. Nevertheless, assuming, without deciding, that by implication Section 68A gives the county [**432] executive power to decrease the budget proposals submitted to him by the Board, such implied power is certainly subject to at least the same specific limitations imposed by law upon the Council.  Section 709 of the Charter provides that 'the County [***21][*525] Council may decrease or delete any items in the budget except those required by the public general laws of this State * * *.' (Emphasis supplied.) Section 160 of Article 77 is a public general law of the State, and, as already determined in this opinion, it requires that rent for the administration building annex not be denied to the plaintiff.

   "The result is that this court finds nothing in Section 68A, or elsewhere in the law, which gives the county executive the power to 'deny' to the plaintiff funds which Section 160 requires the County Council to furnish to it.

   "Since the county executive lacks the power to delete mandatory items from the Board's budget, if he in fact does so before submitting the county budget to the County Council, it would be an anomalous situation indeed to hold that because he exercised a power he did not have, the County Council is not required to obey the law.  The provision of Section 68A that 'The County Council may, in their discretion, restore' items of the school budget 'denied' by the county executive presupposes that he has not denied those items which the law says must not be denied.

   "For the reasons set forth herein[***22] a Writ of Mandamus will be issued directing payment to the plaintiff of the requested funds.

   "As to the defendant, Anne Arundel County, Maryland, a body corporate, the court finds that it is an improper party defendant in these proceedings and its demurrer to the petition filed against it will, on that ground, be sustained."

n1 Unless otherwise indicated, section numbers mentioned in this opinion refer to Article 77 of the Annotated Code of Maryland (1965 Replacement Volume). 

   We add that insofar as the County relies on the charter provisions of Anne Arundel County, Sections 701 to 722 as differing from and controlling the provisions of Code (1965 Repl. Vol.), Art. 77, § 68, it leans on a reed so weak as to be incapable of any of the support it seeks.  We held in Montgomery County v. Yost, 223 Md. 150, 156, that the budgetary provisions of the Montgomery County Charter (Montgomery County, [*526] like Anne Arundel County, is a home rule County) did not substantively embrace the County Board of Education, [***23]saying:
 
"Moreover, there is little doubt that the charter provisions were intended by the adopting voters to embrace the board of education and to require it to be as fully amenable to the charter budgetary procedures as the county departments and agencies are required to be.  But, as we see it, the board of education, like the bicounty agencies or commissions, is not subject to the charter budgetary requirements.  The bi-county commissions, which operate under special 'local' laws applicable only to Montgomery and Prince George's Counties, were purposely excluded from complying with the budgetary procedures of Montgomery County in order to avoid any possibility of a conflict between the two counties with respect to fiscal matters.  It is for this reason, i.e., the existence of conflicts and inconsistencies between the provisions of charter Art. VI, §§ 1 and 2, supra, and code Art. 77, § 68, supra, that the board of education must also be excluded from the operation and effect of the budgetary procedures required by the county charter. This is so because some of the conflicts and inconsistencies between the code and charter provisions are clearly irreconcilable. [***24]

   "Section 1 of Article XI-A of the Constitution of Maryland makes it clear that conflicts or inconsistencies between a county charter and a public general law must be resolved in favor of the latter." (Footnote omitted.)
 
[**433] See also Bd. of Ed. v. Montgomery County, 237 Md. 191, 197.

   II -- Number 31

   We do not reach the question of Anne Arundel County's standing to sue the County Board of Education because in our view if it be assumed that the County had standing and the court had made a declaration of the applicable law, as the County requested, the declaration, to have been correct, must [*527] have been essentially the same in expression and result as the opinion of Judge Melvin in Number 186.

   III -- Number 278

   Again we do not reach the question of the County's standing to sue.  If we assume that the County can appropriate and allocate at its discretion whatever sums it desires, above the minimums specified by Art. 77 of the Code, for the building or improvement of schools and require the Board to use an appropriation only for the particular purpose for which it was appropriated, it is apparent that the relief the County sought in its bill for an injunction[***25] was much broader than it has a right to require.  The prayer for relief in the County's amended "application for injunction" reads:

   "That the Defendants, jointly and severally, be enjoined from issuing any further Purchase Orders relative to the 'Nike Site Renovation Project'; from encumbering any funds in excess of $440,000; from paying any money on any purchase order or purchase orders when such action would cause the total amount of funds encumbered to exceed $440,000; and from receiving any goods or materials as a result of said purchase orders issued subsequent to the time when the amount of money encumbered for the 'Nike Site Renovation Project' reached $440,000, all until such time as the duly constituted legislative authority for Anne Arundel County, Maryland may in its discretion allocate supplemental funds for said items in the Capital Budget." (Emphasis added.)

   The record shows that the Board receives for capital additions and improvements appropriations of State and Federal funds as well as of County funds.  There was no showing that State or Federal funds had been or were to be misapplied or that the Board did not have available and could not properly utilize[***26] State or Federal funds to the extent of the $29,000 it needed to finish the Nike Site School.  In the light of Code (1967 Repl. Vol.), Art. 31, §§ 3 and 5, there is no attempt to suggest that the Board could bind the County if it issued purchase [*528] orders for materials, supplies or equipment for which it did not have the money to pay, and, in any event, "the board of education is not a part of the executive branch of the county government nor an agency under its control." Bd. of Ed. v. Montgomery County, 237 Md. 191, 197. The fact that the members of the Board could become liable for obligations the Board incurred but could not pay for does not entitle the County to prevent them from so becoming personally liable.  Apart from the general question of the County's standing to sue, we think it has no right to have the Board enjoined "from issuing any further Purchase Orders relative to the 'Nike Site Renovation Project'" or from paying any money on any such purchase order if this would cause the total to be expended to exceed the $440,000 the County had appropriated (the excess could be State or Federal funds).  If it be assumed that the County could precisely limit[***27] the Board's spending of funds raised by the County for a particular capital improvement, it does not follow that the County can limit the Board, an independent agency, in its spending of State or Federal funds on that improvement.

   Orders in numbers 186 and 31 affirmed; decree in number 278 affirmed; costs in all three cases to be paid by Anne Arundel County. 

MURPHY v. MURPHY 
No. 47, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 455; 237 A.2d 523; 1968 Md. LEXIS 672

 January  9, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Modification of Opinion Filed January 12, 1968; Motion Granted and Opinion Modified February 6, 1968.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree reversed as to granting divorce a vinculo matrimonii; affirmed as to dismissing bill of complaint; appellee to pay costs.

CORE TERMS:  desertion, divorce, cruelty, spouse, constructive, complaining, self-respect, vinculo, demeaning, decree, reconciliation, corroboration, marriage, matrimonii, mensa, marital relationship, early morning, corroborated, apprehension, continuation, cross-bill, single act, corroborative evidence, objectionable conduct, several times, own testimony, violent act, substantiate, probability, altercation

COUNSEL: C. Osborne Duvall for appellant.

   James A. Ehrhart, with whom was Richard L. May on the brief, for appellee.

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

OPINIONBY: FINAN

OPINION: [*456] [**523] The parties to this divorce proceeding were married in Buffalo, New York, in 1936.  The only child born of this union is presently over 21 years of age and self-supporting.

   [**524] The bonds of matrimony encircling the parties were stretched taut during the early morning hours of July 3, 1960.  On the evening of July 2, the Murphys met a group of friends at a tavern for several rounds of their favorite liquid refreshment. [***4] After closing time, the parties transferred to the Annapolis apartment of one of the couples, where more drinks were served. Both Mr. and Mrs. Murphy testified that in the course of the evening they each consumed several alcoholic beverages.  The party came to a sobering end when an unidentified woman attempted [*457] to extinguish her cigarette in the palm of a man's hand, after which the Murphys proceeded home.

   Upon arriving at their home between 2:30 and 3:00 a.m., the argument ensued, apparently over the conduct of the woman with the lit cigarette.  According to testimony of the appellant, Mrs. Murphy, her husband (the appellee) walked out of the kitchen, and she followed him and attempted to slap him.  He then grabbed her arm and she scratched his face and tore his shirt.  He also tore her dress, and then left the house.  Mrs. Murphy was unable to explain the cut on her husband's forehead, or the injury to the right side of his neck, his right shoulder or his chest.  She also denied striking him with an ashtray or any other object of that nature.

   The appellee, Mr. Murphy, was unfamiliar with the cigarette-burning incident which occurred at the cocktail party.  He testified[***5] that when they returned home, Mrs. Murphy "started" at him and scratched him and broke his eyeglasses.  When he attempted to grab her arm she commenced to hit him repeatedly about his head and face with a solid glass ashtray.  Appellee then left the house, although his testimony was to the effect that he had no intention of terminating the marriage when he left.

   Corroboration of appellee's testimony was provided by a friend, an Anne Arundel County police lieutenant, who received a call from Mr. Murphy shortly after the altercation and arranged to meet him about 5:00 a.m. The officer testified that when he first saw the appellee, the latter was sitting in his car with a cut on his head, scratches on his face and bloodspots coming through his shirt.  Appellee also showed his friend the eyeglasses that Mrs. Murphy allegedly broke in the scuffle.

   The record indicates that, although the marriage had been far from blissful, and arguments were not infrequent, the only other time that physical force accompanied a verbal assault occurred at least twenty years prior to the hearing, when the husband struck the wife.  The husband testified that on occasion the wife belittled and demeaned him[***6] in front of friends; at such times she accused him of running around with other women.  He also testified that several times the wife threatened to kill him and [*458] that this occasioned sufficient apprehension on his part that he removed his revolver from the home and took the clips out of his rifle.  Within eighteen months prior to the separation there had been two scuffles between Mr. Murphy and his wife. There was no corroborative evidence to support these allegations, and the wife denied the more recent altercations, as well as the threats to his life.

   Subsequent to the husband's departure from the home on July 3, the parties met on several occasions and discussed a reconciliation, however, they never resumed the marital relationship, and eventually, attempts at reconciliation were abandoned.

   On January 22, 1963, the appellant filed a bill for separate maintenance based upon the alleged desertion of appellant by her husband.  Appellee answered and then filed a cross-bill against the wife seeking a divorce a vinculo matrimonii, based on constructive desertion of the appellee.  After the hearing the Chancellor dismissed the bill of complaint (except for the allowance [***7] of counsel fees) and granted the appellee a divorce a vinculo, on the cross-bill. This appeal questions both the sufficiency of appellee's corroborative evidence and the [**525] viability of the constructive desertion allegation in the context of the above outlined facts.  This being a contested case the Court is of the opinion that, although the law in Maryland would accept the testimony of the police officer as sufficient corroboration n1 of the act of violence occurring the early morning of July 3, the lower court erred in finding sufficient evidence of a constructive desertion as would support an a vinculo decree. Accordingly, we reverse the court below.

n1 Judge Horney, speaking for the Court, in Kerber v. Kerber, 240 Md. 312, 316, 214 A. 2d 164, 166 (1965), said: "While only slight corroboration is necessary in contested cases, the invariable rule is that every element to justify the relief sought must be corroborated." See also Taylor v. Taylor, 238 Md. 312, 208 A. 2d 685 (1965); Hodges v. Hodges, 213 Md. 322, 131 A. 2d 703 (1957); Cullotta v. Cullotta, 193 Md. 374, 66 A. 2d 919 (1949); Kelsey v. Kelsey, 186 Md. 324, 46 A. 2d 627 (1946); Md. Rule S 75.

[***8]

   Judge Prescott (later Chief Judge) succinctly stated the law of this State which controls the factual picture presented by the [*459] case at bar, in Harrison v. Harrison, 223 Md. 422, 164 A. 2d 901 (1960):
 
"This Court has repeatedly stated that the law of Maryland does not countenance the separation of husband and wife, except for grave and weighty causes.  And it is well settled that, ordinarily, a single act of violence does not constitute cruelty of treatment within the meaning of the law as a cause for a divorce a mensa. Porter v. Porter, 168 Md. 296, 177 A. 464; Hastings v. Hastings, 147 Md. 177, 181, 127 A. 743; Eberwein v. Eberwein, 193 Md. 95, 101, 65 A. 2d 792; Elzey v. Elzey, 193 Md. 13, 19, 65 A. 2d 563. In order to constitute cruelty of treatment, a single act of violence must indicate an intention to do serious bodily harm, or be of such a nature as to threaten serious danger in the future. Hastings v. Hastings, 147 Md. 177, 181, 127 A. 743; Scheinin v. Scheinin, 200 Md. 282, 289, 89 A. 2d 609." Id. at 426, 164 A. 2d at 903.
 
See also Chief Judge Alvey's opinion in Hawkins v. Hawkins, 65 Md. 104, 111, 3 A. 749[***9] (1886).

   It should be borne in mind that in Harrison v. Harrison, supra, although the petition was for an a mensa et thoro decree, yet the gravamen of the wife's complaint was not cruelty, but constructive desertion, as in the instant case.

   We are also aware that in Kruse v. Kruse, 179 Md. 657, 22 A. 2d 475 (1941), Chief Judge Bond said:

   "It is settled that conduct of one spouse which compels the other to leave may justify a divorce to that other on the ground of desertion, even though the conduct may not justify a divorce on the ground of cruelty. Harding v. Harding, supra (22 Md. 337); Singewald v. Singewald, 165 Md. 136, 137, 166 A. 441. It must, however, render impossible the continuation of matrimonial cohabitation with safety, health, and self-respect. Schwartz v. Schwartz, 158 Md. 80, 90, 148 A. 259." Id. at 653, 22 A. 2d at 478.
 
[*460] See also Eberwein v. Eberwein, 193 Md. 95, 65 A. 2d 792 (1949), and cases cited therein.

   Even though the cruelty required in a constructive desertion case may be less than a case wherein an a mensa decree is sought on the grounds of cruelty, yet, the objectionable conduct still must be[***10] such as to render continuation of the marital relationship impossible, if the complaining spouse is to preserve his or her health, safety or self-respect. Eberwein, supra. Obviously, for such a situation to exist, there must be a pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable.  If there be but one single violent act, it would have to be of such magnitude as to warrant the assumption that [**526] the safety or health of the complaining spouse would be endangered in the future, either from its lingering effect or the probability of its recurrence; or that it was so demeaning as to have left the self-respect of the complaining spouse shattered beyond repair.

   In the case at bar the only conduct which justified the appellee leaving the marital domicile, found by the Chancellor to be corroborated by the evidence, was the violent incident that occurred on the early morning of July 3, 1960. There was no corroboration as to past demeaning acts on the part of the wife or of other acts of cruelty. The Chancellor was of the opinion, "that the husband was justified[***11] in being apprehensive as to his future safety because of the viciousness of the attack without reason." (Emphasis supplied.) However, we do not share the Chancellor's view, because we are of the opinion that the evidence fails to substantiate the existence of apprehension or anxiety on the part of the husband as to his future safety.

   We believe the following exchange, by way of question and answer on cross-examination, between the husband and opposing counsel, is most revealing as to the husband's state of mind:
 
Q. Right, my question is, when you left July 3rd, you did not have any intention of terminating the marriage?
 
[*461] A. No, if I had I wouldn't have gone back to my wife several times and talked to her after that about reconciliation.

   Thus, from the husband's own testimony it is obvious that the fear he held for his own health and safety, an hour or two after the attack, was not sufficiently dominant as to compel a decision on his part to terminate the marriage, or to preclude thereafter several attempts by him towards reconciliation with the wife.

   We are of the opinion that the portion of the decree of the lower court dated November 4, 1966, granting[***12] a divorce a vinculo matrimonii to the cross complainant Francis E. Murphy be reversed and his cross-bill dismissed; we affirm the Chancellor's dismissal of the appellant's bill of complaint.

    Decree reversed as to granting divorce a vinculo matrimonii; affirmed as to dismissing bill of complaint; appellee to pay costs. 

BELTRAN v. HEIM 
No. 32, September Term, 1967
 
Court of Appeals of Maryland
 
248 Md. 397; 236 A.2d 723; 1968 Md. LEXIS 663

 January  5, 1968, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed January 19, 1968; Denied February 6, 1968 and Opinion Modified.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Decree reversed; appellee to pay the costs.

CORE TERMS:  natural father, abandonment, withheld, daughter, adoptive father, chancellor, divorce, parental, custody, stepfather, married, decree, voluntary relinquishment, court action, former wife, irresponsibility, cobeneficiary, retirement, weighed, gifts, indebtedness, recommended, affection, happened, marriage, birthday, surname

COUNSEL: Harvey B. Steinberg for appellant.

   Nicholas J. Fotos for appellee.

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

OPINIONBY: HORNEY

OPINION: [*398] [**723] The question presented by this appeal is whether the natural father unlawfully withheld his consent to the adoption of his daughter by the present husband of his former wife. The chancellor decreed adoption.

   The natural father, Claudio F. Beltran, was born in Costa Rica and is a naturalized citizen of Venezuela.  He married the mother of the child, Catherine E. Beltran, nee Anderson (whose present married surname is Heim), on March 14, 1960, while he was a student at the American University.  The child, MarieClaudette Odilie Beltran, was born in Washington, D. C., on [*399] October 24, 1963.  The parents separated in February of 1964.  The mother met her present husband later in the same year.

   The adoptive father, [***3] William Peter Heim, a graduate of the Naval Academy and a veteran of the Korean War, is a major in the Marine Corps presently serving as a commanding officer of the Marine Barracks at Annapolis. Ever since his marriage to the mother and custodian of the child, the three of them have lived together as a family.

   [**724] When the mother filed suit for a divorce against the natural father alleging adultery, the District of Columbia granted a partial divorce on the grounds of cruelty, awarded custody of the child to the mother and ordered the father to contribute to her support.  Thereafter the mother went to the Virgin Islands and obtained an absolute divorce from the natural father and married the adoptive father on August 1, 1965.

   After the separation, but prior to the divorce, the natural father had extramarital relations with the woman who is now his wife and as a result a son was born to them out of wedlock in December of 1964.  For a while, pursuant to the court order, the natural father made regular support payments but they gradually diminished.  At the time of the adoption hearing he had made no payments for more than a year.  The excuse offered was that since he had to [***4]discharge past indebtedness and support his illegitimate son he did not have the money.  In addition to what it cost to take his present wife to soccer games and thereafter to restaurants in company "with a whole bunch of fellows and girls" and to repay the bank loans he had made to pay for automobile parts and other merchandise, a part of the indebtedness was incurred to make a trip without his first wife to visit his parents in South America.

   The petition for adoption was filed in October of 1965 and the case was referred to the county welfare board.  On the completion of its preliminary investigation, the board, because the parties were newlyweds, recommended that the adoption be delayed for at least a year.  The final report, however, stating that the Heims had firmly established their marriage and that there was "a strong bond of mutual affection between the child and her stepfather," recommended approval of the adoption.

   [*400] At the hearing, the adoptive father testified that having known the child for two years, he considered her to be his daughter, that he "loved her very much" and wanted to adopt her so as to make her "legally my daughter." He stated as another reason[***5] that he desired to establish his "rights toward Marie" in case "anything happened" to his wife.  There was no contention that the home he provided was not adequate or that he was an unfit father. Indeed, the record clearly indicates the contrary.  His wife testified that she wanted the adoption primarily because she knew that her present husband would adequately care for the child if anything happened to her, but also because her former husband had demonstrated his irresponsibility as a parent and husband.

   While there was evidence to the effect that although the natural father resided within an hour's drive from his former wife, he had visited the child on only five occasions during the fifteen month period prior to the hearing and had never requested to be alone with the child on such visits, the record also shows that the mother and stepfather always stayed with the child during each of the visitation periods; that the natural father telephoned "two or three times" to ask about the child; that he gave the child Christmas presents, a birthday present on her second birthday and sent her a card on her third birthday; that he took his father (during a visit from South America) to see[***6] the child; that he named his daughter as a cobeneficiary with his son in his life insurance policy and retirement plans; and that he continued to maintain the benefits of Blue Cross and Blue Shield for the child.  When the natural father was asked why he refused to agree to the adoption he said that he would not give the child up because she had "his name and his blood."

   The chancellor, in weighing the infidelities of the natural father before separation and his adulterous conduct prior to divorce, the inclination of the father to spend money on himself and others rather than his family and the sporadic support of the child even under compulsion as against the assured benefits of a stable home, an abundance [**725] of parental care and affection and the assurance of future security which would accrue to the child should the petition be granted, found that the consent of the natural father had been withheld contrary to the best [*401] interests of the child, that the withholding of consent was not legally justifiable and that the best interests of the child would be served by allowing adoption.  The decree, besides ordering that the child was the lawfully adopted daughter[***7] of the adoptive father, further provided that her surname should be changed from Beltran to Heim.

   Unless there is some reason to the contrary, we will not disturb the findings of a chancellor in an adoption proceeding.  In The Matter of Malmstedt, 243 Md. 92, 220 A. 2d 147 (1966). In the present case, however, the finding of the chancellor that the consent of the natural father had been withheld contrary to the best interests of the child, is not supported by the record.  There was evidence that the natural father had neglected the child and had failed to support her, but there was also evidence that the natural father had not abandoned the child.

   Code (1966 Rep. Vol.), Article 16, § 74, states that an adoption shall not be granted without the consent of the persons or agencies specified in subsections (a) through (h) unless "the court finds that such consent or consents are withheld contrary to the best interests of the child." Under § 74 (b) the consent of both natural parents is required unless they have lost their "parental rights through court action or voluntary relinquishment or abandonment."

   "As in custody cases, 'the welfare and best interests of the child are the [***8]primary considerations in all adoption proceedings.' Winter v. Director, 217 Md. 391, 396; King v. Shandrowski, 218 Md. 38, 42-43." Walker v. Gardner, 221 Md. 280 at 284, 157 A. 2d 273 at 275 (1960); Also see Watson v. Dockett, 229 Md. 63, 68, 181 A. 2d 461, 463 (1962).

   "Unlike awards of custody, however, adoption decrees cut the child off from the natural parent, who is made a legal stranger to his offspring.  The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships have led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified.  The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent." Walker v. Gardner, supra, at p. 284 of 221 Md., and p. 275 of 157 A. [*402] 2d.  Also see Logan v. Coup, 238 Md. 253, 256, 208 A. 2d 694, 696 (1965).

   Whether there has been an abandonment by the parent or whether consent has been withheld contrary to the best interests of the child is determined by the facts in each case.  Shetler v. Fink[***9] , 231 Md. 302, 190 A. 2d 76 (1963). In Logan v. Coup, supra, we had occasion to say, at p. 258 of 238 Md., and p. 697 of 208 A. 2d, "that 'abandonment,' as used in * * * Section 74 (b), imports any wilful and intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child, and to renounce and forsake the child entirely." Also see Ex Parte Johnson, 247 Md. 563, 567, 233 A. 2d 779, 781 (1967). Cf. McClary v. Follett, 226 Md. 436, 174 A. 2d 66 (1961).

   There are several reasons why the record does not support the finding of abandonment. The natural father, in addition to occasionally visiting the child, inquiring as to her health and sending her gifts, named her as a cobeneficiary in his life insurance and retirement plans and maintained hospitalization and medical care for her.  Failure to support does not necessarily constitute abandonment. Connelly v. Jones, 165 Md. 544, 170 Atl. 174 (1934). Moreover, while the irresponsibility and marital indiscretions of the father would be very relevant on the issue of custody, such faults without abandonment are not [**726]enough to[***10] justify severance of the parental relationship. The child now has and has had for more than two years most of the benefits and privileges that would devolve upon her by an adoption.  In addition to this, the mother already has decretal custody but as she as well as the stepfather are apprehensive with regard to the care and welfare of the child should anything happen to the mother, we see no reason why both of them should not be authorized to jointly perform the custodial obligations.

   Decree reversed; appellee to pay the costs. 

WEIDEMEYER v. BREKKE, et al. 
No. 671, September Term, 1966
 
Court of Appeals of Maryland
 
248 Md. 175; 235 A.2d 718; 1967 Md. LEXIS 313

 December  6, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  mortgage, deeds of trust, chattel, deed of trust, mold, indebtedness, deed, recorded, securing, hull, personal property, decree, conveyed, uncompleted, conveyance, unfinished, embraced, folio, liber, tax sale, certificate of sale, principal balance, deed absolute, real estate, purchaser, repealed, default, transferred, technically, equitable

COUNSEL: C. Maurice Weidemeyer, with whom were Thomas M. Schifanelli and Clarence F. Rothenburg, on the brief, for appellant.

   Nicholas Goldsborough for appellees.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes, Finan and Singley, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*176] [**719] This appeal comes to us from those parts of a decree issued by the Circuit Court for Anne Arundel County (Childs, J.) dismissing the plaintiff-appellant's bill of complaint against Nils Brekke, Howard J. McGrath, Trustee, A. Slater Clarke, Trustee, and Charles B. Sullivan, Jr. and further declaring that the chattel deed of trust from Nils Brekke to the trustees dated August 26, 1962 and recorded among the chattel records of Anne Arundel County in liber L.N.P. 189, folio 487, securing the principal balance due from Nils Brekke on a note to Dr. G. N. Brekke as of[***3] November 4, 1964, constituted a prior lien to that of the plaintiff to the true extent of the principal balance due from Nils Brekke to Dr. G. N. Brekke.

   The decree also declared that the lien of the plaintiff was superior to the deed of trust dated August 6, 1962 and recorded among the chattel records of Anne Arundel County in liber L.N.P. 189, folio 491, also to the same trustees, purporting to secure an indebtedness from Nils Brekke to William C. Wallace.

   In his memorandum opinion supporting the decree, Judge Childs found that the chattel deed of trust, also dated August 26, 1962, and recorded among the chattel records of Anne Arundel County in liber L.N.P. 189, folio 495, from Nils Brekke to the same trustees securing an indebtedness in the amount of $1,000 due by Nils Brekke to Charles B. Sullivan, Jr., constituted a valid lien superior to that of the plaintiff which caused him to dismiss the bill of complaint as to Sullivan.

   The personal property that was the subject of the aforementioned chattel deeds of trust was a 24 ton concrete hull mold, the unfinished hull of a 46 foot fiberglass sailboat, and the tools and machinery incident thereto.  The title to these chattels was[***4] [*177] in the defendant Nils Brekke, but Trygve Lohne held a mechanic's lien in the amount of $4,679.72 and thereby claimed an undivided one-half interest in the mold. The validity of the mechanic's lien is not herein contested.  The unfinished hull and mold were moved to Anne Arundel County from Washington, D. C. in the fall of 1961 and have been there ever since.  On December 5, 1962, the Internal Revenue Service filed a tax lien in the office of the Clerk of the Circuit Court for Anne Arundel County for unpaid taxes owed by Brekke.  Subsequently, after notice of seizure by the United States Treasury Department, the uncompleted boat and mold were sold at public auction to the appellant Weidemeyer for the sum of $5510.  The certificate of sale transferred to the appellant "all right, title, and interest of the said Nils Brekke in and to any personal property described," and went on to describe the boat and mold.

   The appellant argued before this Court that the instruments involved came within the provisions of Code (1957), Article 21, Sections 41-51; that they are either bills of sale or chattel mortgages; and that as such they were defectively executed since they did not[***5] contain affidavits of consideration as required by Article 21, Section 50 and are invalid as to all persons except the parties to the instruments.  They further contend that since the instruments were defective that the United States government gained priority over the parties secured by the instruments and that the sale for delinquent taxes conveyed to the appellant a good clear title free from the liens that were created by the chattel deeds of trust.

   [**720] Notwithstanding appellant's arguments and the authorities cited by him we see no reason to declare that the deeds of trust from Nils Brekke to the trustees securing indebtednesses to Dr. G. N. Brekke and Charles B. Sullivan, Jr. were not valid deeds of trust. The appellant cites cases where courts of equity have regarded purported bills of sale or consignments as mortgages. In these cases it is manifest that the instruments involved contained no affidavit of consideration and yet they were enforced in equity as mortgages as equity would enforce a deed absolute on its face if it were found that the intent of the parties was to create a mortgage.

   The appellant also cites a line of cases and authorities to the [*178] [***6]effect that chattel deeds of trust are "in effect a chattel mortgage" or "one of the common forms which a mortgage takes is a deed of trust * * *," or "the conveyance therefore though called a deed is in substance and purpose a mortgage * * *." These propositions are true in that with respect to both chattel mortgages and chattel deeds of trust the property is conveyed to secure an indebtedness and in each case upon default by the debtor the property may be sold to satisfy the claim of his creditor.  What is overlooked by the appellant are the facts that there is a line of cases in this state going back over one hundred years that distinguish instruments that are in effect mortgages from those that are technical mortgages, and also that the statute involved, Code (1957), Article 21, Section 50 (repealed by Acts of 1963, Chapter 538, Section 1, replaced by Code (1964 Rep. Vol.).  Article 95B, Sections 9-101 to 9-507) did not include deeds of trust as instruments requiring an affidavit of consideration.

   The first of this line of cases is Charles v. Clagett, 3 Md. 82, 94, where Eccleston, J. speaking for an evenly divided Court, affirming a judgment for the appellee, said: [***7] 

   "In my opinion, the act of 1846 should be construed as including mortgages, technically such.  It is only necessary to mention one class of instruments which have been held in equity to be mortgages, to show, beyond controversy, that the statute could never have been designed to embrace all equitable mortgages. A deed absolute on its face by mistake, if intended to be a mortgage, will be so declared by a court of equity, and I presume it will not be said that if such a deed is without the oath, it will be void under the act.  If there are any equitable mortgages not embraced by the statute, why may it not be construed as only applicable to those of a technically legal character?  In so doing, much confusion and embarrassment will be avoided, especially in reference to making provision for securing payment to a considerable number of creditors, by deeds, which have been treated and considered as deeds of trust."
 
[*179] It is interesting to note that Judge Mason, who dissented in the Clagett case later changed his position and in Stockett v. Holliday, 9 Md. 480, 492, said:
 
"The law seems to apply to deeds of mortgage, technicall [sic] such, and to [***8]bills of sale from grantor to grantee, for the benefit of such grantee.  A deed such as this is an absolute conveyance, containing no right of redemption.  So an absolute deed with a defeasance, and containing a right of repurchase, which might, according to the real intention of the parties, be treated in equity as a mortgage, yet would not be considered a formal and technical mortgage embraced by the Act of 1846."
 
This position was reaffirmed in Kinsey v. Drury, 146 Md. 227, 230-31, 126 Atl. 125, in 1924 and has not been overruled to date.  There this Court said:

   "It has been definitely decided by this Court that a deed of trust securing an indebtedness is not a mortgage within the meaning of various provisions of the recording statutes.  In Stanhope v. Dodge, 52 Md. 483, it was held that a deed of [**721] trust to secure the payment of promissory notes of the grantor might be recorded after the expiration of six months from its date and would then have the same validity as if recorded within that period.  The requirement of section 32 of article 21 of the Code that no mortgage shall be valid, except as between the parties, without an affidavit by the mortgagee [***9]as to the consideration, has been held applicable only to technical mortgages and not to deeds of trust. Shidy v. Cutter, 54 Md. 677; Snowden v. Pitcher, 45 Md. 265; Carson v. Phelps, 40 Md. 96; Stockett v. Holliday, 9 Md. 499 [480]; Charles v. Clagett, 3 Md. 82; Stanhope v. Dodge, supra."
 
   Nor is the situation requiring an affidavit of consideration for a mortgage and not for a deed of trust the only instance where a distinction between the two types of conveyance has been recognized.  Code (1957), Article 66, Section 2, relating to future [*180] advances on any "mortgage or deed in the nature of a mortgage," goes on to state: "nor are the provisions hereof intended to apply to deeds of trust in the nature of mortgages or any other deeds of trust to secure bonds, notes or other obligations." As was stated in 4 Md. L. Rev. 111, 117: "If it were simply a deed of trust, the provisions of the Act of 1825, and the provisions of Article 66, even before the amendment of Sections 2 and 3 in 1924, would have been inapplicable." The article then referred to footnote 18 which said: "That a deed of trust is not a mortgage within the provisions of Md. Code (1924) [***10] Article 66, and its predecessors, has often been held." (Citing cases.)

   The use and validity of deeds of trust on both realty and chattels as a mode of conveyance to secure an indebtedness has long been recognized as a valid device for this purpose.  Their use is so common in the District of Columbia and in the neighboring counties of Maryland and Virginia that they have come to be called "Potomac mortgages."

   At the time the instant case arose both Section 30, covering affidavits of consideration as to real estate mortgages, and Section 50, pertaining to affidavits of consideration as to chattel mortgages, were in effect and neither mentioned the necessity of such affidavits in connection with deeds of trust. Subsequently Section 50 was repealed by Chapter 538 of the Acts of 1963 and its subject matter is now embraced by the Uniform Commercial Code, now codified as Code (1964 Repl. Vol.), Article 95B.  Section 30 was, however, amended by Chapter 652 of the Acts of 1963 to include deeds of trust as well as mortgages on real estate. In doing so it may fairly be inferred that the legislature recognized that deeds of trust were not covered by this section and that there existed a need[***11] for this additional coverage.

   As shown by the stipulated statement of facts contained in the appellant's brief, "The Certificate of Sale transferred to Appellant 'all right, title, and interest of the said Nils Brekke in and to any personal property described' therein, and the said certificate described the unfinished sailboat and mold." At the time of the sale Brekke owned the uncompleted hull and a one-half undivided interest in the concrete mold subject to his indebtednesses to Dr. Brekke and Sullivan.  The tax sale here conveyed [*181] to the purchaser no other interest in the property than that belonging to the delinquent tax debtor. Blacklock v. United States, 41 Ct. Cl. 89, aff'd 208 U.S. 75. Thus the appellant could take no greater interest in the chattels than Brekke had and he took title to the uncompleted hull and mold subject to the two deeds of trust found by the trial court to be valid.

   From an examination of the record before us we cannot say that the chancellor erred in finding that the two liens which he allowed created prior interests to that purchased by the appellant.

   Decree affirmed, with costs. 

BENDER, et al. v. ARUNDEL ARENA, INC., et al. 
No. 710, September Term, 1966
 
Court of Appeals of Maryland
 
248 Md. 181; 236 A.2d 7; 1967 Md. LEXIS 314

 December  6, 1967, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed on December 22, 1967, Denied on January 2, 1968.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  lottery, gambling, machine, bingo, game, gaming, subtitle, ticket, legalized, prize, amusement, licensed, license, establishment, played, coin-operated, card, slot, gaming table, lawful, repeal, player, wager, general assembly, amusement device, lottery ticket, licensing, licensees, authorize, drawing

COUNSEL: Rufus King for appellants.

   Ward B. Coe, Jr., with whom were Charles B. Keenan, Jr., Anderson, Coe & King , and Rouse & Beardmore, and John A. Blondell, on the brief, for appellees.

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

OPINIONBY: HAMMOND

OPINION: [*184] [**8] The appellants are members of the Citizens Committee of Anne Arundel County, Inc., which for some years has been trying to have declared illegal commercial bingo games and coin-operated gambling devices licensed[***6] by the County Commissioners of the County under enabling statutes of the General Assembly. The [**9] Association and some of its members in December 1961 sued in the Circuit Court for Anne Arundel County to enjoin the County Commissioners from issuing licenses for the operation of slot machines, payoff pinball machines, console machines and commercial bingo, alleging that the County ordinances, and resolutions passed thereunder purporting to authorize such licenses, were unconstitutional.  The complainants contended that they had standing to sue, that the legislative enabling acts were never intended to authorize the licensing of gambling devices, that the titles of the legislative enabling acts are misleading in violation of Art. III, § 29, of the Constitution of Maryland, that the acts authorize lottery grants in violation of Art. III, § 36, of that Constitution, that the acts constitute an unlawful delegation of legislative power, and that they are invalid because they purport to be regulatory measures but actually are revenue measures.  In an opinion filed in early 1963, Judge Macgill found it unnecessary to pass on the complainants' standing to sue since he decided against[***7] them on the merits on every point.

   In the appeal to this Court, Citizens Committee of Anne [*185] Arundel County, Inc. v. County Commissioners of Anne Arundel County, 233 Md. 398, we found that the appellants had no standing to sue and therefore found it unnecessary to consider the merits of the case.

   Undaunted, various members of the Association in May 1964 played bingo, electric console machines, slot machines and pinball machines at the premises of various licensees in Anne Arundel County, and as they had anticipated lost varying amounts of money.  The players thereupon sued the bingo licensees to recover $50.00 for every card they had played in reliance on Code (1957), Art. 27, § 359, found under the subtitle "Lotteries," which provides that any person who gives money for any "lottery ticket, certificate, or any other device" by which the vendor promises that he will pay the purchaser money "on the happening of any contingency in the nature of a lottery" may recover from the person to whom he gave the money $50 for every lottery ticket he bought.  Those who had lost money on the machines sued the machine licensees to recover their losses under Code (1957), Art. 27, [***8] § 243, providing that "Any person who may lose money at a gaming table may recover back the same as if it were a common debt * * *." The total amount sued for is some several hundred thousand dollars. 

   The defendants pleaded that they were holders of lawful and valid licenses issued by Anne Arundel County, duly entitled to conduct bingo games and maintain and offer to the public for play coin-operated gambling devices in that County, and that they never promised as alleged and were not indebted as alleged.

   Each side moved for a summary judgment, supporting its motion by affidavits, a stipulation as to applicable ordinances, resolutions, rules, official reports, studies and other public acts, and exhibits.  Judge Sachse gave judgment for the defendants in a thorough opinion which in all essentials agreed with that of Judge Macgill in the prior case.  We think Judge Sachse was right.

   The appellants' contention that the legislature has never intended to confer, nor has conferred, authority on the County Commissioners of Anne Arundel County power to license commercial gambling, but only to license "amusement" devices, falls [*186] apart when the legislative acts in question and[***9] the official and judicial views of their meaning are examined.

   Chapter 321 of the Laws of 1941 gave the Commissioners power to license "any * * * amusement device * * * whenever any such * * * amusement device is not * * * specifically prohibited from being operated therein [in Anne Arundel County], by the Public General or Public Local Laws * * *." Under this act, if the amusement device is to be used as a gambling device it would not be licensable [**10] as the appellants contend.  However, by Ch. 321 of the Laws of 1943 the Commissioners were given the power to determine what "amusement devices" may or may not be allowed, and the further specific power to permit "any prize or award in the operation of any * * * amusement device * * * for skill or score attained." In addition, the 1943 statute repealed, as far as Anne Arundel County is concerned, various provisions of the "Gaming" subtitle of Art. 27 of the Code, including § 244 (then 299) ("All games, devices and contrivances at which money or any other thing shall be bet or wagered shall be deemed a gaming table * * *"), § 237 (then 288) (which makes it unlawful to keep "any gambling table, or any house, vessel or place, [***10] on land or water for the purpose of gambling"), § 238 (then 289) (certain outmoded games and "any other kind of gaming table * * *, at which any game of chance shall be played for money * * *, shall be deemed a gaming table"), and § 245 (then 300) (prohibiting gambling at cards or dice games or "any other device or fraudulent trick whatsoever * * *").  The 1943 statute also repealed all inconsistent laws to the extent of their inconsistency.

   Chapter 1013 of the Laws of 1945 went further to provide that nothing in any of the sections of Art. 27 of the Code (listing them by number), codified under the subtitle "Gaming," "shall be construed to prohibit or make unlawful the operation of any amusement, contest, meet or event, or the participation in any award or wager upon the result of any such amusement, contest, meet or event, operated pursuant to regulations adopted pursuant to the powers granted * * *" by the 1941, 1943 and 1945 acts repealing gaming prohibitions.

   The General Assembly has repeatedly shown recognition that coin-operated gambling machines and commercial bingo have [*187] been legalized in Anne Arundel County.  The County Commissioners have from time to time, [***11] beginning in 1943, provided for their licensing. With these local authorizations and the actual open operation of coin-operated gambling machines and commercial bingo under its very eyes, the legislature, by Ch. 625 of the Laws of 1949, authorized further exercise of local discrimination in the granting of licenses "under the authority of [the 1941, 1943 and 1945 acts] * * * (including Bingo)." The phrase as to bingo is twice repeated in the 1949 statute and is twice repeated in a similar statute, Ch. 3 of the Laws of 1954.

   The County resolutions and Public Local Laws licensing gambling were formally legalized by Ch. 334 of the Laws of 1957.  Chapter 43 of the Laws of 1958 (Special Session) outlawed betting on "Jai Alai" in Anne Arundel County but included a savings clause for "bingo" and "slot machines." Chapter 800 of the Laws of 1959, dealing with admissions and amusement taxes, made special provision for Anne Arundel County and said that "Bingo" is not to be considered an amusement device.

   In 1962 Governor Tawes appointed the Emory Committee to study legalized slot machines and commercial bingo and recommend procedures to eliminate the machines with the least possible damage[***12] to the economy of the counties in which they were legal.  The Committee's report refers to the fact that in Anne Arundel, Calvert, Charles and St. Mary's Counties gambling by means of slot machines had been legalized and that there were nine lawful commercial bingo operations in Anne Arundel County, saying that "it would seem inconsistent to abolish legalized gambling by machines and retain legalized gambling by commercial bingo establishments." By Ch. 617 of the Laws of 1963 the legislature passed a law to phase out slot machines over a period of years in the four counties but did nothing as to commercial bingo in Anne Arundel County.

   Judge Macgill's opinion that gambling had been legalized in Anne Arundel County was shared by Judge Chesnut, who said in 1952 in Smith v. McGrath (D. Md.), 103 F. Supp. 286, 288, in referring to "machines and devices for the amusement" of patrons of the plaintiffs, the "operation of all gambling [**11]devices possessed by the plaintiffs are lawful in * * * Anne Arundel [*188]* * *." In McGowan v. State, 220 Md. 117, 124, which upheld the repeal of the Sunday blue laws as to places of amusement in Anne Arundel County, the Court referred[***13] to "slot machines, pinball machines, and bingo games," and said: "What is permitted all comes within the category of recreation." In affirming, the Supreme Court in McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, said: "some people will prefer alcoholic beverages or games of chance to add to their relaxation * * *."

   It seems clear that the legalization of some forms of gambling in Anne Arundel County had the effect of disallowing any civil recoveries against the gambling establishments there licensed. The 1943 Act did not expressly repeal § 243 (then 298) of Art. 27 which allows a gambling loser to recover his losses but it did repeal all inconsistent laws, and the 1945 Act provided that nothing in §§ 237 to 246, inclusive, (then 288 to 301) of Art. 27, subtitle "Gaming," shall "prohibit or make unlawful * * * the operation of any amusement, contest, meet or event, or the participation in any award or wager upon the result [thereof] * * *."

   Gambling, unless it became a public nuisance, and gaming contracts were lawful at common law.  In LaFontaine v. Wilson, 185 Md. 673, 678, the Court said:
 
"by the Statutes of Charles [16 Car. 2 Cap. 7 in 2 Alexander's[***14] British Statutes (Coe's ed. 1912 p. 643)] and Anne [9 Ann. Cap. 14, 2 Alexander, supra p. 932] certain forms of wagering were made illegal [although not criminal], and recovery by a winner was denied."
 
The Statutes of Charles provided for recovery of damages trebling the amount lost in excess of 100 pounds (one-half to go to the Crown), in a civil suit by a loser in a fraudulent game. The Statutes of Anne voided notes given for gambling debts and provided for treble damage suits for losses in excess of 10 pounds. Section 243 of Art. 27 is a similar statute by which "certain forms of wagering were made illegal." To permit a civil recovery for gambling losses is legislative recognition that the gambling which produced the loss was illegal. It would not only be futile, it would be a contradiction in terms to say that a wager [*189] lawfully could be made but if the licensed gambling establishment won the wager it could not keep the stake.

   The legislature must be deemed to have made § 243 of Art. 27 of the Code unavailable to one who gambles in Anne Arundel County at a licensed gambling establishment.

   The appellants say that even if this be so, and even though they[***15] sued in this case to recover their losses on gambling machines under the provisions of § 243, that both the machines and bingo are lotteries and, therefore, they can recover $50 under § 359 of Art. 27 for every coin they put in a machine and for every bingo card they played because there has been no legislative repeal of § 359 or of any other statute under the "Lotteries" subtitle of Art. 27.

   The answer to this argument seems simple and plain.  The legislature has always considered the forms of gambling it permitted to be made legal in Anne Arundel County to be gambling games or in the nature of a gaming table, within the purview of the proscriptions of the provisions of the Code grouped under the subtitle of Art. 27 entitled "Gaming," and has never considered those forms of gambling to be schemes in the nature of a lottery prohibited by or within the purview of the provisions of the Code grouped under the subtitle of Art. 27 entitled "Lotteries."

   Most states have held coin-operated gambling machines and bingo to be lotteries, finding that they combine the classic elements of a lottery of consideration, chance and prize. These states take the view that [**12] [***16]their constitutional and legislative provisions use the term "lottery" in its generic sense; other states have given the term a more restricted, precise and technical meaning.  Maryland would seem always to have chosen the latter course, and to have drawn a definitive distinction between games of chance and schemes of lottery.

   In essentially the same form as they now are, the "Gaming" laws (§§ 237 to 246 of Art. 27) and the "Lottery" laws (§§ 356 to 371 of Art. 27) have been on the books since long before the first Code, that of 1860.  Officials and courts in Maryland appear to have considered (a) that the lottery laws covered schemes for awarding a prize by lot or chance in which the only direct or personal participation by the seeker of the prize [*190] is his purchase of a ticket or its equivalent; and (b) that the gaming laws covered gambling by games of chance or gaming tables, as broadly defined (even though skill plays no part), in which the player participates personally and directly and is present when the game ends and the result becomes known.

   In Smith v. State, 68 Md. 168, evidence of sales of pieces of paper, commonly known as "policies" entitling the[***17] holder to receive a specified sum if certain numbers later were drawn, was held to be relevant evidence in a lottery prosecution.  Boyland v. State, 69 Md. 511, involved a similar indictment.  The tickets sold were headed "Horse Combination" and the purchaser bought them in the hope she would win forty times what she paid if the numbers she held came up later in a horse race.  The Court held the tickets to be lottery tickets. Ballock v. State, 73 Md. 1, involved a typical lottery scheme of the Austrian government to promote the sale of its bonds by paying each year a premium over the amount of the bond if the number on a holder's bond were drawn.  The bonds were equated by the Court to lottery tickets. Shelton v. State , 198 Md. 405, had to do with "numbers slips"; the "numbers game" is clearly a lottery.

   On the other side of the coin offenses against the gambling laws involving machines or mechanical devices have always, as far as the Court is aware, been prosecuted by Maryland State's Attorneys under the gaming and not the lottery laws.  Various Attorneys General have held or assumed that gambling machines violated the gaming statutes with no suggestion (except in one[***18] letter -- Vol. 8, Op. A. G. 100) that they offended the lottery statutes. n1

 n1 See following opinions of the Attorney General: Vol. 5, 114, 116; Vol. 10, 158, 211; Vol. 13, 230; Vol. 15, 256; Vol. 19, 221; Vol. 22, 334; Vol. 34, 141.

   Moreover, 25 Opinions of the Attorney General 425 found that bingo, licensed in Baltimore under the local exempting statute, was lawful, with no hint that it might be a lottery or that the exempting statute might amount to an unconstitutional lottery grant.  The Court in Brown v. State, 210 Md. 301, and Hunter v. State, 193 Md. 596, reiterated what earlier cases had [*191] held, that gambling machines are to be treated as gaming tables, proscribed by the "Gaming" statutes.

   Bingo, another name for the game called lotto in England (and sometimes keno in this country) is a game of fairly recent popularity. n2 Scarne, Complete Guide to [**13] Gambling, p. 185 (Simon and Schuster, 1961), says that it was not generally played in the United States until 1928. [***19] It has grown rapidly and tremendously since then.  By Chapters 701 and 716 of the Laws of 1939 (now §§ 247 and 260, respectively, of Art. 27 of the Code) the legislature authorized the playing of bingo in Allegany County and Baltimore City for the raising of money for churches, charitable and fraternal enterprises, and volunteer fire companies.  Since then the legislature has authorized bingo games for similar purposes in fourteen more counties.  The legislative authorizations are found in §§ 247 to 261B inclusive of Art. 27 of the Code under the subtitle "Gaming," and each of them begins either by saying that: "Nothing in this subtitle shall be construed to make it unlawful * * * to operate * * * a game of bingo * * *," or by saying that: "Notwithstanding the provisions of this subtitle," etc.  (Emphasis supplied.) None refers to the lottery statutes.  Had the legislature considered bingo to be in the nature of a lottery, either the exemption statutes would have been legislatively placed under the lottery subtitle or under both the gaming and lottery subtitles, or the exempting acts would have read "nothing in this Article" rather than "nothing in this subtitle[***20] ."

n2 14 Encyclopaedia Britannica, "Lotto" p. 405 (14th ed. 1929) 
Webster's Third New International Dictionary defines "lotto" as:
"a game played usu. for a pool with cards bearing rows of numbers in which a caller draws numbered counters from a stock and each player covers the corresponding numbers if they appear on his card, the winner being the one who first covers one complete row."
Compare the definition Webster gives for a "lottery":
"1: a scheme for the distribution of prizes by lot or chance; esp: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them usu. as determined by the numbers on tickets as drawn of random (as from a lottery wheel) * * *."

 
   It would be strained fancifulness to ascribe to the legislature [*192] an intention to allow churches, charitable and fraternal organizations, and volunteer fire companies lawfully to make money by operating bingo games and at the same time permit a player at the game[***21] to sue the church, the charity or the fire company for $50 for each card he had played. It would be no more reasonable to read the laws authorizing commercial gambling in Anne Arundel County, from which the County was to receive substantial income from license fees, to permit each player to sue for $50 for every coin put in a gambling machine or for every bingo card he played. Obviously, there would be no commercial gambling if this could be done, and equally obviously, the legislature and the County Commissioners intended that there be commercial gambling in the County.  Section 359 of Art. 27 of the Code must be held to have no application to the present legalized gambling in Anne Arundel County.

   All lottery is a form of gambling but all gambling need not be legislatively considered to be or actually be lottery, and although some, perhaps many, gambling games, including machines and bingo, have elements of lottery they have not been considered as coming or held to come within the purview of the lottery statutes.  We think likewise that the legalization of the gambling games here involved was not forbidden by the command of Art. III, § 36 of the Constitution of Maryland, that: [***22] "No lottery grant shall ever hereafter be authorized by the General Assembly."

   In the latter part of the eighteenth century and the first half of the nineteenth century, Maryland's legislature, in common with those of many other states, passed some one hundred fifty special acts to authorize lotteries intended to raise money for specific charitable, religious or public purposes. Generally the acts named individual trustees who were, after giving bond, to conduct the lottery in order to raise a stated amount.  These were known as lottery grants.  Chapter 59 of the Laws of 1791 gave the Commissioners of Baltimore exclusive authority to conduct an annual lottery not exceeding 3500 pounds net to pave streets and clean the harbor, and forbad any other lottery in the City.  Chapter 154 of the Laws of 1817 provided for the termination of all lotteries theretofore granted, for a 5% tax to the state on all lottery prizes, and for the establishment of three [*193] Commissioners of Lotteries to be appointed by the Governor and Council with detailed powers to supervise and regulate lotteries.

   By Ch. 129 of the Laws of 1828 it was made unlawful for any person to draw any scheme of a lottery[***23] unless approved by the Lottery Commissioners who were directed [**14] not to approve any such scheme unless proposed by the Commissioners themselves on behalf of the state or "expressly granted by the general assembly." By the Laws of 1831, Ch. 79, the Lottery Commissioners were authorized "to grant * * * licenses * * * to sell, not only tickets in * * * schemes * * * of lotteries," which they formed or authorized for the benefit of the state, but also to sell tickets in any such "scheme" granted by any state or by the United States.  Licensees had to pay $5,000 and to contract to draw a scheme which would net the state at least another $15,000.  The state was in the lottery business.  Chapter 205 of the Laws of 1835 directed the Lottery Commissioners to "take all grants of lotteries now existing * * * and draw the lotteries or dispose of the schemes, under such grants, in the same manner as they draw or dispose of the State schemes * * *," and pay over the money "to be applied to the purposes of such grants." (All emphasis added.) This Act clearly shows the contemporary meaning and understanding of "lottery grant" to have been the granting of special authority[***24] to conduct a lottery to raise a stated sum for a specific, worthy purpose.

   A constitutional amendment which became effective in 1840 (proposed by Ch. 31 of the Laws of 1839 and confirmed by Ch. 261 of the Laws of 1840) provided that "no new grant to authorize the drawing of any lottery or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, or the distribution of money or property by chance, shall be made." The clear purpose of the amendment was to end the powers granted the Lottery Commissioners and the Court in Lucas v. McBlair, 12 G. & J. 1, 17, so held in 1841 as follows:

   "The prohibition [of the amendment], therefore, was not exclusively confined to grants of lottery privileges by the Legislature, but was manifestly intended to cover the whole system of dealing in lotteries, and to prohibit likewise the granting of licenses to sell tickets by [*194] the Lottery Commissioners and the sale of schemes by them."

   The later Constitutions of 1851, 1864 and 1867 included the same bare prohibition against authorization by the legislature of lottery grants, although in the Constitution of 1851, the provisions as to "Sundry Officers" [***25] in Art. VII, § 5, added that "no lottery scheme shall be drawn for any purpose whatever, nor shall any lottery ticket be sold in this State * * *"; and in addition the Commissioners were directed to extinguish "all existing lottery grants" by 1859.  This section offers a stark contrast between the broad provisions prohibiting all drawings of lottery schemes and the sale of any lottery ticket and the narrow reference to unterminated, previously chartered ticket lotteries as "existing lottery grants." The contrast is made graphic by the fact that the 1864 and 1867 Constitutions contained no broadly stated prohibitions against drawing of lotteries and selling lottery tickets, as did the 1840 amendment and the 1851 Constitution but only the narrow language prohibiting legislative authorization of lottery grants.

   These contrasts are made more graphic by the history of § 36 of Art. III in the Constitutional Convention of 1867.  Perlman's Debates of Maryland Constitutional Convention of 1867, p. 89, shows that on May 21, 1867:

   "On motion of Mr. Vansant, it was

   Ordered, That the committee on the legislative department inquire into the expediency of engrafting into the constitution[***26] an article inhibiting lottery grants and the sale of lottery tickets, of whatever kind, or policies of risk, or certificates having in anywise any connection with the drawing of lotteries or schemes of raffle, or gift enterprises, either through agents or otherwise, and requiring the General Assembly of the State to enact penal laws and prohibitions in that connection." (Emphasis supplied.)
 
[**15] The Convention and the voters of Maryland found it expedient to engraft into the Constitution of 1867 only an article "inhibiting lottery grants" and nothing more.

   [*195] We are persuaded by the words of § 36 of Art. III of the Constitution, considered in light of their legislative and constitutional history and in the context of the long and by 1867 well recognized distinction in Maryland between gaming and lottery (the same Court which passed on the lottery law in December 1841 in Lucas v. McBlair, supra, held in December 1841, in State v. Price, 12 G. & J. 180, that an indictment for maintaining a gaming table under what is now § 242 of Art. 27 was valid) that the words "lottery grant" as used in § 36 were intended to mean traditional chartered ticket [***27]lotteries engaged in or sponsored by the State.  So read, § 36 does not inhibit the legislature from legalizing gaming, nor prevent classification of bingo and coin-operated gambling machines as gaming tables.

   The repealing Acts of 1941, 1943 and 1945 are not invalid as violating the requirements of § 29 of Art. III of the Constitution.  The fact that the 1941 Act excepts the Sixth District of Anne Arundel County (Annapolis) does not make it invalid.  Mt. Vernon Co. v. Frankfort Co., 111 Md. 561. The 1943 and the 1945 Acts revealed that they authorized gambling by recitation in the titles that specified sections of the "Gaming" subtitle of Art. 27 are repealed.  Cf. Bell v. Prince George's County, 195 Md. 21; and see Second German American Bldg. Assoc. v. Newman, 50 Md. 62, 67, Baltimore v. Fuget, 164 Md. 335, 346, and Gibson v. State, 204 Md. 423, 432.

   No unconstitutional delegation of legislative power was made by the repealing Acts.  Sufficient standards as to licensees and their premises are spelled out, and court review of the licensing is provided.  See Gordon v. Montgomery County, 164 Md. 210, which distinguished County Comm'rs v. Cemetery Co.[***28] , 160 Md. 653, relied on by the appellants.  Further, we have held that in a delegation of police power to a municipality guides and standards need not be spelled out.  See LaRoque v. Co. Commissioners, 233 Md. 329, 336, distinguishing State v. Greenberg, 221 Md. 471, which appellants cite in this connection.

   Appellants have no standing to raise as a cognizable issue whether the repealing Acts are revenue rather than regulatory measures.  Brown v. State, 177 Md. 321, 327; State v. Case, 132 Md. 269.

   [*196] Appellants have been deprived of no rights under the Fourteenth Amendment to the Federal Constitution.  McGowan v. State, 220 Md. 117, and McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, both supra.  See also 16 Am. Jur. 2d Constitutional Law § 510 (1964).

   The Court's decision that licensed gambling in Anne Arundel County presently is lawful does not reflect its views, one way or the other, as to the expediency or wisdom of the legalizing laws and means no more than that the applicable statutes and provisions of the Constitution, as we read them, permitted what was done legislatively and administratively lawfully to have been done.

   [***29] Judgment affirmed, with costs. 

DELBROOK HOMES, INC. v. MAYERS, et al. 
No. 648, September Term, 1966
 
Court of Appeals of Maryland
 
248 Md. 80; 234 A.2d 880; 1967 Md. LEXIS 302

 November  15, 1967, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed on December 14, 1967; Denied on January 4, 1968.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, C. J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  beach, ordinance, zoning ordinance, subject property, zoning, church, swimming, pool, adjacent, contiguous, agricultural, residents, planning, club, neighborhood, legislative body, residential, farm, park, administrative interpretation, ambiguous, dwelling, distance, supplied, free use, special exception, mile, recreational, golf, feet

COUNSEL: B. Conway Taylor, Jr., with whom were Due, Whiteford, Taylor & Preston and Robert N. Lucke, Sr. and Bald, Smith & Lucke on the brief, for appellant.

   Malcolm B. Smith, with whom were Smith & Wholgemuth on the brief, for appellees.

JUDGES: Hammond, C. J., and Horney, Marbury, Barnes and Finan, JJ.  Finan, J., delivered the opinion of the Court.  Barnes, J., dissents.  Dissenting opinion at page 85, infra.

OPINIONBY: FINAN

OPINION: [*82] [**881] The question presented in this appeal is quite narrow, involving only the legal definition of the term "private community beaches" as appears in the Anne Arundel County zoning ordinance. More precisely, the question is whether such a private community beach must be located within the perimeter of, or contiguous to, the community which it serves.

   [**882] The appellant's beach property, located along the Severn River, is zoned agricultural, a classification of which one of the permitted uses is "private community beaches." Anne Arundel County[***4] Code, § 35-38 (1957). The community which appellant wishes the beach to serve is its housing subdivision known as "Chartwell" located nearly a mile from the beach property. Since 1947 appellee-complainants have owned a converted summer home situated fifty feet from the appellant's beach property, in an area of the county generally referred to as "Lakeland."

   On September 19, 1962, Mayers, his wife and the Lakeland Area Civic Association filed a Bill of Complaint in the Circuit Court for Anne Arundel County, seeking both a declaration that use of the beach property by residents of another community amounted to a violation of the County ordinances, and an injunction prohibiting such a use.  The lower court sustained respondent's demurrer against the Lakeland Area Civic Association.  After an open hearing on the matter, the court filed an Opinion on July 24, 1966, in favor of appellee-complainants, and on September 28 of that year issued a decree which adjudicated the appellant's use of the property to be violative of the zoning ordinance, and enjoined appellant from using the property as a community beach and boating facility for the benefit of Chartwell.  We affirm the opinion of [***5]the lower court.

   [*83] The term "private community beach" in the context of the zoning ordinance means a beach for the use and benefit of the surrounding and neighboring property owners, not one for the exclusive use of a community in another area.  Although the uses imposed on the property by either group might well be identical, the fact remains that the residents of Chartwell cannot be expected to assume attitudes of responsibility toward the surrounding neighborhood and community control over the beach facilities as would those who reside in close proximity to the beach, that is, the residents of the Lakeland area.  See Gilbert v. Town of Hamden, 135 Conn. 630, 68 A. 2d 157 (1949).

   Support for the construction adopted may be found in § 35-115 (g) of the County zoning ordinance. After setting out the requirement of the approval of the Board of Zoning Appeals as a condition to establishing public beaches, the ordinance further provides: "The above shall not apply to community beaches or swimming pools in and for bona-fide residential subdivisions." (Emphasis supplied.) This sentence certainly suggests that the county commissioners intended private community beaches[***6] and swimming pools to be located within or adjacent to the subdivisions which they serve. n1

n1 Judge Macgill in his opinion below drew a forceful analogy of an eventuality that could occur if the appellant's interpretation of the ordinance prevailed, stating:

   "The construction contended for by the Defendant might, not implausibly, be extended to permit a community such as 'Columbia', in Howard County, with a projected population of one hundred thousand, to buy and utilize, for the benefit of its members, a beach front in a quiet Anne Arundel County development."

 
   The Court finds no evidence in favor of appellant's contention that appellees did not show special damages and therefore lacked standing to sue.  After purchasing the property in 1947, the Mayers expended capital in converting the summer home into a year-round home which Mr Mayers estimates is now worth between $25,000 and $30,000.  Activity on the beach property commenced in the summer of 1961, creating traffic problems, noise and various encroachments [***7]upon the appellees' property from parked cars and trespassing individuals.  Mr. Mayers testified that his property became both a telephone booth and [*84] a lost and found department for the beach property.  Under such circumstances the lower court properly concluded that the relatively small beach property set aside for [**883] the enjoyment of a contemplated two hundred and seventy-five families would have a distinctly damaging effect of the Mayers' property, different in kind and degree from that suffered by the public generally.  The Chatham Corp. v. Beltram, 243 Md. 138, 147, 220 A. 2d 589, 595 (1966); DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487, 489 (1965); Cassel v. City of Baltimore, 195 Md. 348, 353, 73 A. 2d 486 (1950).

   Nor can it be argued that such a construction of the ordinance discriminates against appellant's use of the premises.  Although it is true that zoning must be directed toward use rather than location or ownership of property, we have on occasion permitted a commercial reclassification within a residential zone when convinced by the evidence that such use was for the accommodation and convenience of the neighborhood residents and therefore[***8] in the public interest.  See MacDonald v. Board of County Commissioners, 238 Md. 549, 557, 210 A. 2d 325 (1965); Hewitt v. Baltimore County, 220 Md. 48, 58, 151 A. 2d 144 (1959). Cf. Temmink v. Board of Zoning Appeals, 205 Md. 489, 495, 109 A. 2d 85 (1954); Cassel v. City of Baltimore, supra. As Judge Macgill indicated below, a necessary corollary to the above rule is that such a commercial use may not be established when it is not for the accommodation and convenience of the residents. In such a case, as in the instant appeal, the requisite element of local public interest is absent.

   The Planning and Zoning Commission, in approving the subdivision plat of Chartwell, permitted the beach property consisting of a little over an acre to be used together with approximately four acres abutting the Chartwell subdivision (which is about one mile from the beach property) to satisfy the statutory five-percent recreational use requirement.  The appellant argues that such action amounted to an administrative interpretation of Anne Arundel County Code, § 35-38 (1957) that the use complained of was lawful, and that when one has acted in reliance upon an administrative interpretation, [***9] rather than upon governmental "mistake" or illegal conduct, an estoppel in pais may be imposed on the county.

   [*85] In this case the only interpretation given by the Anne Arundel County Planning Administrator as to why the use complained of was lawful, in light of the wording of the ordinance, consisted of his act of approving the subdivision plan.  Many months after this approval, upon inquiry by the attorney for the appellees, the Planning Administrator replied by letter stating:

   "Your letters of April 3rd, 13th, and May 22nd, were referred to our legal department.  In conversing with them, I have been given no opinion to indicate that the subject property in the Lakeland area is not a private community beach, or that such a use could be prohibited in an Agricultural zone.  Consequently I feel that I am given no choice but to rule that the subject use is a valid one."

   No further elucidation as to the definition of a "private community beach" was given.

   An administrative interpretation of an ordinance by the officer whose duty it is to execute it is entitled to consideration and this is particularly so when the meaning of the language is ambiguous; however a court is[***10] not bound by such an interpretation.  McQuillin, Municipal Corporations (3rd ed.) § 20.45, and cases cited therein.  In the instant case as noted, we are persuaded that the definition of a private community beach, as used in § 35-38 of the ordinance when read in light of the language employed in § 35-115 (g), is not ambiguous and the court below was not bound by the interpretation given it by the County Planning Administrator.  Berwyn Heights v. Rogers, 228 Md. 271, 279, 179 A. 2d 712 (1962).

   [**884] Nor does the record reveal any actions on the part of the Anne Arundel Zoning and Planning officials which would enable the appellant to avail itself of the doctrine of equitable estoppel.  Kent County v. Abel, 246 Md. 395, 399-402, 228 A. 2d 247 (1967) and cases cited therein.

   Decree affirmed, with costs.

DISSENTBY: BARNES

DISSENT:  
Barnes, J., dissenting:

   I dissent because, in my opinion, section 35-38(e) of the Anne Arundel County Code as drawn by the legislative body [*86] of that county does not prohibit the use of the subject property as a private community beach by the owners of land in the Chartwell development.  To me a simple analysis of the language [***11]indicates this.  Unquestionably, the use is "private," the property is used as a "beach," and Chartwell is a "community." I conclude, therefore, that the property is used as a private, community beach. If the County Commissioners had intended to restrict the use further -- as, for example, a private beach used by a community "adjoining the beach," or "in which the beach is a part," or "within the community which it serves," -- I dare say that this or other appropriate language to express that intention would have been used. Inasmuch as such language was not used I am led to the conclusion that this limitation was not intended by the legislative body.

   A complete analysis of the whole zoning ordinance and particularly section 35-38 also indicates that this is the proper construction.  The established zone is "agricultural" which has far more extensive uses than are permitted in the detached dwelling districts, with two subdistricts: (1) manor type districts (2) cottage type districts.  In the agricultural district, the following uses are permitted:

   (a) Farms and farming uses.

   (b) One-family or two-family dwellings.

    (c) Commercial riding stables with minimum distance[***12] requirements as proposed under section 35-43 of the Anne Arundel Code.  (Section 35-43 provides, in effect, that when a building or use is required by the zoning law to have a minimum distance, that building or use "shall be distant at least two hundred feet from any lot in any residence district, or any lot occupied by a dwelling, or by a school, church or institution for human care;" but small animals, including poultry not exceeding fifty in number "may be kept in structures located fifty feet or more from the lot line.")

   (d) Trailer coach parks, subject to the approval required by the trailer park ordinance.

   (e) "Public and semipublic buildings and uses of the cultural, administrative or public-service type, including schools, churches, fire halls, hospitals, except as regulated under sections 35-113 to 35-115 of this Code, utility lines on stations, [*87] public parks and playgrounds, golf courses, private community beaches, fish and game association preserves and similar conservation areas, but not including such uses as storage yards, warehouses, garages or similar uses."

   (f) Nursing or convalescent homes.

   (g) Accessory buildings or uses to the above uses such[***13] as:

   (1) Signs showing name of farm, owner or tenant; name of institution or establishment; name of breeds of livestock or other products "raised on the farm" and professions; bulletin boards of churches and other public or semipublic buildings; roadside stands or signs advertising "a product legally produced, or signs indicating a service rendered on the premises"; certain temporary unlighted signs in subdivisions which must be "located therein" and not "within two hundred feet of any dwelling."

   [**885] (2) Farming structures, provided that barns, chicken houses, etc. shall conform to the minimum distance requirements of section 35-43.

   (3) Garages for private or farm vehicles.

   (4) Piers or wharves for private use.

   (5) Home occupations, as defined in section 35-2 of the Code including, among other things:

   (a) Kindergartens.

   (b) Sale of home-grown produce or preserves.

   (c) Sale of professional services.

   (d) Taking of fish, crabs, oysters, shrimp, muskrats, etc., and their sale.

   (e) Operation of a tourist home as defined in section 2 of the Anne Arundel County Code, including serving of meals to boarders.

   (f) Use of premises as offices for contractors[***14] or agents, but not including storage yards in connection therewith.

   (6) Roadside stands; "providing, that they are used solely for the sale of produce grown on the farm or property on which located; * * *."

   (7) Commercial or industrial uses or structures "where such can be shown to be solely for the purpose of handling [*88] the produce of the property on which such a use is located, such as plant nurseries or greenhouses, stock farms or breeding kennels, subject to the requirements of section 35-43 of this Code, sawmills for harvesting lumber from property on which located, abattoirs or slaughterhouses, subject to the requirements of sections 35-113 to 35-115 of this Code." (Sections 35-113 to 35-115 provide for special exceptions for abattoirs or slaughter-houses).  (Emphasis supplied throughout).

   It is thus seen that when the question of location of the use or distances is important, the legislative body carefully provided for these restrictions in the uses permitted in the agricultural district.  The absence of any restriction as to location or distance in regard to the permitted "private community beach" indicates to me that no such restriction[***15] was intended.  The words "private community beach" established in section 35-38 would have the same meaning when later used in the zoning ordinance as a permitted use in detached dwelling districts.

   We have frequently held, that the legislative intent is to be determined, in the first instance, by the words used by the legislative body and if these words, given their ordinary meaning, indicate the legislative intent, our quest for determining that intent is over.  Pineland Lumber Co. v. Miles, 228 Md. 584, 180 A. 2d 870 (1962) and cases cited in the opinion in that case.  Our judicial duty is to give effect to the legislative intent as thus disclosed, even if we might think that the intent was a most unfortunate one, and one which we would never have had, if we had been legislators.  See Smith v. Higinbothom, 187 Md. 115, 48 A. 2d 754 (1946). The plain fact is that we are not legislators and are forbidden by Article 8 of the Declaration of Rights of the Maryland Constitution from acting as such.  As I see it, the majority of the Court has in effect amended section 35-38(e) of the zoning ordinance to add by construction the words necessary to reflect an intent not disclosed[***16] by the ordinary and usual meaning of the words themselves.  This is not a judicial function.  As Chief Judge Prescott aptly stated, for the Court, in Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 534-35, 212 A. 2d 311, 315 (1965):

   [*89] "However, construing a statute liberally and adding to it, by judicial fiat, a provision which the Legislature did not see fit to include are not one and the same thing.  As stated by Justice Brandeis, for the Court, in Iselin v. United States, 270 U.S. 245, 251: 'What the Government asks is not a construction of a statute, but, in effect, [**886] an enlargement of it by the court, so that what was omitted, presumably by inadvertance (in that case), may be included within its scope.  To supply omissions transcends the judicial function.'"

   The majority indicates that it finds support for its construction of the words "private community beaches" used in section 35-38(e) in the provision in section 35-115(g) setting up minimum standards in regard to applications for special exceptions for public amusement parks or beaches or swimming pools which at the end of subsection (g) provides: "The above shall not apply[***17] to community beaches or swimming pools in and for bona fide residential subdivisions." I come to the opposite conclusion, as it appears to me that this provision supports the construction I think is the correct one.

   In the first place, I do not, as the majority appears to do, equate "community" with "subdivision." This seems to be the principal basis of the holding in the majority opinion, which overlooks the use of "private community beaches" in section 35-38(e) and "subdivision" in 35-38(g)(1) where it is stated that certain signs must be "located therein." Clearly, if the meaning were the same the language would be the same.

   Secondly, it is clear that a community beach located in the usual subdivision involving a parcel of land within one specific area would usually be "in and for" that type of subdivision.  (Emphasis supplied).  The case before us involves a private community beach which is not in the Chartwell subdivision if the word "subdivision" is limited to mean a tract with contiguous or adjacent lots.  It is clear that private community beaches in an agricultural district are not the subject of any special exception but such use is directly permitted [***18]by the zoning ordinance. See section 35-39(a) of this zoning ordinance.

   Thirdly, if the legislative body had intended to limit the language [*90] "private community beach" in section 35-38(e) to such beaches "in and for bona fide residential subdivisions" it would undoubtedly have used that language in section 35-38(e) as it did in section 35-115(g).  The absence of that language indicates to me that no such limitation was intended.  See Graham v. Joyce, 151 Md. 298, 308, 134 A. 332 (1926).

   Fourthly, if one assumes, arguendo, that the meaning of the words "community" and "subdivision" must be equated, it seems quite clear to me when one considers the provisions of section 32-23 of the Anne Arundel County Code in regard to subdivisions, that recreational areas of subdivisions are not required to be contiguous or adjacent to the lots forming the main portion of the subdivision.

   Section 32-23 in regard to reservations of recreational space provides, in relevant part, as follows:

   "Where held appropriate by the planning and zoning commission, open spaces suitably located and of adequate size for parks, playgrounds or other recreational purposes for [***19]  local or neighborhood use shall be provided for in the design of the proposed subdivision; and, if not dedicated to the public * * * shall be reserved for the common use of all property owners in the proposed subdivision by covenant in the deeds.  This shall normally be considered to be about five per cent of the gross area of the subdivision. Streams, lakes and other watercourse areas may be considered as part of the five per cent." (Emphasis supplied).

   Nor does the definition in section 35-2 of the Anne Arundel County Code of the word "subdivision" indicate that all land in a subdivision must be contiguous or adjacent to other land in the subdivision.  The word "subdivision" by this section is defined: "See 'development' defined in this section." The word "development" is defined as follows:

    "The division of any tract or parcel of land, including frontage along an existing street or highway, into two or more lots, plots or other divisions of land for the purpose, whether immediate or future, of building [*91] development for rental or sale, [**887] and including all changes in street or lot lines; provided, however, that this definition of a development shall [***20]not include the divisions of land for agricultural purposes."
 
There is an almost identical definition of "subdivision" in section 32-1, used in the ordinance of July 14, 1953 in regard to subdivisions.

   It will be observed that there is no requirement that the lots in a development or subdivision be contiguous or adjacent to other lots.

   The record in the present case establishes that the Planning and Zoning Commission did consider the subject property as "suitably located" and of "adequate size for recreational purposes for local or neighborhood use"; did use the area of the subject property as part of the five per cent "normal gross area of the subdivision" and approved the subdivision plan of Chartwell on this basis .  The action of the Commission is in exact compliance with the terms of section 32-23 and in no way is violative of its provisions or intention.  Surely, it cannot be said that Chartwell is not in the "neighborhood" of the subject property and indeed, it can well be said that the subject property is "in" the Chartwell subdivision as defined in the Anne Arundel County Code and as recognized by the Commission.

   If it be assumed, arguendo[***21] , that the caveat at the end of section 35-115(g)(3) could possibly indicate a restricted construction of the unlimited words "private community beach" in section 35-38 when the original zoning ordinance was passed on July 1, 1952, it would seem clear that the provisions of section 32-23 which were originally added by the ordinance of July 14, 1953, would make such assumed original construction ineffective as the broader definition of "subdivisions" would be clearly applicable after the passage of the ordinance of July 14, 1953.  See Boyer v. Thurston, 247 Md. 279, 292-93, 231 A. 2d 50, 57 (1967).

   The majority states that the language at the end of section 35-115(g) suggests that the legislative body by use of this language "intended private community beaches and swimming pools to be located within or adjacent to the subdivisions which they [*92] serve." The word "private," however, is not used when referring to "community beaches or swimming pools" and this omission is most significant.  Section 35-115(g)(1)(2) and (3) provide for a special exception for "public amusement parks or beaches or swimming pools," and not for private community beaches. Section[***22] 35-115(g)(1) provides that the public beach may be authorized in any commercial district; (2) requires that the plans for the public parks, beaches or swimming pools "indicate adequate facilities, parking areas and design," and (3) contains a requirement that "in the judgment of the board of appeals, there will be no injury to the public welfare or health by reason of hazard of traffic, proximity to populated areas or other circumstances." The provision already mentioned, i.e., "The above shall not apply to community beaches or swimming pools in and for bona-fide residential subdivisions," then follows.  This language was most likely inserted to indicate that the parking provisions, the finding of no injury by the board of appeals, and the requirement of a special exception did not apply to public community beaches or swimming pools when they were located in and for bona-fide residential subdivisions, as such subdivisions would already have been, or would be required to be, considered and approved by the planning and zoning authorities of the county and adequate provision for parking and other requirements had been, or would be, taken care of in this authoritative way.  It was, [***23] therefore, not necessary or desirable to require a developer of a bona fide residential subdivision in which there was a public amusement park, beach or swimming pool to be required to apply for a special exception when the factors to be considered had been, or would be, determined by the county planning and zoning authorities.  In short, the [**888] language in the last sentence at the end of section 35-115(g)(3) was intended to limit the application of the language in sub-paragraphs (1) (2) and (3) of that subsection, and was not intended to limit the scope of the language in section 35-38(e) in regard to private community beaches.

   Nor is the alleged policy of "community control" by property owners adjacent to the beach as opposed to such control by those somewhat removed from the beach, but within the general neighborhood, an important consideration in view of the other [*93] uses permitted in an agricultural district.  "Churches," which are permitted in such a district need not be controlled by persons owning land contiguous or adjacent to the land on which the church is located and, most certainly, the use of a church is not restricted to contiguous or adjacent property[***24] owners.  In fact, a church is generally open to all who wish to attend regardless of the location of their property and from any area whatever.  Indeed, if a church were erected on the subject property, all persons living in Columbia in Howard County could lawfully attend if they could physically find room in the church. The same observations may be made in regard to hospitals not of the type mentioned in section 35-114(r) and golf courses. Yet, churches, golf courses and such hospitals are permitted as of right by section 35-38(e).  None of these clearly permitted uses requires or contemplates control by adjacent or contiguous property owners and such control would be most unusual.  As these permitted uses are mentioned in the same subsection which permits private community beaches, it seems reasonable to conclude that control by adjacent, contiguous, or surrounding property owners is not required for private community beaches. Indeed such a requirement for private community beaches with the permitted uses of churches, golf courses and hospitals without such a requirement might well be unreasonable, arbitrary and capricious and, therefore, unconstitutional and void as a denial[***25] of due process of law.  City of Baltimore v. Cohn, 204 Md. 523, 529, 105 A. 2d 482 (1954); Anne Arundel County v. Ward, 186 Md. 330, 341, 46 A. 2d 684, 165 A.L.R. 816 (1946). See also Rathkopf, The Law of Zoning and Planning (3rd ed.) 7-8, 7-9.  The language should be so construed that this unreasonable and possible unconstitutional result would not be present.  Higgins v. City of Baltimore, 206 Md. 89, 98, 110 A. 2d 503 (1955).

   Gilbert v. Town of Hamden, 135 Conn. 630, 68 A. 2d 157 (1949) is clearly distinguishable from the situation in the case at bar.  In Gilbert the zoning ordinance of the Town of Hamden, Connecticut in a single-family residence zoning permitted a "community house or club, except where the principal activity is one customarily carried on as a business." The Gilbert Company, a corporation having a factory and place of business [*94] in New Haven, leased a tract of 150 acres called Paradise Park, in the single-family residence zone and made the improvements on the land suitable for use as a country club, with the regular membership in the club limited to the employees of the Gilbert Company.  To augment the income of the club, its facilities[***26] were licensed to organizations and persons not members.  The property was used for various recreational facilities.  Soft drinks, cigarettes, and sandwiches could be purchased.  The Supreme Court of Errors of Connecticut held that this use of the premises was not that of a community club within the provisions of the zoning ordinance. It seems clear that membership in a club limited to factory employees would hardly make the club a "community" club on any definition of "community."

   I am not impressed by the observation that unless the language is construed as has been done by the majority, a large community removed by many miles from the beach property could use the property as a private community beach. In the first place, this is not the situation in the present case (and it would not be the case if "community" was equated with the broader view of "subdivision" since the [**889] beach would have to be "suitably located.") The word "community" has as one of its definitions in Webster's New Collegiate Dictionary, 1961 Edition (the Anne Arundel County Code establishes as a source of definitions not specifically provided in the Code the 1949 Edition which is not readily available): [***27] "Society at large; the people in general; restrictively, the people of a particular region or the region itself." (Emphasis supplied).  This definition could possibly limit to a degree the scope of the user to persons reasonably near the subject property as part of the general neighborhood. If this were the proper construction, the administrative officials could -- as they have in this case -- determine that the residents of Chartwell are within the scope of the word "community" as so defined.  The alleged difficulty suggested would thus disappear.

   Secondly, Webster's also gives as one of the definitions of "community" the following: "A body of people having common organization or interests or living in the same place under the same laws; * * *." If such a community is established without regard to its location so far as the subject property is concerned, [*95] so that a large community removed many miles from the beach property could indeed use the subject property as a private community beach, I find it difficult to perceive what is wrong with that lawful use of private property.  Surely if there were no zoning restrictions, a private property owner could use his beach[***28] for this purpose, limited only by the right of adjacent property owners to be free from the use of the property as a nuisance. If large numbers of raucous, unruly and ill-behaved persons did use the property, doubtless a court of equity could determine whether the conduct complained of amounted to a nuisance and, if so, enjoin such conduct.

   It must be constantly kept in mind that the normal legal situation permits the free use of private fee simple property, rather than the restriction of that free use. There may only be governmental restriction of this free use if there is a reasonable connection between the restriction and the protection of the public health, safety, security, morals and general welfare.  The restriction on the free use of private property is in derogation of the common law right to use private property so as to realize its highest utility, and such restrictions are not to be extended by implication to cases not clearly within the scope of the purpose and intent manifested by the language of the ordinance. Our predecessors have so held.  Landay v. Zoning Appeals Board, 173 Md. 460, 466, 196 A. 293, 114 A.L.R. 984 (1938). To me, the language is clear, [***29] but, when a strict construction is required, it is entirely and abundantly clear that the language does not prohibit the Chartwell community's use of the subject property.

   But even if it be assumed arguendo, that the words were ambiguous it seems clear to me that the construction of the words by the zoning administrative authorities of Anne Arundel County, a construction long continued and without exception, that the use by the Chartwell community is not prohibited, should lead us to follow that construction.  This is a well established course of conduct when language is considered to be ambiguous. Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 615, 95 A. 2d 306, 311 (1953). See Shapiro v. City of Baltimore, 230 Md. 199, 216, 186 A. 2d 605, 614 (1962).

   My views in other situations involving the construction of statutes have been previously expressed.  See my dissenting [*96] opinions in Baltimore County Board of Trustees of the Employees' Retirement System v. Comes, 247 Md. 182, 191 et seq., 230 A. 2d 458, 463 (1967) and Comptroller v. American Cyanamid Co., 240 Md. 491, 508 et seq., 214 A. 2d 596, 606 (1965). I am still convinced that these [***30] views are sound and should be applied in the present case.

   I would reverse the order of the Circuit Court. 

GLOBE HOME IMPROVEMENT COMPANY, INC. v. HOOD, et ux. 
No. 592, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 719; 234 A.2d 579; 1967 Md. LEXIS 421

 November  7, 1967, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed November 22, 1967; Denied December 5, 1967.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, C. J.

DISPOSITION: Judgment affirmed, costs to be paid by appellant.

CORE TERMS:  reargument, counterclaim, license, home improvement, depositions, licensed, oral argument, contractor, planned, abuse of discretion, prior to trial, prejudicial error, faulty work, inaccurate, surprise, manifest, cross-examination, photographer, declaration, workmanlike, consisting, pictures, desired, proven

COUNSEL: Melvyn J. Weinstock, with whom was Warren J. Weinberger on the brief, for appellant.

   No brief and no appearance for appellees.

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

OPINIONBY: MARBURY

OPINION: [*720] [**580] Globe Home Improvement Company, Inc., appellant-plaintiff, brought suit in the Circuit Court for Anne Arundel County [***3]to recover $2590 allegedly due it for goods and services that it had rendered to Dorice Hood and Norma Hood, his wife, appellees-defendants, pursuant to a written contract between the parties entered into on or about July 24, 1965.  The appellees responded by filing general issue pleas to the plaintiff's declaration on November 23, 1965.  After certain preliminary motions, the appellees filed, on April 29, 1966, a counterclaim in the amount of $4,000, alleging that the work was not done as provided, that it was not done in a good and workmanlike manner, that Globe had negligently damaged the building and shrubs on the premises, that it had left hazardous conditions in the form of exposed electric wiring and that numerous subcontractors were employed, while the Hoods had requested that none be [*721] used.  On June 22, 1966, the date of the trial, the appellant made a motion ne recipiatur as to the counterclaim on the grounds that it was filed long after the time for filing a declaration and counterclaim had passed pursuant to Maryland Rule 314 and that it was filed after preliminary law motions, depositions, and discovery had been taken.  The court granted this motion.  At the[***4] same time the appellant moved to amend its original declaration by increasing its claim to $3090.  This motion was also granted.  Following testimony and argument of counsel, Judge Macgill, sitting without a jury, awarded judgment nisi for the plaintiff in the amount of $1507.  This judgment was made final on June 28, 1966.  On July 19, 1966 the plaintiff moved that the case be reargued, but this motion was denied after a hearing.  From the judgment entered and the denial of the motion for reargument, this appeal was taken.

   The appellant urges us to reverse the judgment, claiming that the trial judge erred in permitting appellees' expert witnesses to testify and that that court erred in its failure to grant appellant's motion for reargument. We treat the motion as one made under Rule 625 for modification or revision of the judgment.

   We find no merit in either contention.  During the preliminary proceedings in the case, in the course of taking depositions on March 2, 1966, appellant's counsel asked Mr. Hoffman, counsel for the appellees, whether appellees anticipated that experts would be called to testify and was informed that they had talked to contractors who had looked at the[***5] work, that they planned on calling them, and that they also intended to call certain experts to testify as to the value of the work done.  At that time the appellees [**581]did not know whom they planned to call but promised to tell appellant's counsel at a later date.  At the trial, counsel for the appellees admitted that he had erred in not notifying appellant of the names of the witnesses that they planned to call.  The witnesses in question were Frederick A. Wilkes, who had been a general contractor for twenty years and a carpenter for twenty-five years; and Eskil M. Ohlson, a photographer, who took pictures of the work involved.  These witnesses were allowed to testify over objection by the appellant's counsel.  Wilkes' testimony was to the effect that the quality of [*722] the work was inferior and not done in a good and workmanlike manner.  The photographer merely identified the pictures and the time when they were taken.

   The appellant claims that allowing these witnesses to testify took it by surprise and that it was thereby prejudiced.  This claim, however, is not borne out by the facts.  It was manifest, both from the answers given at the depositions and from the[***6] contents of the counterclaim, that appellees intended to prove as a defense to this action certain breaches of contract consisting of faulty work which could only be proven by testimony of experts. Moreover, if appellant's counsel desired time to check into the background of the witness in order to be able to ask him pertinent questions on cross-examination or to impeach him or to call other experts to rebut his testimony he could have, but did not request that the case be continued to permit this opportunity.

   Counsel for the appellant in his brief, and oral argument before us, contended strenuously that Judge Macgill committed reversible error when he over-ruled its motion for reargument. The motion for reargument filed on July 19, 1966, which was similar in effect to a motion for a new trial, set forth that it was in possession of certain information which it believed would support its contention that Mr. Wilkes, the appellees' expert, perjured himself when he stated under oath that he was a licensed home improvement contractor. In support of that ground for his motion he presented for consideration by Judge Macgill a letter to appellant's counsel from John C. Coolahan, Executive[***7] Director, Maryland Home Improvement Commission, dated June 30, 1966, in reply to appellant's counsel's letter of June 27, 1966, informing Mr. Weinstock that the "Commission's records indicate that no license has been issued to Frederick A. Wilkes, 201 Madison Avenue, Glen Burnie, Md., during the 1966 licensing year." Upon receipt of that letter, appellant's counsel apparently assumed and argued before the judge that this indicated that Wilkes falsely testified to having been issued a license by the Commission and that he should have been permitted to produce this newly discovered evidence.

   Any question of Judge Macgill's abuse of discretion in denying the motion for reargument, we think, was dispelled by the sequence of events which occurred between the time of his ruling [*723] and oral argument before us.  Counsel for the appellees, in order to correct the statement in appellant's brief that Wilkes had never been licensed as a home improvement contractor, sent a letter to appellant's counsel enclosing a photostatic copy of the home improvement license issued to Wilkes by the Home Improvement Commission for the year 1963-64.  At the oral argument before us appellant's counsel[***8] candidly amended his brief by eliminating the assertion that Wilkes had never been issued a license. While it was true that Wilkes' answer on cross examination that he was licensed by the Commission as of the time he testified was in fact erroneous, whether deliberate or by inadvertence, this in no way disqualified him as an expert when Judge Macgill had ruled that he was qualified to give expert testimony on the subject.  Although his statement was inaccurate it did not necessarily reflect on his veracity, since he had had a license for a previous year and may have thought that he was currently licensed, as he testified that he performed very little home improvement [**582] work. Also, the trial judge had the opportunity to hear and observe the demeanor of the witness and to determine his credibility.  It is reasonable to assume that Judge Macgill, after examining the letter presented at the hearing on the motion for reargument, could conclude that the witness had told the truth to the best of his knowledge and belief since there was other evidence produced at the trial to support Wilkes' testimony.

   We conclude from the record before us that there was no showing of prejudicial[***9] error in allowing the expert witnesses to testify nor any abuse of discretion in the denial of the motion for reargument.

   Judgment affirmed, costs to be paid by appellant. 

GOLAS v. GOLAS 
No. 555, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 621; 233 A.2d 804; 1967 Md. LEXIS 406

 October  12, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree reversed in part and affirmed in part and case remanded for the passage of a decree to conform with this opinion.  Appellant to pay the costs.

CORE TERMS:  divorce, daughter, night, cruelty, alimony, beating, bruises, doctor, supplemental, entireties, tenants, decree, custody, beat, Maryland Rule S75, permanent alimony, corroboration, physically, endangers, vinculo, marital, mensa, ordering, bruised, asking

COUNSEL: Noah A. Hillman, with whom was Michael Demyan on the brief, for appellant.

   Alexander Stark, with whom was Victor H. Savadow on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Oppenheimer, McWilliams and Finan, JJ., and Clapp, J., Associate Judge of the Sixth Judicial Circuit, specially assigned. McWilliams, J., delivered the opinion of the Court.

OPINIONBY: McWILLIAMS

OPINION: [*622] [**805] This skirmish in the war between men and women is the upshot of a wife's friendship for another woman.  The parties were married in 1951. [***3] Their only child is a girl, now 13.  Until their separation they lived in publicly owned quarters at Friendship International Airport where the appellant (Golas) is the fire chief.  From time to time during 1963 and 1964 Golas upbraided his wife (the appellee) for being so much in the company of the friend (Mrs. Littleford).  These occasions usually ended in a quarrel garnished, at times, with violence.  She testified she often had cuts and bruises as a result of his beatings. As he tells it, the cuts and bruises were sustained in his defense against her assaults upon him and he insists she bruises easily.  She would get so mad, he testified, she would put her fist through a window.  They quarreled for the last time on 9 July 1964 when Golas ordered her to remove Mrs. Littleford's car from their driveway.  She did so but she took the child with her and that night moved in with the Littlefords.  A few months later the wife's mother (Mrs. Barrett) rented a house near the Littlefords in which she installed her daughter and the child.  Mrs. [*623] Barrett had a full-time job which made it difficult for her to care for her invalid husband so she moved him in with the appellee, an[***4] arrangement which seems to have suited everyone except Golas.

   A few weeks after his wife's departure he filed a bill for a divorce a mensa. Within a month she countered with a cross-bill alleging "acts of cruelty and vicious conduct" and asking for alimony, support, counsel fees, custody of the child, and an order restraining him from making use of funds deposited in a building and loan association.  In the succeeding months Mrs. Barrett tried to effect a reconciliation but she said she "just couldn't get those two loggerheads together." Golas extended the olive branch several times but she refused to return on "his terms." He said the only answer he ever got from her was that she didn't "know what to tell Judy [Mrs. Littleford]" or that she wanted time to think it over.  One night in December 1964 he took the daughter out to dinner.  When he brought her home his wife invited him to come into the house.  About 5 minutes later Mrs. Littleford came in.  They had words.  Mrs. Littleford broke his nose and chased him out of the house with a broom.  He obtained a warrant for her arrest.  Later that night the wife telephoned him and offered to "come back home" if he would drop the charges[***5] against Mrs. Littleford.  He did so but she did not come home.  She wanted "more time to think it over," he said.

   In January 1966 Golas filed a supplemental bill asking for a divorce a vinculo alleging desertion.  Judge Sachse, before whom the case was tried on 20 April 1966, dismissed the supplemental bill and ordered Golas to pay permanent alimony, support and a counsel fee.  He awarded the custody of the child to the wife and he ordered Golas to pay to his wife "one-half of the net proceeds received * * * from the sale of real estate owned by them as tenants by the entireties." Golas has appealed.

   I.

   We think it is unnecessary to consider whether Golas has made out a case against his wife.  We have been unable to discover in the rather voluminous record the corroboration required by Maryland Rule S75. The dismissal of his supplemental bill was correct.

   [*624] [**806] II.

   The next assignment of error springs from the well settled rule that permanent alimony may not be awarded unless the complainant shows grounds sufficient to support a decree of divorce, either a vinculo or a mensa. Levy v. Levy, 229 Md. 103, 181 A. 2d 663 (1962); Russell v. Russell, 224 Md. [***6] 329, 167 A. 2d 770 (1961). The wife referred generally to the mental and physical "torment" Golas had inflicted upon her.  She said she had gotten "many beatings from him." She told of specific beatings during 1964.  On one occasion, she said, she was so upset from a beating that she had to see her doctor the next morning.  She "had a spell" in his office and he had to give her adrenalin. She has a "heart condition" for which the doctor prescribes Quinidene.  On another occasion after "he beat * * * [her] up quite a bit" she left home and went to her friend's house.  Mrs. Littleford wiped the blood off of her face and applied plastic bandages to her cuts.  She said he struck her before she left on 9 July.  She indicated she would not return to the marital domicile unless "he changed" because she "certainly couldn't go on with his fighting and arguing over every little thing."

   The corroboration required by Rule S75 was provided, we think, by the testimony of Mrs. Littleford and the parties' daughter. Mrs. Littleford said Golas came to her house one night, got her out of bed and told her "he just beat the devil out of" his wife and "ordered * * * [Mrs. Littleford] to tell * * [***7]* [his wife] to keep off of" the Littleford property.  The next day she saw the appellee and "she was bruised" and her face was cut.  She spoke also of the time the appellee came to her home bruised and bleeding.  "She needed a doctor's attention" but she [Mrs. Littleford] could not persuade her to do anything about it.  The daughter testified that she often heard her parents "hollering" at each other and that "usually it was at night." She remembered that "sometimes Mom had bruises on her arm."

   Judge Sachse had the advantage of seeing and hearing the witnesses and, obviously, he chose to believe the testimony of the appellee, her daughter and Mrs. Littleford.  We have said many times that any conduct on the part of the husband that endangers, or creates a reasonable apprehension that it will end [*625]in endangering, his wife's health to a degree rendering it physically or mentally impossible for her properly to discharge the marital duties constitutes the cruelty that is cause for divorce. Schwartzman v. Schwartzman, 204 Md. 125, 102 A. 2d 810 (1954); Scheinin v. Scheinin, 200 Md. 282, 89 A. 2d 609 (1952); see also cases cited in M.L.E., Divorce, § 14.  While[***8] a different conclusion might well have been reached on this record we are unwilling to say that Judge Sachse was clearly wrong in his decision.  Scheinin v. Scheinin, supra.

   Neither in his brief nor in his argument before us did Golas complain of those parts of the Chancellor's decree (a) granting the care and custody of the little girl to the appellee, (b) ordering the payment of $17.50 per week for her support, and (c) ordering the payment of $300 to appellee's attorney.  In any event, in these circumstances, we see no reason for disturbing the Chancellor's orders in regard to custody, support and counsel fee.

   III.

   We must agree with Golas that Judge Sachse was without authority to order the division of the proceeds of sale of the realty owned by the parties as tenants by the entireties. Code, Art. 16, § 29; Bauman v. Bauman, 239 Md. 379, 211 A. 2d 759 (1965); Smith v. Smith, 227 Md. 355, 176 A. 2d 862 (1962).

   Decree reversed in part and affirmed in part and case remanded for the passage of a decree to conform with this opinion.

   Appellant to pay the costs. 

GREER v. KING 
No. 559, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 577; 233 A.2d 775; 1967 Md. LEXIS 399

 October  11, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed; costs to be paid by appellant.

CORE TERMS:  shoulder, concrete, lane, gravel, approaching, intersection, matter of law, highway, driving, paved, edge, contributorily negligent, pedestrian, night, dark, feet, surface, roadway, foot, decedent, contributory negligence, place of safety, coming down, plaintiff-pedestrian, eastbound, distance, clothing, traffic, dressed, struck

COUNSEL: George D. Solter for appellant.

   Nat W. Hopper, with whom were Wray & Serio on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Oppenheimer, Finan, JJ., and Clapp, J., Associate Judge of the Sixth Judicial Circuit, specially assigned.  Oppenheimer, J., delivered the majority opinion of the Court.  Horney, J., dissents.

OPINIONBY: OPPENHEIMER

OPINION: [*578] [**776] A hitchhiker standing at night on a paved roadway in open country, near the edge of the road, was hit by a motorist.  The jury gave a verdict for the injured pedestrian but the trial court granted the driver's motion for judgment n.o.v.  This appeal is from that judgment.

   The accident ocurred in September, 1964, shortly after 1:00 A.M., on State Route 175, between 135 and 150 feet east of the center of its intersection with State Route 170, near Odenton, in Anne Arundel County.  The two State Routes intersect at right angles; there is a traffic light overhead which was in operation at the time of the accident.  State Route 175 runs[***3] approximately east and west, and State Route 170 runs approximately north and south.  Both roads are made of concrete with blacktop patches and with a concrete paved shoulder on each side and a sand or gravel shoulder beyond the concrete. Route 175 is straight in this locality and its grade is practically level.  [*579] There is a center line painted on the road surface dividing the eastbound and westbound lanes of traffic. At the point where the accident occurred, the width of the road surface from the center line to where it meets the concrete shoulder is approximately nine feet; the width of the concrete shoulder before the sand or gravel shoulder is reached is approximately three feet. The paved eastbound lane, therefore, is approximately twelve feet in width.

   It was stipulated between the parties that the accident occurred outside the limits of a town or city in what is called country; it did not occur within the confines of the intersection of Routes 175 and 170 and there were no sidewalks on either side of the road.  At the time of the accident, the weather was clear and the surface of the road was dry.  The light illumination was poor.  The speed limit at the scene[***4] of the accident was 30 miles an hour.

   The appellant, Greer, testified that he had been in the Glen Burnie and Odenton areas during the preceding hours in search of friends living in the neighborhood.  At the time of the accident, he was hitchhiking to Route 301. Immediately prior to the accident, he had been inside a hamburger stand on the south side of Route 175 at some distance west of the intersection. He crossed to the north side of the road and walked east through the intersection to a distance of about 135 feet east of it.  When he arrived at this point, he glanced over his shoulder and saw the appellee's car approaching at a distance which he estimated to have been about 200 feet west of the intersection. He immediately crossed to the south side of the road and took up a position on the paved shoulder of the eastbound lane, generally facing north, but looking to his left in the direction from which the appellee's automobile was approaching. At this point, the appellee's car was crossing the intersection. The appellant then extended his right arm and thumb in the typical hitchhiker position as the appellee's car approached him.  While so standing, expecting the driver of [***5]the car either to stop and pick him up, or to continue his course, he was struck on the left side and severely injured.

   The appellant came in contact with the right front fender and headlight of the appellee's car and was thrown in the air and [*580] to the right side of the road.  He had no recollection of the car striking him.  The appellant was dressed in a medium blue shirt with dark trousers, was carrying a brown paper bag and had no hat.  He had no flashlight or other signaling device.  There were trees and bushes beyond the gravel shoulder behind the appellant.

   The appellant testified that he was standing on the three foot concrete section of the roadway just at the edge of the road.  He said that the only reason he did not step back to the gravel and dirt shoulder when he saw the appellee's car coming down the road was that the gravel shoulder was muddy and he did not want to get the clay on his shoes because, if he did get a ride, he would drag the clay in somebody's car.  He [**777] testified further that if he had known the appellee was going to have run over him, he would have stepped off the concrete and that he had ample time to do so while the appellee was [***6]coming through the intersection but that "there was still plenty of driving space."

   In the absence of special circumstances or statutes, pedestrians using public highways which are located outside of towns and cities have a duty to watch for and expect to find approaching vehicular traffic thereon and operators of motor vehicles have a corresponding duty to watch for and expect to find pedestrians walking or standing on the sides of highways. Lewis v. Hammond, 247 Md. 297, 231 A. 2d 32 (1967); Flohr v. Coleman, 245 Md. 254, 262, 225 A. 2d 868 (1967), and cases therein cited.

   The facts in this case are, for the most part, undisputed.  Taking the testimony in the light most favorable to the appellant and giving him the benefit of all inferences fairly deducible therefrom, we are constrained to hold, as a matter of law, that he was negligent and that his negligence directly contributed to the accident.

   Greer's own testimony is that he took and maintained a position on the concrete shoulder of the road, in the lane down which the appellee was driving, although he had seen appellee King's car approaching from the time King went through the intersection at least 135 feet away. [***7] It was nighttime, and although the weather was clear, the illumination was poor.  Greer was wearing dark clothing and was standing against a background [*581] of trees and bushes.  The lane down which King was driving, including the concrete shoulder, was only 12 feet wide.  Greer assumed that King would either stop, as Greer hoped, to pick him up, or "go on by." Greer could easily have stepped back to the gravel shoulder immediately behind him and so avoided the accident, but he remained on the concrete and deliberately took the chance that King would see him in time to avoid hitting him.  On the undisputed facts, we find that Greer's conduct fell short of the standard to which a reasonable man should conform in order to protect himself from harm.

   In Vokroy, Adm'r v. Johnson, 233 Md. 269, 196 A. 2d 451 (1964), the plaintiff's decedent was struck by the defendant's vehicle while the decedent was standing by a disabled car on a highway, at night, in open country, in the lane down which the defendant was driving with his lights shining.  The lower court granted the defendant's motion for a directed verdict.  This Court affirmed the judgment, on the ground that the decedent[***8] was contributorily negligent as a matter of law. Judge Marbury, for the Court, said at 233 Md. 273:
 
"Vokroy knew, or should have realized, he was at best in a dangerous position standing at his car, as he was, on the highway. His knowledge of the presence of an approaching car, with the lights shining, was as great or greater than Johnson's knowledge of the location and details concerning the stalled car and the attendant people cloaked in the darkness."

   In Domeski v. Atlantic Refining Co., 202 Md. 562, 97 A. 2d 313 (1953), the Court affirmed a directed verdict against the plaintiff-pedestrian on the ground that the pedestrian was contributorily negligent in not avoiding an oncoming car which he saw or should have seen when he ventured into a place of danger and when he could easily have remained in a place of safety. In Martin v. Sweeney, 207 Md. 543, 548, 114 A. 2d 825 (1955), a directed judgment for the defendant was affirmed because the plaintiff was held contributorily negligent in not leaving a disabled vehicle in which she was a passenger and which was parked the wrong way in the fast lane of traffic, when she had ample opportunity to do so. Domeski[***9] was a crossing case and the facts [*582] in Martin differed from those here presented, but the standard of due care to be observed by a plaintiff in remaining in or [**778] seeking an easily accessible place of safety in the face of obvious danger is applicable to the situation here presented.  See 4 Blashfield, Automobile Laws and Practices § 143.6 (1965).

   In Domeski, Judge Delaplaine said for the Court, at 202 Md. 567:
 
"It is well established that where a pedestrian suddenly steps into the path of an approaching car, and he either does not look to see if any car is approaching or makes no effort to avoid it by stopping or stepping aside, although he could easily have seen it in time to have kept or taken a position of safety and thus avoided the accident, he is guilty of contributory negligence as a matter of law, precluding recovery for resulting injuries."
 
In Martin, the rule was set forth for the Court by Judge Hammond (later Chief Judge), in 207 Md. at 548, as follows:
 
"Conversely, where one who remains in a place of danger with time and the physical ability to leave, and is harmed, the courts have often held such failure to[***10] act to be contributory negligence as a matter of law."
 
See also Restatement (Second), Torts, § 466.

   In the present case, it is not a question of whether Greer, in the exercise of care, should have seen King's car approaching. Greer saw the vehicle coming down the lane in which he was standing but nevertheless took and maintained his position on the concrete portion of the roadway, although, by his own testimony, he only had to step back one or two feet to the gravel shoulder to be in a position of safety.

   On the undisputed facts, Greer, in the exercise of due care, should have realized the danger of his position in standing in the lane of traffic, at night, dressed in dark clothing, against a dark background of trees and bushes. See Saindon v. Lucero, 187 F. 2d 345, 347 (10th Cir. 1951). Even though Greer was standing near the edge of the concrete, and even though he felt there was ample driving room or clearance for King's car, Greer [*583] unreasonably exposed himself to danger in not anticipating that King, driving down a 12 foot lane, might come close to the edge and not see Greer in time to avoid striking him.

   Of the cases cited by the appellant's counsel[***11] in his able brief and oral argument in support of his contention that the issue of contributory negligence as well as that of primary negligence were properly submitted to the jury, the nearest in point is Fotterall v. Hilleary, 178 Md. 335, 13 A. 2d 358 (1940). In that case, as in this, the plaintiff-pedestrian was on the edge of a paved highway when he was struck by the defendant's automobile which was driving down the lane in which the plaintiff was standing.  The lower court refused to direct a verdict for the defendant, and this Court affirmed the judgment for the plaintiff.  However, in Fotterall, there was banked snow a foot or less from the paved surface of the road and the accident occurred in the afternoon.  Under these circumstances, the Court held that it was not negligence as a matter of law for the plaintiff not to leave the paved highway and go into the snow.  In the present case, the accident took place at night and the gravel shoulder next to the concrete was unencumbered.  On the facts, Vokroy is more apposite than Fotterall.

   In view of our conclusion that the appellant was contributorily negligent as a matter of law, we need not determine whether[***12] the issue of primary negligence of the appellee was properly submitted to the jury.

   Judgment affirmed; costs to be paid by appellant. 

DeMAY, INFANT, et al. v. CARPER 
No. 522, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 535; 233 A.2d 765; 1967 Md. LEXIS 392

 October  10, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  doctor, opening statement, crucified, closing argument, reproof, win, young man, prejudicial, crucifixion, aggravation, mistrial, unfair, personal injury case, arguments of counsel, exceptional case, held responsible, abundantly clear, opening argument, previous injury, customarily, probability, crucify, cured, cure, deliberately, desperation, appointment, progressed, interrupt, depending

COUNSEL: Amos I. Meyers for appellants.

   William A. Franch, with whom were Wray & Serio on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer and Finan, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.  Hammond, C. J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*536] [**766] The plaintiffs below, now appellants, having been given by the jury what they consider to be inadequate verdicts in a personal injury case, seek reversals on the ground that counsel for the defendant made prejudicial remarks in his opening statement.

   Suit was brought by Joseph DeMay, who was then eighteen, for "serious, painful and permanent injuries" to his limbs and body and "his nerves and nervous system," and by his father (for loss of services and reimbursement of medical expenses) against the driver of a car that ran into the rear of the parked car in which Joseph was sitting.

   Counsel for the defendant, from his investigation[***3] of the case, had become aware of what he considered significant facts and circumstances (as to which there later was testimony).  Joseph DeMay's claim was that his back had been seriously injured by the accident.  After the accident he had not gone to a hospital, had not complained of personal injury to the defendant on the day of the accident but, rather, of damage to his car.  Both Joseph and his father said to the defendant they were glad no one was hurt in the accident.  Joseph did not seek medical treatment for seven days and then did not go to the family doctor. When he became a client of his lawyer at the trial, that lawyer recommended as a doctor the son-in-law of the lawyer and also sent Joseph, on an appointment made by the lawyer, to another doctor. He had missed no time from school.  He admitted having had difficulty with his back before the accident (as a result of a prior bicycle accident the defense claimed), and the defendant's doctor found no evidence of aggravation of a preexisting injury and no basis for Joseph's complaints, feeling, as [*537] had a doctor for the plaintiffs, that he had suffered only a soft tissue injury in the accident.  The only bill for[***4] medical services admitted in evidence was for $35.00.

   With this background, counsel for the defendant said to the jury in his opening statement:
 
"* * * I think there are some things that are definitely wrong with this case. I want, as the defense attorney in this case, to bring to your attention in my opening statement, certain points that I think it is imperative that you watch for as this trial develops.  I ask you to observe first the date of this accident, what conversations transpired immediately after this accident and later on in the day.  When did this plaintiff first consult a doctor? When did he seek subsequent physicians?  Were any of these physicians family doctors? How did this plaintiff get to these doctors? Whose office arranged for these appointments? These are important factors for you to consider in this trial as to the weight that you place upon the testimony of the various doctors that are going to testify.  It is important for you to consider when complaints of pain were first made by this plaintiff.  Mr. Meyers has indicated, as I think our evidence will show, that this boy had a serious problem long before this accident occurred.  I think the evidence[***5] will also show that this boy was having problems from time to time because of this condition prior to this accident.  If from your assessment of the testimony in this case, which of course is evidence, that you should feel that a verdict is in order then the plaintiff, I frankly say to you the plaintiff should be reasonably and properly compensated, but I do say to you that this client of mine in this case [**767]should not be crucified in this trial because of --"
 
At this point counsel for the plaintiffs said:

   "If your Honor please, we object and I would like to make a motion at this time.  I move for a mistrial. [*538] I don't think that this argument is at all proper in an opening statement. There is no, and Mr. Franch knows there is no evidence, and there will be no evidence of any crucifixion and I think that that is a terrible thing for Mr. Franch to say at this time or at any other time in the trial of this case, and I ask for, make a motion for a mistrial."
 
To this, counsel for the defendant replied:

   "Your Honor, in response to Mr. Meyers, may I say that it was very apparent from his opening statement that we are being charged and that he[***6] would like to give us credit for all the prior problems of this young man and I want to emphasize to the Court that we should not be held responsible for his prior conditions."
 
At this point Judge Childs said:

   "No, I don't think that was the tenor of his arguments, Mr. Franch.  He made it quite clear to the Jury that the Jury would be instructed on aggravation of a previous injury. I am sure and I know this Jury well enough that nobody is going to be crucified here.  The motion will be denied for a mistrial but please refrain from any such graphic descriptions of Jury actions here.  This Jury wouldn't do that under any circumstances."
 
And then counsel for the defendant added:

   "Very well, Your Honor.  Looking at the injuries in this case, I ask you to consider whether any of these doctors had ever seen this young man before this accident, and whether or not their whole opinion as to his condition is based on what they have seen subsequent to the accident.  All I ask you is to be fair to the plaintiff and fair to the defendant and let your conscience be your guide."

   A two-day trial followed.  Judge Childs told the jury in his charge that "you must bear in[***7] mind that arguments, statements [*539] and remarks of counsel are intended to help you in understanding the evidence and applying the law.  But they are not evidence.  If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark." He then instructed the jury that, as a matter of law, the defendant had been negligent, and then instructed fully on the matters of damages.  The opening argument for the plaintiffs and the argument for the defendant followed. 

   Counsel for the defendant began by saying:

   "This has not been a particularly easy case in which to represent the Defendant in, for various reasons, which I discussed with you at the outset of the trial yesterday morning.  And which, I would hope, have become abundantly clear as the case has progressed."
 
In his closing argument, counsel for the plaintiffs said:
 
"* * * in twenty-eight years of trial, I have never heard of a case starting off this way.  * * * But in the opening argument -- it wasn't supposed to be an argument but it sounded like one * * *.  And to stand up there and prejudice you and deliberately make statements about his client[***8] being crucified. And His Honor had to interrupt and tell you not to pay any attention, that that was improper.  It was wholly improper.  And then to add, in desperation, in his closing argument, 'remember what I told you in my statement in court, don't forget what I told you.' Now I say that is unfair. And I am depending on you, the members of the jury, to determine whether that is a fair effort to win a case on a basis of the facts and the evidence and all the instructions of Court, or is it to [**768] take your eye away from the target and do that is entirely improper."

   We have set out in full the context of the remark which the appellants say was so prejudicial that its effect could not thereafter be cured, and subsequent relevant remarks of counsel, because we think they show that under the rules established by the cases Judge Childs did not abuse his discretion in refusing [*540] to grant the mistrial motion.  These rules are that improper or prejudicial statements, remarks or arguments of counsel generally are cured by reproof by the trial judge; to his discretion customarily is left the choice of methods to protect the fair and unprejudiced workings of the judicial [***9]proceedings and his decision as to the effect of that choice upon the jury and only in the exceptional case, the blatant case, will his choice of cure and his decision as to its effect be reversed on appeal.  Brooks v. Daley, 242 Md. 185, 195-97; Leach v. Metzger, 241 Md. 533, 537; Bailey v. Wray, 230 Md. 359, 362-63; Capital Traction Co. v. McKeon, 132 Md. 79, 90-91; Esterline v. State, 105 Md. 629, 637-38; cf. Nelson v. Seiler, 154 Md. 63, 72, 73.

   In the case before us the defendant's suggestion that the plaintiffs would seek to, and the jury would, crucify the defendant was improper as over-graphic and pejorative and, so, potentially prejudicial. But, as we see it, the probability of prejudice was eliminated by what followed the remark. Defendant's counsel immediately explained his choice of words by saying that his client was being charged "for all the prior problems of this young man" and suggested that what he meant by not wanting to see his client crucified was that his client should not be held responsible for the young man's prior condition.

   Judge Childs, in denying the motion, then told counsel and the jury (which was in the last day of its service) [***10] that the true tenor of the opening statement of the plaintiffs' lawyer was that the plaintiffs' reliance would be on aggravation of a previous injury, and added: "I am sure and I know this jury well enough [to know] that nobody is going to be crucified here * * * but [counsel for defendant] please refrain from such graphic descriptions of jury actions here.  This jury wouldn't do that under any circumstances."

   Counsel for the defendant acknowledged the judicial reproof and the court's message to the jury by reiterating his plea for jury consideration of whether Joseph's condition was due to a previous harm or to the current accident, and said: "All I ask you is to be fair to the plaintiff and fair to the defendant * * *."

   We think the trial judge was justified in concluding that prejudice to the plaintiffs by reason of the remark as to crucifixion [*541] had been removed by defendant's counsel's explanations and the judge's reproof to counsel and his message to the jury that the characterization was improper and that it was not to and would not have any effect on the jury.

   If doubt existed as to this, it would be removed by the subsequent argument of counsel for the plaintiffs. [***11] After Judge Childs had instructed the jury that arguments, statements or remarks of counsel without basis in the evidence should be wholly disregarded by the jury, the lawyer in his closing argument said to the jury:

   "And [for defendant's lawyer] to stand up there and prejudice you and deliberately make statements about his client being crucified. And His Honor had to interrupt and tell you not to pay any attention, that that was improper.  It was wholly improper.  And then to add, in desperation, in his closing argument, 'remember what I told you in my statement in Court, don't forget what I told you.' [Counsel for defendant actually said:
 
   "This has not been a particularly easy case in which to represent the Defendant in, for various reasons, [**769] which I discussed with you at the outset of the trial yesterday morning.  And which, I would hope, have become abundantly clear as the case has progressed."]
 
Now I say that is unfair. And I am depending on you, the members of the jury, to determine whether that is a fair effort to win a case on the basis of the facts * * *." (Emphasis added.)

   Counsel for the plaintiffs acknowledged that Judge Childs[***12] had instructed the jury to pay no attention and give no effect to the remark about crucifixion, an instruction which, as we have indicated, if immediately and adequately given almost always will cure the probability of prejudice. Nevertheless, he chose to revive the incident in the jury's mind in an apparent effort to win the sympathy of the jury for his clients as victims of unfair and improper tactics engaged in by the lawyer for the defendant.

   [*542] If he failed in this calculated endeavor to win the jury as he says the verdicts of the jury show that he did, the plaintiffs have only themselves to blame.

   Judgments affirmed, with costs. 

ROWE v. DEPARTMENT OF MENTAL HYGIENE OF THE STATE OFMARYLAND 
No. 524, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 542; 233 A.2d 769; 1967 Md. LEXIS 393

 October  10, 1967, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed November 3, 1967; Denied November 6, 1967.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed, with costs to the appellee.

CORE TERMS:  insane, chargeable, murder, separate estate, common law, husband and wife, marriage relation, property acquired, constitutional provision, financial condition, involuntary, detention, confined, married, woman, daughter, retreat, patient, inmate

COUNSEL: Harry D. Hughes, with whom were Collins & Hughes on the brief, for appellant.

   Edward R. Jeunette, Special Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer and McWilliams, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.  Rutledge, J., delivered the opinion of the Court.

OPINIONBY: RUTLEDGE

OPINION: [*543] [**770] This is an appeal from a judgment for $2,681.54 rendered against Phyllis N. Rowe, the appellant, for her husband's medical care and maintenance while he was confined at Spring Grove State Hospital, [***3] and later at Clifton T. Perkins Hospital.

   Mrs. Rowe's husband, Willis Rowe, was indicted for murder in June of 1958. In November of 1958, as a result of a pretrial medical examination, upon motion of his attorney, he was committed to Spring Grove State Hospital until his recovery.  In January 1960 he was transferred to Clifton T. Perkins State Hospital and remained there until 1962 when he was released to stand trial.

   In 1963 a jury found him sane at the time of the murder and guilty in the second degree; it also found him insane at the [*544] time of his trial.  On appeal from that conviction the Court of Appeals struck out the conviction of murder and remanded the case, staying the proceedings and committing the defendant to a mental institution until he should recover his reason.  Rowe v. State, 234 Md. 295, 199 A. 2d 785 (1964).

   Under authority of Section 4 and Section 5 of Article 59 of the Annotated Code of Maryland, the Division of Reimbursements of the Department of Mental Hygiene investigated the financial condition of the defendant to determine her ability to pay the costs of her husband's care and maintenance while at the hospital, set the rate at the maximum[***4] permissible under the statute, and upon her refusal to pay, filed suit and recovered a judgment for $2,681.54. 

   Section 1 and Section 3 of Article 59 of the Code (1957) provide that the State of Maryland shall be charged with the duty of maintaining insane persons without sufficient means to pay for their own maintenance who have no relatives or other persons legally chargeable with his or her support.  Section 4 of Article 59 provides, in part:

   "No person shall be deemed entitled to the benefit of Sections 1 and 3 of this article who shall possess or be entitled to receive sufficient income for his or her maintenance and support as a patient in any home, retreat or hospital for the insane of this State, or who has relatives or others legally chargeable with his or her support, or who are able to pay for the maintenance and support of the said person as a patient at any retreat or hospital for the insane of this State."
 
Section 5 of Article 59 provides, in part:

   "The Department of Mental Hygiene shall investigate the financial condition of all such persons and also the financial conditions of their relatives or other persons legally chargeable with their maintenance[***5] and support, in order to determine, in each case, the ability of any such person, or of his or her relatives or other persons legally chargeable with his or her maintenance or support, to make payment, in whole or in [*545] part, for the maintenance and support of such person while an inmate of any such institution."
 
Further evidence of the Department's right to specify who shall pay can be found in the wording of Section 5 where it continues:

   "The Department of Mental Hygiene shall make and issue an order specifying [**771]therein the amount of such payments so to be made, and the times when the same are to be made and shall have the power to require the relatives of any such persons or others legally chargeable with his or her maintenance and support to pay the amount so specified to be made, and at the times so determined, and further from time to time may modify the terms thereof, as circumstances may justify."
 
Section 5 also states that:
 
   "It is the intent of Sections 4, 5, and 6 that a husband may be liable for the support of a wife while she is an inmate of any such institution; a wife, for a husband; a father or mother, or both, for a son or[***6] daughter; and a son or daughter, or both, for a father or mother; * * *."

   The appeal in this case is based on the contention that Section 4 and Section 5 of Article 59 are unconstitutional.  The appellant argues that she is being deprived of her property without due process of law, or contrary to the Law of the Land as set forth in Article 23 of the Declaration of Rights of the Constitution of Maryland, and for other reasons.

   At early common law a woman's personal property acquired during coverture became her husband's and was liable for his debts.  To a large extent Married Women's Acts have abrogated the common law. The Maryland Constitution of 1851, Article III, Section 38 provided:
 
"The General Assembly shall pass laws necessary to protect the property of the wife, from the debts of the husband during her life, and for securing the same to her issue after her death."
 
[*546] The Maryland Constitution of 1867, our present law, provides, Article III, Section 43:
 
"The property of the wife shall be protected from the debts of the husband."
 
Section 1 of Article 45 of the Annotated Code of Maryland has implemented the constitutional provision. [***7]

   Ordinarily a married woman's separate property, both real and personal, is beyond the reach of her husband's creditors, to the same extent as though she had never married, and, in the absence of fraud on creditors, property acquired by a married woman as part of her separate estate is not subject to the husband's debts notwithstanding it was purchased by her with money given to her by her husband.  Warner v. Dove, 33 Md. 579 (1870). See also Bishop v. Safe Dep. & Tr. Co., 170 Md. 615, 185 Atl. 335 (1936).

   In Kerner v. Eastern Hospital, 210 Md. 375, 123 A. 2d 333 (1956), a suit in which the facts were the converse to those in the instant case, a hospital sued a husband for the medical and hospital expenses of his wife.  He alleged that she had deserted him before the debts were incurred.  The lower court entered a summary judgment against him without hearing him in the matter.  The Court of Appeals reversed the judgment, holding that the Maryland statutes, preserving to the wife the ownership and enjoyment of her property, do not relieve the husband of his common law obligation to maintain her and pay for medical attendance upon her, and only when he is unable to do so[***8] can resort be had to her separate estate for her maintenance.  But if she deserts him without cause, she forfeits all right to support from him, and carries no authority to pledge his credit even for necessaries, especially when the person furnishing them knows that the husband and wife are not living together, and yet makes no further inquiries.

   In the present case the appellee makes several contentions in support of the judgment entered by the lower court.  First, it is contended that the marriage relation itself should operate to make a wife liable for [**772] her husband's medical and hospital bills, and it is argued that unless marriage is a unilateral contract, it imposes the same degree of responsibility upon a wife to pay, if [*547] she has the ability to do so, as it does upon the husband. This argument must fall before the specific provisions of Section 43 of Article III of the Maryland Constitution.

   The appellee urges that the debt in the instant case can be considered the debt of the wife and not of the husband.  This very matter was considered in the case of Dept. of Mental Hygiene v. Hawley, 379 P. 2d 22 (Cal. 1963), where a son was accused of murder and[***9] was found to be insane and was committed to a state hospital until he should regain his sanity.  The Court found that his detention was for the protection of the public in the course of administration of criminal law and that the cost thereof was the responsibility of the State and not of his father.  The Court said at 379 P. 2d 27, "(T)he committed person is held in the State institution not merely because he is (or was) insane but because the State, in a proceeding instituted by it, has accused him of crime, and his detention is found to be necessary for the protection of the public." (Emphasis in original.)

   We find that the debt sued on in this case was not the debt of the wife.  The commitment by the State was involuntary on the part of the plaintiff and on the part of her husband.  The question of whether a different result would be reached if she had been instrumental in having him committed is not before us.

   The appellant refers the Court to the case of Department of Mental Hygiene v. Kirchner, 388 P. 2d 720 (Cal. 1964), vacated and remanded, 380 U.S. 194 (1965), 400 P. 2d 321 (1965), where it was held that a statute which sought to hold a child liable for[***10] the payment of a mother's medical and hospital bills even though the latter had sufficient funds of her own was in violation of the equal protection clauses of both the United States and the California Constitutions.  The mother had been committed in a civil proceeding.  We find it unnecessary to consider the Kirchner case as the relationship of husband and wife in the instant case is governed by a Maryland constitutional provision.

   We conclude that Section 43 of Article III of the Maryland Constitution providing that "The property of the wife shall be [*548] protected from the debts of the husband", requires that the judgment heretofore entered be reversed.

   We find it unnecessary to consider whether Section 4 and Section 5 of Article 59 are violative of the due process clause of the United States Constitution or Article 23 of the Declaration of Rights of the Maryland Constitution.

   Judgment reversed, with costs to the appellee. 

M. A. REALTY CO., INC., et al. v. STATE ROADS COMMISSION OFMARYLAND 
No. 527, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 522; 233 A.2d 793; 1967 Md. LEXIS 389

 October  9, 1967, Decided

   PRIOR HISTORY: [***1]  
Two appeals from the Circuit Court for  Anne Arundel  County; Childs, J.

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

CORE TERMS:  condemnation, fair market value, stockholder, prejudicial error, fair value, qualification, reversible error, qualifies, inquisition, condemned, estimate, qualified to testify, owner of property, condemnation proceedings, corporate property, complaining party, amount paid, presumptively, disturbed, improving, truncated, appraisal, putting, renting

COUNSEL: Eugene Hettleman, with whom was Paul Jacobs on the brief, for appellant.

   Herbert L. Cohen, Special Attorney, with whom were Francis B. Burch, Attorney General, and Joseph D. Buscher, Special Assistant Attorney General and P. James Underwood, Special Attorney, on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, McWilliams, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.  Oppenheimer, J., delivered the opinion of the Court.

OPINIONBY: [***3]

   OPPENHEIMER

OPINION: [*523] [**794] The only question involved in this condemnation case is whether the trial court committed prejudicial error in refusing to allow the president of the corporate property owner, one of the appellants, to give his opinion as to the fair market value of the property condemned. The appellants' dissatisfaction with the result of the inquisition is understandable, for the sum awarded by the jury is substantially less than the amount which the State Roads Commission had paid into court on the taking.

    [**795] Four lots are involved, each about 50 by 150 feet.  The improvements on the lots are unusual in nature.  The corporate appellant had owned a number of two story houses in Baltimore County.  The houses here involved were in the path of another highway; the corporate appellant sawed off their tops reducing them to one story houses, and moved the remnants to the sites in Anne Arundel County, which, with the truncated houses erected thereon, are the subject of these condemnation proceedings. The Commission, the appellee, filed two petitions of condemnation, each involving two lots.  The petitions were filed [*524] under the quick taking[***4] statutory provision, Code (1957) Art. 89B, Sec. 9.  In one case the Commission paid $6700 into court, in the other $6250, representing what it deemed to be the fair value of the land and improvements.  The cases were consolidated and tried in March, 1966 before a jury.

   At the trial, Mr. John F. Conroy, an expert appraiser, testified on behalf of the Commission that, in his opinion, the value of each of the four lots was $1000.  The lots had been purchased by the appellant in 1965 at a total price of $3500.  Mr. Conroy's estimate of putting the four houses in usable condition was a total of some $17,000.  His opinion of the fair value of the condemned properties as a whole was $6000.  He had originally valued them at $12,950, the amount paid by the Commission into court, but reduced his appraisal because of legal questions raised in connection with the correctness of the statements made by the corporate appellant in its applications for building permits.  The appellants' expert, Mr. Maurice C. Ogle, testified that, in his opinion, the fair value of the properties was $20,000.

   The appellants thereupon called Mr. Martin Anderson, the corporation's president and chief stockholder. [***5] Mr. Anderson testified that he had been in the business of building, improving property and renting for ten years. The houses on the condemned properties were four of thirteen which had been purchased about a year and a half before.  Mr. Robinson, one of the individual appellants, had bought the houses, turned them over to the corporate appellant, and then lent the money to the corporate appellant for financing the construction work.  The total of Mr. Anderson's estimates of the cost of putting the four truncated houses in marketable condition, without the inclusion of any profit, was $11,846.  He had done the kind of work involved on over thirty houses.  Mr. Anderson was then asked by counsel for the appellants what, in his opinion, was the fair market value of the houses as they were at the time of the filing of the condemnation proceedings in March, 1966.  Objection was made by counsel for the Commission.  The court then asked whether Mr. Anderson was the owner or whether the corporation was the owner and was informed that the owner was the corporation.  The court sustained the objection.  Mr. Anderson then testified as to the amount of money the corporation [*525] had expended [***6]on the properties as taken from the corporate books.  Thereafter, the jury found that the proper compensation due the appellants was $8,000, which is approximately $5,000 less than the amount paid into court by the Commission.

   The appellants contend that Mr. Anderson's testimony as to his opinion of the value of the condemned houses was improperly excluded.  They rely on the rule that an owner of property is presumptively qualified to give his opinion as to its value without qualification as an expert.  The rule is well established as to an individual owner.  Baltimore City v. Schreiber, 243 Md. 546, 553, 221 A. 2d 663 (1966). See also Smith v. Potomac Electric, 236 Md. 51, 60, 202 A. 2d 604 (1964), and cases therein cited.  This Court has held, however, that the rule is limited to personal owners of property, and does not extend to the officers or stockholders of a corporation, unless the officer or stockholder is shown to have knowledge which in fact qualifies him to testify as to the value of the property which his corporation holds.  [**796] Smith v. Potomac Electric, supra.

   In Smith, a corporation, Thos. Somerville Co., and its tenant or lessee appealed[***7] from judgments entered upon the inquisition of a jury in a condemnation suit instituted by the Electric Company for the taking of a property owned by Somerville.  One of Somerville's contentions on appeal was that the trial court erred in not permitting two of its officials to testify as to the value of the property.  The judgment was affirmed.  Chief Judge Brune, for the Court, said at 236 Md. 60, 61:

   "We have recognized, as to both real and personal property, the rule that an owner of property is at least presumptively qualified to testify to its value * * * [citing cases].  In the Cofflin case [230 Md. 139, 143, 186 A.2d 216 (1962)], we observed that 'the rule does not rest on the fact that the owner has title, but rather on the fact that ordinarily an owner knows the property intimately and is familiar with its value.' In that case we held that evidence as to value presented by a committee for an incompetent was improperly admitted, where it was not shown that the committee 'possessed any knowledge of the value of [the] property.' [*526] Courts in other jurisdictions have taken the same view as respects the testimony of corporate shareholders and directors not [***8]otherwise shown to have knowledge of value.  It is well established that, to quote the opinion of Justice Wilkins in Winthrop Products Corp. v. Elroth Co., 331 Mass. 83, 117 N. E. 2d 157, 'the mere holding of [corporate] office * * * is not enough, but the officer must have knowledge which in fact qualifies him,' and that the same rule applies to the ownership of corporate stock.  See the cases cited in the Winthrop opinion and those collected in 5 A.L.R. 1171, 45 A.L.R. 1494; 20 Am.Jur. Evidence, § 893 * * * The doubts that have been expressed about the rule making owners automatically competent on the issue of value without any showing of special knowledge make us loath to extend the rule further.  See State v. Assembly of God Pentecostal, 230 Ore. 167, 368 P.2d 937."

   The appellants argue further that, in view of Mr. Anderson's testimony as to his experience, he was qualified to testify as an expert.  Mr. Anderson's business, according to his testimony, was building, improving property and renting; he had been engaged in these activities for ten years.  He also was familiar with the "rejuvenating" of houses and had remodeled 30 to 40 houses. He testified as[***9] to the cost of the properties to the corporation but did not testify as to any general knowledge of fair real estate market values.

   Questions in regard to the qualification of an alleged expert witness are largely in the discretion of the trial court, and the court's determination of whether the witness is qualified will only be disturbed on appeal if there has been a clear showing of abuse of the trial court's discretion.  Continental Ins. Co. v. Kouwenhoven, 242 Md. 115, 126, 218 A. 2d 11 (1966), and authorities therein cited.  We find no such abuse of discretion in the failure of the trial court to permit Mr. Anderson to testify as an expert.

   In any case, however, even if the exclusion of the witness's opinion testimony had been in error, the error was not prejudicial.  [*527] No proffer was made as to what his testimony on this question would have been.  His evidence as to the cost of the properties, the moving of the houses, and the cost of making them habitable was admitted without objection.  An admitted expert, Mr. Ogle, had testified on behalf of the appellants, as to his opinion of fair market value. There is nothing in the record to indicate that, if Mr. Anderson[***10] had been permitted to give his opinion as to fair value, his estimate would have been higher than the $20,000 figure of Mr. Ogle.  The exclusion of cumulative testimony in condemnation [**797] cases, even if the exclusion was erroneous, ordinarily does not constitute reversible error. Hutchison v. Balto. Gas & Elec. Co., 241 Md. 329, 333-34, 216 A. 2d 573 (1966). The burden is on the complaining party to show prejudicial error, State Roads Comm. v. Kuenne, 240 Md. 232, 235, 213 A. 2d 567 (1966), and, assuming arguendo that the exclusion of Mr. Anderson's testimony was error, we do not find that the appellants' burden has been met.  The inquisition was one-third more than the value given by the Commission's expert, and the testimony as to the alleged misstatements in the applications for building permits may well have been considered by the jury in awarding damages substantially less than the Commission's original appraisal.

   Judgment affirmed; costs to be paid by appellants. 

MAUCK, et al. v. WALTER BAILEY, ADMINISTRATOR OF THE ESTATEOF EMMA O. LESTER 
No. 485, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 434; 231 A.2d 685; 1967 Md. LEXIS 381

 July  13, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed, costs to be paid by the appellants.

CORE TERMS:  adverse possession, fence, dedication, feet, street, right-of-way, built, plat, offer of dedication, foot road, public use, easement, decree, successor, reserved, alleys, deed, dwelling, acts of ownership, dedicator, revoke, intervenor, roadway, foot, restrictive covenants, prescriptive period, unequivocal, abutting, visible, block

COUNSEL: W. Byron Sorrell for appellants.

   Douglas F. Lyons and Joseph J. Malloy for appellee.

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

OPINIONBY: BARNES

OPINION: [*437] [**687] The principal question raised by this appeal is the sufficiency of the evidence to support the finding in the decree of the Circuit Court for Anne Arundel County (Sachse, J.) that the appellee's decedent, Emma O. Lester, the plaintiff below, had acquired title by adverse possession to a tract of land in Deale Beach in the Seventh Election District of Anne Arundel County.  The suit was filed on February 14, 1963, by Mrs. Lester against the appellants Herman E. Mauck, and Ethel V. Mauck, his wife, the owners of lots near the disputed property and a claimant of the disputed property, alleging, inter alia, that the Maucks tore down the fence which had been erected by Mrs. Lester in 1939 and had erected another fence across a roadway used by Mrs. Lester as a means of ingress and egress to her property for over 20 years.  The plaintiff prayed[***5] that the Maucks be enjoined from continuing the fence on the disputed land and for other relief.

    John J. Gormley, on behalf of himself and other residents and property owners in Deale Beach similarly situated, prayed leave to intervene on March 18, 1963, as a party defendant, alleging that the disputed property involved a portion of Chesapeake Drive in Deale Beach and the intervenor and other residents and property owners similarly situated had a direct interest in the outcome of the suit because it could deprive them of the use of Chesapeake Drive as an access to the waters of Chesapeake Bay.  Leave to intervene was granted by the Chancellor on April 25, 1963.

   The intervenor filed a counter bill of complaint on May 8, 1963, alleging that the plaintiff and cross defendant, Mrs. Lester, had encroached upon a public right-of-way by a dwelling house and other constructions and prayed that the court direct a survey, issue a mandatory injunction to compel removal of the encroachments, issue a negative injunction prohibiting encroachment or obstruction by Mrs. Lester on Chesapeake Drive, require Mrs. Lester to pay the costs of survey and removal of encroachments and grant other relief. [***6]

   After the suit was at issue on the pleadings, a considerable amount of testimony was taken.  The evidence showed that The Bay Beach Realty Company had subdivided a number of acres in Anne Arundel County [**688] in 1935 into a number of lots with [*438] frontages of approximately 25 feet. The development was called Deale Beach and was bounded on the north and northwest by Carr's Creek.  On the south, southeast and east part of the land is bounded by the Chesapeake Bay.  A plat of the subdivision was recorded among the Land Records of Anne Arundel County.

   Various streets are shown on the plat. Main Street, 40 feet wide, which runs approximately in an east-west direction ultimately connects with Sixth Street which runs in a north-south direction to the Chesapeake Bay.  Chesapeake Drive, 25 feet wide, begins on the east side of Sixth Street approximately 100 feet south of the intersection of Main Street and Sixth Street. It runs approximately due east for one-half of its distance and then in a south-easterly direction ending at the Chesapeake Bay.  The last six lots on the southerly side of Chesapeake Drive are lots 45, 46, 47, 48, 49 and 50, in Block L on the plat. These[***7] lots were purchased by Mrs. Lester from the developer on September 8, 1938.  The deed of that date, duly recorded among the Land Records of Anne Arundel County, described the six lots by number and block by reference to the plat and contained eight restrictive covenants, running with the land. The first and third restrictions provide:

   "1. All dwellings shall be set back from the street upon which the premises front not less than 25 feet, and all garages shall be set back not less than 70 feet, and garages on corner lots shall be set back not less than 20 feet from the side street, and no dwelling shall be built on a plot having a frontage of less than 40 feet on the street on which the plot fronts, and no dwelling shall be built on a corner lot having a frontage of less than 60 feet on the street on which the plot fronts and such dwelling shall be set back not less than 20 feet from the side street, and no dwelling shall cost less than $500.00.

   * * *

   "3. No fence, wall or hedge shall be built or maintained unless the location, nature, shape and material be first made known to the grantor in said deed or its successors, and receive its or their approval in writing."
 
   [*439] [***8] On the northerly side of Chesapeake Drive was an area marked "Reserved" on the plat, which extends approximately 230 feet westerly from the Chesapeake Bay to the easterly line of Lot 5 in Block M and then runs in a northerly direction along the easterly line of Lot 5 to an area marked "Sand Bar Reserved." The line of the reserved area then proceeds in a southeasterly direction to its beginning at the intersection of the northerly side of Chesapeake Drive and the Chesapeake Bay.

   The Maucks purchased Lots 1, 2, 3, 4 and 5 in Block M in 1950.  As indicated, Lot 5 immediately adjoins the area marked "Reserved." On June 24, 1961, the Maucks purchased from The Bay Beach Realty Company a portion of the "Reserved" area which included the portion of that area claimed by Mrs. Lester.

   The evidence introduced on behalf of Mrs. Lester indicated that when her home was built in 1939, a corner of the house was built upon the 25 foot right-of-way of Chesapeake Drive, extending into that right-of-way approximately four feet. A well was dug in the right-of-way and on part of the reserved area approximately 23 feet north of the northerly line of Lot 50.  The well cover is 5.6 feet by 4.5 feet. Mrs. [***9] Lester used an eight foot road partly on the 25 foot right-of-way and partly on the reserved area in 1939 in which there was a gate at the eight foot road. The gate was kept padlocked.

   Raymond Leon Fischer, who from time to time did work on Mrs. Lester's property, first saw the property on October 16, 1939.  At that time the fence was completely built, extending around the entire property in order to keep the dogs from getting out.  The fence came around behind the well about four feet and extended about twelve [**689] feet beyond the well.  In 1956, the fence was removed by a storm and was replaced by the witness and remained in place until it was removed by the Maucks.  There was a roadway made of gravel and shells raised above the surrounding marsh when he first went to the property. This was the eight foot roadway shown on plaintiff's Exhibit 3.  The witness also identified three photographs showing the fence and roadway.

   Clayson Simmons, who built the house for Mrs. Lester, and who had resided in the area all of his life, testified that after he had completed the house, he visited the property almost every [*440] year.  The eight foot road had been on the property[***10] ever since the house was built in 1939 and the original fence shown in one of the photographs was always at the same place. When Mrs. Lester needed posts for the fence, she got them from the witness.

   Mrs. Alice Thelma Howes, a resident of Deale Beach, testified that the eight foot road was built when she moved to Deale Beach in October, 1942.  She had been in the vicinity of Mrs. Lester's house, during the 20 years she had lived in Deale Beach, an estimated 100 times.  There had never been any other road there other than the eight foot road, and the fence shown in one of the photographs (plaintiff's Exhibit 4) was the only fence that had ever been there. 

   Mrs. Lester testified that she had constructed the eight foot road in 1939 by using oyster shells, gravel and sand off the beach so that the level of the road was raised up three feet. No one helped her maintain the road.  She installed the fence in 1939 all around the lot.  She identified various photographs. Since building the house, she had planted flowers in the area around the well. She also testified that the Maucks removed a portion of her fence in the fall of 1962, and erected a new fence. This new fence cut across the[***11] eight foot roadway used by her for ingress and egress.  She testified that she "could not say that there had been people going up and down when she wasn't there; she didn't know."

   There was testimony offered on behalf of the defendants and the intervenor which in part was in conflict with the testimony offered on behalf of the plaintiff, Mrs. Lester.

   The Chancellor, without the objection of counsel for the parties, visited the site.

   The Chancellor in the decree of June 11, 1965, found that Mrs. Lester had acquired sole title by adverse possession and absolute ownership of the portion of land lying within the boundary of Chesapeake Drive, described by metes and bounds, and shown on plaintiff's Exhibit 3 and the portion of the land on which the well was located, also shown on plaintiff's Exhibit 3.  The decree required the Maucks, within 15 days from the entry of the decree, to remove the fence erected by them on the land acquired by Mrs. Lester by adverse possession, including [*441] the portion of the fence blocking the eight foot road. The counter-claim of the intervenor was dismissed and the Maucks required to pay the costs.

   Mrs. Lester died on September 1, 1965.  Her death[***12] was duly suggested to the lower court and her administrator was substituted as a party appellee in this Court by order of April 20, 1967.

   The appellants raise four questions: (1) The evidence did not establish adverse possession; (2) There could be no adverse possession in land offered for dedication for public use; (3) The other property owners in the subdivision had acquired rights apart from any public rights; (4) Mrs. Lester was estopped from asserting adverse possession.

   We have concluded that the decree of the Chancellor should be affirmed.

   (1)

   In our recent decision in Freed v. Cloverlea Citizens Association, 246 Md. 288, 228 A. 2d 421 (1967), Judge McWilliams, for the Court, [**690] carefully reviewed the prior decisions of this Court in regard to obtaining title by adverse possession in a case somewhat similar to the present case.  He cited Blickenstaff v. Bromley, 243 Md. 164, 171, 220 A. 2d 558, 561 (1966), where we quoted with approval from 3 Am. Jur. 2d, Adverse Possession, sec. 14, the following:

   "It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent [***13]with the character of the premises in question.  The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of adverse possession."

   In Tamburo v. Miller, 203 Md. 329, 100 A. 2d 818 (1953), Judge Hammond (now Chief Judge), for the Court, stated:
 
"The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in [*442] the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial."

   Applying these principles to the case at bar, it is clear to us that there was sufficient evidence to support the Chancellor's finding that Mrs. Lester had acquired title by adverse possession. There was evidence from Mrs. Lester and three witnesses that the fence forming a visible boundary had existed for more than the[***14] 20 year statutory period, and there was evidence that Mrs. Lester had exercised unequivocal acts of ownership. Her house occupied a small portion of the 25 foot right-of-way as did her well.  She had built up the eight foot road and it was her means of ingress and egress to her property for more than the 20 year period.  She planted shrubs and flowers in the area around the well.  These unequivocal acts of ownership for the prescriptive period are sufficient to vest title by adverse possession in Mrs. Lester.

   Although there was evidence which conflicted, in part, with the evidence produced by the defendants and intervenor, the weight of the testimony was for the Chancellor who had the opportunity to judge the credibility of the witnesses.  Under the provisions of Maryland Rule 886 a, we should only reverse on the evidence if the lower court, sitting without a jury, was clearly erroneous.  It is clear in the present case that we cannot say that the Chancellor's findings of fact were clearly erroneous.

   (2)

   The appellants maintain that Chesapeake Drive had been offered for dedication to public use and that Mrs. Lester could not obtain title by adverse possession upon land that had[***15] been so offered for dedication, prior to "rejection or abandonment of the dedication by the public body."

   It is correct that Chesapeake Drive was the subject of an implied offer of dedication to public use. A rule of law, well settled in this State, declares that when an owner of land makes a plat of his property "on which streets or alleys are laid down [*443] and then conveys it in lots as bounding on the streets and alleys by reference to their numbers on the plat from which it appears that they do in fact bound on the streets or alleys, an intention to dedicate the land lying in the bed of the streets and alleys to public use will be presumed, in the absence of language showing that no dedication was intended." Atlantic Construction Corp. v. Shadburn, 216 Md. 44, 51, 139 A. 2d 339 (1958); Hillshire Corp. v. Pachuta, 235 Md. 178, 201 A. 2d 1 (1964); Mullan v. Hochman, 157 Md. 213, 145 Atl. 554 (1929).

   [**691] Where an implied offer of dedication of this type, or an express offer to dedicate, is accepted by the public, so that the dedication is complete, our decisions have consistently followed the great weight of authority in holding that the dedicated property[***16] cannot subsequently be acquired by adverse possession. Mayor & City Council of Balto. v. Chesapeake Marine Ry. Co., 233 Md. 559, 572, 197 A. 2d 821 (1964); Messersmith v. Mayor & Common Council of Riverdale, 223 Md. 323, 164 A. 2d 523 (1960); Town Comm'rs of Centreville v. County Comm'rs of Queen Anne's County, 199 Md. 652, 87 A. 2d 599 (1952); Brady v. Mayor & City Council of Balto., 130 Md. 506, 101 Atl. 142 (1917); Cushwa v. Burgess & Comm'rs of Williamsport, 117 Md. 306, 83 Atl. 389 (1912). The rationale of this rule is, of course, that the public is not to lose its rights in the dedicated property through the negligence or inadvertence of government officials who are agents of the public.

   This rationale presents no impediment, however, to the acquisition of property by adverse possession where the public has never accepted the offer of dedication. This is the situation in the case at bar.  The right-of-way, abutting Mrs. Lester's land, has, since its creation in 1935, never been accepted by the sovereign body, either expressly or through acts giving rise to an implication of acceptance.  In the case of a common law dedication, the public acquires no rights[***17] and undertakes no duties in the property offered for public use until a valid acceptance has been made.  Small v. State Roads Comm'n, 246 Md. 646, 229 A. 2d 408 (1967); Hillshire Corp. v. Pachuta, supra; United Finance Corp. v. Royal Realty Corp., 172 Md. 138, 148, 191 Atl. 81 (1937). And until an acceptance makes the common law dedication complete, the original dedicator or his successors [*444] in interest may revoke or modify the offer to dedicate, in whole or in part. n1 North Beach v. North Chesapeake Beach Land & Imp. Co., 172 Md. 101, 116, 191 Atl. 71 (1937). But see, Maryland National Capital Park & Planning Comm'n v. McCaw, 246 Md. 662, 229 A. 2d 584 (1967), involving a statutory dedication.

n1 The right of the dedicator or his successors in interest to revoke an unaccepted offer of dedication has sometimes not been clearly distinguished from the additional requirement, in Maryland, that the offer of dedication, even if not revoked, must be accepted within a reasonable time.  See e.g., Hackerman v. Mayor & City Council of Balto., 212 Md. 618, 625-26, 130 A. 2d 732 (1957). For an offer of dedication to be considered to be lapsed, revoked or refused because it was not accepted within a reasonable time, the municipality must have affirmatively intended not to accept or must have allowed the dedicator or his successors to make valuable improvements without objection.  See e.g., Whittington v. Comm'rs of Crisfield, 121 Md. 387, 88 Atl. 232 (1913); United Finance Corp. v. Royal Realty Corp., supra. In addition, at common law, an offer of dedication may be revoked by affirmative action of the dedicator or his successors at any time before acceptance.

[***18]

   Applying these principles to the present case, we believe the possession of Mrs. Lester, adverse for more than the statutory period of 20 years, operated both to foreclose the right, title and interest of the original dedicator with respect to the right-of-way and to revoke the offer to dedicate that easement to the use of the general public.  The enclosure of the right-of-way and its devotion to private use were clear manifestations of an intention to revoke.

   (3)

    The appellant argues, however, that even if Mrs. Lester's adverse possession of the property is said to foreclose the rights of the general public, her possession cannot cut off rights of abutting landowners who purchased their property on the faith of the incomplete dedication.

   The appellant is correct in asserting that a dedication, incomplete and revocable [**692] against the public, may be final and irrevocable against those purchasing in reliance on the dedication. The distinction and its theory was noted by Judge Horney in Hillshire v. Pachuta, supra, a case involving an offer of dedication implied because lots were sold by reference to a plat:
 
[*445] "[I]t will be presumed that the grant[***19] operates as [an offer] of dedication of the street to public use and that the grantor intended to convey to the grantee a complete easement of way in such a street even though the dedication to the public is incomplete.  * * *

   "The rule affects two classes of persons: the public at large and the lot owners.  While both may acquire coextensive rights in a street designated on a plat, Hawley v. Baltimore, 33 Md. 270, 280 (1980), there can be no dedication between the owner of land and an individual.  Brady v. Farley, 193 Md. 255, 259, 66 A. 2d 474 (1949). * * *."
 
See also Chapman v. Rogan, 222 Md. 12, 158 A. 2d 626 (1960); United Finance Corp. v. Royal Realty Corp., supra.

   In our opinion, however, the abutting landowners can derive no advantage from the doctrine of implied easement in this case.  All of them purchased their properties after 1939 when Mrs. Lester had bought her lot, built a house and well which extended onto the right-of-way and, as the decree of the lower court necessarily implies, after Mrs. Lester had begun to exercise adverse possession. Under these circumstances, the right of abutting property owners to an easement would now be foreclosed. [***20] The open and adverse possession of the right-of-way by Mrs. Lester from 1939 until the removal of her fence by the Maucks forms an effective bar to the assertion of an easement by the other landowners.  Baugh v. Arnold, 123 Md. 6, 91 Atl. 151 (1914); Canton Co. v. Mayor & City Council of Baltimore, 106 Md. 69, 93, 67 Atl. 274 (1907); Cf. Ayers v. Hellen, 235 Md. 258, 261, 201 A. 2d 509 (1964). As we have already indicated, the abutting landowners and their predecessors in title were charged with notice that an adverse claim to the fee (and easement over) the property was being asserted.  Blickenstaff v. Bromley, supra.

   (4)

   Finally, the appellants maintain that Mrs. Lester is estopped from closing off any part of the right-of-way because her deed contains certain restrictive covenants running with the land.  These covenants are that "all dwellings * * * shall be set back [*446] not less than 20 feet from the side street * * *" and that "no fence * * * shall be built or maintained unless the location * * * be first made known to the grantor in said deed or its successors, and receive its or their approval in writing."

   This argument, based on equitable principles, [***21] ignores the fact that acts constituting adverse possession are, by definition, "inequitable," since they include the possession of land in defiance of the rights of the legal owners for the prescriptive period. The doctrine is based on the policy that after 20 years, no one can complain of the "inequitable" and indeed, formerly illegal possession.  Where, as in this case, the appellee's possession is adverse to the rights of others in both the fee and the easement, restrictive covenants in the adverse possessor's deed, to support the easement, are also barred from enforcement by the running of the prescriptive period, as well as by acquiescence in the violation of the restrictions.  Schlicht v. Wengert, 178 Md. 629, 635, 15 A. 2d 911 (1940) and cases therein cited.  3 Tiffany, Real Property , § 871 (1967 Cum. Supp.); McLaughlin v. Neiger, 286 S. W. 2d 380 (Mo. 1956).

   Decree affirmed, costs to be paid by the appellants. 

McGINNIS, et al. v. CHANCE 
No. 418, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 393; 231 A.2d 63; 1967 Md. LEXIS 377

 July  5, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Order reversed and remanded for further proceedings consistent with this opinion, appellee to pay the costs.

CORE TERMS:  deposition, summary judgment, memorandum, deed, settlement, one-half, tax sale, recorded, chancellor, lease, equity suit, undivided, perfect, nominee, touch, duty, adverse possession, title report, estopped, recommended, telephone, postpone, reply, heirs, full knowledge, record title, remainderman, tortious interference, marketable title, subject property

COUNSEL: Charles C. W. Atwater, with whom were Mylander & Atwater, Thomas J. Doud, Jr. and William E. Dixon on the brief, for appellants.

   James L. Wray, with whom were Wray & Serio on the[***2] brief, for appellee.

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

OPINIONBY: FINAN

OPINION: [*394] [**64] The episodic maze of facts presented by this case defies economy of composition and necessitates the recounting of events in detail.

   Arthur J. McGinnis, one of the appellants and a plaintiff below, obtained an option from John J. Rogers and wife, dated April 4, 1963, for a consideration of $200 to purchase the parcel of land here involved, located in Anne Arundel County, for the sum of $50,000.  On May 3, 1963, McGinnis gave notice of his intention to exercise the option and shortly thereafter removed the timber from the property with the Rogerses' permission.  He then tried to sell his interest in the option to a Mr. Hurd, but was unsuccessful because a title search revealed that there were certain apparent defects in the Rogerses' title because of the lack of compliance with certain statutory requirements when the property was sold to the Rogerses at a tax sale held on October 11, 1932.

   After this information was given to the Rogerses, they entered into a new contract with the appellant, dated September[***3] 23, 1963, reciting the same consideration of $200 and other good and valuable considerations for a purchase price of $50,000.  With reference to the date for settlement and its duration the contract contains the following provisions:

   "SETTLEMENT to be on or before ninety (90) days from the date that the Sellers are able to give such title as a title insurance company permitted to do business in the State of Maryland, will approve and insure in the amount of Fifty Thousand Dollars ($50,000).

   "It is further agreed that the Sellers will join in any proceedings deemed necessary by the Buyers' attorney to rectify the defects in the title and to execute any pleadings, documents, etc., necessary for the Sellers to deliver a marketable title and insurable title by said title company.

   "Buyer will immediately proceed with due diligence to clear title to said property but in no event will the time of this contract exceed eighteen (18) months.

   * * *

   "BUT, in case such defects in the title are not rectified [*395] and the Seller cannot deliver a marketable title, insurable by said title company, the Buyers shall have the option to declare this contract null and void; and, if so [***4]declared, the deposit of Two Hundred Dollars ($200.00) paid hereunder is to be returned to the Buyer."

   On October 1, 1963, this contract was assigned by the appellant McGinnis to appellant Charles Dudley, plaintiff below, for a consideration of $10,000, of which $6,000 has been paid, the balance to be payable at settlement.

   [**65] No proceedings were instituted in any court by or on behalf of the appellants to clear the title, but William E. Dixon, Esq., attorney for appellants (also brother-in-law of Mrs. Dudley and the president of The Monumental Title Company), on behalf of appellants, first employed Garrett Larrimore, Esq., to take action to clear title, and employed John P. O'Ferrall, Esq., to investigate the law with reference to the title of the Rogerses.  Mr. O'Ferrall prepared and gave to Mr. Dixon an opinion as to the validity of the title of the Rogerses, concluding that the real question was whether the Rogerses had title by adverse possession, having been in possession and control of the property under a deed from the County Commissioners from 1940 to 1963. He concluded the tax sale was probably technically bad and noted that Ch. 182 of the Acts of the General[***5] Assembly of 1964 provided that all tax sales prior to 1944 in Anne Arundel County could not be subject to further attack after June 1, 1966.  He recommended that tactically it would be well to postpone settlement until June 1, 1966, if possible, rather than file a bill to quiet title before that date.  Dixon stated that he thought it best not to bring a suit for specific performance at that time because if no attack was made on the title before June 1, 1966, the Rogerses would have a good title by the Act and it was easier to sit back than to take affirmative action.  However, Dixon and appellants all knew the terms of the contract called for final settlement within 18 months, which would have been March 23, 1965.

   The appellee, Thomas E. Chance, defendant below, in the meantime had investigated the title to this parcel of land and [*396] had obtained deeds from the heirs of William Queen who was the record owner at the time of the tax sale in 1932.  The grantee in these deeds was Helen Clarke, an employee of the Chance family, and according to the stipulation filed in the proceedings, had no interest in the title.  The appellee, at the time of his deposition, stated he was representing[***6] a third party as attorney and refused to name his client.  An order of court was entered requiring him to name the real owner of the equitable title, and it has been stipulated that the client for whom appellee was acting was his father, Edward G. Chance, who subsequently conveyed all of his right, title and interest to the appellee.

   On July 1, 1964, Helen L. Clarke, who, a stipulation shows, was acting as agent for appellee, filed a bill in equity in Anne Arundel County (No. 16,484 Equity) alleging, among other matters, that the tax sale of the property owned by William H. Queen was defective, and that she "owns a good and merchantable, fee simple title to the aforementioned real estate, having acquired title by deeds dated June 23, 1964, the grantors being all the heirs at law of William H. Queen." An answer in that case was filed by the Rogerses on September 2, 1964, denying the right of the plaintiffs to the relief sought.  Depositions were taken, witnesses were summoned, exhibits filed and testimony taken.  As a result of these proceedings, a decree of court was entered on October 19, 1964, in which the tax sale was set aside.

   Mr. Raphael Urciolo, a member of the bar, in his[***7] deposition taken on November 11, 1965, testified that the first time he came in contact with Mr. Rogers was when the above case was in process, at which time Rogers was represented by his attorney, Mr. Gott.  Mr. Urciolo also represented the Rogerses in an advisory capacity, and it was then that he saw the contract between the Rogerses and McGinnis dated September 23, 1963.  He stated that an agreement was entered into between Clarke and the Rogerses to the effect that regardless of the outcome of the suit (Clarke v. Rogers (sic)) the property would be titled in the names of Clarke and the Rogerses -- one-half interest in each -- and that this agreement was reached "either prior or simultaneously" to the taking of testimony in that case.  He stated that [*397] he then advised the Rogerses to enter into an agreement whereby title would be transferred [**66]to the appellee and Joseph Urciolo (Raphael's brother), who would hold the title for the benefit of the Rogerses and Clarke.  He knew that the title was bad and that the September 23, 1963 contract was about a year old, but since appellant McGinnis had done nothing to clear the title, which he was required to do promptly[***8] under the contract, he, Urciolo, considered the contract to be worthless.  He felt that it would be more expeditious to hold the matter in abeyance until after March 23, 1965 -- the expiration of the eighteen months settlement date in the contract -- than to go into court prior to that time to set aside the contract.  Urciolo further testified that he made no effort to inform McGinnis of these transactions.

   Early in January of 1965, Dixon, on behalf of the appellants, after receipt of the O'Ferrall memorandum, endeavored to contact Mr. Rogers.  After numerous attempts he succeeded in making contact with him and was told by Rogers that Urciolo was acting as his attorney and he was the one with whom to speak. Rogers did not mention the proceedings in the case of Clarke v. Rogers (sic), nor his agreement with appellants and Urciolo to execute a deed to them on March 24, 1965.  Dixon told Mr. Rogers at that time of O'Ferrall's memorandum, which recommended that the best way to perfect the Rogerses' title would be to take no action until after June 1, 1966.  Appellant Dudley was ready and willing to settle by March 23, 1965, if the extension were not granted, but because of the O'Ferrall[***9] memorandum Dixon advised postponement if the Rogerses were willing to postpone.

   Dixon made numerous attempts from early January to the first of March 1965 to contact Urciolo, attorney for the Rogerses.  Urciolo admitted that he received many messages that Mr. Dixon had called, but returned none of the calls.  On or about March 2, 1965, Dixon finally reached Urciolo on the telephone. He told Urciolo of the O'Ferrall memorandum in which it was recommended that the best way to perfect the Rogerses' title was to wait until June 1, 1966.  Urciolo, in answer to the direct question: "What was your response to Mr. Dixon's request for an extension of time in order to perfect the title of Rogers?" said: "Well, send me a copy of the memorandum [*398] [meaning O'Ferrall's report on the title] and I'll be in touch with you." Dixon, in response to the request of Urciolo, on March 3, 1965, wrote to Urciolo and sent him a copy of the memorandum. He said in his letter, "we would like to go through with this contract but would like to postpone it until after June 1, 1966 * * *."

   When Dixon did not hear from Urciolo promptly, he again made efforts to contact him by telephone, but to no avail. [***10] Dixon, on March 29, 1965, again wrote to Urciolo stating that he had been unable to contact him and that he had again spoken to Mr. Rogers who informed him that he should work through Urciolo.  Thereafter, when still unable to contact Urciolo and having received no reply to either letter, he recorded the contract of sale (between McGinnis and the Rogerses) on April 4, 1965.  He made further efforts to contact Urciolo by telephone and wrote to him on April 22, 1965, informing him that the contract had been recorded and stating that he was interpreting the failure of Urciolo to contact him as an acquiescence to an extension of the agreement.

   In the meantime, the Rogerses and Clarke executed a deed on March 24, 1965 (one day after the expiration date of the Rogerses' contract with appellant McGinnis), which was recorded March 29, 1965, whereby title was conveyed to appellee and Joseph Urciolo as joint tenants.

   On June 11, 1965, Dixon learned from a surveyor, Hall, that some deed had been recorded conveying title to the Rogerses' property.  A run-to-date of the Rogerses' title was made which disclosed not only the deed from the Rogerses and Clarke to appellee and Joseph Urciolo on March[***11] [**67] 24, 1965, but also disclosed the equity proceedings in July of 1964.  Dixon contacted appellee and had a conference with him on June 15, 1965, and informed him that, in his opinion, the proceedings in the Circuit Court in the matter of Clarke v. Rogers (sic) were invalid.  A bill of complaint was then prepared and filed on July 2, 1965 in the instant case.

   Appellee and Joseph Urciolo, on May 26, 1965, sold the property to a combine composed of John V. Arban, Pascal Della Badia (two clients of Urciolo's) and Florence E. Urciolo (wife of Raphael Urciolo) for a consideration of $90,000. A purchase [*399] money mortgage was executed back to appellee and Urciolo for $70,000.  Raphael Urciolo testified at the time of his deposition that he had a title report which showed the outstanding recorded contract from the Rogerses to appellant McGinnis, but that he did not inform any of the members of the combine (for whom he was acting as attorney while also acting as trustee for the Rogerses as to their one-half interest) of the existence of this exception stated in the title report.

   The learned chancellor granted summary judgment for the appellee finding time to be of[***12] the essence of the contract, and that even if it were not that the contract should have been performed within a reasonable time under the circumstances of the case, which the appellants failed to do, citing Barnes v. Euster, 240 Md. 603, 214 A. 2d 807 (1965); Trotter v. Lewis, 185 Md. 528, 45 A. 2d 329 (1946); Stern v. Shapiro, 138 Md. 615, 114 A. 587 (1921). With this conclusion we would agree, if consideration were to be given to only the literal wording of the contract.  However, there are material facts outside the four corners of the instrument which we believe to be in dispute and which affect an equitable assessment of the whole transaction and which accordingly renders the application of summary judgment procedure inappropriate.  Rule 610 d.  See Whitcomb v. Horman, 244 Md. 431, 224 A. 2d 120 (1966); Reeves v. Howar, 244 Md. 83, 222 A. 2d 697 (1966). Compare Owens v. Simon, 245 Md. 404, 226 A. 2d 548 (1967), which reached an opposite result.

   The facts contained in the depositions of the parties and their witnesses, in the exhibits filed in the case, and in the affidavit accompanying the answer to the motion for summary judgment, raise a genuine dispute[***13] as to whether or not the actions of the appellee and those acting with him to place the title out of reach of the appellants, might have been such as to have estopped the appellee and the Rogerses, and those acting on the Rogerses' behalf, from refusing to extend the time of settlement beyond March 23, 1965.

   The contract for the purchase of the land was between McGinnis and the Rogerses.  The Rogerses were eventually represented by Raphael Urciolo.  As a general rule the actions of an attorney within the scope of his employment are binding on his client [*400] under the ordinary principles of agency.  Bob Holding Corp. v. Normal Corp., 223 Md. 260, 164 A. 2d 457 (1960); 7 C.J.S. Attorney and Client § 79 (1937) and 7 Am. Jur. 2d Attorneys at Law, § 100 (1963).

   As early as July 1, 1964, when the contract still had nine months to run, the Rogerses were made a party to a suit in equity (Clarke v. Rogers (sic)) which had as its purpose the declaring of the Rogerses' title a nullity.  Such action was a direct attack on the subject matter of the then existing contract with the Rogerses.  The deposition of Chance is unclear as to whether or not the Rogerses agreed[***14] to the initiation of the suit.  The depositions of both appellee and Raphael Urciolo, however, are quite clear as to the agreement of the parties prior to the taking of the testimony in Clarke v. Rogers (sic) to the effect, that regardless of the outcome of the suit, appellee and the Rogerses, or their nominees, would each end up owning an undivided one-half interest in the property.  [**68] Also, it is clear that at that time the suit of Clarke v. Rogers (sic) was in progress, Chance and Urciolo knew of the existence of some type of contract between the Rogerses and McGinnis affecting the subject property.

   The proceedings in Clarke v. Rogers (sic) raises the vexing question that the Rogerses may have had a sound legal basis for sustaining their title to the subject property by adverse possession; however, the agreement reached between appellee and Urciolo, acting for the Rogerses, may well have kept this suit from being a truly adversary proceeding.  Testimony, if taken on this point regarding the agreement between the parties in Clarke v. Rogers (sic), might in the instant case have shed light on the extent of complicity of the Rogerses, Urciolo and appellee. [***15]

   Although the Rogerses and Urciolo are not parties to this appeal, appellee being the only party below moving for the summary judgment, yet, if the facts raise the question of whether or not appellee with knowledge of the existence of the contract between the Rogerses and McGinnis, acted in concert with the Rogerses and Urciolo to defeat the contractual rights of McGinnis, then such facts as might spell out estoppel against the Rogerses and Urciolo give rise to the question of tortious interference [*401] with the contractual rights of another on the part of appellee.

   The facts relating to the actions of Urciolo and the appellee insofar as they impinge upon McGinnis' contract with the Rogerses, are susceptible to the inference of tortious interference. As was stated by Judge Parke, speaking for this Court, in Goldman v. Building Assn., 150 Md. 677, 133 A. 843 (1926) at p. 681:
 
"A contract, it is true, can only impose its obligations upon those who are parties to it, but a duty rests upon third persons not to interfere, without lawful justification, with the due performance of obligations of the parties under the contract."
 
Cf. Horn v. Seth, 201 Md. 589, [***16] 95 A. 2d 312 (1953) and Stannard v. McCool, 198 Md. 609, 84 A. 2d 862 (1951).

   The opinion of this Court is not to be construed in any manner as challenging the right of the appellee in his acquisition of title to the property from the heirs of Queen and his right to seek through legal processes the removal of any cloud on such title as he may have acquired.  This he had a right to do. However, it is when we get into the area of the equity suit of Clarke v. Rogers (sic), in which action the appellant McGinnis was not joined and concerning which he had no notice, that the Court becomes troubled.

   From the depositions it is not at all clear as to whether McGinnis was, or was not, a necessary party to Clarke v. Rogers (sic).  The court hearing that case adopted the master's opinion that McGinnis was no more than an optionee and although he would have been a proper party, he was not a necessary party.  On the contrary, the depositions filed in the instant proceedings as well as exhibit No. 2, the agreement of May 2, 1963, wherein McGinnis gave notice of his intention to exercise his option, raise the question as to whether or not he was more than an optionee, having possibly[***17] acquired an equitable interest.

   Also, we become concerned when we proceed beyond the ambit of appellee's efforts to perfect the title he obtained from Queen, and assess his efforts to defeat McGinnis' contract with the Rogerses.  Assuming arguendo that as a result of the suit of [*402] Clarke v. Rogers (sic), appellee's title was established as the valid one, there should have been little else to concern him. Yet, he was sufficiently concerned as to induce the Rogerses to join into an agreement whereby his nominee and the Rogerses' nominee would each become [**69]vested with an undivided one-half interest in the property.

   The record likewise reveals that Raphael Urciolo acting for the Rogerses and knowing of the agreement he had made with appellee on behalf of the Rogerses possibly misled Dixon, as Dixon contended, in the exchange of conversation he had with him in early March 1965, prior to the expiration date of March 23, 1965, when in reply to Dixon's recitation of the flaws found in the Rogerses' title, said: "Well, send me a copy of the memorandum [O'Ferrall's title report] and I'll be in touch with you." Urciolo subsequently not only failed to get in touch[***18] with Dixon but he avoided further contacts.  Although the learned chancellor did not place such a connotation on Urciolo's statement, as it appeared in the depositions, yet, we think that it was a matter upon which further testimony might well have been developed at a hearing.

   The chancellor in his opinion stated:
 
"At most, Urciolo's failure to contact Dixon, who is an experienced real estate operator, showed a refusal to discuss the granting of the extension of almost fourteen months as requested.  In fact, Urciolo's whole actions indicated to anyone of reasonable prudence that such an extension would be refused.  Silence cannot be construed as to be consent unless the party has a duty to speak, which duty rests upon knowledge of an undisclosed fact or where one has full knowledge of his rights but he had an intent to mislead or deceive and the other party is misled by his attitude.  Milburn vs. Michel, 137 Md. 415."

   In the instant case Urciolo knew of the contract between his clients and McGinnis, the equity suit of Clarke v. Rogers (sic), and the agreement between his clients and appellee, whereby the nominees of the Rogerses and appellee were shortly to record[***19] a deed vesting each with an undivided one-half interest in [*403] the property.  In Milburn v. Michel, 137 Md. 415, 112 A. 581 (1921), this Court found that a wife was not estopped from claiming an outstanding title in herself merely because of her presence when her husband asserted his right to contract for the property free of his wife's signature. In that case the Court found that both parties had equal means of knowledge and both parties were equally without knowledge.  In the instant case Urciolo had full knowledge of all the facts of the rather devious transaction.  Dixon and the appellants had none.  To be sure a more recent run-to-date of the title would have revealed the equity suit of Clarke v. Rogers (sic); however, the appellants had previously, in good time and good faith, had a competent title search made at which time the equity suit had not been filed.  This Court in Milburn, supra, quoting from 11 Am. & Eng. Ency. of Law, 427, stated at p. 421:
 
"It is not necessary that the duty to speak in such cases should arise out of any agreement or rest upon any legal obligation in the ordinary sense; it arises whenever the principle of natural justice[***20] requires the disclosure."
 
Cf. Bean v. Steuart Petroleum, 244 Md. 459, 224 A. 2d 295 (1966).

   In Machovec v. Shipley, 171 Md. 339, 189 A. 223 (1937), the appellees purchased the stock and fixtures of a lunchroom from the appellants.  At the time of the sale the appellees stated that they would not purchase the business unless they could obtain a lease and one was executed for a five-year period with extension provisions.  At the time of the execution of the lease, the appellant's father owned a life interest in the property and the appellant was the remainderman. The record title also showed the appellant as remainderman. However, at the time of the negotiations for the lease the question was asked if the appellant's father was the sole owner to which the appellee replied in the affirmative.  Later, after the appellant's father died, she endeavored to increase the rent provided for in the lease; [**70] and upon the appellee's refusal to pay the increased rent, filed an ejectment suit.  This Court, in affirming the lower court's verdict for the appellees, quoted from Knouff v. Thompson, 16 Pa. 357, 364 (1852), stating at p. 345:
 
[*404] "The party[***21] who has placed his written title on record has given the notice which every person is bound to know and respect.  The law does not require him to go further.  But if he speaks or acts, it must be consistent with his record title."

   In the instant case, Urciolo's reply to Dixon's anxiety about the flaws in the Rogerses title was less than frank.  Urciolo told him to send him the attorney's memorandum on it and he would get in touch with him.  Yet, he knew at that time that a court of equity had declared his clients' title null and void. In addition he knew that his clients had consummated an agreement whereby they would retain an undivided one-half interest in the property; the whole title to which ultimately became vested in Urciolo's wife and two other clients.

   Had Urciolo, the Rogerses' attorney, disclosed the true status of the title to the property to Dixon, attorney for the appellants, it may well have been that the appellants would have elected to consummate the transaction with the Rogerses and rely on the Rogerses claim of title by adverse possession. In any event there was too much in dispute here to be put to rest by summary judgment.

   We are of the opinion that when[***22] the chancellor granted the appellee's motion for summary judgment, the posture of the case was such as to reveal that a genuine dispute existed as to material facts as outlined in this opinion, and, accordingly, the case must be reversed and remanded for further proceedings.

   Order reversed and remanded for further proceedings consistent with this opinion, appellee to pay the costs. 

BILLINGS, et al. v. SHAW 
No. 511, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 335; 231 A.2d 12; 1967 Md. LEXIS 369

 June  30, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed, with costs.

COUNSEL: John T. Enoch, with whom were Goodman, Meagher & Enoch on the brief, for appellants.

   James L. Wray, with whom were Wray & Serio on the brief, for appellee.

JUDGES: Hammond, C. J., and Marbury, Oppenheimer, Barnes and Finan, JJ.

OPINIONBY: PER CURIAM

OPINION: [*336] [***2] [**12] The appellant, Billings, a boy of ten who was struck while riding his bicycle by the automobile of the appellee, Shaw, lost his suit for damages when the trial judge ruled that he was guilty of contributory negligence as a matter of law.  We find that ruling to have been correct.

   Shaw, called as a witness by Billings, says he was driving his car south on Route 170 in Anne Arundel County at thirty-five miles an hour in a fifty-mile zone when he observed, some five hundred yards ahead of him, two boys on bicycles, also riding south.  One was on the gravel shoulder to his right, the other, the appellant, was also off the road on that side but on what was described as "not the blacktop area.  That little part like a sidewalk." Shaw pulled slightly to his left, almost to the center line, and as he approached Billings "touched" his horn.  Billings, without looking back, stood up on the bicycle pedals and "shot" the bicycle to the left across the road.  Shaw swerved to his left and stopped on the extreme left of [**13] the road several feet beyond the point where the right front fender of his car and Billings' bicycle came into contact.

   It is clear to us that the proximate[***3] cause of the accident was Billings' sudden and not to be anticipated lunge into the roadway.  The motor vehicle laws as to the rules of the road apply to a cyclist, Code (1957), Art. 66 1/2, § 184 (a).  Section 219 (b) of Art. 66 1/2 provides inter alia that "* * * the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal * * *." Billings was old enough to be bound by the rules of the road and to be guilty of contributory negligence, which would bar his recovery as a matter of law.  Kane v. Williams, 229 Md. 59. See also Rodriguez v. Lynch, 246 Md. 623, 229 A. 2d 83.

   Judgment affirmed, with costs. 

STEHLE EQUIPMENT COMPANY, INC. v. ALPHA CONSTRUCTION &DEVELOPMENT COMPANY 
No. 494, September Term, 1966
 
Court of Appeals of Maryland
 
247 Md. 210; 230 A.2d 654; 1967 Md. LEXIS 354

 June  26, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  compressor, bailee, bailment, reasonable care, gear, bailor, trier, parking lot, hire, precautions, damaged, good condition, surprise, deceit, rented, failure to return, failed to exercise, evidence to prove, evidence produced, present evidence, probative weight, probative value, retaining wall, direct attack, accounted, delivery, contradicted, speculation, disregarded, hostility

COUNSEL: Donald L. Merriman, with whom were Merriman & Merriman on the brief, for appellant.

   Barry I. Robinson, with whom were Sullivan & Pittler on the brief, for appellee.

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

OPINIONBY: MARBURY

OPINION: [*212] [**655] Plaintiff-appellant, Stehle Equipment Company, Inc., in the business of renting heavy equipment, rented an undamaged Le Roi compressor to Alpha Construction & Development Company, defendant-appellee.  In the course of its use, the compressor was damaged, and appellant sued appellee in the Circuit[***4] Court for Anne Arundel County to recover the damages. Appellee moved for a directed verdict at the close of the appellant's case and renewed its motion at the close of the entire case on the ground that no bailment was established.  The court denied both motions, but granted judgment (without stating its grounds for decision, none having been requested under Maryland Rule 18 c) in favor of the appellee at the conclusion of the case after appellee declined to offer evidence.  From this judgment, the equipment company has appealed.

   On May 14, 1964, appellant rented a Le Roi compressor to appellee to be operated and used by appellee at one of its job sites in Annapolis.  The compressor was self-propelling with four forward gears and one reverse gear, which were marked on the top of the gear shift.  To engage the gears it was necessary to depress the clutch, and to get it into reverse it was necessary to depress a button on the gear shift while depressing the clutch.  The same motor that propelled the compressor was used to compress air.  At about 2:00 p.m. on the day it was damaged, the compressor was driven some eight blocks from St. John's College in Annapolis, where it had been used[***5] without difficulty at various locations for a week, to a parking lot on Cathedral Street, where it was to be used that evening.  The eight block trip was made without incident. Appellant's agent parked the [*213] compressor on a parking lot which was reached by driving up a ramp.  The parking lot was fairly level, and on one side there was a retaining wall which was twelve feet high, but the top of which was only three or four inches above the surface of the parking lot. The agent of the appellant backed the compressor up to the retaining wall so that its rear wheels were within three to four feet from the wall with the body of the compressor only one foot from the wall.  The agent took the compressor out of gear, applied the brakes, and turned the ignition off.  The keys to the compressor were given to appellee's agent, who was on the premises.

   Appellant called to testify the employee of appellee, Louis F. Adams, who operated the compressor at the time it was damaged. The employee testified that prior to using it, he "checked the tractor [the compressor] out," laid out the air hose, attached an air gun to the hose, put chocks behind the rear wheels, checked to make sure[***6] the gears were disengaged, found them to be in neutral, and made sure the brakes were locked.  The employee then climbed upon the machine; and as soon as he started it, "the tractor just went right back over the wall * * *."

   Appellant was notified that the compressor was damaged. Upon investigation it was found that the compressor was teetering over the wall, with its housing broken.  Appellant filed a claim with its insurance carrier and was paid $1800 pursuant to the terms of the policy.  Appellant testified that the total damage amounted to $3,000 to $4,000.

   In its brief, appellee conceded that there was a bailment for hire which imposed upon the bailee an obligation to exercise ordinary care and diligence in using and safeguarding the bailed property and to return it in as good condition, ordinary wear and tear excepted, as when it was received.  Fox Chevrolet Sales v. Middleton, 203 Md. 158, 99 A. 2d 731; Goldberg v. Kunz, 185 Md. 492, 45 A. 2d 279. Once appellant proved the delivery, the bailment for hire, and the unexplained failure to return the property in its condition when received, a prima facie case of negligence was made out.  However, where the loss was[***7] accounted for [**656] as having been occasioned by a cause which would excuse the bailee, the defense was complete unless the bailor [*214] followed by showing that the bailee, by the exercise of ordinary care, might have avoided the injury.  Fox Chevrolet Sales v. Middleton, supra.

   Appellant proved the bailment and failure to deliver, but it called as its witness Adams, the employee of the adverse party, who testified to the precautions which he took before he turned on the ignition.  The issue of whether appellee exercised reasonable care, was for the trier of the facts.  Fox Chevrolet Sales v. Middleton, supra. Although the benefit of a memorandum of the grounds for the decision is lacking, it is apparent that the court, as the trier of the facts, found that Adams had exercised reasonable care in preparing the compressor for safe use and in starting it, and that the damages were not the result of any action or inaction on the part of the appellee-bailee.  See Darby Co. v. Hoffberger, 111 Md. 84, 73 Atl. 565.

   Appellant contended that the lower court should have disregarded the testimony of one of its own witnesses, Adams, because it was negative, was not followed[***8] by corroboration, was completely lacking in probative value, and constituted mere speculation. Since it produced Adams as its witness, appellant cannot make a direct attack upon his veracity in the absence of surprise, hostility or deceit. Proctor Electric Co. v. Zink, 217 Md. 22, 141 A. 2d 721. Appellant has alleged no surprise or deceit and knew that Adams was at least an adverse witness.  Adams' testimony was not contradicted by evidence to prove that appellee failed to exercise reasonable care or that appellee was negligent in failing to take precautions other than those which were taken.  The probative weight of the evidence produced was for the trier of the facts. Proctor Electric Co. v. Zink, supra. Since appellant did not present evidence other than Adams' testimony with reference to the operation of the compressor, and since the court's apparent finding that the bailee had exercised reasonable care was not clearly erroneous, the judgment must be affirmed.  Rule 886 a.

   Judgment affirmed, with costs. 

HOUSE v. JEROSIMICH 
No. 365, September Term, 1966
 
Court of Appeals of Maryland
 
246 Md. 747; 230 A.2d 282; 1967 Md. LEXIS 495

 June  1, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  truck, primary purpose, conclusive, meat, uncontradicted, resumed, funeral, dropped, driven, luncheon meat, driving, driver, trip, proceeded, daughter, deliver, struck, lumber, block, lunch, drive, drove, scope of employment, legally sufficient, returned home, misunderstanding, contradicted, rebuttable, transport, transportation

COUNSEL: Bayard Z. Hochberg and Daniel A. Bronstein, with whom was Paul Berman on the brief, for appellant.

   Joseph I. Pines, with whom was Max R. Israelson on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, [***4] Marbury, Barnes, and Finan, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*749] [**283] George Jerosimich, plaintiff-appellee, brought suit in the Circuit Court for Anne Arundel County to recover damages sustained when the parked truck in which he was seated was struck in the rear by an automobile owned by Edward J. House, defendant-appellant, and operated by his wife, Alice M. House, codefendant.  A jury found for the plaintiff against both defendants; and from the judgment on the verdict, only the husband has appealed. 

   On February 20, 1963, after 8:00 a.m., appellee was seated in his truck which was parked on the shoulder of Solley Road in Anne Arundel County when the truck was struck in the rear by appellant's automobile driven by his wife.  Prior to the accident, appellant had been driven to meet, in the Curtis Bay section of Baltimore City, a person who was to drive him to work.  After leaving appellant at the meeting place, his wife drove to Brooklyn to purchase meat for their daughter's lunch. She then returned toward her home on the same road she had taken to deliver her husband.  She was approximately one block from their home when the[***5] collision occurred.

   Appellant contended that the trial court erred in not granting a motion for a directed verdict at the close of all the evidence in that allegedly there was no evidence legally sufficient to entitle a jury to find the wife the agent of the husband.  Appellant also contended that the trial court erred in its instructions on the issue of agency.

   The husband-owner of an automobile is liable for his wife's negligence in the use of his automobile when she is acting as his servant or agent.  Talbott v. Gegenheimer, 245 Md. 186, 225 A. 2d 462; Charles v. Baltimore, 138 Md. 523, 114 Atl. 565. In determining whether the wife is the agent of her husband, the ordinary rules of agency are applied.  Charles v. Baltimore, [*750] supra; 6 Blashfield, Automobile Law and Practice, Section 255.1, page 408.  The driver of an automobile is presumed to be the agent of the owner and to be acting within the scope of employment. State, Use of Shipley v. Walker, 230 Md. 133, 186 A. 2d 472; Hoerr v. Hanline, 219 Md. 413, 149 A. 2d 378. See also Pollock v. Watts, 142 Md. 403, 406-07, 121 Atl. 238. This presumption is rebuttable, but evidence required to[***6] destroy it as a matter of law must be both uncontradicted and conclusive; and if the evidence as to agency is contradicted, or if uncontradicted is not conclusive, the question of agency is for the jury. State, Use of Shipley v. Walker, Hoerr v. Hanline, both supra.

   The evidence, in a light most favorable to the appellee, was sufficient to take the question of the wife's agency to the jury.  The wife testified that at his request she drove her husband to meet the person who was to drive him to work.  Counsel for appellant admitted in oral argument before this Court that if the accident had occurred while the wife was driving her husband to the Curtis Bay area, the wife could have been found to have been the agent of the husband. See Slutter v. Homer, 244 Md. 131, 223 A. 2d 141.

   [**284] Appellant contended that the primary purpose of the wife in using her husband's automobile was for her own purposes and that once she had dropped her husband off and proceeded to purchase the luncheon meat for the daughter, the agency was terminated.

   Assuming without deciding that the wife was not the agent of her husband when she proceeded to purchase the luncheon meat, see Talbott [***7]  v. Gegenheimer, supra, the evidence was not conclusive and was in conflict on the question whether the primary purpose of the wife was the transportation of the husband to meet the person who was to drive him to work or the purchase of luncheon meat. Compare Fletcher v. Meredith, 148 Md. 580, 129 Atl. 795; Pollock v. Watts, supra.

   In Fletcher, a case tried without a jury, the plaintiff was struck by a truck owned by defendant and operated by A. A asked defendant if defendant would lend him the truck belonging to the firm to go to the funeral of an uncle.  Defendant said that the truck could not be spared, but there was a load of lumber [*751]to be delivered in the same direction A would have to go to get to the funeral. Defendant said that if A was willing to deliver the lumber, he could use the truck to go to the funeral afterwards.  A delivered the lumber and went to the funeral, and on his return, the accident occurred.  Recovery was sought on the theory that A had finished his own use of the truck and had returned to the employer's business by returning to the place where the truck was kept.  The Court held, in affirming the lower court, that upon the testimony[***8] it could be said the whole trip originated as one on personal business of the employee and held that under the circumstances the employer was not liable.

   In Pollock, a case tried before a jury, the husband was driving the automobile of his wife at the time of the accident.  The husband was going to a cemetery to visit his mother's grave.  While on the way, he dropped his wife off at his sister's and digressed from his course to the cemetery in order to get his brother.  Shortly after this the accident occurred.  The husband requested the trial court to instruct the jury that there was no evidence legally sufficient to show that the husband was the agent of the wife.  The trial court refused the instruction.  In reversing, the Court held that the evidence was uncontradicted that the primary purpose of the husband was to serve his own mission and in no way was the visit to his mother's grave for the business of the wife.

   In the present case, the wife stated on direct examination at the trial in answer to a question concerning where she was going that morning, "I took my husband into Curtis Bay and I stopped at Giles Food Market in Brooklyn, Patapsco Avenue, wherever it's at, Giles[***9] Food Market." Also, the wife, in answering a question whether she intended to go to the store if she had not taken her husband to work, said, "Oh, I had to get lunch meat for my daughter's lunch because I work and I didn't get home from work until 12:30 and the stores were closed." No other testimony on this subject was given.  The question of agency, under the circumstances, was clearly one for the jury.

   Once it was determined that the wife's primary purpose in using the automobile was to transport her husband, the fact that she dropped him off and then used the automobile for her [*752] own purposes does not forestall a finding that she resumed her agency when she returned home on the same route over which she had driven her husband and was within one block of their home when the accident occurred.  Erdman v. Horkheimer & Co., 169 Md. 204, 181 Atl. 221; Mech v. Storrs, 169 Md. 150, 179 Atl. 525; Regal Laundry Co. v. Abell Co., 163 Md. 525, 163 Atl. 845. The question whether she had resumed the agency at the time of the accident was under the circumstances of this case a question for the jury.  Erdman v. Horkheimer & [**285] Co., supra. See Fletcher [***10] v. Meredith, supra.

   Appellant contended that even if the wife was her husband's agent at the beginning of the trip, the agency did not include the returning of the car to the home.  Appellant cited two cases, Graham v. McCord, 384 S. W. 2d 897 (Tex. Civ. App. 1964), and Mitchell v. Ellmaker, 134 Pa. Super. 583, 4 A. 2d 592 (1939), both of which are not decisions of the highest courts in the respective states and are clearly distinguishable on the facts.  Another case cited by appellant, Pollock v. Watts, supra, already has been distinguished.

   The trial court gave only one instruction on the issue of agency.  The instruction was:

   "The Court further instructs you that if you find for the plaintiff, and further find the defendant, Alice M. House, was on the business of or acting as an agent for her husband, Edward House, at the time of the collision in evidence, then your verdict must be in favor of the plaintiff against both defendants."

   The trial counsel for appellant excepted to the instruction on agency, but made no request for instructions on this issue.  The exception was as follows: "The defendant excepts to the granting of Plaintiff's Prayer Request for [***11]Instruction No. 1, because it feels that the facts show that the driver of the car was not the agent of her husband."

   Assuming that the exception otherwise complied with Maryland Rule 554 d, appellant's contention that the instruction was too general and left the jury with no guide lines to find agency is without merit, in light of the fact that appellant did not except to the court's failure to define agency and of the fact that [*753] a reading of the instructions as a whole shows there could have been little chance for a misunderstanding by the jury.  Cf. Simco Sales v. Schweigman, 237 Md. 180, 205 A. 2d 245. The grounds stated for the exceptions dealt with the insufficiency of the evidence to show agency.  However, as pointed out above, the evidence was sufficient to take the case to the jury which, by its verdict, implicitly found that agency existed.

   Judgment affirmed, with costs. 

CUSHMAN v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 306, September Term, 1966
 
Court of Appeals of Maryland
 
246 Md. 525; 228 A.2d 825; 1967 Md. LEXIS 470

 May  3, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Case remanded under Rule 871 a without affirmance or reversal for further proceedings not inconsistent with this opinion, costs to abide the result.

CORE TERMS:  zone, unit price, specific performance, renegotiation, laches, bid, supplemental, calendar year, lump sum, collection, specifications, demurrer, contract price, Maryland Rule, supplemental agreement, original contract, authorized agent, summary judgment, total sum, computation, accomplish, collecting, renewal, bidding, notice, marked, decree

COUNSEL: William J. Boehm, for appellant.

   Robert E. Dammeyer, Deputy Solicitor, with whom were Bennett Crain, Jr., County Solicitor, and Vincent A. Mulieri and Joseph Charles Jacobs, Assistant County Solicitors, on the brief, for appellee.

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

OPINIONBY: HAMMOND

OPINION: [*526] [**826] This appeal is from a decree dismissing a bill of complaint which sought specific performance of a contract between the County Commissioners of Anne Arundel County, the appellees, and Frederic Cushman, the appellant, under which Cushman in return for a named lump sum to be paid by the County agreed [*527] to collect refuse, including garbage, rubbish and ashes, from Zone 7, a specified area in the northern part of the County, for one year.

   It appears from the allegations of the bill and the exhibits that in the fall of 1959 the County solicited[***3] bids for the collection of refuse "in the various areas of the 3rd and 5th Election Districts." The specifications provided for the methods of collection and disposal to be followed and required that the bidder "shall submit his bid on a lump sum price to cover all of the areas specified, for collecting and disposing of the refuse for a period of one year from January 1, 1960, through December 31, 1960, with renewals as specified in paragraph six of Contract." It was also provided that the "Contract will be awarded to the lowest bidder unless in the opinion of the County Commissioners he is not able to provide the necessary equipment or carry out the terms of the specifications."

   It further appears that Cushman entered into the performance of the contract on January 1, 1960, and that on February 19, 1960, the County and he entered into a supplemental agreement which recites the basic contract and that the parties "have entered into negotiations under the provisions of Paragraph 6, page 10, thereof n1 for the addition of new units and/or areas to be served in the zone covered by the aforesaid contract," and provides as follows:

   [*528] "Now, therefore, it is agreed between[***4] the parties hereto as follows:

   a. The aforesaid contract is to remain in full force and effect for the calendar year 1960, with amendments thereto as set forth in sections b. and c. hereof.

   b. Paragraph 2, page 9 of said contract is amended to provide an additional payment to the party of the second part in the total sum of ($3521.70), for the additional work to be performed beginning January 1, 1960, and terminating December 31, 1960.

   c. Paragraph 3, page 9 of said contract is amended to include the following areas as part of the specifications referred to therein:

   258 units at $13.65 per unit . . . $3521.70"

n1 Paragraph 6 provides: "This contract shall be automatically renewed for four (4) successive years upon the same terms and conditions as set forth herein provided that either of the parties can terminate the contract at the end of any calendar year, by giving notice thereof in writing to the other party by mail or delivery to the address specified herein, not later than four (4) months before the end of that year.  Right to renegotiate this contract shall be reserved to either of the parties hereto upon written request delivered to the place of business of the other party not later than four (4) months prior to the end of any calendar year for the purpose of adjusting the compensation hereunder for the number of properties served in existing zones, or to include new areas to be served in such zones. Such adjustment shall be at the same rate per collection unit as applies under this contract.  The contract for each renewal period shall be executed and performance bond furnished not less than thirty (30) days prior to the beginning of each annual period."

[***5]
 
   Nine similar supplemental agreements were entered into between the County and Cushman covering the years 1961, 1962, [**827] 1963 and 1964, by which a total of 1288 new units which had accrued in Zone 7 were paid for at the unit price of $13.65 each.

   The bill alleges that the first supplemental agreement resulted from a demand by Cushman that he be paid for 258 new houses built in Zone 7 after January 1, 1960, which he began to service and:

   "3. That as a result of the demand by the Complainant, the Respondent arbitrarily established a figure of $13.65 for each new additional unit and paid the Complainant accordingly.  Your Complainant, at that time, protested the $13.65 unit computation and stated that the method by which the Respondent determined the $13.65 was in error (apparently using a figure of 3908 units in Zone 7 divided into the base price).  Your Complainant was then advised by the Respondent's Director of Waste Collection, an authorized agent of the Defendant, that a comprehensive and accurate count survey will be made to determine the exact number of units at the time of the execution of the Contract in order to determine the correct unit price and [*529] [***6] in the event of any inaccuracy, adjustment will be made to compensate for any difference.

   "4. That during the years 1961, 1962, 1963 and 1964 the same incorrect unit price was used by the Respondent in computating the additional units that were added to the contract over and above the objection to the correctness of unit price by the Complainant but due to the fact that the Respondent was changing Waste Collection Directors, approximately a new one each year, the audit or accurate count survey was not completed until November 1964, at which time the Respondent refused to inform the Complainant as to the results of the accurate survey and at which time the Complainant had entered 1288 new units to the original Zone 7 total.  (Refer to Exhibit No. 3).  [The initial supplemental co-agreement]

   "5. During the month of December 1964, the Respondent, by its advertisement for bidding purposes of a new contract for five additional years beginning January 1, 1965, stated that the unit count of Zone Seven (7) was 4220 units (this was determined by the accurate physical count survey completed November 1964).  At that time, the Complainant subtracted the additional units he had served (1288) [***7] from the accurate count of 4220 units, leaving a correct and accurate count at the time of the contract's inception, January 1, 1960, as 2932 units instead of 3908 as erroneously represented by the Respondent; and that by dividing the 2932 into the base contract price of $53,328.00, the contract unit price should have been $18.11 and said $18.11 is the figure contemplated by the original contract dated January 1, 1960, attached hereto and marked Exhibit No. 1, paragraph 6, page 9.

   "6. That your Complainant feels and therefore avers that the Respondent failed to pay him approximately $4.46 for each new additional unit from the period January 1, 1960 to December 31, 1964.  That the total sum due is $19,809.09 under terms of original contract and attached herewith and marked Exhibit No. 2 and [*530] prayed to be taken as a part hereof is an accurate and complete breakdown of the computations showing the amount of underpayment."

   The County demurred to the bill on the grounds that on its face it showed (a) that the parties "entered into contracts subsequent to the contract of January 1, 1960, which subsequent contracts superseded the contract of January 1, 1960," and (b) [***8] that Cushman was guilty of laches. The County also answered, reiterating the first ground of its demurrer and admitting that 1288 new units had been added to Zone 7 between 1960 and 1964, and that "a physical survey of Zone Seven in late 1964 revealed a count of 4220 units * * *."

   [**828] A hearing was held before Judge Childs.  No testimony was taken and no stipulation of facts entered into.  Judge Childs did not rule on the demurrer but after noting that certain facts were denied but that "in other respects the parties seem to agree upon the facts and the case was presented on argument without testimony," dismissed the bill.  His stated reasons were one, that Cushman's protest to the $13.65 unit price "was insufficient under the terms of the contract since renegotiation could be approved only by the County Commissioners and verbal notice to the Director of Waste Collection was by the terms of the contract not notice to invoke renegotiation," and two, that Cushman was guilty of laches because his initial bid caused the County to set the tax rates "upon the costs established by bidding," and "there is no present means for the County now to go back and reassess the property owners[***9] on the basis of a new rate based upon mistake."

   The decree passed cannot stand.  The judge made no formal ruling as to the demurrer. The conclusions which led to the dismissal of the bill were based on fact or inferences from facts, some of which were in dispute.  What we held in Waldman v. Rohrbaugh, 241 Md. 137, 139, is apposite here:

   "We think that the substantial merits of the case cannot be determined and the purposes of justice advanced unless the case is remanded under Maryland Rule 871 a for further proceedings.  The entry of judgment was erroneous in the posture of the case when [*531] it was entered.  * * * The motion should not have been treated as one for summary judgment because the facts were not before the court by deposition or otherwise and it was not agreed that there was no dispute as to material facts as contemplated by Maryland Rule 610 if there is to be a summary judgment."

   There are certain undisputed facts in the present case.  The original bid called for and accepted by the County was on a lump sum, not a unit, basis. Nevertheless, the contract necessarily contemplated a determination of the number of units as of the time of the bid, for[***10] the unit price was to govern payments for additional units.  The 1964 survey showed 4220 units in Zone 7 and 1288 new units had come into Zone 7 after January 1, 1960, so that initially Zone 7 contained 2932 units; 2932 divided into the contract price of $53,328 gives a unit price of $18.11.  The County in its brief claims it figured Zone 7 contained 3908 units on January 1, 1960, and 3908 divided into $53,328 gives the unit price of $13.65.

   Without the taking of testimony it cannot be determined whether there was a mutual or an unilateral mistake in the use of the unit figure of $13.65 in the supplemental agreements or whether, whichever the real mistake, there should be reformation of the contract and the supplements, if that is asked for in amended pleadings.  Pertinent also might be a determination of whether an authorized agent of the County led Cushman into acting as he did in executing the supplements by binding promises to accomplish an accurate count of the number of units with adjustment of the unit price to follow.  Significant, too, would be whether Cushman either did know or should have known the actual number of units when he signed the various supplements or whether[***11] one of the County's other theories is correct.  The County says: "If there was a mutual mistake as to the actual number of units existing as of January 1, 1960, the Appellant himself was the first to know about it [since he could have made an actual count in the process of collecting the refuse], yet he never asked for renegotiation. Why?  Appellee was obviously paying the Appellant for more units than he was servicing."

   [*532] We do not agree with the trial judge that Cushman is barred from relief because the method set out in the contract for renegotiation was not followed precisely.  The parties mutually chose the method of supplemental agreements to accomplish the purposes and results contemplated by the contract which was, as amended, continued [**829] in force and this they were free to do.  Nor do we agree that laches can be found on the record before the trial judge.  We think the County, having called for a lump sum contract which contemplated on the County's part either existing knowledge or prompt ascertainment of the number of existing units to be serviced, cannot say that it was misled by what Cushman alleges was temporary and tentative acquiescence in the[***12] County's estimate of the number of units or by his delay in asserting a higher unit price. It may be, however, that Cushman was guilty of laches or is estopped on facts which the County will have an opportunity to establish on remand.

   Case remanded under Rule 871 a without affirmance or reversal for further proceedings not inconsistent with this opinion, costs to abide the result. 

ALLSTATE INSURANCE COMPANY v. HUMPHREY, et al. 
No. 329, September Term, 1966
 
Court of Appeals of Maryland
 
246 Md. 492; 229 A.2d 70; 1967 Md. LEXIS 466

 May  2, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed; costs to be paid by appellant.

CORE TERMS:  coverage, regularly, insured, non-owned, named insured, household, lent, regular use, insurance policy, ambiguous, ambiguity, unrestricted, recurring, emergency, intervals, driving, driven, casual, lived, conclusion of law, general meaning, new car, interchangeably, construed strictly, insurance policies, permitted use, undisputed facts, short period, right to use, preparing 

COUNSEL: F. Gray Goudy, with whom was Herbert Burgunder, Jr., on the brief, for appellant.

   Alfred J. O'Ferrall, III, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on[***4] the brief, for the Unsatisfied Claim and Judgment Fund Board, part of appellees; and William A. Franch, with whom were Wray & Serio on the brief, for Floyd Junior Humphrey, other appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ. Oppenheimer, J., delivered the opinion of the Court.

OPINIONBY: OPPENHEIMER

OPINION: [*494] [**71] The question before us, on undisputed facts, is the meaning of the clause of an insurance policy providing coverage to any [*495]relative of the named insured with respect to a non-owned private passenger automobile "not regularly furnished for use of such relative." The appellee, Floyd Junior Humphrey (Floyd) instituted suit in the Circuit Court for Anne Arundel County against the appellant, Allstate Insurance Company (Allstate) to determine whether Floyd was covered by Allstate's insurance policy, issued to Lester C. Hause (Hause), Floyd's father-in-law, with whom Floyd and his wife were living at the time of the accident.  The policy was issued to Hause, who was the "named insured." The policy described an "owned automobile" owned by Hause, which is not the automobile here involved.  It is conceded by Allstate [***5]that, within the meaning of the policy, Floyd was a relative of Hause, the named insured, and was operating a "non-owned" automobile.

   The accident which gave rise to this litigation occurred on October 1, 1964, in Baltimore.  Floyd was operating an automobile owned by his brother, James, who lives in Parsons, West Virginia.  Floyd and his wife had been living in Baltimore with the Hauses since September 4, 1964.  Floyd was working in Glen Burnie, Anne Arundel County.  On September 28, Floyd and his wife drove to Parsons to visit James, in an automobile which Floyd owned.  Floyd's car became disabled in Parsons, and he took it for repairs to a garage in that city.  He was told the repairs would take about three days.  Floyd had to return to work immediately.  He told James of the difficulty and was given permission [**72]to drive James' 1958 Plymouth.  Floyd told James he would have the car back in two weeks.  The accident occurred four days after Floyd had borrowed his brother's car; at the time, Floyd was driving that car from work to the Hause residence.  No restrictions had been imposed by James upon Floyd's use of the car; he used the car as he would have used his own.  Floyd[***6] had driven his brother's car on only one previous occasion, for a week, six or seven months before the accident.

   Floyd was sued as a result of the accident.  Allstate was given notice, but denied any coverage under its policy and refused to defend the case, on the ground that, at the time of the accident, Floyd was driving James' automobile, which had been regularly furnished for Floyd's use.  Judge Childs, in the court below, [*496] noted that it was agreed by all the parties that the facts were not in dispute, and, on the facts, held that the automobile had not been regularly furnished for Floyd's use, within the meaning of the policy, and that, accordingly, Floyd was covered.

   On this appeal, Allstate contends that the policy is not ambiguous and that its construction is therefore a matter of law for the courts.  It contends further that, under the authorities, the policy should be construed to mean that an automobile is "regularly furnished" for use where the bailee has a blanket permission to use the loaned vehicle, uses it as his own during the term of the bailment and has it continuously available for his use during the period. Allstate submits that it is the unrestricted[***7] use of the vehicle which is determinative and that the duration of the period in which that use is permitted is immaterial.

   "It is well established that the provisions of insurance policies, prepared as they are by the insurance companies, are, in the case of ambiguities, to be construed strictly against the company preparing the policy and in favor of the insured. Ebert v. Millers Fire Insurance Company, 220 Md. 602, 155 A. 2d 484 (1959)." Grain Dealers Mut. Ins. Co. v. Van Buskirk, 241 Md. 58, 71, 215 A. 2d 467 (1965). Absent an ambiguity, Maryland has not adopted the rule followed in many jurisdictions that an insurance policy is to be most strongly construed against the insurer.  Ebert, supra, at 220 Md. 611.

   We agree with Allstate that the phrase of the policy here involved is not ambiguous in the sense that its general meaning is uncertain or that it can be construed in alternate ways.  That a term cannot be precisely defined so as to make clear its application in all varying factual situations does not mean that it is ambiguous. We agree further that, as Chief Judge Brune said for the Court in Ebert, where the record presents no dispute as to the facts which [***8]are pertinent to the question of coverage, the question is "one of the construction of the contract in the light of the language employed in the contract, the subject matter and the surrounding circumstances.  When these are clear, it is the province of the court, rather than of the jury, to construe the contract." 220 Md. at 610. See also Keyworth v. Industrial Sales Co., 241 Md. 453, 458, 217 A. 2d 253 (1966).

   [*497] We do not agree, however, that the phrase "not regularly furnished for use" is to be given the restrictive meaning for which Allstate contends. Under that contention, the element of the period for which the use of the non-owned automobile is furnished would be eliminated from consideration in determining whether the exclusion from coverage is applicable to the particular facts.  Such a conception is not in accord with the general meaning of the words.  Black's Law Dictionary, 4th ed. (1951), defines the word "regular" as "steady or uniform in course * * *, the antonym of 'casual' or 'occasional.'" The New English Dictionary (Oxford 1914) defines the word as follows: "characterized [**73] by the presence or operation of a definite principle; marked[***9] or distinguished by steadiness or uniformity of action, procedure, or occurrence;" "recurring or repeated at fixed times;" "taking place or recurring at short uniform intervals;" "habitually or customarily used * * *;" "observing fixed times for, or never failing in, the performance of certain actions or duties." Webster's 3d New International Dictionary (1961) gives the meaning of the word as: "steady or uniform in course, practice, or occurrence;" "steadily pursued;" "functioning at proper intervals;" "recurring * * * at stated, fixed, or uniform intervals." The New Century Dictionary (1953) defines the word as: "performing certain recurring actions or duties without failure, or observing fixed times for the performance of these."

   There are many decisions in other states which have considered the phrase involved in this case, and, in the majority of them, the period of time for which the use of the automobile was given is considered as one of the elements which determine whether or not there is coverage. Appleman states: "The words 'regular use' suggest a principal use as distinguished from a casual or incidental use." 7 Appleman Insurance Law and Practice § 4455 (1962). [***10]See 7 Am. Jur. 2d Automobile Insurance § 107 and Annot., "Exclusion from 'drive other cars' provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household," 86 A.L.R.2d 937, 951-56 (1962), and cases therein cited.  If Allstate had wished, it could have incorporated in the policy the restrictions on the meaning of "regularly used" [*498] which it now asks the Court to find implied in the language actually used.  We hold that the period and frequency of the permitted use are elements to be considered in the determination of whether, on the facts, there was coverage under the policy.

   That determination, in favor of Floyd, was made by Judge Childs as a conclusion of law on the undisputed facts. In many cases in other jurisdictions, the question has been treated as one of fact, or one of mixed law and fact, in which the presumption of the correctness of the decision of the trier of the facts applied.  See cases cited in 86 A.L.R.2d, 951-56, supra.  We find it unnecessary to review the decisions on this point.  Here, there was no evidentiary dispute, no question of the credibility of the witnesses, [***11]no factual inference to be drawn.  Under these circumstances, like Judge Childs, we treat the question of coverage as one of law.  See Ebert, supra, and Giokaris v. Kincaid, 331 S. W. 2d 633 (Mo. 1960).

   In the leading case of Aler v. Travelers Indemnity Co., 92 F. Supp. 620 (D. Md. 1950), the insured had an accident while driving an automobile owned by his mother-in-law, who lived in his household. That vehicle was used by the insured and his family interchangeably with the insured's own automobile.  Judge Chesnut held that even though the appellant did not use the car often, "he was at liberty to use it when desired" (92 F. Supp. at 623), and that, as a conclusion of law, there was no coverage under the policy because the non-owned vehicle was "furnished for regular use" of the insured. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co. v. Robertson, 259 F. 2d 389 (4th Cir. 1958), is closer to the facts of the present case.  There, the appellee and her husband had returned from their wedding trip.  The husband left the appellee at her parents' home in Bassett, Virginia, while he went to North Carolina to find a home for them.  The appellee's car was not in good[***12] condition, so the husband took it with him to have it repaired; they planned to exchange their cars the next week-end. However, unlike the situation in the case before us, it was later agreed that the appellee's use of her husband's car was to continue for another week, so that she and her mother could visit her father, who was dying in a hospital 300 miles from Bassett.  [**74] It was during the period of this second emergency, ten days after the original [*499] loan of the vehicle, that the accident occurred.  The District Judge held there was coverage, but the Circuit Court reversed.

   In Lincombe v. State Farm Mut. Automobile Ins. Co., 166 So. 2d 920 (La. App. 1964), the named insured had purchased a new car, on which the insurance was issued, but the car was not ready for delivery, and the agency lent the purchaser another car.  The use of the lent car was unrestricted, but it was lent for only a brief period, until the new car was ready.  The court held there was coverage under the provision of the policy pertaining to the use of a non-owned automobile not furnished for regular use. Factory Mut. Liability Ins. Co. v. Continental Cas. Co., 267 F. 2d 818 (5th[***13] Cir. 1959), affirmed the holding of the District Court, on an agreed statement of facts, that the three weeks rental of the motor vehicle in question did not constitute "regular use" within the meaning of the insurance policy involved.  See also American Automobile Ins. Co. v. English, 266 Ala. 80, 94 So. 2d 397 (1957).

   No useful purpose would be served in a detailed consideration of the many other cases collected in the authorities above cited which decided that there was or was not coverage under clauses of insurance policies similar to the provision here involved.  On the one hand, the decisions, in the words of Judge Chesnut in Aler, look to the "evident intention of the limitation with respect to other automobiles to prevent a situation in which the members of one family or household may have two or more automobiles actually or potentially used interchangeably but with only one particular automobile insured." 92 F. Supp. at 623. On the other hand, the courts generally find coverage where there were restrictions as to the use of the non-owned car, or where, if the use was unrestricted, it was only casual or infrequent.  Each case turns on its particular facts.

   In the[***14] case before us, Floyd and his brother were not members of the same household; they lived in different states.  While Floyd's use of the car was unrestricted during the short period for which it was lent to him, the loan was caused by a sudden emergency. Floyd had driven the car only once before, six or seven months before the accident, and then for only one week. The loan was for a limited time and the accident occurred only four days after Floyd had been given the right to use the vehicle.  [*500] On this combination of circumstances, we agree with the court below that the automobile involved was not "regularly furnished" for the use of the appellee and that there was coverage under the policy.

   Judgment affirmed; costs to be paid by appellant. 

FREED, et ux. v. CLOVERLEA CITIZENS ASSOCIATION, INC. 
No. 196, September Term, 1966
 
Court of Appeals of Maryland
 
246 Md. 288; 228 A.2d 421; 1967 Md. LEXIS 452

 April  10, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment reversed.  Appellee to pay the costs.

CORE TERMS:  ditch, deed, adverse possession, hatched, plat, strip, predecessor, tack, rock garden, disputed, tacking, park, grantee, fence, heirs, edge, privity, successor, adversely, ownership, flower, undivided, feet, grantor, parol, purchase money mortgage, vegetable garden, hostile, tacked, successive

COUNSEL: Charles C. Hartman, Jr. for appellants.

   Thomas M. Schifanelli for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*290] [**421] To prevail in this Court appellants (the Freeds) must establish their right to tack their adverse possession of 0.6 of an acre on the Rhode River (the triangular hatched area on Plat B) to the adverse possession of their predecessors in title.  They lost in the court below because the trial judge thought they had shown "no color of title whatsoever." In our recital of the facts [**422] we shall refer again to Plat B.  Plat A, about which we shall also have more to say, is a part of the "Plat of Cloverlea." Both are reproduced herein.

   [**423] On 18 June 1926 Thomas Collison conveyed a 40 acre tract in Anne Arundel County to Walter Lyon.  The deferred consideration for the transfer was secured by[***5] a purchase money mortgage. On 13 July 1929 Lyon recorded the "Plat of Cloverlea" which was dated 28 June 1926.  It showed the subdivision of about 34 of the 40 acres into 183 lots, 47 of which fronted on the Rhode River.  In 1933, as a result of the foreclosure of the purchase money mortgage, title to the 40 acre tract, including "Cloverlea," reverted to the heirs of Thomas Collison.

   [**424] Early in 1935 Donald Pitts, then about 26, his wife and his [*291]parents visited Cloverlea.  They were accosted by Emanuel Collison, one of the five children of Thomas, and asked to state their business.  When they expressed an interest in buying a place for a summer home Collison, representing himself and the other owners, brought out a plat (probably the "Plat of Cloverlea") and showed them around.  They liked what appeared to be lots 19 and 20.  Since the only access to lot 18, according to Collison, was across a drainage ditch he urged the Pitts to buy it also.  They agreed.  The transaction was concluded by the execution of a contract of sale for lots 18, 19 and 20.  In July 1938 the Pitts, pere et fils, obtained and recorded a deed for lots 18, 19 and 20.

   Donald Pitts testified[***6] that, on the day they looked at the property, Collison picked up a stake and drove it into the ground on the north side of the drainage ditch near where it emptied into Rhode River, saying, "Your property line will run to here." n1 The southern boundary of lot 18 as thus pointed out by Collison ran along the north side of the drainage ditch, to the water's edge. The "bulkhead or retaining wall" shown on Plat B coincides with the north side of the ditch.

n1 The statement was stricken by the trial judge.  We shall have more to say about this.

   There are some deficiencies in the plat of Cloverlea (Plat A) which should be pointed out.  There are no stakes, no pipes, no bench marks, no monuments, no Coast and Geodetic Survey markers, no works of man (except Cliff Drive, then a dirt road), no natural phenomena (other than Rhode River), no established lines or boundaries of adjoining properties shown thereon.  There is not a line on the plat for which a compass course is shown.  The depth of all lots and the frontage[***7] of some are shown by numbers followed by the more or less (+/-) symbol.  Other than the lot numbers and the street names the only other useful information appearing thereon consists of the arrow pointing North and the scale (1" = 100').  In short, like so many of the subdivision plats of the time, it was nothing more than a graphic representation of someone's notion of how the property might be developed.  There can be little doubt that lots 18, 19 and 20 did not exist on the ground.  They existed only on the [*292] plat. In fact, there was no information on the plat which would have enabled a surveyor or anyone else to locate accurately on the ground the boundary lines of any of the lots there shown.

   Plat B was made by Warren Suitt who was employed by a surveying firm.  He testified that his employer was hired "to establish the outlines of Cherry Stone Park" for the appellee (the association).  He said "the plat of Cloverlea is not too easy to work with, because of the lack of information." (Emphasis supplied.) He thought, however, they had done "enough work in there that * * * [they] were positive that * * * [they] did have the boundaries of Cherry Stone Park established." [***8] It will be observed that the northern boundary of the park, according to Plat A, is also the southern boundary of lot 18.  Since Mr. Suitt did not explain how he arrived at that conclusion we can only suppose that he intended nothing more than the delineation on paper of the contention of his employer's client.  We shall have more to say about that.

   Pitts said that because of a spring on the east side of Cliff Drive the "ditch was formed by nature." He told how he put the first culvert under the road and how he "spent many hours in there keeping that ditch open." The low area north of the ditch was filled, little by little, at first with dirt from the digging of the basement and afterwards with dirt thrown up from the bottom of the ditch in the course of "keeping it open." He had a vegetable garden in the hatched area within 4 or 5 feet of the ditch where he grew tomatoes, beans, squash and cantaloupes.  Flowers were planted.  He remembers a row of [**425]peonies.  There was a grape arbor and a willow tree.  He kept the area mowed except during World War II when he was on duty with the Armed Forces. His pier having been destroyed by ice during the war he built one himself about [***9]in the center of the hatched area.  On cross-examination he told how he had lost 8 to 10 feet of his property from erosion because he did not have a seawall.  He said the stake driven by Emanuel Collison in 1935 disappeared as a result of the erosion.  He never built a fence because "the ditch was a natural fence" and it "was a fairly straight ditch."

   [*293] William J. Collison is a grandson of Thomas Collison.  His mother owns lots 16 and 17.  Lot 17 adjoins the south side of Cherry Stone Park. She also owns an undivided 1/5 interest in the park. He has lived in Cloverlea or within a few miles of it nearly all of his life.  From 1937 to 1941 he was in charge of a crew that "used to take care of all those places along there, cutting grass, trimming." He was familiar with the ditch and "helped clean it out lots and lots of times" and he and his crew would mow the grass on the Pitts property "down as close to the ditch as * * * [they] could get which was within a couple of feet of it." He noticed there was a garden there (in the hatched area) "every year or so" except when Mr. Pitts was away.

   Mrs. Edna Gessford had lived three doors from the property and she said she was familiar[***10] with the ditch and the hatched area.  She remembers when Pitts sold to the Regans in February 1952.  She said the Regans were looking for rocks to "build up a rock garden" and that "there was grass right straight to the edge of the ditch" except where flowers and shrubs were planted.  She recalled also when the Johnsons, "a young couple," bought the lots from the Regans in June 1953.  They "put in a vegetable garden down along the ditch, close to the edge of the ditch, plus a rock garden," she said.

   William A. Irvine rented the property from the Johnsons from June 1954 to June 1956.  He testified that "as far as * * * [he] knew, the ditch was the property line and * * * [he] maintained and cut the lawn all the way down to this ditch area all the way out to the water."

   Harry Hasslinger testified his wife's parents bought lots 21, 22, 23 and 24 (adjoining the Freeds) in 1924 and that he had been a summer resident since 1931.  He was "quite familiar with the ditch." In 1935 he helped the Pitts clean out the ditch. In respect of the hatched area he said Pitts and the subsequent owners mowed the grass, and "there was vegetable gardens, flower gardens * * * [and] a grape arbor." [***11] Regan, he thought "started a rock garden which was completed by Mr. Johnson."

   The conveyances from Pitts to Regan and Regan to Johnson [*294] were both by lot numbers.  In October 1956 Johnson conveyed lots 18, 19 and 20 to the Freeds.

   Freed, called as a witness by the opposing party, said that although "nobody trespassed" on the hatched area he had "ordered Mr. Price's children off" and some adults who "crossed that property." When he bought the property, Johnson showed him a stake between lot 20 and the "Hasslinger house" (lot 21) and told him his line went "right down to the ditch on the edge of the cliff." "Everyone believed it was his land" even after he constructed the bulkhead and the retaining wall.  When called to testify on his own behalf he located the culvert under Cliff Drive by an X placed on each side of the road.  He said the ground north of the ditch was mowed and the rock garden was still there.  He drew a circle to indicate the location of the rock garden. The grape arbor is indicated by five dots just west of the rock garden. A heavy blue line shows where the peony bed was.  He said "many of * * * [his] neighbors came around and watched" the bulldozer[***12] in operation when he filled behind the bulkhead near the water.  He guessed he [**426] had put "a little over $3,600 in that pie-shaped area." He said the neighbors thought "it was wonderful * * * [that] he was improving the neighborhood."

   At a meeting of the association in July 1961 Freed was given a copy of the Plat of Cloverlea.  He said, "this * * * [was] the first time * * * [he had] ever seen" the plat. After he studied it he was concerned that he might have built the bulkhead on park land.  He announced his concern to some members of the association.  In February 1965, after the association filed this suit against him, he bought from his heirs the undivided 1/5 interest of Emanuel Collison in the park. The association acquired from her heirs the undivided 1/5 interest of Sarah Hardesty in September 1963.  The remaining 3/5 is still owned by the heirs of Thomas Collison.

   The principal witness for the association was George Kerwin Collison Hardesty, a son of Sarah Hardesty who was one of the five children of Thomas Collison.  He moved to Cloverlea in 1951.  His knowledge of the property before 1951 was obtained while attending an occasional oyster roast or picnic [***13]on [*295] the beach.  He did not recall a "clearly defined ditch." In 1954 he helped "clean out the ditch." He testified the hatched area "was never improved." He never saw a "fence" or a "no trespassing sign." (There is no evidence of the existence of a fence or a sign.) He has no recollection of a rock garden or a vegetable garden. There was a pier, he said, but it was not "substantial." He said Freed told him that he "had taken some of the community property" and that if the community made him move "he'd never speak to any of them again."

   Lester Cunningham first started coming to Cloverlea in 1944.  He didn't know Pitts.  He never noticed whether the hatched area was seeded.  He never noticed a vegetable garden or a rock garden. He never noticed a fence or a "no trespassing" sign.  Nor did William C. Voight who also testified on behalf of the association.

   Before trial the parties stipulated that the issues to be decided were:
 
 1. Do the Freeds "have fee simple title, through adverse possession" to the hatched area.
2. If the first issue is decided in favor of the association "where is the boundary line between" lot 18 and Cherry Stone Park.

   I.

   The Freeds contend[***14] the trial judge erred when he refused to allow Donald Pitts to testify that Emanuel Collison said, as he drove the stake, "Your property line will run to here." We think the trial judge ruled incorrectly, but it should be observed that our holding in Wilt v. Wilt, 242 Md. 129, 218 A. 2d 180 (1966), which we think disposes of this contention, was not published until about six or eight months after the decision of the trial judge.  It is unlikely, however, that the exclusion of Collison's statement could have made much difference as the obvious purpose in driving the stake was to designate a boundary which, in the circumstances, could have been only the south line of lot 18.

   II.

   The trial judge, in his opinion, said he was "convinced * * * there was never a definite period in time wherein this specific [*296] area in question was ever occupied * * * in its entirety, and held adversely to the world." The association, in like manner, argues that the possession of the Freeds and their predecessors was not open, notorious, exclusive, hostile, or within a clearly defined area.  A comparison of the circumstances in the case before us with those present in our recent decisions in[***15] East Wash. Railway v. Brooke , 244 Md. 287, 223 A. 2d 599 (1966) and Blickenstaff v. Bromley, 243 Md. 164, 220 A. 2d 558 (1966) makes it clear that the trial judge has misapprehended [**427]the situation and that there is no merit in the contention of the association.  There has been advanced also the suggestion that the use made by Pitts and his successors was permissive.  The association argues that since they were entitled, in common with other lot owners, to the use of Cherry Stone Park, their possession could not have been adverse.  We do not agree.  There is nothing on the plat of Cloverlea to suggest that Cherry Stone Park was dedicated to the use of the future residents of Cloverlea.  The label "Cherry Stone Park" could as easily have suggested that Lyon or the Collisons had reserved it as a home site for themselves or as a site for some future commercial enterprise.  In any event the use made of the hatched area by Pitts and his successors was entirely consistent with their ownership of lots 18, 19 and 20 and quite inconsistent with any notion that they were exercising merely their communal right to swim, sun bathe and picnic.  After all one does not grade, mow, [***16]plant flowers, trees, grapevines and vegetables, and make a rock garden, in an area, the use of which one must share with several hundred others. In Blickenstaff, supra, at 171, we quoted with approval from 3 Am. Jur. 2d, Adverse Possession, § 14, the following:

   "It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.  The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of adverse possession."

    [*297] III.

   Our consideration of the pivotal question whether the Freeds can tack their adverse possession to that of their predecessors in title must begin with Tamburo v. Miller, 203 Md. 329, 100 A. 2d 818 (1953). Although tacking was not an issue in Tamburo, the situation was generally similar to the case before us. Tamburo owned lot 32.  Miller, who owned lot 33, claimed Tamburo had encroached upon his lot.  The apex of the triangular wedge of land in dispute was tangent [***17]to the road on which both of these waterfront lots bordered.  The base of the triangle was at the water's edge. One surveyor said the survey was difficult; the other (J. Revell Carr) said he could not determine the true line because of the surveying uncertainties and difficulties inherent in the Manhattan Beach Development.  The boundary line claimed by Tamburo consisted of a few strands of barbed wire, mostly lying on the ground, replaced in spots by a hedge.  We held Tamburo's possession was exclusive, notorious, actual and hostile. Judge Hammond (now Chief Judge), for the Court, said:

   "It has been said often in the earlier cases that where a land owner extends his fence, through inadvertence, ignorance or mistake, as to the location of the true boundary line, so as to embrace the land of a neighbor, but with no intention of claiming the area thus enclosed, adverse possession cannot be established because the holding of the extended area is neither adverse nor hostile to the true owner.  See, for example, Davis v. Furlow's Lessee, 27 Md. 536. The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of[***18] Limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial.  See Sadtler v. The Peabody Heights Company, 66 Md. 1; Rother v. [*298] Sharp St. Station Methodist Church, 85 Md. 528, 530; and Hiss v. McCabe, 45 Md. 77." Id. at 336.
 
[**428] We cited Tamburo with approval in Blickenstaff, supra. The juxtaposition of Tamburo and the case at bar makes it apparent that there can be little doubt the possession of Pitts and his successors also was exclusive, notorious, actual, hostile and embraced all of the hatched area.  As Judge Hammond also said in Tamburo, "actual enclosure * * * [is] not necessary to prove title." Code, Art. 75, § 33 (1966 Repl. Vol.)

   The trial judge, in holding the Freeds could not tack the possession of their predecessors, relied entirely upon Sachs and Sons v. Ward, 182 Md. 385, 394-95, 35 A. 2d 161 (1943) and the cases cited therein.  There it was said: [***19] 
 
"This [tacking] is precisely what this court had already decided cannot be done, the rule being that possession cannot be tacked to make out title by prescription where the deed by which the last occupant claims title does not include the land in dispute.  Fleischmann v. Hearn, 141 Md. 463, 118 A. 847; Hansel v. Collins, 180 Md. 209, 23 A. 2d 686; Oliver v. Hook, 47 Md. 301; Oberheim v. Reeside, 116 Md. 265, 81 A. 590; 2 C.J.S. Adverse Possession, Sec. 131."
 
While the language quoted from Sachs, standing alone, is a familiar and correctly stated principle of law, it should be observed that the facts in Sachs beget a horse of a much different color than the facts in the case at bar.  In Sachs the disputed parcel was actually part of a public street.  After making the statement quoted above, Judge Melvin, who spoke for the Court, went on to say:

   "In weighing the equities here it is also to be borne in mind that appellants not only never acquired title to any portion of the bed of Sutton Street, but were expressly charged with notice in their own title papers and by the land records that this alley was always to be kept open and unobstructed, [***20] centainly as to the parties to the original agreements.  They were [*299] charged, too, with notice from the record that the bed of the alley was never owned by any of their predecessors. Therefore, when they found this first-floor structure across the alley, completely destroying its use for the purposes originally defined of record, they took possession of it with knowledge that it did not pass to them under their deed." (Italics supplied.)

   However, we shall not undertake an analysis of the factual disparity between Sachs and the case before us because, in our judgment, this case falls into one of the exceptions to Sachs, which seems to be well recognized in other jurisdictions and which, until now, we have not had occasion to consider.  The rule which prevails in most of the jurisdictions where the question has been raised is succinctly stated in the annotation in 17 A.L.R. 2d, 1128, 1131:
 
"* * * where title by adverse possession is claimed to an area contiguous to that described in the deed or contract, and the whole property, described and not described, was in use by the vendor as a unit, and the fact thereof was apparent by reason of the position[***21] of fences, hedges, buildings, etc., the instrument instead of operating to negative the element of privity, seems to possess, as conjoined with such circumstances, an evidentiary value in support of privity, and this is most noticeable in instances in which the description used was such that it might reasonably have been supposed to include the whole property.

   "At the present time, making allowance for contrary rulings still apparently adhered to in a few jurisdictions, the cases, especially the later ones, run generally to the effect that in order to permit the tacking of successive adverse possessions of vendor and purchaser of an area not within the premises as described in the deed or contract but contiguous thereto, the composite fact to be established is the intended and actual transfer or delivery of possession of [**429] such area to the grantee or vendee as successor in ownership or claim."

   [*300] In Mary v. Maurer, 339 Mich. 115, 62 N. W. 2d 455 (1954) the disputed strip was 8 1/4 feet by 33 feet. In 1919 Briggs sold to Moran who took possession of the strip although it was not included in his deed. In fact, it was included in the deed of the adjoining[***22] owner.  In 1930 Moran placed a clothes pole and a clothes line between it and a tree, all three located on the strip, and the Morans used it for laundry purposes while they lived there.  The Morans always kept the strip mowed.  Moran's tenants continued to use the clothes line and mow the lawn.  They also kept their dog and the dog house on the strip. When Moran sold to Mrs. Maurer in 1947 the strip was pointed out to her as part of the property.  She continued the use of it, kept up the lawn and maintained control over it.  Mr. Mary, who owned the adjoining lot thought the strip did not belong to him.  The Supreme Court (Michigan) agreed with the trial judge that the requisites of adverse possession had been established.  Mary argued that Maurer could not tack the possession of Moran. The Michigan court affirmed the earlier case of Gregory v. Thorrez, 277 Mich. 197, 269 N. W. 142 (1936) and held, speaking through Dethmers, J.:

   "The proofs accepted as true show that (a) defendant [Moran] and her predecessors did take possession of the strip in the belief that it was theirs and that no objections or adverse claims were voiced thereto by plaintiffs or their predecessors, [***23] thus indicating acquiescence; (b) that the line and stake were pointed out by Miss Moran and her realtor to defendant [Maurer], at the time of her purchase, indicating that the strip was included; and that during the years of occupancy by the Morans, Edward [Moran] used and treated the strip as his own, in a manner equivalent to and constituting as effective a pointing out of the boundary line in connection with his devise to his sister as it would have been had he pointed out the line at the time of conveying the lot to her; (c) that defendant and Miss Moran did take possession of the disputed strip with the rest of the premises, regarding it as conveyed to them.  The [*301]Gregory case is applicable and controlling here." Id. 62 N. W. 2d at 458.

   In Gregory v. Thorrez, supra, the facts were much the same as they were in Mary and quite like the facts in the case at bar.  There, Butzel, J., for the Michigan court, said:

   "The main question for our determination is whether the appellant Thorrez may tack to his possession the adverse occupancy of his predecessors in title so as to make out the statutory period without having the disputed strip described in [***24]his deed. Numerous cases in Michigan have laid down the general rule that successive possessions may not be tacked where the disputed land is not described in the deed. Lake Shore & M. S. R. Co. v. Sterling, 189 Mich. 366, 155 N. W. 383; Hanlon v. Ten Hove, 235 Mich. 227, 209 N. W. 169, 46 A.L.R. 788; Jeffries v. Sheehan, 242 Mich. 167, 218 N. W. 703. These cases, however, do not consider the question of whether tacking is permitted where successive grantees over a period of 15 years had the lots first pointed out to them and possession given with the deed. Is the last grantee entitled to the ownership of the disputed strip under such circumstances, notwithstanding the fact that he has not owned it for 15 years, and it has not been described in his deed, notwithstanding that he and his predecessors have claimed ownership and possession for over 15 years and this claim has been acquiesced in by plaintiffs and their predecessors in title?  The rule outside of Michigan permits such parol transfer.  It is not the deed that creates the privity, but the parol transfer of possession.  See Davock v. Nealon, 58 N. J. Law, 21, 32 A. 675. In Belotti v. Bickhardt, 228 N. [***25] Y. 296, 127 N. E. 239, a similar question was [**430] raised and the court held that privity could be established by parol and that successive periods could be added together where possession had been given by parol. See, also, Wishart v. McKnight, 178 Mass. 356, 59 [*302] N. E. 1028, 86 Am. St. Rep. 486, where the court held: 'This evidence would have warranted the jury in finding that each of the grantees transferred to his successor his possession of the strip of land in question, and that thereby the demandant was continuously kept out of possession.' This seems to be the prevailing rule in most of the other States.  See Hanlon v. Ten Hove, 235 Mich. 227, 209 N. W. 169, 46 A.L.R. 792." Id. 269 N. W. at 143. (Emphasis supplied.)
 
   In Howind v. Scheben, 233 Ky. 139, 25 S. W. 2d 57, 58 (1930) a small triangular parcel of land was in dispute.  It was said there:

   "The testimony shows that the fence now maintained has been there for more than 15 years, and that it replaced a rail fence maintained on substantially the same location for forty years.  The transfer of possession of a strip of land occupied by the grantor, although without title, which[***26] is inclosed with and used as part of the land described in the deed, is not affected by its omission from the description in the deed. In such cases the possession of the grantor and that of the grantee is continuous, and there is such privity of contract between them that the period of possession by each must be added in ascertaining the total period of adverse possession. Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028, 86 Am. St. Rep. 486; H. B. Jones Coal Co. v. Mays, 225 Ky. 365, 8 S.W. (2d) 626; 2 C.J. p. 82, § 66."

   Although Sachs, supra, was cited in the brief of one of the parties in a recent New Hampshire decision, Alukonis v. Kashulines, 96 N. H. 107, 108-109, 70 A. 2d 202 (1950), it was not mentioned in the court's opinion, an excerpt from which follows:
 
"However, the defendants claim that the plaintiff may not tack the possession of her predecessors because the deeds in her chain of title do not include the strip in question, and cite authority in support of this proposition. [*303]It is significant that among the authorities cited, including both Hanlon v. Ten Hove, 235 Mich. 227, 209 N. W. 169, 46 A.L.R. 792, 793, and 1 Am. [***27] Jur. Adverse Possession, § 156, it is stated that the rule forbidding tacking under these circumstances is 'very sharply limited' to cases where only the deed is relied on 'and there is no circumstances showing an intent to transfer any property beyond the calls of the deed.' 1 Am. Jur., supra .  In the case before us there was evidence the plaintiff was shown the bounds, which included the two rod tract, by her predecessor in title and that this tract had been inclosed and cultivated for many years by the plaintiff and her predecessors. This appears sufficient to support the plaintiff's right to tack. Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028, 86 Am. St. Rep. 486; 2 C.J.S. Adverse Possession, § 131.  See also Hoben v. Bucklin, 88 N. H. 73, 85, 184 A. 362, 186 A. 8, and authorities cited."

   In an appeal from the Alaska District Court, Ringstad v. Grannis, 171 F. 2d 170, 174 (9th Cir. 1948), the Court of Appeals, in a situation almost the same as Tamburo, followed the rule expressed in the decisions set forth above.  In the opinion by Chief Judge Denman it was said:

   "It is generally held that if, in connection with the conveyance of lands, [***28]there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor and not covered by the deed, there is created such a privity that the grantee is permitted to tack the period of the grantor's occupancy to his own in establishing title by adverse possession to the land not mentioned in the deed. 'Where the deed is followed by the delivery of possession of the entire inclosure, it is sufficient evidence of a transfer of possession to raise [**431] the requisite privity between the parties.' Rich v. Naffziger, 255 Ill. 98, 99 N. E. 341, 343."

   In 3 Am. Law of Prop., § 15.10, it is said:
  
[*304] "In some of the cases, it is held that if the adverse possessor conveys by deed which does not include part of the land of which he had possession, though the grantee takes possession of that part as well as of the part described in the deed, the two adverse possessions of the land so omitted in the deed cannot be tacked. By weight of authority, however, the two possessions will be tacked if it appears that the adverse possessor actually turned over possession of that part as well as of that portion of [***29] the land expressly included in his deed." (Emphasis supplied.)
 
See, also, 3 Am. Jur. 2d, Adverse Possession, § 64; 17 Md. L. Rev. 61 (1957).

   Since the parties have stipulated that the principal issue is the adverse possession vel non of the hatched area, we hold that:
 
(a) Pitts, conjointly with his use and occupation of lots 18, 19 and 20, possessed the hatched area adversely from 1935 until 1952 when he sold lots 18, 19 and 20 to Regan and delivered to Regan the possession of those lots and the hatched area;
(b) Regan took possession of the lots and the hatched area and continued to possess it adversely until 1953 when he sold the lots to Johnson and delivered to Johnson the possession of the lots and the hatched area;
(c) Johnson took possession of the lots and the hatched area and continued (together with Irvine, his tenant) to possess it adversely until 1956 when he sold the lots to the Freeds and delivered to the Freeds the possession of the lots and the hatched area;
(d) the Freeds took possession of the lots and the hatched area and continued to possess it adversely until the present; and, that
(e) the Freeds are entitled to tack to their adverse[***30] possession of the hatched area, the possession of Johnson (and Irvine), Regan and Pitts.

   An odd feature of this case is the absence of a claim by the Freeds that Pitts acquired a fee simple title to the edge of the ditch in 1935.  We have already mentioned the deficiencies of [*305] the Plat of Cloverlea.  Judge Hammond, in Tamburo, supra, pointed out similar deficiencies in the Plat of Manhattan Beach.  He said there were no metes and bounds descriptions and that no compass courses were shown for the sides of the lots.  J. Revell Carr, who was a competent and conscientious surveyor, was unable to locate the true line between the Manhattan Beach lots.  Cloverlea was at least as bad; very likely it was worse.  The boundary between lot 18 and Cherry Stone Park had not been established on the ground in 1935 and the plat was devoid of information from which it could have been ascertained.  As earlier suggested, Suitt's survey, despite his self-serving assertion of its accuracy, could have been nothing more than a graphic post hoc representation of the contention of the association.  It is obvious that the boundaries of lot 18 could have been established only by a location[***31] survey after corner stakes had been arbitrarily placed, or by agreement with a purchaser.  When, therefore, Pitts entered into the possession of the land up to the line pointed out to him by Emanuel Collison, that line became the boundary between lot 18 and Cherry Stone Park. 12 Am. Jur. 2d, Boundaries, §§ 77, 78; 11 C.J.S. Boundaries, § 67.  Since no argument based on this theory was advanced either in the court below or in this Court we expressly avoid making a decision in respect thereof.  We have ventured the comment, however, because, in the circumstances, it seems appropriate and because it may enable the association to bear with more graceful resignation the necessity for our reversal of the trial judge.

   [**432] Still another odd feature is the fact that the association owns only an undivided 1/5 interest in Cherry Stone Park. The owners of the other 3/5 interest have remained aloof and neither side has tried to make them parties. The trial judge thought Freed's purchase of the remaining undivided 1/5 interest was not "indicative of a conviction of a full ownership." He also said it illustrated Freed's state of mind.  The relevance of his statement is unclear. [***32]Pitts' state of mind might have been interesting but since Tamburo, supra, it is unimportant.

   For the reasons herein stated the judgment of the trial court will be reversed.

   Judgment reversed.

   Appellee to pay the costs.

   [*306] [SEE ILLUSTRATION IN ORIGINAL]

   [*307] [SEE ILLUSTRATION IN ORIGINAL] 

CLARK'S BROOKLYN PARK, INC. v. HRANICKA AND KOPASEK, et vir 
No. 173, September Term, 1966
 
Court of Appeals of Maryland
 
246 Md. 178; 227 A.2d 726; 1967 Md. LEXIS 441

 April  5, 1967, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  shoplifting, merchant, probable cause, detain, false imprisonment, detention, civil liability, slacks, cashier, mitigation, slander, girl, Constitutional Law, immunity, suspected, arrest, titling, shoplifter, remittitur, sweater, wearing, counter, embrace, tag, Titles Of Legislative Acts, connected together, punitive damages, subject matter, reasonable belief, store detective

COUNSEL: Robert J. Thieblot, with whom were [***4] Allen, Thieblot & Hughes; T. Benjamin Weston and Rollins, Smalkin, Weston & Andrew on the brief, for appellant.

   Edward B. Rybczynski for appellees.

JUDGES: Horney, Marbury, Oppenheimer, McWilliams and Finan, JJ.  Finan, J., delivered the opinion of the Court.

OPINIONBY: FINAN

OPINION: [*180] [**727] This is an appeal from judgments of the Circuit Court for Anne Arundel County in two consolidated actions of two counts each for slander and false imprisonment. The jury rendered verdicts of $10,000 in each case in favor of plaintiffs, which were reduced by remittitur to $7,500.

   On the afternoon of September 19, 1964, plaintiff Joan Kopasek went shopping in Clark's Brooklyn Park Department Store, owned by defendant, Clark's Brooklyn Park, Inc.  Upon arrival she telephoned plaintiff Joyce Hranicka (at that time Joyce Alexandrowicz) and arranged to meet her at the store's snack bar.  Joyce left her home dressed in slacks, blouse and sweater. The slacks, according to Joyce's testimony, had been purchased at Clark's some four weeks previously, and had not been washed.  The girls met at the snack bar, had a coke and then proceeded to shop throughout the store.  Both girls testified[***5] that they did not shop in that area of the store containing women's clothing.  Each made several purchases and paid for them at the check-out counter.

   On the date in question, defendant had two employees at the cashier's counter, Kay Crane, who operated the cash register, and Peggy Kingsley, who wrapped the merchandise.  Crane testified that, as she was ringing up a sale for one of the plaintiffs, she was told by Kingsley to look at the slacks that Joyce was wearing. She looked and noticed "a pin ticket on her slacks." She described a "pin ticket" as "a little piece of cardboard or some kind of material like cardboard, and it has Clark's written in red at the top and it is pinned to the merchandise, * * *." Elsie Kisser, a concessionaire selling popcorn, hot dogs, soda and the like in Clark's, testified that she saw a Clark's tag pinned to the top of the slacks Joyce was wearing.

   After paying for their purchases, plaintiffs left the store in [*181] normal fashion, went to the parking lot and got into Joan's automobile. Meanwhile, Crane had called the head cashier pursuant to store procedure. According to Crane, the head cashier was instructed to announce a code number over[***6] the store's public address system, which would alert the store detective to trouble and bring him to the check-out counter to investigate. Joan and Joyce testified that they had been sitting in the car approximately five minutes when a man, later identified as Mr. Chalk the store detective, rapped on the car window and displayed a badge.  He ordered them out of the automobile, with which request they complied, and he asked them whether they had a pink sweater in the car.  Joyce testified that she told him that she was wearing a pink sweater. Chalk then entered the vehicle and searched it thoroughly, opening their packages.  While this was taking place, Mr. Cohen, the assistant manager of Clark's, had driven his automobile behind the Kopasek vehicle in such a way as to block its exit.  This scene attracted, according to Joan's estimate, "every bit of a hundred and fifty," persons including friends of Joan's, who "were just staring." Joyce also estimated the onlookers at 150 persons.  One of Joan's friends called her husband and father for her.  Joan also testified: "I had heard so many people around the car tell me, if I were you (sic) take your packages back and get your money back, [***7] they're accusing you of stealing."

   Chalk informed Joyce that she would have to return to the store with him. Joyce refused to do so until she called her father, which she was permitted to do in the presence of Chalk.  Joyce's father arrived and he, Joyce, Chalk and Cohen returned to the store at Joyce's father's suggestion.  Once in the store they were taken to an [**728] area described by Joyce's father as a "lay-a-way warehouse." According to Joyce's testimony she showed them that there were no tags on her slacks and they said they were sorry and admitted a mistake had been made.  Joyce's father testified that he asked Mr. Schloss, manager of Clark's, to put a one-page add in the paper to clear Joan's and Joyce's names; this he refused to do.  Joyce further testified that, while the discussion with Clark's employees was taking place, "the cashier kept hollering, 'yes, she took those slacks,' after they already told me that I was innocent, and then she [*182]keeps hollering it out when we were walking out the door." Once outside they met Joan, her father, and her husband.  They all proceeded back into the store and had further discussions with Cohen and Chalk.  Before [***8]leaving, Crane, the cashier, told Joyce's father that she had "seen tags on the pants that she [Joyce] wore out of the store."

   After defining the law of slander and false imprisonment, the learned trial judge instructed the jury as follows:

   "Now also, if you find from the evidence that the defendants had probable cause to go after these girls, detain them, if you find that they did detain them and accuse them, if you so find that, for shoplifting then you're entitled to consider this probable cause in mitigation of damages.  In other words, if you feel that the girl, the cashier, and Cohen and Chalk and these other men had probable cause to suspect these girls then you can consider that in mitigation or cutting down the damages in awarding the damages, but you can't consider that as a complete defense to the charge."
 
The jury's assessments of damages were total, being based on both counts in each case, and defendant made no request for their allocation either before or after they were rendered.  Defendant moved for a new trial or in the alternative judgment non obstante veredicto.  After a hearing, judgment n.o.v. was denied and the lower court further ordered that[***9] unless remittiturs of $2,500 were entered in each case the motion for a new trial would be granted; remittiturs in the specified amounts were filed and judgments entered on the verdicts as remitted.  This appeal followed.

   This appeal presents the following questions for this Court to decide:

   1. Is Chapter 269 of the Acts of the General Assembly of 1961 (Art. 27, § 551A Code (1957), titled "Crimes and Punishments", sub-titled "Shoplifting") unconstitutional because the title of the Act is defective and misleading in contravention of Art. III, § 29 of The Constitution of the State of Maryland?

   2. Did the trial court commit prejudicial error in instructing the jury that evidence of the existence of probable cause to detain [*183] the plaintiffs could not be considered by way of a defense for the defendant but could be considered by way of mitigation of damages.

   I

   The title of Chapter 269 of the Acts of the General Assembly of 1961 reads as follows:

   "AN ACT to add a new Section 551A to Article 27 of the Annotated Code of Maryland (1957 Edition AND 1960 SUPPLEMENT), title 'Crimes and Punishments', to follow immediately after Section 551 thereof and to be under the new sub-title [***10]'Shoplifting', providing a criminal statute for offenses herein defined as 'shoplifting', and relating generally to the offense of shoplifting and other penalties therefor in this State."

   The section of the Act providing for the merchants' immunity from civil liability when the detention of the suspected shoplifter is justified on reasonable grounds is § (C) and reads as follows:

   "(C) A merchant, agent or employee of the merchant, who detains or causes the arrest of any person shall not be held civilly liable for detention, slander, malicious prosecution, false imprisonment or false arrest of the person so detained [**729] or arrested, whether such detention or arrest takes place by such merchant, his agent or employee, provided that in detaining or in causing the arrest of such person, the merchant, agent or employee of the merchant, had at the time of such detention or arrest probable cause to believe that the person committed the crime of shoplifting as defined in section 551A."

   That part of § 29 of Article III of the Constitution of the State of Maryland which Chapter 269 purports to contravene reads as follows:
 
"and every Law enacted by the General Assembly[***11] shall embrace but one subject, and that shall be described in its title; * * *."

   [*184] We cannot improve on the language of Judge Prescott (later Chief Judge) in Leonardo v. County Comm., 214 Md. 287, 134 A. 2d 284 (1957), in his construction of § 29 of Art. III of the Constitution and its application to the titling of statutes, pp. 298-99:

   "Section 29 of Article 3 of the Constitution has been involved in cases before this Court on numerous occasions.  It has been included in the last three Constitutions of this State, and its purposes are to prevent the combination in one act of several distinct and incongruous subjects, and to inform the members of the legislature of the nature of the bills introduced, which are usually read to them by their titles only, and to permit the citizens of the State to know of proposed legislation.  The general rule of its construction is that every presumption favors the validity of the statute, and reasonable doubt is enough to sustain it.  The appellants here assert no claim that the statute embraces more than one subject.  The cases arising under this section of the Constitution relating specifically to the requirement that the subject[***12] be described in the title may be generally divided into those in which it is contended the title is not sufficiently descriptive, and those where it is claimed the title is misleading.  This Court has consistently held that the Constitution is complied with if the title of the legislation fairly advises the legislature and the public of the real nature and subject matter of the legislation sought to be enacted.  Shipley v. State, 201 Md. 96, 102, 93 A. 2d 67. In order to do this, it is unnecessary that the title be an abstract of the text of the proposed statute, nor need mention be made of the means and the methods by which its purpose is to be accomplished.  Bond v. Mayor and C. C., 116 Md. 683, 688, 82 A. 978; Painter v. Mattfeldt, 119 Md. 466, 87 A. 413."

   Judge Evans in the lower court, following the opinion of Chief Judge Manley in Getz v. Hutzler's Inc., reported in the Daily Record of June 15, 1965, ruled that the titling of [*185] Chapter 269 of the Acts of the General Assembly of 1961 was defective, which rendered the Act unconstitutional insofar as its provision regarding the merchant's privilege against civil liability was concerned.  Chief Judge[***13] Manley in Getz, supra, stated:

   "The provisions of the portion of the Act quoted above [merchant's privilege against civil liability in the event he had reasonable cause to detain the person suspected of shoplifting] are so foreign to the subject matter stated in the title and are not referred to or mentioned therein in any way, that I am constrained to hold that this portion of the Act violates Section 29 of Article III of the Maryland Constitution referred to above.  The body of the Act embraces a subject which is not mentioned or indicated in the title, and the paragraph quoted above grants immunity from civil liability to the merchants or their agents or employees who detain persons who they believe to be shoplifters.

   * * *

   "[**730] There is a veiled reference in the preamble to the fact that merchants should be allowed to detain persons whose actions give rise to a reasonable belief that such persons are engaging in the crime of shoplifting, but this statement in the preamble, in my opinion, does not cure the defect in the title.  Anyone would understand from a reading of the title to this law that it only referred to the new crime of shoplifting and the penalties[***14] therefor.  It would be necessary to read the entire law to realize that the Act also contained provisions applying to civil procedures.  This violates the constitutional provision * * *."

   We concur with Chief Judge Manley's interpretation of the law as it applies to the titling of the bill.  We think he followed the rules of construction as laid down by Judge Prescott in Leonardo, supra. This construction has the effect of rendering the provisions contained in § (C) of Chapter 269 void.  Section (E) of Chapter 269 contains a severability clause and even if it did not, it would be the duty of the Court to separate the valid from the invalid provisions whenever possible.  Sanza v. [*186] Maryland State Board of Censors, 245 Md. 319, 266 A. 2d 317, 327-28 (1967); Baltimore City v. Stuyvesant Co., 226 Md. 379, 390, 174 A. 2d 153, 158-59 (1961). Here the remaining sections of Chapter 269 are not "so connected together in subject-matter, meaning or purpose, that it cannot be presumed the Legislature would have passed the one without the other." Culp v. Comrs. of Chestertown, 154 Md. 620, 631, 141 A. 410, 415 (1928) (reaching an opposite result).  We hold the remaining[***15] provisions of Chapter 269 to be valid.

   Maryland Law Review, Vol. 19, p. 28, et seq., contains an interesting casenote on the need for statutory alteration of the common law rule on false imprisonment as it relates to those individuals who are reasonably suspected of shoplifting and the merchant who is seeking to protect his inventory.  The estimates set forth therein place the pilferage figure at between $2,000,000 and $3,000,000 annually in Maryland.  This no doubt influenced the Legislature in its passage of Chapter 269 which was designed to achieve effective social control of shoplifting; however this Court cannot compromise constitutional safeguards in legislative draftsmanship for reasons of expediency.

   II

   Having once determined § (C) of Chapter 269 to be invalid, the lower court could not have given any instruction other than the one given, regarding the role which "probable cause" to detain the suspected shoplifter should play in the deliberation of the jury.  In its instructions, the lower court correctly stated the law when in effect it said that; if the merchant and his employees had probable cause to suspect the plaintiffs and thus detain them, this could be considered[***16] in mitigation of damages, but not as a defense to the charge of false imprisonment. Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173-74, 122 A. 2d 457, 460 (1956); Fleisher v. Ensminger, 140 Md. 604, 620, 118 A. 153, 159 (1922).

   The transcript shows that testimony was admitted in evidence from which probable cause for detention could be adduced and certainly argued to the jury. The defendant in its brief stated:

   "On the facts of this case and even on the necessarily incomplete testimony in it, a jury could have [*187] found that the Appellant's investigation was premised on a reasonable belief that the Appellees, Joan Kopasek and Joyce Hranicka, were guilty of the crime of shoplifting, that the investigation undertaken by Appellant was for a reasonable time and in a reasonable manner * * *."

   The lower court, as we have heretofore stated, provided in its instructions to the jury that "probable cause" could be [**731] considered for the purpose of mitigation of damages.  This was correct because the court also instructed the jury, that if it found the element of malice attending the acts of false imprisonment or slander, it could take that into consideration [***17]in any award for punitive damages which it might make; accordingly, it was proper for the court to instruct the jury that it could also take into consideration the existence of "probable cause" because the presence of "probable cause" would have a direct bearing on the quality of malice, if it found that any existed.

   It would have been error for the court to have allowed it to be considered for purposes of defense.

   Judgments affirmed, with costs. 

BOARD OF SUPERVISORS OF ELECTIONS FOR ANNE ARUNDEL COUNTY,et al. v. ATTORNEY GENERAL OF MARYLAND, et al. 
No. 10, September Term, 1967, (Adv.)
 
Court of Appeals of Maryland
 
246 Md. 417; 229 A.2d 388; 1967 Md. LEXIS 462

 March  7, 1967, Decided  
 April  14, 1967, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed; the mandate be issued forthwith.

CORE TERMS:  convention, delegate, constitutional convention, general assembly, election, voter, special election, general election, voting, sovereignty, electorate, governor, duty, elected, primary election, holder, voted, votes cast, mandatory, delegated, supplied, Constitutional Law, prescribed, revision, cast, delayed, occasional, new constitution, incumbent, electors

COUNSEL: David M. Blum, William W. Cahill, Jr. and Mark D. Coplin, with whom were Weinberg & Green and John A. Blondell on the brief, for Board of Supervisors of Elections for Anne Arundel[***8] County, part of appellants, and C. Maurice Weidemeyer for Joshua F. Cockey of B., other appellant.

   Francis B. Burch, Attorney General, Alan M. Wilner, Assistant Attorney General, and Robert F. Sweeney, Deputy Attorney General, for Attorney General of Maryland, et al., part of appellees, and Joseph Sherbow, for Maryland State Bar Association, other appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes, McWilliams and Finan, JJ.  Hammond, C. J., delivered the majority opinion of the Court. Barnes, J., dissents.  Dissenting opinion at page 445, infra.

OPINIONBY: HAMMOND

OPINION: [*421] [**390] In June of 1965 Governor Tawes appointed a Commission to study the necessity for revision of the Constitution of Maryland, [*422] to determine whether a convention should be held to prepare the revision and to suggest the procedures for the calling and holding of such a convention. The Commission concluded that a completely new constitution should be prepared by delegates to a convention and submitted to the voters of the State for adoption.

   Pursuant to the recommendations of the Commission the Legislature by Ch. 501 of the Laws of 1966 provided for[***9] a special election to be held at the same time as the primary election of 1966 to take the sense of the voters on whether a convention should be convened, not earlier than September 1, 1967, and not later than September 1, 1968, to frame a new Constitution.  By Ch. 500 of the Laws of 1966 it was provided that if a majority of those voting at the special election voted for a convention it should assemble on September 12, 1967, at such place and for such time as might thereafter be prescribed by law. Chapter 500 also provided that each County and each of the legislative districts of Baltimore City should have the same number of delegates in the convention as Ch. 2 of the Laws of the Special Session of October 11, 1965, prescribed for election to the House of Delegates at the General Election of 1966 from such county and legislative district.

   The special election proposed by Ch. 501 was held on September 13, 1966, concurrently with the primary election. The vote was 160,280 for a constitutional convention and 31,680 against.  Although the number of favorable votes was more than a majority of [**391] the total votes cast in the special election, that number was a minority of the[***10] total votes cast in the primary election.

   When the General Assembly of 1967 began consideration of legislation to provide for the qualifications of delegates to the convention, the manner of their election, their compensation and the duration of and other matters relating to the convention, almost immediately it was confronted with problems, most of which stemmed from the prohibitions of the existing constitution against the holding of more than one office of profit or trust under the constitution or laws of the State.  These legal questions, which included (1) the validity of Chs. 500 and 501 of the Laws of 1966, both of which were enacted as emergency [*423]measures, even though § 2 of Art. XVI of the Constitution provides that no law creating an office shall be enacted as an emergency law, and (2) the eligibility of members of the Legislature and other public officers to serve as delegates to the convention, caused grave concern to the General Assembly and to the Secretary of State, in his case for their bearing on the performance of his functions in relation to the elective process.

   To obtain a solution to the dilemma, the Legislature enacted Ch. 1 of the Laws of 1967[***11] which authorized the Attorney General, on behalf of the General Assembly and the Secretary of State, to institute a declaratory judgment proceeding under Art. 31A of the Code in the Circuit Court for Anne Arundel County against the Board of Supervisors of Elections of Anne Arundel County and such other defendants as the Attorney General deemed appropriate to obtain a declaration of the correct answer to nine questions, lettered (a) to (i) (several of the questions having various subdivisions).  Question (a) was: "Would a delegate to the constitutional convention be the holder of an office within the meaning of Articles 33 and 35 of the Declaration of Rights and Section 6 of Article I and Sections 11 and 17 of Article III of the Constitution of Maryland?" Questions (b) through (g) all were based on the premise that a delegate to the constitutional convention would be an officer and if it were held that he was not these questions, it was, and is, agreed, would not have to be answered.  Question (h) was: "In light of the fact that those voting 'for' the calling of a convention did not constitute a majority of those voting in the election, is the calling of a convention at this time mandatory?" [***12]Question (i) was: "Can the calling of a convention be delayed by a period of two years?" n1

n1 The questions in full were:

   "(a) Would a delegate to the constitutional convention be the holder of an office within the meaning of Articles 33 and 35 of the Declaration of Rights and Section 6 of Article I and Sections 11 and 17 of Article III of the Constitution of Maryland?

   "(b) If a delegate to the constitutional convention would be the holder of such an office, was the office created by Chapter 500 of the Acts of the General Assembly of 1966?

   "(c) If a delegate to the constitutional convention would be the holder of such an office and the office was created by Chapter 500 of the Acts of the General Assembly of 1966, is that Act valid and effective notwithstanding the fact that it was passed as an emergency act?

   "(d) If Chapter 500 of the Acts of the General Assembly of Maryland of 1966 is null and void as an entirety because passed as an emergency act, is Chapter 501 of the Acts of the General Assembly of 1966 thereby rendered invalid, null and void?

   "(e) If Chapter 500 of the Acts of the General Assembly of 1966 is null and void in its entirety, can the General Assembly at its 1967 session call a constitutional convention without another referendum to take the sense of the people on the calling of such a convention?

   (1) if Chapter 501 of the Acts of the General Assembly of 1966 was and is unconstitutional, null and void?

   (2) if Chapter 501 of the Acts of the General Assembly of 1966 was and is valid and effective?

   "(f) If a delegate to the constitutional convention would be the holder of such an office and the office was created by Chapter 500 of the Acts of the General Assembly of 1966, may a person holding another office within the meaning of the Declaration of Rights and Constitution of Maryland also hold the office of delegate to the constitutional convention?

   (1) if such a person does not, in fact, receive compensation as a delegate to the convention whether or not compensation be paid or provided for as to some or all of the delegates to the convention;

   (2) if such person does not receive compensation but receives reimbursement of actual expenses incurred in serving as a delegate to the constitutional convention;

   (3) if such person does not receive compensation but receives a per diem expense allowance for his service as a delegate to the constitutional convention without being required to account for the amount of such expense allowance?

   "(g) If a delegate to the constitutional convention would be the holder of such an office and the office was not created by Chapter 500 of the Acts of the General Assembly of 1966, but will be created by an act of the General Assembly of Maryland enacted at its 1967 session, may a person holding another office within the meaning of the Declaration of Rights and Constitution of Maryland also hold the office of delegate to the constitutional convention?

   (1) if such person does not, in fact, receive compensation as a delegate to the convention whether or not compensation be paid or provided for as to some or all of the delegates to the convention;

   (2) if such person does not receive compensation but receives reimbursement of actual expenses incurred in serving as a delegate to the constitutional convention;

   (3) if such person does not receive compensation but receives a per diem expense allowance for his service as a delegate to the constitutional convention without being required to account for the amount of such expense allowance?

   "(h) In light of the fact that those voting 'for' the calling of a convention did not constitute a majority of those voting in the election, is the calling of a convention at this time mandatory?

   "(i) Can the calling of the convention be delayed by a period of two years?"

[***13]

   [*424] [**392] On February 17, 1967, suit was filed by the Attorney General in the Circuit Court for Anne Arundel County on behalf [*425] of the Legislature and the Secretary of State against the individuals constituting the Supervisors of Elections of Anne Arundel County.  On February 21, a petition to intervene as plaintiff was filed by the Maryland State Bar Association, Inc. (which had been designated in Ch. 1 as an interested entity) and granted, and on February 23 an individual taxpayer was allowed to intervene as a defendant.

   The Attorney General and the Bar Association asked, inter alia, for a declaration that (1) a delegate is not the holder of an office, (2) a majority of persons voting at the election of September 13, 1966, voted in favor of calling a Constitutional Convention, and (3) the assembling of a convention may not be delayed. The Supervisors, on the contrary, answered and prayed the court to declare a delegate to be the holder of an office, that although a majority of those voting in the special election favored a convention, its calling either on September 12, 1967, or between September 1, 1967, and September 1, 1968, is not mandatory, and that[***14] the calling of a convention can be delayed for two years.

   The intervening defendant urged that a delegate is the holder of an office, that the calling of a convention on September 12, 1967, is not mandatory, the matter being in the sole discretion [*426] of the General Assembly, that no special election was properly held for lack of adequate notice, particularly to independent voters and others not interested in the primary election, and since the General Assembly alone has the responsibility of determining whether to call a convention in 1967, the calling of such a convention may be delayed for two years. n2

n2 The plaintiffs and the defendants further disagreed as to the correct answers to questions (b) through (g) if it be declared that a delegate is the holder of an office under the Constitution or laws of Maryland.

   The court (Evans, J.) declared on February 28 that (1) a delegate to the convention is not the holder of an office within the meaning of Articles 33 and 35 of the Declaration of Rights or[***15] the meaning of § 6 of Article I or §§ 11 and 17 of Article III of the Constitution of Maryland; (2) adequate [**393]notice of the special election was given; (3) a majority of the persons voting at the special election of September 13, 1966, voted in favor of a constitutional convention; (4) the assembling of a constitutional convention may not be delayed; and (5) by reason of the adjudication and declaration that a delegate would not be an officer, the remaining issues became moot.

   Chapter 1 of the Laws of 1967 conferred jurisdiction on the Court of Appeals to review the judgment and determination of the Circuit Court for Anne Arundel County and provided that "the decision of the Court of Appeals of Maryland upon such review shall have the same force and effect as any other final decision of the Court * * *." An appeal was taken from Judge Evans' order and we advanced the case, hearing argument on March 6.  On March 7 we affirmed the adjudications and declarations below by per curiam order, all the judges but Judge Barnes concurring.  We now set out the reasons for our affirmance.

   No question was raised below or on appeal as to the jurisdiction of the Circuit Court and the[***16] Court of Appeals to hear and decide the matter. We think it appropriate to say that in our opinion the Circuit Court had jurisdiction under §§ 1, 2, 5 and 6 of Art. 31A of the Code, the Uniform Declaratory Judgments Act.  Under § 1 courts have power "to declare rights, status and other legal relations" whether or not further relief [*427] is or could be claimed.  In the case filed in the Circuit Court there were conflicting claims and the parties were legally, although not personally, hostile.  Section 6 of Art. 31A authorizes granting of relief in all cases in which there is an actual controversy between contending parties or in which the court is satisfied "that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or * * * that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adverse party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving[***17] rise to the proceedings." The proceeding in which the Circuit Court granted declaratory relief met the tests of Art. 31A.  Md. Committee v. Tawes, 228 Md. 412.
 
   Chapter 1 of the Laws of 1967 gave the Court of Appeals its ordinary jurisdiction upon appeal to review the judgment and determination of the Circuit Court for Anne Arundel County.  The Court of Appeals exercises appellate jurisdiction only and the Legislature cannot confer original jurisdiction on the Court, Sevinskey v. Wagus, 76 Md. 335, 336, nor require it to decide a moot question or an abstract proposition, State v. Shields, 49 Md. 301, 305, but the Legislature may confer the right on this Court to hear appeals in special cases provided appellate judicial functions and powers are left untrammeled.  State v. Northern Central Railway Co., 18 Md. 193, 210; Prout v. Berry, 2 Gill 147, 150. In the present case, as in Northern Central, the appellate review authorized by Ch. 1 was the customary review of live, concrete questions fairly presented by the transcript, all of which necessarily were involved in the decision of the trial court, and therefore was permissible.

   We pass to the merits.  Article[***18] 33 of the Declaration of Rights states that no judge shall hold any other office, "civil or military, or political trust, or employment of any kind, whatsoever, under the Constitution or Laws of this State * * *." Article 35 follows to provide that "no person shall hold, at the same time, more than one office of profit, created by the Constitution [*428] or Laws of this State * * *." Section 6 of Art. I of the Constitution recites that "every person elected, or appointed, to [**394] any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto," shall take a prescribed oath of office under which he swears that he will not receive the profits "of any other office" during the term of his acting in the office for which he is qualifying.  Section 11 of Art. III declares ineligible as a senator or a delegate all ministers and all other persons holding "any civil office of profit, or trust, under this State" (except justices of the peace).  Section 17 of Art. III prohibits a member of the General Assembly during the term for which he was elected, from serving in "any office, which shall have been created, or the salary, or profits[***19] of which shall have been increased, during such term." (All emphasis has been supplied.)

   The need for and purpose of these provisions manifestly was to protect against conflicts of interest, self aggrandizement, concentration of power, and the blurring or obliteration of the doctrine of separation of powers, in the performance by the agents of the people of their delegated authorities to exercise the executive, legislative and judicial functions of the organized government.  We think the incompatible and barred offices were intended to be only those created by the Constitution or by the laws enacted pursuant to the Constitution in the exercise of some part of so much of the sovereignty of the people as was delegated to the formal organization which the people of Maryland constituted the current government of the State by the adoption of the Constitution.  Section 56 of Art. III of the Constitution of Maryland confers upon the General Assembly "power to pass all such Laws as may be necessary and proper for carrying into execution the powers vested, by this Constitution, in any Department, or office of the Government, and the duties imposed upon them thereby." The delegated legislative[***20] powers of the General Assembly are plenary, except as limited by the Federal and State Constitutions.  Md. Committee v. Tawes, 228 Md. 412, 439.

   Commentators, lay and judicial, concur almost unanimously in the view that the general power of a state legislature to make, alter and repeal laws, pursuant to the constitution by which [*429] the people created the legislature, does not include the power or the right to make or remake the fundamental law, the constitution.  A state constitution may aptly be likened to a legislative act enacted directly by the people themselves in their sovereign capacity as a political entity (that is, by the voters, for "the original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper," Anderson v. Baker, 23 Md. 531, 619), and therefore is the fundamental, extraordinary act by which the people establish the structure and mechanism of their government.  Cooley, Constitutional Limitations (8th Ed.), p. 355; Jameson, Constitutional Conventions, pp. 84-86, 422 and 586; Hoar, Constitutional Conventions, pp. 80-82; 16 Am. Jur. 2d, Constitutional Law §[***21] 26; Staples v. Gilmer (Va.), 33 S. E. 2d 49, 53; Ellingham v. Dye (Ind.), 99 N. E. 1; State v. Cox, 8 Ark. 436, 444. Essentially, a constitution is fundamental legislation directly by the people acting politically in their sovereign capacity, while a law is a rule of conduct prescribed by the legislative agents of the people under and subject to the delegated limitations of the previously ordained superior legislation, the Constitution.

   This Court has recognized that laws and legislative actions relating to amendment or revision of the constitution differ greatly and significantly from one another.

   In Warfield v. Vandiver, 101 Md. 78, 113-116, the Legislature, acting under Art. XIV of the Constitution, proposed an amendment to Art. I of the Constitution relating to the elective franchise and directed that the proposed amendment be submitted to the voters of the State [**395] in a prescribed manner at the next general election. The governor refused to submit the amendment because the legislative proposal had not been submitted to him for signature or rejection as an ordinary bill would have had to be.  The case was argued well and fully by leading lawyers of the[***22] time.  Chief Judge McSherry, for the unanimous Court on this point, in holding that submission to the governor was not required of a proposed constitutional amendment because it was not a potential law enacted under the Constitution but a potential part of the Constitution, said (pp. 114-116 of 101 Md.):
 
[*430] "The distinction between a bill and a law is carefully maintained throughout the aforegoing section [§ 17 of Art. II providing for the executive veto]; 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.  * * * A bill proposing an amendment to the 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 [***23]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.' * * *

   "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.  * [***24] * * Whilst [*431] 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 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.  [It deals in its second section with taking the sense of the people every twenty years on calling a constitutional convention to undertake a general revision of the Constitution.] The other provisions in other articles to which allusion has been made are confined to law making -- this article (emphasis supplied) is restricted to Constitution making; and the two subjects are widely disconnected in location and in substance."
 
The interpretation Dodd in his book The Revision and Amendment of State Constitutions, p. 150, gives the Vandiver decision is that "The Maryland Court said that the word 'bill' was[***25] used in the amending [**396] clause simply to express a proposal or project, and not in the same manner as the word was used elsewhere in the constitution to refer to bills which should become law by legislative enactment and executive approval."

   The Legislature may not make the effectiveness or validity of a general law depend on its approval by the voters of the State, Brawner v. Supervisors, 141 Md. 586, because the people bindingly delegated to the Legislature the power to make laws, reserving no part of such power to themselves (except by way of referendum), and the delegated power may not be redelegated.  In contrast, neither piecemeal amendments of the Constitution nor total amendment by way of adoption of the recommendations of the constitutional convention can take effect until the voters have given their approval -- to piecemeal revision in the manner provided in § 1 of Art. XIV, and for total revision as provided in § 2 of Art. XIV, and as the Legislature provided in Ch. 4 of the Laws of 1967, passed since the decision below and the affirmance by this Court, or, mayhap, as [*432]Anderson v. Baker, supra, at p. 616 of 23 Md. suggests, by acquiescence[***26] of the people, as happened in the case of the Constitution of 1776.

   While the power of remaking the constitution is not in the Legislature, nevertheless, the Legislature may act to provide the mechanics for changes of the constitution by the people.  To use the Legislature, a body created by the constitution, to provide the mechanics and sinews for changing that constitution by ascertaining the will of the people, for the election of delegates and the submission of their work to the people and at the same time to class their legislative actions as not encompassed by the provisions of the constitution as to laws may at first thought seem so illogical as to be unsound.  Yet it has been accepted generally as sound and proper.  "A supraconstitutional right requiring the assistance of constitutional authority is certainly an anomaly, and yet that is what exists in the case of conventions." Hoar, op. cit. p. 76. This technique is but part of the exercise of the fundamental right of the people to change their constitution whenever and however they deem fit; this right derives not from constitutions, but is a retained inherent right above and beyond the constitution, and therefore actions[***27] of the Legislature making available and supporting the exercise of that right -- which with considerable perception and accuracy has been termed peaceful revolution n3 -- are actions in exercise [*433] [**397] of the people's reserved powers of sovereignty and not actions in exercise of powers delegated by the Constitution.  The Court, in Anderson v. Baker, supra, suggested, if it did not hold, this when Judge Bowie said (p. 616 of 23 Md.):

   "The powers of a Convention of the people of a State assembled to frame a form of Government, are no where defined.  It is the right of the people to alter or abolish, or institute a new Government, 'laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.' The Convention is the depository of the residuary or reserved sovereignty [*434] of the people, unlimited, except so far as restrained by the Constitution of the United States, and the moral law.  Whether this action is dependent upon the subsequent ratification of the people or not, is not clearly established; but when ratified and adopted, or acquiesced in, their acts are[***28] unquestionably within the limits prescribed. The wisdom or wantonness of the act, its effect upon majorities or minorities, are not subjects of judicial cognizance.  These are determined by their adoption."

n3 Jameson, Constitutional Conventions at p. 303 quotes George M. Dallas as saying in 1836 of the forthcoming convention in Pennsylvania: "A Convention is the provided machinery of peaceful revolution.  It is the civilized substitute for intestine war.  * * * When ours shall assemble, it will possess, within the territory of Pennsylvania, every attribute of absolute sovereignty, except such as may have been yielded and are embodied in the Constitution of the United States."

   Philip B. Perlman, an outstanding Maryland lawyer who was later Solicitor General of the United States, in addressing the Maryland Senate Committee on Amendments to the Constitution and the House Ways and Means Committee on March 19, 1931, Journal of Proceedings of the Senate of Maryland (1931) 517, 533, quoted another great Maryland lawyer Reverdy Johnson to the same effect.  Mr. Perlman said:

   "The Constitution of 1867 dropped the method of amending contained in Section 2 of Article XI of 1864, and so, at present we may amend the Constitution by Acts of the General Assembly submitting amendments to the people, or we may call a convention by the vote directed to be held every twenty years.  These methods are set forth in the Constitution.  But there is still another way to constitutional revision sanctioned by precedent in this State, because in Maryland the provisions in the Constitution limiting the methods of calling Constitutional Conventions have never been considered binding.

   "Down through the years comes to us the voice of that great Maryland lawyer, Reverdy Johnson, who defended the legality of the Convention of 1851, called when the Constitution contained no authority for such a convention. And these are his views:

   'No man denies that the American principle is well settled, that all governments originate with the people, and may by like authority be abolished or modified; and it is not within the power of the people, even for themselves, to surrender this right, much less to surrender it for those who are to succeed them.  A provision, therefore, in the Constitution of any one of the United States, limiting the right of the people to abolish or modify it, would be simply void.  And it was upon this ground alone that our Constitution of '76 was superseded by that of '51.'

   "Referring again to the American principle that the people have a right to change their government, he said:

   'In its nature it is revolutionary, but, notwithstanding that, it is a legal principle.'

   Letter to Wm. D. Bowie and others, dated October 7, 1864."

[***29]

   Maryland consistently has recognized and acted upon the principle enunciated in Anderson v. Baker that the people of the State have the fundamental right to alter, modify or abolish and replace their form of government according to their sovereign pleasure.

   Maryland Constitution Conventional Proceedings of 1774, 1775 & 1776 (1836), pp. 184-89, reveals that on July 3, 1776, the Congress or Convention of Maryland, which had been the acting government for some two years, resolved "That a new convention be elected for the express purpose of forming a new government, by the authority of the people only, and enacting and ordering all things for the preservation, safety and general weal of this colony" and that all freemen above twenty-one, owning fifty acres of land or property "in this colony" of forty pounds sterling "be admitted to vote for representatives to serve in the said convention" and that "any person qualified as aforesaid to vote, may be elected a member of the intended convention" if he had resided in the colony for a year preceding the election. Members of the armed forces "of this province" were expressly disqualified.

   The election was set for August 1, 1776, [***30] and the resolving Congress or convention dissolved itself and abrogated its powers and authority as of that date.  The voters duly elected the delegates to the new convention, including a number who had been members of the previous convention. n4 The constitution [*435] they produced, under which the State was governed until 1851, was not [**398] formally ratified by the people, but its making had been authorized by them and it was not finally adopted until their views were known and respected.  Dodd, The Revision and Amendment of State Constitutions, pp. 12-13, indicates that there was direct popular influence on the forming and final adoption of the Constitution, saying:
 
"That some of the people of this state took a lively interest in the organization of government is shown by the fact that B. T. B. Worthington, Charles Carroll, barrister, and Samuel Chase, the two latter undoubted leaders and members of the committee to prepare a form of government, resigned from the convention because they had received 'instructions from their constituents, enjoining them, in framing a government for this state, implicitly to adhere to points in their opinion incompatible with[***31] good government and the public peace and happiness [Maryland Constitutional Convention Proceedings of 1774, 1775 & 1776, pp. 222 and 228 n5].  Although there was no formal reference of the first constitution of Maryland to the people, the action taken by the convention on September 17, 1776, probably served a similar purpose.  The committee had reported to the convention a proposed bill of rights and constitution; action upon this report was postponed until September 30th, and it was resolved 'that the said bill of rights and form of government be immediately printed for the consideration of the people at large, and that twelve copies thereof be sent without delay to each county in the state.' [Id. at 258]"

n4 Including, it would appear from the Maryland Constitutional Convention Proceedings of 1774, 1775 & 1776 (1836), Richard Barnes, Charles Carroll, barrister, Samuel Chase, Jeremiah T. Chase and Matthew Tilghman who presided over both the resolving Congress and the convention it called.

n5 It would appear that, although a special election was suggested to replace them, Worthington, Carroll and Chase reconsidered their resignations and either returned to or remained in the convention. Maryland Constitutional Convention Proceedings of 1774, 1775 & 1776 (1836), pp. 237, 241, 248.

[***32]

   The Constitution of 1776 provided in § 39 that members of [*436] the General Assembly could not hold any other office of profit, a provision proposed and adopted by a convention in which sat members of the prior legislative body. It also provided in Art. 59 that it could not be altered except by Act of two successive legislatures, the second of which had to be after a new election. Yet the Legislature in 1850 passed an act (Laws of 1849, Ch. 346) calling for an election to determine whether the people wanted a constitutional convention called and providing, if they did, for the election of delegates and a subsequent election at which the new constitution would be passed on by the people.  Chapter 346 itself provided that members of the General Assembly "shall be eligible to a seat in the convention to assemble as hereinbefore prescribed, without affecting the tenure of their respective offices." Some -- certainly nine, perhaps eleven, members of the General Assembly served in the convention notwithstanding the provision of § 39 of the Constitution of 1776. n6 The 1851 Constitution came into lawful and effective being by the action of the people, although not in the way prescribed[***33] in the then existing constitution. There seems to have been no challenge to the act calling the convention or the fact that members of the General Assembly sat as delegates.

n6 The roster of delegates elected to serve in the 1850 convention lists nine delegates with names identical to those of nine incumbent members of the 1849 General Assembly and two with the same surname.

   The Constitution of 1851 provided in Art. 32 of the Declaration of Rights that "no person ought to hold at the same time more than one office of profit, created by the Constitution or laws of this State * * *." In the midst of the dissension created on the one hand by Maryland's allegiance to the Union and on the other by sympathy and loyalty to neighbors, friends and relatives of the South, the General Assembly enacted Ch. 5 of the Laws of 1864 providing for a special election "for the taking of the sense of the people upon [**399] the call of a Convention to frame a new Constitution and Form of Government for this State" and at the[***34] same election to provide for the election of delegates to the convention. This call for a convention was not under or in accord with the Constitution of 1851 which provided in Art. XI for the [*437]taking of a vote on the question of calling a constitutional convention after each ten-year federal census, the vote to be taken at the election for delegates to the General Assembly. If the vote turned out aye, the Legislature then was to provide for the election of delegates. There was no other provision for participation by the General Assembly in the amendatory process.  The records show that fifteen members of the General Assembly were elected at a special election not provided for by the then constitution and sat as delegates. Chapter 5 of the Laws of 1864 provided that "any Senator or Delegate may be eligible to a seat in said Convention." The constitution proposed by the convention was approved only by counting in the absent soldiers' vote which was declared to be almost unanimous in approval.  Andrews, History of Maryland 554.

   The Declaration of Rights of the 1864 Constitution, Art. 35, prohibited any person from holding more than one office of profit.  By Art. XI[***35] it provided three ways of amendment.  One was by passage of particular amendments by the Legislature with submission to the voters for ratification.  The second provided that, whenever two-thirds or more of the General Assembly thought a convention was necessary, the question be submitted to the people and, if the people agreed, there should be an election of delegates to the convention. The third provided for the taking of the sense of the people every twenty years on the point at a general election and a subsequent legislative response to a favorable vote by the calling of a convention and the election of delegates.

   The 1867 convention came about largely from the desire of the people to do away with the test oath required for suffrage by the 1864 Constitution which was approved as to legality in Anderson v. Baker, supra. So great was the popular pressure for quick action that the Legislature again ignored the three ways of proceeding set out in the 1864 Constitution and by Ch. 327 of the Laws of 1867, called for a "vote on the question of a call of a Convention to frame a new Constitution and form of Government" and for the assembling of a convention and the election of delegates[***36] (in which clergymen, members of Congress, judges, state's attorneys and other officers, but not legislators, could not seek election as delegates).  Four members [*438] of the Legislature of 1867 served as delegates to the Convention of 1867 including the president of the Convention, Richard B. Carmichael, a resident of Queen Anne's County, who had been dragged from his judicial bench in Talbot County in 1862 by Union soldiers and put in prison (having finally been released without being brought to trial).

   The Convention of 1867 and the subsequent approval of the voters produced the constitution under which, with amendments, we have since lived.  The three earlier constitutions each had provided for alteration or change as therein specified.  Perhaps because these prior constitutional provisions had successively been honored in the breach more than in the observance, when the Constitution of 1867 was proposed and adopted, it made no provision for complete amendment save to provide (§ 2 of Art. XIV) that it should be the duty of the General Assembly "to provide by Law" for taking at the general election of 1887 "and every twenty years thereafter" the sense of the people in regard[***37] to calling a convention for altering the constitution (the present section, amended in 1956, makes 1970 the next year for a taking of the sense of the people) and, if the people vote for a convention, to provide for its assembling and the election of delegates. The sense of the people to call a convention has on several occasions been ignored by the Legislature ostensibly, at least once, because of [**400] a legal opinion that a majority of the voters voting at the general election must ask for a convention and this had not occurred although a majority voting on the particular question of whether to call a convention had approved a call.

   Instead of providing for required ways for complete revision or amendment under its terms, the Constitution of 1867 by Art. 1 of the Declaration of Rights set forth ringingly:

   "That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole; and they have at all times, the inalienable right to alter, reform or abolish their Form of Government, in such manner as they may deem expedient."

   The people of Maryland from 1776 until today have shown [*439] that they concur[***38] in the generally prevailing view, which we believe to be sound, that the people retain the sovereign power to rewrite their constitution, that the legislative processes which lead to and assist in the exercise of that power are not a part of the previously bindingly delegated powers conferred on the Legislature by the people, that those who are selected to sit in convention and do the rewriting of the Constitution are selected directly by the people and therefore are the direct agents of the people, rather than agents of the organized government, which is the State.  The people also have shown that in their opinion, which we share, the offices which are rationed by the constitution one to a customer or the office which may not be held by one who helped create the office are offices which are established by the Constitution or by a law which implements or aids the execution of executive, legislative or judicial functions created by the Constitution, and that an agent of the people who helps create a new constitution does not hold an office within that category.  These prior views and actions of the people are entitled to great respect and have aided us greatly in reaching the conclusion[***39] that a delegate is not a constitutional officer.

   More support for that view is furnished by a consideration of the guiding standards that the cases have evolved to test whether a position is an office. These tests were reiterated in Moser v. Howard County Board, 235 Md. 279, 281, in this wise: 1. the position was created by law and casts upon the incumbent duties which are continuing in nature and not occasional; 2. the incumbent performs an important public duty; 3. the position calls for the exercise of some portion of the sovereign power of the State; 4. the position has a definite term, for which a commission is issued, a bond required and an oath required; 5. the position is one of dignity and importance.

   Certainly a delegate to a constitutional convention performs a highly important public duty of great dignity.  However, the position he holds was not, under the principles which we see as controlling, one created by law as the term law is used in the definition.  The duties a delegate performs are in a sense "continuing in nature and not occasional" and in a way the position "has a definite term," but only four constitutions have been adopted in Maryland in one hundred[***40] ninety-one years and [*440] the making of a constitution which, like the century plant, has taken a hundred years to bloom may fairly be said to be occasional. A delegate to a convention, like the male honeybee who mates and dies (Maurice Maeterlinck, The Life of the Bee (1964 Ed.), p. 194 -- "the unique kiss of an instant that shall wed him to death no less than to happiness"), performs his creative duty and then ceases to exist as a public functionary since the position of delegate to the convention of which he is a member ends with the convention. The idea of continuity contemplated by the ordinary test for an office is lacking in the case of a delegate to a convention.

   [**401] Most importantly, a delegate does not exercise any part of the sovereign power of the State -- that is, any part of the sovereignty delegated by the people through their constitution to the executive, legislative or judicial branches of the government, even though, we may assume, he does exercise some part of the sovereign power retained by the people and by them committed to him to help create a new constitution.

   Various courts have shared the concept we hold of the status of a delegate. [***41]In State v. Doyle (La.), 70 So. 322, 323, it was said:

   "Such delegates [to constitutional conventions] are agents of the people chosen to represent their constituents for a particular public purpose.  They have never been styled officers, and hold no office in the sense of the Constitution.  A constitutional convention is not a co-ordinate branch of the government.  It exercises no governmental power, but is a body raised by law, in aid of the popular desire to discuss and propose amendments, which have no governing force as long as they remain propositions."
 
See also State v. Rogers (La.), 70 So. 863, and Baker v. Moorhead (Neb.), 174 N. W. 430, 432 ("They [the delegates] are not constitutional officers in a strict sense; they are officers who create a Constitution rather than officers who are created by the Constitution").  In Chenault v. Carter (Ky.), 322 S. W. 2d 623, 626, the Court held that the choice of whether a convention should be called rested ultimately entirely with the electorate and said: "The delegates to the convention are the agents [*441] not of the legislature, but of the people themselves." Frantz v. Autry (Okla.), 91 Pac. [***42] 193, held that (p. 202):
 
"* * * In a territory, the source of all power is Congress.  But in the formation of a Constitution and state government the power emanates from the people.  The delegates to the convention were not the agents or representatives of Congress [i.e., the existing government] but they were the immediate agents and representatives of the people of the two territories.  They derived their power and authority from the people in their sovereign capacity."
 
Hoar, op. cit. p. 186, in indicating disagreement with the position of Jameson ( op. cit. pp. 317-20) that a delegate to a convention is an officer, says: n7

   "The position of delegate to the Illinois convention was undoubtedly a position of public trust, and even a public office; but was not, if we regard such conventions as extraconstitutional, a position under the constitution. When a constitution refers to the incompatibility of offices, such provisions should be construed as relating solely to positions under the constitution itself and not to apply to any other positions unless clearly so stated."
 
Hoar then quotes an opinion of an Attorney General of Massachusetts as follows [***43](p. 187):

   "'It is my view that the word "office," as used in article VIII of the Amendments, refers to a position the incumbent of which exercises some power of government, and not to the position of a person selected to act in an advisory capacity in framing a scheme or change of government to be submitted to the people for adoption or rejection.'"
 
[*442] Hoar comments:

   "It does not appear necessary to debase the convention in this way in order [**402]to reach his [the Attorney General's] conclusion.  It would be sufficient to hold that the word 'officer' in the constitution means constitutional officer."

n7 Jameson devoted his book to showing that the Illinois Legislature was superior to and supreme over the pending Illinois constitutional convention and this devoutly missionary point of view colored his reasoning and conclusions on many points.

   The disposition of the matters involved in questions (h) and (i) requires little discussion.  The form of both questions shows[***44] that necessarily they were submitted by the Legislature on the premise that it, in its discretion, could either call or not call a convention "at this time" or delay the call for two years.  The parties, we must assume, proceeded before the Circuit Court on the agreement that this premise which was implicit in questions (h) and (i) was correct for Judge Evans in his opinion said: "It is undisputed that the General Assembly has the inherent power to call a Constitutional Convention at any time. n8

n8 The authorities almost unanimously agree that a state legislature has the inherent power to call for a convention at any time, where the constitution is silent on the subject or where a permissive periodic interval for such a calling is established in the existing constitution.  See Jameson, Constitutional Conventions, §§ 219, 394-403, 570, 571, 574; Dodd, The Revision and Amendment of State Constitutions, p. 44 ("It has now become the established rule that where the constitution contains no provision for the calling of a convention, but has no provision expressly confining amendment to a particular method, the legislature may provide by law for the calling of a convention"); Hoar, Constitutional Conventions, Ch. V; Cooley, Constitutional Limitations (8th Ed.), p. 85; In re Opinion to the Governor (R. I.), 178 Atl. 433; City of Bessemer v. Birmingham Electric Co. (Ala.), 40 So. 2d 193, 197.

[***45]

   In answering the claim that the calling of a convention was not mandatory because the number of voters favoring a convention was not a majority of all who voted on September 13, and therefore the vote was not in favor of a convention, Judge Evans pointed out that the election was not held pursuant to Article XIV, § 2, of the Constitution but by Chapters 500 and 501 of the Laws of 1966, enacted under the inherent power to call a convention at any time and the provisions of § 2 of Art. XIV did not apply, and that the election was a special election [*443] at which the only issue presented was whether or not to call a convention and those favoring the call did constitute a majority of those voting at that election. He said:

   "The use of the words 'special election' throughout these two Acts [Chapters 500 and 501 of the Laws of 1966] makes it clear that the referendum as to the calling of a Convention was not part of the primary election. It was an entirely separate election, at which only the one question was in issue.  The majority vote on that one question constituted a majority vote at the entire election. Persons unaffiliated with either political party were permitted[***46] to vote on this one question; this makes inescapable the conclusion that it was not part of either party primary, but a separate special election.

   "Several courts have sustained the proposition that a special election may be held concurrent with a general election without losing its separate and special character.  In Houston v. Boltz (1916), 169 Ky. 640, 185 S. W. 76, a special election to approve the issuance of bonds, though held simultaneously with a general election, was still declared to be special.  The Court stated, at page 78:

   'It would seem, therefore, that holding the election on a day different from the regular election day is not one of the essentials of a special election. When, therefore, section 157a of the Constitution provided that the vote on the road-bond issue should be taken at a special election, held in such manner as may be provided by law, and the law upon the subject does not require the election to be held upon a day different from the general election day, it follows that the special election may be held upon the general election day.  It is nevertheless a special election, because it has been specially called for the [**403] purpose of voting[***47] upon a proposition specially submitted. And we see no reason why the proposition submitted should not be printed upon the [*444] ballot used in the general election held upon the same day.'
 
See also Eberhardt Const. Co. v. Board of Com'rs. (1917), 100 Kan. 394, 164 Pac. 281; Munce v. O'Hara (1940), 340 Pa. 209, 16 A. 2d 532; Derryberry v. State Board of Election Com'rs. (1924), 150 Tenn. 525, 266 S. W. 102.

   "One of the intervenors [the individual defendant] attacked the validity of the special election, contending it was not properly advertised and, therefore, there was only one election and Chapters 500 and 501 did not receive a majority of the votes cast at the election. [The intervenors' argument goes on to say that] the issue not having received a majority of the votes cast, the General Assembly is not required to call a Constitutional Convention.

   "Chapters 500 and 501, on their faces, show that they were to be voted on at a special election. The stipulation and exhibits clearly show that if the various advertisements did not meet with the letter of the law, it was substantially complied with and voters in every part of the State received [***48]actual notice of the special election. At this point, the law requires no more.  [Dution v. Tawes, 225 Md. 484]

   "The character of the referendum as a special election distinguishes it from the referenda held at general elections under Article XIV, Section 2, and makes the majority affirmative vote a direct mandate of the people.

   "The final question to be considered is: (i) can the calling of the Constitutional Convention be delayed by a period of two years?

   "By enacting Chapter 501 of the Acts of 1966, the General Assembly put to the electorate the question 'whether there shall be called a Convention not earlier than 1 September 1967 and not later than 1 September 1968,' and by enacting Chapter 500, put to the electorate the question whether the Convention shall be assembled on 13 September 1967.  Both Chapters [*445] 500 and 501 were approved by the voters by a 5-to-1 vote.  The convention was called by the Legislature and confirmed by the people.  The General Assembly cannot ignore this mandate.

   "It is true that the General Assembly did not have to take the sense of the people in 1966.  But having submitted the question to the people in proper legal fashion, it bound[***49] itself to the mandate expressed by them.  The people have spoken in clear and unmistakable terms, and the Legislature is bound to obey.  The only thing remaining to be done is to provide for the election of delegates."

   We agree generally with Judge Evans' views on questions (h) and (i) and from this and what we have said earlier in this opinion it is apparent why we affirmed his order that it was mandatory that a convention be called at this time and that the call could not be delayed. Since the passage of the order below and the affirmance in this Court the Legislature by Ch. 4 of the Laws of 1967 has provided for the early call of a convention and established the mechanics for the election of delegates on June 13 of this year and their subsequent meeting on September 12.  Questions (h) and (i) have in effect become moot and any further discussion of them would not, as we see it, be fruitful.

DISSENTBY: BARNES

DISSENT:  
Barnes, J. dissenting:

   I dissent because I disagree with the answers given to all of the questions considered in the majority opinion, although I do agree with the majority that the lower court and this Court had jurisdiction to consider and determine the questions[***50] propounded for the reasons set forth in the majority opinion.  I am of the opinion that both Chapters 500 and 501 of the Acts of the General Assembly of Maryland are unconstitutional as being in conflict with the provisions of Article XIV, Section 2 of the Maryland Constitution providing for the taking of the sense of people of Maryland in regard to the calling of a Constitutional Convention at the general election of 1970.

   In my opinion the most important question -- inherent in [*446] Question (i) propounded to us -- is whether Chapters 500 and 501 are rendered unconstitutional because they conflict with Article XIV, Section 2 of the Constitution.  If these Acts are unconstitutional, obviously the proposed Constitutional Convention cannot be held on September 12, 1967 or indeed, upon the call of the General Assembly, until it has taken the sense of the people in regard to such a call at the General Election of 1970 and a majority of voters at such election shall vote for a convention.  In other words, I would have answered Question (i) -- "Can the calling of a Constitutional Convention be delayed by a period of two years?" "Yes, and it must be delayed until[***51] the conditions required by Article XIV have been fulfilled." It would then not have been necessary to answer any of the other questions at this time.

   Both the lower court and the majority of this Court have given primary consideration to the question of whether or not delegates of the proposed Constitutional Convention would hold no "office under the Constitution or laws of this State" as the most important question presented.  Counsel for the original parties also so considered it and the very helpful briefs filed on behalf of those parties gave it careful and exhaustive attention.  Counsel for the intervening defendants, however, raised, briefed and argued other questions in regard to the validity of holding the Convention on September 12, 1967.

   Although the issue of whether or not delegates are "officers" may well have been of primary importance as a practical political matter -- possibly to induce the General Assembly to pass the enabling legislation at the 1967 Session -- it is to my mind, rather unimportant so far as the basic constitutional issues are concerned.  I say this because even if it had been decided by the majority of the Court that delegates to the Constitutional[***52] Convention were such officers, it would not, in my opinion, have prevented the Constitutional Convention from meeting but would only have excluded the present members of the General Assembly and others from being members of the Constitutional Convention, as will be more fully considered when this issue is considered later in this opinion.  In view of the fundamental character of the question of the constitutionality of Chapters 500 and 501, I will consider this issue first.

   [*447] I.
 
Unconstitutionality of Chapters 500 and 501 of the Acts of 1966 as being in conflict with Article XIV, Section 2 of the Maryland Constitution.

   Article XIV of the present Maryland Constitution provides as follows:

   "Section 1. Proposal in General Assembly; publication; submission to voters; Governor's proclamation.

   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 Amendment. [***53] 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, once a week for four weeks immediately 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 votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and thenceforth said amendment or amendments shall be part of the said Constitution.  When two [***54] [*448] or more amendments shall be submitted in manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.
 
Section 2. Constitutional conventions.

   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 nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering this Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Law for the assembling of such convention, and for the election of Delegates thereto.  Each County, and Legislative District of the City of Baltimore, shall have in such Convention a number of Delegates equal to its representation in both Houses at the time at which the Convention is called.  But any Constitution, or change, or amendment of the existing Constitution, which may be adopted by such Convention, shall be submitted to the voters of this State, and shall have no effect unless the same shall have been adopted [***55]  by a majority of the voters voting thereon." (Emphasis supplied)

    Article 1 of the Declaration of Rights provides:

   "That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient."

   Our predecessors have held that the Declaration of Rights and the body of the Constitution are to be construed as one document, Mayor & C. C. of Baltimore v. State, ex rel. Board of Police of the City of Baltimore, 15 Md. 376 (1860), and if the provisions of the body of the Constitution are clear and unambiguous those provisions are to be taken as a limitation upon the general principles declared in the Declaration of Rights.  Anderson [*449] v. Baker, 23 Md. 531, 628 (1865). Construing Article 1 of the Declaration of Rights and Article XIV of the body of the Constitution together, it seems clear to me that a Constitutional Convention can, under Article 1 of the Declaration of Rights be called by the direct action of the people themselves at any time.  Although [***56]this is difficult of practical accomplishment, it could be done, for example, by a petition of a majority of the electorate that a Constitutional Convention be called.  Action in regard to changes in the Constitution or in the call of a Constitutional Convention by the General Assembly -- as contrasted by direct action by the people themselves -- is strictly limited by Article XIV of the body of the Constitution.

   Section 1 of Article XIV makes clear and quite definite the procedure to be followed by the General Assembly in proposing amendments to the Constitution. This procedure requires an affirmative vote of three-fifths of both Houses in favor of the proposed amendment, recorded in their respective Journals, adequate publication of the text of the proposed amendment, and submission to the electorate at the "next ensuing general election," for adoption or rejection. Section 1 provides that if a "majority of the votes cast at said election on said amendment or amendments", and if it appears to the Governor that a majority of the votes cast thereon were in favor thereof, the Governor shall declare that the amendment has been adopted, and thereafter, the amendment[***57] becomes part of the Constitution.  These provisions of Section 1 have been held by our predecessors to be mandatory and not directory, Hillman v. Stockett, 183 Md. 641, 39 A. 2d 803 (1944).

   Section 2 of Article XIV mandatorily imposes the duty on the General Assembly to take "at a general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering the Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Law for the assembling of such Convention * * *." When a proposed new Constitution is framed by the Convention it "shall be submitted to the voters of this State and shall have no effect unless the same shall have been adopted by a majority of voters voting thereon.

   [*450] The original provision of Article XIV in the Constitution of 1867 was that the sense of the people should be taken at the general election in 1887 and every twenty years thereafter.  The date "1887" was changed to "1970" by an amendment adopted[***58] by the electorate in 1956.  In other words, the people considered the very problem of a legislative taking of the sense of the people to call a Constitutional Convention not quite 21 years ago and decided that no such action by the General Assembly should take place until 1970 at the earliest.

   This Court has held that the language of the Constitution was carefully chosen by its draftsmen and that the Courts should give great importance to the actual words used in construing the Constitution.  Buchholtz v. Hill, 178 Md. 280, 13 A. 2d 348 (1940).

   The lower court was of the opinion that the General Assembly had implied powers to take the sense of the people at times other than as specifically prescribed for in Section 2 of Article XIV.  Curiously enough, the majority of this Court apparently adopts this position and quotes from the lower court's opinion to that effect, notwithstanding the citation in Note 8 of the authorities indicating that such "implied powers" or "inherent power" supposedly exists (quoting from Dodd, "The Revision and Amendment of State Constitutions", p. 44) "where the Constitution contains no provisions for the calling of a convention, but has no[***59] provision expressly confining amendment to a particular method * * *."

   As has been pointed out, in the Constitution of 1867 there is both a provision "expressly confining amendment to a particular method in Section 1 of Article XIV and there is also a provision for the calling of a Constitutional Convention in Section 2 of Article XIV.

   It seems manifest that the General Assembly has no "inherent" or "implied" power to do an act directly contrary to the express provisions of the Constitution itself.  If the contrary should ever be the law, the death-knell of constitutional government will have been sounded, as one of the principal reasons for a written constitution is to impose limits on the power of government in order to protect the liberty of the individual citizen.  If the legislative branch of the State government can, at will, disregard [*451] express limitations in the Constitution, we will have reverted to the British system of absolute parliamentary supremacy from which I had thought we had happily escaped by the success of the War for American Independence, the establishment of State and the Federal Constitutions and the enforcement of limitations in those[***60] documents by the Courts.  There simply cannot be any inherent or implied powers in the General Assembly contrary to the express provisions of the Constitution itself.

   As Judge Offutt, for the Court, stated in Brawner v. Supervisors of Elections , 141 Md. 586, 604, 119 Atl. 250 (1922):

   "The people adopted the Constitution and the people alone can change it, and while it stands unchanged it is the supreme law binding and controlling this Court as well as every other department of the State's government and its people, and when changed conditions make it desirable to amend its provisions, the amendment must be made in accordance with and not in violation of its mandates."

   Judge Delaplaine, for the Court, stated in Johnson v. Duke, 180 Md. 434, 442, 24 A. 2d 304, 308 (1942):

   "It is the sacred duty of the Courts to preserve inviolate the integrity of the Constitution.  Hence it would be a violation of their duty to treat the fundamental law as subject to modification except in the conformance with constitutional methods."

   * * *

   "The Constitution of the State is a higher authority than any act or law of any officer or body assuming to act under it, for such an officer[***61] or body must exercise a delegated authority subservient to the basic law by which the delegation was made.  In case of conflict the Constitution must govern, and the act or law in conflict with it must be held to have no legal validity."

   Jameson on Constitutional Conventions (4th ed. 1887), § 574 f, pages 617-618, states the following:

   "To determine the degree of strictness with which constitutional provisions authorizing the call of Conventions [*452] must be pursued, in the absence of restrictive words, mandatory in their effect, is more difficult.  1. If the position hereinbefore taken be correct, that a legislature, under our constitutional system, has power to call a Convention to amend or revise the Constitution, though not expressly authorized, the case presented by the facts supposed would be this: A legislature having a general power to call a Convention, at its discretion, is expressly given power to do the same thing under certain conditions.  What inference is warranted as to the intention of the people in imposing those conditions?  Obviously, that they were not content longer to leave so important a power to the unlimited discretion of the legislature, [***62] but desired to restrict it by express declarations of their will as to the time when, the purpose for which, and the number and character of the voters by whom, a Convention might be called.  If this inference be just, the conditions laid down for the exercise of the power become, in effect, positive prohibitions upon its exercise in any other way, in conformity to the maxim, good both in civil and the common law, expressum cessare facit tacitum.  In this reasoning, the people of the United States have generally, I might say universally, acquiesced, though occasional attempts have been made, under strong temptation, to induce the legislatures of some of the States to discredit it.  Thus, the Illinois Constitution of 1848 provided, that whenever two-thirds of all the members elected to each branch of the General Assembly should think it necessary to alter or amend the Constitution, they should recommend to the electors at the next election of members of the General Assembly to vote for or against a Convention; and if it should appear that a majority of all the electors of the State voting for representatives had voted for a Convention, the General Assembly, at their next session, [***63] should call a Convention. In 1867, members of the dominant party in the State, desiring an early change of the Constitution, and impatient of the delay necessitated by its [*453] strict terms, attempted to carry through an act to call a Convention by what was styled 'a short cut,' that is, upon a vote of the people alone, omitting a reference of the subject to the next session of the General Assembly to make the call, should that vote favor it, as required by the Constitution.  Happily, the scheme was defeated, and the wiser course taken of obeying to the letter the supreme law of the State."

   Not only is there no implied or inherent power by the General Assembly to take the sense of the people and then call a Constitutional Convention otherwise than as provided in Section 2 of the Constitution as a general principle, but the history of Article XIV in prior Constitutions and of its adoption by the Constitutional Convention which drafted the present Constitution of 1867 shows conclusively to me that there was no intention that the General Assembly should have this power.

   The Constitution of 1776 contained no provision for the taking of the sense of the people and for the[***64] calling of a Constitutional Convention. Article LIX of that Constitution provided that a change in it could be made by a bill passed by the General Assembly and provided it was passed at least three months before a new election of delegates to the General Assembly and was confirmed by the General Assembly containing those newly elected delegates. Pursuant to this provision the Constitution of 1776 was amended in 1792, 1795, 1798, 1803, 1805, 1807, 1809, 1810, 1812, 1837 and 1846.

   In the Constitution of 1851 the forerunner of Section 2 of Article XIV appeared as Article XI of that Constitution and provided, in relevant part, as follows:

   "It shall be the duty of the legislature, at its first session immediately succeeding, ascertaining, at the next general election of delegates, the sense of the people of Maryland in regard to the calling of a Convention for altering the Constitution, and in case the majority of votes cast at said election shall be in favor of calling a convention, the legislature shall provide for assembling such Convention * * *." (Emphasis supplied)

   [*454] In the Constitution of 1864, Article XI of that Constitution contained three provisions[***65] in regard to constitutional changes. Section 1 was almost identical with Section 1 of the present Constitution in regard to amendments to the Constitution.

   Section 2, however, was quite significant.  It prescribed:

   "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; and if a majority of all the electors voting at said election shall have voted for a Convention, the General Assembly shall at their next session, provide by law for calling the same." (Emphasis supplied)
 
Section 2 then provided that the convention shall consist of as many members as there are members of both houses of the General Assembly and that the Convention shall meet within three months of this election.

   Section 3 is quite similar to Section 2 of Article XIV of the present Constitution and provided as follows:

   "At the general election to be held in the year one thousand eight hundred and eighty-two and in each twentieth year thereafter, [***66] the question, 'Shall there be a convention to revise, alter or amend the constitution,' shall be submitted to the electors of the State, and in any case a majority of all the electors voting at such election shall decide in favor of a convention, the general assembly at its next session shall provide by law for the election of delegates and the assembling of such convention, as is provided in the preceding section; but no amendment of this constitution agreed upon by any convention assembled in pursuance of this article shall take effect until the same shall have been submitted to the electors of the State, and adopted by a majority of those voting thereon." n1 (Emphasis supplied).

n1 The report of the Committee on Future Amendments to the Constitution was submitted to the 1864 Convention on May 27, 1864.  See "Proceedings of the Maryland Constitutional Convention," p. 119.  There were attempts to amend the proposed draft by changing the required legislative majority in Section 2 from "two-thirds" to "three-fifths"; an amendment of Section 2 to provide that the legislature should not impose restrictions as to the qualifications of delegates to the Convention; a change in Section 3 from 1882 to 1872 and a change in the 20-year requirement in Section 3 to a 10-year requirement.  All of these proposed amendments were rejected by the Convention. Id. pgs. 375 to 377.  The report of the Committee was adopted as originally submitted by a substantial affirmative vote.  Id. p. 388.

[***67]

   [*455] In the present Constitution of 1867, the substance of Sections 1 and 3 of Article XI of the Constitution of 1864 was retained, but the provisions of Section 2 in regard to submitting the question of a call for a Constitutional Convention by the General Assembly to the people was entirely eliminated.  This can only mean that the draftsmen of the Constitution of 1867 did not intend that the General Assembly should thereafter have the power delegated to it by Section 2 of the 1864 Constitution, but should be confined to the power and duty given it by Section 3 of the 1864 Constitution which, in substance, became Section 2 of Article XIV of the present Constitution.

   There was good reason to remove the formerly delegated power to the General Assembly to submit the issue of a call for a Constitutional Convention at any time to the people.

   As several of the authorities cited in the majority opinion indicate, the preparation and adoption of a new Constitution is a "peaceful revolution." Revolutions, whether peaceful or accomplished by force, are upsetting, productive of much litigation, expensive and are only resorted to as a last resort when conditions under the[***68] established Constitution or government have become so intolerable that a change must be made.  As the Declaration of Independence aptly stated: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes," and that experience had shown that "mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed * * *." Much of the Declaration of Independence is given over to listing the oppressions, usurpations, [*456] cruelties and outrageous conduct by the British Government which justified the Colonies in separating from the mother country.

   When the Constitution of 1867 was adopted, Maryland had had three Constitutions in sixteen years.  This was in itself upsetting to the orderly and regular processes of government.  By providing for the submission of amendments at any time by the General Assembly and for a taking of the sense of the people for a Constitutional Convention every twenty years and the calling of such a Convention if a majority of votes cast at a general election favored such a call, the people had given all of the power[***69] necessary or thought to be expedient for changes in the Constitution.  All other power for such changes was reserved to the people themselves and could not be exercised by the General Assembly.

   As indicated in the majority opinion, the power to amend the 1867 Constitution has been freely -- in the opinion of many, too freely -- exercised by the General Assembly, there having been 203 amendments adopted since 1867. This is an average of over two a year since its adoption.  This hardly indicates that the will of the people in the face of changed conditions has not been made effective.  The remarkable programs of public works and other activities by various State administrations operating under the present Constitution conclusively indicate that the governmental powers granted by the present Constitution are ample to insure the growth and well being of proper State programs.  Nothing appears in the record in this case -- nor have I heard -- any contention that any citizens have been oppressed, any rights denied, any legitimate interests adversely affected or impaired by the present Constitution, as so amended.  If any such conditions should arise, undoubtedly they could be cured by[***70] amendment.  It had been alleged that the present Constitution is not a tidy instrument, that it is too long, too detailed, contains unclear and obsolete language and the like.  But these adverse criticisms -- if legitimate -- in my opinion, go to matters of form and not to matters of substance.  In any event, they are such matters as could well wait until 1970 in order to ascertain whether a majority of the voters at a general election believe that they are sufficiently important to justify the calling of a Constitutional [*457] Convention to draft a new Constitution, with its attendant expense, subsequent litigation and generally upsetting effect.  No doubt the draftsmen of the 1867 Constitution had these factors in mind, and deliberately removed from the General Assembly and reserved to the people themselves, the power to issue a call for a Constitutional Convention except as provided in Section 2 of Article XIV.  The authorities appear to confirm my opinion in this regard, as the maxim, "Expressio unius est exclusio alterius" is applicable to the construction of constitutional provisions.  See O'Connor v. Armstrong, 299 Pa. 390, 149 Atl. 655 (1930); Harbert [***71]  v. Harrison County Court, 129 W. Va. 54, 39 S. E. 2d 177 (1946); Yelle v. Bishop, 55 Wash. 2d 286, 347 P. 2d 1081 (1959); Whitney v. Bolin, 85 Ariz. 44, 330 P. 2d 1003 (1958). See also 16 C.J.S. Constitutional Law, § 21, page 89.

   It should be observed that Chapter 501 of the Acts of 1966 purports "to take the sense of the voters of this State," as appears in the title and the body of the Act, using almost the same language as appears in Section 2 of Article XIV of the Constitution.

   II

   The calling of a Constitutional Convention is not mandatory because those voting "for" the call did not constitute a majority of those voting at the election.

   This issue was presented by Question (h).  As I have already indicated that the Constitutional Convention cannot at this time be called at all, it is, of course, not necessary to answer the question.  Since the issue was pressed and argued by the intervenors, I think it should be answered.

   In my opinion, apart from the unconstitutionality of Chapters 500 and 501 already mentioned, I am of the opinion that the General Assembly had no power whatever to take the sense of people at any special election, whether conducted [***72]by itself or as a part of a primary election. The "sense of the voters" means the sense of a majority of the electorate. Our past experience has indicated that the majority of the electorate is present at general elections and not at primary or special elections. Assuming, for the argument, that the General Assembly had inherent or implied power to issue the call, there is most certainly no inherent or implied power to submit the issue at any [*458] election other than a general election. Without exception in every prior constitution both amendments and the taking of the sense of the people for a Constitutional Convention have been required to be presented to the electorate at a general election. Laws referred to the people by Referendum pursuant to Article XVI of the present Constitution must be submitted to the electorate at a general election. Why?  Obviously because such an important change in the basic law of this State should not be made or brought to pass by a small minority of the electorate. To permit submission of such basic constitutional changes at other than a general election frustrates the very concept of majority rule.  The requirement of the necessity[***73] of a majority vote of the electorate at a general election is even more important when considering the call of a Constitutional Convention and without exception every Constitution providing for such a call has required that a majority of those voting at the general election vote in favor of the call.

   In the course of debate on this question at the Constitutional Convention in 1851, Alexander Randall of Anne Arundel County aptly observed:

   "If there should be a majority of the people in favor of such a change, and desirous of calling a Convention, and if such Convention should be called, then the chances were greatly in favor of the adoption of the Constitution framed by it.  On the other hand, the chances were very much against the adoption of a Constitution, the work of a Convention called into existence by a mere majority of the voters who may have cast their votes in favor of such a course over those who cast their votes against it, regardless of the fact that those who voted for the Convention, and it may be united even with those who voted against it, that all who then voted on the subject did not constitute a majority of the voters of the State." Vol. 2, "Debates of Maryland[***74] Constitutional Convention," 1851, page 378.
 
I know of no authority for the submission of a call of a Constitutional Convention at any election other than a general election and none is cited in the opinion of the lower Court or in [*459] the majority opinion of this Court.  The results in this very case graphically show that only a small minority of the electorate who voted in the general election of November 8, 1966, or even of those who voted in the "primary-special" election of September 13, 1966, voted in favor of the call.  From Exhibit 1 filed in the lower court by Joshua F. Cockey of B., the individual intervenor, and other data, the following appears, taken from the figures prepared by the Office of the Secretary of State on the September 13, 1966 Maryland Primary Election and on the November 8, 1966 General Election.
 
   In the Primary Election of September 13, 1966, there were cast, statewide, for Governor a total of 609,747 votes, while only 191,960 votes were cast on the Convention Question, so that only approximately 31.5% of the votes cast at that election were cast either for or against the calling of a Constitutional Convention. Of the 191,960 votes on the[***75] question 160,280 were for the call and 31,680 were against, so that only approximately 26.3% of those voting at the primary election for Governor voted in favor of the call.  Only 11.5% of the registered voters of Maryland as of August 15, 1966 voted for the call of a Convention.

   At the general election of November 8, 1966, 919,760 votes were cast for Governor. Of those voting at that election, 538,360 voted on the Bay Bridge Question presented by referendum, or 58.5% of those voting for Governor in that election. If the proposed call had been presented to the voters at the general election of November 8, 1966, a majority of 459,881 votes would have been required for the approval of the call -- a far cry from the 160,280 votes cast for it at the primary election of September 13, 1966.  What possible legal justification can there be for purporting to take the "sense of the voters" at a "primary-special" election -- known to have a smaller vote than the vote cast at a general election -- when only some eight weeks later there would be a general election in the State at which the call with other issues, could have been submitted, and the real sense of the people taken?  I conclude[***76] that the sense of the voters has not yet been taken or received by the General Assembly and the attempt to take it at a "primary-special" election was unconstitutional and abortive.

   It seems clear that under a provision for the calling of a Convention [*460]if the majority of the electors voting at a general election shall decide in favor of calling a Convention, the proposal must be adopted by a majority of the qualified electors voting at the election and not merely by a majority only of the electors voting on the proposal itself.  See Stoliker v. Waite, 359 Mich. 65, 101 N. W. 2d 299 (1960); People v. Alger, 323 Mich. 523, 35 N. W. 2d 669 (1949).

   Assuming arguendo, that Chapters 500 and 501 of the Acts of 1966 were constitutional, in my opinion, the intervenors are correct in their position that in the absence of a majority of those voting in the election of September 13, 1966, it was not mandatory upon the General Assembly to call the Constitutional Convention. The call was submitted to the voters at the primary election of September 13, 1966.  This election was in fact all one election and it cannot be fragmented by calling it a special election to be held[***77] at the same time as the primary election. There were only one set of voting places, one group of election officials and, most importantly, the proclamation of the election was not that the call was submitted at a special election but was submitted at the primary election at which election the issue should be submitted.  The heading of the proclamation was as follows:

   "Proclamation of the Governor of Maryland directing publication of bill to submit to voters at time of primary election, question of calling Convention to frame a new Constitution for Maryland." (Emphasis supplied)

   In the Governor's order, it was provided:

    "I * * * do by my proclamation, order that the aforegoing bill be published * * * not later than twenty days prior to the primary election to be held on September 13, 1966, at which election the proposed question shall be submitted * * * to the qualified voters of the State for adoption or rejection." (Emphasis supplied)

   It is true that in the body of the bill published, Section 1 of Chapter 501 is printed which refers to a special election, but it seems clear to me that the intervenor has established that the [*461] proclamation[***78] as a whole indicated that the issue of the call was to be submitted at the primary election and that the independent voters -- not allowed to vote at a primary election -- could well have concluded that they could not vote at that election. 

   In addition to the Proclamation, the individual intervenor having denied in his answer that the special election was duly held, offered in evidence newspapers published in Baltimore County and Anne Arundel County -- two of the largest counties in the State -- in which the primary election of September 13, 1966, was advertised as is required by Code (1957), Article 33, Section 12. Nowhere in these two advertisements were the voters notified that there was any special election on the call of the Constitutional Convention. Article 33, Section 12(a) specifically requires that "the Board of Supervisors in each county shall give ten days' notice of the time and place of all elections in each precinct of such county by advertisements * * * in at least two newspapers of general circulation in said county * * *" (Emphasis supplied)

   A specimen ballot for Baltimore County issued by the Board of Supervisors of Elections of Baltimore County headed[***79] "Primary Election, September 13, 1966" was also introduced into evidence.  There is not a word in this Specimen Ballot that there was also an alleged "Special Election" to consider the call for a Constitutional Convention. On this Specimen Ballot on the right hand side at the extreme top over the list of primary candidates for Sheriff and Judges of the Orphans' Court is a block under "Question 11, FOR -- AGAINST -- "Should a Convention be held between September 1, 1967 and September 1, 1968 to draft a New Constitution for Maryland." Curiously, there is no lever provided for this block on the Specimen Ballot either over "For" or "Against".  Not only would a voter not know that this was a special election for this issue, but the Specimen Ballot does not even indicate that there is a lever provided with which to make the choice.

   The doctrine of "substantial compliance" with the mandatory requirements of the election laws in regard to notice resulting from publicity in newspapers, television, etc. as was invoked in Dutton v. Tawes, 225 Md. 484, 171 A. 2d 688 (1961), has not, in my opinion, been sustained in this case as the Proclamation, [*462] the required official newspaper[***80] advertisement and the specimen ballot all indicate that the electorate was misled and this showing has not been rebutted.  When the electorate has been misled, the doctrine of "substantial compliance" does not apply.  As Judge (now Chief Judge) Hammond said, for a majority of the Court, in Dutton v. Tawes, supra:

   "All of the cases turn fundamentally on whether the mistake in procedure has caused harm by misleading the electorate or by tending to prevent or frustrate an intelligent and full expression of the intent of the voters." (Emphasis supplied) (225 Md. at 495, 171 A. 2d at 693).
 
   In my opinion the electorate was not only misled but intelligent and full expression of its intent was most certainly prevented and frustrated.  The small vote on the issue of the call clearly indicates this.

   III.

   DELEGATES TO THE CONSTITUTIONAL CONVENTION ARE HOLDERS OF AN OFFICE CREATED UNDER THE CONSTITUTION OR LAWS OF THIS STATE.

   I reluctantly disagree with the majority on this issue because I think if the Constitutional Convention can constitutionally be held on September 12, 1967, the presence of a number of members of the present General Assembly as members of the[***81] Constitutional Convention would make a substantial contribution to the formulation of the new Constitution to be prepared by the Constitutional Convention for later submission to the electorate for approval or rejection.  Many members of the present General Assembly have had great experience in the governmental problems of this State for a number of years, and their advice and counsel would be most helpful in framing a just, effective and well balanced Constitution for Maryland.

   In my opinion, however, the members of the proposed Constitutional Convention will hold an "office" or "an office of profit or trust" created by the Constitution or laws of this State.

   [*463] The applicable provisions of the Maryland Constitution -- Article 33, Article 35 of the Declaration of Rights, Article I, Section 6, Article III, Sections 11 and 17 -- have been adequately set forth in the majority opinion and need not be repeated here.  I agree with the majority that the "need for and purpose of these provisions manifestly was to protect against conflicts of interest, self-aggrandizement, concentration of power, and the blurring or obliteration of the doctrine of separation of powers in the[***82] performance by the agents of the people of their delegated authorities to exercise the executive, legislative and judicial functions of the organized government." Many of the provisions are designed to remove the temptation of self-aggrandizement from members of the General Assembly, so that an objective, rather than a subjective, consideration governs those members in creating offices and in creating or increasing the compensation of offices.

   Although as the majority opinion points out (and I agree) "the general power of a state legislature to make, alter and repeal laws pursuant to the constitution by which the people created the legislature, does not include the right to make or remake the fundamental laws, the constitution," in the Maryland Constitution, the functions of the General Assembly in regard to amendments to the existing Constitution and in regard to conventions to form a new constitution are, as has already been pointed out, expressly provided for in Article XIV, quoted above in full.

   It will be observed that delegates to a Convention to form a new constitution are specifically mentioned, as such, in Section 2 of Article XIV and Section 2 does give the General[***83] Assembly the power to provide for such delegates when the conditions set forth in Section 2 are met.

   Although this Court has never considered this precise question before, our prior decisions indicate to me that a delegate to a Constitutional Convention holds an "office" and an "office of profit or trust."

   We have held, without exception, that persons who are elected by the people are public officers.  In Buchholtz v. Hill, 178 Md. 280, 13 A. 2d 348 (1940), our predecessors laid stress on the fact that the Clerk to the Board of County Commissioners of [*464] Allegany County was elected, in holding that he was a public official.  See also Truitt v. Collins, 122 Md. 526, 89 Atl. 850 (1914) holding a city councilman of Snow Hill to be a public official, and Howard County Metropolitan Comm'n. v. Westphal, 232 Md. 334, 193 A. 2d 56 (1963) and Hetrich v. County Comm'rs. of Anne Arundel County, 222 Md. 304, 159 A. 2d 642 (1960) holding a county commissioner to be the holder of a public office.  The Attorney General has generally advised that elected executives, legislators and judges, receiving compensation, are holders of public office under the Constitution or[***84] laws of Maryland. n2

n2 Clerks of Circuit Courts, 7 Ops. Att'y. Gen. 460 (1922); County Commissioners, 6 Ops. Att'y. Gen. 226 (1921), 13 Ops. Att'y. Gen. 214 (1928), 48 Ops. Att'y. Gen. 323 (1963); Congressman, 2 Ops. Att'y. Gen. 352, 355 (1917); City Councilman -- with salary -- 2 Ops. Att'y. Gen. 352, 354 (1917), 11 Ops. Att'y. Gen. 100 (1926), 20 Ops. Att'y. Gen. 586 (1935), 48 Ops. Att'y. Gen. 323, 332, 333 (1963); Mayors, 6 Ops. Att'y. Gen. 226, 232 (1921), 7 Ops. Att'y. Gen. 476 (1922), 23 Ops. Att'y. Gen. 386 (1938); judges of the Orphans' Court, 15 Ops. Att'y. Gen. 237 (1930), 48 Ops. Att'y. Gen. 323, 326 (1933); delegates to State Conventions to consider repeal of 18th Amendment to U. S. Constitution, 18 Ops. Att'y. Gen. 408 (1933); members of the General Assembly, 3 Ops. Att'y. Gen. 271 (1918), 6 Ops. Att'y. Gen. 231, 232 (1921), 8 Ops. Att'y. Gen. 438 (1923), 12 Ops. Att'y. Gen. 201 (1927).

   We and our predecessors have given a broad and comprehensive interpretation to[***85] the word "office" in the Maryland Constitution.  In 1964 we held that even a notary public was a public officer.  Moser v. Board of County Comm'rs. of Howard County, 235 Md. 279, 201 A. 2d 365. Prior to Moser it has been held that a variety of positions were public offices; in Howard County Metropolitan Comm'n. v. Westphal, supra, a member of the Howard County Metropolitan Commission; in Hetrich v. County Commissioners of Anne Arundel County, supra, the Anne Arundel County Business Manager; in State, use of Clark v. Ferling, 220 Md. 109, 151 A. 2d 137 (1950), the Superintendent of the Maryland State Reformatory for Males; in Pressman v. D'Alesandro, 211 Md. 50, 125 A. 2d 35 (1956), the Mayor, the City Comptroller and members of the City Council of Baltimore City; in Nesbitt v. Fallon, 203 Md. 534, 102 A. 2d [*465]284 (1954), a member of a county liquor board; in Buchholtz v. Hill, supra, the clerk to the Board of County Commissioners of Allegany County; in Kimble v. Bender, 173 Md. 608, 196 Atl. 409 (1938), a justice of the peace; in County Comm'rs. v. Monnett, 164 Md. 101, 164 Atl. 155 (1933), the Treasurer of Calvert County; in Day [***86]  v. Sheriff of Montgomery County, 162 Md. 221, 159 Atl. 602 (1932), a police justice of Takoma Park; in Lilly v. Jones, 158 Md. 260, 148 Atl. 434 (1930), a member of the Port Development Commission of Baltimore City; in Truitt v. Collins, supra, a city councilman of Snow Hill; in Sappington v. Slade, 91 Md. 640, 48 Atl. 64 (1900), a supervisor of elections; in Robb v. Carter, 65 Md. 321, 4 Atl. 282 (1886), the City Solicitor of Baltimore City; in Harman v. Harwood, 58 Md. 1 (1882), the Register of Voters for a district in Anne Arundel County; and in Warfield v. County Comm'rs. of Baltimore County, 28 Md. 76 (1868), the Commissioner of Records to restore and re-establish records destroyed by fire in the office of the Circuit Court for Baltimore County.  In view of this wealth of prior authority, it is difficult to believe that a delegate to a Maryland Constitution would not also be a "public officer" and the holder of an "office."

   In Moser v. Board of County Comm'rs. of Howard County, supra, we mentioned five criteria which are often present when a position has been held to be a "public office," although the absence of one or more of these criteria would [***87]not be fatal to a holding that a particular position is a public office.  As pointed out in the majority opinion, these criteria are:

   1. The position was created by law and cast upon the incumbent duties which are continuing in nature and not occasional.

   2. The incumbent performs an important duty.

   3. The position calls for the exercise of some portion of the sovereign power of the State.

   4. The position is for a definite term for which a Commission is issued, a bond required and an oath required.

   5. The position is one of dignity and importance.

   In my opinion, all five criteria are present for the position of delegate to the Constitutional Convention.

   [*466] 1.

   The majority indicates that the position is not "under principles we see as controlling, one created by law as the term law is used in the definition." No authority is cited for this position and I cannot think it is sound.  If the position of delegate to this Constitutional Convention was not "created by law," how was it created?  It did not like Minerva spring full grown from the head of Jove.  On the contrary, it was created by Chapter 500 of the Acts of 1966 and Chapter 4 of the Acts of 1967.  Chapter 500[***88] in its title recites that it was an act to provide for the calling of a Convention under certain circumstances "and to provide for the number and appointment of delegates thereto." This Act provides that if the Convention is called, each county and each legislative district in Baltimore City shall have in the Convention "the same number of delegates" as Chapter 2 of the Acts of 1965 (Special Session) provides shall be elected at the General Election in 1965. Chapter 4 of the Acts of 1967 makes provision with respect to the election of those delegates provided for in Chapter 500.  Both Chapter 500 and Chapter 4 are Acts of the General Assembly, passed pursuant to the present Constitution, presented to the Governor for his consideration and signed by him.  I cannot think that this position of delegate is not "created by law."

    I also believe that the position of delegate to the Convention has "duties which are continuing in nature and not occasional." The elected delegate holds his position for the entire time during which the Convention is in session -- a three and possibly a four month period.  It continues for this entire period; it is not sporadic or casual.  The duties are[***89] not "occasional" so far as the Convention is concerned.  Indeed, Chapter 5 of the Acts of 1967, providing compensation and expense money for the delegates indicates that constant attendance is expected as there is a deduction of $15.00 from a delegate's compensation for each day of unexcused absence from the sessions of the Convention.

   The position fortunately is not created frequently as, generally speaking, amendments to constitutions are sufficient to meet new or changed conditions, rather than the calling of a Constitutional Convention to frame a new constitution, but this does not mean that when a Constitutional Convention is called, the duties of a [*467] delegate are occasional or not continuing.  I do not see the relevance of the century plant and the sexual functions of the male honey bee mentioned in the majority opinion -- as interesting as both are.

   2.

   It is conceded in the majority opinion that a delegate does "perform an important duty."

   3.

   The majority apparently adopts the contention of the Attorney General in this case (which was also adopted by the trial court) that although a delegate to the Constitutional Convention does exercise sovereignty, it is[***90] the "sovereignty of the people" he exercises rather than the "sovereignty of the State." The supposed distinction between "sovereignty of the people" and "sovereignty of the State" eludes me.  With respect, I fear the "distinction is one without a difference." In Maryland, there is no sovereignty but that of the people.  All sovereignty emanates from the people.  No official or other person may exercise sovereignty which is not sovereignty of the people, be it the exercise by the Governor, judges, members of the General Assembly, notary public or by any one else.  There is no distinction, in my opinion, between sovereignty of the State and sovereignty of the people.  No authority is cited in support of this unusual concept in the majority opinion and I think the concept is erroneous.  The sovereignty required by this criterion is exercised by the delegates to a marked degree.

   It should be pointed out that the phrase "sovereignty of the State" has only been recently used by the Court in cases involving executive officials.  See Moser v. Board of County Comm'rs. of Howard County, supra (notary Public); Howard County Metropolitan Comm'n. v. Westphal, supra (member[***91] of Howard County Metropolitan Commission); Hetrich v. County Comm'rs. of Anne Arundel County, supra (county business manager); Gary v. Board of Trustees of the Employees' Retirement Sys. of Md., 223 Md. 446, 165 A. 2d 475 (1960) (deputy State Auditor).  An earlier case used the word "sovereignty" in its broad sense as the sovereign power of the people as well as that of the State, when considering elective officials.  See Truitt v. Collins, supra (town councilmen). In Truitt, Judge Urner, for the [*468] Court, adopted the test as enunciated by the Supreme Judicial Court of Massachusetts in Attorney-General v. Tillinghast, 203 Mass. 539, 89 N. E. 1058 (1909), as follows:

   "It may be stated as a general rule, fairly deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature, and not occasional or intermittent." (122 Md. at 531, 89 Atl. at 851-52).

   If it could be assumed, arguendo, that there was[***92] a distinction between "sovereignty of the people" and "sovereignty of the State," the latter being possibly that portion of the sovereignty of the people which an officer holds in order to perform a function of government for the people, nevertheless, a delegate to the Constitutional Convention exercises such sovereignty.

   The Constitutional Convention in preparing a proposed Constitution exercises legislative power of the highest order.  The delegates formulate the State's highest organic law and the draft of the proposed Constitution may only be adopted in toto by the electorate. Both the formulation -- the legislative act -- and the adoption by the people must occur before a new Constitution can be effective.  Both are necessary to establish the State's highest organic law. But the Constitutional Convention exercises "State sovereignty" in connection with its primary function, i.e., (1) it must employ adequate personnel to enable it to function, and (2) it must authorize the expenditure of the revenues of the State to carry on its functions and pay personnel employed by it.  This means that the Constitutional Convention necessarily must contract in the name of the State for[***93] the services and supplies necessary to carry out its functions.  Indeed, the State administration has already budgeted $1,000,000 for the initial operation of the Constitutional Convention. There will most likely be expenditures in excess of the budgeted amount which the State Treasury must pay.  This is most certainly the exercise by the Convention of "State sovereignty." Moreover, the Constitutional [*469] Convention is to adopt a schedule of legislation to be attached to the proposed draft of the new Constitution which if the proposed Constitution is adopted, will not be a part of the Constitution "but shall have the effect of a public general law and may thereafter be amended or repealed by law." See Section 16 of the proposed Convention Enabling Act, Report of the Constitutional Convention Commission on Constitutional Convention Enabling Act, January 16, 1967, page 32.  This recommendation, with amendments, was adopted in Chapter 4 of the Acts of 1967. See Section 17 of that Act.  Indeed Section 17, as amended, directs the Convention to provide for the inclusion of "implementing legislation * * * (as necessary or desirous) in the Statute books of this State, including[***94] the Annotated Code of Maryland." It is difficult to believe that this power to adopt statutes and codify them, is not the exercise of the "sovereignty of the State." It is clear to me that it is.

   4.

   The position most certainly has a definite term and it was contemplated by the proposed legislation in 1967 and enacted into law by Chapter 4 of the Acts of 1967, that a delegate take an oath.  No bond is required as the delegate does not handle collections for the public.  For a similar reason, bond is not required for members of the General Assembly.

    5.

   It is conceded in the majority opinion that the position is one of dignity and importance -- as it obviously is.

   A Constitutional Convention may be viewed as a part of the whole system referred to as "government." It is the highest branch of that system which works out the will of the people in relation to delegated and restricted political power.  Jameson in his treatise Constitutional Conventions (4th Ed. 1887) § 324 refers to a Constitutional Convention as "a part of the apparatus by which a sovereign society does its work as a political organism." He further states:

   "It [the constitutional convention] is the sovereign, [***95] as organized for the purpose of renewing or repairing the governmental machinery. That same sovereign, as [*470] organized for the purpose of making laws, is a legislature; as organized for the purpose of applying or carrying into effect the laws, it is the judiciary or the executive.  These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society.  Together, they constitute the government * * *.  The government of the Commonwealth is a totality of those instruments through whose ministry its political organization is begun and continued.  It is that totality which governs, * * *." (Emphasis supplied).

   In addition, it is apparent that the Constitutional Convention Commission understood that the delegates were officers.  In the proposed Enabling Act appearing in the Report of the Commission dated January 16, 1967, the position is referred to as an "office." See for example, Section 7 of the proposed Act (Report, p. 26), which provides, in part, as follows:

   "If a vacancy occurs in the office of delegate to the Convention prior to the first meeting of the[***96] Convention, the vacancy shall be filled by the Governor, * * *." (Emphasis supplied.)
 
See also p. 36 of the Report.

   It was recommended that delegates be required to take the oath or affirmation prescribed by Section 6 of Article I of the present Maryland Constitution (see Report, p. 26, Section 8 of the proposed Act.) Section 7 of Chapter 4 of the Acts of 1967 provides:

   "If a vacancy exists in the office of delegate prior to the first meeting of the Convention in plenary session on September 12, 1967, the vacancy shall be filled by the Governor * * *." (Emphasis supplied).

   Section 8 of Chapter 4 provides for the taking of an oath or affirmation in the form set out in Section 8.  Chapter 5 of the Acts of 1967 provides for the compensation of the delegates. In short, both the Commission and the General Assembly refer to [*471] the "office of a delegate" and treat it as an office, providing for an oath and for compensation from the State Treasury. They thought a delegate held an office under the Constitution or laws of the State of Maryland, and so do I.

   The trial court and the majority of this Court were impressed with the practice in the 1851, [***97] 1864 and 1867 Conventions in permitting members of the General Assembly to be delegates to those Constitutional Conventions notwithstanding constitutional limitations on the holding of any other office of profit, and concluded from this practice that delegates to those Constitutional Conventions were not considered to be "offices of profit" under the prior Constitution or laws.  I do not think this conclusion follows.  The validity of the holding of the position of delegate by members of the General Assembly in the prior Conventions was never challenged judicially prior to the time the Convention met, as is the situation in the present case.  Assuming that the members of the General Assembly were improperly elected and qualified as delegates, they were nevertheless de facto officers of the Convention. Cf. Kimble v. Bender, supra. After the adoption by the people of the proposed constitution, no one could challenge the action of the Convention because of the illegal presence as delegates of the relatively few members of the General Assembly.

   After the Constitutional Convention convenes, it is the judge of the qualification of its members and when it decides (as the[***98] 1864 Constitutional Convention did decide) that its members are validly qualified, there can be no successful challenge to that action, regardless of what might have been decided prior to the convening of the Convention. See also Anderson v. Baker, supra. The present case is the first one in which a judicial determination has been sought prior to the convening of the Constitutional Convention, so that it is an entirely new issue unaffected by prior examples of possible illegality or disregard of constitutional provisions.

   Then too, in my opinion, the words of the Constitution are not ambiguous, so that no prior "construction" of those words by prior conventions may be considered to cause us to depart from this plain meaning.  See Moser v. Board of County Comm'rs. of Howard County, supra, holding that a notary public [*472] was an officer within the meaning of Article 35 of the Declaration of Rights notwithstanding the long established practice to the contrary.  Indeed, our decision in Moser precipitated a constitutional amendment to exclude notaries public from the definition of "office of profit."

   As I read the cases from jurisdictions other than Maryland, [***99] it appears that the weight of authority supports a holding that delegates to a Constitutional Convention are officers and that the existing constitutional prohibitions against dual office-holding apply.

   In Fyfe v. Mosher, 149 Mich. 349, 112 N. W. 725 (1907) the Constitution of Michigan provided that: "No person elected a member of the Legislature shall receive any civil appointment within this state, * * *." A senator of the Michigan Legislature attempted to file for election to the Constitutional Convention of that state.  The county clerk refused to place his name on the ballot on the ground that he was not elegible under the prohibition against dual office-holding.  The Supreme Court of Michigan held that the position of delegate to the Constitutional Convention was a state office and that the senator was not eligible to serve as a delegate. The Supreme Court of Michigan stated:

   "It is conceded that delegates to the constitutional convention are state officers.  * * * We are all of the opinion that delegates to the constitutional convention come within the term 'civil appointment' as used in this provision of the Constitution, that they receive their appointment from state[***100] authority, and therefore that members of the Legislature which enacted the law and thus provided for the offices, fixing compensation, etc., are ineligible as delegates. They are both within the spirit and letter of the law.  The writ is denied."

   In State v. Gessner, 129 Ohio St. 290, 195 N. E. 63 (1935), the Supreme Court of Ohio held that a member of a County Charter Commission convened to draft a new constitution for a county (analogous to a state constitutional convention) was the holder of a "public office of trust" within the meaning of the Ohio Constitution and hence a judge elected to serve on the Commission was precluded by the provisions of the Ohio Constitution [*473] from serving as such a commissioner.  The Supreme Court of Ohio said in its opinion:

   "While there is disagreement, the weight of authority and the more logical reasoning support the proposition that a state constitutional convention, in the discharge of its powers, duties and obligations, performs an important act of sovereignty and exercises legislative functions of a high order." (129 Ohio St. at 293, 195 N. E. at 64).

   In Kederick v. Heintzleman, 132 F. Supp. 582 (1955, D. Alaska), [***101] the Organic Act of Alaska (37 Stat. 512) provided:

   "That no member of the legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term; * * *."
 
The question arose as to whether members of the Alaska Legislature were entitled to serve as delegates to the territorial Constitutional Convention provided for by the Act of the Legislature.  In holding that they were ineligible, the District Court stated:

   "The purpose of the prohibition is to eliminate, as far as possible any hope in the mind of the legislator, that the office so created may be filled by himself, and to insure to the people independent judgment of their representatives.  It is necessary to good government that the legislators exercise their judgment free from selfish motives and, to this end, these prohibitions have been placed in constitutions and on statute books.  If the territorial legislature can create an office and rely on the possibility of Congress lifting the prohibition between the time of the election and the [***102]time to hold the office, then it cannot be said that the possibility of bias has been limited to the greatest possible extent." (132 F. Supp. at 585).

   [*474] Jameson, in his treatise, Constitutional Conventions, supra, states in § 324:

   "In my judgment, there can be but little doubt, that a member of a Convention is, in the enlarged and proper acceptation of the term, an 'officer' of the State."

   The majority relies principally on State v. Doyle, 138 La. 350, 70 So. 322 (1915); Baker v. Moorhead, 103 Neb. 811, 174 N. W. 430 (1919); and Frantz v. Autry, 18 Okla. 561, 91 Pac. 193 (1907). In my opinion, this reliance is misplaced.

   In Doyle, convicted cattle thieves appealed their conviction on the ground that the jury lists drawn by the jury commissioner were void because there was a vacancy in the commission.  This vacancy was alleged to have been caused by the election to the Louisiana Constitutional Convention of 1913 of one of the jury commissioners who had participated in the drawing of the jury list.  It was argued that the office of jury commissioner was vacated by this election to and acceptance of another office.  The Supreme Court of Louisiana[***103] in sustaining the convictions quoted -- apparently with approval from the opinion of the trial court -- as follows:
 
"* * * [A] member of a constitutional convention is in no proper sense an officer, that such a position is fleeting and casual, and the member does not exercise his functions continuously and as part of the regular and permanent administration of the government." (138 La. at 351, 70 So. at 323).

   It has already been pointed out, that the first test in the Moser case is satisfied, i.e., that the incumbent had duties which are continuing in nature and which are not occasional. See also Mechem, Public Offices and Officers, § 8 (1890); State, ex rel. Clark v. Stanley, 66 N. C. 59, 63-64, 8 Am. Rep. 488 (1872). The Louisiana Court has incorrectly analyzed the function of a constitutional convention and its decision, in my opinion, is of little weight in support of the proposition that a member of a constitutional convention is not an officer.

   Baker v. Moorhead, supra, recognizes that delegates to the [*475] Nebraska Constitutional Convention are officers.  The point in that case was whether they were officers "who have fixed terms of[***104] office, so that they would have to be elected at a general election under the provisions of the Nebraska Constitution.  In holding that the delegates were not officers having a fixed term of office, the Supreme Court of Nebraska stated:

   "Section 13, read in connection with section 14, which has to do with terms of office, would indicate that those provisions have only to do with officers elected who have fixed terms of office, and should be elected at an election called with reference to the time of the beginning of their terms.  The members of the convention have no fixed term of office, and by the Constitution itself the convention may be called at any time within three months after the election of its members." (Emphasis supplied).  (103 Neb. at 816, 174 N. W. at 432).

   Frantz v. Autry, supra, involved an injunction suit to prevent the election of county officials in two new counties created in the proposed Constitution of Oklahoma by the Constitutional Convention at the same election which provided for the adoption or rejection of the proposed new constitution. There was nothing in the suit involving the question of whether the delegates to the Constitutional[***105] Convention were officers and, indeed, Oklahoma did not have an existing constitution at the time of filing suit.  It was then a territory of the United States, authorized by an Act of Congress to proceed to form a constitution and be admitted as a State of the Union.  It was held that the equity court erroneously enjoined the election as such questions were not of judicial cognizance.  This case is not in point on the issue of whether delegates to the Convention were "officers."
 
   I consider that the delegates to the Constitutional Convention are the holders of an office created under the laws of the Constitution or laws of Maryland and that the prohibitions of the Maryland Constitution against dual office-holding are applicable.

   As I have already indicated, the conclusion that the delegates are officers, although of importance as a practical political matter in possibly inducing the General Assembly to vote for the enabling [*476] legislation, does not prevent, in itself, the holding of a Constitutional Convention.

   Although the Maryland Constitution provides in Article XVI, Section 2 "that no measure creating or abolishing any office, or changing the salary, term or duty of[***106] any officer * * * shall be enacted as an emergency law," and Chapter 500 of the Acts of 1966 was passed as an emergency law, we have said that such an attempt to pass an emergency law does not render the statute invalid, but merely makes it effective on the following June 1, as provided in Article XVI.  As we stated, by way of dictum in Allied American Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 626, 150 A. 2d 421 (1959):

   "If the Legislature provides that an Act, which under Art. 16 may not take effect until June 1, is to take effect sooner, the Act stands but will not take effect until June 1.  Woelfel v. State, 177 Md. 494, 504-05, 9 A. 2d 826; 1 Op. Att'y. Gen. 286, 288."

   In my opinion, this is a correct view of the applicable law so that Chapter 500 would not be invalid and void because it was passed as an emergency measure and purported to be effective upon the date of its passage on May 6, 1966, rather than June 1, 1966.

   Even assuming, arguendo, that the General Assembly could validly take the sense of the people in regard to calling a Constitutional Convention prior to the General Election of 1970, that Chapters 500 and 501 of the Acts of 1966 [***107]are valid and that there was a proper affirmative vote at a valid special election to approve the calling of such a Convention, it seems clear to me that it was not mandatory upon the General Assembly at the time we filed the per curiam order of a majority of the Court on March 7, 1967, to call the Constitutional Convention on September 12, 1967.  This issue is implicit in Question (i), above discussed.  The question propounded to the electorate was not whether the General Assembly should call a Constitutional Convention on September 12, 1967, but was "whether there will be called a Convention not earlier than 1 September, 1967, and not later than 1 September, 1968." This was the only question submitted to the electorate on the calling of the Constitutional [*477] Convention and it seems clear to me that the General Assembly could have repealed Chapter 500 of the Acts of 1966 and changed the date for the meeing of the Convention at any time between September 1, 1967 and September 1, 1968.  This most certainly is within the exact language of the question submitted to the electorate. Neither the lower court nor the majority of the Court gives any reason and cites no authority[***108] which would remove the right of the General Assembly to call the Convention at any time between September 1, 1967 and September 1, 1968.  I conclude that there is no valid reason and that there is no authority holding that the General Assembly might not have done this.  I would have so answered Question (i).

    I do not think under the circumstances that it is necessary or desirable to consider other questions propounded to us.  My answers to the other questions are, I think, obvious and it would unnecessarily prolong this dissenting opinion to develop them in detail. 

STROSNIDER v. WARDEN OF THE MARYLAND PENITENTIARY 
App. No. 90, September Term, 1965
 
Court of Appeals of Maryland
 
245 Md. 692; 226 A.2d 545; 1967 Md. LEXIS 563

 February  15, 1967, Decided

   PRIOR HISTORY: [***1]  
Application for leave to appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Application denied.

CORE TERMS:  Post Conviction Procedure Act, speedy trial, confession, appointed, suppression of evidence, point of time, right to counsel, orderly, perjury

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ.

OPINIONBY: PER CURIAM

OPINION: [*693] [**546] Petitioner has applied for leave to appeal from the denial of post conviction relief by Judge E. Mackall Childs in the Circuit Court for Anne Arundel County on August 30, 1965, following a hearing on remand by this Court in Strosnider v. Warden, 228 Md. 663, 180 A. 2d 854 (1962). In that case, we ruled that the lower court should determine factual questions raised by the petitioner, alleging perjured police testimony[***3] and suppression of evidence by the State.  The court below (O. Bowie Duckett, J.) was affirmed in its rulings on all other points, for the reasons stated in Strosnider v. State, supra.

   On remand, interrogatories were filed by the State, demanding particulars of the petitioner's allegations.  The petitioner answered, setting forth 19 alleged instances of perjury and nine alleged instances of suppression.  All of these alleged errors were considered by Judge Childs and denied in a thorough opinion. After carefully reading [**547] the trial transcript, we fully agree with Judge Childs' rulings as to each allegation of perjury and suppression of evidence. With respect to these matters, we adopt his opinion, a copy of which has been filed with this opinion.

   [*694] In this application, however, the petitioner also raises additional grounds for relief.  We believe these new allegations likewise lack merit.
 
   I.

   Petitioner claims that his confession was obtained in violation of his rights, under the Sixth and Fourteenth Amendments, to be advised of his right to counsel and of his right to remain silent.  He also maintains that, under all the circumstances of his detention, [***4] his confession was coerced.

   Both of these contentions were raised at the petitioner's trial; the trial court, after hearing testimony at great length, held the confession voluntary and admissible.  The petitioner failed to take a timely direct appeal from his conviction and sentence, nor did he raise these contentions in his first petition for post conviction relief.  Under these circumstances, we hold that the allegations are waived and, therefore, not open to collateral attack.  In so ruling, we apply the test prescribed by the Legislature in Article 27A, sec. 645A(c) (Supp. 1965), insuring that our procedural rules do not unduly impede the hearing of federal constitutional claims in the courts of this State.  The petitioner, who had counsel appointed for him, presented no circumstances whatsoever to rebut the presumption that his failure to follow state procedures -- designed for an orderly presentation of his contentions -- was not knowingly and intelligently made.  We believe Judge Childs was correct in not ruling on these alleged errors.  Article 27, sec. 645A(a).

   Even assuming the police had failed to advise petitioner that he had a right to counsel, the decisions of the United[***5] States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) and Escobedo v. Illinois, 378 U.S. 478 (1964) would not be valid grounds for relief in this case.  Strosnider's conviction became "final" in 1956, long before these decisions were rendered. They have been held not to apply retrospectively.  Johnson v. New Jersey, 384 U.S. 719 (1966); Hyde v. State, 240 Md. 661, 215 A. 2d 145 (1965). "Final" has been defined as "the point of time when the courts are powerless to provide a remedy on direct review." Terry v. Warden, 243 Md. 610, 221 A. 2d 691 (1966).

   [*695] II.

   Petitioner claims he was denied a speedy remand hearing.  A "motion for speedy trial" was filed on May 6, 1965, but Judge Childs never ruled on it.  The post conviction hearing was held on August 2, 1965.

   We need not consider whether or not the Constitutional provisions for a speedy trial in criminal cases, Article 21, Declaration of Rights, is applicable to hearings for post conviction relief because Maryland Rule BK 44(b), relating to post conviction procedure, provides: "The hearing shall be held as soon as possible after all pleadings required or allowed by this Subtitle or the court [***6]are filed."

   The last pleading in petitioner's remand hearing was filed on November 9, 1964.  Soon thereafter, however, petitioner's court appointed counsel was permitted to strike his appearance because he was appointed to the Bench.  New counsel was appointed on January 14, 1965.  In April, the case was docketed for hearing on July 12, 1965, but was postponed until August 2, 1965, since one of the petitioner's witnesses could not appear on the date originally set. Remembering that even the Constitutional right to a speedy trial is relative, State v. Murdock, 235 Md. 116, 200 A. 2d 666 (1964), we think that petitioner's remand hearing was held "as soon as possible," [**548] giving reasonable consideration to the orderly expedition of the court calendar and the time necessary to permit the State to prepare for trial.  The court's failure to rule on the motion was not prejudicial.

   III.

   Petitioner's final contention is that Judge Childs denied him the right to question his witnesses and the State's witnesses.  Whether a defendant can participate in the conduct of his case when represented by counsel was a question expressly left open in McCloskey v. Director, 245 Md. 497, [***7] 226 A. 2d 534 (1967).

   Courts in this country are in almost unanimous agreement that where a party is represented by counsel, he is not entitled, "as a matter of right" to examine witnesses or otherwise participate in the conduct of his trial.  See cases cited, Annotation, 77 A.L.R.2d 1233, 1241-46. The matter is within the discretion [*696] of the judge, and we perceive no abuse of that discretion in this case.

   Application denied. 

KASTEN CONSTRUCTION CO., INC. et al. v. MAPLE RIDGECONSTRUCTION CO. INC. 
No. 43, September Term, 1966
 
Court of Appeals of Maryland
 
245 Md. 373; 226 A.2d 341; 1967 Md. LEXIS 525

 February  9, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Decree affirmed; appellants to pay the costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant contested decree of the Circuit Court for Anne Arundel County (Maryland) which, in granting specific performance on a land sale contract, found appellee's delay in making settlement reasonable where time was not stipulated as being "of the essence."

OVERVIEW:  Appellant claimed that the lower court erred in holding that appellee, as buyer, was entitled to require specific performance of a contract in which settlement for the sale of land was to have been made in 60 days but time was not stipulated as being "of the essence." Appellant contended that its refusal to grant further extensions was a clear indication that time was of the essence and should therefore have been inferred from the circumstances. Appellee claimed that a specified date for settlement did not mean that the parties intended time to be of the essence and that the delay in making settlement was reasonable. The court affirmed, holding that specific performance was proper because evidence of the parties' intent did not disclose a stipulated purpose contrary to the general rule that time was not of the essence in the settlement of a contract for the sale of land.

OUTCOME:  Affirmed decree, because, as there was not a stipulated provision of the parties' intent, time was presumably not of the essence where appellee's delay in settlement of contract for the sale of land was reasonable.

CORE TERMS:  seller, buyer, settlement, specific performance, contract of sale, chancellor, financing, finished, expired, street, purchase money, title examination, expiration, notified, deed, purchase of land, paying, reasonable time, purchase price, payment of interest, option to purchase, full performance, progress toward, forfeiture, inferable, fixing, constructed, decreeing, architect, covenants
 
CORE CONCEPTS -  

Real Property Law: Sales, Exchanges & Remedies: Agreements of Sale
Real Property Law: Sales, Exchanges & Remedies: Specific Performance
In a case involving specific performance, where the intention of the parties is always the controlling factor, the general rule is that time is not of the essence of the contract of sale and purchase of land unless a contrary purpose is disclosed by its terms or is indicated by the circumstances and object of its execution and the conduct of the parties. Of course, one may lose his right to specific performance by gross laches and unreasonable delay in paying the purchase money. Ordinarily, however, time is held to be of the essence only when it is clear that the parties have expressly so stipulated or their intention is inferable from the circumstances of the transaction, the conduct of the parties or the purpose for which the sale was made.

Real Property Law: Sales, Exchanges & Remedies: Agreements of Sale
Real Property Law: Sales, Exchanges & Remedies: Specific Performance
The mere fixing of a particular date for the completion of a contract for the sale and purchase of land is not regarded as being of the essence with respect to payment but treats the provision as formal rather than essential.

Real Property Law: Sales, Exchanges & Remedies: Agreements of Sale
Real Property Law: Sales, Exchanges & Remedies: Specific Performance
The accepted doctrine is that in the ordinary case of contract for the sale of land, even though a certain period of time is stipulated for its consummation, equity treats the provision as formal rather than essential, and permits the purchaser who has suffered the period to elapse to make payments after the prescribed date, and to compel performance by the vendor notwithstanding the delay, unless it appears that time is of the essence of the contract by express stipulation, or by inference from the conduct of the parties, the special purpose for which the sale was made, or other circumstances surrounding the sale.

Real Property Law: Sales, Exchanges & Remedies: Agreements of Sale
Real Property Law: Sales, Exchanges & Remedies: Specific Performance
When there has been a delay in the execution of a land sale contract, the important question is whether it was reasonable.

COUNSEL: Jerome F. Connell for appellants.

   Melvyn J. Weinstock, with whom was Warren J. Weinberger[***4] on the brief, for appellee.

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

OPINIONBY: HORNEY

OPINION: [*375] [**342] The question presented by this appeal is whether the Maple Ridge Construction Company (Maple Ridge), as buyer, is entitled to require the Kasten Construction Company (Kasten), as seller, to specifically perform a contract in which settlement for the sale of certain building lots was to have been made in sixty days but the time was not stipulated as being of the essence.

   The contract of sale, dated December 4, 1964, provided for the sale and purchase of [**343] a tract of land in Section 4 of the Maple Ridge Subdivision in Anne Arundel County consisting of thirty-four "finished" lots n1 designated as 20-A and 20-B through 36-A and 36-B.  The contract further provided that Maple Ridge was to have an option to purchase ninety-four other lots in the subdivision within twelve months from the date of the contract of sale and was given the first refusal to purchase approximately five hundred of the remaining lots in Sections 3 and 4.  Subsequently, when financing difficulties were encountered, the[***5] settlement date was extended in writing to on or before March 19, 1965, but again time was not stated to be of the essence.  Maple Ridge had requested a longer extension, but it was refused by Kasten and later requests for extensions were also refused.

n1 By "finished" it was meant that utilities, streets, curbs, gutters and water and sewerage lines were to be completed before final settlement was made.

   Although Kasten in the interim between the making of the contract of sale and the extended settlement date had bulldozed several of the streets or roads and stabilized them with gravel, it had made little progress toward providing Maple Ridge with the finished or completed lots it needed to begin constructing homes. No agreement had been made between Kasten and the [*376] County with respect to street and drainage easements and there had been delays in connection with the construction of the curbs and gutters and the installation of public utilities.  And while a proposed agreement and bond was completed[***6] by the County department of public works on March 3, 1965 and delivered to Kasten promptly, it was never executed and returned.  Moreover, although Kasten recorded a deed of "covenants, restrictions and conditions" purporting to cover Sections 3 and 4 of Maple Ridge, which it was agreed was required before the houses to be thereafter constructed would be eligible for FHA financing, Maple Ridge was never consulted or afforded an opportunity to participate in formulating the specifications contained in the restrictions.  Maple Ridge, however, in addition to engaging an architect to prepare plans for houses to be constructed in the development and the renting of a trailer to be used on location as an office at a total outlay of $12,000, had continued trying to obtain the type of financing it hoped to get before the extended settlement date expired without having to use such of the personal funds of its president as were available to the corporation.  In the meantime the settlement date came and went and neither party made a demand on the other.  But when Maple Ridge notified Kasten five days after the expiration of the extension that it had applied for a title examination and it would[***7] take about three weeks to complete it, Kasten in turn notified Maple Ridge that the contract of sale had expired, as had the extension, and that it considered the contract null and void and no longer in force.  Subsequent negotiations were unsuccessful and this suit for specific performance was brought.
 
   On the evidence and the exhibits produced at the hearing, the chancellor, having found that although the buyer was dilatory in making the necessary financial arrangements and in applying for a title examination, it had tendered full performance of the terms of the contract within a reasonable time after the expiration of the extended settlement date; that the seller, besides acting as if time was not of the essence, had been somewhat lackadaisical in the performance of its part of the contract; and that the seller had suffered no loss that could not be compensated [*377] by the payment of interest, decreed specific performance of the contract of sale. n2

n2 There were other decretal orders affecting the deed of covenants, restrictions and conditions, the option to purchase other lots and the right of refusal to purchase still other lots, but we are not concerned here with any of these things.

[***8]

   [**344] On appeal, Kasten, claiming that the chancellor erred in decreeing specific performance, contends that its refusal to grant further extensions was a clear indication that time was of the essence and should therefore have been inferred from the circumstances.  Maple Ridge, however, claiming that a specified date for settlement did not mean that the parties intended time to be of the essence, contends that it was not and that the delay in making settlement was reasonable under the circumstances.

   In a case involving specific performance, where the intention of the parties is always the controlling factor, the general rule is that time is not of the essence of the contract of sale and purchase of land unless a contrary purpose is disclosed by its terms or is indicated by the circumstances and object of its execution and the conduct of the parties.  Of course, one may lose his right to specific performance by gross laches and unreasonable delay in paying the purchase money. Ordinarily, however, time is held to be of the essence only when it is clear that the parties have expressly so stipulated or their intention is inferable from the circumstances of the transaction, the[***9] conduct of the parties or the purpose for which the sale was made.  See Scarlett v. Stein, 40 Md. 512 (1874); Derrett v. Bowman, 61 Md. 526 (1884); Gilman v. Smith, 71 Md. 171, 17 Atl. 1035 (1889); Copp v. de Ronceray, 82 Md. 35, 33 Atl. 432 (1895); Diamond v. Shriver, 114 Md. 643, 80 Atl. 217 (1911); Acme Building Co. v. Mitchell, 129 Md. 406, 99 Atl. 545 (1916); Jaeger v. Shea, 130 Md. 1, 99 Atl. 954 (1917); Stern v. Shapiro, 138 Md. 615, 114 Atl. 587 (1921); Budacz v. Fradkin, 146 Md. 400, 126 Atl. 220 (1924); Soehnlein v. Pumphrey, 183 Md. 334, 37 A. 2d 843 (1944); Triton Realty Co. v. Frieman, 210 Md. 252, 123 A. 2d 290 (1956); Chapman v. Thomas, 211 Md. 102, 126 A. 2d 579 (1956).

   Applying these tests to the facts of this case, we think the [*378] chancellor was correct in decreeing that Maple Ridge was entitled to specific performance. Under the circumstances, it was not necessary to regard the stipulation fixing the original and extended times for payment of the purchase price as imposing a condition requiring strict and punctual compliance in order to entitle the buyer to specific performance. Acme Building Co. v. Mitchell, [***10]  supra. Nor, even though the buyer was somewhat neglectful in not paying the balance of the purchase money on the day it was due, can it be said that the delay, particularly in view of the fact that the seller was in no hurry to perform its part of the contract, was unreasonable.  Derrett v. Bowman, supra; Jaeger v. Shea, supra. In any event, the buyer was required to compensate the seller for whatever loss it sustained by the payment of interest. Moreover, the mere fixing of a particular date for the completion of a contract for the sale and purchase of land is not regarded as being of the essence with respect to payment but treats the provision as formal rather than essential.  Gilman v. Smith, supra; Copp v. de Ronceray, supra; Diamond v. Shriver, supra; Chapman v. Thomas, supra.

   Although the seller relies principally on Stern v. Shapiro, supra, Doering v. Fields, 187 Md. 484, 50 A. 2d 553 (1947) and Levy v. Baetjer, 198 Md. 240, 81 A. 2d 644 (1951), to support the claim that the chancellor erred in granting specific performance, all of these cases are distinguishable on the facts from the case at bar.  In Stern, the provision that the down payment was to [***11]be forfeited in the event settlement was not made within the time specified, warranted the inference that time was of the essence.  Here, a forfeiture was neither provided nor contemplated.  In Doering, the buyers not only made no effort to settle within the agreed time, but despite an extension were still unable to pay the balance of the purchase money at the expiration of the extended period.  Here, although the extended time had expired, the president of the corporate buyer had tendered full performance within a reasonable time thereafter.  In [**345] Levy, the express provision that time was of the essence was held not to have been waived by the extension of the settlement date.  Here, the very absence of the essentialness of time without more distinguishes that case from this.

   The further claim that the presence of a stipulated settlement [*379] date in the contract for sale impels an inference that time was to be of the essence is likewise without merit.  In Soehnlein v. Pumphrey, supra, it was said (at p. 338 of 183 Md.):
 
"The accepted doctrine is that in the ordinary case of contract for the sale of land, even though a certain period of time is[***12] stipulated for its consummation, equity treats the provision as formal rather than essential, and permits the purchaser who has suffered the period to elapse to make payments after the prescribed date, and to compel performance by the vendor notwithstanding the delay, unless it appears that time is of the essence of the contract by express stipulation, or by inference from the conduct of the parties, the special purpose for which the sale was made, or other circumstances surrounding the sale."
 
Also see Triton Realty Co. v. Frieman, supra, and Chapman v. Thomas, supra. The rule, of course, is subject to certain qualifications, but none of them, as is herein pointed out, is applicable to the facts and circumstances of this case. When there has been a delay, as there was in this case, the important question is whether it was reasonable.  The chancellor found that it was and we cannot say that he erred in so doing.  See Jaeger v. Shea, supra; Budacz v. Fradkin, supra. Cf.  Scheffres v. Columbia Realty Co., 244 Md. 270, 223 A. 2d 619 (1966). [***13]

    Decree affirmed; appellants to pay the costs. 

GIANT FOOD, INC. AND THE TRAVELERS INSURANCE COMPANY v.GOOCH 
No. 25, September Term, 1966
 
Court of Appeals of Maryland
 
245 Md. 160; 225 A.2d 431; 1967 Md. LEXIS 504

 January  10, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; MacGill, C. J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  third person, compensable, course of employment, accidental, wilful, personal injury, negligent act, parking lot, insurer, accidental injury, claimant, killed, minutes, shot, injury arose, disability, struck, accidental injuries, third persons, gear wheel, new trial, infection, morning, working environment, pay compensation, night watchman, negligently, collector, crossing, wilfully

COUNSEL: Christopher A. Hansen, with whom were Jesse Slingluff and Piper & Marbury on the brief, for appellants.

   Herbert B. Fineberg, with whom was John Brockenbrough Fox on the brief, for appellee.

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

OPINIONBY: HAMMOND

OPINION: [*162] [**432] The Workmen's Compensation Commission awarded Willie Gooch compensation for injuries sustained when he was shot by one Jones, a jealous husband who, entirely mistakenly, thought Gooch was having an affair with Mrs. Jones, and Judge Macgill, sitting without a jury in the Circuit Court for Anne Arundel County, affirmed.  The employer and insurer appeal, claiming that the injury neither occurred in the course of the employment nor arose out of the employment.

   Gooch worked for Giant Food, Inc., at its shopping center on[***4] Ritchie Highway at Mountain Road in Anne Arundel County, as a parking lot attendant and parcel pick-up man on the parking lot which was owned by Giant Food and served all the mercantile establishments in the shopping center.  His regular routine each morning was to punch his time card at eight o'clock, get his shovel and broom and begin to clean the lot.  On the morning of October 8, 1964, he drove to the parking lot, arriving a few minutes before eight.  As he was locking his car, Jones, who had killed his wife and her "girl friend" the evening before and had slept in his car, approached Gooch with a gun, believing him to be Mrs. Jones's paramour.  Gooch fled with Jones in pursuit and after they had gotten behind the food store, Jones shot him.

   We think it clear that the commission and the reviewing court could have found that the injury occurred in the course of Gooch's employment.  He was on the parking lot on which he regularly worked and was but minutes away from actually engaging in his regular duties, when he was interrupted by Jones.  "An employee is in the course of his employment where he is injured before the hour of work while on the premises for the purpose of engaging[***5] in the day's work." Rice v. Revere Copper & Brass, Inc., 186 Md. 561, 566. See also Maryland Paper Products Co. v. Judson, 215 Md. 577.

   The critical issue is whether Gooch, having been shot by a third person while in the course of his employment, must establish that his injury arose out of his employment in order to obtain compensation.  The employer and insurer contend that § 15 of Art. 101 of the Code of 1957 controls when, inter alia, it provides that "every employer * * * shall pay * * * compensation * * * for the disability or death of his employee [*163] resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment * * *." Gooch answers that § 15 governs the general and usual cases and that in those cases both the tests of "in the course of" and "arising out of" the employment must concur, Coates v. J. M. Bucheimer Co., 242 Md. 198; Pariser Bakery v. Koontz, 239 Md. 586; Department of Correction v. Harris, 232 Md. 180, but that in § 67 (6) of Art. 101 of the Code, enacted by Ch. 289 of the Laws of 1951, in the particulars here pertinent, the legislature created a new, different and additional[***6] form of accidental personal injury which, if caused by "the wilful or negligent act of a third person directed against an employee," need only occur in the course of employment (and not arise out of it) to be compensable. Section 67 of Art. 101 contains the definitions used in that article.  Paragraph 6 of § 67 now reads as follows:
 
"'Injury', 'personal injury', 'accidental injury' and 'accidental personal injury', means only accidental injuries arising out of and in the course of employment and such occupational disease and infection as may naturally result therefrom, including frostbite and sunstroke resulting from weather condition, and includes an injury caused by the wilful or negligent [**433] act of a third person directed against an employee in the course of his employment."
 
(The 1951 amendment inadvertently omitted the word "accidental" between the word "only" and the word "injuries" in the second line of § 67 (6) and the legislature in Ch. 24 of the Laws of 1954 reinserted the word "accidental" in the section.)

   The rebuttal of the employer and insurer to the argument as to the implications of § 67 (6) is that the 1951 and 1954 amendments "made explicit [***7]that an injury brought about by a deliberate or negligent act of a third person is within the definition of 'injury.' [and] 'accidental injury' * * *" and that the legislative intention was "merely to clarify the definition to include wilful [and negligent] torts by third persons, so that under section 15, if a wilful [or negligent] tort by a third person were [*164] committed 'out of' and 'in the course of' employment, it would be compensable."

   We agree with Judge Macgill, for the reasons which follow (essentially the same reasons that led him to his conclusions), that Gooch has much the better of the arguments as to the proper construction of the statute, and must prevail.

   Sections 15 and 67 (6) must, as is entirely possible, be read together and harmonized so as to give effect to the purpose of each, as expressed in its phraseology.  So read, the legislature provided several classes of compensable accidental injuries. One was the run of the mine one provided for in § 15 -- "an accidental personal injury * * * arising out of and in the course of * * * employment." This class of "injury," "personal injury," "accidental injury" and "accidental personal injury" was redefined[***8] in § 67 (6) as the primary class and there were added by that section two other defined classes: first, "such occupational disease and infection as may naturally result therefrom" (including frostbite and sunstroke resulting from weather condition) and, second, "an injury caused by the wilful or negligent act of a third person directed against an employee in the course of his employment." Thus, in the context here pertinent, we read §§ 15 and 67 (6) together to mean that every employer shall pay compensation (1) for the disability or death of his employee resulting from an accidental personal injury arising out of and in the course of employment, and (2) for the disability or death of his employee caused by the wilful or negligent act of a third person directed against the employee while he is in the course of his employment.

   This reading of the statute is strongly supported by history.  In 1925 this Court, in Todd v. Furniture Co., 147 Md. 352, where a night watchman was wilfully killed while on duty by one who had animus against him, held that it was for the jury to decide whether his death arose out of his employment since the jury permissibly could draw the inference that[***9] there was increased danger of injury from ill-disposed persons arising from the special conditions of service as a night watchman. In 1933 Reisinger-Siehler Co. v. Perry, 165 Md. 191, held that an employee, who, while in the course of his employment, was struck by an automobile negligently operated by a stranger, was [*165] entitled to compensation for an injury arising out of his employment.  On the other hand in 1946, Rice v. Revere Copper & Brass, Inc., supra, held that the death of a worker from a blow by a fellow worker inflicted during a personal quarrel on company property did not arise out of the employment.  The Court distinguished Todd by pointing out that "in the instant case there were no unusual conditions of the employment that could fairly be said to contribute to the injury as a natural result." Plainly, before 1951, injury to an employee inflicted by a third person in the course of the employment, either wilfully or negligently, was compensable if the danger of such injury was an incident of the special conditions of the employment -- that is, if [**434] it arose out of the employment -- but such an injury was not compensable if it was not attributable[***10] to the working environment -- that is, did not arise out of the employment.

   The legislature is presumed to have enacted Ch. 289 of the Laws of 1951 -- now § 67 (6) of Art. 101 of the Code -- with knowledge of the state of the law and the decisions referred to.  St. Joseph Hospital v. Quinn, 241 Md. 371, 379; Gibson v. State, 204 Md. 423, 432; Herbert v. Gray, 38 Md. 529, 532. It is only reasonable to infer, therefore, that the legislature when it said that accidental personal injury as defined and made compensable by § 15 of Art. 101 was also to include "an injury caused by the wilful or negligent act of a third person directed against an employee in the course of his employment" intended to broaden the scope of the compensation statute to include as compensable an injury not attributable to the working environment provided it was incurred in the course of employment.

   This conclusion is fortified by another facet of history.  The bill which became Ch. 289 of the Laws of 1951 and now is codified as § 67 (6), as originally introduced in the legislature, contained this language: "* * * and includes an injury caused by the wilful or negligent act of a third person directed[***11] against an employee because of his employment" (emphasis added), but during its passage the bill was amended to strike out the word "because" and to substitute the words "in the course." This is a persuasive indication of legislative intent to insure that in the case of injury inflicted by a third person in the course of the [*166] worker's employment there was to be no requirement that the injury arose out of the employment.

   The employer and insurer seek to explain away the significance of the legislature's substitution of the phrase "in the course of the employment" for the words "because of the employment" by suggesting that the latter language would have restrictively required the stranger-tortfeasor and not the employee to have had a relation to the business of the employer.  The argument approaches the fanciful.

   The employer and insurer seek further comfort in several cases involving injury caused by a third person decided by this Court after the enactment in 1951 of the here pertinent parts of § 67 (6), arguing that we have not in those cases regarded the literal provisions of § 67 (6) as controlling but rather have evaluated compensability in terms of whether the[***12] injury both was in the course of and arose out of the employment.  The cases relied on include Maryland Paper Products Co. v. Judson, 215 Md. 577, supra (the employee who was on the way to work was struck by the automobile of a third person while crossing a public street in front of the employer's factory and was given an award by the Commission, which the jury affirmed); Scherr v. Miller, 229 Md. 538 (a fight with a tavern patron by the collector of the coins in coin-operated machines); and Miller v. Coles, 232 Md. 522 (injury to a salesman as a result of a fight with a third person outside a tavern).

   In Scherr the effect of § 67 (6) was not raised or decided below nor argued or relied on in the briefs or at the oral argument.  The parties there concerned themselves only with whether the injury arose out of the employment and the propriety of the trial court's instructions on the point and the Court confined its discussion and decision within the limits set by the parties.  In Miller v. Coles, we held that the injury did not happen during the course of employment. We said (232 Md. at 526):

   "Once again we are called upon to construe Code (1957), Article[***13] 101, § 15 of the Workmen's Compensation Act.  The action was tried below and the parties have presented the case to us on the basis that the injury must arise not only 'in the course of' but also 'out of' the employment [**435] in order for a claimant to recover [*167] benefits under the Act.  Claimant does not contend, as was done in Md. Paper Products Co. v. Judson, 215 Md. 577, 589, 139 A. 2d 219, that Section 67 (6) of Article 101, Code (1957) (then Section 68 (6) of Article 101, Code (1951)) (as amended by Ch. 289 of the Acts of 1951) allows compensation for injuries inflicted upon an employee by a third party while the employee is in the course of his employment, without prescribing that the injury also arises out of his employment.  As in that case, we are not called upon to pass upon the merit of such a proposition, for we do not think that Coles was acting in the course of his employment when assaulted and beaten."

   Despite the suggestion in the quoted passage that § 67 (6), which was then § 68 (6), was not construed on the merits in Maryland Paper Products Co. v. Judson , it is clear that we there at least assumed that if the employee was in the course[***14] of his employment when he was killed by a third person's negligence, his death was compensable even though it had not arisen out of the employment.  We held first, as a matter of law, that on the facts the proximity exception to the going and coming rule did not apply, and then dealt with the claimant-widow's contention that the section now codified as § 67 (6) entitled her to compensation.  We ruled on this point that she was not helped "insofar as the proximity rule is concerned, because we find that * * * the employee was not acting in the course of his employment in crossing Eutaw Street," and that but for proffered but rejected testimony that the employee had gone from his home on the morning he was killed not directly to work but to pick up and convey to his place of employment a gear wheel to be used in a machine of the employer and that he was carrying the gear wheel when he was struck near the plant one hour and ten minutes later than his usual time for reporting for work, the case would have been reversed without a new trial. However, we reversed and remanded for a new trial since we thought that this proffered testimony constituted "sufficient evidence to require the case[***15] to be submitted to the jury on the issue of whether the deceased was fatally injured while acting in the course of his employment in delivering a gear [*168] wheel to his employer's place of business." The remand for a new trial clearly contemplated that § 67 (6) made the death compensable if, without more, it occurred in the course of the employment.

   It is significant that a section of the Longshoremen's and Harbor Workers' Compensation Act, which reads as did the bill which became § 67 (6) when it was first introduced in the legislature of Maryland, has been judicially construed as we have construed § 67 (6).  Section 2 (2) of the federal act says:

   "The term 'injury' means accidental injury or death arising out of and in the course of employment * * * and includes an injury caused by the willful act of a third person directed against an employee because of his employment."
 
In Maryland Casualty Co. v. Cardillo, 107 F. 2d 959, 961, the United States Court of Appeals for the District of Columbia held that the abduction and killing of an insurance premium collector by men who recognized him as such by his "book" was "directed against an employee because of his[***16] employment." The Court said:

   "The term 'injury,' the statute tells us, '* * * includes an injury caused by the willful act of a third person directed against an employee because of his employment.' Grammatically, this final clause of Section 2 (2) is unqualified; it is not cumulative with, but independent of, the statement in the first clause that injury 'means accidental injury or death arising out of and in the course of employment.' When the facts come, as they do here, within the final clause, we need not inquire whether the 'willful' injury of the final clause can be regarded as 'accidental.' Similarly, we need not inquire [**436] whether it can be regarded as 'arising * * * in the course of employment.' No logical reason appears for distinguishing in this respect between the two parts of the first clause, and importing the later part, though not the earlier, into the final clause."

   Judge Macgill in the case before us correctly construed the [*169] Workmen's Compensation statute.  We do not reach the question of the correctness of his holding that Gooch's injury was compensable apart from § 67 (6), as one arising out of his employment.

   Order affirmed, with [***17]  costs. 

JAHNIGEN, et ux. v. STALEY, et al. 
No. 531, September Term, 1965
 
Court of Appeals of Maryland
 
245 Md. 130; 225 A.2d 277; 1967 Md. LEXIS 500

 January  9, 1967, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree modified, and as modified affirmed.  Costs to be paid by appellants.

CORE TERMS:  non-conforming, boat, pier, foot, rowboats, zoning, feet, launching, rental, ninety, storage, repair, marina, water, built, zoning ordinance, effective date, intensification, ordinance, rezoning, regularly, dockage, space, protestant, permanent, feeding, cattle, agricultural, constructed, modified

COUNSEL: Jerome F. Connell, with whom were Biener & Connell on the brief, for appellants.

   Nicholas Goldsborough for appellees.

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

OPINIONBY: MARBURY

OPINION: [*132] [**279] This is an appeal[***5] from a decree of the Circuit Court for Anne Arundel County, Judge Sachse presiding, which restricted appellants' (William Jahnigen and wife) non-conforming use of their property, fronting on Broad Creek for approximately 263 feet, to the rental of seven rowboats and to the rental of space for the dockage or wet storage of boats at a wharf not exceeding [*133] ninety feet of overall length and six feet in width together with a twenty-four foot long and six foot wide "T" at the end of the wharf.  It was also decreed that the launching facility constructed by appellants was an unlawful expansion of a nonconforming use and that they had no right to maintain dry storage or to repair boats, other than the seven rowboats, on their property.

   Appellants acquired the waterfront property, approximately four acres in the Third Election District of Anne Arundel County, by deed dated December 14, 1962, from Stanley H. Kirchenbauer and wife, who acquired their title in 1945. In the years prior to February 15, 1949, when the comprehensive zoning ordinance for the Third Election District of Anne Arundel County became effective, placing the property in an agricultural classification, the Kirchenbauers[***6] constructed (in 1946) a ninety foot long pier with a twenty-four foot T and rented up to seven rowboats and approximately ten slips.  The zoning ordinance restricted any non-conforming use to those uses in effect prior to the date of its adoption.  On July 6, 1951, they were issued a non-conforming use certificate on which was stated, "Hiring of Rowboats." During 1951, they rented out sixteen rowboats and ten slips.  In 1952, they increased the slip rental to twenty, but cut down on the renting of rowboats. In that year the Kirchenbauers also built a 104 foot pier, without first securing a permit, parallel to and about thirty-two feet from the shoreline.  This pier was connected to the left side of the ninety foot pier about thirty-two feet from the shore.  They built a garage in 1953 and a stable in 1954.  They provided no toilet facilities except for those in their home, which they would allow others to use on occasions. Between 1947 and 1952 people would pull their boats upon the property in the winter until about April or May, at various places and at various times.  Mr. Kirchenbauer occasionally put his own boats in the garage for repairs, but he did little boat repair work[***7] for others.  He had no facilities for the launching of boats, and when he did launch them it would not always be at the same place.  This was an occasional operation, a dozen times in about fifteen years, and this operation required men to snake the boats down the hillside to the water.

   [*134] In 1962 the Kirchenbauers purchased a twenty-five foot strip of land from a neighbor on the north side of the property, and appellants purchased the entire property from the Kirchenbauers in late 1962.  In the advertisement of the property for sale, twenty-five boat slips and nine rowboats were mentioned.  In May of 1963, William Jahnigen requested and received a permit to repair ice damage to the existing ninety foot pier with the T.  When he applied for the permit, he misrepresented the ninety foot original pier as having been 130 feet, claiming that the original pier was 130 feet, the last forty feet of which he said was damaged by ice and had to be replaced, but the forty feet of pier never existed.  In August of that year, the Jahnigens petitioned the Board of County Commissioners of Anne Arundel County to rezone 1.5 acres of their property from its agricultural use to heavy commercial[***8] use, primarily for the purpose of allowing sales of gasoline in connection with the operation of the marina that was already in existence on the property.  On August 8, 1963, the Board of County Commissioners granted the petition, and later that month appellants requested and were granted a permit to extend the pier and to construct a travel lift ramp [**280] for the launching of boats, and gas pumps.  In the construction under the permit of August 1963, appellants built two toilets and other improvements, and the pier they actually built bore no relation in appearance, size or direction to the one for which they received the permit.  As the result of the rezoning, some of the appellees filed a bill of complaint in the Circuit Court for Anne Arundel County to set aside the rezoning. The bill of complaint also sought an injunction to limit the nonconforming use and to restrict the property in such a way that the Jahnigens could only use it for the hiring of rowboats.

   For the purpose of clarity, the court below divided the case into two parts. The first part concerned the question of whether the rezoning was valid, and the second part dealt with the extent of the existing non-conforming[***9] use.  In the trial of the first part, the court below found the rezoning to be null and void.  The appellants have not appealed from this finding.  Prior to the hearing of the second part of the case on the merits, the appellants filed a motion raising preliminary objection to the right of the appellees to bring such an action.  The motion was [*135] overruled and the court found in favor of the complainants after the trial on the merits.  The appellants contend that the chancellor erred in overruling their motion and in imposing certain restrictions on the non-conforming use of the property.

   A party has standing to contest a rezoning decision by appeal to the courts if the decision affects his specific interest or property right in a way different from that suffered by the public generally.  Alvey v. Hedin, 243 Md. 334, 221 A. 2d 62; DuBay v. Crane, 240 Md. 180, 213 A. 2d 487.

   It is evident from the record that the protestants are within the class as defined above "because their closeness to the marina property, their special problems with lights and noise as well as with the refuse emanating from the operation of the marina, make the effect of this commercialization[***10] on them different from its effect upon members of the public generally." Alvey v. Hedin, supra, at page 339.

   Mr. Edmund Birk, one of the protestants who owns the property adjacent to the Jahnigen property on the south side, testified that the cruisers which were moored at the Jahnigen property pumped their bilges and deteriorated his waterfront property, and that he would not swim in the creek due to the fact that the boats had toilet facilities.

   Mr. Otis B. French, another protestant whose property is located 125 feet at the water line from the Jahnigen property, testified that due to the increased facilities and activities, the value of his property deteriorated considerably and that peace and quiet had departed.  He testified that he was reluctant to swim in the creek because of the increased summer boat traffic which came very close to the front of his property and because of the increased junk and debris in the water, including beer cans, bottles, spoiled food and other refuse.

   Mr. William Staley testified that the increased facilities had devalued his property which is about 300 yards southwest from the appellants' property, directly across the water. He testified that[***11] he had been unable to sell his property, even though it had been on the market for ten months, because of the fact that the marina was operating directly across from his property.  He also stated that an extremely bright light on the Jahnigen property shone into his house every night and that the Jahnigen [*136] workboats had covered the whole east end of the creek with an oil slick.

   An expert real estate appraiser, Maurice C. Ogle, who was thoroughly familiar with the property, was called by the appellees; and he stated that the increased operations [**281] of the appellants had an adverse effect on the value of the surrounding property.

   Appellants argued that the amount of water area used by them was less than that used by the Kirchenbauers, the former owners, in that the former owners had several boats tied to buoys off the end of the T on the original ninety foot pier. The appellants contended that the construction of the additional pier facilities constituted a mere intensification of the non-conforming use as opposed to an expansion of the use.

   The Anne Arundel County Code (1957 ed. as amended), Section 35-10, page 882, defines the continuance of a non-conforming[***12] use as the occupation of the same building area, measured in cubic feet, and the same ground area or water area, measured in square feet, as was occupied on the effective date of the ordinance. Building area, ground area, and water area are to be considered separately and one may not be substituted for the other.  The Kirchenbauers and the appellants increased the non-conforming use of the piers from 648 square feet, which existed at the time of the effective date of the zoning ordinance, to 2,526 square feet. Whether or not the Jahnigens used less water area, the fact remains that the original non-conforming use was expanded by the extension of the original pier and by the construction of new piers and other facilities. The facts of this case are analogous to those in Orange County v. Goldring, 263 P. 2d 321 (Cal. App. 1953), where defendant, at the time he obtained a non-conforming use, used a field for the feeding of approximately thirty to fifty cattle. He later built permanent feed pens for 200 to 300 cattle. The court said in holding that this was an invalid extension of a non-conforming use:
 
"It is quite apparent that there was a material change in the condition [***13]of the use by the construction of the feeding pens described, by the building of permanent foundations for watering troughs, and no doubt the number of cattle now confined in the limited quarters [*137] where cattle are being fattened for market by feeding the new formula, caused added noise, stench, and disagreeable odors, which disturb the near-by residents and school children. The facts found clearly demonstrate that the present use is such a formidable change and departure from the established use, both in magnitude and character, that it constitutes a wholly new and different use, and an unlawful enlargement or extension of a non-conforming use, * * *." 263 P. 2d at 323.

   The basic premise underlying zoning regulations is to restrict rather than expand non-conforming uses.  Phillips v. Zoning Commissioner, 225 Md. 102, 169 A. 2d 410; Grant v. City of Baltimore, 212 Md. 301, 129 A. 2d 363; Colati v. Jirout, 186 Md. 652, 47 A. 2d 613. However, an intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used.  Phillips v. Zoning Commissioner, supra; Nyburg v. [***14]  Solmson, 205 Md. 150, 106 A. 2d 483. In Nyburg the area of the property which was under a prior non-conforming use as a parking area for a garage was not enlarged, but the volume of cars parked thereon was increased from a small number to about thirty to fifty.  This was held to be a mere intensification of the non-conforming use, and the restrictions imposed by the zoning board limiting the space used for parking to ten vehicles at one time were struck down.

   In the case at bar, the chancellor limited the rental of rowboats to seven and restricted the rental of space for the dockage or wet storage of boats at the ninety foot pier with the twenty-four foot T at its end.  He also found that in light of Section 35-38 (g) (4) of the Anne Arundel County Code, supra, which provides that [**282] piers for private use are permitted in an agricultural zone only as accessory buildings or uses to the permitted residential use, the 104 foot pier, erected approximately thirty-two feet out from the bulkhead, built in 1952 and attached to the original ninety foot pier, was a reasonable accessory to the part of the appellants' property that was agricultural and for residential use. [***15] He ordered that the other piers [*138] erected by the appellants be removed.  We agree that the construction of new pier and other facilities, and the rental of space for the dockage or wet storage at any facilities other than the ninety foot wharf and T, which were in existence prior to the effective date of the zoning ordinance, were invalid extensions of the non-conforming use.  However, we hold that the rental of rowboats can not be so limited.  Any increase in the number of rowboats rented would be an intensification of non-conforming use and would not be an extension.  Nyburg v. Solmson, supra.

   The right of a landowner to continue the same kind of use to which the property was devoted on the critical date does not confer on him the right to subsequently change or add to that use a new and different one amounting to a drastic enlargement or extension of the prior existing use.  Phillips v. Zoning Commissioner, supra. Appellants argued that the launching of boats by means of a travel lift and ramp was an intensification of the launching that was done by the Kirchenbauers.  The evidence showed that only a dozen or more boats were launched in the years prior to the[***16] enactment of the ordinance. There was no permanent launching site nor structures to aid in the launchings. Boat launching was performed at no specific place during the years the Kirchenbauers owned the property, and it was so infrequent as not to have been part of their business.  The testimony as to the launching of boats was too vague and inconclusive to establish that such use was regularly made before 1949, or that it was carried on thereafter.  Boulevard Scrap v. Baltimore, 213 Md. 6, 130 A. 2d 743; Daniels v. Board of Zoning Appeals, 205 Md. 36, 106 A. 2d 57. The launching ramp was constructed on the twenty-five foot strip which the Kirchenbauers purchased in 1962.  The appellants can not now set aside that particular portion of their property and construct a launching ramp.  Chayt v. Zoning Appeals Board, 177 Md. 426, 9 A. 2d 747. Although the Kirchenbauers may have intended to provide such services attendant to a marina, such intention to use is not enough to establish a non-conforming use.  Beyer v. City of Baltimore , 182 Md. 444, 34 A. 2d 765; Chayt v. Zoning Appeals Board, supra.

   As to the storage of boats on the property, there was nothing in the [***17]record to show that the former owners allowed individuals [*139] other than themselves to store or repair boats on their property, other than at the shoreline, prior to the adoption of the zoning ordinance. After the ordinance was passed a few boats belonging to others were stored on the property, but again the number was insignificant.  Also there was little repair work done on boats other than on the ones that were owned by the Kirchenbauers. Again the testimony as to the storage, repair and maintenance of boats other than those owned by the Kirchenbauers was too vague and inconclusive to establish that such use was regularly made before 1949.  Boulevard Scrap v. Baltimore, and Daniels v. Board of Zoning Appeals, both supra.

   We affirm the decree of the chancellor in all respects except that portion thereof which restricted the rental, dry storage, repair or maintenance to the seven rowboats owned by the appellants, which is modified so as to permit the rental of rowboats which appellants might own and the storage, repair, and maintenance of those rowboats.

   Decree modified, and as modified affirmed.  Costs to be paid by appellants. 

LITTLE, Etc. v. WOODALL, et al. 
No. 517, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 620; 224 A.2d 852; 1966 Md. LEXIS 471

 December  12, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Judgment affirmed; costs to be paid by appellant.

CORE TERMS:  carport, collapse, warranty, leakage, roof, installation, awning, guaranteed, workmanship, snow, settlement, flashing, directed verdict, installed, aluminum, breach of warranty, neighborhood, fastened, snowfall, printed, leaked, trier, roofer, proximate causation, probable cause, sufficient to support, express warranty, oral testimony, unconditional, seller

COUNSEL: Michael E. Loney, with whom were Ralph C. Boyd and Boyd & Busch on the brief, for appellant.

   No brief and no appearance for appellees.

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

OPINIONBY: OPPENHEIMER

OPINION: [*623] [**853] The appellant appeals from a judgment of Judge Childs, sitting without a jury, in the Circuit[***5] Court for Anne Arundel County, in favor of the appellees in a suit for rescission based on a breach of warranty in a contract for the sale and installation of an aluminum awning carport for the appellees' home in Glen Burnie, Maryland.  The appellant contends the trial court erred in permitting rescission of the sales contract on the basis of breach of the warranty and in refusing to grant the appellant's motions for a directed verdict at the close of the [**854] appellees' case and at the close of the whole case. n1

n1 The first motion should have been for dismissal.  Maryland Rule 535. See Smith v. State Roads Comm., 240 Md. 525, 539-40, 214 A. 2d 792 (1965).

   The contract between the parties, dated March 27, 1963, is printed, except that the description of the awning to be installed, the price of $650, and the words "Fully guaranteed" are in writing.  One of the printed provisions is that the contract is "subject to strikes, meteorological conditions and other conditions" beyond the appellant's control. [***6] Over objection, the court permitted Mr. Woodall, one of the appellees, to testify that the appellant's salesman had said, before the phrase "Fully guaranteed" was inserted, that the awning was guaranteed "against anything"; "This thing is up to stay.  You will never have to worry about it * * * Once this thing is up it will stay up."

   Mr. Woodall testified that the carport was erected two weeks after the contract was signed.  The carport roof was fastened to the house on one side and on the other was supported by four free-standing aluminum posts.  He testified that: "Where the carport was fastened to the house the water use to run in between, right straight down the wall.  It was never caulked right." It always leaked, he said, between the house and the carport, it was leaking "all the time." Mr. Woodall said he complained [*624] constantly of the leakage to the appellant, without results, except that on one occasion a man was sent, but was unsuccessful in remedying the condition.

   On March 22, 1964, Mr. Woodall testified, it was snowing.  He and his wife had gone to bed when, at about 2 A.M., they heard a crash and found that the carport was lying on top of their car.  There[***7] had been snow and high winds during the month previous to the collapse, but the awning did not then fall.  On March 22, the snow was wet and melting fast.  The carport had torn loose from the house at the place of the leakage.

   Mrs. Woodall testified that, before the phrase "Fully guaranteed" was written in the contract, the salesman had said "nothing would bring it down." She said the accumulation of snow the night before the awning fell was about four inches. The next day she looked to see if anything else in their neighborhood was down, but could see no damage.  There were similar carports on the street, some larger than the Woodalls', but the others were all standing.

   Mrs. Walters, the mother of Mrs. Woodall, corroborated her daughter's testimony as to the lack of damage to other property in the neighborhood. The official weather report, introduced by the appellees, showed a snow fall in the Baltimore area of 9.7 inches on March 21, with an average temperature that day of 37 degrees and with an average wind of 9.4 miles per hour.

   After the lower court denied the motion for a directed verdict, Mr. Little, the appellant, testified he had performed the installation in a good and [***8]workmanlike manner and that the materials were the best that could have been used.  He said that the method of erection used was the same as that employed by others in the trade and that he had erected hundreds of carports using the same engineering principles as those employed in the present case and that none had collapsed.  Weather reports were introduced for the months of December, 1963, January, February and March, 1964.

    In answer to a question by the judge, Mr. Little said he had not used an angle iron to attach the awning to the house.  On cross-examination, he testified that the manufacturer of the awning [*625] guarantees the material for five years, and he, Mr. Little, guarantees the workmanship for a period of one year.  The awning collapsed within the one year period.  He did not know why the awning fell.  In his opinion, the snow was not heavy enough to collapse the carport, and he did not contend it came down because of a gust of wind.

   [**855] We agree with the appellant's contention that the warranty did not constitute a contract of insurance.  This is true whether the extent of the warranty be considered under the oral testimony as to the meaning of the guarantee, [***9] n2 whether it be limited to the appellant's own statement of its nature or whether it be taken as an express warranty within the Uniform Sales Act then in effect.  Code (1957), Article 83, Section 30 (since superseded by the Uniform Commercial Code).

n2 While objection was made to the oral testimony as to the meaning of the phrase, "Fully guaranteed," the appellant does not press the question of the admissibility of the testimony on appeal.  In our opinion, the word "fully" as used was sufficiently ambiguous to sustain the trial court's ruling.  Rinaudo v. Bloom, 209 Md. 1, 10-11, 120 A. 2d 184 (1956); Fryer v. Patrick, 42 Md. 51 (1875); McCormick, Evidence § 219 (1954).

   A warranty that the article sold will last for a certain time, if unconditional, is binding upon the seller. Rittenhouse, Winterson Auto. Co. v. Kissner, 129 Md. 102, 98 Atl. 361 (1916); Williston, Sales § 212 (Rev. Ed. 1948).  However, the phrase "Fully guaranteed," of itself, means no more than that the work shall be done in a good[***10] and workmanlike manner and that the material will be adequate for the designated purpose in accordance with the contract.  Pychinka v. Keystone Home Improvement Co., 4 D. & C. 2d 492 (Pa. Com. Pleas 1955). Even in the light of the oral testimony, the clear intent of the guarantee within the context of the entire contract is that the carport will stay up, as far as the materials and workmanship are concerned.  The printed clause in the contract, which is below the written guarantee, that the contract is subject to meteorological and other conditions beyond the appellant's control, shows that the guarantee was not intended to be unconditional, but was limited to the durability of the material and the quality of the workmanship.

   [*626] However, there was ample evidence before the trier of the facts that the warranty, even though confined to materials and workmanship, had been breached.  The testimony that the carport had leaked steadily since its installation and that the appellant, although repeatedly notified, had not remedied the condition, was uncontradicted.  The question before us, in respect of the warranty, is the same as that raised by the appellant's motions for a [***11]directed verdict -- whether there was sufficient evidence to support the finding that the defective workmanship resulting in the leakage was the proximate cause of the carport's collapse. The appellant contends that the evidence of the appellees permitted an inference of a number of possible causes of the collapse of the carport, and that therefore his motions should have been granted and the finding of the trial court was clearly erroneous.

   It is true that, generally, a plaintiff cannot recover if it appears from his own testimony that the danger complained of could have resulted either from a breach of duty owed by the defendant to the plaintiff or from some other cause for which the defendant is not responsible.  Langville v. Glen Burnie Lines, 233 Md. 181, 185, 195 A. 2d 717 (1963). That rule however, in the circumstances here present, must be taken in conjunction with the principle of proximate causation that if the situation wrongfully created by the defendant increased the risk of damage through the operation of another reasonably foreseeable force, the defendant is liable for the ensuing loss.  Walter B. Bradley, Inc. v. N. H. Yates & Co., 218 Md. 263, 269-70, 146[***12] A. 2d 433 (1958); Campbell v. State, 203 Md. 338, 346, 100 A. 2d 798 (1953); City of Baltimore v. Terio, 147 Md. 330, 336, 128 Atl. 353 (1925); and authorities therein cited.  See also Beale, The Proximate Consequence of an Act, 33 Harv. L. Rev. 633, 650 et seq. (1920).  The question of reasonable foreseeability, as part of the question of proximate causation, is ordinarily a question for the jury.  [**856] Campbell v. State, supra; City of Baltimore v. Terio, supra.

   On the testimony adduced by the appellees, with the reasonable inferences which can be drawn therefrom, we think the evidence was sufficient to support a finding that the breach of the warranty was a proximate cause of the carport's collapse. [*627] The constant leakage, according to the appellees, was down the wall of the house to which the carport was fastened. It was a permissible inference, under the circumstances, that this flow of water during any kind of precipitation would weaken the supports by which the aluminum carport was attached, thereby increasing the risk that the carport would collapse under the weight of snow. That inference is strengthened by the undisputed fact that [***13]no other similar carports in the neighborhood fell during the snowfall in which the collapse occurred.

   Unlike the situation in Langville, supra, no other cause for the collapse was suggested in the appellees' testimony.  The doctrine of res ipsa loquitur does not generally apply to warranty cases.  Great Atl. & Pac. Tea Co. v. Adams, 213 Md. 521, 526, 132 A. 2d 484 (1957). The appellant did not have control of the carport after it had been installed. Dorsey v. General Elevator Co., 241 Md. 99, 107, 215 A. 2d 757 (1966) and cases therein cited.  Nevertheless, there is some analogy to that doctrine in that the damage may well have been the result of a condition or act which ordinarily would not have resulted in damage if proper care had been exercised in the installation of the carport. While the carport passed from the appellant's control, it was he who had the peculiar knowledge of how it had been installed, and what precautions should have been taken to prevent the defect which resulted.  The foreseeability of the risk of the weight of snow operating upon a defective installation may reasonably be charged to the seller. Under the circumstances, the purchaser does[***14] not have the burden of establishing that the defective installation was the sole probable cause of the collapse. See Coca-Cola Bottling Wks. v. Catron, 186 Md. 156, 161, 46 A. 2d 303 (1946); Henningsen v. Bloomfield Motors, 32 N. J. 358, 409-12, 161 A. 2d 69 (1960); Simpson v. Logan Motor Co., 192 A. 2d 122 (D. C. App. 1963). The evidence adduced by the appellees, we think, was sufficient to support a reasonable inference that the breach of the warranty was at least a probable cause of the carport's collapse, because the appellant should reasonably have foreseen the increased risk of the effect of freezing or snowfall caused by the defective installation.

   In Correlli Roofing Co. v. National Instrument Co., 240 Md. 627, 214 A. 2d 919 (1965), the appellant had installed a roof [*628] over an addition to the appellee's existing building and had delivered to the appellee a written guarantee, which guaranteed the roof 'to be Leakproof and to wear 15 years under natural wearing conditions.' 240 Md. at 629. The appellee sued for breach of an express warranty on the ground that there was considerable leakage of the guaranteed roof which required the replacement of the[***15] entire roof. There was testimony that the roof had leaked the first time it had rained after its completion, and that while the appellant had sent its men out a number of times in response to the appellee's complaints, they were unsuccessful in abating the leakage. A witness for the appellee testified that the leakage was apparently through the flashing installed by the appellant.  The appellant called as one of its witnesses a roofer who had been in the business for some 29 years and had made a personal inspection of the allegedly defective roof. He testified that the apparent source of the entry of the water was through the flashing, and that the only thing which would cause the damage to the flashing was the settlement of the building.  The president of the appellant testified that he had repaired the flashing, and that in his opinion the cracks in the flashing were due to settlement of the building.  There was some testimony on [**857]behalf of the appellee in contradiction of this theory.  The trial resulted in a judgment for the appellee.  On appeal, the Court held that the appellee had proved a breach of the appellant's express warranty and affirmed the judgment as to[***16] liability but remanded the case for a new trial as to damages.

   On the question of causation, Judge Marbury, for the Court, said:

   "Appellant's next contention appears to be, although it is not specifically so stated, that the guarantee that the roof would be leakproof should not be enforced against it due to the fact that the leakage, if any, was caused by the settlement of the building, which in turn caused the flashing placed on the roof by it to crack and tear, and that the general contractor, not the roofer, is responsible for damages caused by the settlement. Assuming that the roofer is not responsible, under the written guarantee, for damages due to [*629] settlement, we feel that there was sufficient evidence from which the trial judge could have found that the leakage was caused by defects within the roof rather than the building's supposed settlement and that the appellant was thereby liable." 240 Md. at 632.

   In Correlli, there was testimony that the leakage of the roof was the result either of defects covered by the guarantee or of the settlement of the building, for which the Court assumed the guarantor was not responsible.  The question of causation was[***17] held one for the trial judge.  In the case before us, the judge found that the damage was due to defects covered by the guarantee rather than to an unknown cause for which the guarantor was not liable.  As in Correlli, we find that the inference which could reasonably be drawn from the testimony was sufficient to make the issue of causation a question to be determined by the trier of the facts.

   In our opinion, the denial of the relief sought by the motion for a directed verdict at the conclusion of the appellees' case was proper.  Additional evidence in support of the appellees' theory as to causation was adduced from the appellant during cross-examination.  For the same reasons which support the trial judge in his ruling on these motions, there was sufficient testimony for him to have found, as he did, that the collapse of the carport was due to a breach of the appellant's warranty for which the appellant was liable.

   Judgment affirmed; costs to be paid by appellant. 

GATEWOOD v. STATE 
No. 519, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 609; 224 A.2d 677; 1966 Md. LEXIS 470

 December  9, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed as to third and sixth counts and reversed as to fifth count; case remanded for entry of judgment of not guilty as to fifth count; two-thirds of the costs to be paid by the appellant, the other third by the State.

CORE TERMS:  lottery, bag, tickets, probable cause, trunk, sentence, convicted, sentenced, search warrant, issuance, susceptible, informant, maximum, evidence seized, Criminal Law, paraphernalia, occupants, unnamed, putting, locked, heavy, drove, unlawful possession, properly admitted, motor vehicle, subsequent offense, second time, absurdity, drafting, sensible

COUNSEL: Milton B. Allen for appellant.

   Morton A. Sacks, Assistant Attorney General, with whom were Robert C. Murphy, Attorney General, and Marvin H. Anderson, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ.  Oppenheimer, J., delivered the opinion of the Court.

OPINIONBY: OPPENHEIMER

OPINION: [*612] [**680] The appellant, found guilty and sentenced to four years under three counts of an information under the lottery laws, contends [*613] that his conviction was based on evidence seized under an invalid search warrant; that he was improperly tried and sentenced as a multiple offender under the statute; that the court's rulings on some evidentiary matters constituted prejudicial errors; and that the[***8] evidence was insufficient to sustain the convictions under several of the counts.  The trial took place in the Circuit Court for Anne Arundel County before Judge Evans, sitting without a jury.  The information contained 13 counts; Judge Evans found the appellant guilty under the third (keeping a certain place, a motor vehicle, to sell lottery tickets), the fifth (possession of a book of lottery tickets) and the sixth (possession of lottery tickets and other lottery paraphernalia); and not guilty under the other counts.  The "addendum to information" alleged that the appellant had been convicted in two prior trials of violations of the lottery laws, and the prior convictions were not disputed.

   I

   The physical evidence offered by the State consisted of lottery paraphernalia found in the trunk of the appellant's automobile, which was obtained under a search warrant issued by Judge Evans several months before the trial.  The items offered included over 1000 lottery slips, over 16,000 lottery bets and a total of over $3400 in lottery play.  Counsel for the appellant, prior to the introduction of the evidence, moved to quash the search warrant and suppress the evidence seized under it, [***9] objected to the introduction of the evidence, and in all other respects diligently maintained his position that the warrant had been issued without probable cause. His motion was denied and his objections overruled.

   The warrant was issued on the sworn application of two members of the Police Department of Anne Arundel County, assigned to the Intelligence Unit of that Department, who had been investigating alleged violations of the gaming and lottery laws for several years.  One of the officers had been a member of the Department for approximately 7 1/2 years, the other for 8 years.

   The application sets forth that one of the officers and Captain Kinsey of the Department had "received information from a confidential source, who is considered reliable" that a man [*614] driving a 1955 green Plymouth automobile was periodically picking up lottery slips in Anne Arundel County. The unnamed informant gave the Maryland registration tags of the described car; these tags were found to have been issued to the appellant, Gatewood.  The application states that the appellant, according to the records of the Federal Bureau of Investigation, had been previously convicted several times of [***10]violations of the lottery laws, and once for income tax evasion.

   After reciting the information received from the unnamed informant, the application sets forth in detail the results of a close observation of the identified Plymouth automobile, driven by the appellant; much of this data was obtained through the use of binoculars.  We refer only to those observed episodes which we consider most significant in determining whether there [**681]was probable cause for the issuance of the warrant.

   On July 21, 1965, a Buick car parked behind Gatewood's Plymouth, and Gatewood gave the Buick driver a "dark colored bag"; the two cars then drove off in different directions.  On August 12, Gatewood parked his car at the rear of a tavern; a minute afterward, another car operated by an unknown heavy man "wearing a black mustache" parked at the rear of the Plymouth and gave Gatewood a large brown shopping bag; Gatewood unlocked the trunk of his Plymouth, placed the bag he had received on the floor of the trunk near several similar bags already there, and relocked the trunk. A little later, a 1952 Ford, with four occupants, drove up and parked at the rear of the Plymouth, and an unknown man [***11]from the other car gave Gatewood a medium-sized brown paper bag; again Gatewood unlocked the trunk of his Plymouth, the man placed the bag in it, and the appellant locked the trunk. Gatewood then left.  The next day, August 13, Gatewood drove his Plymouth to the same tavern and received a large brown bag from the heavy mustached man, which Gatewood locked in his trunk. A few minutes later, what appeared to be the same Ford observed the day before, with apparently the same four occupants, drove up to the Plymouth, and Gatewood received from one of the men a medium-sized brown paper bag which Gatewood again locked in the trunk of the Plymouth.

   The application concludes by stating that as a result of their [*615] experience and training the officers have probable cause to believe and do believe from all the observations and knowledge recited that the Plymouth driven by the appellant is being kept for the purpose of selling lottery tickets and other lottery paraphernalia and that Gatewood is in unlawful possession of such articles.

   We shall not repeat the clear restatement of the law as to what is probable cause for the issuance of a search warrant given by Judge Hammond (now [***12]Chief Judge), for the Court, in Henderson v. State, 243 Md. 342, 221 A. 2d 76 (1966). We agree with the appellant that the general statement received from an unnamed informant, who is only alleged to be "considered reliable" without any reason given as to the basis for that conclusion, would not be probable cause for the issuance of the warrant.  See Shrout v. State, 238 Md. 170, 175-76, 208 A. 2d 585 (1965) and cases therein cited.  That information, of course, could properly cause the officers to make the observations which they did, even though it did not of itself constitute probable cause. If the report of the informant be entirely eliminated as affording any basis for the issuance of the warrant, we think that the reported results of the officers' observations were sufficient for the judge to find that there was probable cause to believe that violations of the laws against lotteries were being committed, and that the evidence seized as a result thereof was properly admitted.

   The significant elements are the observed, repeated transfer of paper bags of various sizes from other men to the appellant, and the locking of these bags in the trunk of the appellant's car; the[***13] observation, on one occasion, of similar bags in the trunk; the obvious pre-arrangement as to the times and place of the delivery of the bags; Gatewood's immediate departure after receipt of the bags; the fact that the transfers were made, on different occasions, by the same heavy, mustached man or the same person from the same car with the same four occupants; Gatewood's known prior lottery convictions; and the expertise of the officers who made the application.

   We have referred to the incidence of brown paper bags as standard equipment in lottery violations.  Chernock v. State, 203 Md. 147, 154, 99 A. 2d 748 (1953); Fleming v. State, 201 Md. 145, [*616] 92 A. 2d 747 (1952); Bland v. State, 197 Md. 546, 551, 80 A. 2d 43 (1951). See also the opinion of Soper, J., in United States v. [**682] Whiting, 311 F. 2d 191 (4th Cir. 1962), cert. denied, 372 U.S. 935. The appellant argues that the paper bags referred to in the application were of various sizes; that only some of them were brown; that their contents were not seen; and that their use for shopping or some other innocent purpose is entirely compatible with the officers' observations. However, it[***14] is not primarily the size or color of the bags, but the number of them given to Gatewood, the way in which they were delivered, and their quick deposit in the locked trunk of the appellant's automobile which together are significant.  Knowledge of prior convictions of the person observed is one of the elements to be considered in determining whether there is probable cause. See Shrout, supra, at 238 Md. 174. As Chief Judge Brune, for the Court, said in Dean v. State, 205 Md. 274, 283-84, 107 A. 2d 88 (1954): "The judge passing upon the application may give consideration to the experience and special knowledge of the police officers who may apply for the warrant."

   Even were the case a marginal one, its resolution is to be considered in the light of the preference to be accorded warrants.  Where, as in this case, there is a recital in the application of detailed observations and underlying circumstances, the application is to be interpreted, not hypertechnically, but in a commonsense manner.  Henderson, supra; United States v. Ventresca, 380 U.S. 102 (1965). So interpreted, we find the application showed probable cause.

   II

   The appellant had previously been convicted at[***15] least twice in Maryland courts for violations of the lottery laws before his conviction in the present case.  Under Code (1957), Article 27, Section 358, the maximum imprisonment which can be imposed for a first conviction under the lottery laws is a year.  Section 366 reads as follows: "If any person shall be a second time convicted of any of the offenses mentioned in any of the sections of this article relating to lotteries, he shall on conviction be confined in the penitentiary not less than two nor more than five years * * *" The appellant was sentenced by Judge Evans, [*617] generally, to a term of four years.  He had previously been sentenced as a second offender under the statute and contends that, under the express words of the section, he cannot be sentenced as a second offender, because the conviction was not his second but his third.

   A criminal statute must be strictly construed in favor of the defendant. Grimm v. State, 212 Md. 243, 246, 129 A. 2d 128 (1957); Fowel v. State, 206 Md. 101, 107, 110 A. 2d 524 (1955) and cases therein cited.  Where the statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, the courts[***16] are not at liberty to insert or delete words with a view toward making the statute express an intention which is different from its plain meaning.  Fowel, supra, 206 Md. at 105; Pineland Lumber Co. v. Miles, 228 Md. 584, 587-88, 180 A. 2d 870 (1962) and cases therein cited.  But in giving a statute a sensible, reasonable construction, if the words be susceptible of two interpretations, the construction should be in harmony with the manifest intent of the act and should not lead to an absurdity. Kolb v. Burkhardt, 148 Md. 539, 543-44, 129 Atl. 670 (1925); Mitchell v. State, 115 Md. 360, 364-65, 80 Atl. 1020 (1911).

   The appellant's contention is that the phrase "convicted a second time" can mean only that a lottery violator may, after a first conviction, be sentenced for a term up to five years for the next violation, but thereafter, on subsequent convictions, whether they be for a third offense or a tenth, can be sentenced only for the maximum of one year as provided for a first conviction. That construction of the statute is neither sensible nor reasonable and manifestly leads [**683] to an absurdity, but, if that is its plain meaning and if the words are not[***17] fairly susceptible of another interpretation, we are not at liberty to depart from them.  We think, however, that the section is fairly susceptible of another and more reasonable interpretation.

   The word "second" has several meanings.  One meaning is "coming next after the first in order of place or time," and that is the meaning which the appellant contends must be given the word as used in the section.  Another meaning, however, is "another, additional to that which has already taken place," Oxford New Eng. Dict.; "of the same kind as another; another," [*618]Webster, New Internat'l Dict., 2d ed.; "another; other," Funk & Wagnalls, New Standard Dict.; "other or another," New Century Dict.  The word "time" as used in the section is to be construed in the light of Code (1957), Article I, Section 8, which provides as one of the rules of interpretation of the Code that "the singular always includes the plural, and vice versa, except where such construction would be unreasonable." Under that provision, the word "time" may properly be taken as meaning "time or times." Secretary of State v. Bryson, 244 Md. 418, 224 A. 2d 277 (1966).

   The section, therefore, in[***18] our opinion, is fairly susceptible of the meaning that the maximum five year sentence may be given if any person shall be convicted another time or times of any lottery offense.  That construction, we believe, effectuates the legislative intent, the ascertainment of which is the object of judicial interpretation.  State Dept. of Assessments v. Ellicott-Brandt, Inc., 237 Md. 328, 335, 206 A. 2d 131 (1965).

   The appellant argues that the legislative meaning in the enactment of the section is to be taken as in accord with his contention because Section 300 of Article 27, with respect to narcotics, deals separately with the penalty for a second offense and the penalty for a third or subsequent offense, and that because the lottery section makes no express provision for third or subsequent convictions, it must be taken as restricted only to the penalty for a conviction next after the first.  The short answer to the argument is that Section 300 provides greater penalties for a third or subsequent offense than for the second; Section 366 contains no such gradation, and a distinction between convictions after the first was therefore unnecessary.  We find Judge Evans was correct in ruling[***19] that Gatewood's conviction came within the orbit of Section 366.

   III

   The appellant contends that the trial judge erred in refusing to allow him to inquire into the extent to which the State's Attorney of Anne Arundel County participated in the drafting of the application for the search warrant. We find the argument to be without merit.  Even though the State's Attorney assisted the officers who made the application in putting the results of their observations into final form, it was the officers who made [*619] the observations and made oath as to their correctness.  The services of an attorney in putting a document executed by a layman into coherent form do not affect the standing of the document as the legal act of the person who executed it, or make the statements it contains less the statements of the one who signs.

   The appellant also contends that Judge Evans erred in permitting Captain Kinsey to testify, over objection, that the Plymouth automobile referred to in the search warrant was registered in Gatewood's name in the records of the Department of Motor Vehicles, when no records of the Department were offered to evidence Gatewood's ownership.  Captain Kinsey's testimony[***20] in this matter was under the fourth count of the indictment, which charged the appellant with permitting a motor vehicle which he owned to be used as a place for selling lottery tickets. Gatewood [**684] was found not guilty under this count, so that, if there was error in the admission of the testimony, it was immaterial.

   IV

   The appellant's final contention is that the evidence was insufficient to sustain the convictions under the third and fifth counts of the information. The third count charged Gatewood with keeping a motor vehicle for the purpose of selling lottery tickets. The appellant argues that Captain Kinsey's interpretation of the evidence, as an expert, was that Gatewood was a "satchel man" whose duty it was to pick up lottery tickets from the runners, and that there was no evidence that his automobile was used for the sale of tickets. However, this Court has held that the tickets themselves are evidence of prior sales and that the trier of the facts may draw a permissible inference that an automobile in which the tickets were found was used for the purpose of consummating such sales.  Moore v. State, 199 Md. 676, 680-81, 87 A. 2d 577 (1952) and cases therein[***21] cited.  We find there was sufficient evidence to sustain the conviction under the third count.

   The fifth count charges unlawful possession of a book of lottery tickets, the sixth, the unlawful possession of tickets and other lottery paraphernalia. In the oral argument, the State conceded that, on the evidence, the two counts were duplicitous [*620] and that separate sentences under each would have been improper.  We think that, on the evidence, there should have been a conviction under only one of these counts.  The appellant in his brief attacks only the conviction under the fifth, and we agree that the judgment of guilty as to this count should be reversed.  Tucker v. State, 237 Md. 422, 425-26, 206 A. 2d 691 (1965) and cases therein cited.

   The sentence was a general one, covering the convictions under the third, fifth and sixth counts and the addendum.  A general sentence covering more than one count is not improper, if the sentence does not exceed in the aggregate the sentences which might have been imposed cumulatively under the several counts. Tucker, supra, and Vandegrift v. State, 226 Md. 38, 42, 171 A. 2d 713 (1961). In the case before us, the sentence[***22] of four years did not exceed the maximum authorized by Section 366.  Our reversal of the judgment of conviction under the fifth count does not invalidate the general sentence imposed.  Bryant v. State, 229 Md. 531, 537, 185 A. 2d 190 (1962).

   Judgment affirmed as to third and sixth counts and reversed as to fifth count; case remanded for entry of judgment of not guilty as to fifth count; two-thirds of the costs to be paid by the appellant, the other third by the State. 

LANE v. WARDEN OF THE MARYLAND PENITENTIARY 
App. No. 115, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 723; 224 A.2d 276; 1966 Md. LEXIS 496

 November  22, 1966, Decided

   PRIOR HISTORY: [***1]  
Application for leave to appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Application granted.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ.

OPINIONBY: PER CURIAM

OPINION: [*724] [**276] Application granted and case remanded for the appointment of counsel for the applicant, to prepare application for Leave to Appeal.

   Application granted. 

SAMPSON v. FIRST CREDIT CORPORATION 
No. 459, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 317; 223 A.2d 627; 1966 Md. LEXIS 438

 November  10, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed.  Costs to be paid by the appellant.

CORE TERMS:  cash price, finance, Retail Installment Sales Act, clerk, motor vehicles, Maryland Rule, sale price, condone, repossessed

COUNSEL: Submitted on brief by Rolf A. Quisgard, Jr., and Stanley Sollins for the appellant.

   No brief and no appearance for the appellee.

JUDGES: [***2]

   Hammond, C. J., and Marbury, Oppenheimer, Barnes and McWilliams, JJ. McWilliams, J., delivered the opinion of the Court.

OPINIONBY: McWILLIAMS

OPINION: [*318] [**628] Maryland Rule 826 g n1 aims to reduce the bulk of transcripts and record extracts by allowing the parties, in certain circumstances, to supersede the pleadings and the evidence by filing with the clerk, subject to the trial court's approval, a statement of the case containing only what may be essential for the decision of this Court.  The parties in the case at bar have undertaken to bypass even our scanty requirements.  The statement appears only in appellant's brief (there is no appearance for appellee); it was not filed with the clerk; it was not approved [*319] by the court.  However, since the decision of the trial judge must be affirmed we shall consider appellant's single contention but it must not be supposed that by doing so we condone such professionally unbecoming indifference to the Rules of Procedure.  The "Agreed Statement of Facts" as it appears in the brief is as follows:

   "In this case, the Appellant purchased on credit a new automobile under a form that met the requirements as set forth in[***3] the Retail Installment and Sales Act, Section 128 to 153, Article 83, Annotated Code of Maryland (1957 Edition), hereinafter called the Act.  The cash price of the car was $2,900.00 to which was added the usual finance charges and the insurance.  The seller of the car assigned the said contract and the balance due thereunder to the Appellee herein.

   "Upon the failure of the Defendant to meet the required monthly payments as provided in said contract, the Appellee repossessed and sold the automobile and when applying the sale price plus the credit allowed for unearned finance charges and insurance against the unpaid balance, there remained a deficit for which this suit was filed to recover judgment.

   "It is agreed and the evidence clearly shows that the notice sent to the Appellant after the Appellee repossessed the car did not conform with the notice required under Section 141c of the Act.  It also clearly showed that the Defendant had not paid 50 per cent of the cash price of the car, and had not requested the Appellee to sell the car in any special manner as provided in Section 143a of the Act.  The result is that if this sale came under the requirements of the said Act, then, because[***4] of the failure of compliance with Sections 141c and 143a of the Act, the Defendant would not be responsible for any deficiency.

   "The Lower Court found that because the sale was in excess of $2,000.00, Sections 141c and 143a of the Act did not apply and rendered a deficiency judgment in favor of the Appellee in the amount of $676.94 with interest from the date and costs of the suit.

   [*320] "It is from this judgment and finding that this appeal is taken."

n1 "When the questions presented by an appeal can be determined by this Court without an examination of all the pleadings and evidence, the parties with the approval of the lower court may prepare and sign a statement of the case showing how the questions arose and were decided, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by this Court.  Such statement, when filed with the clerk of the lower court shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, and, together with such judgment and opinion, shall be certified to this Court as the record on appeal."

[***5]

   [**629] Judge Sachse rejected appellant's contention that all of the provisions of the Retail Installment Sales Act are applicable to sales of motor vehicles without regard to the amount of the cash price. He held that since the sale price of the car purchased by appellant exceeded $2,000 n2 the transaction was covered by the statute only in respect of finance charges and insurance costs.  He cited our holding in Auto. Accept. Corp. v. Univer. Corp., 216 Md. 344, 354, 139 A. 2d 683 (1958), wherein Chief Judge Brune, for the Court, said:

   "The Retail Installment Sales Act is applicable to conditional contracts of sale covering motor vehicles where the cash price is $2,000 or less; and insofar as finance charges and insurance costs are concerned, is now applicable to such contracts without regard to the cash price. (Acts of 1954, Ch. 80, adding Sec. 119A to Article 83 of the 1951 Code.)"

n2 Increased to $5,000 by Chap. 806 of the Laws of 1965.  Code, Art. 83, § 152 (a) (1965 Repl. Vol.)

[***6]

   Four months later, in Nuttall v. Baker, 217 Md. 454, 456, 143 A. 2d 500 (1958), Judge Prescott (later Chief Judge), who spoke for the Court, said:

   "As the purchase price of the motor vehicle was over $2,000, the Retail Installment Sales Act does not apply to the transaction here involved except as to finance and insurance charges, neither of which is involved herein, Code (1957), Article 83, sections 152 (a), 132; Auto. Accept. Corp. v. Univer. Corp., 216 Md. 344, 354."

   In the circumstances here present we see no reason for disturbing the holding of Judge Sachse.

   Judgment affirmed.

   Costs to be paid by the appellant. 

McNULTY AND ELKSNIS v. BOARD OF SUPERVISORS OF ELECTIONS FORANNE ARUNDEL COUNTY, et al. 
No. 451, September Term, 1966
 
Court of Appeals of Maryland
 
245 Md. 1; 224 A.2d 844; 1966 Md. LEXIS 395

 October  20, 1966, Decided  
 December  13, 1966, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J., and Childs, J.

DISPOSITION: Affirmed, with costs, and further ordered that the mandate issue forthwith.

CORE TERMS:  candidate, voter, lever, election, voting, ballot, machine, space, cast, column, blank, appellant-candidate, bottom line, block, mandamus, absence of fraud, shortage, disputed, pulled, votes cast, capricious, sample ballot, disenfranchised, reviewable, ascertain, posted, locked, voted, guess', metal

COUNSEL: William J. McCarthy, with whom were Joseph H. H. Kaplan and Venable, Baetjer & Howard on the brief for appellants.

   John A. Blondell, for Board of Supervisors of Elections for Anne Arundel County, part of appellees; Louis M. Strauss, with whom was Robert A. Dietz, on the brief, for[***6] Theodore L. Bertier, Jr., other appellee.

JUDGES: The entire Court.  Finan, J., delivered the opinion of the Court.

OPINIONBY: FINAN

OPINION: [*3] [**846] After oral arguments, we affirmed by per curiam order dated October 20, 1966, the order of the Circuit Court for Anne [*4] Arundel County which dismissed appellants' petition for a Writ of Mandamus. Our reasons for affirmance follow.

   The appellant, Honorable John F. McNulty (hereinafter referred as to McNulty) for some years a member of the General Assembly of Maryland and a candidate for the office of State Senator, in the September 13, 1966 Democratic Primary, petitioned the Circuit Court for Anne Arundel County for a Writ of Mandamus to be directed to the appellees, Board of Supervisors of Elections of that County (hereinafter referred to as the Board), to require them to award to him 136 disputed votes cast in the primary and to declare and certify him as the democratic nominee for the office of State Senator from Election District 6A of that County.  From the lower court's (Sachse & Childs, JJ.) dismissal of the petition for mandamus this appeal was taken.

   McNulty was one of four candidates running for the Democratic[***7] nomination for State Senator from Legislative District 6A.  The names of the candidates for that office were arranged in alphabetical order in column seven (7) on the ballot. Thus on line A of column 7 appeared the name of candidate Bertier, on line B candidate Boyd, on line C candidate Clark and on line D candidate McNulty.  Line E, column 7, was left blank. Line E ran across the face of the machine under the columns for all offices and the majority of all blocks in that line, including that portion of line E under the State Senatorial candidate column were left blank. Line E was the last line devoted to democratic candidates. Since Republican levers, below line E on the voting machines were all locked by an attendant when a democrat entered the booth, line E was the "bottom line" for a democratic voter.

   To better visualize the situation we have reproduced column 7 as it appeared on the ballot.

   [*5] [SEE ILLUSTRATION IN ORIGINAL]

   Although it is the established practice for blank spaces on voting machines to be covered by metal plates, spaces in line [*6] 7E, which were the blocks immediately below the name of McNulty, were left uncovered or "open" on 39 of the 49[***8] voting machines used in District 6A.  Failure to cover these spaces was allegedly due to a shortage of [**847] covers.  There was testimony that the Board did not know of the shortage of covers until the day after the election and that had they known of this shortage they would have made arrangements to borrow additional covers from another County.  The Chairman of the Board testified that in his opinion all the levers should have been locked and that the available supply of covers could have been better arranged on the machines. n1

n1 It should be noted that there is nothing in Art. 33, sec. 119, et seq., Code (1957 Ed. and 1965 Supp.) (Election Laws), which places a specific legal obligation on the Board to lock or cover any levers which are not to be made available for use in voting for a candidate. It is the practice, however, to do so, and one cannot gainsay the utmost desirability of such a practice, if the Board is to diligently pursue its obligation to conduct fair elections.

   It is uncontradicted[***9] that McNulty's campaign slogan called for the voters to "vote the bottom line." Since line E was left open it became the bottom line and the 136 votes in dispute are the ones which were cast in block 7E, the blank space directly below McNulty's name (block 7D).  It is also uncontroverted that McNulty's campaign manager mailed 15,000 sample ballots showing McNulty's lever number as 7D; that voting instructions, published in two weekly papers on the Thursday prior to the election and in a daily paper on the Monday preceding the election, specifically told the voters to turn down the pointer over the candidate's name for whom they wanted to vote; that specimen ballots contained these same instructions; that voting directions prepared by the Attorney General, containing the specific instruction to pull down the lever over the candidate's name were posted on all but three voting machines; and that when a voting lever was pulled a white 'x' appeared over the name of the candidate directly below the lever. Models of a voting machine, showing a portion of the machine's face, were also available in each polling place for the voters' inspection.

   The results of the election showed McNulty (1964[***10] votes) [*7] ran second to candidate Bertier (2016 votes).  On the 39 machines, on which the E line had been left open, 136 votes had been cast in space 7E.  From these figures candidate Bertier was declared the winner.  McNulty requested that the Board of Canvassers award the 136 votes cast in space 7E to him.  After a canvass was made, McNulty requested a recount on the premise that the votes cast in 7E were intended for 7D and therefore should have been awarded to him.  A recount, at which McNulty was present, was had on 27 September 1966 and on the same day a hearing was held at the office of the appellees.  At this hearing appellant was represented by counsel, who had an opportunity to argue why appellant's request for the 136 disputed votes should be granted.  McNulty produced no witnesses, although he was given the opportunity to do so.  After listening to the arguments of all interested parties, the appellees refused to award the 136 votes to McNulty saying:
 
"The Board unanimously feels that the intent of the voter was probably to cast their vote for Mr. McNulty and other candidates on the D Line, when instead they, in error, pulled the lever for the E Line.  We[***11] feel sympathetic to these candidates; however our counsel, John Blondell, had advised us there is no legal justification for awarding these votes to them, in the absence of evidence showing that levers over the candidates names could not be pulled."

   After the appellees certified Mr. Bertier as the winning candidate, McNulty petitioned the lower court for a Writ of Mandamus. Candidate Bertier was allowed to intervene in the action as an interested party.  Demurrers and answers were filed by appellees and the intervenor.  At the hearing on the petition for Mandamus, appellant Elksnis testified that notwithstanding the fact that he had taken a sample ballot card, given out by McNulty, into the voting booth with him when he voted, he [**848] cast his vote beneath McNulty's name (7E) because he had been told at various political rallies, "Don't forget to vote the bottom line, don't forget the bottom line, Mr. Wagner and Mr. McNulty," and that since line E column 7 "was unlocked, * * * I thought I was voting right and I pushed it [lever 7E] [*8] down." However, Elksnis admitted that there was nothing to have prevented him from pulling down lever 7D, as the instructions on [***12]McNulty's sample ballot card so advised.

   McNulty argued that the obvious intention of the 136 voters who had cast votes in block 7E was to vote for him and that since the appellees had found that this was "probably" their intention, these 136 votes should be awarded to him and he should have been certified as the winner of the Democratic nomination for State Senator from Election District 6A of Anne Arundel County.

    Elksnis contended that if the votes cast in space 7E were not awarded to McNulty, he and 135 other voters would thereby be disenfranchised, in violation of the law and the Constitution of the United States.  It should be noted that, even though line E was left unlocked, or "open," only 1 vote could be cast in column 7, thus there was no possibility of 1 person voting twice for a State Senatorial candidate (column 7).

   Holding that the judicial process does not extend to guessing what a voter intended to do or for whom he intended to vote, and finding no fraud or arbitrary conduct on the part of the appellees, the lower court dismissed the petition for a Writ of Mandamus.

   For many years this Court has held that the actions of a Board of Supervisors of Elections in the[***13] absence of fraud are reviewable on mandamus only in the event that such conduct is capricious or arbitrary, although it is also now well settled that an error of law committed by a quasi-judicial body is an abuse of discretion and hence reviewable. Hammond v. Love, 187 Md. 138, 143-45, 49 A. 2d 75, 77-78 (1946).

   Accordingly the question before this Court was whether or not the lower court erred in refusing to issue a Writ of Mandamus holding that the Board was not guilty of arbitrary or capricious action in refusing to award the 136 disputed votes to McNulty.

   It is rational to assume that wherever an ambiguity arises with regard to election results, every effort should be made to reasonably ascertain the intention of voters and this is the initial duty of the Board.  See Wilkinson v. McGill, 192 Md. 387, 64 A. 2d 266 (1949). It is also axiomatic that unnecessary disenfranchisement [*9] of voters due to minor errors or irregularities in casting their ballots, in the absence of fraud, should be avoided Coulehan v. White, 95 Md. 703, 53 Atl. 786 (1902). In the past this Court endeavored to give the fullest meaning to the aforegoing principles in the cases of Mahoney [***14] v. Sup. of Elections, 205 Md. 380, 109 A. 2d 110 (1954) and Mahoney v. Sup. of Elections, 205 Md. 325, 108 A. 2d 143 (1954). The opinions of Chief Judge Brune and Judge Delaplaine in these cases make it clear that where a Board of Supervisors of Elections makes a mistake of law, the Court has the power by mandamus to correct it.

   Keeping these principles before us let us review the present case.  The record is devoid of any hint of fraud or chicanery attributable to any of the parties.  The evidence further establishes the fact that no substantial number of voters were disenfranchised, indeed, if any were.

   That the Board made an administrative error, in not seeing to it that there were sufficient metal covers to lock all of the levers over all blank spaces on the voting machines under their supervision, goes without saying.  However, this mishap, in the absence of fraud is not sufficient to warrant a calling of a special election, the reason being, that no voter was actually prevented from voting for the candidate of his choice, if he followed the official election instructions published in the newspaper prior to the election, the directives on the specimen [**849] ballots[***15] also published, and the instructions of the Attorney General prominently posted in the polling places, and indeed, if they had followed the instructions on McNulty's own sample ballot. In Wilkinson v. McGill, supra, at 393, 64 A. 2d 269, this Court held that where such a mistake does not interfere with the fair expression of the will of the voters, the result of the election need not be disturbed.

   The Board held a hearing at which evidence was taken and at which McNulty appeared.  In an effort to determine whether or not the action of the Board was capricious the Circuit Court, not only reviewed the evidence that the Board had before it but heard additional testimony from appellant Elksnis.  The lower court found that the decision of the Board was not arbitrary or tainted with any fraud and affirmed its action.

   [*10] The Board stated in its written opinion "The Board unanimously feels that the intent of the voter was probably to cast their vote for Mr. McNulty * * *".  (Emphasis supplied.)

   However, it concluded its opinion stating that, relying on advice of their counsel, "there is no legal justification for awarding these votes to them [McNulty and Wagner], in [***16]  the absence of evidence showing that levers over the candidates names could not be pulled." (Emphasis supplied.)

   It is obvious that the Board, felt that it should not be charismatic in its action, just as the lower court felt that to award the 136 votes to McNulty would require an exercise of clairvoyancy insofar as ascertaining the intention of the voters was concerned.  The problem faced by the lower court and this Court, in the instant case, becomes apparent when one follows the logical sequence of the argument as to what may result when a voter pulls the lever under the name of the candidate, thinking that he is voting for that candidate. A vote in such a manner for McNulty would have been cast in the blank space 7E; but a vote for Clark (7C), under the same hypothesis, would have been cast as a vote for McNulty, and so on up the line of the five levers in the State Senatorial column. Obviously, we would be dealing in the occult, if we endeavored to ascertain for which candidate the 136 votes in line 7E were properly intended.  To say that they were all, or even a substantial portion, McNulty's votes would be speculation.

   It cannot be completely discounted, as an alternate[***17] theory, that those voting on line 7E, did so as a protest vote, as the lower court said, "There is no limit to guessing and speculating as to what may have been intended by those who voted on lines 7E * * *."

   The lower court in its opinion made an analogy between the instant case and the error occasionally committed in the days of the paper ballot, where a voter through mistake placed the x outside (instead of in) the square provided opposite the name of the candidate of his choice.  In such a situation the ballots were rejected.  However, such cases are not helpful here because the rejection was made mandatory by the specific language of the Statute, Art. 33, sec. 85, Code (1951) (see similar provision, Art. 33, sec. 113(a), Code (1957)); Mahoney v. Sup. [*11] of Elections, 205 Md. 325, 337, 108 A. 2d 143, 148 (1954). The main purpose behind the statute was, and still is, to eliminate the possibility of identification of the ballot with the voter and was aimed at corrupt practices in this area.  From the inception of the Australian ballot in this State in 1890 the Legislature was concerned with preserving the secrecy of the ballot and most of the cases challenging election[***18] results, one way or another, revolve around the point of the abuse of safeguards adopted to insure this secrecy.  In this case we are not concerned with the issue of ballot identification by way of illegal marks.

   In Wilkinson v. McGill, supra, this Court was faced with a situation where the names of 26 persons were illegally placed upon [**850] the registration books and twenty-three of these individuals subsequently cast their vote in an election pertaining to the creation of a sanitary district.  The measure failed by 16 votes.  The names of the 26 illegally registered persons were known to the Board of Supervisors of Elections. This Court speaking through Chief Judge Marbury said at 402, 64 A. 2d 274:
 
"They cannot thrust that burden upon the Court by arguing that there is a probability that such votes were cast for the side having the majority.  They must prove, or at least attempt to prove, how the illegal voters voted. If direct proof cannot be obtained from the illegal voters themselves, other evidence of a circumstantial nature may be offered." (Emphasis supplied.)

   The problem of ascertaining for whom the 136 votes in the present case were intended, [***19] is far more complicated than in Wilkinson, supra, because in this case no one knows who any of the 136 people may be who pulled lever 7E, intending to vote for McNulty, with the exception of the appellant Elksnis, who testified as to how he disenfranchised himself through his own mistake. Certainly applying the rationale of Wilkinson, to the present case, it eliminates the resort to "probability" urged by the appellant.

   A recent case, to which this Court's attention was directed by counsel for the appellees, and one much in point is the Pennsylvania case In Re Primary Election April 28, 1964, [*12] 203 A. 2d 212 (1964), cert. denied, 379 U.S. 846 (1964), in which immediately beneath line B, which was a line bearing the names of a number of Democratic Candidates was line C, which was a Republican line, which contained the name of only one candidate located at the extreme end of the line.  In the intervening space across most of line C none of the levers were locked and the same problem developed in that case as we face in the case at bar.

   The majority of the Pennsylvania Court in a split decision said at 216:

   "What is the use of a State having election laws[***20] to govern an election, what is the use of having clearly marked voting machines, and Rows on the voting machines which were clearly marked for a Republican candidate and for a Democratic candidate, as well as clearly marked sample ballots, if a Court has the right and power -- as appellant argues -- to ignore and nullify all of these and substitute its 'guess' as to whom a voter intended to vote for if he hadn't voted carelessly or hurriedly or absent-mindedly or stupidly or protestingly and illegally?"
 
and again at 219:

   "The test which appellant urges us to adopt -- no matter how window-dressed or camouflaged, is a 'guess' test -- it isn't what the voter did that counts, it's what the Court guesses he intended to do, but didn't.  Such 'guess' test would undoubtedly often produce confusion, uncertainty and interminable delay in election cases, thus jeopardizing a candidate's opportunity for successfully campaigning; it would multiply 'election litigation'; and it would sometimes produce chaos in Government."
 
   It is true, as noted by the able counsel for the appellant, that In Re Primary Election April 28, 1964, supra, at 215, there was a Pennsylvania [***21]Statue which read: "(d) At primaries, he shall vote for each candidate individually by operating the key, handle, pointer or knob, upon or adjacent to which the name of such [*13] candidate is placed."; but this was directive in nature and similar to the instruction published by the Board in Anne Arundel County and the Attorney General's instructions posted in the polling places.  Therefore, the existence of the Pennsylvania statute does not mitigate the force [**851] with which In Re Primary Election April 28, 1964, may apply as supporting authority in this case.

   The Court, like the Board, regrets the position in which McNulty has been placed by the negligence of the Board in not locking the levers in line E. However, it is clear to us that the decision of the lower court was correct in dismissing the petition for mandamus and accordingly we affirmed its action. 

GORIN et al. v. BOARD OF COUNTY COMMISSIONERS FOR ANNEARUNDEL COUNTY et al. 
No. 432, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 106; 223 A.2d 237; 1966 Md. LEXIS 418

 October  12, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

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

CORE TERMS:  zoning, tract, rezoning, comprehensive zoning, water, plats, acre, reclassification, substantial evidence, classification, sewerage, proposed development, capricious, territory, cottage, rezone, zoned, residential, financing, cemetery, adversary proceeding, burden of proving, general plan, substantial change, strong presumption, admissible, criterion, informal, agriculture, debatable

COUNSEL: Jerome F. Connell for the appellants.

   Vincent A. Mulieri, Assistant County Solicitor for Anne Arundel County, for the Board of County Commissioners, one of the appellees.

   Charles C. Hartman, Jr., for the intervenors, the other appellees.

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

OPINIONBY: OPPENHEIMER

OPINION: [*108] [**238] The Board of County Commissioners for Anne Arundel County (the Board) denied the appellants' requests to rezone their property, consisting of about 600 acres, to various classifications; the appellants filed a bill for mandatory injunction in the Circuit Court for Anne Arundel County to set aside the Board's adverse decisions; n1 the court upheld the Board's refusal to grant the applications, and this appeal resulted.  The County Commissioners, [***4] in a comprehensive zoning plan for the entire county adopted in 1952, had originally zoned all of the tract "agriculture." Under that classification, in addition to farming, one and two-family dwellings are permitted on one acre lots.  Anne Arundel County Code (1957) Sec. 35-38, Sec. 35-40.  The requested reclassifications for various parcels within the tract ranged from heavy and light commercial to general and garden apartments and cottage and manor-type establishments.

n1 Anne Arundel County has abolished the Board of County Commissioners pursuant to adoption of its charter and the answer to Gorin's bill of complaint was filed by the county.  The owners of a property in the immediate vicinity of the tract involved were permitted to intervene as parties defendant in the court proceedings; their intervention was not challenged.

   The appellant, Gorin, a land developer, acquired the tract in 1955.  The tract, located not far from the Severn River, is bounded on the west by Maryland Route 3 and on the east by the[***5] Chartwell development, within the general Greater Severna Park area.  When Gorin acquired the tract, most of it was still zoned agriculture, although 107 acres had been zoned as cottage residential. After his acquisition, Gorin obtained rezoning for an additional 20 acres as cottage residential and for 100 acres as a cemetery. No part of the cemetery has been developed.  In 1964, Gorin filed six applications with the Planning and Zoning Commission to rezone approximately 637 acres of the tract for the various usages to which reference has been made.  A joint hearing was held before the Zoning and Planning Commission and the Board upon the six applications, which [*109] were consolidated as one petition.  Thereafter, the Commission recommended favorably as to all of the rezonings but the Board, by a vote of four-to-four, failed to grant any of the applications.  The failure of the Board, by an evenly split vote, to grant the applications is legally equivalent to a denial.  Stocksdale v. Barnard, 239 Md. 541, 548, 212 A. 2d 282 (1965).

   The case was argued below on the record made during the proceedings before the Board; no additional testimony was presented.  Judge Childs[***6] found that the proposed uses to which the tract involved would be put under the proposed reclassifications would be the highest and best use therefor but that the record was devoid of any evidence to show a mistake in the original zoning or a substantial change in conditions.

   Almost all of the evidence offered before the Board by the appellants went to the advantages of the proposed development of the tract and to show that the proposed land uses would be the best to which the land could be put.  There was voluminous and plausible testimony as to the attractive nature of the plans for the area involved but, as we held in MacDonald v. Board of County Comm'rs, 238 Md. 549, 555, [**239] 210 A. 2d 325, 328 (1965): "[I]t is not the proposed treatment of a particular tract within the broad territory encompassed by the original zoning plan which governs; the impingement of the proposed rezoning upon the general plan is the criterion. See Hewitt v. Baltimore County, 220 Md. 48, 57-60, 151 A. 2d 144 (1959)." Nor does the approval of the reclassifications by the Planning and Zoning Commission supplant the Board's responsibility to make its own decisions.  Board of County Comm'rs [***7]  v. Edmonds, 240 Md. 680, 685, 687, 215 A. 2d 209 (1965) and cases therein cited.  The Anne Arundel County Code expressly provides that "the county commissioners are alone empowered to promulgate or to amend zoning areas, zoning boundaries or zoning regulations." Sec. 24-9.

   The record is devoid of any evidence of mistake in the original comprehensive zoning. The only evidence of substantial change in the conditions since the adoption of the original comprehensive zoning is contained in two plats introduced through Mr. Weinhold, an engineer called before the Board by the appellants.  One of these plats showed plans for the proposed relocation [*110]of Benfield Road, intended to serve the development, and the other, Mr. Weinhold testified, was prepared by him from the official records of the Planning and Zoning Commission, to depict the existing and proposed zoning. No testimony was offered by the appellants other than these plats as to what rezoning had taken place since the adoption of the comprehensive zoning map and Judge Childs, in his opinion, found that these exhibits standing alone did not amount to testimony in support of the contention as to the change in conditions. [***8]

   We find it unnecessary to pass upon the sufficiency of the two plats to show any evidence of change in conditions.  In civil litigation, an interpretation of what official records show, with certain exceptions not here pertinent, is not admissible without the introduction of the records.  Smith v. Jones, 236 Md. 305, 203 A. 2d 865 (1964). While proceedings before an administrative board are informal and the strict rules of evidence do not apply, when the board is functioning in an adversary proceeding, the fundamentals applicable to the decision of adjudicative facts by any tribunal must be preserved.  See Hyson v. Montgomery County, 242 Md. 55, 63-67, 217 A. 2d 578 (1966). A proceeding such as is here involved is quasijudicial in nature.  Hyson, supra, and authorities therein cited; Anne Arundel County Code, Sec. 24-9.  One of the requisites in such a proceeding is that the party who carries the burden of proving an issue adduce substantial evidence of probative value.

   The question before us, however, is not whether the Board's action, if it had granted the applications, would have been supported by any substantial evidence, but whether the denial of the reclassifications[***9] was arbitrary and unreasonable.  Even if it be assumed that the plats could have been properly considered by the Board as evidence of changes in conditions, there is ample testimony in the record to make the issue of whether there was sufficient change to justify denial of the applications at least fairly debatable.

   The tract involved consists of approximately a square mile.  The testimony adduced by the appellants indicates that under the proposed development about 16,000 people would be expected to live within the tract. There are no high-rise or garden [*111] type apartments within several miles of the property. Serious questions were raised by opponents of the plan as to the effect of the proposed development upon the houses in the surrounding territory, as to traffic and as to potential water pollution.  There was testimony that construction of the proposed commercial and high-density residential areas could not be begun until proper sewerage and water had been made available.  Mr. Weinhold testified for the appellants that water could be provided by septic systems and wells. However, a letter [**240] from the Anne Arundel Sanitary Commission stated that in order[***10] to provide public water the Commission would have to construct a pumping station and elevated tank to serve the general area and that while public sewers could be provided by extension of the proposed system, the extension of the public systems would be dependent upon adequate financing. How and when such financing could be secured was not made clear.

   Furnace Branch Land Co. v. Board of County Comm'rs, 232 Md. 536, 539, 194 A. 2d 640, 641-42 (1963), is closely in point to the present case.  In that case, Judge Hammond (now Chief Judge) said, for the Court:

   "If it be assumed that the applicants for rezoning demonstrated sufficient change in conditions, over-all need, the adequacy of roads and of existing or soon to be existing schools and water supply (there is no claim that without rezoning no reasonable use can be made of the land), we think there was substantial evidence before the Board which permitted it reasoningly and reasonably to find that the lack of sewerage and water, particularly sewerage, made the concentration of thousands of people on the property in question not in the public interest, if not dangerous to the health of the community.

   "Change in conditions[***11] may justify the amendment of the existing zoning ordinance to reclassify a particular property but it does not necessarily compel it.  Even as in original zoning, rezoning must be in the general public interest for the promotion of the health, safety and welfare of the community, as well as in the [*112] individual interest of the land owner.  Code (1957), Art. 66B, Sec. 21; Wakefield v. Kraft, 202 Md. 136; Huff v. Bd. of Zoning Appeals, 214 Md. 48."

   In Board of County Comm'rs v. Farr, 242 Md. 315, 322, 218 A. 2d 923, 927 (1966), we said, citing cases:

   "We have consistently held that the fact the zoning body, on the record before it, had the legal authority to grant the petition for reclassification if it had deemed such action proper, does not mean the action denying the application is to be reversed, when the decision is supported by substantial evidence and is not arbitrary or capricious."

   In this case, the strong presumption of the correctness of the original comprehensive zoning prevails and we agree with Judge Childs that there is no clear and affirmative showing that the action of the Board in denying the applications was arbitrary or capricious. [***12]

   Judgment affirmed; costs to be paid by appellants. 

SLUTTER v. HOMER 
No. 453, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 131; 223 A.2d 141; 1966 Md. LEXIS 421

 October  12, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Mace, J.

DISPOSITION: Judgment affirmed; costs to be paid by appellant.

CORE TERMS:  intersection, driver, highway, paved, right of way, driving, daughter, matter of law, smooth surface, approaching, gravel, passenger, imputed, imputed negligence, collision, coming, public highway, full stop, favored, driven, contributory negligence, own testimony, unpaved, street, expedition, servant, looked, blocks, seat, mother-owner

COUNSEL: Earl H. Davis for appellant.

   Dewey B. Morris, with whom were Michael P. Crocker, Piper & Marbury and W. Harvey Beardmore on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ.  Oppenheimer, J., delivered the opinion of the Court.

OPINIONBY: OPPENHEIMER

OPINION: [*134] [**142] This appeal from a judgment on a directed verdict for the appellee at the close of the appellant's case, involves two questions: the applicability of Code (1957) Article 66 1/2, Sec. 234, and the legal effect of the negligence of the driver of the automobile upon the appellant, who was a joint owner of the car, the mother of the driver, and a passenger therein.

   The evidence adduced by the appellant was that the accident occurred in North Beach, Maryland, a resort area, at the intersection of Erie Avenue and Third Street, at about noon on a clear day.  The appellant was in the right front seat of a four door sedan, driven by her daughter, Pamela, [***6] then 16 years of age, who had had an operator's license for several months.  In the back seat behind the driver, representing the third generation of the family, was the appellant's mother.  The three women, with the appellant's husband, had been visiting a sister of the appellant's mother, who had a cottage at North Beach. On the day of the accident, the women had driven to a grocery store about six blocks from the cottage, and were returning to the cottage when the collision occurred.  The automobile was owned jointly by the appellant and her husband.

   Pamela was driving the car in which her mother and grandmother were passengers, south on Erie Avenue, on the north side of Third Street. Both streets were two-way, of about the same width of 18 to 22 feet.  The roads were dry.  The intersection was not controlled by any stop signs or automatic signal. Erie Avenue runs north and south, and Third Street east and west.  Pamela testified that she stopped at the intersection, carefully looked in both directions, first right and then left (or east) and saw no traffic coming in either direction.  Her view was unobstructed and nothing was wrong with her eyes.  She could see to her left[***7] for several blocks to the water of the Chesapeake Bay.  She started across Third Street and at the middle of the intersection collided with the car, driven by the appellee, which was coming from the east.  Pamela testified that she heard [*135] no warning signal and did not see the other vehicle until a split second before the impact.  At the time of the collision, the car driven by Pamela was in second gear.

   The appellant testified that her daughter had come to a stop as she approached the intersection, and looked up and down.  "I also looked up and down the street. And neither one of us saw anything coming * * *".  The appellant's mother, however, who was riding in the rear seat behind Pamela, testified that "after we got in the intersection, I saw the car but it was plenty time for it to stop * * *".

   State Trooper Gerwig, called by the appellant, testified that, at the time of the accident, Third Street was a paved road, composed of black top, generally called macadam.  Erie Avenue on the north side of Third Street, the section on which Pamela was driving, was a gravel road.  It was under construction; it had "just recently been cut" by bulldozers, and had been filled with[***8] gravel. It was not paved.

   The appellant sued the appellee for personal injuries sustained by her in the collision. At the conclusion of the testimony in her behalf, the trial court directed the jury to bring in a verdict for the appellee, on the grounds that Pamela was guilty of negligence as a matter of law, and that her negligence was imputed to her mother, the appellant.  In this appeal, the appellant contends that the questions of Pamela's contributory negligence and the imputation of [**143]that negligence, if any, to the appellant, were questions of fact which should have been left to the determination of the jury.  More specifically, the appellant argues that, because the intersection was uncontrolled, the vehicle which Pamela was driving was entitled to the right of way under Sec. 231 of Article 66 1/2; and that the presence or absence of the appellant's right of control over her daughter, as her agent, was a question of fact.

   Citation of authority is no longer necessary for the principle that, in passing upon motions for directed verdicts, the evidence and all reasonable inferences deducible therefrom are to be regarded in the light most favorable to the party against[***9] whom the verdict is asked.  We look at the evidence in that light and assume, without deciding, that there was sufficient evidence to go to the jury as to the negligence of the appellee.
 
   [*136] Whether Pamela was guilty of contributory negligence as a matter of law depends, on the undisputed testimony, on whether Sec. 231 or 234 of Article 66 1/2 is applicable.  These Sections read as follows:

   "§ 231. Vehicle approaching or entering intersection.

   "(a) In general.  -- Except as hereinafter provided, all vehicles or trackless trolleys shall have the right of way over other vehicles or trackless trolleys approaching at intersecting public roads from the left, and shall give right of way to those approaching from the right.

   "(b) Modification.  -- The foregoing rules are modified at through highways and otherwise as stated in this article."

   * * *

   "§ 234. Vehicle entering paved highway.

   "The operator of a vehicle entering a paved public highway, which is hereby defined to be a highway having a hard, smooth surface, composed of gravel, shells, crushed stone, paving blocks, asphalt, concrete or other similar substance, from an unpaved public highway, or from[***10] a private road or drive, shall come to a full stop upon reaching the intersection, and yield the right of way to all vehicles approaching on such paved public highway."

   Sec. 231, upon which the appellant relies, is expressly made subject to the provisions of the Article which follow it.  Sec. 234 makes the operator of a vehicle upon a paved public highway the favored driver at the intersection of the paved highway with an unpaved highway. A paved highway, as defined in that Section, is one having a hard, smooth surface. The clear legislative intent is that the composition of the road, whether of gravel, crushed stone or other similar substance, is immaterial, as long as the highway has a hard, smooth surface. Correspondingly, and contrary to the appellant's contention, the material of which the highway is composed does not of itself make it one with a hard, smooth surface. It is the nature of [*137] the surface which the Legislature has made controlling.  Gravel may be treated so as to produce a hard, smooth surface, as is sometimes the case in the shoulders of expressways. In this case, however, the uncontradicted testimony adduced by the appellant was that whereas Third[***11] Street, on which the appellee was proceeding, was a paved road, the section of Erie Avenue down which Pamela was driving to the intersection, had been cut by bulldozers in the course of construction, and, while filled with gravel, was not paved. On the undisputed facts, Sec. 234 controls.

   Under that Section, the unfavored driver is under the double duty of coming to a full stop upon reaching the intersection and yielding the right of way to a vehicle approaching on the paved highway. We have given Sec. 234 the same interpretation as has been given to the "boulevard" law, Article 66 1/2, Sec. 233.  Grue v. Collins, 237 Md. 150, 157, [**144] 205 A. 2d 260 (1964), and cases therein cited.  See Note, 17 Md. L. Rev. 68 (1957).

   Pamela testified that she came to a full stop before entering the intersection and her statement was corroborated, but her own testimony makes it clear that she failed to yield the right of way to the vehicle driven by the appellee.  Her testimony and that of the appellant that, although they both looked to the left as well as the right before entering the intersection and that neither saw anything, except for a "split second" before the impact, does not[***12] relieve Pamela from the legal conclusion that she was negligent as a matter of law. The weather was clear, and the view to the left, from which direction the appellee was approaching, was unobstructed.  Pamela testified she could see at least three blocks to the left, but nevertheless did not see the appellee approaching. Whether Pamela did not look when she should have, or did not see when she did look, on her own testimony she must be deemed to have been negligent as a matter of law. Shanahan v. Sullivan, 231 Md. 580, 583, 191 A. 2d 564 (1963); Wallace v. Fowler, 183 Md. 97, 103, 36 A. 2d 691 (1944). Even assuming that there was sufficient evidence of negligence on the part of the appellee for the question to have been submitted to the jury, Pamela must be deemed to have been contributorily negligent.  A finding by the jury to the contrary on that question could not have been permitted to stand.

   [*138] Nardone v. Underwood, 219 Md. 326, 149 A. 2d 13 (1959), relied upon by the appellant, is not in point.  There, both roads at the intersection were hard-surfaced, and what is now Sec. 231 was held applicable.  The Court, at 219 Md. 330, pointed out that the exception[***13] set forth in what is now Sec. 234 was not applicable on the facts.  The motorist coming from the right, therefore, was the favored driver, unlike the situation here, where the driver entering from the unpaved road had the duty to yield the right of way. In Standard Oil Co. of N.J. v. Sheppard, 148 F. 2d 363 (D. C. Cir. 1945), cited by the appellant, there was evidence that the favored driver was on the wrong side of the road and that the unfavored driver could not reasonably have discovered the approach of the favored vehicle.

   The second question is whether the appellant is barred from recovery against the appellee, on the facts, because of her daughter's contributory negligence. The court below, in directing a verdict for the appellee, held, as a matter of law, that Pamela's negligence was imputed to the appellant, the owner of the automobile and a passenger therein.

   The appellee relies upon Merritt v. Darden, 227 Md. 589, 596-97, 176 A. 2d 205 (1962), to support the trial judge's ruling.  Merritt, in this aspect, is closely in point on its facts to the present case.  There was, as here, both a family relationship and a family expedition, with the mother-owner a passenger [***14]in the car driven by her minor son.  The mother-owner brought suit against the driver of the other car involved in the collision, and the trial court instructed the jury that the negligence, if any, of the plaintiff's son was not imputable to her.  This Court reversed the judgment in favor of the mother-owner.

   On facts such as those present in Merritt and in this case, two distinguishable legal theories have been invoked by courts in various jurisdictions, and even by the same court, to bar recovery by the owner-occupant-parent.  One theory, relied upon in Merritt, is that the negligence of the operator of the car is generally imputed to the owner-passenger.  However, in Vacek v. State, Use of Rokos, 155 Md. 400, 142 Atl. 491 (1928), relied upon in Merritt, the issue was regarded primarily as one of whether the doctrine of respondeat superior was applicable.  In Vacek, the enterprise in which the car was [*139] driven was a trip made by friends, with the owner of the car a passenger, and, while some of the Court's language is that of imputation of negligence rather [**145] than that of agency, the controlling issue in the opinion is whether the relation[***15] of master and servant existed.

   The doctrine of imputed negligence rests on the presumption that the non-driving owner had the right to control the vehicle.  That presumption, as Merritt states, is rebuttable; the presumption is based, not on the actual exercise of control, but on the right to exercise it.  The agency doctrine, on the other hand, rests on the relationship of the parties and the nature of the expedition during which the accident occurred.  Imputed negligence, like agency, is based on the relationship, but turns on the facts in respect of the right to control, whereas the agency theory applies, where it is pertinent, irrespective of the momentary right of physical control.  In short, the agency doctrine is predicated on a status rather than on inference of fact.

   In Gray v. Citizens Casualty Company of New York, 286 F. 2d 625 (4th Cir. 1960), quoted with approval in Merritt, Chief Judge Sobeloff, for the court, said as to the Maryland law of imputed negligence that "an agency relationship is not necessary to be shown for the failure of the owner, who is present, to exercise his presumed control makes him liable." 286 F. 2d at 627.

   The imputed negligence[***16] theory has been criticized as unrealistic and fictitious.  See Prosser, Torts (1955) Sec. 54 and Note, 17 Ark. L. Rev. 91, 92 (1962-1963); 11 Drake L. Rev. 57, 60 (1961). The criticism rests on the practical consideration that, while back-seat driving is generally an annoyance, and sometimes a danger, it is almost never a physical fact.  Restatement, Second, Torts, Sec. 485 rejects the doctrine of "imputed contributory negligence" as based on theories of a fictitious agency relation, which are now generally recognized as pure fiction, and no longer valid.  However, the Restatement makes the rule of Sec. 485 subject to the accepted and realistic statements as to the agency situation set forth in Sections 486 and 491.  Sec. 486 Comment a, states that the rule of Sec. 485 does not purport to determine the existence of the relation of master and servant. Sec. 491 Comment j, states that:
 
[*140] "* * * [I]f the purpose of the journey is for the benefit of the owner, even though it is also for the benefit of him who is permitted to drive, the owner may under the principles of the law of Agency be regarded as the master of the driver even though no wages or[***17] reward other than the participation in the drive is paid to him."
 
Restatement, Second, Agency, 238 Comment c, states that:
 
"A child, however, may be the servant of his parent in driving an automobile in pursuance of his parent's orders or on his parent's business.  If, for instance, a minor son is driving the family automobile with his father in the back seat, it is inferred that because of the ownership and the parental relation the parent has such control as causes him to be the master for this purpose."

   On the uncontradicted testimony in this case, Pamela was the agent of her mother, not on the basis of the rejected family car doctrine, see Schneider v. Schneider, 160 Md. 18, 152 Atl. 498 (1930), and Myers v. Shipley, 140 Md. 380, 116 Atl. 645 (1922), but because, on the facts, respondeat superior applies. The trial judge was correct in holding that the appellant was barred from recovery because of the negligence of her daughter, whether that holding is based on the law of agency or on the controversial doctrine of imputed negligence.

   Judgment affirmed; costs to be paid by appellant. 

MUNDELL v. STATE 
No. 139, September Term, 1965
 
Court of Appeals of Maryland
 
244 Md. 91; 223 A.2d 184; 1966 Md. LEXIS 414

 October  11, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  shop, barber, breaking, prepare, freely, Criminal Law, felony, depressed, drinking, appointed, assigned, intent to commit, right to remain silent, burden of proving, consultation, disclosures, frightened, hysterical, coherent, broken, induce, warned, glass, door

COUNSEL: Submitted by Marjorie S. Holt for appellant.

   Submitted by Thomas B. Finan, Attorney General, with whom were David T. Mason, Assistant Attorney General and Marvin H. Anderson and Allan C. Westcott, State's Attorney and Assistant State's Attorney for Anne Arundel County, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*92] [**185] On appeal the defendant (Irvin Frederick Mundell), who was convicted of breaking into a barber shop with intent to commit a felony and with attempted larceny, contends: (i) that his[***3] statement to the police was not freely and voluntarily given; (ii) that his counsel did not have sufficient time to prepare his defense; and (iii) that the evidence was insufficient to show that he intended to commit a felony.

   In the early morning of November 17, 1964, as Corporal Curtis R. Nunn of the Anne Arundel County Police was patrolling the downtown area of Glen Burnie, he heard the breaking of glass. When he looked in the direction from which the sound came, he saw a man (later identified as the defendant) at the door of a barber shop breaking the glass out with a bottle.  On hearing the police car door slam, the defendant ran from the scene.  The officer pursued and apprehended him, but not before several warning shots had been fired.  Following treatment of the defendant at a hospital for an abrasion on his head received either as a result of falling as he was attempting to flee or of having been grazed by a bullet, he was released in the custody of another police officer. Later, after he had been advised that he did not have to make a statement, that if he gave one it could be used against him and that he had a right [*93] to be "represented by a lawyer at anytime," [***4] the defendant made a statement in which he admitted that he had broken and entered the shop with the intention of taking "everything [he] could get and a lot of cash * * * about $50 or $60 * * * [and go to] Massachusetts to see [his] brothers." Prior to the breaking the defendant had worked in the barber shop. At the trial the wife of the owner testified that $60 in cash and a lot of barber tools were in the shop when it was broken into.  There was also evidence to the effect that the defendant appeared to be semiconscious at the time of arrest, that he was crying when he was about to be released from the hospital, that he was depressed and that he had been drinking.

   (i)

   The State met the burden of proving the voluntary character of the statement. The test in this case is not, as the defendant claims, whether he was frightened, hysterical, depressed and had been drinking, but whether his disclosures to the police were freely and voluntarily made at a time when he knew and understood what he was saying.  See Wiggins v. State, 235 Md. 97, 200 A. 2d 683 (1964), cert. den. 379 U.S. 861 (1964). Also see Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962). Not only[***5] was the defendant advised of his right to remain silent and to see a lawyer and warned that any statement he made could be used against him, but the record is clear that he was rational and coherent during the time the statement was taken.  In addition to this, it is apparent from the record that he made the statement freely and voluntarily and that no force, threats or promises were made to induce him to make it.  See Abbott v. State, 231 Md. 462, 190 A. 2d 797 (1963). To the same effect, also see the more recent cases of Bean v. State, 234 Md. 432, 199 A. 2d 773 (1964) and Campbell v. State, 240 Md. 59, 212 A. 2d 747 (1965). The case at bar was tried before Miranda v. Arizona, 384 U.S. 436 (1966) and Johnson v. New Jersey, 384 U.S. 719 (1966) were decided.

   [**186] (ii)

   The record indicates that the time counsel had to prepare the defense of his client was reasonable under the circumstances of this case.  In Baldwin v. United States, 260 F. 2d 117 (4th [*94] Cir. 1958), cert. den. 360 U.S. 938 (1959), where the attorney had six hours to interview the witnesses for the prosecution, the court said (at p. 118) that "[w]hat may be a reasonable [***6]time in one case can be quite unreasonable in another, and the sufficiency of the time depends upon what is disclosed to counsel by his client." In other federal cases -- Turner v. State of Maryland, 318 F. 2d 852 (4th Cir. 1963), where counsel had less than a half hour to consult with his client; United States v. Cavell, 294 F. 2d 12 (3rd Cir. 1961), cert. den. 370 U.S. 945 (1962), where counsel was appointed the day of trial; and Avery v. Alabama, 308 U.S. 444 (1940), where the case was not reached for trial until the third day after assignment of counsel -- the respective times allowed to prepare for trial were held to be adequate.  The cases in this State, such as Pressley v. State, 220 Md. 558, 155 A. 2d 494 (1959), Harmon v. State, 227 Md. 602, 177 A. 2d 902 (1962) and Johnson v. State, 237 Md. 283, 206 A. 2d 138 (1965), in which the time allowed to prepare for trial varied from less than one day to more than forty days, the time elements were held to be reasonable under the particular facts and circumstances of each case.  In Pressley (where the appointment was made on day of trial) counsel was familiar with the case by reason of his representation[***7] of the codefendant.  In Harmon (where counsel was assigned more than forty days before trial) there was no showing of extraordinary circumstances necessitating a delay.  In Johnson (where counsel was notified of the trial date two weeks in advance) the State had offered to turn its file over to the defense when the case was assigned for trial.  But in Franklin v. Warden, 235 Md. 619, 201 A. 2d 16 (1964), the allowance of only ten minutes for court-appointed counsel to confer with his client was properly held to be unreasonable.  In the instant case, where counsel for the defendant was appointed on February 16, 1965, and the trial was held on February 24, 1965, and there was no request for a continuance or a showing that counsel needed more time for consultation or to prepare the case for trial, it is apparent that the time allowed was not inadequate.

   (iii)

   The evidence was legally sufficient to show that the defendant broke into the barber shop with the intent to commit a [*95] felony, that is, to steal goods of the value of $100 or more.  The contention is that there was no evidence that the defendant had any knowledge that there was money in the barber shop. The[***8] record is to the contrary.  The defendant having confessed that he intended to take everything he could get and a "lot of cash" amounting to $50 or $60, the admission not only refutes the claim that he did not know there was any cash in the shop, but in addition to this, the testimony of the wife of the owner corroborated the fact that besides $60 in cash there were a number of "barber tools" he could have gotten had he gained entrance to the shop. In Putnam v. State, 234 Md. 537, 200 A. 2d 59 (1964), we had occasion to say (at p. 546) that "the amount or value of what is intended to be stolen is often a matter of inference, and the evidence here would, we think, readily support the inference that the value was intended to be $100.00 or more." What was said there is directly in point here and it is not necessary to cite other cases which are apposite.

   Judgment affirmed. 

SECRETARY OF STATE, et al. v. BRYSON 
No. 412, September Term, 1966
 
Court of Appeals of Maryland
 
244 Md. 418; 224 A.2d 277; 1966 Md. LEXIS 449

 October  11, 1966, Decided  
 November  14, 1966, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed with costs; case remanded for further order or decree of the Circuit Court for Anne Arundel County.

CORE TERMS:  candidate, senatorial district, senator, election, voters, sub-district, legislative intent, constitutional requirement, one-vote, resident, one-man, elected, Laws Of Maryland, state senators, singular, plural, comprising, nominated, nominee, absurd result, populous, unjust, substantially equal, primary election, susceptible, voting, versa, malapportionment, apportionment, nomination

COUNSEL: Edward L. Blanton, Jr., Assistant Attorney General, for appellants.

   William B. Dulany, with whom were James Willard Davis and Dulany & Davis on the brief, for appellee.

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ., and[***5] Carter, J., Associate Judge of the Eighth Judicial Circuit, specially assigned.  Oppenheimer, J., delivered the opinion of the Court in which Horney and Barnes, JJ., concur.  Concurring opinion by Barnes, J., at p. 428, infra.

OPINIONBY: OPPENHEIMER

OPINION: [*421] [**279] After argument, we affirmed by per curiam order that part of the decree of the Circuit Court for Anne Arundel County which declared Section 42E (A-2) of Article 40 of the Code (Laws of Maryland, Spec. Sess., Oct. 1965) to be null and void, and ordered the case remanded for further order or decree of the Circuit Court.  The reasons for our order follow.

   The general scheme for reapportioning the Maryland Senate and House of Delegates contained in Chapter 2 of the Laws of Maryland, Special Session, 1965, which repealed and re-enacted Section 42 of Article 40 (the Act), was held constitutional in Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 217 A. 2d 273 (1966), cert. denied, 384 U.S. 950 (1966). The Act provides that the membership of the Senate shall consist of 43 Senators. The State is divided into 16 Senatorial Districts, of which District 2 is composed of Frederick and Carroll[***6] Counties and is to elect two Senators. Under the Act, both the primary and the general elections are at large within the District, without regard to the county residence of either the candidates or the voters. Section 42E (A-2) (the Section) reads as follows:

   "In any Senatorial District comprising more than one county and having two senators, not more than one resident of any one county may be nominated by one political party at the primary election, unless the [*422] population of that one county exceeds the population of all the remaining counties in the district in the aggregate.  Provided that any Senatorial candidate must be voted upon at large within the entire district at the primary election. The provisions of this subsection shall not apply to general elections for the office of State Senator."

   Under the Act, two State Senators from District 2 are to be elected in the general election on November 8, 1966.  In the primary elections held in that District on September 13, 1966, there were three candidates for the two offices in the Democratic Party, and four candidates in the Republican Party, of which the appellee, Mrs. Bryson, was one.  The names and county[***7] residences of the four Republican candidates, and their order in the number of votes received, are as follows:
 
First -- Joseph H. Hahn, Carroll County
Second -- Mrs. Mary B. Bryson, the appellee, Carroll County
Third -- Mehrl F. Wachter, Frederick County
Fourth -- James S. Ensor, Frederick County

   It has been stipulated that the 1960 Federal decennial census reports the population of Frederick County as 71,930 and that of Carroll County as 52,785. Therefore, if the Section is applicable and valid, only one Republican candidate resident in Carroll County could be nominated, and the appellee, although receiving the second highest number of votes in the Republican primary in the District, was not nominated because Mr. Hahn, who received the highest number of votes, was also a resident of Carroll County and Carroll County had a smaller population than Frederick County.

   On the advice of the Attorney General, the Secretary of State refused to certify the appellee as a Republican nominee for a District [**280] 2 Senatorship.  The appellee filed a bill for a declaratory decree and injunction against the Secretary of State and other appropriate State officials, asking [***8]that she be certified and for other relief.  The case was submitted on the bill, answer and a stipulation; Judge Evans declared the Section to [*423]be unconstitutional, null and void and enjoined the appellants from certifying anyone as a winner of the Republican primary, subject to further order or decree of the court.

   I

   It is suggested that the Section can be construed as not applicable to primary elections in District 2.  Under such a holding, the appellee would still prevail, but we would not reach the question of the constitutionality of the Section.

   We are mindful of the principle of statutory construction that if a legislative act is susceptible of two reasonable interpretations, one of which would not involve a decision as to the constitutionality of the act while the other would, the construction which avoids the determination of constitutionality is to be preferred.  Miller v. State, 174 Md. 362, 373, 198 Atl. 710 (1938) and authorities therein cited.  However, the clear language of the Section as well as what seems to us the manifest legislative intent as expressed in the Act as a whole constrain us to find that the Section is applicable to the situation before[***9] us.

   The Section begins by stating that not more than one resident of any one county may be nominated by one political party at the primary election "in any Senatorial District comprising more than one county and having two senators." Under Section 42E (2) District 2 comes directly within this definition. Districts 15 and 16 also come within it under 42E (15) and (16).  District 15 is composed of five counties, Cecil, Kent, Queen Anne's, Caroline and Talbot, and District 16 of four counties, Dorchester, Wicomico, Worcester and Somerset. Under the Act, of the 16 districts, only these three comprise more than one county and have two senators.

   The exception which follows the one-county one-resident provision states: "Unless the population of that one county exceeds the population of all the remaining counties in the district in the aggregate." It is suggested that as District 2 has only two counties, the phrase "all the remaining counties in the district" is meaningless as to it, and that therefore the entire Section should be construed as not intended to be applicable to the District.  The answer to this contention, in our opinion, is Code [*424] (1957), Article I, Section 8, [***10] which provides as one of the rules of interpretation of the Code that "the singular always includes the plural, and vice versa, except where such construction would be unreasonable." Under this provision, which enacts a general rule of statutory construction, the phrase is to be taken as meaning "unless the population of that one county exceeds the population of the remaining county or all the remaining counties in the district." We find nothing unreasonable in such a construction.  For a comparable situation and a similar holding, see Forest Oil Corp. v. Davis, 384 P. 2d 716 (Wyo. 1963).

   We believe that this construction of the Section is in harmony with, rather than inconsistent with the legislative intention as expressed in the Act as a whole.  The ascertainment of that intention is the object of judicial interpretation, State Dept. of Assessments v. Ellicott-Brandt, Inc., 237 Md. 328, 335, 206 A. 2d 131 (1965). In that ascertainment, all parts and sections of the Act must be read and considered together.  Height v. State, 225 Md. 251, 257, 170 A. 2d 212 (1961) and cases therein cited.  But we find nothing in the structure or provisions of the Act which tends to alter[***11] what, to us, are the clear and unequivocal provisions of the Section.

   The structure of the Act is succinctly set forth by Chief Judge Prescott, for the Court, in Hughes.  The provisions as to [**281] the House of Delegates are of general application, except that specific enactments are made as to Baltimore City.  Section 42E, dealing with the Senate, first sets forth the composition of the 16 districts by counties.  42E (A-1), immediately preceding the Section here involved, is of general application; it pertains to any senatorial district entitled to elect more than two senators. (A-2) follows the same structure; whereas (A-1) is made applicable to any district entitled to more than two senators, (A-2) refers to any district comprising more than one county and having two senators. We find no inference or implication in any part of the Act that any provision is more restricted than it expressly states. Specifically, we are unable to follow the suggestion that, because Districts 15 and 16 comprise more than two counties, although each has only two senators, those districts are the only ones intended to be included within the provisions of (A-2).  If the Legislature had so[***12] intended, it could [*425] easily have so provided.  It did not do so, but, on the contrary, expressly made the Section applicable to any district having two senators and comprising more than one county, thereby including within its terms District 2 as well as the two Eastern Shore districts.

   If language is plain and free of ambiguity and has definite and sensible meaning, it is conclusively presumed to be the meaning of the Legislature in enacting the statute.  Pineland Lumber Co. v. Miles, 228 Md. 584, 587-88, 180 A. 2d 870 (1962) and cases therein cited.  Courts should not attempt, under the guise of construction, to insert exceptions not made by the Legislature. Amalgamated Ins. Co. v. Helms, 239 Md. 529, 535-36, 212 A. 2d 311 (1965).

   We find the language of the Section plain and free of ambiguity, and that the plain, unambiguous language is in accord with the legislative intention as expressed in the Act as a whole.  Accordingly, we come to the constitutional question involved.

   II

   The appellees contend that, because this Court held the Act constitutional in Hughes, we have sustained the validity of every section thereof.  We find the argument to be without[***13] merit.  In Hughes, we first considered the constitutionality of Senate Bill 8 of the Acts of Assembly, Extraordinary Session 1965.  That bill we found invalid.  None of the parties contested the validity of the Act which, by the terms of Bill 8, was to become effective if Bill 8 was declared unconstitutional.  Despite the absence of any attack upon the validity of the Act, we deemed it appropriate to pass upon its constitutionality, in view of the mandate of the Supreme Court in Maryland Committee etc. v. Tawes, 377 U.S. 656 (1964). In holding the Act constitutional, we considered only its general underlying scheme of apportionment, and found that it constituted an honest and effective State effort to apportion both the Senate and the House of Representatives on a proportionate basis.  The validity of no particular section of the Act was before us, and we did not pass upon the constitutionality of the Section here involved, directly or by inference.

   The validity of the Section turns on the application of the [*426] one-man one-vote principle under the Equal Protection Clause.  We have discussed the impact of that principle, under the decisions of the Supreme Court, in [***14]Hughes, and in three subsequent cases, Montgomery County Council v. Garrott, 243 Md. 634, 222 A. 2d 164 (1966); Gray v. Board of Supervisors of Elections of Baltimore County, 243 Md. 657, 222 A. 2d 176 (1966); and McGinnis v. Board of Supervisors of Elections of Harford County, 244 Md. 222 A. 2d 391 (1966).  We find the holdings of these cases determinative of the issue here presented.

   [**282] The Equal Protection Clause, on which the one-man one-vote principle rests, extends to primary as well as to general elections. Gray v. Board, supra; McGinnis, supra; Gray v. Sanders, 372 U.S. 368 (1963). That principle is applicable to political subdivisions of a state.  Garrott, 243 Md. at 639, 222 A. 2d at 166 and authorities therein cited.

   There is no constitutional requirement that a voting district established by the Legislature for the nomination and election of state senators must be sub-divided as to the residence of the candidates or for any other purpose, on county or other lines.  Gray v. Board dealt with the validity of an act of the County Council of Baltimore County which provided for the election of councilmen on a county-wide basis, but required[***15] that each member must reside in a different councilmanic district.  Judge Hammond (now Chief Judge), for the Court, quoted with approval a statement in Reed v. Mann, 237 F. Supp. 22, 24 (N. D. Ga. 1964) that "whether the selection of commissioners is to be on a district or county-wide basis is a matter, in the beginning, of political or governmental policy and judgment * * * The selection of a system, so long as it is not proscribed by the federal Constitution, is, of course, not the business of the court." That statement is equally applicable to a multi-county district for the nomination and election of state senators. When the legislative body selects a system under which the representatives of the state's political subdivision are elected by the voters of the entire subdivision, with a requirement that each person elected shall be a resident of a different district within the subdivision, that system is constitutional if the districts are substantially equal in population.  Gray v. Board, supra. But the [*427] system is invalid if there is a malapportionment between the residence districts.  Garrott, supra and McGinnis, supra.

   The Legislature was under no[***16] constitutional requirement to provide for sub-districts -- here, the counties -- in the apportionment scheme, but once the sub-districts are given a place in the voting structure, the constitutional requirement applies to them as well as to the districts in which they play their part.  As was stated in Garrott, in a quotation from Davis v. Dusch, 361 F. 2d 495, 497 (4th Cir. 1966), it is the distribution of representatives rather than the method of distributing them that must satisfy the demands of the Equal Protection Clause.  The Supreme Court pointed out in Fortson v. Dorsey, 379 U.S. 433, 438 (1965), that a state senator elected under such a system is a representative of the entire district as well as of the sub-district in which he resides.  His tenure depends upon the electorate of the entire district. However, by reason of the residence requirement, he is also a representative of the sub-district.

   In Fortson and Reed, there was no allegation or evidence that the districts were unequal as to population.  Neither case, therefore, in its actual holding that the system involved was constitutional, is apposite.

   When, as in the Section here involved, there is[***17] a substantial malapportionment between the sub-districts (the counties), the one-man one-vote principle is violated both as between the voters in the counties and in the district as a whole.  The voters of the district, in the primary, are confined in their choice by the county residences of the candidates, even though the counties have manifestly unequal populations, instead of having the right to choose between candidates from substantially equal sub-districts. The provisions as to the primaries contained in the Section are only applicable, under the Act, to the three districts to which the Section pertains, and therefore the residential requirements of the Section, based on disproportionate county populations, result in [**283] substantial inequalities in voting rights between the voters in those three districts and the voters in the other thirteen districts.  The voters in the counties, insofar as the candidates represent them by reason of their residence, [*428] have their votes magnified or diluted by reason of the disparities in population between the counties in the district. 

   The invalidity of the Section, under the one-man one-vote principle, is clear.  Frederick[***18] and Carroll Counties have populations in the respective approximate proportions of 7 to 5.  Under the operation of the Section, Frederick County could have two nominees in the primary of one party while Carroll County would have none.  In District 15 or 16, which, respectively, are comprised of five and four counties, one county could have just short of a majority of the population of the entire district and another county a small proportion of the district's voters, yet the smallest and the largest counties would each have the right to one nominee.

   Because of the unconstitutionality of the Section, the primary in District 2 must be decided only on the basis of the district-wide vote, as in Garrott, without reference to the residence of the candidates.

CONCURBY: BARNES

CONCUR: Barnes, J., filed the following concurring opinion, in which Horney, J., concurred.

   I concur in the result reached by the majority of the Court, but in my opinion it was not necessary to reach the constitutional ground upon which the majority decided the case.

   It is well settled in both Maryland and in the federal courts that a constitutional issue will not be decided if the case can be decided on other grounds. [***19] Middleman v. Maryland-National Capital Park and Planning Commission, 232 Md. 285, 289, 192 A. 2d 782, 783 (1963).

   In my opinion, we should apply this principle to this case because a proper construction of Section 42E (A-2) of Article 40 of the Maryland Code, Laws of Md. Spec. Sess. Oct., 1965, indicates a legislative intent that the Section was not intended to apply to Senatorial District 2.  As I read this Section, it is clearly ambiguous.  The first clause of the section would seem to apply to Senatorial District 2 as that district has more than one county and has two senators. Several lines later in the section, however, it is provided that the restriction shall not apply if "the population of that one county exceeds the population [*429] of all the remaining counties in the District in the aggregate." The word "counties" is plural and obviously cannot apply to Senatorial District 2 as there is only one remaining county.  The Section in its entirety applies literally only to Senatorial Districts 15 (Cecil, Kent, Queen Anne's, Caroline and Talbot counties) and 16 (Dorchester, Wicomico, Worcester and Somerset counties) both of which have two senators and have[***20] more than two counties in them so that there are "remaining counties" to which the exception could apply.  Under these circumstances it should be said that the language of the section is at least ambiguous in regard to whether it was the legislative intent that the section should apply to Senatorial District 2.

   The purpose of all construction of statutes is to determine what the legislative intent was.  State Department of Assessments and Taxation v. Ellicott-Brandt, Inc., 237 Md. 328, 338, 206 A. 2d 131, 135 (1965); Casey Development Corp. v. Montgomery County, 212 Md. 138, 147, 129 A. 2d 63, 68 (1957). If the language is clear and unambiguous, the ordinary meaning of that language discloses the legislative intent. Board of Supervisors of Elections of Baltimore City v. Weiss, 217 Md. 133, 136, 141 A. 2d 734, 736 (1958). But, if -- as in this case, in my opinion -- the language is not clear and unambiguous, the Court should then apply the usual maxims of construction to ascertain what the legislative intent was.

   The first rule of statutory construction to be considered is that the general purpose of the legislation as a whole must be ascertained [**284] and if [***21]susceptible to more than one construction, the particular language being construed should be given a construction which will effectuate or carry out the purpose or object of the legislation.  Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 95 A. 2d 306 (1953). The general purpose of Senate Bill 5 as a whole was to seek to comply with the requirements of the arithmetical equal population principle enunciated by the Supreme Court of the United States in Reynolds v. Simms, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) and other cases following the new constitutional requirement laid upon the States as a result of the decision of a majority of the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), but at the same [*430] time to seek to preserve, as far as might be constitutionally permissible under the new constitutional doctrine, representation in the Senate of Maryland for counties having smaller populations than the more populous counties.  The legislative intent clearly was to insure that the more populous counties were not favored or given a legislative advantage greater than that required by the new constitutional[***22] doctrine.  If Section 42E (A-2) is construed to apply to Senatorial District 2, it accomplishes a result entirely contrary to the main purpose or object of the legislation and, in effect, guarantees to Frederick County, allegedly the more populous county in the two county Senatorial District, a nominee for senator regardless of how many votes are cast for that one candidate. In short, to construe the language as making the section applicable to Senatorial District 2, directly frustrates and defeats the purpose and overall object of the legislation.  It is a construction which should not and, in my opinion, need not be made.  Section 42E (A-2) should be construed by us as not applicable to Senatorial District 2.

   We have applied the above discussed principle of statutory construction when the letter of the statute seems to be contrary to the statutory purpose or spirit as derived from the statute as a whole, and have held that in that situation the spirit or intention of the law prevails over the letter of the statute.  See Baltimore Transit Employees' Credit Union v. Thorne, 214 Md. 200, 134 A. 2d 84 (1957). In the case at bar, the language of the very sections being construed[***23] is, to my mind, ambiguous so that the application of this principle of construction is easily applied.

   We are led by these two maxims of construction to the third applicable principle of construction which is that if one construction leads to a reasonable, just and intelligent result and the other construction would lead to an unjust, evil, offensive or absurd result, the courts will prefer the former construction to the latter construction, as it can hardly be assumed that the General Assembly intended an unjust, self-contradicting and absurd result from the legislation.  See Read Drug & Chemical Co. v. Claypoole, 165 Md. 250, 166 Atl. 742 (1933) and Kolb v. Burkhardt, 148 Md. 539, 129 Atl. 670 (1925). The result of [*431] construing Section 42E (A-2) as applicable to Senatorial District 2 does indeed produce an unjust, self-contradictory and absurd result. In my opinion, this result was never intended by the General Assembly and the language of the section should be construed as not applicable to Senatorial District 2.

   It is indicated in the majority opinion that the word "counties" includes the singular by virtue of the provisions of Code (1957), Article I, Section [***24]8 that "The singular always includes the plural and vice versa, except where such construction would be unreasonable." (Emphasis supplied).  It is clear to me that to construe the word "counties" as including the singular in Section 42E (A-2) is indeed unreasonable and the exception in Article I, Section 8 applies.

   If we construed the language of the section as not being applicable to Senatorial District 2, we would, of course, not reach the constitutional issues and would not find it necessary to declare the section unconstitutional. [**285]As I see it, this would be the better policy and would be entirely consistent with our prior decisions. 

WEST v. DIRECTOR OF PATUXENT INSTITUTION 
App. No. 9, September Term, 1966
 
Court of Appeals of Maryland
 
243 Md. 715; 222 A.2d 639; 1966 Md. LEXIS 593

 September  20, 1966, Decided

   PRIOR HISTORY: [***1]  
Application for leave to appeal from the Criminal Court of  Anne Arundel  County; Childs, J.

DISPOSITION: Application denied.

CORE TERMS:  convicted, confinement, answered, leave to appeal, speedy trial, delinquency

JUDGES: Hammond, C. J., and Horney, Marbury, Oppenheimer, Barnes and McWilliams, JJ.

OPINIONBY: PER CURIAM

OPINION: [*716] [**640] Applicant[***2] was convicted of breaking and entering, and larceny in November of 1963, and was sentenced to five years' confinement. While still an inmate of a state penal institution, he was tried by Judge Childs and a jury and found to be a defective delinquent.

   He raises six questions: (1) that his "statutory right" to a prompt hearing was violated; (2) that the delay deprived him of his right to a parole hearing; (3) that his defective-delinquent hearing should not have been heard because a habeas corpus petition was pending; (4) the same as (3) although couched in different terms; (5) that there was no evidence to show that he was a danger to society; and (6) that he has never been convicted of a sex crime or crime of violence.

   In applicant's first two contentions, he is obviously complaining about the lapse between his criminal conviction and his trial for defective delinquency. Those contentions are without merit.  Code (1957), Article 31B, § 6(c) provides that an examination [*717] be made at any time after conviction and sentence, provided the person convicted has not been released from confinement for the particular crime of which he was convicted; and we held in McCloskey [***3] v. Director, 230 Md. 635, that the constitutional provisions relative to a "speedy trial" did not apply to defective delinquency proceedings.
 
   Contentions (3) and (4) are answered contrary to applicant's position by Daugherty v. Director, 235 Md. 662. Contention (5) relates solely to the weight of the evidence and not to the sufficiency thereof.  Contentions of such a nature are not available on an application for leave to appeal. Alt v. Director, 240 Md. 262. Contention (6) is answered by Section 6 of Code (1957), Article 31B.  The crimes of which he was convicted brought him clearly within the requirements of said Section 6.

   Application denied. 

SECRETARY OF STATE v. McGUCKEN; ALBAUGH v. SECRETARY OFSTATE (Two Appeals in One Record) 
No. 353, September Term, 1966 (Adv.)
 
Court of Appeals of Maryland
 
244 Md. 70; 222 A.2d 693; 1966 Md. LEXIS 411

 August  22, 1966, Decided  
 September  21, 1966, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Order affirmed as to Albaugh and reversed as to McGucken, the mandate to issue forthwith.  The costs to be paid one-half each by Albaugh and McGucken.

CORE TERMS:  candidate, treasurer, campaign, appoint, election, certificate, candidacy, qualification, certify, gubernatorial candidate, reasonable time, eligibility, nomination, notified, statutory requirement, Corrupt Practices Act, federal constitution, constitutional provision, primary election, requisite, certification, citizenship, declaratory, promptly, resident, ballot, Federal Corrupt Practices Act, synonymous, wording, years next preceding

COUNSEL: Thomas P. Perkins, III, Assistant Attorney General, with whom were Thomas [***4]  B. Finan, Attorney General, Robert C. Murphy, Deputy Attorney General, and Edward L. Blanton, Jr., Assistant Attorney General, on the brief, for the Secretary of State.

   William A. Albaugh, pro se, for one of the appellants.

   Frank B. Walsh, Jr., for Patrick F. X. McGucken, an appellee.

JUDGES: Prescott, C. J., n1 and Hammond, Horney, Marbury, Barnes and McWilliams, JJ.  Horney, J., delivered the opinion of the Court.

n1 Prescott, C. J., participated in the hearing of this case and in a conference in regard to its decision, but had retired from the Court prior to the adoption of this opinion.

OPINIONBY: HORNEY
 
OPINION: [*72] [**694] When the Secretary of State refused to certify William A. Albaugh as a Republican candidate for Governor and Patrick F. X. McGucken as a Democratic candidate for Congress from the Sixth Congressional District of Maryland in the primary election to be held on September 13, 1966, because the respective candidates failed to appoint a campaign treasurer pursuant to § 213 (a) of Article 33 of the Code (1965 Cum. Supp.), the gubernatorial candidate filed a petition for summary judgment and an injunction in an effort to have his name placed[***5] on the ballot. Subsequently, the congressional candidate filed a petition for a writ of mandamus and obtained an order allowing him to intervene in the pending case filed by the gubernatorial candidate.

   Judge E. Mackall Childs, in an opinion and order filed on August 15, 1966, directed the Secretary of State to certify McGucken as a candidate for Congress, but declined to order a certification of Albaugh as a candidate for Governor. The Secretary of State entered an appeal to this Court forthwith in the McGucken case, and Albaugh did likewise [**695] a week later.  Arguments on appeal were heard on August 22, 1966, and on the same day we filed a per curiam order wherein we affirmed the order of the lower court with respect to William A. Albaugh and reversed the order with respect to Patrick F. X. McGucken.  We state below the reasons for our action.

   The Albaugh Case

   Candidate Albaugh filed his certificate of candidacy as a Republican [*73]candidate for Governor on November 2, 1965.  Early in July 1966, he was advised by the Secretary of State that he should promptly appoint a campaign treasurer. In reply he stated that he would not appoint a treasurer and informed [***6] the Secretary that he had "spent about $200 so far and expect[ed] to spend about $1000 before the primary election." When he was notified on August 1, 1966, that he must appoint a treasurer prior to the certification date of August 3, he filed suit.  Therein he alleged, among other things, that he had no intention of appointing a treasurer.

   In his certificate of candidacy, the candidate stated under oath that he had been a citizen of the State of Maryland for a period of eight years and a resident for ten years.  At the hearing before Judge Childs, he stated that he had been a citizen of the State for twelve years, but he offered no testimony with regard to either citizenship or residency.  And in an affidavit filed with his motion seeking to have the lower court reconsider its decision that he was not qualified to be a candidate for Governor, he stated that he had been a citizen for more than ten years and that he had continuously resided in the State for the last five years.

   On appeal, Albaugh contends that § 213 (a) of Article 33 is in conflict with § 5 of Article II of the Constitution of Maryland pertaining to the eligibility of a person to be Governor and that his certificate[***7] of candidacy shows that he was a qualified candidate for that office.

   Since the candidate cited Hellman v. Collier, 217 Md. 93, 141 A. 2d 908 (1958), to support the first contention, he appears to claim that the statute, requiring candidates for office to appoint a campaign treasurer, had the effect of imposing another qualification for the office of Governor in addition to those set forth in the Constitution.  We do not agree.  On the contrary, it is obvious that the statute, which is a part of the Corrupt Practices Act, was intended to do no more than enhance the effectiveness of those regulations requiring a full disclosure of the financial aspects of the campaign of a candidate for office.  Clearly the Act, including § 213 (a) thereof, has no bearing on the eligibility of a candidate for office.

   With respect to whether the certificate of candidacy disclosed [*74] that the candidate had the requisite qualifications for the office of Governor, Albaugh contends that the only reasonable interpretation of the certification -- 

   "That I am over 30 years of age and have been a citizen of the State of Maryland for the past eight years, and I have resided therein for more[***8] than ten years next preceding this election and that I am a qualified voter therein,"
 
is that the words "for the past eight years" indicate the extent of his "continuous residence" and that the words "for more than ten years" indicate the length of his "discontinuous total citizenship." The contention is wholly without merit.  There is no ambiguity (as the candidate claims) in the wording of the quoted part of the certificate of candidacy. Rather, the wording is a clear and unequivocal paraphrase of the constitutional provision. n1 Ordinarily the [**696] word "citizen" connotes an inhabitant or permanent resident, and while the words "citizen" and "resident" as used in some contexts may be synonymous, as they were held to be in Crosse v. Board of Supervisors of Elections, 243 Md. 555, 221 A. 2d 431 (1966) and in Dorsey v. Kyle, 30 Md. 512 (1869), it is apparent that the citizenship and residential requirements of the constitutional provision under consideration are not synonymous; nor are the requirements interchangeable.  In this instance, since the certificate of candidacy shows on its face that Albaugh had not been a citizen of Maryland for the requisite ten[***9] year period, he was clearly not qualified to be a gubernatorial candidate.

n1 Section 5 of Article II provides:

   "A person to be eligible to the office of Governor, must have attained the age of thirty years, and must have been for ten years a citizen of the State of Maryland, and for five years next preceding his election, a resident of the State, and, at the time of his election, a qualified voter therein."

   The McGucken Case

   Candidate McGucken filed his certificate of candidacy for the Democratic nomination as a representative in Congress from the Sixth Congressional District on June 3, 1966.  During July [*75] of 1966, the Secretary of State notified the candidate twice to promptly file the name of his campaign treasurer. On August 1, 1966, a telegram was sent to the candidate advising him that the Secretary was required to certify candidates on August 3 and that if he was not advised of the name and address of the candidate's treasurer at once, the name of the candidate would not be certified. [***10] On August 8, 1966, the candidate advised the Secretary that he had appointed Robert A. Seidel as his campaign treasurer. After consulting the Office of the Attorney General, the Secretary notified the candidate that he was unable to certify him, and the candidate filed suit.

   The only questions we need consider on appeal are whether the Secretary of State was required to certify a candidate who had failed to appoint a campaign treasurer pursuant to the requirements of § 213 (a) of Article 33 and whether that section violates the Constitution of the United States with regard to the qualifications of a candidate for Congress.

   Section 213 (a) of Article 33 provides:

   "Each candidate for nomination for, or election to, public office, upon filing as such candidate or within seven (7) days thereafter shall appoint one campaign treasurer and shall file the name and address of the campaign treasurer with the clerk of the circuit court of the county or Baltimore City in which the candidate resides or, if he is a candidate for State-wide office or representative in Congress, with the Secretary of State."

   The Secretary of State contends that a candidate must appoint a campaign treasurer[***11] within seven days or at least within a reasonable time thereafter in order to be certified as a candidate for public office.  Citing a nisi prius decision filed in the Circuit Court for Baltimore City on July 18, 1966, in the case of Kelmartin, et al. v. Curran, wherein it was held that, although the statutory requirement was mandatory, a candidate was only required to file the name of his treasurer within a reasonable time in order for his name to be placed on the ballot and that the ultimate cutoff date would be not later than the time when the name of the candidate should be placed on [*76] the ballot or set up in the election machines, the Secretary of State further contends that the cutoff date in this instance was forty days prior to the primary, or August 3, 1966, after which date he was not required by law to certify a candidate who had failed to appoint a campaign treasurer. McGucken, on the other hand, contends that the Secretary of State lacked authority to refuse to certify a candidate, even a belated one, who had complied with the provisions of the statute.

   With respect to the mandatory or declaratory character of the time requirement, we need not decide[***12] in this case whether a candidate must appoint a campaign treasurer within the time specified in the statute or within a reasonable time thereafter; nor what would be a reasonable time in a case such as this.  For, assuming that [**697] the statutory requirement as to the time is declaratory, we think it is obvious that under the facts of this case the failure of McGucken to appoint a treasurer before he did was unreasonable by any standard.  Cf. Andrews v. Secretary of State, 235 Md. 106, 200 A. 2d 650 (1964), with respect to congressional candidates filing their certificates of candidacy within the prescribed time limit.  Also see Chamberlain v. Supervisor of Elections, 212 Md. 342, 129 A. 2d 121 (1957).

   Regarding a candidate for Congress, we are also of the opinion that § 213 (a) does not violate the Federal Constitution in any way.  The contention that the section is unconstitutional because it constitutes an additional qualification for office beyond those set out in Article I, Section 2, Clause 2 of the Constitution of the United States is without merit. n2 As stated in the preceding Albaugh case, the Corrupt Practices Act has no bearing on the eligibility of[***13] a candidate for office.  Moreover, neither the State nor Federal Corrupt Practices Act begin to operate until after a candidate has filed for office.  For this reason the instant case is clearly distinguishable from both Shub v. Simpson, 196 Md. 177, 76 A. 2d 332 (1950) and Hellman v. Collier, supra, relied on by McGucken.  Moreover, Article I, Section 4, Clause 1 of the United States Constitution specifically provides that the "manner of holding elections" for Representatives [*77] (as well as Senators) shall be prescribed by the State Legislature subject to Congress enacting preemptive legislation with respect thereto.  And while Congress, pursuant to the "manner of holding elections" clause, has enacted a Federal Corrupt Practices Act, the term "election" therein is specifically defined to exclude primary elections. n3 Other than this the Federal Act expressly provides that it "shall not be construed to annul the laws of any State relating to the nomination or election of candidates, unless directly inconsistent with the provisions of [the law] or to exempt any candidate from complying with such State laws." n4 Clearly § 213 (a), requiring the appointment of a campaign[***14] treasurer, does not impose additional qualifications for congressional candidates. Cf. Barnes v. State ex rel. Pinkney, 236 Md. 564, 204 A. 2d 787 (1964). Nor does it violate any provision of the federal constitution or federal law enacted pursuant thereto.

n2 See also Article I, Section 5, Clause 1, which provides in part that the House of Representatives "shall be the Judge of the Elections, Returns and Qualifications of its own Members."

n3 See Title 2 U.S.C.A. § 241(a) (1964 Pocket Part).

n4 See Title 2 U.S.C.A. § 254 (1964 Pocket Part).

                       
CLARK et al. v. WOLMAN et al. 
No. 61, September Term, 1966 (Adv.)
 
Court of Appeals of Maryland
 
243 Md. 597; 221 A.2d 687; 1966 Md. LEXIS 558

 July  25, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  zoning, classification, subject property, ordinance, zoned, apartment, agricultural, actual knowledge, written notice, annexed, capricious, annexation, map, political subdivision, notification, notice, garden, single-family, regulations, territory, debatable, street, rezone, newly, acre, extract, constructive notice, arbitrary and capricious, comprehensive plan, shopping center

COUNSEL: Jerome F. Connell for the appellants.

   W. Harvey Beardmore, with whom were James C. Morton, Jr., and Rouse, Morton & Beardmore on the brief, for the appellees.

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

OPINIONBY: PRESCOTT

OPINION: [*598] [**687] Judge Evans, in the Circuit Court for Anne Arundel County, upheld a decision of the Mayor and Aldermen of the City of Annapolis (the City) classifying (or reclassifying) appellees' property, and the appellants, nearby property-owners, appealed.

   Three questions are presented: (1) do appellants have standing to contest the City's action; [***4] (2) did the failure of an official [*599] to comply, literally, with the ordinance provisions relative to notification invalidate the City's action; and (3) was the evidence produced at the hearing such as to render the City's decision to classify the property RBX not fairly debatable, and therefore arbitrary and capricious?

   The appellees own about 33 acres located at Carrollton and Clairbourne Roads in the City of Annapolis.  It originally was zoned "agricultural" under the County's zoning. Around June 1, 1964, the property was annexed [**688] to the City of Annapolis, which had, and has, no "agricultural" classification in its zoning ordinances. On July 20, 1964, appellees petitioned the City for an RBX classification (to be developed with garden apartments, with parking).  A public hearing was conducted by the City, at which evidence was produced by the petitioners and the protestants.  After the hearing, the City adopted a resolution granting the petitioners' request.  Appellants then filed a bill of complaint in the Circuit Court seeking to have said resolution set aside as being "unconstitutional, illegal and void." After due consideration, Judge Evans, as stated[***5] above, upheld the City's action and this appeal followed.  More facts will be given under the individual contentions presented.

   I

   The appellees argue that appellants have no standing to prosecute this appeal because none of them is a resident or taxpayer in the City, although they own property "contiguous to the property sought to be rezoned * * *." They contend that residents and taxpayers of one political subdivision have no right to challenge a zoning ordinance of another political subdivision. For the purposes of this appeal, we shall assume, without deciding, that appellants do have standing.

   II

   Appellants' brief states "Section 26-59 (c) of the Code * * * of Annapolis provides that notice shall be sent to the property owners within 175 feet" of the subject property. The ordinance was not offered in evidence and is not included in the record extract. Appellees urge that the ordinance is not properly before us.  In the recent case of Strickler v. Board of County Commissioners, 242 Md. 290, 298, we rather specifically cautioned [*600] members of the bar that, ordinarily, ordinances which are to be relied upon shall be offered in evidence.  However, in the view that[***6] we take of the case at bar, we shall extend, again, the warning, and assume, without deciding, that the ordinance is before us.

   Appellants' argument here is rather technical and specious in nature.  They claim that appellants Thomas D. Clark and Betty F. Clark, his wife, should have received written notice of the hearing by the City, and the failure to give them such written notice invalidated the City's action.  However, they not only received constructive notice (by newspaper publication), but they also obtained actual and written notice from a property owners association.  In addition, Mr. Clark saw the posted sign on the property sought to be classified, which also notified of the date of the hearing.  As a matter of fact, Mr. Clark attended the hearing, where, according to his own admission, he was accorded the right to be heard, but made no protest.  Mrs. Clark, although she had actual knowledge of the hearing stayed at home to look after the children.

   The law, in its majesty, is not designed to require futile action or idle gestures.  It is well settled that notification purposed to inform may be replaced by actual knowledge. 1 Merrill, Notice, 480.  And[***7] this is especially so when the knowledge has been acted upon without reliance upon the notification's absence or its defects.  Ibid.; Cassidy v. Board of Appeals, 218 Md. 418; 2 Merrill, Notice, 384, 444.
 
   In the instant case, the required notice to property owners within 175 feet was for the purpose of informing them of the hearing on the requested change. They had actual knowledge thereof and acted upon that knowledge.  We hold that under the circumstances, Mr. and Mrs. Clark lost nothing from the failure to receive written notice of the hearing, and this failure did not invalidate the City's action.

   [**689] III

   Judge Evans ably summarized the evidence, to which we make one or two slight additions, thus:

   "Jack L. Carr, Planning Director [who also recommended granting petitioners' request], read a letter [*601] dated 21 September 1964 from the City Planning and Zoning Commission to the Mayor and Aldermen wherein the following is stated:

   "After hearing the presentation by the petitioners at its regular meeting of September 3, the Planning Commission met in executive session on September 15 and voted unanimously to recommend to the Mayor and Aldermen that[***8] the request for reclassification be approved.  The following reasons were set forth in support of this recommendation:

   "Annapolis has, over the past two or three years, experienced changes in its growth characteristics such that a pattern of mixed single-family and multi-family residential areas has been found to be complementary.  This is particularly the case where multi-family 'garden apartments' have been introduced into relatively self-contained, undeveloped areas which do not lend themselves readily to extended single-family unit subdivision.  These growth characteristics are certainly evident in the fifth and sixth wards of the City where there are substantial tracts of otherwise by-passed land severed by a peripheral street circulation system and by community facilities and municipal services of more than sufficient capacity to absorb the additional service required of them.

   "Mr. Edmund W. Dreyfus, an architect and part owner of the tract being discussed, then presented a schematic plan of the proposed apartment group showing a density of 16 units per acre. When asked about the proposed price range, Mr. Dreyfus answered, 'Well, we feel that this project being located as [***9]it is, adjacent to a golf course and a very low density occupancy area, will command a higher rental than anything to my knowledge that now exists in the Annapolis area.' Mr. Dreyfus further stated that a total of 528 units are proposed.

   "Mr. Maurice Ogle, a professional real estate appraiser and consultant, was acknowledged to be an expert by the Mayor and Aldermen.  Mr. Ogle stated [*602]that, in his opinion, there was a mistake when the property was originally zoned for agricultural use.  After much amplification, Mr. Ogle further stated that even had there been no mistake in the original zoning, there would be ample justification to rezone the property as requested on the basis of change."

   In support of his opinion that a mistake had been made in the original zoning, and sufficient change had occurred to justify the requested classification, Mr. Ogle, inter alia, stated:

   "This was 1952.  The zonings that have been required since 1952 to actually meet the needs of the district, are these: (pointing to map).  All of these commercial zonings, industrial zonings, these vast areas of residential zonings. You will note within the one mile range there have been three[***10] additional commercial zonings, one of which is a light commercial zoning, that is only about five or six hundred foot distance from the subject property. So I think that we can clearly see that in 1952, no one had a crystal ball that would enable them to anticipate all of the need of Arundel County and particularly of this district in its proximity to Annapolis.  Now this second map, (looking at map) or third rather, is your own city map, the yellow area there, can you all see this?  (indicates the subject property).  These areas which are colored in red are changes within the area.  All of this area, now have been zoned within that area.  All of this area, now have been zoned RB, RBX, in here is the community shopping center zoning, RBX zoning, Commercial zoning, Community Shopping Center zonings, and down here, [**690] are three uses in the county, in the second district, two uses, excuse me, which are Carrs and Sparrows Beach, which for some reason, mistakenly in my opinion, in 1952 were overlooked in zoning. These are nonconforming uses which would require today a heavy commercial zoning for this particular use.  So these do abut the subject property. * * *.  So I think[***11] it is quite evident that there [*603]was an oversight and a mistake in the original zonings, some, forty some acres have been zoned since that time for apartment use, there have been thirty-six (36) acres zoned, excuse me, forty-two acres zoned for community shopping center, all within one mile of the subject property."

   We again turn to Judge Evans' summarization:

   "Mr. Ridgely Gaither, President of Annapolis Roads Property Owners' Association, then questioned the adequacy of the roads serving the subject property. Mr. Carr replied that the matter of street connections is a necessary prerequisite for planning development approval, but that it cannot be made a part of the decision to rezone. He stated, however, that it would be made a part of the subdivision requirements at the time of development since all such developments must be on a paved city street.

   "Mr. Milton Cooper, a property owner, then echoed the objection that the roads could not handle the resultant new traffic adequately.  Next Mr. A. J. Curbo, Chairman of the Zoning Committee for the Bay Ridge Civic Association, made a plea for proper over-all planning.  Mr. Theodore Davis then stated that Carrollton[***12] Road would be overcrowded if the apartments were constructed.

   "Mr. George Shapiro then made a protest concerning the improper placement of the notice-of-hearing sign.  Mr. Carr then interjected and said that the sign was properly placed within the City of Annapolis as required by the applicable city ordinance. Mr. Shapiro then made an objection that the number of children attending Tyler Heights School would be greatly increased and that, as a result, the school would become grossly overcrowded.  In reply, Mr. Ogle presented statistics showing that, in all probability, single-family dwellings would put a greater burden on schools than would the proposed apartments.

    "The next four protestants, Mrs. Ruth Cooper, [*604] Joseph Percel, Emory Rice and Pete Nelis merely echoed previous objections.  The meeting was adjourned without further discussion."

   After reciting the above facts, Judge Evans held that the action taken by the City in approving the requested classification was not arbitrary or capricious, without specifically stating the test which he applied in reaching his conclusion, for instance, mistake, change, or an original classification of newly acquired territory[***13] as an addition to the City's comprehensive plan (with the last category containing the dual aspects of whether there was a mistake therein or an arbitrary and capricious classification).  And neither the record extract or the briefs reveal the grounds upon which the City based its action in passing the resolution mentioned above.

   It will be noted that the case has some unusual aspects.  The subject property was annexed when it had an "agricultural" classification by the county. However, the City has no such classification. We are not informed whether the annexation statute attempted to deal with the problem now presented.  It developed at the hearing that in this and prior cases of annexation the annexed property was considered by the City as remaining in the category of its prior classification (seemingly with the county regulations prevailing) until changed by it.  Cf. Code (1957), Art. 23A, § 19 (p), and City of Annapolis v. Kramer, 235 Md. 231.

   However for the purposes of this appeal, we find it unnecessary to determine [**691] the precise test that should have been applied by the City in deciding to grant the petitioners' request, or by Judge Evans in measuring the [***14]evidence to determine its sufficiency to support the City's resolution.  With no directions in the annexation act or the zoning regulations, we think it should have been one of the four named above -- original mistake, change in conditions, mistake or arbitrary classification of newly acquired territory -- or a combination of two or more of them.  The petitioners definitely proceeded upon the theory of original mistake and change in conditions.  We have applied all four of the tests to the evidence, and it is sufficient, we think, to make any one and all of the four possible issues fairly debatable; [*605] hence, we cannot say the resolution was arbitrary or capricious. In this situation, as the courts do not zone or rezone, we must affirm.

   Decree affirmed, with costs. 

ALVEY et al. v. HEDIN et al. 
No. 554, September Term, 1965
 
Court of Appeals of Maryland
 
243 Md. 334; 221 A.2d 62; 1966 Md. LEXIS 534

 July  1, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  marina, rezoning, zoning, agricultural, classification, acre, protestant, residential, reclassification, subject property, boat, feet, water, sufficient to justify, commercialization, zoned, commercial development, commercial use, neighborhood, residents, spot, waterfront, cottage, shield, noise, zoning commission, defendant-appellants, chancellor, debatable question, undebatable

COUNSEL: C. Edward Hartman, II, with whom were Hartman & Crain on[***5] the brief, for the appellants.

   Malcolm B. Smith, with whom were Smith & Wohlgemuth on the brief, for the appellees.

JUDGES: Hammond, Marbury, Oppenheimer and Barnes, JJ., and Evans, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*336] [**63] Pauline S. Alvey is the owner of some thirty-nine acres of land located in the First Election District of Anne Arundel County. This property is bounded on the west and south by Mayo Road (State Route 214), on the north by Mayo Elementary School and on the east by Ramsey Bay.  In 1952, when the original Comprehensive Zoning Ordinance for Anne Arundel County was adopted, this entire acreage was zoned agricultural except for 9.8 acres bordering (for a distance of some 1100 feet) on Mayo Road, which was zoned heavy commercial.  With the dream of building a boat marina, not permitted by Anne Arundel County zoning ordinances under an agricultural classification, Mrs. Alvey and her since deceased husband, applied for rezoning of 4.75 acres of their property fronting on Ramsey Bay to Heavy Commercial.  This rezoning was granted by a Resolution[***6] adopted on January 29, 1960, by the Anne Arundel County Commissioners, and, although Mr. and Mrs. [*337] Alvey were notified that a suit was being prepared to test the validity of this action, they proceeded to construct a large and expensive pier and marina facilities on the 4.75 acres, and commenced operation thereof.  The promised suit was filed in February of 1960 in the Circuit Court for Anne Arundel County, a hearing was held before Judge Duckett, and the rezoning was declared void.  Mrs. Alvey then took an appeal to this Court and in April of 1963 we affirmed the lower court in Alvey v. Michaels, 231 Md. 22, 188 A. 2d 293, on the grounds that: (1) the applicants had shown no mistake in the original agricultural classification of these 4.75 acres; (2) nor had they shown changes in the characteristics of the neighborhood sufficient to justify the rezoning to heavy commercial, and (3) the rezoning for this marina was not the type of spot zoning which is legally permissible under certain circumstances.  Despite this decision Mrs. Alvey and her son, Carmel Steele Alvey, (hereinafter referred to as the Alveys) continued to operate the marina until March 1964, when, after[***7] an injunction was issued, the operation was discontinued.

   Only seven months after we handed down our first decision concerning this property, Mrs. Alvey, in the hope of legitimatizing the existing marina, again applied to the County Commissioners for rezoning of the same 4.75 acres, but this time, instead of asking for a classification for heavy commercial she asked for light commercial.  (The County Zoning Ordinances permit a commercial marina in a Light Commercial zone, but exclude boat repairs, marine railways, warehouses and like uses which are permitted in a Heavy Commercial zone.) A joint hearing on this matter was held before the Planning and Zoning Commission of Anne Arundel County and the County Commissioners on March 12, 1964, and the Zoning Commission recommended that the requested rezoning be granted.  This recommendation was followed when, on March 24, 1964, the County Commissioners passed a resolution rezoning the 4.75 acres to Light Commercial.  Mr. John D. Hedin and Mr. Austin Rohrbaugh, both of whom were residents of the Ramsey Bay area, then brought a bill in equity in the Circuit Court for Anne Arundel County to declare the latest zoning of the 4.75 acres to be[***8] void, and to restrain the Alveys from using the said property [*338] for commercial purposes.  A hearing was held before Judge Sachse at which testimony was taken as to the plaintiffs' standing to sue and the matter was otherwise submitted to the chancellor on the record which was made at the joint hearing.  From a decree granting the relief prayed, this appeal was taken by the Alveys.  Four questions are raised: (1) Do either Messrs. Hedin or Rohrbaugh have standing to sue; (2) has the question of mistake in original zoning of this 4.75 acres already been finally litigated (we found no mistake in the agricultural classification) by our decision in Alvey v. Michaels, supra; (3) was there sufficient evidence of change in the character of the neighborhood to justify the rezoning to Light Commercial; and (4) did the plaintiff-appellants [**64] show a need in this area sufficient to justify spot zoning for this 4.75 acres.

   From the facts as set forth below it is apparent that both of the plaintiff-appellees had standing to bring this suit.  Plaintiff John Hedin testified at the hearing before Judge Sachse that the marina was visible from his property and lies across Ramsey[***9] Bay at a distance of some 250 feet by water and approximately 280 to 300 feet by land.  Mr. Hedin testified that he felt that the marina had a depressing effect upon the value of his land since Ramsey Bay has very little tidal flow and in the three years that the Alveys have operated their marina he had noticed beer cans, toilet paper, human excrement and other items of refuse floating on the water near his property, most of which he asserted emanated from the approximately one hundred boats which regularly docked at the Alvey marina. Moreover, he testified that in order for the boats to get back to the marina they had to maneuver around a sandbar which jutted out from the Alvey tract and that as a consequence, at night, lights from those boats would shine directly on his home, which he found to be annoying.  As to the other plaintiff, Austin Rohrbaugh, whose land adjoins Mr. Hedin's, both plaintiffs' and defendants' attorneys stipulated that Mr. Rohrbaugh's testimony would be that he lived only 200 feet from the subject property; that he could see the marina from his land; that the marina was annoying to him because of the noise made by its users and because spotlights from the boats[***10] shone directly into his house as they maneuvered around the sandbar; that in [*339] his opinion his property would be depreciated by commercialization of the Alvey tract because of the attendant noise, unsightliness, additional water traffic, and additional water pollution which would result therefrom.  The accuracy of Mr. Rohrbaugh's testimony was not stipulated to but nothing in the record before us contradicted any of it.

   As stated in DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487:

   "In zoning cases, the rule in this State is that for a person to be aggrieved by an adverse decision of the administrative agency, and thus entitled to appeal to the courts, the decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally." (Citing cases)
 
Both of the protestants in this case clearly are within the above defined aggrieved class because their closeness to the marina property, their special problems with lights and noise as well as with the refuse emanating from the operation of[***11] the marina, make the effect of this commercialization on them different from its effect upon members of the public generally.

   In contending that the two protestants did not have standing, the appellants assert that Ramsey Bay serves as a buffer or shield from the damages of commercialization analogous to the function served by the Baltimore Beltway to the subject property in DuBay v. Crane, supra, at 210. The analogy is patently a fallacious one since, in the instant case, if reclassification were granted, Ramsey Bay rather than being a shield, would serve as the means by which the boats which plied its waters and used the Alvey marina would be enabled to bring to the protestants' very doorsteps the injuries of which they complained.

   The defendant-appellants secondly contend that there was a mistake in classifying this 4.75 acre tract as agricultural back in 1952 when the Comprehensive Zoning Ordinance was adopted.  The same contention was made in Alvey v. Michaels, [*340] supra, wherein Pauline Alvey was the appellant and one of the present protestants, Austin Rohrbaugh, was one of the appellees.  At [**65] page 26 of 231 Md. the question was disposed of as follows: [***12]
 
"He [the chancellor] found there was no evidence of original error in the zoning ordinance of 1952.  The only reference to an original error was made by Mr. Alvey.  He merely stated the property was erroneously zoned agricultural. In view of the many uses, including residential uses, permitted under the Anne Arundel County 'agricultural' zoning classification, his testimony that before 1952 the property could no longer be profitably farmed, by no means establishes the inappropriateness of the original zoning. That was the only reason assigned for his statement.  No other evidence was presented on this point.  Under these circumstances we hold that the chancellor was correct in finding that no debatable question was raised on this particular point."
 
The above holding in the first case is an absolute bar to the present attempt by the Alveys to again raise the question of mistake in original zoning of the same tract of land, because any of the testimony relied upon in the instant case as to this question could and should have been presented in the first case, and the applicability of the doctrine of res judicata as to this mistake question is not affected by the fact[***13] that they are here attempting to get a different type of commercial classification than in the first case.  Whittle v. Bd. of Zoning Appeals, 211 Md. 36, 49, 122 A. 2d 462; Sterling v. Local 438, etc., 207 Md. 132, 113 A. 2d 389, cert. den., 350 U.S. 875, 76 S. Ct. 119, rehearing denied 350 U.S. 898, 76 S. Ct. 151, motions for leave to file petitions for rehearing denied, 350 U.S. 943, 76 S. Ct. 298. Cf. Chatham Corp. v. Beltram, 243 Md. 138, 220 A. 2d 598; and Woodlawn Ass'n v. Board, 241 Md. 187, 216 A. 2d 149. 

   Defendant-appellants thirdly assert that there was presented a debatable question as to whether the subject property had changed since 1952 sufficient to allow a reclassification from [*341] agricultural to light commercial.  We do not agree.  About the only change in the area which becomes evident from the testimony adduced at the joint hearing was that some 25 acres, which surround (except for the Bay front) the subject 4.75 acres, of Mrs. Alvey's property were reclassified from agricultural to cottage residential. This reclassification was granted, without opposition, after the hearing in the first Alvey case in August 1961, but the Alveys have thus[***14] far not taken advantage of the reclassification by further development.  Even if the cottage residential classification had been utilized by them, this would not amount to a change in the character of the neighborhood sufficient to justify this requested change from an agricultural to a light commercial classification inasmuch as the reclassification of the surrounding property was merely from one residential use category to another (cottage residential allows building on smaller lots than does an agricultural classification) and not from a residential to a commercial use. Other testimony revealed that there had been commercial development since 1952 of some of the Alvey Mayo Road property which lies some 1100 to 1300 feet in back of the waterfront property in question, and that two public marinas in the general area had been enlarged since 1952, but in all of these instances the property was originally zoned commercial under the Comprehensive Zoning Ordinance.  None of these changes amounted to a substantial change in the area sufficient to justify a rezoning from agricultural to light commercial since they simply revealed the initial use of commercial property, or in the cases of [***15]the two marinas the moderate enlargement of an existing use anticipated and permitted under the original classification. There is a complete absence of testimony that there has been any commercial development in the [**66]immediate vicinity of the subject property which was not permitted under the original zoning and from the testimony produced at the joint hearing it is undebatable that a commercial classification of the subject property would be entirely out of character with the surrounding waterfront residential uses.

   Presumably in an attempt to fit the rezoning under the category of legally permissible spot zoning, both the Planning and Zoning Commission and the Board of County Commissioners [*342] stressed, in their recommendation and their resolution respectively, the need for more mooring and boating facilities in "this and other areas of the County" as a change which had occurred in the area which would justify the rezoning of this property to light commercial use. While there was some testimony that there had been substantial growth in the residential waterfront development of the Ramsey Bay area since 1952, we can find no evidence from which it could be found[***16] that there was a present need for additional mooring and boating facilities by the residents of the Ramsey Bay area.  From all that appears in the record such a need is satisfied by the two public marinas which already operate in the general vicinity of Ramsey Bay and by the privately owned mooring and docking facilities of the residents. The defendant-appellants did make out a strong case for the proposition that there was a need by the public generally for more marina facilities due to the increased popularity of boating activities in Anne Arundel County and in other parts of the State.  However, the need which must exist to justify spot zoning must be a need for a service or facility by the residents of the area in which the commercialization is to be allowed and not the more general need of the public.  Temmink v. Bd. of Zoning Appeals, 205 Md. 489, 495, 109 A. 2d 85; Alvey v. Michaels, supra, at page 27.

   Decree affirmed, with costs. 

MATHIS v. WARDEN OF MARYLAND HOUSE OF CORRECTION 
App. No. 127, September Term, 1965
 
Court of Appeals of Maryland
 
243 Md. 682; 221 A.2d 81; 1966 Md. LEXIS 571

 June  30, 1966, Decided

   PRIOR HISTORY: [***1]  
Application for leave to appeal from the Circuit Court for  Anne Arundel  County; Macgill, C. J.

DISPOSITION: Application denied.

CORE TERMS:  extension of time, obscene literature, trunk, court-appointed, Post Conviction Procedure Act, evidence seized, leave to appeal, admissible, riding, transmitting, perverted, earning, sex

JUDGES: The entire Court.

OPINIONBY: PER CURIAM

OPINION: [*683] [**82] Dwight Sands Don Mathis seeks leave to appeal from the denial of his application for post conviction relief by memorandum and order of November 24, 1965, entered by Chief Judge Macgill in the Circuit Court for Anne Arundel County.  Don Mathis was convicted of[***2] perverted sex practice under two indictments and possession of obscene literature under a third in the Circuit Court for Anne Arundel County, Judge Evans presiding, on November 10, 1964.  Subsequently, Don Mathis was sentenced to five years on each of the perverted sex practice convictions and one year on the possession of obscene literature conviction, all the sentences to run concurrently.

   In his application for post conviction relief, Don Mathis contended that the Court of Appeals' denial of his petition for extension of time for transmitting the record in his appeal deprived him of due process and that his conviction for possession of obscene literature followed an unlawful search and seizure. n1

n1 In his original petition and in his application for leave to appeal Don Mathis, by his court-appointed attorney, contends that he was denied due process by the Court of Appeals in that his appeal was dismissed.  This Court did not dismiss the appeal.  Like the court below, we treat the contention as a challenge to this Court's refusal to extend the time for transmitting the record.

[***3]

   After a hearing in which testimony was taken and at which Don Mathis was represented by court-appointed counsel, Chief Judge Macgill found that Don Mathis voluntarily consented to the police officer's search of the trunk of the car in which Don Mathis was riding when arrested in that Don Mathis requested the police officer to remove some valuables from his trunk. If consent to the search is voluntary, the evidence seized is admissible. Hopkins and Terry v. State, 239 Md. 517, 211 A. 2d 831 (1965) and cases therein cited.

   [*684] Don Mathis filed a notice of appeal from his convictions.  On January 6, 1965, the Circuit Court gave him a ninety day extension, and on March 1, this Court granted an extension of time to transmit the record until May 15, 1965.  Then, on May 25, this Court denied Don Mathis a further extension of time. Pursuant to Maryland Rule 813, the Circuit Court struck out his appeal, after a hearing, on May 28, 1965.  Don Mathis sought extension of time here on the ground that he was unable to pay the cost of the transcript, yet he had not filed a petition to proceed in forma pauperis, he had self-employed counsel at his trial, and he was free on $3000[***4] bond.  In his petition for further extension of time, Don Mathis stated he was earning $100 to $150 a week and his wife was earning over a $100 a week.  We find no error in this Court's refusal to grant a third extension of time to transmit the record.

   Application denied. 

WESBECKER v. WARDEN OF MARYLAND HOUSE OF CORRECTION 
App. No. 128, September Term, 1965.
 
Court of Appeals of Maryland
 
243 Md. 684; 220 A.2d 321; 1966 Md. LEXIS 572

 June  30, 1966, Decided

   PRIOR HISTORY: [*1]

   Application for leave to appeal from the Circuit Court for  Anne Arundel  County (CHILDS, J.).

DISPOSITION: Application denied.

JUDGES: Before the entire Court.

OPINION:  PER CURIAM.

   Application for leave to appeal from the denial of post conviction relief is denied on the findings and for the reasons set forth in the memorandum of Judge Childs in the court below. 

THE HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC.et al. v. BOARD OF PUBLIC WORKS OF MARYLAND et al. 
No. 356, September Term, 1965
 
Court of Appeals of Maryland
 
242 Md. 645; 220 A.2d 51; 1966 Md. LEXIS 674

 June  2, 1966, Decided

   SUBSEQUENT HISTORY: [***1]

   Motions for Rehearing Filed June 22, 1966, Denied June 28, 1966; Motion for Rehearing Filed July 5, 1966, Denied July 25, 1966.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed in part, and reversed in part; and cause remanded for the entry of a decree in accordance with this opinion.  The costs to be paid 1/4 by the appellants, 1/4 by Western Maryland College, 1/4 by St. Joseph College, and 1/4 by Notre Dame College.

CORE TERMS:  religious, religion, church, first amendment, sectarian, secular, educational, denomination, expenditure, faculty, gift, public funds, affiliation, establishment of religion, religious order, establishment clause, student body, observance, incidental, parochial, coercive, sect, promotion, appropriation, teach, expended, ministry, worship, impermissible, learning

COUNSEL: Leo Pfeffer and Melvin J. Sykes, with whom was Walter R. Tabler on the brief, for the appellants.

   Thomas B. Finan, Attorney General, with whom were Robert C. Murphy, Deputy Attorney General, and Edward L. Blanton, Assistant Attorney General, on the brief, for the Board of Public Works of Maryland, one of the appellees.

   William L. Marbury, with whom was Lewis A. Noonberg on the brief, for St. Joseph College, Notre Dame College and Hood College, part of the appellees.

   Ridgely P. Melvin, Jr., for Western Maryland College, the other appellee.

   Francis X. Gallagher, George T. Tyler and J. Nicholas Shriver, Jr., on the brief for St. Joseph College, an appellee.

    Alfred L. Scanlan and George W. Constable on the brief for Notre Dame College, an appellee.

   Parsons Newman on the brief for Hood College, an appellee.

   Arthur E. Sutherland of counsel on the brief for the appellees generally.

   Brief of amicus curiae filed by Franklin C. Salisbury for the Protestants [***12]and Other Americans United for Separation of Church and State.

JUDGES: Prescott, C. J., and Hammond, Horney, Marbury and Oppenheimer, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, and Powers, J., Associate Judge of the Seventh Judicial Circuit, both specially assigned. Prescott, C. J., delivered the majority opinion of the Court.  Hammond, Horney and Marbury, JJ., dissent in part.  Dissenting opinion by Hammond, J., at page 691, infra.

OPINIONBY: PRESCOTT

OPINION: [*651] [**53] After dismissal of their bill of complaint, which challenged the validity, as violating the Federal and Maryland Constitutions, of four separate statutes, providing outright, matching grants, totaling $2,500,000, for the construction of buildings, to four private colleges, the plaintiffs appealed.  The four colleges and appropriate public officials were named as defendants; injunctive relief and a declaration to the effect that the grants were unlawful were prayed.

   The questions involved have been briefed and argued with signal care, skill, and ability by counsel for the respective parties.

   The appellees contend that appellants lack standing to invoke the jurisdiction of the courts. [***13] The principal issue, of course, is whether any one (or more) of the statutes violates the First and Fourteenth Amendments to the Federal Constitution, or Articles XV, XXIII, or XXXVI of our [**54]Declaration of Rights.  Appellants concede that some degree of relationship to church or religion may exist in an educational institution without rendering it "sectarian"; they contend, however, that when such a relationship is "substantial," it renders the institution sectarian and grants of public funds may not constitutionally be made to it.  Four of the appellees state that the colleges involved "are admittedly related in varying degrees to particular religious denominations," but urge that there is no constitutional proscription against a state granting "public funds to a sectarian college, nor is there anything in either constitution which forbids grants for educational purposes to colleges [*652] which bear a substantial relation to a church." We think the orderly and efficacious sequence in which to consider these issues is first to determine the question of standing, for if the appellees prevail thereon, it will control the entire appeal; next to decide the test to be applied[***14] to the statutes in determining whether they are constitutionally permissible or impermissible under the First Amendment; then to apply that test to the facts in the record pertaining to the individual colleges; and finally to consider whether the grants violate the named sections of the Maryland Constitution.

   THE STANDING OF THE PARTIES PLAINTIFF.
 
   The Chancellor held that the Horace Mann League of the United States of America, Inc., lacked standing.  We agree.  It is a non-profit educational and charitable Maryland corporation organized, as claimed by it, for the purpose of fostering and strengthening the American public school system.

   It argues that the Chancellor "took an unduly restrictive view of the status in modern jurisprudence of organizations formed to protect the public interest * * *," asks us to compare several Federal cases in which the N.A.A.C.P. participated as a party, and to consider several law-review articles relative thereto.  We have considered the same, but find nothing therein which would warrant our departing from the former rulings of this Court.  The Chancellor was correct in his ruling.  Citizens Committee v. County Commissioners, 233 Md. 398; [***15] Bar Association v. District Title Co., 224 Md. 474.

   The appellees challenge the standing of the individual appellants on two grounds: (a) "the miniscule dimensions of the plaintiffs' financial stake in the challenged programs * * *"; and (b) that if Maryland were required to educate the Maryland students who now attend the appellee colleges, the cost would be much greater to the State than the grants under consideration.

   (a)

   Most of the appellees, rightly we think, concede that the recently decided case of Murray, Etc., v. Comptroller, 241 Md. 383, fatally undermines their argument here.  Having so recently considered and enunciated our conclusions on the question, it [*653] would be a useless gesture to elaborate further thereon.  We hold that Murray is controlling on this point, and the individual appellants do not lack standing for the reasons there assigned.

   (b)

   There are a number of answers to this contention.  We shall name but two. All of the parties agree that the issues here presented are of great public interest and concern.  When this is the case, the necessary interest or injury to sustain standing to institute a taxpayer's suit is "broadly comprehensive" [***16]and may be "slight." In Baltimore Retail Liquor Stores Ass'n v. Board of License Comm'rs, 171 Md. 426, this Court stated its opinion on the merits, even though the plaintiffs lacked technical standing.  For other cases wherein there were similar holdings or the principle recognized [**55] see Citizens Committee v. County Comm'rs, etc., supra; Hammond v. Lancaster, 194 Md. 462; Dutton v. Tawes, 225 Md. 484. We agree with the parties that the issues are of general and urgent public interest, and they are of sufficient importance and magnitude to invoke the above principle, if the factual situation rendered it necessary to do so.

   However, we do not find it necessary to base our conclusion that the individual appellants have standing on the above theory, alone.  In Berghorn v. Reorganized School District No. 8, 260 S. W. 2d 573 (Mo.), taxpayers' standing to sue to prevent expenditures of state funds for religious schools was attacked on the ground that the challenged expenditure would cost plaintiffs less than the taxes they would be required to pay if the students at such religious schools were educated in the public schools.  In sustaining plaintiffs' standing and[***17] granting relief, the court stated:
 
   "In determining a taxpayer's pecuniary injury resulting from the unlawful expenditure of public funds, we may not weigh lawful expenditures against unlawful expenditures, because no legal injury results from the lawful expenditures of public funds."
 
We agree with the Missouri Court.  Also compare this Court's holding in McKeldin v. Steedman, 203 Md. 89, wherein the same principle was applied, although no religious issue was [*654] there involved, and Abington School Dist. v. Schempp, 374 U.S. 203, n. 9.

   Further on the question of standing, appellees argue that if the suit had been instituted in a Federal court, appellants would have lacked standing to attack the grants as being impermissible under the United States Constitution; hence the Maryland courts should not permit them to challenge state statutes as being violative of the Federal Constitution in the state courts.  Again, the Murray case, supra, supplies the quick answer, wherein Judge Oppenheimer, for the Court, said:
 
"When the validity of a state statute is attacked in a state court, it is the duty of that court to determine all the constitutional[***18] issues involved, federal as well as state.  If the statute is held valid under the state law, but invalid under the federal Constitution, the state court must give the complainants the relief they pray.  * * *.  If they have standing under the law of Maryland to bring the suit, it is irrelevant that the result might have been different had the action been instituted in a federal court." 241 Md. p. 392.

   We hold that the Chancellor was correct in ruling that the individual appellants had standing.

   THE TEST TO BE APPLIED.

   It should be noted at the outset that nothing in this opinion is intended as a criticism of, or a boost to, any religion, sect, or schism, or lack of religion. Our task is to decide a constitutional issue.  We proceed to do just that, and that alone.

   For our present purposes, it will be unnecessary to include an extended historical background of the First Amendment n1 (which, of course, is likewise pertinent, in large measure, to [*655] Article XXXVI of our [**56] Declaration of Rights).  However, it seems appropriate to set forth a sketchy outline of some of the facts which the Framers of our Federal Constitution and the First Amendment thereto[***19] had in mind when the Amendment was added. In about 112 A.D., Pliny wrote to the Roman Emperor Trajan to inquire whether he was dealing out exact justice to Christians who had done nothing in violation of the law.  He stated that he asked thrice if the person charged (man, woman, or child) were a Christian.  If the person answered in the affirmative 3 times, he or she was executed.  Trajan answered, "My Pliny -- you have taken the method which you ought * * *." n2 The persecution of the Christians by the heathens continued (by throwing them to the lions, etc., as every school child is taught) until about A.D. 313, when Emperor Constantine embraced their belief; and later in the 4th century Christianity became the official religion of Rome.

 n1 Those interested in pursuing this aspect of the case further will find interesting, instructive, and rather comprehensive treatments of the subject in Justice Black's opinion in Everson v. Board of Education, 330 U.S. 1, in Justice Frankfurter's opinion in McCollum v. Board of Education, 333 U.S. 203, in Justice Clark's opinion in Abington School Dist. v. Schempp, supra, Justice Rutledge's dissent in Everson, supra, and in 2 Cooley's Constitutional Limitations, pp. 960-985.

[***20] 

n2 The Genuine Works of Flavius Josephus (dissertation), pp. 63-65.

   After Christianity became the established Church of Rome and the Church gradually increased in wealth and power, there constantly developed disputes in the various provinces between the Roman bishops and the civil authorities as to their respective authority.  In time, the Church became so rich and influential that certain of the Popes felt free to assert their authority as being superior to that of the reigning Sovereigns.  This, naturally, developed angry and deep-rooted conflicts and controversies between the Papacy and some of the nations, and also between nations, themselves, depending upon whether or not they agreed with the Papacy.

   The religious Crusades (about 1096 to 1270) are also subjects which are still taught to nearly every school child.  They engaged, off and on for some 200 years, practically all of the continental European nations and England in costly and cruel warfare in attempts to capture and to hold the Holy Land.  In these conflicts, not only reigning monarchs and nobility participated in actual combat [***21] but also Church bishops and clerics.  A fact concerning the Crusades, not so generally known as the above, is that two of them were armies of about 30,000 and [*656] 20,000, respectively, composed of small boys and girls, many of whom, quite naturally, died. n3

n3 3 World Book Ency., p. 928.

   We pass over a short period of time, in which the unbridled fervor and fanaticism of the Church grew and expanded, to the origin of the Spanish Modern Inquisition (about 1481).  Frequently this fervor vied with secular authority and caused most important incidents such as the murder of Saint Thomas a Becket, the Roman Catholic Archbishop of Canterbury, while at vespers, in 1170 A.D. n4 Because of his opposition to royal authority, Henry II is reputed to have said in the presence of his knights: "Have I not about me one man of enough spirit to rid me of a single insolent prelate?" Four knights immediately accepted the "commission," and carried out the king's expressed desire.  Another important event occurred shortly[***22] thereafter (about 1208).  Pope Innocent III commanded a delegation of the monks at Canterbury to select Stephen Langdon archbishop in place of a person whom King John had compelled them to elect.  The King refused to permit Langdon to land in England.  After trying other measures, the Pope "deposed" John and ordered King Philip of France to seize the English Crown.  In the end John was forced to accept Langdon, and in addition to promise to pay a tax of some $64,000 (in current money) a year for permission to keep his crown.

n4 3 The World Book Ency. p. 150.  A pilgrimage from London to Canterbury, where the Saint was buried, is, of course, the theme of Chaucer's famous "Canterbury Tales."

   We need not dwell long on the horrors and perfidies of the Inquisition, but to understand the intensity of feelings motivating [**57] the persecutions of this era, it is necessary to know the teachings of the Church at that time and what the law of the civil authorities authorized.  We quote a few excerpts from authorities[***23] relative thereto:

   "Acts of intolerance are to be discerned from the earliest period in which Christianity became the established religion of the Roman Empire.  But they do not seem to have flowed from any systematized plan [*657] of persecution, until the papal authority had swollen to a considerable height."

   * * *

   "In the present liberal state of knowledge [about 1837], we look with disgust at the pretensions of any human being, however exalted, to invade the sacred rights of conscience, inalienably possessed by every man." n5
"But, to judge the action fairly, we must transport ourselves to the age when it happened.  The difficulty that meets us in the outset is, to find a justification of the right of conquest, at all.  But it should be remembered, that religious infidelity, at this period, and till a much later, was regarded -- no matter whether founded on ignorance or education, whether hereditary or acquired, heretical or Pagan -- as a sin to be punished with fire and faggot in this world, and eternal suffering in the next.  This doctrine, monstrous as it is, was the creed of the Romish, in other words, of the Christian Church, -- the basis of the Inquisition, and[***24] of those other species of religious persecutions, which have stained the annals, at some time or other, of nearly every nation in Christendom.  Under this code, the territory of the heathen, wherever found, was regarded as a sort of religious waif, which, in default of a legal proprietor, was claimed and taken possession of by the Holy See, and as such was freely given away by the head of the Church, to any temporal potentate whom he pleased, that would assume the burden of conquest.  Thus, Alexander the Sixth generously granted a large portion of the Western hemisphere to the Spaniards, and of the Eastern to the Portuguese.  These lofty pretentions of the successors of the humble fisherman of Galilee, far from being nominal, were acknowledged and appealed to as conclusive in controversies between nations." n6 

n5 I Prescott's Ferdinand and Isabella, pp. 230, 231.

n6 II Prescott's Conquest of Mexico, pp. 30, 31. Lea, A History of the Inquisition in the Middle Ages.

   [*658] We move on to a later date[***25] (around 1500) and see the conflicts and controversies between Church and State continuing.

   "We shall conclude this Chapter by a melancholy truth which obtrudes itself on the reluctant mind; that even admitting * * * all that history has recorded * * * on the subject of martyrdoms, it must still be acknowledged that the Christians in the course of their intestine dissentions, have inflicted far greater severities on each other than they had experienced from the zeal of the infidels.  * * *.  In the Netherlands alone more than 100,000 of the subjects of Charles V are said to have suffered by the hand of the executioner." n7

n7 II Gibbon, The Decline and Fall of the Roman Empire, (Smeaton ed.) pp. 197, 198.

   The protracted controversies between Henry VIII and the Papacy, with attendant executions, were, and are, well known.  They resulted in a series of enactments of Parliament which severed the great financial, legal, and administrative ties which had joined the English state with Western Christendom, and[***26] the English Church with the Holy See.  The Act of Supremacy declared Henry the head of the Church of England and the inheritor of the jurisdiction of the Bishop of Rome.  After the knowledge of several "judicial murders" in England reached Rome, the Pope issued a bull which excommunicated Henry, delivered [**58] his soul to Satan, and his kingdom to the first invader.  The King replied by sequestering and, after pillaging, destroying a large number of religious houses n8 (reputed as 645 monasteries, 2374 chapels, 90 collegiate churches and 110 charitable institutions).

 n8 Montgomery, The Leading Facts of English History, pp. 197, 198.

   Six years after the death of Henry, his daughter Mary ascended the throne. She was a devout Roman Catholic, and did everything she could to re-establish that Church in England.  She resumed old relations with the Pope, and to accomplish her objectives in supporting her religion, she resorted to the [*659]arguments of the dungeon, the rack and the fagot, and, when her [***27]bishops slackened their work of persecution and execution, she urged them not to stay their hands. n9 The penalty for reading the English Scriptures or offering Protestant prayers was death. n10 Montgomery, op. cit. in footnote 8, at p. 209, says that Mary's state of mind was the same as all who then held strong convictions, and "each party believed it a duty to convert or exterminate the other, and the alternative offered to the heretic was to 'turn or burn.'"

n9 Montgomery, op. cit., p. 209.

n10 Benjamin Franklin, one of the Framers, gives an interesting account in his autobiography of how one of his ancestors circumvented this proscription.

   Elizabeth I (1558-1603) succeeded her sister Mary on the throne, and we are now approaching the period when the first permanent English colonies were to be established on this continent.  Her ascension was followed by the repeal of many of the religious laws enacted in Mary's reign, the enactment of a new Act of Supremacy, and an adoption of a revised version of[***28] the religious beliefs of the English Church, formulated under Edward VI (1547-1553). Commenting on these and other enactments, Montgomery, op. cit. at p. 214, states: "The reason for these stringent measures was in that age Church and State were everywhere considered to be inseparable.  No country in Europe -- not even in Protestant Germany -- could then conceive the idea of their existing independently of each other.  Whoever refused to support the established form of worship, whatever that might be, was looked upon as a 'rebel' against the government." (Emphasis added.)

   The number of Puritans, Protestants who did not believe that the tenets of the Established Church of England went far enough in "purifying" that Church from Roman influences, grew by leaps and bounds in the last half of Elizabeth's reign.  Before James I was crowned (1603), they presented a great Petition to him requesting certain rights and privileges.  The requests were denied and James avowed he would make all conform to the Established Church or leave the country.  In despair but with firm determination, a band of these Puritans, not being able to obtain a royal license to go to America, emigrated [*660] [***29](about 1608) to Holland where they remained for 12 years.  Finally James granted them permission to go to America, so in 1620 (just 2 years after the beginning of the devastating religious war in Europe called the Thirty Years' War, and 29 years before the Puritans beheaded King Charles I) our Pilgrim Fathers set sail for this country, being the first Englishmen to flee from religious persecution, seeking an asylum in this country where they could worship according to the dictates of their consciences.

   We shall narrate, briefly, two other events that occurred in Europe, and do so because of their importance to, and influence over, the colonies of this country as they developed.  We mentioned above the Thirty Years' War (1618-1648); it began as a civil war between the Protestants and the Roman Catholics in the German States, but before it was over nearly all of the nations of Europe became involved.  One authority gives the following account of the results thereof:

   "Germany was in a pitiable condition by the time the war finally ended.  More than half the people had been killed.  [**59] Those who survived saw nothing but ruin wherever they looked.  Whole cities, villages, [***30] and farms had disappeared, and two thirds of all the property had been destroyed.  Art, science, trade, and industry languished.  It took about two hundred years for Germany to recover from the effects of [this war].  Thousands of persons left Europe, especially Germany, and went to America to build a new life." n11 (Emphasis added.)

n11 17 The World Book Ency., p. 200; see also 2 World's Best Histories, Germany, Part XVIII; 22 Encyclopedia Brittanica, pp. 136 et seq.

   Finally, we mention the fate of the Huguenots in France.  They were French Protestants, who grew into sizable proportions in the 1500's and 1600's.  A civil war broke out between them and the Roman Catholics.  Without going into the sad details of that unfortunate conflict, the Huguenots, after much bloodshed and many deaths, were given freedom of worship in about 75 towns and cities by the Edict of Nantes (1598), but [*661] they again lost the same in 1685, when Louis XIV repealed the Edict.  Again we find:

   "Thousands of[***31] Huguenots fled France to new homes in England, Germany, Holland, and America.  Many settled and prospered in South Carolina, Virginia, Massachusetts, and New York [emphasis ours].  Among such Huguenots were the Legare, Petigru, Maury, Revere, Jay, and DeLancey families." n12

n12 8 World Book Ency., p. 375.  For a rather detailed account of the trials and tribulations of the Huguenots, and the extreme provisions of the Resolution revoking the Edict of Nantes -- demolition of all chapels, interdiction of any assembly or worship, all ministers to leave the kingdom within 15 days, all schools closed, new-born babies to be baptized by the parish priests, Huguenots forbidden to leave the kingdom on pain of galleys for the men, and confiscation of person and property for the women, etc. -- see IV The World's Best Histories, France, Ch. XLVII.

   We shall not discuss in detail the complexities that arose concerning Church and State in each of the Colonies.  It seems obvious that our revered Pilgrim Fathers, who[***32] had come here to seek religious freedom, were not in a mood to grant complete religious freedom of thought to all others.  We all know of the banishment of Roger Williams.  It also is apparent that Maryland's vaunted Toleration Act of 1649 granted religious tolerance only to Christians, and it is entirely possible that it was prompted, at least in part, by expediency.  The Puritans had taken over the government in the Mother Country in the early part of that year, and the Lord Proprietor, in order to strengthen his position with the Home Government had issued invitations to settle here to the New England Puritans and those of Virginia, where Governor Berkeley, in spite of the Puritan successes in England, remained a Royalist and an adherent of the Anglican Church. Andrews, The Founding of Maryland, Ch. XII.  We close our remarks concerning the colonies with the observation that at least 8 of them had Established Churches before the Revolution; and Virginia, after a struggle lasting about 7 years had defeated a Bill which would have permitted taxation to support religions and had enacted Jefferson's Bill for Establishing Religious Freedom, in 1786.  (For an instructive [*662] [***33] and more comprehensive treatment of the situation in the Colonies, see Justice Black's opinion in Engel v. Vitale, 370 U.S. 421.)

   Thus it is seen that the Framers knew man's difficult-to-suppress (and still unextinct) desire to persuade, and failing in persuasion, to compel others to adopt and believe his religious views, and man's unswerving determination to select the religious views most appealing to him individually and his quest to believe those views and to worship without fear or favor had been potently divisive forces ever since the deeds of mankind had been recorded.  So great had been the impact of the latter [**60] determinants that neither dungeons, mortally bleak winters in far-distant colonies, plain executions, wholesale burnings at the stake, nor the prolonged and "exquisite" agonies produced by the tortures of machinations developed by the most ingenious minds of the ages (i.e. "persecution in perfection") had dissuaded man in his pursuit of religious freedom and religious equality.

   Even though the above is but a sketchy outline of the subject involved (as we stated above), we have set the same forth at some length to demonstrate that the problem to be considered[***34] and solved when the First Amendment was proposed was not one of hazy or comparative insignificance, but was one of blunt and stark reality, which had perplexed and plagued the nations of Western Civilization for some 14 centuries, and during that long period, the union of Church and State in the government of man had produced neither peace on earth, nor good will to man.

   In an attempt to prevent recurrences of many of the unfortunate evils mentioned above (and those mentioned in the opinions named in footnote 1) our forebears decided it was best for Government, best for Religion and best for mankind that the two be kept separate and apart.  In order to effectuate this goal, the First Amendment was adopted which provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." n13 A [*663] narrow and literal reading of the same might cast some doubt as to whether our present factual situation presents any question relative to an "establishment" of religion, but we shall point out below that the Supreme Court has not construed the Amendment in such a narrow fashion as to exclude the issues here raised from its purview. [***35] See, for example, McCullom v. Board of Education, supra, 333 U.S. at p. 213.

n13 At this late date, it requires no citation of authority to assert that the same proscription applies to the states through the Fourteenth Amendment.

   Before considering the Supreme Court decisions, we shall dispose of two subordinate arguments advanced by the appellees.  Under the heading of Legislative Practice, they set forth large and imposing grants made by Congress to various institutions and programs sponsored by governmental agencies and departments.  The actions of the Legislative Branch are, of course, entitled to consideration and respect, Murray, Etc. v. Comptroller, supra, 241 Md. at p. 400; but they are not controlling in the determination of a direct and specific constitutional attack on an individual statute.  Schempp, McCollum, and Engel, all supra, and Torcaso v. Watkins, 367 U.S. 488, wherein the Supreme Court uprooted long-standing and established practices sanctioned by legislative and [***36]state constitutional provisions.

   They also argue that if the grants herein be invalidated, that no state grant to any educational institution could be sustained, unless every vestige of officially sponsored religious observances be entirely divorced from the institution.  The appellants label this "appellees all-or-nothing argument." The argument loses sight, we think, of the fact that there is a constitutional difference between a sectarian institution and a secular one, which may officially sponsor one or more religious observances. We shall point out the test to be applied below.

   This brings us to a consideration of the Supreme Court decisions bearing on the questions herein involved.  The parties on both sides of the controversy have carefully analysed the same in their briefs.  Justice Clark did likewise in his opinion in Schempp, supra, as to the decisions preceding it.  However, we do not deem it necessary or desirable to take up each of these decisions and analyse them in detail, for this Court has very recently stated their rationale in Murray, Etc., supra (241 Md. at pp. 398 and 401, [**61] involving church exemptions from taxation), [*664] where Judge[***37] Oppenheimer, for the Court without dissent, said:

   "In our reading of the opinions, however, we find broad guide lines which form the frame within which the case before us is to be considered.  We are a religious people and recognize the effect religious institutions have on human activity.  The First Amendment was designed to erect 'a wall of separation between church and State.' Mutual independence, under our Constitution, is deemed best for the State and best for religion. The State cannot forbid nor can it perform or aid in performing the religious function.  Like other broad constitutional concepts, the meaning of 'separation' is to be ascertained in the application of the principle to specific cases.  A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious consideration, is valid, even though religious interests may be indirectly benefited.  If the primary purpose of the state action is to promote religion, that action is in violation of the Amendment, but if a statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether [***38]  the state could reasonably have attained the secular end by means which do not further the promotion of religion." (Emphasis added.)

   * * *
 
"As McGowan makes clear, even though the exemption had an unmistakably religious origin, if the present purpose and effect of the exemption is primarily secular, and if those secular purposes could not reasonably be deemed achievable without an incidental benefit to religious organizations, the 'establishment' clause is not violated." n14

n14 The above rationale is supported and emphasized by so many statements in the Supreme Court's decisions that one is at a loss to know where to start and where to end in naming them.  We set forth a few.  "These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out * * *." "These practices [the collection of taxes and tithes to sustain government-sponsored churches] became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence.  * * *.  The people there [in Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions * * *." After quoting from the celebrated "Virginia Bill for Religious Liberty," 12 Hening, Statutes of Virginia (1823) 84, originally drafted by Jefferson, stating that "Almighty God hath created the mind free; that all attempts to influence it by temporal * * * burthens * * * tend only to beget habits of hypocrisy and meanness * * *," and "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical * * *," the Supreme Court "* * * recognized that the provisions of the First Amendment * * * had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute." * * *. "New Jersey cannot consistently with the 'establishment of religion' clause * * * contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church." All from the majority opinion in Everson, supra.

   "With Jefferson, Madison believed that to tolerate any fragment of establishment would be by so much to perpetuate restraint upon that freedom [general freedom].  Hence he sought to tear out the institution not partially but root and branch, and to bar its return forever."

   "In no phase was he [Madison] more unrelentingly absolute than in opposing state support or aid by taxation.  Not even 'three pence' contribution was thus to be exacted from any citizen for such a purpose." Memorial and Remonstrance against Religious Assessment.  [The Memorial is set forth in Appendix, 330 U.S. pp. 63 et seq.] * * *.  "Their objection was not to small tithes.  It was to any tithes whatsoever.  * * *.  Not the amount but the 'principle of assessment was wrong.'" * * *.  "In view of this history no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises." A few excerpts from Justice Rutledge, with whom Justices Frankfurter, Jackson, and Burton concurred in Everson, supra, dissenting.

   In McCollum, supra, interested members of the Jewish, Roman Catholic, and some of the Protestant faiths formed a voluntary association.  They obtained permission from a Board of Education to offer classes in religious instruction in the public schools.  "The foregoing facts * * * show the use of tax-supported property for religious instruction * * *.  The operation of the State's compulsory education system thus consists and is integrated with the program of religious instruction * * *.  This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.  And it falls squarely under the ban of the First Amendment * * *." "The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery.  This is not separation of Church and State." From the Courts opinion in McCollum, supra.

   Justice Frankfurter, with whom Justices Jackson, Rutledge and Burton agreed in his concurring opinion in McCollum, supra, said:

   "Illinois has here authorized the commingling of sectarian with secular instruction in the public schools.  The Constitution of the United States forbids this."

   * * *

   "Separation means separation, not something less.  Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation,' not of a fine line easily over-stepped."

   In Engel, supra, it was stated:

   "They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power."

   "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."

   Among many other cogent statements in Schempp, we find the following:
 
   "There is no answer to the proposition * * * that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers' expense * * *."

   * * *

   "It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."

   * * *

   "The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies."

   * * *

   "Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison.  These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools.  None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson.  The trial court in No. 142 has found that such an opening exercise is a religious ceremony and was intended by the State to be so.  We agree with the trial court's finding as to the religious character of the exercises.  Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause."

   "The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners."

   * * *

   "Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, 'it is proper to take alarm at the first experiment on our liberties.'"

   Justice Douglas stated in his concurring opinion:

   "The most effective way to establish any institution is to finance it; and this truth is reflected in the appeals by church groups for public funds to finance their religious schools.  Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others.  But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members." (Emphasis in the original.)

   Probably much of this language would have been included in the majority opinion, had a direct grant, or direct expenditure, of money been involved.

[***39]

   [*665] [**62] There are two celebrated passages in the opinions of the Supreme [*666] Court relating to the provisions concerning religion in [*667]the First Amendment: the first is in Everson; [**63] the other is in Schempp.  Justice Black, for the Court, in Everson, said:

   [*668] "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.  Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.  No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or[***40] groups and vice versa.  In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States, supra at 164."

   Justice Clark wrote the opinion in Schempp.  In part, it stated:
 
"The test may be stated as follows: what are the purpose and the primary effect of the enactment?  If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.  That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education, supra."

   The first quotation was repeated in McCollum, supra, and portions thereof were likewise repeated in McGowan v. Maryland, 366 U.S. 420, and Torcaso v. Watkins, 367 U.S. 488. In Zorach v. Clauson, 343 U.S. 306, the Court upheld the constitutionality [*669] of a "released time" for religious instruction program (there being no expenditures of public funds or use of public buildings), stating, [***41] however, "government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education * * *." And in Engel, supra, as stated in footnote 14, the Court said when "the power, prestige and financial support of government is placed behind a particular religious belief," the Establishment Clause is violated.

   The Chancellor read the Schempp opinion as setting forth a new and comprehensive test to apprehend what was constitutionally permissible and impermissible under the Establishment Clause. We do not [**64] read the opinion in that manner.  We do not read it as establishing a completely new test, nor one that can be applied in all cases as a final and determinative one. Schempp did not involve a direct expenditure nor a direct grant of money. n15 We read the test therein mentioned as being sufficient to decide the issues there involved, and, as the factual situation showed that the statutes could not even pass the test named, no more was needed to be said or added thereto.  In other words, the statutes there involved clearly showed that their "purpose and primary effect" was the advancement of religious exercises.  If either [***42]their "purpose" or "primary effect" were such advancement, the statutes were unconstitutional, and, as they offended in both aspects, that determined the issue; so why add hypothetical tests attempting to cover all conceptual factual situations, such as where secular and sectarian exercises are fused or commingled, etc.?

n15 Justice Douglas was the only member of the Court who felt that even though the public expenditure was minuscule, it was sufficient to invalidate the statutes involved.

   It is inconceivable to us that Schempp was intended sub silentio to overrule or supersede Everson and the other Establishment cases preceding Schempp.  On the contrary, Everson is cited in the opinion, with approval, some half dozen times.  (In fact, Everson, is cited as the authority for naming the test.) At one point, after quoting, with approval, from Everson; from Justice Jackson's dissent therein to the effect that the First Amendment "was to take every form of propagation of religion [*670] [***43] out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayer's expense * * *"; from Justice Rutledge's dissent therein which declared, "but the object was broader than separating church and state in this narrow sense, [i]t was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion"; the Court went on to say (in Schempp) "the same conclusion has been firmly maintained ever since that time [citing McCollum, McGowan and Torcaso, all supra]." (Emphasis added.)

   After a consideration of all of the Supreme Court decisions and our statement of their rationale, quoted above, we have reached the conclusion that, insofar as the issue of the First Amendment is concerned, we should apply the following standards in measuring the statutes under consideration.

   As it is claimed that First Amendment liberties have been infringed upon, we must closely scrutinize and carefully consider the issues presented.  McGowan, supra, 366 U.S. at p. 449. Each case must be determined[***44] on its particular facts.  Murray, Etc., supra, 341 Md. at p. 398. We must examine each of the statutes and decide whether it can be demonstrated that its purpose -- as evidenced either on its face, in conjunction with its legislative history, or in its operative effect -- is to use the State's coercive power to aid religion. Schempp, supra, 374 U.S. 203, and Justice Frankfurter's opinion in McGowan, 366 U.S. at pp. 466, 467. "If the primary purpose [as contradistinguished from an incidental one] of the state action is to promote religion, that action is in violation of the Amendment, but if [the operative effect of] a statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether the state could reasonably have attained the secular end by means which do not further the promotion of religion." Murray, Etc., supra.  Cf. McGowan, supra. No tax, in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religions. Everson, supra, 330 U.S., at p. 16. Although a state cannot [**65] [***45] "contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church," [*671] it cannot exclude individuals, because of their faith or lack of it, from receiving the benefits of valid public welfare legislation.  Everson, supra, (a case wherein the Court stated the factual situation "verged" upon the impermissible).  When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.  Engel, supra, 370 U.S., at p. 431. We are unable to accept appellees' contention that every religious observance by an institution sectarianizes the same, but feel that the question of sectarianization depends upon a consideration of the observances, themselves, and the mode, zeal, and frequency with which they are made.  These principles are sufficient, we think, to determine our present issues, and we shall apply them in considering the four statutes involved.

   We have comparatively little difficulty with such cases as Bradfield v. Roberts, 175 U.S. 291, Quick Bear v. Leupp,[***46] 210 U.S. 50, and Cochran v. Louisiana, etc., 281 U.S. 370, all cited by the appellees.  We shall make but a short analysis of the same.  Justice Brennan, in his concurrence in Schempp, supra, said: "A scrutiny of several earlier cases [including the three cases named above] * * * shows that such cases neither raised nor decided any constitutional issues under the First Amendment." We agree.

   And we find no great difficulty in distinguishing McGowan v. Maryland, supra, wherein the validity of the Maryland Sunday-closing laws were upheld.  There, general "public welfare legislation" was upheld because its then "present purpose and effect" was "to provide a uniform day of rest for all citizens," even though religion might have been affected or benefited in a purely incidental manner.  It was much the same holding, in principle, as Everson, supra, wherein the Court observed that the legislation "verged" upon being impermissible. As we have stated above, it is a question of degree as to how far all religions or a specific religion may be benefited by State action without the State stepping out of its role of complete "neutrality," and such action losing its character[***47] as being incidental to lawful general welfare legislation.

   [*672] APPLYING THE STANDARDS TO THE INDIVIDUAL COLLEGES

   There is little controversy over the facts in any of the cases; rather the dispute is as to the legal effect of the facts.

   The experts on both sides are in general accord that the following factors are significant in determining whether an educational institution is religious or sectarian: (1) the stated purposes of the college; (2) the college personnel, which includes the governing board, the administrative officers, the faculty, and the student body (with considerable stress being laid on the substantiality of religious control over the governing board as a criterion of whether a college is sectarian); (3) the college's relationship with religious organizations and groups, which relationship includes the extent of ownership, financial assistance, the college's memberships and affiliations, religious purposes, and miscellaneous aspects of the college's relationship with its sponsoring church; (4) the place of religion in the college's program, which includes the extent of religious manifestation in the physical surroundings, the character and extent of religious[***48] observance sponsored or encouraged by the college, the required participation for any or all students, the extent to which the college sponsors or encourages religious activity of sects different from that of the college's own church and the place of religion in the curriculum and in extra-curricular programs; (5) the result or "outcome" of the college program, such as accreditation and the nature and [**66] character of the activities of the alumni; and (6) the work and image of the college in the community.

   With these criteria and the standards we named above in mind, we consider the schools, individually.  In setting forth the facts relevant to each, we have followed, in considerable measure, appellants' brief with reference to some of the schools, after carefully checking the same with the evidence.

   HOOD COLLEGE

   Chapter 88 of the Acts of the General Assembly of 1962 grants to Hood College $500,000 to help erect a dormitory and a classroom building.

   According to the College Bulletin issued in 1963, Hood is "an independent liberal arts college for women," and it "is [*673] church related through its affiliation with the United Church of Christ [U.C.C.], but welcomes [***49]students of all religious faiths." It is listed in a Tabulation of the Danforth Foundation of Institutions Associated with Religious Bodies as "reflecting religious orientation." It is a small college, limited to an enrollment of about 650 students, and is governed by a Board of Trustees consisting of 35 members.  Seven of these are elected by agencies of the U.C.C.; 22 by the Board itself; and 6 by the Alumnae Association from its membership. The President is selected by the Board, and the President, after screening by appropriate college officials, selects the administrative personnel.  Faculty members are usually located by the chairman of the department where a vacancy occurs.  They are selected upon an analysis of their academic credentials, qualifications, and earned degrees, and their "character and congeniality." There are no sectarian requirements for members of the faculty; the President thought that Hood had "virtually all shades of religious affiliations represented [thereon] and non-religious affiliation." In the year 1963-1964, there were 7 Episcopalians, 2 of the Jewish faith, 3 Lutherans, 6 Methodists, 1 with no affiliation indicated, 13 Presbyterians, 2 listed as[***50] Protestant but non-denominational, 5 Roman Catholics, 3 members of the Society of Friends, 3 Unitarians, and 10 members of the U.C.C., a rather heterogeneous faculty for a sectarian school.

   There is no requirement that any member of the officers of administration be of any particular religious denomination, and, in fact, the officers of administration do not represent any particular church or religious body. Included among these are Baptists, Lutherans, Methodists, Presbyterians, one Roman Catholic and one Unitarian, and 7 members of the U.C.C.

   There is no requirement that the Chaplain, who supervises, generally, the religious lives of the student body be of any particular denomination, although the present one is a member of the U.C.C.

   The student body is primarily selected according to educational records supplied by the students and by the schools from whence they come; there is absolutely no requirement based on race, creed, color, or sectarian affiliation in the student body. An examination of their religious affiliation for the year 1963-64 [*674] shows such a diversification that it would unduly prolong this opinion to include them all.  Among a student body of some[***51] 675 students, were included 146 Episcopalians, 29 Jewish students, 83 Methodists, 72 Roman Catholics, 108 Presbyterians, and 89 members of the U.C.C.

   The college confers only two earned degrees; the A.B. degree, which is, of course, a liberal arts degree; and the B.S. degree in Home Economics.  It has a department of religion and philosophy; the courses taught therein are conducted in the same manner as the courses in other departments.  These courses are not geared to aiding the Protestant religions or any other; they are primarily historical studies in religion and "there is absolutely no attempt at indoctrination in any way." The President was emphatic in stating that he believed proselytizing had no place in higher education.  [**67] The professors in the religious field are not confined to members of the U.C.C. or to Protestants.  In addition, there is no attempt by the U.C.C., or any other group, to select texts or to offer suggestions as to which texts should be used, and there are no courses in religion or philosophy, or anywhere else in the curriculum, which are designed to train for the ministry or religious work.  The requirements for attendance at chapel (indeed, if[***52] they may be termed requirements from the evidence) do not call for frequent services, with the student being allowed generous "cuts" without excuse.  On the Wednesday evening services, of which there are approximately 15 per semester, clergymen of various denominations come in and talk to the students.  These include Protestants, Roman Catholics, Jewish Rabbis, and a Humanist (the President of Hood, after listening to him, being unable to state what his religious preference was). This same general pattern is followed for the Sunday evening services, but not to the same extent as the services on Wednesday evenings.  The students are encouraged to maintain ties with the churches of their own denomination while at the college, and each Sunday morning they are released for the purpose of going to such churches in the locality.

   In the year mentioned above, the U.C.C. contributed 2.2% of the college's total operating budget; but contributed nothing in the way of capital gifts, with the exception of one gift in the amount of $10,000 for endowed scholarships.

   [*675] The college has a "very loose relationship" with the Council for Higher Education of the U.C.C., all of the church-related[***53] colleges related to the U.C.C. automatically becoming members of the Council.

   During the summers the college permits various civic and religious groups to utilize their campus for programs for which modest charges are made.  The school has no control over the programs, and, as far as the record discloses, the programs are not confined to church affairs or to any particular denominations.

   The facilities to be housed by the grant herein involved will be a new academic building and a dormitory; no religious activities will be conducted therein.

   The above summarization, we think, discloses that Hood, although it is a church-related school, may constitutionally receive the money mentioned in the Bill.  No challenge under this heading is made against the Bill's permissibility other than its alleged violation of the Establishment Clause of the First Amendment.

   Applying the criteria we named above, we are unable to say that the College is sectarian in a legal sense under the First Amendment, or to a degree that renders the grant invalid thereunder.  The College's stated purposes in relation to religion are not of a fervent, intense, or passionate nature, but seem to be based largely upon[***54] its historical background.  The College was established in 1893, when a great number of private schools were church-oriented, and it was then related to the Reformed Church of the United States.  After two church mergers, one in 1933 and one in about 1962, the present sponsoring church is the newly created U.C.C.  The Church does not have control over the governing body and certainly the college personnel shows no serious attempt to proselytize, or to require certain religious beliefs to become a member thereof.  The financial assistance of 2.2% of the operating budget given by the Church is a moderate percentage.  The only physical structure of a religious character seems to be the Chapel, and it is open to all.  Religion in the curriculum and in extra-curricular programs is at a minimum for any church-related school.  We do not find that religion occupies a dominant place in the College's program, [*676] the record clearly showing that students are not required to attend and participate in many religious observances. It is, of course, accredited.  The record does not disclose any great activity [**68] among the alumnae of a religious nature, and, although the image of Hood[***55] in the community is that of a good, sound, and efficient College, there is no showing that it is considered to be religiously slanted.  Under the above circumstances, it is obvious that neither the U.C.C. nor any other religion is running the institution, or has control over it.

   We hold, therefore, that the primary purpose of the grant here involved was not to aid or support religion; that there is nothing on the face of the Bill or its legislative history to demonstrate that its purpose was to use the State's coercive power to aid religion; and that its operative effect is not to aid religion (as we read the record, we see no aid to religion here; if there be any it assuredly is incidental and very remote in nature), but to promote the educational facilities for women.  Consequently, the Bill does not violate the First Amendment.

   WESTERN MARYLAND

   Chapter 546 of the Acts of the General Assembly of 1963 grants $500,000 to Western Maryland College for the purpose of aiding in the construction of a science wing and dining hall.

   The stated purposes include religious objectives to a considerable extent. The college characterizes itself as a "religiously oriented institution" and [***56]"make[s] no bones about the fact that our philosophy at Western Maryland is a Christian philosophy."

   One more than one-third of the members of the governing board are required by its Charter to be Methodist Ministers, so as to give the clergy the veto power over any change inimical to the interests of the church. The required percentage "binds the college very closely to the Church." The board is heavily Methodist, and nearly all Protestant, although quite a number of denominations are represented thereon.  All the presidents have been Methodist Ministers.  The administration is almost entirely Protestant, although, again, quite a number of denominations are represented.

   Care is taken to obtain a faculty committed to the Christian philosophy of life, and an atheist would not be employed.  Almost [*677] half of the faculty is Methodist, and almost all Protestant.  Approximately 40% of the student body is Methodist, and almost all Protestant.  The large number of Methodists is due to greater likelihood of acceptance of Methodist "borderline cases * * * because they seem part of the constituency of the college," and to the large number of Methodist students who become familiar[***57] with the college during church conferences on the campus.  The college has a significant number of Methodist preministerial students.  Some of these are given scholarships ranging from 1/2 to full tuition.  And the children of Methodist Ministers are charged only half tuition.

   The church provides "financial support of considerable value," both operational and capital, the operational contribution being between 2 and 3% of the budget.  The college is affiliated with, and supports, denominational educational associations.

   The college campus is very heavily used by Protestant religious groups (some at actual cost), and "logically and naturally, there have been of course more of the Methodist program here than any of the other denominations."

   The college fosters a religious program, under the direction of a Methodist Minister.  Participation in Protestant religious services is required of all students.  The requirement is publicized so that if anyone has conscientious scruples about attending such services "he should know that before he comes."

   The college makes a conscious effort to integrate religion, and specifically Christianity, with the curriculum and extracurricular life.  Because[***58] Methodism does not have the wide range of dogma that one, or more, religions have, there is less specific religious restriction in regard to curriculum, [**69]but the school endeavors to provide a religious motivation.

   We quote briefly from material contained in documents issued by the College: "Many [of the students] become seriously interested in religion for the first time [while attending the college]."

   Under the heading "What Has the College Done For The Church," after listing what we have named above, we find the following:

   "The principal contribution the College is making to the Church is in accordance with its [the College's] [*678] basic purpose: to provide the best in higher education within the framework and atmosphere of the verities and values of our Christian faith." (Emphasis added.)

   The college is accredited by the Middle States Association of Schools and Colleges and the University Senate of the Methodist Church. It is proud of the number of its alumni who enter the Christian, and particularly the Methodist ministry. The image of the college in the community is strongly Methodist.

   Applying the criteria and principles of law we named[***59] above to this College, we reach the conclusion that it is sectarian in a legal sense under the First Amendment, and may not constitutionally receive the grant named in the Bill.  Whether or not an educational institution is sectarian in such a legal sense is a rather elusive matter, being somewhat ephemeral in nature.  Hence, we have deliberately made no attempt to enunciate a hard, fast, and intractable rule in regard thereto, preferring, as indicated above, to decide each case upon the totality of its attendant circumstances.

   Here, the stated purposes of the College have a distinctly religious "flavor," and they clearly indicate a considered resolution to promote religious activities and exercises.  The Board of Trustees consists of 27 Methodists in a membership of 40, with virtually all of the remainder being Protestants.  And, of course, at least one more than one-third must be Methodist Ministers, which "binds the college very closely to the Church." The administrative officers are almost entirely Protestant; and the full-time faculty consists of 30 Methodists in a membership of 51.

   We shall not repeat all of what we said above concerning the College's activities.  We find nothing[***60] on the face of the bill or its legislative history to demonstrate a purpose to use the State's coercive power to aid religion, but a careful consideration of all the facts impels us to the conclusion that the operative effect will be such, if the grant be effectuated. As stated in footnote 14, "The most effective way to establish any institution is to finance it * * *.  Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional * * *." When it is conceded that all the Presidents [*679] have been Methodist ministers, that many of the students become seriously interested in religion for the first time, that limited scholarships are given to the children of the ministers of one denomination, that scholarships are awarded to preministerial students of one denomination, that its campus is made available, at cost, to organizations belonging to one faith, that preference is given to "borderline cases" of one denomination in student-body selection, and that the "basic purpose" of the College is to provide the best in higher education "within the framework and atmosphere of the verities and values of our (emphasis ours) Christian [***61]faith," et cetera, how can it seriously be argued that a grant of tax-raised funds to such an institution would not be "to support * * * religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion"?

   Moreover, the College has made no attempt (possibly due to the fact that the opinion had not been filed when the testimony herein was taken) to comply with the requirements set forth by this Court in [**70] Murray, Etc., supra, i.e., "if a statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether the State could reasonably have attained the secular end by means which do not further the promotion of religion." The appellants suggest that the State could have accomplished the secular purpose desired, without the question of religious activities becoming involved, by making the same grant to any one of several non-sectarian educational institutions in the State.

   Without laboring the question further, we hold that Chapter 546 transgresses the proscriptions of the Established Clause, consequently, it is unconstitutional and invalid.

   NOTRE DAME

   Chapter[***62] 66 of the Acts of the General Assembly of 1962 grants $750,000 to this College to aid in the construction of a science building.

   Notre Dame's stated purposes are deeply and intensely religious. The theory of Catholic education is that Prayer, Holy Mass and the Sacraments represent "the Unifying forces," and "the instructional program interlocks with the non-instructional program; objectives with methods and means, and all to an essential, [*680] interwoven unity." "All of [the College's] objectives are implemented in some degree in every department." The institution's whole life is lived in the Catholic atmosphere, which assumes that earthly life is to be lived * * * in terms of a preparation for the future life with God," and to that end, it "harmonizes" its entire "program with the philosophy and theology of the Catholic Church." The entire program of the College is so ordered "that [the student's] life and study and the atmosphere of the college are permeated, motivated, enlarged and integrated by the Catholic way of life as developed and expressed in the daily prayer, liturgy, Sacraments and Holy Mass of the Church." (Emphasis ours.) "And Outward Grace * * *.  Since[***63] the Christ-thought, the Christ-word and the Christ-deed are the norms of community living in a Catholic college for women, intimations of this presence should be found everywhere: In the Chapel -- [and] in the Class Room * * *." "This expresses our aim to have the spiritual support and vivify the whole college atmosphere." Extracts taken from Exhibits in evidence.  "God bless you and your apostolate in the home, classroom, laboratory, business office, etc. Gratefully in Our Lady." (Sentence from a letter of Sister Miriam to the Girls of 1961.) "Make your payment a Christmas Gift this year.  Help meet the $750,000 Matching Grant for the Science Building [the building involved in the grant under Chapter 66].  * * *.  And you know that your gift to the College is a gift to God for the furtherance of his work.  May the Christ Child bless you for your generosity * * *." (Letter from Sister Miriam dated December, 1962).

   If erected, each class in the new science building will open with a prayer.

   The governing board is controlled by a Catholic religious order whose members are completely committed to Catholic discipline and educational philosophy.  The administration is almost entirely[***64] religious. The faculty are predominantly nuns who are appointed by the Provincial Superior of the religious order (who is Chairman of the governing board), in consultation with the President, who is also a member of the order.  Administration and faculty are chosen on the basis of commitment to the college objectives and ideals, and are overwhelmingly Catholic.  Ten per cent of the students are candidates for a religious [*681] order and more than 97% of the whole student body are Catholic.  This percentage cannot be deemed coincidental.

   The college is owned and has been given heavy financial assistance by the religious order. It it officially a member of, and supports, a number of distinctly Catholic associations and institutions.  It makes its [**71] campus available for use by the Catholic Church and related groups, but not to non-Catholic organizations.  It has close ties with the Archdiocese of Baltimore.

   Catholicity permeates the college program: the physical surroundings; the rich variety of college-sponsored, exclusively Catholic observances, many of which are compulsory for Catholic students, if not for the entire student body; the curriculum; extracurricular[***65] activities; and the student advisory and counseling program.

   The college and the accrediting agencies report a high level of success in achieving the religious objectives of the institution.  The alumnae, individually and as an organization constituting "an integral part" of the college activity, are deeply engaged in the promotion and defense of Catholicism and the Catholic Church.

   The college provides supplemental programs of strong Catholic religious content for nuns teaching in parochial schools and in its Adult Institutes for the community at large.  Its image in the community, as expressed in its publications, constituencies, relations with the Archdiocese, ceremonies, and way of life in general, is distinctly and intensely Catholic.

   As the situation presented by the facts relating to St. Joseph College are so analogous to those regarding Notre Dame, we set forth St. Joseph's fact picture before stating our holdings with reference to Notre Dame.

   ST. JOSEPH COLLEGE

   Chapter 545 of the Acts of the General Assembly of 1963 grants to St. Joseph College $750,000 to assist in erecting a science building.

   Since the evidence relating to this institution is so similar to that [***66]regarding Notre Dame, we curtail, somewhat, our analysis thereof.

   The stated purposes of St. Joseph College seem to be even more strongly religious than Notre Dame's.  The religious order [*682] of dedicated nuns has complete control of the government and administration.  The nuns have taken and abide by vows of strict obedience.  The faculty is chosen with a view to achieving the religious ideals of the college, both by precept and example, and preference is given to Catholics; it, as a whole, is sympathetic to the Catholic philosophy of education.  The majority of the faculty are Catholic priests or nuns, and there are but a small number of non-Catholic members.  The student body includes candidates for the religious order, and has consistently been virtually 100% Catholic; approximately 90% of the students are graduates of Catholic parochial high schools.  The Catholic character of the student body is achieved by design.

    The religious order owns the college through the corporate form and has provided virtually 100% of the financial assistance needed over and above operating income.

   The college is affiliated with, and supports, distinctly Catholic associations and institutions, [***67] and, like Notre Dame, is a certified affiliate of the Catholic University of America.  The supplementary uses of the campus have been exclusively by Catholic religious groups.

   The physical surroundings are strongly religious. Religious observance is strongly Catholic, richly textured, and extensively participated in: "In general, the Theocentric orientation of a Christian student's life is encouraged."

   The accrediting agencies have specifically found St. Joseph to be accomplishing its religious objectives.  The alumnae, individually and as an organization, are distinguished by the number of member of religious orders, the high percentage of active Catholic workers, and the devotion to the alumnae association's objectives: "to promulgate the principles and ideals of Catholicism * * * defending and promoting the interest of the Church, in promulgating [**72] Catholic education and in supporting the Church and its activities."

   The supplementary instructional programs are strongly Catholic, as is the image of the college in the community.

   If erected, the new science building will house crucifixes, "maybe" statues, and "very likely" waterfonts.

   Again, we find nothing on the faces[***68] of the above two Bills or in their legislative histories to demonstrate a purpose to use the State's coercive power to aid religion, but a consideration of [*683] the totality of attendant circumstances impels a conclusion that their operative effect (if the grants be effectuated) demonstrates such a purpose.  It must be remembered that here involved are direct grants of tax-raised funds to the educational institutions, themselves, which will become the sole owners of the buildings if erected.  If appellees' contention that there is nothing in the Establishment Clause which proscribes direct grants to aid and support sectarian educational institutions were correct, it seems that Everson, supra, would have been decided quite easily and without dissent, even though no direct grant was there involved.  The funds here involved are entirely different from those in such cases as Board of Education v. Wheat, 174 Md. 314, and Everson, supra. In Everson, the Supreme Court ruled that a State could constitutionally finance bus transportation of children to parochial as well as public schools, on the ground that involved was "public welfare legislation" (protecting [***69] all children from traffic hazards and dangers), and under the provisions of the First Amendment no State could exclude individuals, because of their faith, from receiving the benefits of such legislation.  In Wheat, this Court ruled constitutional a statute which required the Board of Education (under limitations as to distance, etc.) to carry parochial students to and from their schools upon the same conditions that public-school students were carried, on the ground that the statute protected the safety of the children while en route to and from schools.  No direct grants of money or property to any educational institution were involved in either case, but the Supreme Court split 5 to 4 and this Court 5 to 3 on the issues, with vigorous dissents being filed in each case.

   In basing its holding in Everson on public welfare legislation, the Supreme Court was careful to say:
 
"New Jersey cannot consistently with the 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution [directly involved therein were students in parochial educational schools -- no church, or institution set aside especially for religious[***70] worship, was involved] which teaches the tenets and faith of any church."

   And "no tax in any amount, large or small, can be [*684] levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to preach or practice religion."

   We do not deem it desirable to add materially to what we have already said with reference to Western Maryland.  The facts relating to Notre Dame and St. Joseph speak for themselves.  We think they clearly show that the operative effect of the Bills (if the grants are permitted to be made) demonstrates, in a legal and constitutional sense, a purpose to use the State's coercive power to aid religion; that the grants, if made, would constitute a contribution by the State of tax-raised funds to support institutions which teach the tenets and faith of a particular church; and that the taxes levied to raise the funds for the grants would be levied to help support religious activities and religious institutions.

   We agree with Neil J. McCluskey, S. J., in his work Catholic Viewpoint on Education, p. 168, wherein he stated: "The Catholic laity and clergy are fully aware that direct basic support[***71] by the government to [**73] parochial schools is out of the question" because "the U. S. Supreme Court would interpret such action as a contravention of the Federal Constitution."

   We, therefore, hold that both Notre Dame and St. Joseph are sectarian in a legal sense under the First Amendment, and neither can constitutionally receive the grant made to it; hence Chapter 66 of the Acts of 1962 and Chapter 545 of the Acts of 1963 are unconstitutional and invalid.

   THE MARYLAND CONSTITUTIONAL CLAIMS.

   Under some circumstances, it would be unnecessary to consider these contentions after our holdings above, but, should we find that the grants violated the Maryland Constitution, the Supreme Court might assume a different attitude with reference to reviewing our conclusions than if we decide to the contrary; so we deem it desirable to answer the same.

   Article 23 of our Declaration of Rights provides, inter alia, that no man should be deprived of his life, liberty, or property except "by the judgment of his peers, or by the Law of the land." Appellants point this out and call attention to the fact that we have held the phrase "Law of the land" herein is the equivalent of "due process[***72] of law" as used in the Fourteenth [*685]Amendment to the Federal Constitution.  They then argue, "for the same reasons, and on the same authorities, as the grants violate the Fourteenth Amendment's guarantees of due process of law, which have been construed to include the prohibition against an establishment of religion contained in the First Amendment (emphasis ours), the grants violate Art. 23 * * *."

   It is quite true that we have equated the phrases "Law of the land" and "due process of law." See for example Matter of Easton, 214 Md. 176. But the argument loses sight of the fact that the First Amendment is not included in the Maryland Constitution, and we do not have a Court of higher authority than the Court of Appeals to construe our Constitution, which, of course, is not the case when the Federal Constitution is involved.  We have found no Maryland case denying the right of the Legislature to make a grant to a private institution provided the money is appropriated and expended for a public use.  Cf. Johns Hopkins Univ. v. Williams, 199 Md. 382; Saint John's College v. Maryland, 15 Md. 330; St. Mary's Industrial School v. Brown, 45 Md. 310; Board of [***73]  Education v. Wheat, supra; Adams v. St. Mary's County, 180 Md. 550. The grants here under consideration (if effectuated) are clearly ones to be expended for public uses: to assist in educating our citizens.  Cf. Johns Hopkins Univ. v. Williams, supra . We, therefore, hold that none of the statutes involved violates Article 23.

   What we have just said answers appellants' contentions in regard to Article 15.  It is true that under this Article the Legislature is inhibited from imposing taxes other than for public purposes.  Baltimore & E. S. R. R. Co. v. Spring, 80 Md. 510. It is also true that it has been said that what is a public purpose for which tax funds may be expended is not a matter of exact definition; it is almost entirely a matter of general acceptation.  Finan v. M. & C. C. of Cumberland, 154 Md. 563. But at least since the Johns Hopkins Univ. case, supra, it cannot be doubted that gifts to private educational institutions to aid in the construction of school buildings are expenditures for public purposes.  In the above case it was not even argued that the gift was not an expenditure for a public purpose.

   We hold that none of the Acts violates Article[***74] 15.

   [*686] This brings us to a consideration of the final contention to be answered: do the grants violate Article 36, which, in part, provides: "nor ought any person to be compelled [**74] to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry."

   Appellants call attention to the similarity of the language just quoted to that in Jefferson's famous Bill passed in Virginia, supra (see it also as Document 10, Am. Jur. 2d, Desk Book), cite several out-of-state cases that are rather closely in point, and claim the grants herein violated Article 36.  In the light of the history and reasons for the separation-of-church-and-State provisions and the broad scope given the First Amendment by the Supreme Court cases beginning with Everson, supra, it cannot be said that the contention is entirely lacking in force, and if it were presented to us as an entirely new proposition, it might raise some doubt as to how it should be answered. Although there does not seem to be any previous decision of this Court directly in point, we think an examination of how, why, and when the provision first came into our Constitution, the changes[***75] therein subsequently made, and the decisions of this Court bearing in some degree on the meaning of the provision compel a conclusion that Acts herein involved do not violate Article 36.

   Our first Constitution was adopted in 1776, 10 years before Jefferson's Bill referred to above and 11 years before the adoption of the Federal Constitution.  This first Constitution granted religious tolerance to all those of the Christian faith; and, with reference to compelling support therefor had substantially the same provision as our current one.  Prior to 1776, it had been the practice in Maryland to levy taxes for the support of the Christian religion and also to support the clergy of the Church of England.  Article XXXIII of our first Declaration of Rights (the precursor of the present Article XXXVI), after granting tolerance to those who professed the Christian religion, as we pointed out above, provided that no person ought to be compelled to frequent, maintain, or contribute to maintain any particular place of worship or any particular ministry. Immediately following, it stated that the Legislature could lay a "general and equal tax for the support of the Christian religion," [***76] with the right in the individual taxpayer of "appointing over" the money paid by him "to the support of any particular place of [*687] worship or minister * * *." It further provided that the Acts, lately passed, for collecting monies for building or repairing particular churches or chapels should continue in force, and that every encumbent of the Church of England should be entitled to receive "the provision and support established by the act, entitled, 'an act for the support of the clergy of the church of England, in this Province.'"

   Notwithstanding the passage of Jefferson's Bill establishing religious freedom and preventing taxation to support any "religious worship, place or ministry" in Virginia in 1786 and the adoption of the First Amendment in 1791 (which at that time did not apply to the states), it was not until 1810 n16 that the people of Maryland saw fit to take away the authority of the Legislature to tax to support churches or ministers by amendment of the Constitution.  This amendment provided "that it shall not be lawful for the general assembly * * * to lay an equal and general tax, or any other tax * * * for the support of any religion." (Emphasis added.) [***77] The Constitution of 1851 granted tolerance and religious liberty to "all persons," and changed the provision under consideration from "any particular place of worship, or any particular ministry" to "any place of worship or any ministry," as it is today.

n16 Four of appellees stated: "It was not until the Constitution of 1851 that the authority of the Legislature to tax for the support of the Christian religion was eliminated." This apparently is in error.  See Niles, Maryland Constitutional Law, p. 379; 1 Poore, Charters & Constitutions (1878), 832.

   We have given this brief background of Article 36 to show that Maryland was obviously [**75] in no great hurry to prevent taxation to support certain religions or to grant religious tolerance to all persons, no matter what might be their faith or lack of faith.  We indicated above that there are several decisions of this Court that have some bearing upon the issue now under consideration.  We shall name some of them.  Wheat, supra, involved free transportation[***78] of children to parochial schools on public-school buses.  The Act was challenged as being one that levied taxes for a private purpose, and as being violative of Article 36.  After finding that the Act was sustainable under the police power as providing for the safety of children and aiding in enforcing the law requiring children of certain ages to [*688] attend school, the Court stated, "this conclusion * * * renders it unnecessary to consider separately the objection that a religious institution is aided. Art. 36 * * *.  The institution must be considered as aided only incidentally, the aid only a by-product of proper legislative action." This, by implication, was a strong indication that the Court did not consider the Act to violate Article 36, for the Legislature, even in the exercise of the State's police power, cannot transgress specific constitutional inhibitions; hence, had the Act violated Article 36, it would not have been constitutional legislation.

   Then there are the cases of St. John's College v. State, 15 Md. 330, St. John's College v. Purnell, 23 Md. 629, Allegany County School v. Maffit, 22 Md. 121, St. Mary's Industrial School for Boys v. Brown,[***79] 45 Md. 310, 335, 336, Clark v. Maryland Institute, 87 Md. 643, Baltimore v. Keeley Institute, 81 Md. 106, Finan v. M. & C. C. of Cumberland, 154 Md. 563, and possibly others. We shall not analyze the holdings in each of these, for we think Judge Parke, for the dissenting members in Wheat, supra, correctly summarized them.  He stated:
 
"Thus appropriations by the General Assembly of public funds are customarily made and paid to various bodies and institutions throughout the state, which are privately owned and managed, and which are, in many instances, of sectarian origin and character.  It will be found, upon examination, that this employment of public funds has not been for a private purpose but for a public one.  It is upon this ground that this employment of public moneys has been sanctioned by the decisions of this court.  If an incidental or direct benefit result to the recipient, this resultant advantage becomes immaterial and negligible because of the paramount public and essential nature of the service rendered and of the further factor that the State has either not undertaken or not fully assumed the performance of the public service or function involved. [***80] [citation]. The validity of such grants, when so limited, is not affected by any sectarian circumstance.  [citation] Thus, grants to educational institutions which supply instruction and training in learning and mechanical, industrial, agricultural and others arts of which the [*689] State does not offer or undertake to afford universal service [there is no contention that Maryland has ever adopted universal public instruction at the college level] are freely made without reference to whether the recipient be denominational or otherwise.  [citation of Maryland cases and legislative grants] Similarly, the grants in aid of the hospitalization of patients for care and treatment in sickness, injury and disease, [citation] for chronic alcoholism, [citation] for homes for the aged and infirm, for orphans, for children, for the blind, for crippled children, for reformatories and for other purposes which are within the functions of the State as conducive to the welfare of its inhabitants, and pursuant to the mandate of the Declaration of Rights: 'That the Legislature ought to encourage the diffusion of knowledge and virtue, the extension of a judicious system of [***81]general education, the promotion of literature, the arts, sciences, agriculture, commerce and manufactures, and [**76] the general amelioration of the condition of the people.' Article 43.

   "In these grants the State advisedly makes no distinction between denominational and non-denominational institutions, nor has it limited its appropriations to race or color.  The grants so made for special public purposes find at once their justification and vindication in the promotion of the general welfare in those matters of public concern in respect of which the government had not theretofore undertaken completely to perform.  In short although paid to a private person, the money is appropriated and expended for a public use." (Emphasis supplied.)

   We also see some relationship to our present issue in the holdings in Baltzell v. Church Home, 110 Md. 244 (upholding a bequest to the Church Home & Infirmary of Baltimore City, at a time when the Constitution required legislative sanction for gifts, with certain exceptions, to any "religious sect, order or denomination.") and Mt. St. Mary's College v. Williams, 132 Md. 184, wherein the College was held not to come within the purview[***82] of being a religious sect, order or denomination. Both of these cases followed the lead of Speer v. Colbert, [*690] 24 App. Cas. (D. C.) 187, aff'd 200 U.S. 130, wherein Georgetown College, which was an educational institution under the control of a religious order, known as the Order of Jesus, was held not to be a sectarian institution or a religious sect, order or denomination. This last case has especial significance, for the law in the District of Columbia was then the same as in Maryland, and the opinion was one of the last of its then Chief Justice Alvey, who had formerly been a most distinguished Chief Judge of this Court and was thoroughly familiar with Maryland law. n17

n17 And, incidentally, he was also a member of the Constitutional Convention which adopted the Constitution of 1867.

   Thus it is seen that grants to educational institutions at a level where the state has not attempted to provide universal educational facilities for its citizens have never, in Maryland, been held to be impermissible[***83] under Article 36, even though the institutions may be under the control of a religious order. And we see no reason to hold otherwise now.  We, therefore, hold that none of the grants violates Article 36.

   This conclusion is bolstered by the fact that all of the states, except Maryland and Vermont, have explicit provisions prohibiting the appropriation of public money to schools controlled by religious organizations.  See Note Yale 50 L.J. 917 for 46 of them, and we are informed that the Constitutions of Alaska and Hawaii have explicit provisions also.  Had the people of Maryland desired to change its practice relative to such grants, it certainly would be likely that they would have made similar provisions after so many states had done so.

   Also, the Department of Health, Education and Welfare Misc. Doc. No. 28, The State and Non-Public Schools, pp. 16-17 filed as Plaintiffs' Ex. 113, cites Maryland as having no specific provisions against grants to religious schools.

   Decree affirmed in part, and reversed in part; and cause remanded for the entry of a decree in accordance with this opinion.  The costs to be paid 1/4 by the appellants, 1/4 by Western Maryland College, 1/4 by [***84]  St. Joseph College, and 1/4 by Notre Dame College.

DISSENTBY: HAMMOND (In Part)

 DISSENT: [*691] Hammond, J., filed the following opinion, dissenting in part, in which Horney and Marbury, JJ., concurred.

   I agree with my brethren of the majority that the individual appellants have standing and that the capital grants under review do not offend or violate Art. 15, Art. 23 or Art. 36 of the Maryland Declaration of Rights.  I cannot agree with their conclusions that the grants by the State of Maryland to Western Maryland College for buildings to be used as a science wing and [**77] a dining hall and to St. Joseph College and the College of Notre Dame of Maryland for science buildings, amount to the establishment of religion by the State contrary to the mandate of the first amendment to the Constitution of the United States, made binding on the states, under the decisions of the Supreme Court, by the fourteenth amendment.

   There can be no rational doubt from the evidence in the record and facts that properly can be judicially noted, of the following:

   (1) that the State of Maryland has for over a hundred and eighty years followed a general, systematic and non-discriminatory pattern of[***85] financial assistance to private institutions furnishing a higher secular education.  In 1784 the Legislature granted an annual sum of 1250 pounds for the use of St. Johns College (Ch. 37).  By Ch. 107 of the Laws of 1798 there was authorized an annual grant to Charlotte Hall School (which had been founded by the established church before the Revolution).  In Johns Hopkins Univ. v. Williams, 199 Md. 382, 399-400, Chief Judge Marbury, for the Court, listed capital grants by the State to institutions of higher learning in Maryland from 1904 to 1937. n1

   [*692] (2) that under both Maryland law and federal constitutional standards such grants are for a public use and purpose.  The [**78] Maryland Declaration of Rights provides in the opening sentence of Art. 43:

   "That the Legislature ought to encourage the diffusion of knowledge and virtue, the extension of a judicious [*693] system of general education, the promotion of literature, the arts, sciences, agriculture, commerce and manufactures, and the general melioration of the condition of the People."

n1 "Thus, in 1904, nearly fifty years ago, a public building loan in the amount of $1,625,000 was authorized by Chapter 228 of the Acts of that year. Of that amount $57,000 was for the purpose of construction and completion of buildings for the Maryland Agricultural College, which was the collegiate predecessor of the University of Maryland at College Park.  At that time, the Maryland Agricultural College was a semi-public institution, having both public and private stockholders, and one-half of its property was owned by the State, so that the appropriation to it is not, perhaps, a perfect legislative interpretation.  However, in the same act, $5,000 was given for the construction of buildings at Charlotte Hall School, a privately owned institution, $5,000 for construction of St. Mary's Academy, a similar institution, and $175,000 for the purchase of a lot of ground in Baltimore for the Maryland Institute, also a private institution, and for the construction of a building thereon.  This was followed in 1912 by Chapter 90 of that year, which provided for the issuance of $600,000 worth of the State's bonds, the proceeds of which were to be paid to the Johns Hopkins University for the erection of a technological school.  That act also included an annual appropriation for maintenance, and provided for scholarships, and it might possibly be argued that the scholarships constituted a consideration.  However, in 1922, by Chapter 464, a general construction loan of $1,750,000 provided for a gift from the proceeds of $20,000 to St. John's College for a new heating plant, and $30,000 to Washington College for and on account of its indebtedness.  In 1924, there were four acts passed.  Chapter 274 authorized a St. John's College loan in the amount of $110,000, the proceeds of which were to pay the present indebtedness of the college.  Chapter 280 created a state debt of $2,460,000, and of the proceeds $100,000 was given to St. John's College for equipment and necessary construction purposes.  By Chapter 366, the Western Maryland College loan of $125,000 was created, to be turned over to the Board of Trustees of Western Maryland College for the construction and equipment of a science building.  By Chapter 369, a state debt of $100,000 was authorized, proceeds to be given to the Board of Visitors and Governors of Washington College for equipment and construction.  In 1927, by Chapter 666, the Morgan College loan of $125,000 was created, the proceeds to be used for the construction and equipment of an industrial science building at Morgan College, then a private institution, but later acquired by the State.  In 1937, by Chapter 487, a general bond issue of $9,052,000 was authorized, of which $162,000 went for the construction of buildings at Bowie Normal School, and $25,000 for the construction of an improved water supply at the Maryland Training School for Boys.  In 1929, by Chapter 263, a state debt of $50,000 was created, to be used for the payment of the deficit in constructing and equipping the new buildings at Charlotte Hall School.  All of these recipients were private nonprofit corporations."

[***86]

   In his dissent in Board of Education v. Wheat, 174 Md. 314, 335-37, Judge Parke well summarized practice and law in a discussion, as to the correctness of which, there can be no real disagreement.  He said:
 
"Neither the payment of money by the State to a private person, whether corporate or otherwise, nor the nature and occupation of that person, is determinative of the purpose of the payment.  Thus appropriations by the General Assembly of public funds are customarily made and paid to various bodies and institutions throughout the state, which are privately owned and managed, and which are, in many instances, of sectarian origin and character.  It will be found, upon examination, that this employment of public funds has not been for a private purpose but for a public one.  It is upon this ground that this employment of public moneys has been sanctioned by the decisions of this court. If an incidental or direct benefit result to the recipient, this resultant advantage becomes immaterial and negligible because of the paramount public and essential nature of the service rendered and of the further factor that the State has either not undertaken or not fully assumed the[***87] performance of the public service or function involved.  Clark v. Maryland Institute, 87 Md. 643, 41 A. 126; Article 43 of Declaration of Rights.  The validity of such grants, when so limited, is not affected by any sectarian circumstance.  St. Mary's Industrial School for Boys v. Brown, 45 Md. 310, 335, 336. Thus, grants to educational institutions which supply instruction and training in learning and mechanical, industrial, agricultural and other arts of which the State does not offer or undertake to afford universal service are freely made without reference to whether the recipient be denominational or otherwise.  [*694] St. John's College v. State, 15 Md. 330; St. John's College v. Purnell, 23 Md. 629; Allegany County School v. Maffit, 22 Md. 121 * * *.

   * * *

   "In these grants the State advisedly makes no distinction between denominational and non-denominational institutions, nor has it limited its appropriations to race or color.  The grants so made for special public purposes find at once their justification and vindication in the promotion of the general welfare in those matters of public concern in respect of which the government had not theretofore[***88] undertaken completely to perform.  In short, although paid to a private person, the money is appropriated and expended for a public use."

   In Everson v. Board of Education, 330 U.S. 1, 7, 91 L. Ed. 711, 719, Justice Black, for the majority of the Court, found New Jersey constitutionally could tax A to reimburse B for the cost of transporting B's children to a church school.  He said:

   "It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U.S. 370 * * *."

   (3) the four donee colleges here involved all furnish a secular liberal arts education comparable to that furnished by other first rank liberal arts colleges in the United States and are accredited by standard accrediting agencies.  The courses taught in [**79] the four donee colleges are taught in substantially the same manner as at other similar colleges, for example, Johns Hopkins or Goucher, and are not used as vehicles for religious indoctrination; the text books are chosen by the individual teachers for their merit in supplying knowledge of the course and are[***89] not chosen for their religious orientation or because of the religion of the author and, in most instances, are the same texts that are used at other public and private colleges.  No doctrine, dogma or other teaching of any church enters into or interferes [*695] with the teaching of the secular subjects that are taught.  Graduates of the four donee colleges go on to take graduate studies and obtain degrees on an equal basis with graduates of other public and private colleges at universities offering the best post graduate courses, such as Johns Hopkins and Columbia. There are no religious requirements, oral or written, for admission of students to the donee colleges and, finally, the buildings to be erected with the funds granted will be places which will further the secular training offered by the colleges and not used for religious ceremonies or instruction.

   (4) the factors of (a) a rapidly expanding population of the State and the Country, (b) an increasing proportion of that part of the population of college age which attends college, and (c) an ever more complex society which requires ever more highly developed skills of more people in order to supply individuals competent[***90] to conduct the affairs of government and the private economy and furnish professional and scientific services, have strained college facilities, physical and human, to the limit, if not beyond, and will combine to require more and more such facilities.  Private colleges furnish a most significant help in offering the collegiate and graduate training now available. It is said that there are some 2000 private institutions of higher learning in the Country, of which 800 are church-related.  See 109 Cong. Rec. 18406 (daily ed. Oct. 11, 1963).  If they are to continue to do their part and bear the new load of increased enrollments, they must have new facilities and, since private colleges traditionally have financial problems which limit their expansion, much of the cost of new facilities must come from government, if it is to come at all.  The State of Maryland, as has been noted, has recognized this since early times and the federal government likewise has been aiding institutions of higher learning since the passage of the Morrill Land Grant Act of 1862.  Federal funds which go to colleges and universities, a number of them sectarian, for research contracts, loans and outright grants[***91] currently exceed two billion dollars a year.

   It is in this setting and with this background that the constitutionality of the grants made by the Maryland Legislature to Hood, Western Maryland, Notre Dame and St. Joseph Colleges should be considered and determined.  The decisive issue [*696] cannot be said to be simple, but it is narrow -- does State financial assistance to the secular educational facilities of a college which is sponsored or controlled by a church or a religious order and in which there is a religious atmosphere amount to the establishment of religion within the meaning of the words of the first amendment as those words have been construed recently by the Supreme Court.  The case of Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, which occasioned the dicta by Justice Black as to what the State cannot do lest it breach the "wall of separation" between church and state, which he repeated in McCollum v. Board of Education, 333 U.S. 203, 92 L. Ed. 649, and Torcaso v. Watkins, 367 U.S. 488, 6 L. Ed. 2d 982, and Chief Justice Warren quoted in McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, which both the appellants and the majority of[***92] the Court heavily stress and rely on, held that the furnishing of money by the state to reimburse parents for the cost of transporting their children to parochial schools did [**80] not violate the provisions of the first amendment that no law shall be made "respecting an establishment of religion." McCollum is not in point since it dealt with the action of a public school administration in relation to public sponsorship of religious exercise or instruction in the public schools.

   Torcaso, as I read it, held that the Maryland prerequisite of an oath of belief in God to becoming a notary public was invalid because it employed an essentially religious, although non-sectarian, means to achieve a proper secular goal -- worthy notaries public -- to which the means had no reasonable relation. McGowan held that Sunday Closing Laws as presently written and administered "bear no relationship to establishment of religion as those words are used in the Constitution of the United States," since they serve a proper secular purpose and the aid they give to religion is incidental.

   Following the decision of the Supreme Court in Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601,[***93] which held that the organized recital in New York public schools of the so-called Regent's prayer violated the establishment of religion clause, public frustration and resentment with the Court's views and interpretation of that clause increased and there was widespread criticism of decisions on the point, ranging from the reasoned [*697] and tempered suggestions of Professor Sutherland in Establishment According to Engel in 76 Harv. L. Rev. 25 that the reasoning and result of Engel were unsound to ill-advised and intemperate comments, often based on a misunderstanding of the basis and effect of the decisions.  In deciding Abington School Dist. v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, which held that the reading, without comment, at the opening of each school day, of verses from the Bible and recitation in unison of the Lord's prayer, violated the establishment clause, the Court, in the traditional way of courts, did not acknowledge error and adhered to its views but was particularly careful in its opinion to in effect answer criticism by specifying just what had been held before and was being held then, and to say, with words chosen even more carefully than usual, [***94] just what the law was.  For this reason I ascribe great weight to Schempp as a guide to what will and what will not offend the establishment rule the Court has drawn.

   Justice Clark, for the Court, pointed out that religion consistently has been identified with our history and government and that religious freedom is imbedded in our public and private life.  He then reviewed the prior cases and their holdings and dicta, and said:
 
"As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof.  The test may be stated as follows: what are the purpose and the primary effect of the enactment?  If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.  That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson [***95]  v. Board of Education, supra; McGowan v. Maryland, supra, at 442." (Emphasis supplied.)

   [*698] Murray, Etc. v. Comptroller, 241 Md. 383, 398, upheld the validity of tax exemptions (equated to direct grants which indubitably benefited the recipient religious group) to religious organizations and in its opinion by Judge Oppenheimer synopsized the Supreme Court decisions as holding that:
 
"If the primary purpose of the state action is to promote religion, that action is in violation of the Amendment, but if a [**81] statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether the state could reasonably have attained the secular end by means which do not further the promotion of religion."

   I think that the four grants under consideration were made pursuant to long-established practice to further a secular public purpose and that any aid or benefit flowing from them to religion would be slight, vague and purely incidental. The grants will supply added facilities which will help the secular educational activities of religious groups and will aid students who now and hereafter attend the institutions and[***96] the people of the State of Maryland by increasing the number of those who can receive a college education and the quality of the education that the increased number will receive.  The grants will not aid religion or a religious group; those who attend college are or are not at that age religiously inclined and if they are, have, in almost all cases, become attached to a particular faith.  Students are not proselytized at any of the four donee colleges.  It will not aid religion or the Catholic Church for more students, mostly Catholic, to be able to attend St. Joseph or Notre Dame, or the Methodist Church for more students, largely Methodists, to attend Western Maryland College (and in both cases to receive perhaps a better education because of the grants) to a degree greater than it will society in general.  The benefit to religion or a religious sect is as small and as incidental as was the benefit to religion and most church groups in McGowan and to the parochial schools in Everson -- more students were enabled to attend parochial schools by reason of the grants approved in Everson.  If it be delicately suggested that perhaps Everson might not be decided in 1966 [***97]or thereafter as it was in 1947, [*699] there are at least two answers.  One, the suggestion makes it only one of a relatively large number of cases and judges of a rank below the Supreme Court should not indulge in judicial speculation as to what that Court will do.  Two, Everson has not yet been overruled and the Supreme Court in 365 U.S. 299, 5 L. Ed. 2d 688, dismissed the appeal in Snyder v. Town of Newton (Conn.), 161 A. 2d 770 (which upheld a Connecticut law authorizing transportation by a town of children to a parochial school) "for want of a substantial federal question," and Everson was cited with approval in Schempp.

   There is no reasonable alternative to State aid to private institutions of higher learning. Theoretically, the State might enlarge State colleges enough to care for all actual and potential students or create new public colleges to do so.  Tremendous sums would be required in either case and, what is more important, available physical facilities and faculty and administrative staffs could not be produced for years.  In the Note, Constitutionality of Federal Financial Aid to Church-Related Colleges, 77 Harv. L. Rev. 1353, 1358, the author[***98] points out that of the 2,000 institutions of higher learning in the United States 800 are church-related, and says:
 
"To exclude these 800 institutions of higher learning from federal aid would seriously hamper the effort to increase enrollment capacity to the point where colleges will be able to handle the expected demand of 1970 and distort the present educational allocation of students between denominational and nondenominational schools.  * * * Such pragmatic considerations would be irrelevant if the command of the Constitution were clear; the remedy would then be a constitutional amendment.  However, the lack of an effective alternative should be highly relevant when a plausible constitutional defense can be made and where, in an area of church-state overlap, criteria can be formulated which minimize governmental intrusion into religious concerns without paralyzing governmental attempts to cope with urgent national problems."
 
[*700] [**82] On the question of constitutionality, the author, at pp. 1356-57, says:
 
"On the other hand, the opinions of Justices Clark and Brennan in Schempp indicate that federal aid to education would be considered[***99] constitutional.  For example, Justice Clark enunciated the test of constitutionality to be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Similarly Justice Brennan would draw the line at legislation employing the organs of government for essentially religious purposes or using essentially religious means to serve governmental ends where secular means would suffice.  Under either test, the act would appear to be free from constitutional flaws"
 
 and indicates his view that state aid to church-related colleges is constitutional.

   As did Judge Duckett below, I think the grants should be declared valid. Early federal and state cases which, in addition to authorities already cited, support this view include, in Maryland: Baltzell v. Church Home, 110 Md. 244 (the home was affiliated with and supported and controlled by the Episcopal Church, and the Court found a gift to it needed no legislative sanction as required for a gift to any "religious sect, order or denomination"); Mt. St. Mary's v. Williams, 132 Md. 184 (holding the Catholic college not to be a religious sect, order or denomination).  See also St. John's College [***100] v. State, 15 Md. 330 (St. John's was then closely related to St. Anne's Church in Annapolis); St. Mary's Indust. School v. Brown, 45 Md. 310; Finan v. M. & C. C. of Cumberland, 154 Md. 563 (part of proceeds of a bond issue went to Sisters of Charity of the Catholic Church for their hospital); and Board of Education v. Wheat, 174 Md. 314, referred to earlier.

   Federal cases include Colbert v. Speer, 24 App. D. C. 187, aff'd Speer v. Colbert, 200 U.S. 130, 50 L. Ed. 403 (Georgetown College, run by an Order (Society of Jesus) of the Catholic Church, was held not to be a sectarian institution or a religious sect, order or denomination); Bradfield v. Roberts, 175 U.S. 291, 44 L. Ed. 168 (Commissioners of the District of Columbia [*701]paid a Catholic hospital -- run by the order which runs St. Joseph College -- out of funds appropriated by Congress -- so much per poor patient. It was held that neither the appropriation nor the payments violated the first amendment); and Cochran v. Board of Education, 281 U.S. 370, 74 L. Ed. 913 (it was held constitutional for the State to furnish free textbooks to all students, including those used by students in parochial[***101] schools). 

LOKEMAN v. WARDEN OF MARYLAND PENITENTIARY 
App. No. 117, September Term, 1965
 
Court of Appeals of Maryland
 
242 Md. 721; 219 A.2d 15; 1966 Md. LEXIS 687

 April  29, 1966, Decided

   PRIOR HISTORY: [***1]  
Application for leave to appeal from the Circuit Court for  Anne Arundel  County; Childs, J.

DISPOSITION: Application denied.

CORE TERMS:  sentence, leave to appeal, memorandum, sentenced, serving, escaped

JUDGES: Prescott, C. J., and Hammond, Horney, Marbury and Barnes, JJ.

OPINIONBY: PER CURIAM

OPINION: [*722] [**15] Miles C. Lokeman seeks leave to appeal from the denial of his application for post conviction relief from his three year sentence for the crime of escape.  While serving a thirty year sentence imposed on October 25, 1961, the petitioner escaped from his confinement in the Maryland House of Correction.  On his return, he received institutional punishment which included forfeiture of 121 days of accumulated good conduct time.  Petitioner was indicted for the crime of escape.  On a guilty plea, he was convicted by Judge Evans in the Circuit Court for Anne Arundel County and sentenced to [***2]three years, the sentence to run consecutively with sentences he was presently serving. He was represented by counsel at this trial.  He did not appeal from this conviction.

   In this application for relief he contends (1) that his escape was no escape at all because, although he had been sentenced to serve 30 years in the Maryland Penitentiary, when he escaped he was being confined in the Maryland House of Correction, (2) that because he received institutional punishment, his conviction and sentence for escape constitutes double jeopardy, (3) that his indictment was invalid under Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965).

   An evidentiary hearing was held on December 3, 1965; Judge Childs denied relief in a memorandum and order filed December 6, 1965.  The application for leave to appeal is denied for the reasons stated in Judge Childs' memorandum. While Judge Childs did not expressly answer the petitioner's first contention, he did find that the petitioner was legally transferred from the Maryland Penitentiary to the House of Correction.  Such transfer was authorized by Code (1965 Supp.), Art. 27, § 690 (a).

   Application denied. 

GRAHAM et al. v. JENKINS 
No. 290, September Term, 1965
 
Court of Appeals of Maryland
 
242 Md. 711; 218 A.2d 678; 1966 Md. LEXIS 678

 April  25, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Appeal dismissed; appellants to pay the costs.

COUNSEL: Andrew Jackson Graham, with whom were Julian S. Brewer, Jr., and Harry I. Kaplan on the brief, for the appellants.

   No brief and no appearance for the appellee.

JUDGES: Prescott, C. J., and Hammond, Marbury, Barnes and McWilliams, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned.

OPINIONBY: PER CURIAM

OPINION: [*711] [**678] Appellants were sued by the appellee in an action claiming damages for an alleged libel.  They demurred to the declaration. Appellee requested an immediate hearing on the demurrer, [***2] and it was twice assigned for such a hearing, but on both occasions it was postponed at the request of appellants' counsel.  Before hearing on the demurrer, the appellants filed notices to take the depositions of 17 persons and 13 orders to issue writs of subpoena [*712] duces tecum.  At the request of one of the prospective deponents, Judge Evans signed an order directing that "no depositions be taken for use in the * * * case until after the defendants' demurrer shall have been ruled upon by this court [the trial court]." Appellants appealed, and no brief was filed by the appellee.

   Apart from the fact that the order seems to be no more than a proper exercise of the authority granted the trial judge by Maryland Rule 405 a 3, it is an interlocutory order from which no immediate appeal will lie.

   Appeal dismissed; appellants to pay the costs. 

W.M.A. TRANSIT COMPANY v. PARK LAWN LOUNGE, INC., ETC. 
No. 141, September Term, 1965
 
Court of Appeals of Maryland
 
241 Md. 356; 216 A.2d 738; 1966 Md. LEXIS 724

 February  10, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed, with costs, and judgment entered for the appellant against the appellee as of February 8, 1965, in the amount of four hundred sixty-four dollars.

CORE TERMS:  buses, bingo, dollars, hire, bus, sixty-four, manager, hired, lady, doing business, vice-president, intending, arrange, night, owe, ran

COUNSEL: Arthur A. Anderson, Jr., for appellant.

   No brief and no appearance for appellee.

JUDGES: Hammond, Marbury, Oppenheimer, [***2] Barnes and McWilliams, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*357] [**739] The course this case has taken has required the appellant to raise much ado about very little.  Suit was filed below by W. M. A. Transit Company (WMA) to recover from Park Lawn Lounge, Inc. (Park Lawn), doing business as Dairy Land Park Lounge, Inc. (Dairy Land) the agreed price for charter buses hired to bring lady bingo players from Washington and way points to the Park Lawn at Jessup in Anne Arundel County, in order to benefit the Women's Auxiliary of the North Arundel Hospital Association.

   [*358] It appears from the record that John Roberts, Jr., is president of Dairy Land and that George O. Gillis is its manager, and that Gillis is vice-president of Park Lawn, the capital stock of which is in the name of Mrs. Roberts.  It was stipulated that the traders and liquor licenses for the premises known as Dairy Land were applied for by, and issued to, "Park Lawn Lounge, Inc., trading as Dairy Land Park Lounge," that Gillis was at times here pertinent "an officer and/or an authorized agent of Park Lawn * * *," and that Park Lawn leases the premises known as Dairy[***3] Land from John F. Roberts, Jr. and Mary E. Roberts, his wife.  Gillis' testimony was that he was manager of Dairy Land and vice-president of Park Lawn and that he needed no special specific authorization to bind these entities.

   It appears also that Roberts had been kind and generous to the Women's Auxiliary in its efforts to raise money for the Hospital.  He had turned over a hall at Dairy Land to the Auxiliary every Thursday night for bingo, he bought the bingo equipment, he had on occasion supplied spaghetti dinners for the ladies, and had told Gillis to arrange to have handbills and posters printed advertising the Thursday night bingo games and to arrange for the hire of certain buses that were to bring the bingo patrons to Dairy Land, including those of the appellant.

   WMA buses ran to Dairy Land from Washington on the tenth, seventeenth, twenty-fourth and thirty-first of January, 1963, and the total of the charges for their hire was four hundred sixty-four dollars. Park Lawn refused to pay the bill rendered in this amount (apparently from Mr. Roberts' remarks from the stand for what he considered to be failure of consideration in that the Transit Company "* * * sent empty buses[***4] over for the Ladies' Auxiliary with not one passenger on them") and WMA sued Park Lawn; its formal defense was that Gillis had hired the buses on behalf of the Women's Auxiliary and not on behalf of Park Lawn and that only the Auxiliary was liable for the bill.

   Judge Duckett at the conclusion of the testimony said: "Mr. Roberts has been so kind to this North Anne Arundel Hospital, I think I'll have to make the W. M. & A. contribute something [*359] to it, too, so I'm going to split the claim and give judgment in favor of the plaintiff for one-half of the claim, two hundred and thirty-two dollars." When counsel for the bus company pointed out that this vicarious judicial charitable contribution was improper because "these people either owe W. M. A. four hundred and sixty-four dollars or they don't owe them a nickel," Judge Duckett accepted the second of the alternatives and announced "verdict for the defendant," without disclosing any basis for his decision.

   We think the testimony compels a finding that Park Lawn, doing business as Dairy Land, ordered the buses intending to pay [**740] for them, that WMA understood this and accepted the order on the credit of Dairy Land alone, [***5]and that Park Lawn is therefore liable for the agreed cost of their hire. It is undisputed that Gillis called the bus company's office and that in response, its general passenger agent, Chew, went to Dairy Land and talked to Gillis on December 31, 1962.  Chew said flatly that Gillis identified himself as manager of Dairy Land in his office on the premises of Dairy Land, that Gillis was told the cost of the buses and then requested WMA "* * * to operate two routes from Washington, D. C., to start on January 10, 1963," and told Chew to send the bills to Dairy Land.  "No mention was made of any other organization [than Dairy Land]." Chew said the first time he had heard of the Women's Auxiliary in connection with the matter was when some months after the bus company's bill was rendered to Park Lawn he received a call from a Mrs. Ellison (who was then president of the Auxiliary), asking if something could be taken off the bill because the buses had been used for the benefit of the Auxiliary. Although Gillis testified that he was acting "* * * as the intermediary for the Hospital Committee," when asked if he had revealed to Mr. Chew that he was acting for the Hospital Association he[***6] said: "* * * vaguely, I don't remember * * * the exact words.  * * * I don't know whether I discussed it point blank with Mr. Chew or not."

   Both Mrs. Ellison, the president of the Auxiliary when the buses ran, and Mrs. Waters who was president when the buses were ordered, testified that their organization did not authorize Gillis to act for them or pledge their credit, and had no knowledge [*360] that he had ever done so.  The only buses the Auxiliary had paid for were those of the B. and A. Bus Company which the Auxiliary ladies had themselves ordered.  Mrs. Ellison testified that she first became aware of the WMA bill in February of 1963 when "Mr. Roberts * * * the owner of Dairy Land" showed it to her and asked her to call Chew and see if he would take something off the bill.  Chew told her "* * * he couldn't take anything off the bill," and then, she said, "I told Mr. Roberts and Mr. Roberts said he would take care of it [the bill]." Mr. Roberts never indicated to her that "* * * this was an obligation of the Women's Auxiliary.

   Mr. Roberts did not deny Mrs. Ellison's testimony that he had said he would take care of the bill.

   The trial court's judgment must be set aside[***7] as clearly erroneous on the evidence.  Md. Rule 886.

   Judgment reversed, with costs, and judgment entered for the appellant against the appellee as of February 8, 1965, in the amount of four hundred sixty-four dollars. 

SAVONIS, et ux v. BURKE, et al. 
No. 80, September Term, 1965
 
Court of Appeals of Maryland
 
241 Md. 316; 216 A.2d 521; 1966 Md. LEXIS 717

 February  7, 1966, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, appellants to pay the costs.

CORE TERMS:  plat, estoppel, equitable estoppel, strip of land, asserting, exclusive title, recorded, silence, garage, actual notice, doctrine of equitable estoppel, parking area, right-of-way, disclaimer, projection, estopped, abutting, misled, deed, encouragement, reasonable diligence, equitably estopped, party claiming, technical rule, integral part, fee simple, unconscionable, inequitable, waterfront, interior

COUNSEL: Paul E. Savonis, in proper person, with whom was Vesta Yoder Savonis, in proper person, on the brief, for appellants.

   No brief and no appearance for appellees.

JUDGES: Hammond, Horney, Oppenheimer, Barnes and McWilliams, JJ.  Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*317] [**521] This case involves a controversy between two lot owners of waterfront[***3] property in Sunrise Beach, Anne Arundel County. The [**522] lower court dismissed the complaint at the close of the plaintiffs' evidence.  This appeal followed.

   The plaintiffs below and appellants in this Court, Paul E. Savonis and wife (the Savonises), acquired the fee simple interest in a waterfront lot on the south side of the Severn River, known as Lot 385 as described in Plat 1, Section 2 -- Sunrise Beach, 2nd District, Anne Arundel County.  This plat is duly recorded among the land records of Anne Arundel County, and deeds for the lots shown on the plat, including the deed by which the Savonises acquired Lot 385, described the lots by reference to the recorded plat and to the respective lot numbers on the plat. Lot 385 is approximately one-quarter acre in area and is [*318] served by a forty foot wide access road, Nancey (Nancy) Lane, which terminates at the Savonis property.  For a better understanding of the plat, the reporter is instructed to include as an appendix to this opinion the relevant portion of the plat showing Lots 385 and 386, as well as Lots 387 and 388, and portions of Lot 384 and Nancey Lane.

   The defendants below, and appellees in this Court, Joseph[***4] L. Burke and wife (the Burkes), were the former fee simple owners of Lot 386, Sunrise Beach, immediately adjoining and to the east of Lot 385.  Lot 386 is an inverted "L" shaped tract with a projection approximately twenty-six feet in width immediately to the south of the Savonis property, extending fifty-four feet to the west, abutting on Nancey Lane and affording Lot 386 with access to that road.  This projection is clearly shown on the plat to be an integral part of Lot 386.  The Savonises claim, however, that this strip should be declared an alley intended for dedication for a public use.

   The Savonises maintain that they were interested in purchasing Lot 385 but were concerned that a house, garage, driveway and parking area could not be placed in position on the property to obtain the full "desirable advantages of the scenic view" because of the nature of the tract's access to Nancey Lane. The Burkes indicated to them that the strip of land to the south of the Savonis property was intended for the common use of abutting landowners.  Mr. Savonis, an attorney by profession, made an independent study of the plat and concluded, contrary to the clear and unambiguous import of that[***5] document, that the strip was indeed a common right-of-way and not an integral part of Lot 386.

   The Savonises purchased Lot 385 in March of 1955, erected a house and built a garage and driveway fronting on the projection of the Burke property.  The abutting strip of land was shared in common from 1955 until the fall of 1961 when there was a falling out and the Burkes asserted their exclusive title to the abutting land.

   We are asked to hold that the Burkes are equitably estopped from asserting their claims in this strip of land because of their disclaimer of exclusive title upon which the Savonises claim they relied to their injury.  After institution of this suit, [*319] but before the hearing, the Burkes conveyed Lot 386 to Ruth Denn.  Miss Denn intervened as a defendant in this action since she would be bound, as being in privity with the Burkes to the legal consequences of an estoppel if the Savonises could establish its application. Jaworski v. Jaworski, 202 Md. 1, 7-8, 95 A. 2d 95, 98 (1953).

   Pomeroy, in his Equity Jurisprudence (5th ed., vol. 3), § 804, page 189 defines equitable estoppel as follows:
 
"Equitable estoppel is the effect of the voluntary[***6] conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed, either of property, or contract or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy."
 
[**523] We have adopted and have continually applied this definition of equitable estoppel. Bayshore Industries v. Ziats, 232 Md. 167, 175, 192 A. 2d 487, 492 (1963); Webb v. Johnson, 195 Md. 587, 595, 74 A. 2d 7, 10 (1950); Crane Co. v. Onley, 194 Md. 43, 50, 69 A. 2d 903, 906 (1949) and the prior cases cited therein.

   Equitable estoppel operates as a technical rule of law to prevent a party from asserting his rights where it would be inequitable and unconscionable to assert those rights.  Fitch v. Double "U" Sales Corp., 212 Md. 324, 339, 129 A. 2d 93, 101 (1957); Wright v. Wagner, 182 Md. 483, 492, 34 A. 2d 441, 446 (1943); Rody v. Doyle, 181 Md. 195, 29 A. 2d 290 (1942). It is essential for the application of the doctrine of[***7] equitable estoppel that the party claiming the benefit of the estoppel must have been misled to his injury and changed his position for the worse, having believed and relied on the representations of the party sought to be estopped. Food Fair v. Blumberg, 234 Md. 521, 532, 200 A. 2d 166, 172 (1964); Solomon's Marina v. Rogers, 221 Md. 194, 198, 156 A. 2d 432, 434-435 (1959); Alvey v. Alvey, 220 Md. 571, 576, 155 A. 2d 491, 493 (1959); Liberty Mut. Ins. Co. v. American Auto Ins. Co., 220 Md. 497, 501, [*320] 154 A. 2d 826, 828 (1959); Hamlin Mach. Co. v. Holtite Mfg. Co., 197 Md. 148, 159, 78 A. 2d 450, 455 (1951); Brenner v. Plitt, 182 Md. 348, 364, 34 A. 2d 853, 861 (1943); Rodgers v. John, 131 Md. 455, 102 Atl. 549 (1917). Furthermore, one claiming the benefit of an equitable estoppel must have acted in "good faith and with reasonable diligence." Rupp, Trustee v. Johnston Co., 226 Md. 181, 190, 172 A. 2d 875, 880 (1961); Johnson Lumber Co. v. Magruder, 218 Md. 440, 448, 147 A. 2d 208, 212 (1958).

   Klein v. Dove, 205 Md. 285, 107 A. 2d 82 (1954) is similar to this present case in that the plaintiffs there barred access to a right-of-way[***8] running over their property, clearly set out on that plat, and designed to give interior lot owners access to a so-called "lake-front area." The plaintiffs claimed that the way had been blocked for a number of years, not amounting to the prescriptive period, and interior lot owners were estopped by their acquiescence and silence to deny that the way had been abandoned.  We held that mere non-user of a right-of-way is not necessarily an abandonment of it.  The plaintiffs were charged with knowledge and took possession with knowledge that the strip of land did not pass to them under their deed; and mere silence as to rights of record does not create an estoppel.

   The Savonises rely on the case of Machovec v. Shipley, 171 Md. 339, 189 Atl. 223 (1937) for authority that the doctrine of equitable estoppel should be applied against the Burkes.  In Machovec we indicated that where the condition of title is known to both parties, or where one party, claiming to have been influenced by the conduct of another, had a convenient means of ascertaining the true state of the title, then an equitable estoppel could not be set up.  Mere silence, moreover, would not work an estoppel where there[***9] was no duty to speak.  Where a party, however, who is interested in the transaction disclaims title, and this representation is relied on by another who is ignorant of the true state of the title, even though it may be a matter of public record, then equitable estoppel may apply.  Judge Shehan, writing for this Court in Machovec, said:
 
"The law is well stated in the case of Knouff v. Thompson, 16 Pa. 357, 364, viz: 'The party who has placed his written title on record has given the notice which [*321] every person is bound to know and respect.  The law does not require him to go further.  But if he speaks or acts, it must be consistent with his recorded title.  The law distinguishes between silence and encouragement. Whilst silence may be innocent and lawful, to encourage and mislead another into expenditures on a bad or doubtful title would be a positive fraud, that should bar and estop the party, the [**524] author of that encouragement and deception, from disturbing the title of the person whom he misled, by any claim of title in himself.' And this has the support of decisions in a number of states.  Olden v. Hendrick, 100 Md. (sic. Mo.) 533, 13 S. [***10] W. 821; 21 Corpus Juris, 1131." (Pages 345-346 of 171 Md., pages 225-226 of 189 Atl.).

   The Savonises can not avail themselves of the doctrine enunciated in Machovec .  They did not rely on the disclaimer of the Burkes which was inconsistent with the recorded title.  On the contrary, Mr. Savonis actually studied the plat and is bound by the actual notice which even a casual perusal of that document would clearly reveal.  Any injury, moreover, which the Savonises suffered by locating their garage and parking area with access to the disputed strip of land is at most minimal.  The garage and parking area are so placed as to give access to Nancey Lane with little if any inconvenience.

   Judgment affirmed, appellants to pay the costs.
 
[*322] Appendix: Portion of Plat 1, Section 2 -- Sunrise Beach, Anne Arundel County, showing Lots 385 and 386, as well as Lots 387 and 388, and portions of Lot 384 and Nancey Lane.

   [SEE ILLUSTRATION IN ORIGINAL] 

HUGHES, et al. v. MARYLAND COMMITTEE FOR FAIRREPRESENTATION, et al. 
No. 487, September Term, 1965
 
Court of Appeals of Maryland
 
241 Md. 471; 217 A.2d 273; 1966 Md. LEXIS 737

 January  11, 1966, Decided  
 March  2, 1966, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: The majority previously directed a per curiam order sustaining the order of the trial court.  We add to that order that the trial court retain jurisdiction at least until after the 1966 General Elections; and that appellants pay the costs.

CORE TERMS:  senator, apportionment, seat, populous, political subdivision, elect, delegate, local legislation, voter, mathematical, equal-population, allocated, diluted, constitutionally permissible, reapportionment, variance, membership, disparity, effective, apportioning, apportioned, recommended, submerged, reynolds, divergence, state policy, electorate, senatorial, elected, special session

COUNSEL: Lawrence F. Rodowsky and George W. Liebmann, with whom were[***2] Frank, Bernstein, Conaway, Gump & Kaufman on the brief, for appellants.

   Amicus curiae brief filed by John Norton Johnson.  Herbert M. Brune on the brief.

   Thomas B. Finan, Attorney General, with whom was Robert F. Sweeney, Assistant Attorney General, on the brief, for Attorney General of Maryland, part of appellees; Alfred L. Scanlan, with whom were Johnson Bowie, John B. Wright, Francis X. Gallagher and Shea & Gardner on the brief, for other appellees.

JUDGES: The entire Court.  Prescott, C. J., delivered the opinion of the Court. Horney and Barnes, JJ., dissent.  Dissenting opinion by Barnes, J., in which Horney, J., concurs, at page 491, infra.

OPINIONBY: PRESCOTT

OPINION:  [**274] [*474] PRESCOTT, C.J., delivered the opinion of the Court.  HORNEY and BARNES, JJ., dissent.  Dissenting opinion by BARNES, J., in which HORNE, J., concurs, at page 491, infra.

   The importance of the result of our per curiam order herein, where a majority of the Court affirmed the holdings of the trial judge, would justify an opinion of very considerable length setting forth the reasons therefor.  However, such a couse is not necessary or desirable, and will not be[***3] followed. Although the subject of apportionment of State Legislatures has seemingly been the subject of more legal opinions n1 and law review articles n2 than any other single legal theme since the decision in [*475] Baker v. Carr, 369 U.S. 186 (1962) wherein the Supreme Court decided to place the apportionment of State Legislatures under the suprevision of the Federal (as well as the State) Courts, the Supreme Court, which is the ultimate interpreter of the United States Constitution, has, itself, spoken in plain terms on the question presently involved.  Hence, if we analyze the great number of state and lower federal court decisions, as well as the numerous law review articles, it would simply result in useless repetition and consumption of space, for all of them aim at trying to discover what the Supreme Court has said, and probably will say, on the subject.  The answers to the questions herein involved are contained in the Supreme Court's opinions in te appeal in this case, Maryland Committee, etc., v. Tawes, 377 U.S. 656, and Reynolds v. Sims, 377 U.S. 533. 

n1.  Within nine months after Baker v. Carr, infra, litigation relative to apportionment had been begun in some 34 States. 

[***4] 

n2.  They run anywhere from "Courts in the Thicket," Hanson, 12 Amer.U.L.Rev. 51, to "Political Thickets and Crazy Quilts: etc.," McKay, 61 Mich.L.Rev. 645.

   Two questions are presented: (1), Does Senate Bill 8 of the Acts of Assembly, Extraordinary Session 1965, constitutionally apportion the membership of the State Senate; and (2), If it does not, is Senate Bill 5 free of constitutional infirmity, because it apportions the membership of both the State Senate and the House of Delegates in a constitutionally permissible manner?

   We set forth here a bare outline of the history of the case, because of detailed account thereof may be found in our two previous opinions (228 Md. 412 and 229 Md. 406) and the [**275] opinion of the Supreme Court on appeal thereto (377 U.S. 656). (There is a slight typographical error on page 663 where the opinion states this Court split 5-to-3 on its decision.  The split was 4-to-3.)

   The case originated in 1960 by a bill of complaint filed in the Circuit Court for Anne Arundel County.  The plaintiffs alleged that the apportionment of the General Assembly, pursuant[***5] to Article III, §§ 2 and 5, of the Maryland Constitution, discriminated against them as inhabitants and voters in the more populous areas of the State, by according them substantially less representation than that given to persons residing and voting in less populous areas.  They requested declaratory and injunctive relief.  In February, 1961, the trial court sustained defendants' demurrers and dismissed the bill.  In April of 1962, we reversed (splitting 5-to-2) and remanded.  (228 Md. 412.) On May 24, 1962, the trial court held that the House of Delegates was unconstitutionally [*476] apportioned, but made no finding with reference to the Senate.  The Legislature, called into special session by the Governor in May, 1962, enacted stop-gap legislation allocating 19 additoinal seats in the House of Delegates to the more populous areas of the State.

   As the trial court made no ruling with reference to the apportionment of the Senate, the plaintiffs appealed to this Court On June 8, 1962, we remanded for a decision on the question.  The trial judge concluded that the Senate was constitutionally constituted, and the plaintiffs, again, appealed.  This Court, splitting 4-to-3, affirmed. [***6] The plaintiffs appealed to the Supreme Court, where the holding was reversed, the Supreme Court holding tht the apportionment of both the House of Delegates and the Senate was invidiously discriminatory and, therefore, unconstitutional and illegal.  In compliance with the mandate from the Supreme Court, we remanded the case to the trial court with directions to retain jurisdiction and to take affirmative action upon application of any of the parties in the event that the Legislature failed to enact a constitutionally valid apportionment scheme prior to the 1966 primary elections.

   At its regular 1965 session, the Legislature passed no reapportionment legislation.  As a result thereof, the Governor convened a special session for the purpose of complying with the Supreme Court's mandate that such legislation must be enacted.  Senate Bills 5 and 8 resulted.  Senate Bill 8 contains an unusual provision stating that if it "be declared valid by the Court of Appeals of Maryland," then Senate Bill 5 "shall not become effective." The purpose of this provision is, of course, to obtain for the less populous areas the more favorable representation afforded them by Senate Bill 8, if constitutionally [***7]permissible. The Governor signed both Bills, after publicly announcing that he thought Senate Bill 8 unconstitutional, but that the Legislature was entitled to have the Court of Appeals pass upon that question first, if the Legislature so desired.  This is the posture of the case as it reaches us at this time.

   As previously indicated, we find it unnecessary, under the facts here presented, to set forth, elaborately, the applicable law.  Although recognizin the impracticability of apportioning on the basis of an exact mathematical formula, in both the appeal [*477] in this case and in Sims, supra, the Supreme Court held, flately, that each body of a bicameral state legislature must be apportioned primarily on a population consideration.  In addition to this holding, the opinion in Sims, obligingly, went on to advise as to what probably would, and what probably would not, be constitutionally permissible under certain named circumstances.  We quote pertinent excerpts therefrom:

   "* * * Wesberry clearly established that the fundamental principle of representative government in this country is [**276] one of equal representation for equal numbers f people, [***8] without regard to race, sex, economic status, or place of residence within a State."

   "Legislators represent people, not trees of acres. Legislators are elected by voters, not farms or cities or economic interests."

   "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, * * *."

   "And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing thta certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once.  And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by[***9] two, five, or 10, while th evotes of persons in another area would be counted only at face value, [*478] could be constitutionally sustainable.  Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical."

   "While the result of a court decision in a state legislative apportionment controversy may be to require the restructuring of the geographical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State's citizens which constitutes an impermissible impairment of their constitutionally protected right to vote."

   "But the basic principle of representaive government remains,and must remain, unchanged - the weight of a citizen's vote cannot be made to depend on where he lives.  Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies."

   "Logically, in a sociey ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State[***10] could elect a majority of that State's legislators.  To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result."

   "We are told that the matter of apportioning representation in a stae legislature is a complex and many-faceted one.  We are advised that States can rationally consider factors other than population in apportioning legislative representation.  We are admonished not to restrict the power of the States to impose [*479] differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires.  Our answer is this: a denial of constitutionally protected rights demands judicial [**277] protection; our oath and our office require no less of us."

   I

   Senate Bill 8 provides for a 53-member Senate, to be elected from 29 senatorial districts (with a further provision relative to "subdistricts," not necessary to be considered in detail).  One seat is allocated to each of 19 counties (Maryland, of course, has but[***11] 23), and the balance are allocated to the other (more populous) counties and the Legislative Districts of Baltimore City.  It takes no more than a cursory examination of the Bill to see that its underlying scheme, glaringly, falls far short of the requisites laid down by the Supreme Court to render the provisions of a state apportionment measure constitutionally permissible.

   Under the Bill, each district or subdistrict would elect at least 1 Senator. It will be unnecessary to state all of the disparities in population ratios in all of the districts and subdistricts; some of them follow.  Kent and Calvert Counties, each with a population of about 15,000 souls (population will sometimes be referred to herein in even thousands), are given 1 senator apiece, while 17 other counties, with larger populations, some with populations as high as 84,000 (Allegany) and 91,000 (Washtinton), are also only allocated 1 senator each. n3 A simple arithmetical calculation hsows the disparity in individual voting effectiveness to range to a ratio of just about 6 to 1.  Baltimore City, with a population of 939,000 is allotted 12 senantors; Baltimore County, with a population of 492,000, 7 senators; [***12] and Prince George's County, with a population of 357,000, 6 senators. Taking 15,000, the population of Calvert and Kent Counties, as a basis for calculation, it is seen that the votes of [*480]the people of Baltimore City, when compared with the votes of the people of those counties, ae debased or diluted more than 5 to 1; the votes of the people of Baltimore County by over 4 I/2 1; and the votes of the inhabitants of Prince George's County nearly 4 to 1.  

n3 The populations of the counties and Baltimore City are stated in the appendices 1, 2 and 3 filed herewith.  See also Appendix A and Appendix B on pp. 429 and 430 of 229 Md. These appendices show in detail the various disparities.

   Additionally, it should be noted that under the scheme of the Bill some 37% of the State's population would elect a majority of 27 senators. n3a Also, it is significant that very few of the 29 Districts would involve a variance of less then 15% (a figure that some courts consider to be about the top variance allowable, [***13] except under very unusual circumstances, or necessary, in a few instances, to round off an otherwise rational state apportionment scheme), although some of the variances would range to about 74%.  

n3a Appendix 3 shows that Somerset, Kent, Caroline, Queen Anne's, Talbot, Dorchester, Wicomico, Worcester, Cecil, Calvert, St. Mary's, Charles, Howard, Carroll and Garrett would each elect 1 Senator for a total of 15; Montgomery and Prince George's 12 for a total of 27 Senators.

   The combined population of these counties is 1,138,563; which is 36.7% of the total population of 3,100,689.

   A reading of the above facts discloses that Senate Bill 8 transgresses and runs counter to nearly, if not, all of the mandates contained in the excerpts we have quoted from Sims. It is not based, primarily, on a population scheme; on the contrary, it is patently based upon geographical consideration, with county lines forming the boundaries, for the main part, of the Senatorial Districts, and the Districts, as proposed, would[***14] without peradventure of doubt, discriminate against large segments of the citizens of the State in their "constitutionally protected right to vote" without those votes being diluted. It, possibly, would permit considerably less than a majority of the population to elect a majority of the Senators. It definitely and obviously makes the weight of the [**278] citizens' votes "depend on where [they] live," and this "weight" is shown to vary nearly to the ratio of 6 to 1.

   However, counsel for the appellants with commendable zeal n4 [*481] and at great length, have urged upon us that the disparities mentioned above are constitutionally permissible because of the large amount of local legislation considered by the members of the General Assembly, and the important role in Maryland played by its counties.  We concede the postulates of this argument, and, in answering the same, would discuss and consider them at greater length, were it not for the fact that the Supreme Court has already answered the same, and its rulings upon the Federal Constitution are binding, not only upon us, but upon all of the Courts in this Nation.  In Smis, at p. 578 of 377 U.S., the Chief Justice, [***15] for the Court, stated:

   "Since, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State.  To do so would be constitutionally valid, so long as the resuling apportionment was one based substantially on population and the equal-population principle was not diluted in any significant way." 

n4 Counsel for appellants advanced, with ability and skill, every seemingly possible argument favorable to their clients, and counsel for the other parties did likewise.  The Attorney General points to his rather unusual role in not defending the constitutionality of a legislative enactment.  We know of no reason why the Attorney General, or any other lawyer, should stultify himself by arguing to the Court contrary to his honest beliefs.  He would have been in a most anomolous situation, after advising the Legislature that Senate Bill 8 was unconstitutional, if he argued here that it was.  In our judgment, the Attorney General and his staff who assisted him conducted themselves with proper decorum as officers of this Court.

[***16]
 
   From our statement above of the provisions of the Bill, wherein the county lines are predominantly utilized for political subdivision purposes and the weight of citizens' votes are debased to a rate of 1 to 6, can it be seriously contended the Bill "Still [affords] adequate representation to all parts of the State," or that the apportionment is one based substantially on population, and "the equal population principle [has not been] diluted in any significant way"? We think not.  The figures hemselves [*482] show, to the point of mathematical demonstration, that the equal-population principle is attempted to be diluted to such an extent that the Bill has little resemblance to constitutional permissibility.  In our judgment, the Bill attempts to "dilute" the equal-population rule to a point where we know of no ready "condiment" that would quickly restore its constitutional "flavor."

   The Court, again, at page 580, recognizes that "some deviations from population-based representation" may be allowable in order to insure "some voice" to political subdivisions as political subdivisions, "as long as the basic standard of equality of population among districts is maintained." [***17]Finishing the paragraph, the Court concluded:

   "But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State's citizens to cast an effective ad adequately weighted vote would be unconstitutionally impaired."

   [**279] The Court had already stated, as quoted above, " * * * if a State should provide that the votes of citizens in one part of the Stat should be given two times, or five times, or 10 times the weight of votes of citizens in another part * * *, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted." This portion of the opinion makes clear what that Court meant when it used the phrase "population is submerged as the controlling consideration." With the disparity in the instant case ranging to some 6 to 1, we have no hesitancy in holding that population is submerged as the controlling consideration in Senate Bill 8, and its overall provisions render it constitutionally[***18] impermissible.

   The Supreme Court, in Sims, clearly stated that, in considering the constitutional composition of a bicameral legislature, the make-up of both branches should be considered together, for it is possible that the composition of one body of such a legislature [*483] might prevent some deviation in the other body from being constitutionally impermissible, which would be impermissible if the composition of that body were considered alone.  We have considered Senate Bill 8 in this light.  It and Senate Bill 5 have identical provisions relative to the apportionment of the House of Delegates. We find nothing in the apportionment of the House, as we will explain it below, which would remedy the constitutional pitfalls of Senate Bill 8.

   If we entertained any doubts whatever that our above holding is not directed and impelled by the decisions in Sims, supra, and the appeal of this case to the Supreme Court, they would be quickly dispelled by a reading of any one of three cases decided by that Court on the same day as Sims and the appeal herein: WMCA, Inc. v. Lomenzo, 377 U.S. 633, where New York's apportionment of both Houses was declared invalid; [***19] Davis v. Mann, 377 U.S. 678, which struck down Virginia's apportionment - variances in the House ranging to 4.36 to 1, in the Senate to 2.65 to 1; and Lucas v. Colorado General Assembly, 377 U.S. 713, which dealt likewise with Colorado's apportionment where the disparities in the Senate ranged to 3.6 to 1, and in the House 1.7 to 1.

   Appellnts' final contention is that the Bill should be sustained as a valid stop-gap measure.  The short but complte answe to this is the Supreme Court's command in its remand of the case to this Court: "However, under no circumstances should the 1966 election of members of the Marylnd Legislature be permitted to be conducted pursuant to the existing or any other unconstitutional plan." 377 U.S. at p. 676.

   II

   We turn to Senate Bill 5.  None of the parties hereto contests its validity; however, in view of the mandate of the Supreme Court, mentioned above, we deem it appropriate to pass upon its validity.

   This Bill presents a different picture from Bill 8.  An analysis of Bill 5 discloses an underlying scheme of apportionment of each branch of the Maryland Legislature based primarily on the population of the State's residents.  We consider[***20] first the provisions relative to memebership of the Senate.

    [*484] The State is divided into 16 Senatorial Districts from which 43 Senators will be elected; 3 from District 1, comprising Garrett, Allegany and Washington Counties; 2 from District 2, Frederick and Carroll Counties; 5 from District 3, Montgomery and Howard Counties; 5 from District 4, Prince George's County; 1 from District 5, Charles and St. Mary's Counties; 3 from District 6, Anne Arundel and Calvert Counties; 2 each from Districts 7-12 (the Legislative Districts of Baltimore City); 7 from [**280] District 13, Baltimore County; 1 from District 14, Harford County; 2 from District 15, Kent, Queen Anne's, Caroline and Talbott Counties; and 2 from District 16, Dorchester, Wicomico, Worcester, and Soimerset Counties.  The bill provides for subdistricting any district entitled to elect more than 2 Senators.

   Looking at the Bill in the light the Supreme Court has said that we must, i.e., placing the "judicial focus" on "the overall representation accorded to the State's voter," we find from Appendix 2 the following.  The State's population (1960 census) is 3,100,689, which divided by 43 gives amathematical unit[***21] of senatorial population of 72,109.  The least percentage of the State's population which can elect a majority of 22 Senators will be 47.8 The Supreme Court, in one of the excerpts from Sims above, stated that it was not too much to expect from a proper apportionment that a majority of the voters be required in order to elect a majority of the members of a legislature.  However, the Court recognized that its suggested guidelines set forth therein were not inflexible, and, under warranted circumstances, they might yield slightly in order to accommodate and accomplish a rational state policy of apportionment. The rather small discrepancy here is not sufficient, we think, to destroy the validity of the reasonable and well thought-out apportionment of the members of the Senate.

   Further, in no District is one voter's vote raised or diluted to a ratio of as much as 2 to 1.  On the contrary, in only 4 of the 16 Districts does the population-per-senator figure vary more than 15% from the mathematical population norm, n5 and [*485] these exceed the 15% by small margins only (two of these are Legislative Districts in Baltimore City, whose overall variance is but 8.5%).  And in[***22] 7 of the Districts the variance is less than 7%.  

n5 The Supreme Court has not set an exact mathematical ratio, which will be constitutionally permissible or impermissible, and neither has any other Court to our knowledge.  However, as we stated above, some Courts have adopted as a rule of thumb that a variance of over 15% from the population norm would be constitutionally suspect, while any lesser discrepancy would, under ordinary circumstances, probably be constitutionally permissible. Toombs v. Fortson, 241 F.Supp. 65 (1965) (D.C., N.D.Ga.); Silver v. Brown, 405 P.2d 132 (Sup.Ct.Cal. In Bank).

   Although these comparatively small disparties exist, they are to be expected in nearly any rational overall State policy in reapportioning its Assembly, and they indicate no ulterior motives, for the Districts follow the boundaries of the present political subdivisions.  The following of the existing boundaries, being the handling of voting machinery, its facility in conducting elections, and the less likelihood[***23] of any attempt at gerrymandering.

   We hold that this Bill is an honest State effort to apportion the Senate on a population basis, and the small inequalities in voting strength mentioned above result from a good-faith attempt to effectuate a rational State policy, and that they are within the limitations set by the Supreme Court a sbeing Constitutionally permissible.

   We turn no to the apportionment of the House of Delegates. Senate Bill 5 provides for a membership of 142 Delegates. Each county of the State and Baltimore City is allocated a minimum of 1 Delegate, accounting for 24 members. The remaining 118 seats are apportioned among the counties and Baltimore City according to the mathematical formula of equal proportions.  The formula is applied by dividing the population of each county and the City, separately, by the geomertrical mean between the numerals 1 and 2, 2 and 3, 3 [**281] and 4, and continuing in the progression so long as necessary to complete the computation.  The resulting quotients for the House of Delegates are then arranged in order of numerical size, from the largest to the smallest, and the first 118 listings are given as additional memberships to[***24] the particular county or to Baltimore City.  The [*486] Delegates thus allotted to the City are apportioned in the same manner and allocated to the several Legislative Districts thereof.  The result of this "more or less fancy" mathematical calculation in apportioning the Delegates is shown, according to the parties, on Appendix 3.

   The Bill also makes provision for dividing the counties and the City into districts, based on population, in the event any county is awarded more than 8 Delegates, or the City more than 48.  It also provides for continuing its provisions in the elections after the year 1970, on the bases of federal decennial censuses.  It is unnecessary to discuss the details of these provisions here.

   An examination of Appendix 3 reveals that the mathematical unit of delegate population is 21,836.  Each county obtains at least 1 member.  Of the 142 seats, 132 will be elected by populations with variances less than 15% of the mathematical norm.  The highest variance in the 10 seats which exceed 15% is one seat which ranges to 36%, but none of them reaches a disparity as great as 2 to 1.  According to the decisions, 36% is, of course, high.  However, as we stated [***25]above, the Supreme Court has recognized that some divergences from populationbased representation are permissible, so long as they are the result of legitimate considerations incident to the effectuation of a rational state policy, based principally upon population.  Reynolds v. Sims, supra; Roman v. Sincock, 377 U.S. 695. Compare Lucas v. Colorado General Assembly, supra, 377 U.S. 713. The parties to this appeal and the counsel who represent them have, for the main part, been vitally interested, for the last several years, in matters pertaining to apportionment, and have made careful studies of the decisions and writings thereon.  They all agree that Bill 5 is constitutionally permissible. In light of the above and our own careful consideration of the matter, we are unwilling to strike down the Bill for the comparatively few "suspect" variances, which, in our view, clearly result from an earnest effort to accomplish a reasonable statewide apportionment, and, at the same time, accord some slight independent representation to individual, existing political subdivisions.

   It will be noted that the 19 least populous counties and the [*487] First, Third, Fourth, Fifth and[***26] Sixth Legislative Districts of Baltimore City, with 49.5% of the Statehs population will elect 71 delegates, contituting 50% of the membersnhip and the remaining political subdivisions, with 50.5% will also elect 71 members.  A further analysis of Appendix 3 discloses that 5 subdivisions, having 75.3% of the population, will select 106 Delegates, or 74.7% of the membership, while the remaining subdivisions, with 24.7% of the population will elect 36 members, constituting 25.3% of the total membership. To us, this demonstrates an honest and sincere apportionment, founded, primarily and principally, upon population.

   We hold that Senate Bill 5 is constitutionally sustainable, and that it does not violate either the State or Federal Constitutions.

   The above are the reasons that the majority passed the per curiam order herein.

    [**282] [*488] APPEMDIX 1

   REAPORTIONMENT OF SENATE

   53 MEMBERS (SENATE BILL 8) 

Senatorial      County        1960     No. of   Pop. per      % Variance
 District                    Census   Senators  Senator   Unit of Population
1           Garrett         20,420    1        20,420     -65
2           Allegany        84,169    1        84,169     +44
3           Washington      91,219    1        91,219     +56
4           Frederick       71,930    1        71,930     +23

5           Carroll         52,785    1        52,785     -10
6           Howard          36,152    1        36,152     -38
7           Montgomery      340,928   6        56,821     -3
8           Prince George's 357,395   6        59,566     +2
9           Charles         32,527    1        32,572     -44
10          St.Mary's       38,915    1        38,915     -34
11          Calvert         15,826    1        15,826     -73
12           Anne Arundel
            Baltimore City: 206,634   3        68,878     +18
13          District No. 1  126,611   2        63,306     +8
14          2               166,057   2        83,029     +42
15          3               170,414   2        85,207     +46
16          4               199,385   2        79,693     +36
17          5               162,437   2        81,219     +39
18          6               154,120   2        77.060     +32
19          Baltimore       492,428   7        70,347     +20
20          Harford         76,722    1        76,722     +31
21          Cecil           48,408    1        48,408     -17
22          Kent            15,481    1        15,481     -74
23          Caroline        19,462    1        19,462     -67
24          Queen Anne's    16,569    1        16,569     -72
25          Talbot          21,578    1        21,578     -63
26          Dorchester      29,666    1        29,666     -49
27          Wicomico        49,050    1        49,050     -16
28          Worcester       23,733    1        23,733     -59
29          somerset        19,623    1        19,623     -67
                              3,100,689  53

 [***27]

   1 Unit of Population is 58,504 (+15%=67,280 -15%=49,728)

   [**283] [*489] APPENDIX 2

   SENATE BILL 5 - THIRD READING COPY

   SENATOR JAMES PLAN FOR REAPPORTIOMENT OF SENATE WITH 43 MEMBERS

            County                 1960     No. of  Pop. per  % Variance
                                  Census   Senators Senator    - Unit of
                                                              Population
Sarreett, Allegany, Washington
195,808                          3           6k,269    -9.5
Frederick, Carroll              124,715    2        62,358   -13.5
Montgomery,Howard               377,080    5        75,416   +4.6
Prince Geroge's                 357,395    5        5        71,479
-0.9
Charles, St. Mary's             71,487     1        71,487   -0.9
Anne Arundel, Calvert           222,460    3        74,153   +2.8
Baltimore City:                 (939,024)  (12)     (78,252) (+8.5)
District No. 1                  126,611    2        63,306   -12.2
District No. 2                  166,057    2        83,029   +15.1
District No. 3                  170,414    2        85,207   +18.2
District No. 4                  159,385    2        79,693   +10.5 Dist
                                                             -rict No. 5

162,437                          2           81,219    +12.6
District No. 6                  154,120    2        77,060   +6.9
Baltimore County                492,428    7        70,347   -2.4
Harford                         76,722     1        76,722   +6.4
Cecil, Kent, Queen Anne's,
Caroline & Talbot               121,498    2        20,749   -15.8
Dorchester, Wicomico,
Worcester & Somerset            122,072    2        61,036   -15.4
                                 3,100,689   43

 

   1 Unit[***28] of Population is 72,109 (+15% = 82,925 -15% = 61,293)

    [**284] [*490] APPENDIX 3

   REAPPORTIONMENT OF HOUSE OF DELEGATES 142 MEMBERS BY MATHEMATICAL FORMULA OF EQUAL PROPERTIONS (SENATE BILLS 5 AND 8) 

 County   1960 Census No. of Delegates Pop. per Delegate       % Variance
                                                           Unit of Population
Allegany  84,169      4                21,042             -4
Anne
Arundel   206,634     9                22,959             +5
Baltimore 492,428     22               22,383             +3
Baltimore
City:
District
No. 1     126,611     6                21,102             -3
District
No. 2     169,308     8                21,164             -3
District
No. 3     167,163     8                20,895             -4
District
No. 4     159,385     7                22,769             +4
District
No. 5     162,437     7                23,205             +6
District
No. 6     154,120     7                22,017             +1
Calvert   15,826      1                15,826             -28
Caroline  19,462      1                19,462             -11 Carroll
52,785     2            26,393            +21
Cecil     48,408      2                24,204             +11
Charles   32,572      2                16,286             -26
Dorche-
ster      29,666      1                29,666             +36
Freder-
ick       71,930      3                23,977             +10
Garrett   20,420      1                20,420             -7
Harford   76,722      4                19,181             -12
Howard    36,152      2                18,076             -17
Kent      15,481      1                15,481             -20
Montgo-
mery      340,928     16               21,308             -2
Prince

George's  357,395     16               22,337             +2
Queen
Anne's    16,569      1                16,569             -24
St.
Mary's    38,915      2                19,458             -11
Somerset  19,623      1                19,623             -10
Talbot    21,578      1                21,578             +1
Washing-
ton       91,219      4                22,805             +4
Wicomico  49,050      2                24,525             +12
Worcester 23,733      1                23,733             +9
           3,100,689    142

 [***29]

   1 Unit of Population is 21,836 (+15% = 25,111 -15% = 18,561)

DISSENTBY: BARNES

DISSENT: [**285] [*491] BARNES, J., filed the following dissenting opinion, in which HORNEY, J, concurred.

   I disent because it seems clear to me that Chapter 3 of the Laws of Maryland (Special Session, October 1965) (Senate Bill 8) is a constitutionally valid legislative apportionment plan.  Senate Bill 8 like Chapter 2 of the Laws of Maryland (Special Session, October 1965) (Senate Bill 5) provides for a House of Delegates of 142 members, but provides for a Senate of 53 members rather than a Senate of 43 members as provided for in Senate Bill 5.  I agree with the majority that the apportionment for the House of Delegates is valid and constitutional, but I cannot agree that under the apposite decisions of the Supreme Court of the United States, the provision in Senate Bill 8 for a Senate of 53 members denies equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States (Fourteenth Amendment).

   I do not understand that there is any disagreement that if the provisions for the 53 member Senate in Senate Bill 8 are constitutional, these provisions would be given [***30]  effect in view of Section 4 of Senate Bill 8 which provides that "in the event this Act shall be declared valid by the Court of Appeals of Maryland, then Chapter 2 (Senate Bill 5) * * * shall not become effective * * * ." This legislative mandate establishes the preference of the General Assembly for the 53 member Senate if the provisions of Senate Bill 8 establishing it do not contravene the provisions of the Fourteenth Amendment.

   This legislative mandate comes to us with peculiar force in this case as it must be conceded that the apportionment of members in one of the houses of the Maryland bicameral legislature is, subject to Constitutional limitations, a purely legislative function in regard to which the judicial branch of the state government is forbidden by the Maryland Constitution to interfere.  Article 8 of the Maryland Constitution in regard to separation of powers provides:

   "That the Legislative, Executive and Judicial powers of Government 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 duties of any other."
 
    [*492] Our predecessors indicated in 1829 [***31]  in Crane v. Meginnis, 1 G. & J. 463, at 472 that:

   "The legislative department is nearest to the source of power, and manifestly the predominant branch of the government."

   This of necessity must be the case in a representative form of government. We held in First Continental Sav. & Loan Ass'n., Inc. v. Director, State Dept. of Assessments and Taxation, 229 Md. 293, 302, 183 A.2d 347, 351 (1962), that the powers of the General Assembly are plenary except as restrained by the State or federal constitutions.

   Indeed, it was not until the decision of the Supreme Court of the United States (Supreme Court) in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, on March 26, 1962 that the judicial branch of government, State of Federal, could consider judicially whether or not a House of a State legislature was constitutionally established.  The Supreme Court itself had consistently held prior to Baker v. Carr that such an issue was not justiciable.  The masterful dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr reviewed the prior authorities (including Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157 (1956), decided only 5 years[***32] prior to Baker v. Carr in which the Supreme Court had itself by dismissing the appeal in Kidd held that the issues in regard to the composition of the Tennessee Legislature involved in Baker v. Carr, were not justiciable) and [**286] pointed out the lack of widsom and the dangers involved in departing from the well established doctrine in a most sensitive area of state-federal relations.  I have not yet seen any satisfactory answers to the points made by Mr. Justice Frankfurter and Mr. Justice Harlan in their dissenting opinions in Baker, but I, of course, agree that we are bound by the decisions of the majority of the Supreme Court on federal constitutional issues whether or not we think them sound or justified. It might be added that it was by no means clear, however, until our decision by a divided Court in Maryland Committee for Fair Representation v. Tawes, 228 Md. 412, 180 A.2d 656 (1962) that our duty of obedience to the decisions of the majority of the Supreme Court extended to a [*493] holding that this Court had power under the Maryland Constitution to strike down a provision of that Constitution establishing the membership in the General[***33] Assembly. Judges Henderson and Horney in their dissent in the Maryland Committee case were of the opinion that this Court had no such power but that the exercise of that power resided only in the federal courts.

   I review these rather recent adventures in constitutional law only to indicate that the entire field is a new one fraught with grave dangers in a delicate area of state-federal relations and in which the Supreme Court has established no certain guidelines, preferring - properly I think - to consider each case as it arises in the light of general constitutional concepts which the Supreme Court has enunciated.

   I agree with the majority that the most important decision of the Supreme Court of the 6 reapportionment cases, decided June 15, 1964 n1 bearing on the questions before us is Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Chief Justice Warren, for the Supreme Court, stated in Reynolds v. Sims:

    "For the present, we deem it expedient not to attempt to spell out any precise constitutional tests.  What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.  Developing[***34] a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment." (377 U.S. 578) 

n1.  In addition to Reynolds v. Sims, they are WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568, Maryland Committee v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595, Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609, Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620, Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632. 

   The Supreme Court recognizes the obvious fact that in the 50 States there are substantial and important differences in political traditions, economic conditions, and historical background [*494] which would make a simplistic, arithmetical requirement for legislative apportionment unworkable, abhorrent to the people affected and possibly destructive of orderly representative government.  In short, the Supreme[***35] Court has no notion of establishing a constitutional Procrustean Bed on which the legislatures of the 50 States will be forced and then cut off or stretched to conform to its precise measurements.  In my opinion, the majority has been led astray by its failure to appreciate and apply this declared policy of the Supreme Court; it does not see the constitutional "woods" for the arithmetical "trees".

   What then are the applicable general principles enunciated by the Supreme Court [**287] in the Reapportionment Cases?  As I read these cases they are: 

   I.  " * * * a majority of the people of a State [should] elect a majority of that Statehs legislators." (377 U.S. 565)

   II.  More flexibility is constitutionally permissible with respect to state legislative apportionment than in congressional districting and this flexibility is constitutionally valid "so long as the resulting apportionment was one based substantially on population and the equal-population principle was not diluted in any significant way." (377 U.S. 578)

   III.  "A state may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts [***36]of contiguous territory in designing a legislative apportionment scheme.  * * * Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." (377 U.S. 578-579)

   IV.  "History indicates * * * that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures.  So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both [*495] of the two houses of a bicameral state legislature. (377 U.S. 579)

   V. "A consideration that appears to be of more substance in justifying some devviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political pubdivisions. Several factors make more than insubstantial claims that a State can rationally [***37]consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality among districts is maintained.  Local governmental entitles are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions." (377 U.S. 580-581)

   VI.  "But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all th eSate's citizens to case an effective and adequately weighted vote woud be unconstitutionally impaired." (377 U.S. 581).

   In my opinion the above quotations are far more apposite to the situation involved in the case at bar than are many of the quotations, also from reynolds v. Sims, relied on in the majority opinion.

   These general prnciples, particularly relevant to the[***38] case at bar, have for the Most part, been given in the exact language used by Chief Justice Warren in enunciating them in reynolds v. Sims. As he spoke for the majority of the Supreme Court, we are entitled, and indeed required, to take his words at their face value and to believe that the majority of the Supreme Court intends to adhere to them.  In my opinion, the General Assembly and the people of this State are also entitled to have us apply [**288] these general principles to Senate Bill 8 and to sustain its constitutionality if the application of those principles permits it.

    [*496] In my opinion, the provisions of Senate Bill 8 in regard to both the approtionment of seats in the House of Delegates and in the Senate fully comply with the general principles above set forth and Senate Bill 8 should be held to be constitutional as it does not deny citizens of any portin of this State the equal protection of the laws.  As the majority agrees that the apportionment of the House of Delegates in Senate Bill 8 (which is the same as that in Senate Bill 5) is clearly constitutional, the discussion will be confined, for the most part, to the approtionment of the Senate.  [***39]

   I and II

   In the apportionment of the Senate by Senate Bill 8, a majority of the Senate seats are allocated on the basis of population.  The resulting approtionment is based substantially on popoulation and the equal-population principle is not diluted in any significant way.

   The Senate of Maryland as established by the people in the Constitution of 1867 did not purport to be based on any equalpopulation concept.  It, as subsequently amended, provided for one senator from each county and one senator from each of the six legislative districts of Baltmore City regardless of population making a total of 2. senators. There were great disparities in the population of the various counties and Baltimore City legislative districts and 19 counties with less than 25% of the population of the State elected 19, or approximately two-thirds of the senators. n2 There is no question that the apportinment of the Senate under Senate Bill 8 is based generally upon the equal-population principle.  The plan of apportionment adopted [*497] in Senate Bill 8 for the Senate, although the senators are allocated by number in senatorial districts, substantially follows the same population principle [***40]as that followed for the allocation of seats in the House of Delegates. The Senate Bill 8 senate plan allosts one senator to each political subdivision for a total of 24 and allots 2m of the remaining 2. seats of the 53 member body on a population basis based on the equal-population principle.  This is also the same type of rule used in apportioning the United States House of Representatives.  Under a strict application of the equal population rule as to the remaining 29 seats, Baltmore City would reveive 14 rather than 12 senators. Baltimore City, however, has for many years been divided into 6 legislative districts so that it was more practicable to allot 1i seats to Baltimore City thus giving each legislative district 2 senators each.  In Senate Bill 5, Baltimore City is also given 12 senators. The 2 seats not given to Baltimore City were apportioned one each to Prince George's and Montgomery Counties, two of the most populous and rapidly gowing subdivisions, which have senatorial rations under Senate Bill 8 which are almost mathematically perfect.  It is clear that over one-half of the 53 Senate seats are apportioned according to popoulation and that the 5 most populous subdivisions[***41] (Baltimore City, Baltimore, Montgomery, Prince George's and Anne Arundel Counties) elect 3j of the 5o senators, or 64.15% of the Senate while the remaining counties elect only 19 of the 53 Senators, [**289] or 35.85% of the Senate. n3 This not only gives the [*498] most populous subdivisions majority control of the Senate but gives them more than the 60% majority needed to propose amendments to the Maryland Constitution (Art. XIV, Sec. 1), for enacting emergency lesialation (Art. XVI. XVI, Sec. 2) and for overriding a veto by the Governor (Art. II, Sec. 17).  It is quite apparent that under Senate Bill 8 the 5 most populous political subdivisions elect a large and dominating majority of the members of the Senate; and that the equal-population principle is indeed not "diluted in any substantial way." Effective majorityrule is, in my opinion, clearly estatblished.  

n2 Even this approtionment of the Senate when taken together with the reapportionment of the House of Delegates, was not thought by Mr. Justice Stewart, in this dissenting opinion, to be unconstitutional on its face or that the entire plan reflected "no policy, but simply arbitrary and capricious action or incation." He indicated in Maryland Committee v. Tawes, 377 U.S. 656 at 677, 84 S.Ct. 1440, 12 L.Ed.2d 608, that the case challenging the constitutionality of the Maryland Senate should be remanded to determine whether the Maryland apportionment, including the 29 member Senate, "could be shown systematically to prevent effective majority rule."

[***42] 

n3 In the majority opinion it is stated: "Additionally, it should be noted that under the scheme of the Bill (Senate Bill 8) some 37% of the State's population would elect, a moajority of 27 senators." As explained in footnote 3a, of the majority opinion, this result is reached by combining the populations of 15 counties having the smallest populations and having 15 senators with two of the most populous counties, Montgomery and Prince George's, having 12 senators. Although the figures appear to be correct, the result has no political reality as this type of "combination" is most unlikely.  Of far more significance in this case is the following: Using the 1960 census figures for population in Maryland the five most populous political subdivisins in Maryland containing 75.35% of the State's population elect 74.65% of the members of the House of Delegates and 64.15% of the members of the Senate.  The remaining 19 less populous political subidivisions elect 24.65% of the members of the House of Delegates and 35.85% of the members of the Senate.  The calculation is as follows:

                              1960 Census         House         Sena
                           Population    %    Seats    %    Seats   %
Baltimore City, Baltimore
County, Prince George's
County, Montgomry County
and Anne Arundel County    2,336,409  75.35   106   74.65   34    64.15
Remaining 19 Counties      764,280    24.65   36    25.35   19    35.85

 

[***43]

   III, IV and V j, As e have seen, the State may "legitimately desire to maintain he integrity of various political subdivisions." The practicability of accomplishing this rational State purpose may vary from State to State but in Maryland, because ofthe unusual importance of the counties in the Maryland government and their relatively small number, it is pracicable to preserve their identity and give them a voice in the Senate without violating the general equal-population principle.

   The importance of the county in Maryland as a governmental unit derives, in part, from the early dateof the creation of many of them.  Eleven of the twenty-three counties were in existence in 1695. n4 The Maryland Constitution of 1867 by the [*499] provisions of Article XIII, Section 1, effectively, as a practical matter, revents the creation of any counties in addition to those already established. n5 The unusual nature of the Maryland Counties is set forth at page 419 of the Maryland Geological Survey, "The Counties of Maryland, Thier [**290] Origin, Boundaries and Election Districts" (1907) as follows:

   "The counties in Maryland occupy a far more imporant position than do similar political[***44] divisions in many other states of the union.  This prominence of the county is due primarily to the fact that in Maryland it serves as the unit of division of the territory of the State and is not formed by the combination of smaller integral unis, as is the case in the North and West, where townships with their own local political organization are the units of political division.  Where townships exist they are united to form acounty and the county organization is accordingly more general and less comlete than is the case in this state.  Maryland possesses incorporated towns and villages analogous to those of other parts of the United Statesbut the nearest analogue to a township - the election district, is not a political unit with its own individual government, but is rather a precinct serving for election and other purposes within the county.  In Virginia, the counties are often composed of several Hundreds or Parishes which become the local units in popular consideration if not in political government." 

n4 The datesof the creation of the counties in Maryland are as follows: St. Mary's 1637, Kent 1642, Anne Arunded 1650, Calvert 1650, Charles 1658, Baltimore 1659, Talbot 1662, Somerset 1666, Dorchester 1668, Cecil 1679, Prince George's 1965, Queen Anne's 1906, Worcester 1742, Frederick 1748, Caroline 1773, Harford 1773, Washington 1776, Montgomery 1776, Allegany 17898 Carroll 1836, Howard 1851, Wicomico 1867, Garrett 1872. 

[***45] 

n5 See Maryland Geological Survey, "The Counties of Maryland, Their Origin, Boundaries and Election Districts" (1907) at page 426.  For a view of the distinctive history of each of th eMaryland counties see pages 429 to 572.

   Maryland has been fortunately spared the proliferation of incorporated towns and villages present in many states.  Generally speaking the important municipal servicesoutside of Baltimore City, are performed by the County governments.  The need for local legislation is likely to continue to a substantial extent even though the Charter-type of County government should be extended in the future.

    [*500] In Maryland, health services are primarily organized at the county level. n6 Then too, jails, libraries, n7 the assessments of real property n8 and soil conservation programs n9 are organized on a county basis.  Sevnteen of the twenty-three counties construct, reconstruct and maintain their own road systems. n10 

n6 In the Maryland Manual 1961-1962 at page 69 it is stated: "Local Health Services make public health sevice available to residents of Maryland throught the twenty-four local health departments.  These local health officers with their staffs of nurses, sanitarians, and others, are the backbone of public health services in Maryland.  These local units operate the public health programs in each county and Baltimore City * * * ."

[***46] 

 n7 Md. Code, Art. 77, §§ 177-201. 

n8 Md. Code, Art. 81, § 232, et seq. 

n9 Md. Code, Art. 66C, § 91, see also Maryland Marnual 1961-1962 p. 116. 

n10 Maryland Manual, 1961-1962 p. 99.

   An examination of the Maryland Manual, 1961-1962 pages 347, et seq., listing the local officials in even a small county such as Calvert County, indicates the wide range of governmental services and responsibilities given to the county government.  In many f the larger counties there are additional agencies and officials, including Planning Commissions, Zoning Boards, Plumbing Boards, Industrial Development Commissions, Building Inspectors, Inspectors of Weights and Measures, Parks Boards, Recreation commissions and other boards and commissions.

   Most importantly, in Maryland one of the most vital and expensive of all governmental functions, namely, that of public education, is administered larely at the county, rather than at the State, level.  In Maryland, the State, except in certain limited areas, retains only a visitorial power over the county school systems.  In Andrews, "History of Maryland," [***47] pages 638-639, the learned author states:

   " * * * [In] the original Maryland scheme there were twenty-three county boards, together with the independent unit of Baltimore City.  These twenty-four boards in Maryland acquire [**291] especial significance when it is realized that New York, for example, has upward of ten thousand boards."

    [*501] The unusual nature of the MAryland educational system of using counties as school districts is indicated by the fact that Maryland is one of only 5 States in the Union which has no school districts other than county units. n11 

n11 The other States are Hawaii, Rhode Island, Virginia and North Carolina. See Anderson et al., "Covernment in the Fifty States." (Rev.ed. 1960) pages 2425.

    When the expenditures of the local county government and those of the State government are considered, the importance of the county political subdivision is quite apparent.  In the recent Interim Report of the Commission on State and County Finance (the Cooper Commission), it[***48] is indicated that in 1962 the direct expenditures of the local governments in Maryland amounted to $714,400,000.00, or 69.4% of the total expendintures of State and local governments.  At page 13 of the Interim Report it is stated:

   "Of the total task of government, as measured by expenditures, the State bears about 30 percent and local governments bear 70 percent.  The revenue sources are shared about 50-50.  If highway expenditures and revenues are excluded * * * the ivision of responsibility becomes 25 percent State and 75 percent local, with the revenue split still remaining close to 50-50."

   It seems clear, therefore, that in Maryland, the political subdivisions, given some (but not controlling) independent representation in the Senate by Senate Bill 8 are the basicframework in the governmental structure of the State. These political subdivisions carry out vital resonsibilities of government in many most important areas, so that oneof the factors mentioned in Reynolds v. Sims for a departure from populationbased-representation is clearly met.  It is present in MAryland to a far larger extent than was present in any of the reapportionement cases decided by the Supreme Court[***49] involving reapportionment plans in States other than Maryland.

   As would b expected in a State in which the local political subdvisions are given such important governmental responsibilities, much of the legislation considered by the General Assembly of Maryland is "local leislation." The Chief Justice has [*502] quite properly indicated that this factor is one which may be considered as part of a rational State reapportionment policy justifying representation to a political subdivision, as such, and some divergence from a strict population standard.

   This factor of "local legislation" applies with particular force in Maryland. Apparently Maryland is one of the few Statesin the Union having a published Codeof Public Local Laws.  Dr. Carl Everstine, the very able Director of the Department of Legislative Reference in "Maryland Legislative Council, Local Government: A Comparative Study" Research Report No. 23 (September 1944) age 1, stated:

   "Maryland occupies almost a unique osition among the states, for its legislature gives perhaps more attention to thedeatils of local government than does the legislature of any other state in the Union."

   Dr. Everstine also pointed out[***50] the vital importance of the "local delegation" in the consideration of local bills as follows:

   "The rules of procedure adopted and followed by the legislatures of other states show an interesting contrast with thos eof Maryland with respect to the committees to which local bills may be assigned.  "Local bills introduced into the General Assembly of Maryland usually are [**292] referred to select committees made up, in the House, of the members of the county delegation concerned, and in the Senate, of the Senator from the county concerned and the senators from two adjoining counties.  Occasionally, a bill which would affect only one county may yet have implications of state-wide importance which will lead to its being referred to a standing commitee, but it is the general practice to refer all local bills to select committees, and the rest of the legislature accepts without question the recommendations of thesecommittees. There are no standing committees to which all local bills may be referred simply by virtue of their being local bills.

   "The Pracice in other states seems to be widely different than in Maryland. Every one of the other forty-seven [*503] states has one[***51] or more standing committees to which, so far as one may judge from their names, the local bills of all counties may be referred." n12 

n12.  "Maryland Legislative Council, Local Government: A Comparative Study", Research Report No. 23 (September 1944) page 17.

   In Maryland's political life, the Senator from the county in regard to which the local legislation is concerned, usually plays a dominant role in its consideration, and ultimate passage or rejection.  The senator has particular political responsibility in this field and is usually held accountable by the electorate for the success or failure of the local legislative program for the political subdivision. The senator has been thought of by his constitutents as a member of the "upper" House of the bicameral legislature, and as such, to have greater authority and prestige than that enjoyed by the members of the House of Delegates. One might think that the senator's dominant position in local legislation would be taken over by the delegate in those[***52] counties who will only have one delegate, but this idea overlooks the political fact that legislation must also pass the Senate. There may well be a serious conflict between the policy advocated by the one delegate and that tought wise by a senator who does not reside in, and who is not politically dependent upon, the electorate from the county having the one delegate. And if the one-delegate county was in a senatorial district as provided for in Senate Bill 5 where there were two senators, neither of whom is from the one-delegate county, there might well be a divergence of opinion between the two there might well be a divergence of opinion between the two senators with resulting confusion, lack of political responsibility and real injury to the local political subdivision involved.  To take a concrete illustration from the provisions of Senate Bill 5, Senatorial District 15 is composed as follows: Cecil, Kent, Queen Anne's, Caroline and Talbot, having a combined population by the 1960 census of 121.498.  Two senators are provided for Senatorial District 15.  Under Senate Bill 5 the representation in the House of Delegates and the population of the individual counties would[***53] be as follows: [*504] 

    Name of County     Number of Delegates      Population,
                                                1960 Census
Cecil                  2                   48,408
Kent                   1                   15,481
Queen Anne's           1                   16,569
Caroline               1                   19,462
Talbot                 1                   21,578
                                           121,498

 

   It would seem reasonable to predict that Kent County with approximately 13% of the population of District 15 will most likely never have a senator from that county.  Cecil County with approximately 40% of the total population of District 15 will most likely always have one senator. The other senator will most likely come from Talbot County having approximately 18% of the population of District 15.  The local interests of Cecil County and Kent County may [**293] be quite different and if either one or both of the senators were not sympathetic with the local legislation presented by Kent County's one delegate, the local legislative program of Kent County would most likely never be enacted into law and there would be great difficulty in definitely fixing the political responsibility for the failure.  On the other hand, if Kent County had one senator representing it in the Senate of Maryland as provided for in Senate Bill 8 this unfortunate situation - most[***54] injurious in my opinion to orderly and proper representative government - would be avoided.  In short, so far as the Senate is concerned, it is difficult to have representative government without a representative.

   The importance of local legislation ina consideration of reapportionment in Maryland appears in the Report to the Governor of Maryland of the Commission to Study Reapportionment of the General Assembly, filed January 31, 1964.  There were two reports; the majority report recommended no changes in the existing Senate, and the minority report (or Hanson Report) recommended changes in the Senate, but recognized the vital importance of local legislation in Maryland and the desirability of having at least one senator from each political [*505] subdivision. The Hanson Report was written by Professor Royce Hanson, Assistant Professor of Government at American University and who resided in Montgomery County.  It was concurred in by other distinguished members of the Commission, i.e., Samuel D. Hopkins, a resident of Baltimore City and a party to this suit; Dr. Roger Howell, a former Dean of the University of Maryland Law School, who resides in Baltimore City; Walter[***55] J. Bierwagen, representing the AFL-CIO, who resides in Prince George's County and Helen L. Koss, second vice president of the Maryland League of Women Voters (an amicus curiae in the case at bar) who resides in Montgomery County.

   In the Hanson Report the following was stated:

   "Because of the significanceof the counties and the City of Baltimore in the total scheme of government in Maryland, each county and the City should be assured of at least one representative in each house of the General Assembly. This assumes a voice for its corporate interest." (Pg. 28)

   "We should like to see the size of the House reduced to its traditional figure (123 members), but do not believe this is possible, without giving up the minimum of one delegate, the advantages of which are important in a state with so heavy a burden of local legislation or without apportioning the senate strictly on population." (Pg. 29)

   "THE SENATE should be reapportioned to make possible its responsibility to a majority of the people, but it should be so designed to account for other factors which are not heavily weighted in the House.  We recommend that the Senate contain 47 members apportioned on the basis of[***56] population, except that every county and the City should be guaranteed one senator, whatever its population.  * * * Because of the rapid population growth and the need for greater flexibility we recommend the 47 seat Senate, thereby providing 23 senators representative of population alone and 24 [*506] as guaranteed representatives of the jurisdiction.  * * * We also emphasize that if the Senate's side should fall below 41 members, it would be necessary to combine small counties to form senatorial districts in order to provide even marginal control of the Sennate for the vast majority of the state's [**294] electorage.  We do not think this is desirable in a state with much local legislation to enact. It is not necessary if our recommendation is followed." (Pg. 30)

   Although some of the populous counties have adopted charters, the actual number of local bills has not significantly declined as the following table of bills referred to select committees will indicate: 

                         1963  1957   1953
"House                   410   570   452
Senate                   219   201   215
Total                    629   771   667
Total All Bills          1865  1616  1500
Percentage of Bills
Referred to Select
Committees of All
Bills Introduced         33.7% 47.7% 44.5%"

 [***57]

   It is interesting to note that at the last Regular Session of the General Assembly in 1965 as shown by the index to the 1965 Laws of Maryland there were 18 bills enacted into law relating only to Kent County while there were but 15 such bills relating only to Cecil County.

   In the study made by Professor V. O. Key, former professor of government at Johns Hopkins University and at Harvard University and a former president of the American Political Science Association, in his 1940 Report to the LEgislative Council of Maryland entitled, "The Problem of Local Legislation in Maryland," he stated at page 1, Note 3:

   "The total of 509 local bills passed in 1939 must have entailed in the neighborhood of the same number of conferences with county commissioners, city officials, and other persons requesting the introduction of bills.  [*507] Of the 509 bills passed, 173 were amended during the course of passage.  It may be inferred that behind these amendments were conferences and discussions with local officials and other constituents desiring alterations in the bill as introduced."

   The Supreme Court has always sustained the Maryland System of local legislation. See Chappell Chemical [***58]  and Fertilizer Co. v. Sulphur Mines Co., 172 U.S. 474, 19 S.Ct. 268, 43 L.Ed. 520 (1899) and more recently, Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954) in which the Supreme Court sustained the application of differing rules of evidence to different counties - a somewhat extreme example of local legislation. See also McGowan v. Maryland, 366 U.S. 420, 427, 537, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
 
   It is significant to me that Professor Robert G. Dixon, Jr., Professor of Law at George Washington Law School and Graduate School of Public Law, is of the opinion that the preservation of the integrity of local political subdivisions is a legitimate basis for divergence from a population standard.  His article "Apportionment Standards and Judicial Power." 38 Notre Dame Lawyer 367 (1963), indicates his position and this article was cited with approval in the majority opinion in Reynolds v. Sims. See page 579 and note 60 of 377 U.S. Professor Dixon, in the same article, also stated at page 391:

   "[Representation] of each county in the legislature may be a practical necessity in those states such as Florida and Maryland where there is a custom of[***59] handling local governmental matters by 'special' legislation (more [**295] properly called public-local legislation) rather than by public-general legislation or county home rule."

   A matter of vital importance to a political subdivision in having at least one senator is in connection with the requirement in the Maryland Constitution that the Governor's appointments of various local officials be confirmed by the Senate.  For example, the trial magistrates, the Liquor License Commissioners and other local officials of this type must have senatorial confirmation. [*508]The senator representing the local political subdivision involved has in almost all cases the "veto" power over a gubernatorial appointment of such a local official.  That senator represents the local opinion in regard to the qualifications and desirability of the appointee.  That opinion is important for the proper administration of local government and the local political subdivision involved should have a representative in the Senate for the performance of this important function.

   Then too, scholarships to various educational institutions are allocated to the members of the Senate for appointment. [***60] Although generally there are examinations given to determine the general availability of students in the political subdivision for the awards, the ultimate selection from those receiving the highest grades, rests with the senator. It is unrealistic to suppose that many scholarships will be allocated to students from unrepresented counties in the Senate created by Senate Bill 5.  Although I think it is unfortunate that courts are now required to enter this generally unwanted portion of the political arena, I think that in exercising our new judicial function we should not be politically naive.  We must face and carefully consider the political realities involved; we cannot depend upon simple arithmetic.

   Another important consideration which supports - in Maryland particularly - the concept of giving each political subdivision one senator in the upper house of the bicameral legislature, is to insure that the electorate of each political subdivision has a voice in the deliberations of the house.  Maryland is unusually diversified in topography, climate, natural resources and in its economy.  For example, the only ocean frontage, ocean park areas and ocean recreational areas[***61] are located in Worcester County.  The center of the oyster and crab industry is in Somerset County.  The electorate and their representatives from these two counties would have an appreciation of the problems and legislative needs arising from these local situations which no other electorate or representative could have.  It is quite unlikely that either of these counties will ever have a State Senator in Senatorial District 16 set up by Senate Bill 5 as Worcester County has only approximately 20% and Somerset County only approximately 15% of the total population of District [*509] 16 (122,072 in the 1960 census) as contracted with approximately 40% and 25% respectively of that total population in Wicomico County and Dorchester County. In short, the two senators from District 16 are most likely to come from Wicomico and Dorchester Counties which have approximately 65% of the population. But in my opinion it furthers a rational State policy to provide that these two smaller counties should have a voice of their own in the Senate of Maryland, not only to protect their own local interests but, perhaps more importantly, to give the entire Senate the facts and local point of[***62] view in regard to those important parts of the whole economy of the State.  We should not lightly assume that the Supreme Court, which has shown such zeal in protecting the rights of minorities, will now rule that a minority of voters will not even be permitted to be heard in the upper house of the Maryland bicameral legislature. It is one thing to say that a minority shall not rule; it is quite another thing to say that it shall not be heard.

   VI

   The Supreme Court, however, has indicated that even though representation of [**296] political subdivisions may be the result of a clearly rational state policy, this policy cannot submerge population as the controlling consideration in the apportionment of seats in the particular legislative body.  Is population submerged as the controlling consideration in the apportionment of seats in the Senate of Maryland by Senate Bill 8?  It seems clear to me that it is not.

   It has already been observed that except for the allocation of the one senator for each political subdivision, a total of 24 senators, the remaining 29 seats of the 53 member Senate are allocated on a basis of population based on the rule of equal proportions.  Well[***63] over one-half of the 53 senate seats are thus apportioned on the basis of population.The 5 most populous political subdivisions ont only control a majority of the Senate seats but more than the 60% of the votes required to amend the Maryland Constitution, pass emergency legislation or override a vote.  It seems obvious that not only is the principle of population in apportioning seats not submerged, but it is dominant [*510] and completely effective in its control of the Senate provided for in Senate Bill 8.

   It should be pointed out that the provisions of Senate Bill 8 in regard to the apportionment of Senate seats give substantially greater recognition to the principle of population than was recommended in the Report of the Committee on Congressional Redistricting and Legislative Apportionment, dated November 17, 1964.  This Committee of the Legislative Council of Maryland consisted of 18 highly qualified members of the General Assembly of Maryland (9 from the Senate and 9 from the House of Delegates).  Senator William S. James, President of the Senate was Chairman and Delegate Marvin Mandel, Speaker of the House of Delegates was Vice-Chairman.  This able Committee[***64] recommended a Senate of 47 members in which the 5 more populous political subdivisions (Baltimore City, Baltimore County, Prince George's County, Montgomery County and Anne Arundel County) were allocated 28 seats and the remaining 19 counties were given one senator each, a total of 19 senators. Under this recommended Senate the 5 most populous political subdivisions received 59.57% of the total number of seats. In the Senate provided for in Senate Bill 8, the same 5 more populous political subdivisions received 64.15% of the total number of seats. The Committee clearly recognized the principle that each political subdivision should have at least one senator in the Maryland Senate.

   The Supreme Court has not established any mathermatical formula for determining degrees of disparity between the population of districts.  It would be impracticable to do this based on a particular census.  In any event, such a basis would have little enduring effect in a State with as rapidly growing a population as in Maryland; the mathematical basis would have little reality in a few years or even in several months.  It should be kept in mind also that population, although possibly reflecting [***65] generally the probable number of qualified voters in one district as compared with another district, does not automatically reflect the number of qualified voters as the number of children who have not reached voting age in a fast growing community will be counted in the "population" of that district, but will not really reflect the electoral strength of that district vis a vis a slow [*511] growing and older district having proportionately more qualified voters. In short, a purely mathematical formula is neither desirable nor feasible for application in reapportionment problems.  See Professor Davis, "Apportionment Standards and Judicial Power", 38 Notre Dame Lawyer, 367 at pages 381-386.

   When the total number of representatives in both the Senate and the House of Delegates provided for in Senate Bill 8 are considered together - which is a legitimate approach to a reapportionment problem - see 377 U.S. 577 and see also Professor Davis, supra, at page 390 of 38 Notre Dame Lawyer, the dominance of the population principle is clearly seen.

   [**297] It is apparent that the Senate Bill 8 reapportionment of both the House of Delegates and the Senate follows[***66] in general the recommendations of the Hanson Report, although in the Hanson Report a Senate of 47 members with one representative in each house guaranteed to each political subdivision was recommended, whereas there is a 53 member Senate provided for in Senate Bill 8.  It is interesting to note, however, that the Senate provided for in Senate Bill 8 gives Baltimore City and the 4 suburban counties a greater proportion of legislative power than did the plan recommended by the Hanson Report.

   On page 20 of the Hanson Report, Professor Hanson described the method used in determining the allocation of legislative power, as follows:

   "If we devise a means of measuring legislative power as a rought test of the total system of representation, the situation is even more clearly shown.  Since the representative power is equally divided between the two houses, half the power is in each.  Thus a unit's total legislative power is represented by I/2 its percentage of the total membership of one house added to I/2 its percentage of its membership in the other. 8 (Footnote 8 - A full explanation of this method can be found in Alan L. Clem, 'Measuring Legislative Malapportionment: In Search of[***67] a Better Yardstick.' The Midwest Journal of Political Science, VII, 125-144 (1963).)

   "The Hanson report recommendations compare with [*512] the distribution of legislative power under Chapter 3 as follows: 

                       Hanson Report                  Senate Bill 8 Plan
             % Pop. % Del. % Sen. % Leg. power  % Del. % Sen. % of Leg. power
                                     in both                   in both houses

                                          houses
Baltimore
City         30     27     21     25            30     23     26
4 Suburban
Counties     45     38     36     37            44     42     43
9 Medium
Counties     17     20     21     21            18     17     17
10 Small
Counties     8      14     21     18            8      19     13

 

   (Discrepancies in totals due to rounding.)"

   In connection with the thought that the legislative process is to be considered as a whole in deciding reapportionment cases, I am of the opinion that an additional factor is to be considered, i.e., that Maryland is a "strong Governor" State.  Not only does the Governor in Maryland have the usual veto power (which is a part of the legislative process designed to create a check upon ill considered legislation, see Article II, Section 17) but by Article III, Section 52 of the Maryland Constitution the Governor not only formulates the State[***68] Budget, but the General Assembly may not increase it unless it provides the necessary taxes t meet the increased expenditures.  The history of this beneficent amendment to the Maryland Constitution in 1916 is set forth by Chief Judge Sobeloff, for the Court, in McKeldin v. Steedman, 203 Md. 89, [**298]97, 98 A.2d 561, 564 (1953), Chief Judge Sobeloff stated:

   "The heart of the scheme, as stated by the Goodnow n13 Commission, is 'to impose upon the Governor [*513] the sole responsibility * * * of presenting to the legislature a complete and comprehensive statement of the needs and resources of the State * * * ; to make it impossible for the legislature so to change the plans proposed by the Governor as to produce a deficit; but, to permit the legislature to make provision for any purpose not included in the Governor's plan on the condition that it provide for the revenue which the accomplishment of its purpose necessitates.'" 

n13.  Dr. Frank J. Goodnow, then President of the Johns Hopkins University, was its chairman and among its distinguished members was F. Neal Parke, later a member of the Court of Appeals.

[***69]

   The Governor, by Article II, Section 17 of the Maryland Constitution is given the power to veto items in any bill making appropriations.

   These constitutional provisions and the various statutes implementing the formulation of the State budget and fiscal policy by the Governor given him a dominant position in the fiscal policy of the State not usually enjoyed by the Chief Executive of a State, but more usually performed by the legislature itself.  This most important participation by the Governor, who is elected by the electorate at large throughout the State, in the legislative process is, to my mind, an added reason why some - but not dominant - representation should be given the smaller political subdivisions so that they will not be completely overwhelmed by the dominant majority.  Indeed the power of the Governor who must depend upon the majority of voters Statewide, is such the in the final analysis (although sometimes temporarily delayed) the will of the majority has in fact been effective in Maryland even before the present constitutional requirement to reapportion became a part of the constitutional law of the United States.

   It is clear to me that under the provisions[***70] of Senate Bill 8 population is not submerged. In my opinion, Senate Bill 8, now Chapter 3 of the Laws of Maryland (Special Session, October 1965) should have been declared constitutional, valid and effective by the Chancellor and I would reverse his decree to the contrary.

   I am authorized to state that Judge Horney concurs in the views here expressed. 

WEST v. DIRECTOR OF PATUXENT INSTITUTION 
App. No. 12, September Term, 1965.
 
Court of Appeals of Maryland
 
240 Md. 735; 215 A.2d 475; 1966 Md. LEXIS 772

 January  5, 1966, Decided

   PRIOR HISTORY: [**1]

   Application for leave to appeal from the Circuit Court for  Anne Arundel  County (SACHSE, J.).

DISPOSITION: Application denied.

JUDGES: Before PRESCOTT, C.J., and HAMMOND, MARBURY, OPPENHEIMER and McWILLIAMS, JJ.

OPINION:  [*736] PER CURIAM.

   For the reasons assigned in Judge Sachse's opinion below, as well as petitioner's failure to comply with Maryland Rule BK 46(b), his application for leave to appeal must be denied. 

SHAMBERGER, Etc. v. DESSEL, et al. 
No. 454, September Term, 1964
 
Court of Appeals of Maryland
 
240 Md. 650; 215 A.2d 177; 1965 Md. LEXIS 482; 15 A.L.R.3d1029

 December  15, 1965, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed January 12, 1966, Denied January 18, 1966.

PRIOR HISTORY:  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed; appellant, individually, to pay the costs.

CORE TERMS:  legacy, testatrix, legatee, bequest, testator, increments, residue, gift, bequeathed, chancellor, remainder, specific legacy, quotation, corpus, demonstrative, executor, definite, pecuniary legacies, specific legatee, appreciation, granddaughter, piece of property, residuary legatee, residuary estate, special fund, aliquot part, sister-in-law, segregated, collected, bequeath

COUNSEL: Harry Goldman, Jr., with whom were Frank C. Serio and McWilliams & Melvin on the brief, for appellant.

   Delverne A. Dressel and Reuben Shiling, with whom were Paul M. Higinbothom and C. Osborne Duvall on the brief, for appellees.

JUDGES: Prescott, C. J., and Horney, Marbury, Oppenheimer and Barnes, JJ. Prescott, C. J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*652] [**178] This appeal involves a construction of the last will and testament of Gertrude Dessel Kratsch, who died on September 17, 1960, a resident of Anne Arundel County, Maryland.  Due principally to caveat proceedings and other litigation after her death, n1 certain income, interest, and appreciation accrued to her estate before distribution, n2 and the executors, being uncertain as to the proper disposition to be made thereof, filed suit praying the court's instructions relative thereto.  After the chancellor decreed that[***5] the non-residuary legatees (named in Item Two of the will, infra) were entitled to the same, the appellant, in his individual capacity as residuary legatee and as executor, appealed.

n1 See Dessel v. Goldman, Jr., 231 Md. 428; Shamberger v. Dessel, 236 Md. 318.

n2 It seems to be conceded that the aggregate thereof now exceeds $14,000.

   The pertinent provisions of Mrs. Kratsch's will follow:

   "ITEM TWO: I direct that all my cash monies, including by way of description and not by way of limitation all of my monies deposited in any Building and Loan Association or Savings Bank, or monies on hand and including my United States Savings Bonds which I direct shall be cashed, shall be collected by my Executors hereinafter named, into one fund, which after payment of all my just debts, funeral expenses, [*653] expenses of last illness and all taxes and lawful expenses of administration, the entire balance thereof of said fund, I hereby give, devise and bequeath unto my legatees hereinafter named, in the[***6] proportions following each of their said names: [Here the testatrix names 22 relatives and friends and allots them portions of the fund ranging from 1/2 of 1% to 18%.  The appellant receives 8% of this fund as well as the residuary estate.]

   "ITEM THREE: All the rest, residue and remainder of my Estate of whatever nature, kind or description and wheresoever situate, which I may own at the time of my death, including by way of description and not by way of limitation my land and residence at Bar Harbor, Anne Arundel County, Maryland and the contents thereof and all of my personal belongings, I do hereby give, devise and bequeath absolutely unto my nephew, George Russel Shamberger [the appellant]."

   The chancellor found from the evidence and a consideration of the entire will that it was the intention of the testatrix that all of her monies on hand, including deposits in the institutions named in the will and the proceeds of the United States Savings Bonds, form a special fund to be divided proportionately among the legatees named in Item Two, after payment of debts, taxes, and certain expenses.  He held that the bequests named therein were specific; and that the provisions of[***7] Code (1957), Article 93, § 391, were not applicable to the situation presented.  He, therefore, authorized [**179] and directed the executors "to distribute the interest, income and appreciation accrued since the death of the [testatrix] from the special fund set up under Item II" unto the legatees as set forth in Item Two.

   Although one subsidiary contention is raised and argued in appellant's brief, in the view that we take of the appeal, it may be disposed of by answering the following questions: 1. Was the chancellor correct in directing the accrued interest, income and appreciation to be paid to the legatees named in Item Two because said legacies were specific in nature?; and 2, Did the [*654] provisions of Article 93, § 391, render the chancellor's conclusions relative to the interest, etc., erroneous?

   I

   Appellant agrees that the fund directed to be created under Item Two should "be construed with reference to the date of [testatrix'] death." The fund is shown to consist of some $119,000.  18% thereof was bequeathed to her brother; a like 18% to a sister; 8% to appellant, a nephew; 12% to one niece and 10% each to two other nieces; and then small portions to[***8] more distant relatives and friends.

   Legacies have been traditionally classified as specific, demonstrative, and general; each having different properties and characteristics. n3

n3 Mr. Jarman suggests a more exact and logical categorization would be to divide all legacies into specific and general ones, and then to subdivide the general legacies into those that are demonstrative and those non-demonstrative. 2 Jarman, Wills (8 ed.), p. 1043.

   In Miller, Construction of Wills, § 126, is found the following (with appropriate Maryland citations to support the text):

   "Specific legacies; in general.  -- A specific legacy is defined as a bequest of a particular thing, or money, specified and distinguished from all others of the same kind; as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor. In order to constitute a bequest specific there must be a segregation, of the particular property bequeathed, [***9] from the mass of the estate, and a specific gift of a specified portion to the legatee [relative to this last mentioned matter, see Jarman, op. cit. p. 1041, where it is said, '* * * and similarly bequests of parts of a specific fund are specific']."
 
Similar definitions are found in 6 Page, Wills (3 ed.), p. 17, and in Sykes, Maryland Practice, § 83; also see Hall v. Elliott, 236 Md. 196.

   A general legacy is one which is payable out of the general [*655] assets of the estate of the testator, being a bequest of money or other thing in quantity, and not separated or distinguished from others of the same kind.

   For the purposes of this appeal, the following observations as to what constitutes a demonstrative legacy will suffice.  Demonstrative legacies partake of the characteristics of both general and specific ones.  They are general in nature, but a certain fund or piece of property is pointed out as being primarily charged with their payment.  The fund or piece of property (subject, of course, under certain circumstances to possible indebtedness, etc., of the testator) is primarily liable for their payment, but, due to their "general" nature, if the[***10] fund or piece of property proves insufficient to pay them, the legatee may receive payment out of the general assets of the estate.

   As in other cases involving the construction of wills, where it becomes necessary to decide into which classification a particular legacy falls, the intention of the testator, as gathered from the four corners of the will, will control, unless inconsistent with preventive principles of law.  1 Sykes, [**180]Maryland Practice, § 83; Miller, Construction of Wills, p. 347, and Maryland cases there cited.

   We have concluded that the legacies named in Item Two are specific ones and the language of the will imperatively requires us to so hold.  Gardner v. McNeal, 117 Md. 27; Bristol v. Stump, 136 Md. 236. There is no doubt that the monies going into, and making up, the fund created therein were owned by the testatrix at the time of her death.  Said monies were clearly and explicitly segregated from other portions of her estate, and a specific portion of the fund created therefrom was given to each legatee. The possibility that the property comprising the fund might have fluctuated between the date of the will and the death of the testatrix[***11] does not prevent the legacies thereunder from being specific.  Jarman, op. cit., p. 1042.  In Sparks v. Weedon, 21 Md. 156, a bequest of "the amount of the notes of James Sands and Henry H. Bush, [owed to testatrix] or whatever may be due or owing on said notes at the time of my death" was held to be specific.  Where a crude will separated and distinguished the money in several banks named from the other property of the testator so that it could be identified as the particular [*656] fund bequeathed, this Court held the legacies were specific.  Miller v. Weber, 126 Md. 658. And the fact that the testatrix herein exonerated her residuary estate from the payment of debts, expenses and taxes, etc., at the expense of the fund (before any distribution thereof) did not, we think, destroy the specific nature of the bequests. Cf. In re Purfield's Estate, 289 N. Y. S. 297; Malcolm v. Malcolm, 10 A. 2d 255 (N.H.).  The above clearly brings said bequests within the scope of the defintion of specific ones quoted above, and we so hold.

   We think this conclusion clearly carries out the intention of the testatrix as manifested within the four corners of the will.  There[***12] are two features of specific legacies, which we have not yet mentioned: first, if such a legacy fails, the specific legatee is not entitled to payment from the assets of the testator's general estate; second, a specific legacy generally entitles the specific legatee to income and increments from the legacy from the death of the testator. It will be noted that in Item Two there are no general or quantitative designations of the legacies being for certain amounts of money, such as $1,000 to A and $2,000 to B etc.  On the contrary, it provides for gifts of certain definite percentages of the corpus of the fund and no other source. n4 In other words, the legacies are couched in language which provides explicitly that if the fund failed, the legacies named therein also necessarily failed.  This assuredly does not evince any manifestation on the part of the testatrix to bequeath an amount, or amounts, of money generally, for, as stated above, if the fund failed and amounted to nothing and was therefore non-existent, the percentage given to each legatee would consequently amount to nothing, and the legatees would not be entitled to any payment from general assets.  This is a strong indication, [***13] we think, that the testatrix had in mind the creation of specific legacies, rather than general or demonstrative ones.

 n4 The cases are legion, which hold (or state) that a gift of the corpus of a particular fund or other property (as distinguished from merely making the gift payable out of, or charged upon, said fund or property) is a specific legacy. See for examples: Busch v. Plews, 88 A. 2d 264 (N. J. Sup.); Lenzen v. Miller, 37 N. E. 2d 833 (Ill.), Gelbach v. Shively, 67 Md. 498; In re Purfield's Estate, 289 N. Y. S. 297.

   [*657] In regard to the second feature of specific legacies, mentioned above, it will be noted that the appellant-nephew received, under Item Two, 8% of the fund, and under Item Three he received "all the rest, residue and remainder" of testatrix' estate "which I [the testatrix] may own at the time of my death," which consisted of a residence and the contents thereof, the testatrix' personal belongings, and several ground rents.  The [**181] use of the above quoted words "which[***14] I may own at the time of my death" is some indication, albeit somewhat slight, that the testatrix did not intend the nephew to receive, as residuary legatee, the increments from the major portion of her estate which she had set apart and segregated from the remainder thereof.  But of more importance, after limiting appellant's share of the fund to 8% thereof (some $9,500), it scarcely seems possible the testatrix intended that he receive the increments from the entire fund (about $14,000 now), which she had bequeathed to 21 other persons and the appellant.  This, to us, is another factor which plainly shows that the testatrix intended the legacies under Item Two to be specific.

   The appellant has earnestly argued that the bequests under Item Two are general ones and cannot be held to be specific in nature.  He cites five out-of-state decisions, some of very early vintage, and the following excerpt from Littig v. Hance, 81 Md. 416, 433: "Where a fund is given subject to debts or subject to other legacies, the gift of the residue (italics ours) is not specific.  Harley v. Moon, 1 Drewry & Smale 623; Baker v. Farmer, L. R. 3 Ch. App. 537."

   The five out-of-state cases[***15] will not be considered and discussed separately, for, after examining them with care, we find no one of them which is apposite here.

   A cursory and "first-blush" reading of the quotation from Littig would seem to render some support to appellant's contention, but a careful analysis of the holding in that case and the decisions cited to sustain the proposition under discussion leads inexorably to the conclusion that the quotation would have to be construed out of context to aid appellant's cause.

   In Littig, the Court was interpreting a bequest to testatrix' sister-in-law, which read as follows (according to the Court's construction of the actual clause in the will): "The large sums [*658] of money for dividends, etc., to which I am entitled under the terms of my husband's will, and also all moneys that may be due and owing to me from his estate and my late son, after the payment of the money-legacies hereinbefore mentioned, I give and devise absolutely to my sister-in-law, Cassandra A. Kirk." The total amount of money received by the testatrix from these sources was some $5,000 (which after deduction of the pecuniary legacies of $1,700, amounted to about $3,300), [***16]and it comprised all, or practically all, of testatrix' estate.  Her only heirs at law and next-of-kin were 3 grandchildren, who had been bountifully provided for in their father's will; the sister-in-law, a widow with 7 children, was in very impoverished circumstances.  The moneys from the sources mentioned were collected by the testatrix prior to her decease; hence, it became important to determine whether the legacy to Mrs. Kirk was a specific one, for if it were specific, it had been adeemed, Mrs. Kirk would be entitled to nothing, and the testatrix would have died intestate as to the $3,300.

   This Court held, rightfully we think, that the legacy was not specific.  It will be noted that Mrs. Kirk was not left a definite, aliquot part of the corpus of a specific fund, as in the case at bar, but was bequeathed moneys received from certain sources after, and only after, the payment of named pecuniary legacies. In other words, she was left the "residue" of the fund, if there were any residue, and not a share, or portion, of the corpus of a fund to be shared with other specific legatees. The distinction is clearly made and demonstrated in several of the decisions cited in footnote[***17] 4.

   The kernel of the Littig holding is illustrated in two short quotations from the opinion.  They follow: "This legacy [Mrs. Kirk's] cannot be treated as specific without defeating the obvious intention of the testatrix to make Mrs. Kirk, whom she knew to be in need, the chief recipient of her property * * *," and "The words used are only descriptive of the situation [**182] of the money intended to be bequeathed, and they do not, in view of all the attendant circumstances (italics ours), import a gift of specific debts * * *." And we find nothing in the original quotation therefrom, when read in context with the rest of the opinion, in conflict with our holding above, or anything we have said previously.

   [*659] Our holding relative thereto is strengthened, if indeed not rendered conclusive, by an examination of the two cases cited as authority for the quotation in Littig, and the case of Page v. Leapingwell, 18 Ves. 463, mentioned in both of the decisions.  In Harley v. Moon, supra, a testatrix, in exercising a power of appointment, directed that the trustees should "call in and convert" certain parts of an estate to the amount of some 600£., and, [***18]after the payment of debts and expenses, should pay certain pecuniary legacies of named amounts, and stand possessed "of the residue thereof" for the benefit of her granddaughter. The fund became diminished and the question for the Court's decision was whether the pecuniary legacies and the legacy of the residue should abate proportionately.  The Vice-Chancellor stated that "the question is one of intention, which must be collected from the whole instrument," and, in the present case, "the testatrix appears to me, in giving the remainder of the fund to the granddaughter, not to have intended to give her specifically an aliquot part of the fund, for this reason, that she has * * * directed that the fund should be applied in payment of her debts, and if her intention had been carried out there would not have remained a definite aliquot part of 600£. for the benefit of the granddaughter, after the payment of the particular legacies to the two daughters." (Of course, in the case at bar, the debts and expenses were directed to be paid before the divisional portion of the fund came into existence.) During the course of his opinion, the Vice-Chancellor gave this illustration.  If a testatrix[***19] be disposing of a definite sum, for example 600£., and she gives "100£. each to A and B, and the remainder I give to C, without specifying the amount of the remainder, the Court has held that in the absence of anything showing a different intention, that the intention was to give the residue as a specific sum to C, just as specifically as the gifts to A and B.  That is the case of Page v. Leapingwell," supra.  A similar ruling was made in Baker v. Farmer, supra, based upon the intention of the testator, after quoting the illustration given in Harley.

   We have stated above that the quotation from Littig, when considered in the context of the opinion therein, is an accurate statement.  After reading the English cases, above mentioned, [*660] and many others in this country, we think, if stated as a general proposition, it is more precise to say, "where a fund is given subject to debts, or subject to other legacies, the gift of the residue, ordinarily, is not specific."

   As the legacies under Item Two were specific, and as pointed out above, the legatees of such legacies, in the absence of a manifestation of intention to the contrary, are entitled to income[***20] therefrom, and increments thereto, from the death of the testatrix, it necessarily follows that the chancellor was correct in his ruling in regard to the income and increments involved herein (we are not here concerned with any question of taxes or expenses, etc., since they were ordered paid from the fund before division), unless Code (1957), Article 93, § 391, n5 changed the law relative to specific legacies.

n5 This section was repealed, and a new article to the Maryland Code created by the Laws of Maryland (1965), Ch. 877.  No contention is made that the provisions of this article have any bearing on the case at bar.

   Section 391 was enacted in 1949, and our discussion thereof will be brief, for we do not deem it necessary to construe the same, [**183] except to the extent of showing it has no effect on the present appeal other than it confirms and requires the chancellor's ruling as he did.

   Some years ago, roughly around 1930, there developed a conflict in the authorities as to whether, as between life[***21] tenant and remainderman (in the absence of an indication of contrary intent on the part of the testator), income received, during the period of administration, from that part of a testator's assets which eventually was sold and used to pay debts, administration expenses and legacies, went to the life tenant as income or constituted a portion of corpus. The Maryland law was in conformity with the majority rule as said rule is stated in Tilghman v. Frazer, 199 Md. 620. Opposed to this was the so-called Massachusetts rule, which crystallized in 1929 in the case of Old Colony Trust Co. v. Smith, 165 N. E. 657 (Mass.).  It will be unnecessary to set forth the difference in the rules; our only purpose in discussing them is to show that Section 391 does not compel a holding that the income and increments involved herein should go to the residuary legatee under Item Three of the will.

   [*661] New York formerly followed the same rule as the Maryland one; however, in 1931, it adopted a statute changing its law.  8 Cons. Laws Service, Personal Property Law, § 17-b.  In 1949, Maryland adopted Section 391, which was apparently modeled after the New York statute.  The primary[***22] purpose of Section 391 was to deal with situations encompassed within the statement made at the beginning of the last paragraph above.  No such situation is involved in this appeal, and the concluding provisions of said section, which states, "nothing contained [herein] shall affect the right to income of any legatee or devisee who would otherwise be entitled to such income from property devised or bequeathed to him," completely negates an intention on the part of the Legislature to deny to specific legatees their right to income and increments on their legacies from the death of the testatrix, and compels a holding that such legatees shall receive said income and increments.

   Decree affirmed; appellant, individually, to pay the costs. 

MARTIN v. MAYOR AND ALDERMEN OF ANNAPOLIS et al. 
No. 33, September Term, 1965
 
Court of Appeals of Maryland
 
240 Md. 579; 214 A.2d 800; 1965 Md. LEXIS 473

 December  6, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree of November 30, 1964 affirmed, the costs to be paid by the appellant.

CORE TERMS:  parking, lease, parking facilities, chancellor, building permit, hotel, site plan, subject property, use permit, zoning, Maryland Rule, erection, station, reversible error, refusing to permit, parking lot, trial date, postponement, motor hotel, engineer, abused, consolidated, discovery, postpone, commit, decree, deck, uncontradicted evidence, motor inn, lessee

COUNSEL: C. Edward Hartman, II, with whom were Fell & Hartman on the brief, for the appellant.

   Neil Tabor and William L. Siskind for Hospitality House of Annapolis, Inc., one of the appellees.

   Submitted on brief by Ridgely P. Melvin, Jr., for the Yacht Basin Company, another appellee.

   No brief and no appearance for the other appellee.

JUDGES: Prescott, C. J., and Hammond, Marbury, Oppenheimer and Barnes, JJ. Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*582] [**802] On October 8, 1964, the appellant, William A. P. Martin (Martin), who resides at 2 St. Mary's Street, Annapolis, Maryland, and three other neighboring property owners (collectively referred to as the plaintiffs) filed a bill of complaint in the Circuit Court for Anne Arundel County against the appellees, Mayor and Aldermen of Annapolis (City of Annapolis), Hospitality House of Annapolis, Inc.  (Hospitality House) and Yacht Basin Company (Yacht Basin) to obtain a declaration that a resolution of the City of Annapolis[***6] of September 14, 1964, approving the application of Hospitality House filed August 10, 1964, and approved by the City Engineer on August 14, 1964, for a parking use of a portion of property owned by Yacht Basin on Compromise Street across from St. Mary's Street in Annapolis (the subject property) and leased to Hospitality House for parking of vehicles in connection with the proposed erection by Hospitality House of a motor hotel on the subject property, was unconstitutional, illegal and void.  In addition to the prayers for declaratory relief, the plaintiffs prayed that Hospitality House and Yacht Basin be enjoined from using [*583] the subject property for any purpose other than that permitted by the Annapolis Zoning regulations and from erecting a parking structure or garage or taking other action in connection with the application theretofore filed; that certain documents be forwarded to the Clerk of the Circuit Court and that the plaintiffs have other relief.

   After answers were filed and testimony taken, Judge Sachse passed a decree on November 30, 1964 in which it was recited that the action of the City of Annapolis of September 14, 1964 in granting the parking permit to[***7] Hospitality House "was not arbitrary, capricious, discriminatory or illegal under the laws pertaining to the granting of such permits for the purpose of parking of vehicles prior to obtaining a permit for the erection of any structure to be used for the purpose of such parking" and further that "As no application has yet been filed by the said Defendant nor any of the Defendants in these proceedings for the erection of any structure for the purpose of operating or maintaining the parking facility, this Court has not determined whether or not the facilities described in these proceedings for the purpose of parking meets the requirements of the Code for the issuing of a building permit for the erection of the parking facilities." The bill of complaint was dismissed by the decree and the plaintiffs were required to pay the costs.  It is from this final decree that the present appeal was taken.

   Four questions are raised by the appeal.  These are:

   1. Did the City of Annapolis act arbitrarily and illegally in issuing the parking permit?

   2. Did the trial court commit reversible error in denying the motion of the plaintiffs for a postponement of the trial of the case?

   3. Did the trial[***8] court commit reversible error in refusing to permit the production [**803] of the entire lease between Hospitality House and Yacht Basin?

   4. Did the trial court commit reversible error in refusing to permit A. L. Waldron, a witness for the plaintiffs, to testify in regard to the plans filed with the application for the parking permit?

   We have concluded that all of these questions must be answered in the negative and the decree of the lower court must be affirmed.

   [*584] I.

   Article IV of Chapter 17 of the Code of the City of Annapolis n1 deals with Parking Lots and Places.  These are divided into three categories: 1) parking places including any building or part thereof or lot in which 10 or more vehicles are stored for a fee; 2) receiving stations where vehicles are removed after parking places are closed; and, 3) parking lots or stations incident to another business.

n1 It was stipulated that the Chancellor could take judicial notice of the provisions of the Code of the City of Annapolis to the same extent as the Court takes judicial notice of the provisions of the Annotated Code of Maryland.

[***9]

   Hospitality House filed its application involved in the case at bar under the third category as incident to its business.  There being no available form for application for a parking permit, the application was submitted by a letter from Hospitality House to the City Engineer, dated August 10, 1964.  In this letter it is stated, inter alia, that application was made "for a parking permit to park automobiles on the premises shown on the site plan submitted with this application in triplicate, as an accessory use to the hotel or motor inn to be erected on this site in the location shown on the attached site plan." It is further stated:
 
"Please take notice that the parking requested is for the use of the guests of the motor inn or hotel and is not to be a commercial parking lot for the parking of cars for the general public.
"This application for a permit for parking facilities in connection with the use of the property as a hotel or motor inn is being made pursuant to and in accordance with the findings made by the Board of Zoning Appeals for the City of Annapolis on August 3, 1964 and in accordance with the provisions of the Annapolis City Code.  * * *

   The findings[***10] of the Board of Zoning Appeals to which reference is made in the letter-application of August 10, 1964 is as follows:

   [*585] "SEVENTH: Where the provisions of Chapter 26 of the said City Code require parking facilities in connection with any contemplated use of property, a building permit should not be issued for the proposed structure or the proposed parking facilities until a parking lot permit has been obtained, in accordance with all of the provisions of the said Code." n2

n2 This finding was contained in an Opinion and Order entered in a zoning appeal taken by Martin and others from the granting of a building permit to Hospitality House for the construction of the motor hotel on the subject property. The Board sustained the position of the appellants in the zoning appeal that a building permit should not be issued prior to the obtention by the applicant of a parking permit.  No appeal was taken from this ruling of the Zoning Board.

   Section 26-35, paragraph (c) 3 of the City of Annapolis[***11] Code provides that "parking space * * * shall be provided adjacent to all hotel buildings * * * sufficient in area to accommodate a number of cars equal to one hundred per cent of the number of sleeping rooms * * *." Section 17-72 of the same Code under the subtitle "Parking Lots Incident to Other Business" provides in part, as follows:

   "No person shall conduct, operate or maintain a parking lot or parking station for the parking of motor vehicles [**804] incident to another business without first obtaining a permit therefor from the city clerk.  No permit shall be granted until there shall also be filed with the city clerk a plat or drawing of the parking lot or parking station, approved by the city engineer, showing the location, size, capacity, location and size of driveways, kind of floor or ground surface, location, size and construction of attendant's station, wall or railway or sidewalk surrounding the parking lot or parking station and all other details which the city engineer may require."

   The parking use permit was accompanied by a site plan and an elevation plan showing the proposed location of the hotel and the parking facilities, and specifically, as required[***12] by Section [*586] 17-72, the location, size and capacity of the parking facilities, the location and size of driveways, the surface material to be used in constructing the parking facilities and other pertinent information.

   It was clearly established by the site plan that the proposed seven-story hotel had 137 rental units and a one-story restaurant located in the northeastern portion of the subject property. The parking area for the use of the guests of the hotel is located in the northwestern and southwestern portions of the subject property adjacent to Compromise Street and this parking area contains a total of 140 parking spaces or slightly more than the 100% coverage required by the Annapolis Code.

   The uncontradicted evidence submitted in the lower court by the plaintiffs established the somewhat unusual requirement and practice to file an application for the parking use before a building permit may be issued for either the construction of the parking facilities or the hotel structure.

   William R. Jackson, City Engineer of Annapolis, who, as required by law, administers the Building Code of the City of Annapolis, was called as a witness by the plaintiffs and testified[***13] that the parking permit issued by him was a "use" permit only, that it did not authorize the actual construction of the parking facilities, including the elevated deck, and that in order to build the parking facilities, Hospitality House would be required to submit an application for a building permit with detailed accompanying plans and specifications.

   Charles H. Steele, Fire Chief of the City of Annapolis, also testified for the plaintiffs and stated that he had reviewed and had approved the site plan submitted with the parking application and recommended its approval pursuant to Section 17-76 of the Annapolis Code.

    In view of the uncontradicted evidence that the number of parking spaces equalled 100% of the number of sleeping rooms in the proposed hotel, the finding of the Zoning Board and the evidence given by the administrative officers, the finding by the trial court that the permit approved by the City of Annapolis was not arbitrary or illegal under the applicable laws of the City of Annapolis was clearly correct and it would have been premature for the trial court, in the absence of an application [*587] by Hospitality House for a building permit to construct the facilities, [***14] to determine the issues raised by Martin as to whether or not the construction of the proposed facilities meet the requirements of the Annapolis Code.  Martin may raise all of these questions as and when Hospitality House files its application for the construction of the parking facilities and may, of course, pursue the applicable administrative remedies and procedures set forth in the Annapolis Code.  The trial court properly expressed no opinion and took no action in regard to the merits of these questions and neither do we.  Maryland Rule 885.

   The case at bar is readily distinguishable from Lipsitz v. Parr, 164 Md. 222, 164 Atl. 743 (1933), relied on by Martin.  In Lipsitz our predecessors sustained the action of the Mayor and City Council of Baltimore [**805] in revoking a building permit issued for the construction of an ice factory in a zoning district which prohibited its use for that purpose.  In the case at bar, the parking use is not prohibited but may be permitted in the discretion of the Mayor and Aldermen.  There is no evidence that this discretion was abused and unless an abuse of discretion were clearly established by the evidence, we will sustain its[***15] exercise.  Engle v. City Commissioners of Cambridge, 180 Md. 82, 86, 22 A. 2d 922, 923 (1941).

   It may also be pointed out that we have held in zoning cases, involving among other things, the use to which the property is to be put, that neither the Zoning Board nor the Court upon appeal from the Board's decision may consider objections arising under the Building Code in regard to construction, etc.  See Norwood Heights Improvement Association v. Mayor and City Council of Baltimore, 195 Md. 1, 6-7, 72 A. 2d 1-3 (1950).

   II.

   We are of the opinion that the Chancellor did not abuse his discretion in denying Martin's motion to postpone the hearing of this case.

   It is helpful to review briefly the applicable background.  As we have already indicated, on August 3, 1964, the Zoning Board ruled that Hospitality House should have obtained a parking permit before a building permit could be issued to it.  On August 10.  [*588] Hospitality House re-filed its application for a building permit and filed the separate application for the parking use involved in the case at bar.  The parking use permit was issued on September 15 and on October 6 a new building permit was issued.  The[***16] bill of complaint in the case at bar was filed on October 8 and on October 14, Martin filed new appeals to the Zoning and Building Boards from the issuance of the building permit. It was apparent that if the plaintiffs were successful in the case at bar, Hospitality House would most likely be prevented from obtaining further action in the administrative appeals, particularly in view of the prior holding of the Zoning Board that it was first necessary to obtain a parking permit.  Quite naturally, Hospitality House requested the Chancellor to set the trial date for the case at bar at the earliest possible time and the Chancellor fixed the trial date for November 25, 1964, notice of this being sent to counsel for all parties.  The plaintiffs on November 18, filed a motion to postpone the hearing.  It was alleged that Hospitality House had filed its answer to the bill of complaint on November 6, the City of Annapolis had filed its answer on November 17 and Yacht Basin had not yet filed its answer.  It was further alleged that the plaintiffs had had no opportunity for discovery and that the administrative appeals then pending should be "consolidated" with the case at bar.

   Yacht Basin[***17] filed its answer on November 18 (the day the motion to postpone was filed) and merely adopted the answer previously filed by Hospitality House.

   Also on November 18, the plaintiffs filed a substantial request for admissions of fact (it requested 17 separate admissions) under Maryland Rule 421, and Hospitality House filed its verified Answer to the Request for Admissions on the following day November 19.  The administrative proceedings could not be consolidated with an equity suit.  Maryland Rule 503.  The plaintiffs had had the same counsel represent them in all of the previous administrative proceedings and it cannot be said that counsel was not entirely familiar with all aspects of the case.  We see no prejudice to the plaintiffs in the Chancellor's refusal to postpone the trial date. A postponement might well have resulted in substantial prejudice to Hospitality House.  It is well settled that to reverse on this ground, we must find [*589] an abuse of discretion. Hughes v. Averza, 223 Md. 12, 19, 161 A. 2d 671, 675 (1960). We cannot say that under these circumstances, the Chancellor abused his discretion in refusing to grant a postponement of the trial date.

   [**806] [***18] III.

   Nor do we think that the Chancellor committed reversible error in refusing to permit discovery of the entire lease between Hospitality House and Yacht Basin and in refusing to permit the introduction into evidence of pages 9, 10 and 11 of the lease and the site plan attached to the lease.

   The plaintiffs obtained from Judge Evans an Order of Court on November 18, 1964 requiring the Hospitality House to produce for inspection, copying and photostating all leases, contracts, and agreements between Hospitality House and Yacht Basin pertaining to the proposed parking structure or the land on which the structure or deck is planned to be built or the use and control of such structure, deck or land.  On November 23, Hospitality House filed its response to that order (signed by counsel but without the affidavit of Hospitality House) stating that certain provisions in a lease dated August 31, 1964 pertained to the elevated parking deck and attached pages 9, 10 and 11 of the lease (paragraph 8 of the lease) and a copy of the site plan, dated April 18, 1964, attached to the lease. There are statements in the record by counsel for Hospitality House to the Chancellor indicating that there[***19] was a conference in regard to the possible discovery of the entire lease to which Hospitality House objected because of the confidential nature of the rent and other provisions; that Judge Evans, after himself inspecting the entire lease, indicated that the only provisions in the lease relating to the parking facilities were pages 9, 10 and 11 of the lease; and, that he declined to compel Hospitality House to produce the entire lease for the inspecting and copying by counsel for the plaintiffs.  There is, however, nothing else in the record indicating the action of Judge Evans in this regard.  The record, however, does not show any motion for relief under Maryland Rule 422 which Rule sets out the procedure and remedies available to a party if the other party fails to comply with an order for discovery. Then too, the plaintiffs [*590] offered in evidence as their Exhibit 13, the Response of Hospitality House filed November 20 so that no objection to this Response was presented below and is not available to Martin on this appeal.  Maryland Rule 885.

   In any event, it does not appear to us that the Chancellor would have abused his discretion if he declined to compel Hospitality[***20] House to produce the entire lease (see Sun Dial Corp. v. Fink, 211 Md. 550, 128 A. 2d 440 (1957)) and committed no error in refusing to admit the site plan and pages 9, 10 and 11 of the lease into evidence.  To justify the production of documents, the subject matter must be relevant and material to the issues in the case.  Hallman v. Gross, 190 Md. 563, 577, 59 A. 2d 304, 310 (1948). In our opinion, the contractual arrangements between Hospitality House and Yacht Basin, being private agreements and subject to modification by agreement between the parties at any time, would have no controlling effect or materiality to the question of the parking use of the subject property on the application to the City of Annapolis for the parking use.  The situation is analogous to private agreements and restrictive covenants and their relationship to the question of validity of zoning ordinances.  These private agreements have no effect upon the validity of zoning ordinances.  Perry v. County Board of Appeals for Montgomery County, 211 Md. 294, 127 A. 2d 507 (1956); Chayt v. Maryland Jockey Club, 179 Md. 390, 18 A. 2d 856 (1941). See Wheeler v. Gregg, 90 Cal. App. 2d 348, 203[***21] P. 2d 37 (Dist. Ct. App. 1949); Willott v. Village of Beachwood, 175 Ohio St. 557, 197 N.E. 2d 201 (1964). See also 101 C.J.S. Zoning § 39, pages 748-749; 3 RATHKOPF, THE LAW OF PLANNING AND ZONING ch. 74, § 1, pages 74-1 to 74-6 (3rd ed. 1964).

   IV.

   In our opinion, the Chancellor did not commit reversible error in refusing to permit A. L. Waldron, a witness called by the plaintiffs, to interpret the drawings in evidence as to whether or not as so interpreted [**807] they violated various sections of the Code of the City of Annapolis.

   Mr. Waldron is a graduate of the United States Naval Academy and is a mechanical engineer whose engineering experience [*591] had been as a naval officer except for the year and one-half he had been employed as operations manager of Hydrasearch, Inc. He is not a registered professional engineer and had never practiced as such.  His only experience in reading plans was with respect to the building of ships in shipyards.  Counsel for the plaintiffs stated "I am saying that I am not putting him on as an expert witness." It is clear that Mr. Waldron had no direct knowledge of the facts in the case.

   As we have already indicated, however, [***22] these issues were not properly before the Chancellor so that no prejudice resulted to Martin from the Chancellor's exclusion of this evidence, even if it be assumed, arguendo, to be admissible.

   Decree of November 30, 1964 affirmed, the costs to be paid by the appellant. 

BURTON, REC'R OF AMERICAN GUARANTY CORP. v. TATELBAUM, REC'ROF BROOKWOOD FARMS, INC. 
No. 292, September Term, 1964
 
Court of Appeals of Maryland
 
240 Md. 280; 213 A.2d 875; 1965 Md. LEXIS 452

 November  8, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order reversed, with costs, and case remanded for further proceedings appropriate under the aforegoing opinion.

CORE TERMS:  lease, lessee, lessor, leased equipment, receiver, rental, leased property, rent, economic necessity, personal property, option to acquire, purchase price, conditional, one-half, monthly, leased, space, equipment leasing, extrinsic evidence, thirty-two, conferring, federal tax, depreciated, machinery, gatherers, deduct, circumstances existing, property transferred, unambiguous language, contracting parties

COUNSEL: David Ross, with whom were Alexander Harvey, II and Ober, Williams & Grimes on the brief, for appellant.

   Mitchell Stevan, with whom were Sagner, Stevan & Harris, and John G. Rouse, Jr., on the brief, for appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Marbury and Barnes, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*282] [**875] In the midst of booming economic prosperity, the receivers of two financially ailing corporations are at each other's legal throats in a struggle to establish title to chattels which had been leased by one of the corporations to the other.

   Between June 1960 and February 1962 American Guaranty Corporation of Rhode Island, which did business in many[***5] states, transferred to Brookwood Farms, Inc., a roadside restaurant in Anne Arundel County which specialized in ice cream and other dairy products, the right to possess and use for stated [*283]periods a number of pieces of personal property. The transfers were evidenced by twenty separate writings signed by both parties.  Brookwood first needed new equipment and then money, and six of the later written leases covered property on its premises which it had sold to American Guaranty but physically retained under a lease back, and the other fourteen leases [**876] covered equipment such as walk-in ice boxes, freezers and compressors which American Guaranty had bought new from suppliers and leased to Brookwood.

   All the leases were in substantially identical form.  Their initial terms were for five years at monthly rentals equalling 2.2% of the purchase price of the piece of equipment leased; so that during the five-year terms the lessor would recover its initial investment and a gross profit of thirty-two per cent. Each lease renewed itself "from year to year" unless thirty days' notice of cancellation was given by the lessee. In seventeen of the leases the renewal rental[***6] for a year was the amount of the previous monthly rental; in the other three the annual renewal rent was twice the previous monthly amount.

   Each lease provided that upon its expiration or earlier termination, the lessee should return the leased equipment to the lessor in good order and repair, ordinary wear and tear excepted, and that "the Equipment is, and shall at all times be and remain, the sole and exclusive personal property of LESSOR; and the LESSEE shall have no right, title or interest therein or thereto except as expressly set forth in this Lease." The leases also stated that "the LESSEE will attach such labels or other identifying marks as the LESSOR may reasonably request to indicate that the Equipment is owned by the LESSOR."

   There was a further provision that upon default in payment of rent for ten days, or after ten days' notice of the filing of a petition under the bankruptcy laws or the execution of an assignment for the benefit of creditors, the lessee's "* * * right to possession of the Equipment shall terminate and the LESSOR shall be authorized to take immediate possession * * *."

   Each lease had on its face a blank space under the heading "Additional Provisions." [***7] In one lease that space contained a [*284] certification of title to the leased property; in another a statement that the lease superseded earlier leases; and in a third the space was blank.  In seventeen of the leases the space bore the notation "None."

   In January 1964 the Circuit Court for Anne Arundel County appointed a receiver for Brookwood and dissolved it.  Although the leases had been in default for some time, Brookwood's receiver refused to accede to American Guaranty's demand for the surrender to it of the leased property and filed a petition in the Circuit Court requesting a ruling that Brookwood had owned the leased articles and that they were free of any claim of American Guaranty. After a hearing at which he received parol and other extrinsic evidence of the intention of the parties and the meaning of the leases, Judge Duckett ruled that "* * * the so-called equipment leases were in fact not bona fide leases" and ordered the receiver of Brookwood to sell the properties free of lien or claim under the leases and hold the proceeds for the benefit of general unsecured creditors, including American Guaranty, whose receiver appealed the order.

   Discussions in Volume[***8] 1 of the 1962 University of Illinois Law Forum; in an article titled Acquisition of Industrial and Commercial Equipment Through Leasing Arrangements, 66 Yale Law Journal 751; and in a Note in 44 Boston University L. Rev. 103 show these facts, among others, as to equipment leases:

   The business of leasing equipment to industrial and commercial users has grown rapidly in the last two decades and presently is engaged in by a number of large corporations, with rentals running into hundreds of millions of dollars a year.  In the earlier stages of equipment leasing there often was a federal income tax advantage to the lessee, who could deduct the payments of rent from ordinary income and thus enjoy the benefit of securing equipment to aid in producing income without buying the equipment and at the same time have the federal government, in effect, pay approximately half the rent. The federal tax gatherers soon took a dim view of this and, after amendments to the law and regulations, in many instances [**877] required equipment leases to be considered, for tax purposes, as [*285] conditional sales or contracts of sale so that the lessee would be treated as the owner and could[***9] only depreciate the equipment and not deduct rent paid for it as a business expense. The federal courts sometimes have upheld the tax gatherers as, for example, in Starr's Estate v. C. I. R., 274 F. 2d 294 (9th Cir. 1959), and Mt. Mansfield Television, Inc. v. United States, 239 F. Supp. 539 (D. Vt. 1964), aff'd, 342 F. 2d 994 (2d Cir. 1965), although the United States Court of Appeals for the Eighth Circuit held to the contrary in Western Contracting Corporation v. C. I. R., 271 F. 2d 694, 701-02, saying:
 
"* * * this record is barren of probative evidence affording proof that the lease agreements did not express the true intent of the parties at the time they were entered into.  Indeed, the Tax Court found, 'It is true, as petitioner contends, that none of the agreements involved here contained options to purchase.  Furthermore, witnesses, including five representative dealers, testified that petitioner was under no obligation and had no vested right to purchase the equipment in controversy at the end of the so-called lease term.'

   * * *

   "In a proper case, the economic factors of the situation may be important in interpreting an agreement, and in arriving[***10] at the intent of the parties, but there is no legal basis here for holding, as the tax court in effect did, that such factors and circumstances can make a new agreement for the parties."
 
See also Benton v. Commissioner of Internal Revenue, 197 F. 2d 745 (5th Cir. 1952), at 752.

   Thus the tax advantage to lessees of equipment leasing have largely vanished or have come to be regarded as so hazardous or unlikely of success as not to be attempted.  Nevertheless, the practice of equipment leasing still flourishes and grows because of the practical and psychological and economic advantages and flexibility it affords the lessee and the profit it gives the lessors.

   Text writers and state and federal courts have agreed that where it appears clearly that the parties intended a lease and [*286] not an immediate or ultimate sale or a right to acquire title or the accumulation of an equity in the leased property, the apparent intention of lessor and lessee will be given effect, particularly where the terms of the lease do not include the conferring upon the lessee of a right or an option to acquire the leased equipment as owner.  See 2 Williston, Sales § 336 (rev. ed. 1948). [***11] In Tishman Equipment Leasing, Inc. v. Levin, 202 A. 2d 504, 507-08 (Conn.), the question was, as here, whether the leasing corporation could recover its property from the trustee in bankruptcy of the lessee, and the Connecticut court said:

   "The facts found by the trial court give adequate support to its conclusion that the transaction in issue is a lease. The document executed by the parties explicitly provided for retention of title by Tishman, the delivery of possession to Underwood, and Underwood's obligation to pay a monthly rental for a specified term with an option to renew.  There was no provision in the agreement by which Underwood could, under any circumstances, obtain title or require Tishman to convey title.  See General Statutes § 42-83(e).  In the event of a default or a failure to renew at the end of the term, Underwood was obligated to relinquish possession of the property to Tishman.  In addition, the market value of the machinery would have been 90 percent consumed during the term of the agreement owing to obsolescence, so that Tishman was being compensated for the use, rather than being paid the purchase price of the machinery. See Western Contracting[***12] Corporation v. Commissioner of Internal Revenue, 271 F. 2d 694, 700 (8th [**878] Cir.); Blumenthal & Harrison, 'The Tax Treatment of the Lease with an Option to Purchase,' 32 Texas L. Rev. 839, 857."
 
See also American Can Company v. U. S. Canning Corp., 180 N. Y. S. 2d 983 (App. T. 1958), aff'd, 193 N. Y. S. 2d 986 (App. Div. 1959), and compare Da Rocha v. Macomber, 116 N. E. 2d 139 (Mass. 1953), and Allen v. Cohen, 310 F. 2d 312 (2d Cir. 1962). The Maryland cases of Beckwith Mach. [*287] Co. v. Matthews, 190 Md. 182, Alban Tractor Co. v. Tax Comm., 219 Md. 593, and United v. Potts & Callahan, 231 Md. 552, all involved writings conferring an option in the transferee to purchase the transferred property from the transferor and are not particularly helpful here.

   All of the factors relied on in Tishman are present in the lease arrangements between American Guaranty and Brookwood.  (American Guaranty seemingly depreciated the leased property during the initial terms of the leases to a total of eighty-seven and one-half per cent of its cost.) The leases, in the light of circumstances existing at the time they were executed, are clear and [***13]unambiguous.  Brookwood was not given by the leases as written either the right or the option to acquire title to, or an equity in, the leased equipment. Having found that the contracts of lease were binding agreements which clearly reflected the intent of the parties and were free of claims of fraud, mistake or illegality of purpose, there was no need to consider evidence extrinsic of the writings and it was improper to do so over the timely objections which were made.  Glass v. Doctors Hospital, 213 Md. 44, 57-58; Whitney, Exec. v. Halibut, 235 Md. 517, 527-28; Annot., 57 A.L.R. 2d 1076 (1958).

   If the extrinsic evidence which was received by the trial judge over objection is considered, the lessee is not helped.  The "understanding" which Brookwood's vice-president, who acted for it in the making and execution of the leases, said he had was that after ten years "* * * we could then purchase the equipment for whatever the agreed upon value would be between ourselves and American Guaranty;" each case would have to be decided differently.  Long after all the leases had been executed, American Guaranty's Maryland sales representative wrote Brookwood that the "buy-out" price[***14] of leased equipment would be a negotiated one during the initial term and thereafter would be lower than the depreciated value of the equipment shown on the schedule enclosed (twelve and one-half per cent of its cost) but would not be more.

   It was shown by Brookwood's receiver that American Guaranty carried the leased equipment on its books as assets.  It paid federal income tax on the rental payments received on the theory that they were rents and not instalments on account of a [*288] purchase price. When, during the terms of the leases, Brookwood sold its milk business to a dairy, the buyer took over some of the leased equipment as part of the deal and, not wanting to continue the leases, bought it from American Guaranty at a negotiated price.  Brookwood neither asked for nor received any part of the purchase price. American Guaranty, as part of its regular course of business, made leases with options to purchase as well as those without, and it seems conceded that had Brookwood requested purchase options they would have been granted and, with suitable adjustments of rentals, have been noted in the box in the leases marked "Additional Provisions." No such request was ever[***15] made by Brookwood.  It is true that Brookwood's accountant said that the leases were carried on its books as notes payable and suggested it took depreciation on the leased equipment in its tax returns, rather than deducting [**879] the rental payments, but it was not shown that this had been Brookwood's intent and purpose at the time of the making of the leases and it may well be that its accountant became overawed by the federal tax people and the court decisions which supported their maximum tax gathering point of view.

   Brookwood's receiver argues earnestly that the "practicalities of the situation" and "the factors of economic necessity" combine to establish that the leases, despite their explicit provisions, were either conditional sales, or contracts to sell, or secured loans.  He cites Brookwood's obligation under the leases to repair and maintain the equipment, to bear the risks of loss or damage, to pay property taxes on the equipment and the fact that some of the equipment was so attached to the realty as to be likely to become fixtures, as well as arguing that after it had paid one hundred thirty-two per cent of an article's cost in five years and could then acquire[***16] it for twelve and one-half per cent of that cost, it would become an economic necessity for Brookwood to buy it.  The answer is, we think, that all of these matters were known to the contracting parties when they entered into the leases and they chose to agree in clear and unambiguous language that there would be leases of, not sales of or rights to purchase, the property transferred. The lessor chose to impose conditions and obligations as to the [*289] leased property which were legal and, indeed, not illogical, in such a lease of personal property and the lessee knowingly and voluntarily chose to agree to those conditions and obligations.  That the parties did so choose to so agree did not transform a lease into a sale.  2 Williston, op. cit. supra at § 336.  As the Court said in Western Contracting, supra at 702: "* * * there is no legal basis here for holding * * * that such factors and circumstances can make a new agreement for the parties."

   Order reversed, with costs, and case remanded for further proceedings appropriate under the aforegoing opinion. 

SNOW et ux. v. WATSON 
No. 419, September Term, 1964
 
Court of Appeals of Maryland
 
240 Md. 712; 213 A.2d 748; 1965 Md. LEXIS 497

 October  22, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Case remanded without affirmance or reversal for further proceedings; costs to abide the result.

CORE TERMS:  evidence adduced, custody, grandparents, affirmance, reversal

COUNSEL: [***2]

   Thomas J. Wohlgemuth, with whom were Smith & Wohlgemuth on the brief, for the appellants.

   John A. Blondell for the appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Marbury and Oppenheimer, JJ., and Foster and Jones, JJ., Associate Judges of the Eighth Judicial Circuit, both specially assigned.

OPINIONBY: PER CURIAM

OPINION: [*713] [**749] This appeal involves the custody of two children; one 7 years of age; the other 5.  We have repeatedly stated that in such cases the paramount issue to be determined is what will best subserve the interest of the children.  In most cases of this nature, the parties (in the one at bar, the maternal grandparents v. the father) make a satisfactory record for the courts so that that issue may be decided; but, when they do not, the trial courts, sua sponte may require the production of additional evidence, and may order investigations and reports from available state and local agencies.

   In the instant case, there has been improperly included in the record extract a report from the Department of Welfare of the State of West Virginia in the nature of a letter from a Social Worker of that Department to Chief Judge Evelyn Smith of[***3] the Orphans' Court of Anne Arundel County.  She, of course, was not sitting in the case, and the letter was not offered or received into evidence.  The letter is clearly not properly before us.

   The solicitor for the appellants requested the trial court to have investigations made by official public agencies of both Anne Arundel County and the State of West Virginia, the father's home.

   It would serve no useful purpose, at this time, to set forth the evidence adduced below.  Suffice it to say that it sorely lacked the ingredients necessary to bring before the court a full disclosure of the crucial matters essential to a proper disposition [*714] of a custody case.  The trial judge, we think, should have granted the request of appellants' solicitor, and had a full investigation made of the grandparents' home, their living conditions, educational facilities that would be available to the children, etc., and a like investigation made of the father's home, living conditions, etc.  We will, therefore, remand the case, pursuant to Maryland Rule 871 a, without affirmance or reversal for further proceedings, wherein the parties shall have the opportunity, if they desire, to offer additional[***4] evidence, and the court shall obtain reports from the proper available official agencies.

   This ruling makes it unnecessary to act further upon appellee's "motion to correct record."

   Case remanded without affirmance or reversal for further proceedings; costs to abide the result. 

GEISLER v. EMINIZER 
No. 375, September Term, 1964
 
Court of Appeals of Maryland
 
240 Md. 72; 212 A.2d 734; 1965 Md. LEXIS 425

 August  25, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed to the extent of $1390.13 and reversed as to remainder; and the case is remanded for further proceedings and a determination of the nature of the transactions with respect to the boat; 1/4th of the costs to be paid by appellant and 3/4ths by appellee.

CORE TERMS:  grandson, boat, grandfather, gift, repairs, pile driver, steering gear, totaling, marina, buy, boatyard, repaid, broker, marked, inter vivos, personal use, ascertain, expended, aggregating, machinery, belatedly, repayment, monetary, issuance, titled, wharf, duty

COUNSEL: William O. Goldstein and Robert Hess for the appellant.

   Joseph I. Huesman, with whom was Thomas F. Dempsey on the brief, for the appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Sybert and Barnes, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*73] [**735] We are concerned on this appeal with the monetary transactions between a grandfather (Roscoe Eminizer) and a grandson (Robert Geisler).  In all there were twelve transactions (totaling $6,457.13) involving five different items or matters.  The grandfather asserts that all were loans. Except for the first one, the grandson insists that all were gifts. The record indicates that four of the items or matters were loans, but it is not possible to ascertain from the record before us the nature of the fifth matter.

   The first item in point of time involved the transfer of $300 in cash from the grandfather to the grandson, who was then in the Coast Guard, to buy an automobile for his use while off duty. It is conceded that this was a loan, that $100 was repaid prior to suit and that the[***3] balance due was $200.
 
   The second matter (though not in chronological order) involved the issuance of four checks over a period of ten months to the grandson aggregating $640.13 n1 with which the grandson was to construct a pile driver to enable him to go in business for himself after he had completed his duties in the Coast Guard.  All of these checks were marked "loan pile driver" by the grandfather after the cancelled checks had been returned to him by the bank.  According to the grandfather, they constituted a loan to be repaid after the grandson began working regularly with the pile driver. But, according to the grandson, these transactions were gifts.

n1 This sum consisted of a check (exhibit five dated December 7, 1961) for $100; a check (exhibit two dated June 30, 1962) for $240.13; a check (exhibit three dated August 20, 1962) for $150; and a check (exhibit four dated September 5, 1962) for $150.

   The third item concerned the issuance of a check for $500 (exhibit ten dated December 23, 1961) to[***4] the grandson while he was still in the Coast Guard to be used to extricate himself from a situation he had gotten into.  As to this check (which the grandson endorsed to his attorney) it was stipulated that if the attorney were called as a witness he would testify that the $500 was a loan; that he had charged his client a fee of only $25 for services rendered in solving the problem; and that he [*74] gave the balance of $475 to the grandson believing that he would return it to the grandfather. This was never done, but the grandson testified that the attorney told him that the grandfather had said the money was to be used to purchase the machinery he needed to operate the pile driver.

   The fourth item, represented by a check for $50 (exhibit seven dated July 19, 1962), was said by the grandfather to have been a personal loan, but the grandson claimed that it was a gift.

   The fifth matter (the second transaction chronologically) concerned the purchase of a boat by the grandfather for $4800 and the repairs subsequently made thereon totaling $267.  The grandson was in the Coast Guard at the time the boat was bought, but he worked in a private boatyard when he was on leave. [***5]The grandfather told his grandson on one of his off-duty periods that he wanted to buy a boat to go fishing in and asked him to look for one.  Shortly thereafter the grandson found a boat he thought his grandfather should see and the grandfather, after looking it over, purchased the boat. It was paid for by a check (exhibit one dated July 22, 1962) on which the grandfather belatedly wrote "boat money." Although he referred to it as "my boat," the grandfather caused the boat to be titled in the name of the grandson so that, as the grandfather testified, no one could take it away from him (the grandson) in case he (the grandfather) should die.  But, according to the grandson, the boat was so titled because his grandfather had never done anything for him and wanted him to have [**736]something.  As to this, it was stipulated that if the broker who sold the boat (the broker was also the owner of the marina where the boat was purchased) were called as a witness he would testify that the boat was a gift from the grandfather to the grandson and that he (the broker) made out the application for title in the name of the grandson at the direction of the grandfather. The evidence with[***6] respect to who had possession of the boat and as to the use of it from time to time is meager and indefinite.  The grandfather testified that the boat was kept in the marina where it was purchased until the grandson and the owner of the marina "had some words." When that happened the marina owner ordered the grandson to move the boat and he (the grandson) "carried it up" Stoney Creek [*75] to a wharf near where he resided.  The grandfather also testified that he used the boat whenever he wanted it and that he and his friends had gone out on the boat with the grandson "a couple of times." While it is likely that the grandson also used the boat whenever he desired, there was no testimony to that effect.  The last time that the grandfather used the boat was on a weekend in June of 1963.  On that occasion, having discovered that the boat was in bad condition, he docked it on his return at a boatyard in Bear Creek to be repaired.  But the grandson, although he knew why the boat was placed in dock and that the grandfather intended to pay for the repairs, caused the Coast Guard to remove the boat from the boatyard and moor it at the wharf in Stoney Creek.  The grandfather stated that[***7] he had not seen the boat since.  Nor had he asked to use it because he deemed it useless since the grandson had told him that the boat was not his.  The grandson testified that the boat was "still around" but there was no evidence as to whether it was usable.  Following the purchase of the boat, the grandfather on four separate occasions over a period of more than nine months paid for repairs totaling $267.  The grandfather testified that he gave the grandson a check for $135 to buy another steering gear but that the money was not used for that purpose.  While the grandson does not deny that he was given money to buy a new steering gear, he claimed that the cost thereof was included in a check (exhibit two dated June 30, 1962) for $240.13, which, however, the grandfather claimed was money loaned for another purpose (see footnote one on page one).  According to the grandfather the checks for $30 (exhibit nine dated December 2, 1961) and $50 (exhibit six dated June 21, 1962) and presumably the check for $52 (exhibit eight dated August 12, 1962), totaling $132, were also given for boat repairs. All were belatedly marked "loan," but according to the grandson all of them were gifts[***8] for his personal use or for boat equipment.

   Aside from his testimony relative to the monetary transactions, the grandson sought to show that the relationship between him and his grandfather had always been amicable until the grandfather, having married a third wife after the transactions hereinbefore described had taken place, sought recovery of all monies the grandson had received.  Even then, although the [*76] grandfather testified that he had always assumed that he would be repaid when the business affairs of the grandson warranted repayment, it is not clear that the grandfather ever demanded repayment of all the monies -- particularly those expended for the boat and the repairs thereto -- he later claimed to have been loans.

   On the evidence presented, the trial court, without filing a statement of the reasons for its decision, concluded that all transactions (except the item of $135 for a new steering gear which was either overlooked or purposely ignored) were not gifts but loans and entered judgment in favor of the grandfather against the grandson for $6322.13.  We cannot say that the lower court was clearly in error in finding that the transfer [**737] of $1390.13 [***9]n2 from the grandfather to the grandson constituted loans and not gifts. But we think it is clear that the court was wrong in finding that the monies expended for the boat and boat repairs, totaling $4932 (exclusive of $135 for the steering gear), constituted a loan.  Whatever the transactions concerning the boat may have been they were obviously not loans. but it is not possible, on the record before us, to determine the exact nature of these transactions.

n2 This sum of $1390.13 includes the balance due of $200 on the automobile loan, the $640.13 for the pile driver, the $500 (minus the counsel fee of $25) use for pile driver machinery, and the $50 for personal use.

   (i)

   In order for there to have been a valid gift inter vivos of the $1390.13 there must have existed, in addition to the delivery and acceptance thereof, an intent on the part of the grandfather that title to as well as possession of the money was to be absolute in the grandson and was to go into immediate effect. Berman v. Leckner,[***10] 193 Md. 177, 66 A. 2d 392 (1949) and cases cited therein.  As to this sum, the evidence supported the finding of an intent to make a loan rather than a gift. Moreover, it was proper for the court to examine the facts to ascertain what was intended and not to be governed by the lack of formal evidence of indebtedness.  Cf. Howard v. Hobbs, 125 Md. 636, 94 Atl. 318 (1915). See Snowden v. Reid, 67 Md. 130, 8 Atl. 661 [*77] (1887), where the question was also whether or not a particular transaction was a gift or loan and one of the factors considered in determining that the transaction was a loan and not a gift was the fact that the check evidencing the transfer of funds was marked as a loan.  The judgment must therefore be affirmed to the extent of $1390.13.

   (ii)

   As above indicated, the money expended for the boat and boat repairs (aggregating $5067 including the steering gear), absent positive evidence of the purpose or intention of the parties, presents a problem that cannot be determined without guessing.  We shall therefore remand the case to the lower court insofar as the boat is concerned, pursuant to Maryland Rule 871 a, for further proceedings, including the[***11] taking of additional evidence, to the end that the court may fully examine the characteristics of these transactions at law or in equity and determine the nature of the dealings with respect to the boat.

   Judgment affirmed to the extent of $1390.13 and reversed as to remainder; and the case is remanded for further proceedings and a determination of the nature of the transactions with respect to the boat; 1/4th of the costs to be paid by appellant and 3/4ths by appellee. 

WESBECKER v. STATE 
No. 380, September Term, 1964
 
Court of Appeals of Maryland
 
240 Md. 41; 212 A.2d 737; 1965 Md. LEXIS 421

 August  20, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  endorsed, forgery, intent to defraud, teller, deposited, forged, false pretense, check drawn, main office, deposit, possessor, checking account, account number, mercantile, cashing, cleared, cashed, rating, front, forged check, licensed, uttered, brokers, owed, positively identified, clearly erroneous, forged instrument, false pretenses, final payment, check dated

COUNSEL: William J. Smith, Jr., for appellant.

   David T. Mason, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Marvin M. Anderson, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Marbury and Barnes, JJ.  Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION:  [**738] [*42] BARNES, J., delivered the opinion of the Court.

   The appellant, Paul Wesbecker, defendant below, was indicted by the grand jury of Anne Arundel County on June 25, 1964 in four Counts as follows: Count 1, for forging a check dated January 1, 1964 for $432.50 signed by Joseph L. Lentz to the order of Paul Wesbecker, and drawn on the Girard Trust Corn Exchange Bank, Philadelphia and suburbs, with a notation "final payment on siding work" and endorsed "For deposit only Acc't.  #47-657-2, Paul Wesbecker"; Count 2, for uttering[***2] the check described in Count 1; Count 3, for obtaining by a false pretense, $275.00 from Marguerite Howell which was the money of the Farmers National Bank of Annapolis in violation of Article 27, Section 140 of the Maryland Code; and, Count 4, the obtaining of $275.00, with intent to defraud, from The Farmers National Bank of Annapolis by use of a bad check dated January 3, 1964 drawn by Paul Wesbecker on that bank for $275.00 to the order of "Cash" and endorsed by Paul Wesbecker.

   The defendant, represented by court appointed counsel, pleaded not guilty, and waived a jury trial.  Counsel for the defendant filed a motion for a directed verdict of acquittal at the end of the State's case and at the conclusion of all of the testimony.  The motions were overruled by the trial court.  The defendant was found guilty on Counts 1, 2 and 3, not guilty on [*43]Count 4, and was sentenced to eight years in the House of Correction.

   The defendant opened a special checking account with the Girard Trust Corn Exchange Bank of Philadelphia, Pennsylvania (Girard Trust) on December 30, 1963 by depositing a check for $300.00 drawn on the South Carolina Bank of Charleston, South Carolina (Charleston[***3] Bank).At that time the defendant admitted that he [**739] only had a $40.00 or $50.00 balance in the Charleston Bank.

   A few days later, on January 2, 1964, the defendant opened another special checking account with The Farmers National Bank in Annapolis, Maryland (Farmers National) by depositing, at its main office, an $800.00 check drawn on the Charleston Bank.  At the time of opening the special checking account with Farmers National, the defendant was advised that he could not use any of the funds deposited until his $800.00 check was cleared by the Charleston Bank. Notwithstanding this, the defendant, on the afternoon of January 2, 1964, attempted to cash a $250.00 check at a drive-in branch of Farmers National in Annapolis.  The teller called the main office of Farmers National and was told not to cash the $250.00 check because the $800.00 check deposited by the defendant at the main office drawn on an out-of-state bank had not cleared. This attempt to cash the $250.00 check made the banking official at the main office suspicious.  He called the Charleston Bank about the $800.00 check and was told that the Charleston Bank would not pay the check when presented to it. [***4]The branch officer of Farmers National, other banks in the area and the local police department were notified of the situation.

   The defendant also attempted to cash a $400.00 check drawn on Farmers National at the Annapolis branch of the Maryland National Bank on West Street prior to its notification by the Police Department to be on its guard in regard to checks presented by the defendant for cashing, but the teller declined to cash the check.

   On January 3, 1964, the defendant returned to the drive-in branch of Farmers National and deposited a $432.50 check drawn on Girard Trust.  This check purported to be signed by "Joseph L. Lentz" and had a notation upon it "final payment on [*44] siding work." The check itself, however, had the account number "0-143-313" which is the account number of the defendant's account at Girard Trust.  When the $432.50 check came to the Girard Trust for payment, the computer at the bank, reacting to the magnetic ink in the account number, posted the check to the defendant's account.  As that account only had an apparent balance of $265.00 (the $300.00 original deposit of the check drawn on the Charleston Bank less a $35.00 check cleared[***5] on January 3, 1964), the check was returned as there were insufficient funds in the defendant's account to pay it.  A careful search of the records of Girard Trust failed to disclose any account in the name of "Joseph L. Lentz." At the same time as the defendant made this deposit of the $432.50 check, he presented a $275.00 check dated January 3, 1964 and drawn on the defendant's account in Farmers National to the order of "Cash" and endorsed by the defendant.  The defendant placed the address "1008 West St., City" under his endorsement.  The defendant never lived at this address.  The teller cashed the check for the defendant, giving him cash of the Farmers National.  The teller positively identified the defendant as the person making the deposit and cashing the $275.00 check.

   The defendant admitted that he endorsed the $432.50 check but denied that he had filled in the fron of the check.  He claims that this was done by Charles Edward Rhoades, who had formerly worked with the defendant, in door-to-door selling.  The defendant claims that after the $275.00 check was cashed by Rhoades, the defendant and Rhoades divided the money equally.  Rhoades denied that he did any of these[***6] things and stated that when he saw the defendant in Annapolis during three days in early January, 1964 when they were canvassing door-to-door, he did not see the defendant fill out, sign his name or anyone else's name to any checks.  No expert testimony was produced by the State to indicate that the handwriting on the front of the $432.50 check was that of the defendant.

   [**740] The defendant contends that there was insufficient evidence to justify his conviction under Count 1 for forging the $432.50 check as the State had failed to prove that he had filled in the front of that check.

    [*45] As we stated in Jacobs v. State, 238 Md. 648, 650, 210 A.2d 722, 723-724 (1965):

   " * * * [Where] the case is tried before the trial court without a jury, the trial court's 'judgment will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.' Maryland Rule 886 a."

   See also Johns v. Director, 239 Md. 411, 211 A.2d 751 (1965).

   It is clear to us that the trial court's determination of the facts cannot be said to be clearly erroneous and that there was sufficient[***7] evidence before the trial court, with the proper inferences from that evidence, to support the conviction for forgery under Count 1.  The defendant, himself, admitted during his testimony that he endorsed the $432.50 check.He was positively identified by the teller as the person who deposited this check and who, at the same time, presented the $275.00 check for cashing and received the money when it was cashed. The $432.50 check is dated January 3, 1964, the day when the defendant deposited it, with the obvious intent to defraud. As the possessor of the forged $432.50 check and the utterer of it, there is an inference which established a prima facie case of guilt of forgery by the possessor. As stated by the Court in People v. Murrie, 168 C.A.2d 770, 336 P.2d 559, 561 (1959, Ct. of Ap. of Cal. 2nd Dist.), involving a forged check:

   "[The] possession of an instrument recently forged, by one claiming under it, like the possession of goods recenty stolen, is evidence against the possessor." (Citing cases).

   See Commonwealth v. Aronson, 312 Mass. 347, 44 N.E.2d 679 (1942) and Green v. State, 152 Miss. 282, 119 So. 808 (1929). The Green case involved a check allegedly[***8] forged. The Supreme Court of Mississippi stated:
 
   "Possession by the appellant of the forged instrument, with claim of title thereto, is prima facie evidence that he either forged it, or procured it to be [*46] forged. And since the jury rejected his claim that he did not pass the check to Barnett, and believed that he did so pass it, his possession thereof was left unexplained and was therefore sufficient to warrant his conviction."

   See also 1 Wharton's Criminal Evidence (12th Ed.), § 137, pages 259-260, to the same effect.  Cf. Cole v. State, 232 Md. 111, 194 A.2d 278 (1963), cert.den. 375 U.S. 980, 84 S.Ct. 503, 11 L.Ed.2d 425 (1963) and Medley v. Warden, 210 Md. 649, 123 A.2d 595 (1956) holding that there is a presumption, in the absence of evidence to the contrary, that a forgery was committed where the forged instrument was first uttered by the defendant or found in his possession.

   The trial court was not obliged to believe the defendant's testimony that he did not fill out the front of the check.  See Ponder v. State, 227 Md. 570, 572, 177 A.2d 839 (1962). The defendant had admitted that he had endorsed the check. In addition, he had attempted[***9] on other occasions to cash worthless checks at Farmers National.  This conduct is sufficient to prove the defendant's guilty knowledge.  Bishop v. State, 55 Md. 138, 144 (1880). The evidence also established that the check itself was one of the defendant's imprinted checks of the Girard Trust.  The testimony by the teller who received the check established that the defendant had uttered the $432.50 check.

   The identification by a single eye witness is sufficient to support a conviction as the weight of the evidence and the credibility of the witness is for the trier [**741] of facts.  See Booker v. State, 225 Md. 183, 170 A.2d 203 (1961).

   As we have indicated, the defendant admitted that he endorsed the $432.50 check.  This was done with the intent to defraud. We held in Nelson v. State, 224 Md. 374, 167 A.2d 871 (1961) that this was in itself sufficient to constitute forgery. In Nelson, the defendant in that case conducted a business as an individual at 1110 Division Street, Baltimore, Maryland under the name of "The Nelson Company." The Glenn L. Martin Company, by an error in the bookkeeping department, mailed several checks, aggregating in amount approximately[***10] $36,000 to that company but intending that they should be sent to a company [*47] in the Standard Oil Building in Baltimore also called The Nelson Company.  The Martin Company owed the latter company the $36,000 but owed the Division Street company nothing.  The defendant Nelson, president of the Division Street company knew that the drawer of the check was not indebted to it and, over the protest of the bookkeeper, endorsed the checks and deposited them in the Division Street company's bank account, thereafter drawing out the money for payment of that company's creditors and for other purposes.  After his conviction of forgery, the defendant Nelson contended on appeal that he could not be guilty of foregery because he endorsed the correct name of The Nelson Company on the checks and did not purport to sign any name other than that of that company.  In affirming the conviction for forgery, Judge Hammond for the Court, stated:

   "It has long been determined that the writing of one's own name with intent to defraud may constitute forgery. Sir William Blackstone said (4 Comm. 250): 'If a person puts his own name to an instrument, representing himself to be a different person of[***11] that name, with an intent to defraud, he is guilty of forgery.'" (Page 378 of 224 Md.; page 873 of 167 A.2d).

   From what has already been stated, it is clear that the evidence supports the verdict of the trial court on Count 2 for the uttering of the $432.50 check.

   The only point raised by the defendant in regard to the conviction under Count 3 for the false pretense in obtaining money by use of the $275.00 check is that Code, Art. 27, Sec. 140 uses the word "person" and does not add the words "firm, corporation, association, mercantile or rating agency" as appears in Art. 27, Sec. 141. n1 

n1 The two sections in relevant part, are as follows:

   Section 140 "Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor."

   Section 141 "Any person who shall by any false pretense obtain a credit or rating from any person, firm, corporation, association, mercantile or rating agency * * * "

    In construing the word "person" in Section 140, we are directed by Code, Art. 1, Sec. 15 to construe it to include a corporation, "unless such a construction would be unreasonable." In view of the purposes of the legilsation and the fact that corporations, such as banks, building and loan associations, mercantile establishments, and the like, are the usual victims of various schemes to obtain money by false pretenses, we cannot say that it is unreasonable to include corporations within the meaning of the word "person." On the contrary, we deem it entirely reasonable to include it.

   The case at bar is quite distinguishable from the holding in Shehan v. Tanenbaum, Son & Co., 121 Md. 283, 88 A. 146 (1913). In Shehan, a licensing act for insurance brokers, which, in addition to regulation of the insurance business, had the purpose of raising revenue and which provided that "no license shall be issued to more than one person or the members of a bona fide co-partnership to act thereunder," was held to apply to natural persons and not to corporations as it would be unreasonable to suppose that the General Assembly intended to frustrate the revenue features of the Act by permitting corporations to be licensed which might have an unlimited number of brokers as employees who need not be licensed. In the present case, the purpose of the statute will be carried out, not frustrated, by including corporations within the meaning of the word "person."

   Although the point was not raised or decided, we have heretofore affirmed convictions of defendants under Art. 27, Sec. 140 involving the obtaining of money by false pretenses from corporations.  See Sisk v. State, 232 Md. 155, 192 A.2d 108 (1963); Waye v. State, 231 Md. 510, 191 A.2d 428 (1963); and Willis v. State, 205 Md. 118, 106 A.2d 85 (1954).

[***12]  

                       
SHULTON, INC. v. RUBIN et al.  (Three Appeals in One Record) 
No. 439, September Term, 1964
 
Court of Appeals of Maryland
 
239 Md. 669; 212 A.2d 476; 1965 Md. LEXIS 595

 August  4, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree of October 22, 1964, reversed, and case remanded for passage of a decree in accordance with the opinion herein; supplemental decree of November 2, 1964, affirmed, costs to be paid by appellees, and cross-appellants. 

CORE TERMS:  stock, hecogenin, sisal, outstanding, common stock, bought, certificate, stockholder, misrepresentation, buy, rescission, quantity, warranty, omission, material fact, chemical, escrow, plant, purchase price, induced, commercially, dissident, steroid, holder, gram, capital stock, statements contained, written agreement, untrue statement, laboratory

COUNSEL: Francis D. Murnaghan, Jr., with whom was James L. Wray on the brief, for the appellant and cross-appellee. [***5]

   Marshall E. Miller, with whom were Raymond R. Dickey and Danzansky & Dickey on the brief, for Martin Rubin and Chemed, Inc., two of the appellees and cross-appellants.

   Sylman I. Euzent for the Georgia Capital Corporation, the other appellee and cross-appellant.

   Morris Turk for the appellees and cross-appellants generally.

JUDGES: Prescott, C. J., and Hammond, Horney, Sybert and Barnes, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*671] [**477] The controlling issue in this suit in equity for rescission of a contract by which Shulton, Inc., a relatively large and rich chemical corporation (the complainant below and appellant here), purchased the controlling capital stock of Chemed, Inc., a smaller chemical corporation (an appellee here), is whether the purchase was induced by material misrepresentations of fact made by Martin Rubin, another appellee, the founder, chairman of the board and principal stockholder of Chemed, and by other agents of that corporation.

   Martin Rubin was awarded the degree of doctor of philosophy in organic chemistry by Columbia University in 1942, his doctoral thesis having been on the subject of steroidal[***6] heart drugs.  [*672] The year before he had held a fellowship at Johns Hopkins Medical School.  After he graduated from Columbia he worked with, and as consultant to, several chemical firms, and after this he became an associate professor at both the Georgetown Medical School and its Graduate School.  He has been granted some twenty-five patents in the field of chemistry and drugs and has had published over fifty scientific articles.

   In 1953, Dr. Rubin, with a former schoolmate who was practicing law in White Plains, New York, formed Chemed, Inc. Chemed progressed slowly and in 1963 was leasing a small plant in Odenton, Maryland, from one William Starr who at one time had been its president and was its largest stockholder other than Dr. Rubin.  It had four sources of income -- fine chemicals, bulk finished products, research and development operations, and the production of hecogenin, an intermediate substance used in the making of steroid drugs, which Dr. Rubin had attempted to isolate from Mexican sisal plants over a number of years.  Chemed needed capital and chemical manufacturing facilities and Dr. Rubin began seeking them out.  Through an intermediary he was put in touch[***7] with Shulton, which was interested in entering the field of steroid chemical production.

   After introductions had been arranged and preliminary discussions held, Dr. Rubin [**478] sent Shulton a written projection of Chemed's income and expenses for the fiscal year July 1, 1963-June 30, 1964, and for the fiscal years 1964-65, 1965-66, 1966-67; the estimated receipts from fine chemicals were respectively $36,000, $48,000, $60,000 and $85,000 from bulk finished products $15,000, $25,000, $40,000 and $60,000, from research and development $8,000, $10,000, $25,000 and $25,000, and from the hecogenin, which Dr. Rubin listed as "Bulk Manufactured Products," the estimated receipts were $45,000, $75,000, $150,000 and $225,000.  The total projected receipts for the first year were $104,000 with estimated expenses of $162,000 (loss of $58,000), for the succeeding years respectively $158,000 and $219,000 (loss of $61,000), $275,000 and $231,000 (profit $44,000), and $395,000 and $257,000 (profit $138,000).

   In explanation of the figures for the hecogenin, Dr. Rubin wrote Shulton, "Chemed presently has a contract to deliver $45,000.00 of hecogenin to Glaxo in England, [***8] during 1963/64.  [*673] * * * Trial lots have been made, shipped, accepted (and paid for!) by the customer."

   Shulton's interest in Chemed was several fold.  It not only wished to enter the field of steroid chemicals but to obtain the results of the knowledge and research of a highly reputable chemist outstanding in the field of the production of pure hecogenin from Mexican sisal, a result which others had not been able to obtain satisfactorily because of the difficulty of eliminating from the finished product tigogenin, present with hecogenin in Mexican sisal. It also wished to obtain the continuing benefits of Dr. Rubin's advice and skills.  The intermediary who had brought Chemed to the attention of Shulton was a Dr. Jelling, to whom Dr. Rubin wrote that Chemed was a:
 
"* * * major owner of a Mexican subsidiary which produces and ships to us * * * a raw material from the sisal plant from which Chemed has developed processes for manufacture of Hecogenin, one of the recognized steroid raw materials.  We have just signed a one year contract to supply our product in reasonable quantity to Glaxo in England.  Glaxo is the major user of this route to the steroid end products. [***9] This contract was obtained after a year of development work in which our product has been evaluated vigorously by the British and found to be, by their admission, superior to their own manufacture.

   * * *

   "At the present moment, we have completed arrangements with the Mallinckrodt Chemical Works in St. Louis to carry out the most difficult (for us in our present location with present facilities) phase of the production of our product for Glaxo.

   * * *

   "Chemed is now actively seeking funds to:

   * * *

   "2. Construct a suitable production unit for the meeting of our present Glaxo order and provide a base for future massive expansion in raw material production."
 
[*674] Dr. Jelling wrote to the president of Shulton on March 27, 1963, repeating in essence what Dr. Rubin had written him.

   Thereafter Dr. Rubin and Dr. Fishbein, president of Chemed, met on various occasions with executive officers of Shulton and represented to them that Chemed had developed and used a dependable, reproduceable series of steps which could be relied on to produce, from sediment fermented from the juice of Mexican sisal plants, pure hecogenin at the rate of five to six per cent of the quantity [***10]of sediment worked, and that the product could be sold to Glaxo and others in commercial quantities of, initially, at least one hundred kilograms a month, at [**479] approximately three cents a gram. They also represented that Chemed had produced from Mexican sisal commercially disposable kilograms of hecogenin which Glaxo previously had bought and paid for and which, under its testing, had been found to meet its exacting standards.

   Glaxo, an English company, was a large and perhaps the leading user of hecogenin which it made by patented processes from African sisal (which, unlike Mexican sisal, was not plagued by the presence and tenacious perseverance in remaining present of tigogenin).  Because of the political uncertainties in Africa, Glaxo wished to insure an alternate source of supply of hecogenin which met its standards and therefore was very much interested in exploring the potential capabilities of Chemed.  Before Shulton entered the picture, both Dr. Rubin and Dr. Fishbein had made various representations to Glaxo that the hecogenin it had shipped and the hecogenin it was to ship to meet Glaxo's purchase orders, (and these representations continued thereafter) had been [***11]made by it from Mexican sisal and that it had the capacity to produce one hundred kilograms a month from such sisal. n1

n1 Shulton's bill of complaint did not allege specifically that these representations had been made to Glaxo by Chemed and Rubin and were false nor did it allege that the three cent a gram price they told Shulton that Glaxo would pay was but an initial production price and that Glaxo had stated explicitly it expected to pay but one cent a gram for permanent production. However, these matters were fully developed in the extensive discovery procedures that preceded the trial and Shulton made timely motions to amend the bill to cover them.  The chancellor refused to permit the amendment, and in this he erred, we think.  See Md. Rule 320 and also Standard Homes v. Pasadena Co., 218 Md. 619, 625, and Brucker v. Benson, 209 Md. 247, 256.

   [*675] During the negotiations Shulton sent its men to Chemed's plant to inspect its facilities and its limited inventory and to check its financial structure, [***12] but Shulton was never told the details of Dr. Rubin's method of producing hecogenin from Mexican sisal because the method was not patented and was deemed a trade secret by Dr. Rubin.

   Chemed had only one class of stock, the charter authorizing 20,000 shares of common stock of which 12,400 shares were outstanding, 7,240 shares being owned by Dr. Rubin.  There were also outstanding 3,040 warrants and options to purchase Chemed common stock at $25.00 a share.  It was proposed that the existing Chemed stock be converted to a new Class B common, having the right as a class to elect two directors, and that a new Class A common, having the right as a class to elect three directors, be created and bought by Shulton in an amount equal to the number of shares of Class B common to remain outstanding, so that the existing stockholders of Chemed would elect two of five directors and Shulton three.  Shulton agreed to pay $150,000 for such a share interest and to lend up to $150,000 more as additional capital when and as needed.  It was agreed that there should be 10,000 Class B and 10,000 Class A shares.

   Dr. Rubin stated that certain existing stockholders of Chemed would have to be bought out, [***13] since they would not, he was sure, agree to the conversion of their controlling common stock to Class B stock with limited voting rights.  He estimated the number of shares of such dissident stockholders as "about 2,000 shares" and the amount needed to buy them out as about $50,000. He told Shulton that subscriptions to Chemed stock had been at around $25.00 a share and that this was its present going price.  Dr. Rubin further told Shulton that because Chemed owed $60,000 to Georgia Capital Corporation, a small business investment company, and federal law and regulations, applicable in this situation, forbade direct redemption of shares of dissident [*676] shareholders, it would be necessary for Shulton to buy the necessary shares and [**480] turn them in as part of the price to be paid by it for its Class A common stock, thus reducing the $150,000 purchase price by the amount Shulton paid for the stock of dissident holders. Dr. Rubin proposed and Shulton agreed that he should negotiate for and buy the shares at not more than $25.00 a share and resell them to Shulton for exactly what he paid for them.
 
   Shulton required and obtained an agreement by Dr. Rubin that the[***14] outstanding warrants and options would be exercisable only against the new Class B common and that he would place in escrow sufficient shares from his own holdings of such stock to meet any exercise of such warrants or options.

   The understandings and agreements of the parties were finally settled and defined at a meeting on June 14 between Dr. Rubin and Shulton's president and its executive vice-president.  Thereafter Shulton's general counsel, assisted by a lawyer in a leading New Jersey firm who was retained by Shulton on the one hand, and Dr. Rubin's long time friend and legal adviser, who had joined with him in forming Chemed on the other, were instructed to and did prepare the necessary written agreement and the complementary corporate and closing papers.

   Three days after the June 14 meeting, which crystallized the agreements between Dr. Rubin, Chemed, and Shulton, Dr. Rubin wrote Georgia Capital Corporation telling it that Shulton would put up some $50,000 to acquire about 2,000 outstanding common shares in order to reduce the total outstanding (which were to be converted to Class B stock) to 10,000 shares and would invest in Chemed about $100,000 additional as the further[***15] purchase price of the total of 10,000 shares of new Class A stock it was to buy and also lend an additional $150,000 in the next few years.  He further advised Georgia that Shulton would control Chemed through its three directors, that all outstanding warrants would be met from the new Class B stock, and added:

   "The only drawbacks to our acceptance of this opportunity are those that involve myself.  You have noted, I am sure, that the provision that warrants be [*677] exercised from the pool of new non voting stock means in essence that I will have to carry this burden alone.  This means, as the situation stands now, that I have to provide for the 2,640 warrants to Georgia Capital and the folks in New York City as well as the option provided to Dr. Fishbein of 100 shares [actually 400 shares] as well as any new warrants that may have to be given to Dr. M. Selling [sic] who acted as 'finder' in the Shulton negotiation. These warrants would come from my present holdings of about 7,000 shares and represent an onerous burden and a bitter pill for the acceptance of the Shulton proposal.  I am loathe to do this and would make the following request:

   "That in the event the[***16] proposal Re: Shulton, outlined above be accepted and the loan of Georgia Capital to Chemed, Inc. be repaid with the contract penalty that:

   "Georgia Capital agree to then exercise at least 50% of the warrants which I would be required to provide by payment to me of 30,000 at the rate of $25/non voting share of Chemed stock.

   "I am hopeful that the management of Georgia Capital will understand my position and willing to accept my request."
 
Georgia agreed to the Shulton deal and advised Dr. Rubin it would exercise 1,200 warrants -- and only 1,200.

   Dr. Rubin began buying Chemed shares on June 16.  On that day he bought 3,000 shares from Mr. Starr, the former president [**481] and early stockholder of Chemed and its current landlord, for $20,000 or $6.67 a share -- without revealing to Mr. Starr in any way that the Shulton deal was imminent -- and 200 shares held by Mr. Starr for two of his employees for $2,000.  Between June 16 and July 10 he bought 100 shares from his lawyer at $25.00 a share, 20 shares for $30.00 a share from another holder, and 1,240 shares for $28.00 a share from five other stockholders, a total of 4,360 shares at an aggregate price of $54,220. [***17]

   A draft of the proposed contract was sent to Dr. Rubin and [*678] his lawyer about June 28.  On July 1, Dr. Rubin informed Shulton's executive vice-president that the number of shares acquired by him for resale to Shulton, so that Shulton could deliver the shares to Chemed as partial payment of its $150,000 equity investment in that company, totalled 2,400 and that they had been bought at an average price of $23.00 a share.

   Because Dr. Rubin was scheduled to leave soon for Europe the execution of the contract and the settlement under it and the various corporate maneuvers in connection with it were all planned to take place as one integrated transaction on July 10.  On July 5, a pre-closing four hour conference was held between counsel for Shulton and the lawyer representing Dr. Rubin and Chemed, at which the papers were gone over and revised and the preparation of those not yet written planned and assigned.  On July 10, the parties and their lawyers met at Shulton's office.  Dr. Rubin, Chemed and Shulton then executed a written agreement calling for:

   1. The purchase by Dr. Rubin of 2,400 shares of outstanding Chemed common stock and the sale thereof to Shulton at closing[***18] at the prices paid by Dr. Rubin up to a maximum of $25.00 a share.

   2. After retirement of the 2,400 shares, the conversion of existing Chemed common stock -- 10,000 shares -- to Class B common stock, with the sole voting right to elect two of Chemed's five directors.

   3. The subscription to and purchase at closing of 10,000 shares of Class A common stock of Chemed by Shulton at a price of $150,000, less the cost to Shulton of the 2,400 shares it bought from Dr. Rubin.

   4. Loans from Shulton to Chemed from time to time as needed up to an aggregate of $150,000.

   In the agreement Dr. Rubin represented and warranted that the shares he sold Shulton were free and clear of encumbrances and that there were outstanding no warrants, options or "other devices" which could require the issuance by Chemed of Class B common stock or other security:
 
"* * * except that there are warrants outstanding to purchase Chemed capital stock as follows: Georgia [*679] Capital Corporation 2,400 shares; Lawrence Fishbein 400 shares; Samuel Beck 102 shares; Howard Weinberger 102 shares; Robert Markewich 36 shares; and as to these Rubin represents and warrants that the holders shall agree to have[***19] their warrants applicable against Class B Common Stock, restricted as other shares hereunder, and Rubin shall place shares of his own in escrow with Chemed for delivery against full or partial exercise of such warrants."
 
He also agreed that:
  
"No representation or warranty by Rubin in this Agreement nor any statement or certificate furnished or to be furnished to Shulton pursuant hereto, or in connection with the transaction contemplated hereby, contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained therein not misleading."

   [**482] In the agreement all obligations of Shulton were made subject to the fulfillment of the condition that:
"The representations and warranties of Rubin and Chemed contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof or in connection with the transactions contemplated hereby shall be true at and as of the time of Closing as though such representations and warranties were made at and as of such time."

   Dr. Rubin agreed to indemnify and hold harmless Chemed and Shulton at all times[***20] after the date of the agreement against and in respect of:
 
"any and all damage or deficiency resulting from any misrepresentation, breach of warranty or non-fulfillment of any agreement on the part of Rubin under this Agreement or from any misrepresentation in or omission from any certificate or other instrument furnished to Shulton hereunder * * *."

   [*680] It was further provided that:
 
"All statements contained in any certificate or other instrument delivered by or on behalf of Rubin pursuant hereto or in connection with the transactions contemplated hereby shall be deemed representations and warranties by Rubin hereunder.  All representations, warranties and agreements made by Rubin in this Agreement or pursuant hereto shall survive the closing hereunder and any investigation at any time made by or on behalf of Shulton."

   At the closing meeting, Dr. Rubin signed and delivered to Shulton a statement, "* * * that the 2,400 shares of capital stock of Chemed, Inc. being sold by me this date to Shulton, Inc., were purchased by me at a net cost to me equal to the amount being paid to me by Shulton, Inc., -- $55,200." Shulton delivered to Dr. Rubin a check in[***21] the amount of $55,200, bearing the notation on its face, "Payment for 2,400 shares of Chemed, Inc. common stock at $23 per share," which Dr. Rubin endorsed and deposited.

   Dr. Rubin also executed a stock deposit agreement in which, "in order to induce Shulton, Inc. to enter into an agreement of even date herewith with the parties hereto," Rubin and Chemed stipulated that there were outstanding options to purchase Chemed common stock in the numbers listed, and further agreed, that Rubin simultaneously was to deposit with Chemed 1,840 shares of Chemed common stock registered in his name, endorsed in blank, and authorized Chemed to use said shares to fulfill his obligation to issue and deliver shares of capital stock in the event any or all of the foregoing options are exercised.  Shulton agreed:

   1. That Chemed would collect and remit to Rubin "the purchase price [$25.00 a share] received from the optionee(s)."

    2. That Chemed would deliver to Rubin all shares allocable to any option which expired unexercised.

   3. That Rubin could vote and would receive dividends on the shares while they were held in escrow.

   Dr. Rubin delivered to Shulton at the settlement 12,400 shares [*681] [***22]of Chemed stock, all endorsed or with executed stock powers attached. Shulton was to reissue the shares as called for in the agreement.  Because new certificates had not been printed, only Georgia Capital Corporation was given a certificate -- a blank form filled out -- for its 1,200 shares of new Class B stock and Dr. Rubin was given the $30,000 Georgia paid for that stock. Shulton paid Georgia its loan to Chemed, with prepayment penalty and interest and gave Chemed a check for the balance of the $150,000 equity investment remaining after the payment of $55,200 and the $63,000 plus to Georgia.

   [**483] Finally, there was executed an agreement under which Dr. Rubin was to serve as a consultant to Chemed for three years at an annual compensation of $18,000.

   Soon after the closing settlement, Dr. Rubin departed for Europe and Shulton, several weeks later, came to the realization that it had been misled to its serious detriment by various untrue statements of material facts and various omissions to state material facts without which statements made were misleading. Shulton became convinced (a) that Chemed and Dr. Rubin could not produce hecogenin from Mexican sisal except[***23] in small laboratory quantities and that it had produced only a few grams over a period of years -- having bought hecogenin made by others from African sisal to ship to Glaxo; and (b) that Dr. Rubin had not paid $55,200 for 2,400 shares of Chemed stock as he had certified, but instead had bought 4,360 shares for an aggregate price of $54,220, thus using Shulton's money to secure the shares he had to provide to cover the outstanding options, shares he would either continue to own if the options went unexercised or from which he would receive the proceeds if the options were exercised.

   In September both Dr. Rubin and Dr. Fishbein returned from Europe and meetings were held with Shulton executives.  Neither could offer explanations or evidence which shook Shulton's belief it had been defrauded and it promptly made demand on Chemed and Dr. Rubin to rescind, offering to return the 10,000 Class A shares acquired by it.  When the demand was not met, suit for rescission was filed, claiming false representations of material facts as to the purchase of the stock and as to the development and use of a feasible process for extraction [*682] of hecogenin from Mexican sisal in commercially[***24] saleable quality and volume.  Right to relief was claimed against Chemed and Rubin severally and jointly under the case law of rescission and also under the Federal Securities Act of 1933, as amended, the Maryland Securities Act, and the New Jersey Uniform Securities Law.  Chemed, in derivative pleadings by Dr. Rubin, answered and counterclaimed for injuries and damages alleged to have been caused by Shulton in destroying Chemed's business by mismanagement and inaction after July 10, 1963.  The claim was for $1,000,000 in actual damages and $1,000,000 in punitive damages.  Georgia Capital Corporation similarly answered and cross-claimed.

   After extensive pretrial discovery procedures and a lengthy trial, Judge Duckett found that Dr. Rubin had agreed and certified at the closing on July 10 that the 2,400 shares sold by him to Shulton were purchased by him at a net cost of $55,200 or $23.00 a share while the fact was that he had actually purchased 4,360 shares for $54,220 or $12.43 a share.  Judge Duckett said he did not find that Dr. Rubin "* * * made a material misrepresentation as to a feasible process for the extraction of hecogenin." He added: "It may be that Rubin had not[***25] developed a commercially feasible process but he had developed a laboratory process, and his real purpose for bringing in the vast resources of Shulton was to develop a large commercial production." He signed a decree on October 22, 1964, for a monetary judgment in favor of Shulton for $25,368 (the difference between $23.00 and $12.43 a share, or $10.57 times 2,400), with interest at 5% from July 10, 1963, and for a counsel fee of $2,500 to Shulton counsel.  The costs were split between Shulton on the one hand, and Chemed and Rubin together on the other.

   A supplemental decree dated November 2, 1964, dismissed the counterclaim of Dr. Rubin and the cross-complaint of Georgia Capital Corporation.

   We think the chancellor erred in not granting Shulton the relief of rescission which it sought, finding the record to compel the conclusion that Chemed and Dr. Rubin made material misrepresentations [**484] of fact as to the purchase price of the stock bought by Dr. Rubin for resale to Shulton and other false representations, [*683] which induced Shulton to consummate its purchase of Chemed's capital stock for $150,000.

   The written agreement of July 10 and the complementary[***26] papers executed simultaneously are complete, clear and unambiguous and Chemed and Dr. Rubin must be held to be bound by the documents they signed.  Rappold v. Rappold , 224 Md. 131, 136; Ray v. Eurice, 201 Md. 115, 125. The contract provided that it was to be "construed and enforced" in accordance with the law of New Jersey. The law of that State is in accord with the law of Maryland.  Ross v. Orr (N. J.), 69 A. 2d 730; and Casriel v. King (N. J.), 65 A. 2d 514, 516-17. Without having sought to reform the written agreements and understandings of the parties, as would be necessary if, subject to exceptions not here pertinent, it was desired to show by parol testimony that they did not express the contract the parties intended to make, Gabriel v. Glickman (N. J. Misc.), 51 A. 2d 106, 108, cf. Ray v. Eurice, supra, Dr. Rubin sought to explain away by parol testimony, which came in over objection, his flat written certification that he had paid $55,200 for 2,400 shares of Chemed's stock. His explanation is, in essence, that Shulton should not have believed the certification because the actual agreement was not that expressed in the documents, but rather was that [***27]he was authorized by Shulton to buy as many shares of Chemed stock as any of the stockholders other than himself desired to sell, and that he had told Shulton that he would buy not less than 3,200 shares and probably about 4,200. He further claimed that it was understood that the first 2,400 shares purchased were to be turned in by Shulton for retirement and that the remainder would be delivered to Chemed to be held as treasury stock to cover the exercise of warrants and options so that Dr. Rubin would have to provide shares from his own holdings to cover warrants and options only to the extent that the available shares in Chemed's treasury were insufficient.

   Both Dr. Rubin and his lawyer conceded from the stand that the papers as prepared and as reviewed and as signed by Chemed and Dr. Rubin were at complete variance with the understanding testified to and relied on at trial by Dr. Rubin, and also that they did not either before or at the closing meeting raise any question concerning the text of the papers.  The lawyer had [*684] two explanations.  First, he said he had not been sufficiently alert and "astute" and, second, he thought, as Dr. Rubin testified he also thought, [***28] that Shulton caused the papers to be prepared as they were in order to evade taxes.

   Assuming for the discussion that this testimony which sought to vary the integrated agreements, and the countervailing testimony adduced by Shulton in rebuttal, properly should have been considered by the chancellor, Dr. Rubin's explanation of why he signed the certificate and the escrow and stock deposit agreements is so inherently improbable and so unsupported, if not completely refuted, by other oral or written evidence, as to be incredible.  No theory as to how Shulton was to benefit taxwise or otherwise by drawing the papers the way they were drawn, if the actual agreement was as Dr. Rubin contended at trial, was presented below or on appeal.  All Shulton officials who testified, including its house counsel, flatly denied that the agreement was other than as expressed in the papers, and their testimony was supported by the lawyer in private practice retained by Shulton, and to a substantial degree by the vice-president of Georgia Capital Corporation.  Dr. Rubin's letters to Georgia Capital, setting out his understanding of Shulton's proposals which coincided with the understandings expressed [***29] [**485] by the papers he later executed, refute his claims at the trial.  After the closing, Shulton's counsel wrote Dr. Rubin and his lawyer, setting out the names of all new Class B stockholders and the number of shares to be issued to them respectively, and asking confirmation so as to insure accurate issuance of the stock. Dr. Rubin was listed as the owner of 7,810 shares, to be represented by seven stock certificates of which five certificates for various numbers of shares, 1,840 in total, were noted on the list as representing the shares which had been put in escrow by Dr. Rubin to cover outstanding warrants and options.  Dr. Rubin's lawyer confirmed in writing the correctness of these listings, all of which were in accord with the closing papers, and Dr. Rubin did not answer the letter to him until after the demand for rescission.

   No explanation has been given as to why Shulton would, if Dr. Rubin's version of the transaction is accurate, have permitted him to claim as his own the 1,840 shares of Chemed [*685] stock put in escrow -- since he personally would receive the subscription price on the exercise of the warrants or options, or the stock if there was no such[***30] exercise, -- by listing him as the owner of the stock it had paid for and which was to be held as treasury stock by Chemed.

   We have no doubt that the misrepresentation by Dr. Rubin as to the price he paid for the 2,400 shares of Chemed stock he bought and resold to Shulton was material and an inducing cause for Shulton to enter into the agreements it made with Chemed and Rubin.  Shulton had consistently been informed that Chemed's stock sold at about $25.00 a share and that it would take about $50,000 to buy 2,000 shares.  It authorized Dr. Rubin to pay up to $25.00 a share for the stock of dissident holders. It seems apparent that if Shulton had known that a former president and director of Chemed was willing to sell his shares for less than $7.00 a share it would not have agreed to make a $300,000 investment in Chemed, based on a general price level of $25.00 a share for its stock. Shulton's officers so testified.  Every cent Shulton spent to buy the stock of dissident Chemed holders reduced the amount left of the $150,000 to go into Chemed's treasury, and increased the likelihood of calls on Shulton for additional capital contributions.  Statements of fact as to cost have[***31] been held to be material representations.  3 Pomeroy, Equity Jurisprudence, Sec. 878c (5th Ed. 1941); Fourth National Bank in Wichita v. Webb (Kan.), 290 P. 1; cf. Joice v. Taylor, 6 G. & J. 54. Here we think they certainly were.

   A substantial inducement for Shulton's purchase of Chemed's stock was the obtention of the skills and knowledge of a reputable chemist of Dr. Rubin's stature and standing as Shulton understood it.  If Shulton had known that Dr. Rubin would falsely certify that he had paid out $55,200 to acquire 2,400 shares of Chemed stock for resale to it at cost when actually he had paid out $54,220 to acquire 4,360 shares -- with the result that he obtained free the shares he needed to meet his obligation to provide stock to cover outstanding warrants and options (and also the extra $980 which he quietly pocketed), Shulton's confidence in Dr. Rubin and its desire to be associated [*686] with him could not have failed to have been destroyed, as indeed it was, when the facts became known to it.

   Finally, Shulton showed how material it deemed all representations made at or in connection with the closing and the execution of the agreements by requiring [***32]Chemed and Dr. Rubin to agree that there could be no "untrue statement of a material fact" and that "all statements contained in any certificate * * * shall be deemed representations and warranties * * *," and should survive both the closing and any necessary investigations by Shulton.

   [**486] Under both Maryland and New Jersey law a false representation of a material fact devoid of intent to deceive will not support an action in deceit at law but a material misrepresentation of fact, though there be no actual moral delinquency, may warrant rescission by a court of equity of a contract induced thereby.  Joice v. Taylor, supra; Tucker v. Osbourn, 101 Md. 613, 618; Euzent v. Barrash, 180 Md. 451, 454; Hutson v. Hutson, 168 Md. 182, 186; Clark v. Kirsner, 196 Md. 52, 56; Finley v. Keene (N. J. Ct. Ch.), 42 A. 2d 208; and cf. Senick v. Lucas, 234 Md. 373. See also 5 Williston, Contracts, Sec. 1500 (Rev. Ed. 1937); Restatement, Contracts, Sec. 470, 476; Restatement, Restitution, Sec. 9, Sec. 28; and 3 Pomeroy, Equity Jurisprudence, Sec. 885 (5th Ed. 1941).

   The Maryland Securities Act, Code (1964 Supp.), Art. 32A, Sec. 34(a) (2), provides that[***33] any person who:

   "Offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission, is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at six per cent per year from the date of payment, costs, [*687] and reasonable attorney's fees, less the amount of any income received on the security, upon the tender of the security, or for damages if he no longer owns the security. * * *."
 
Sec. 38 (a) of Art. 32A provides that Sec. 34, among other sections, applies when an offer to sell is made in this State, and Sec. 38 (c) says that an offer to sell is made in this State "* * * whether or not either party's then present in this State, when the offer (1) originates from this State * * [***34]*."

   The negotiations leading to the sale of the Chemed stock to Shulton were initiated in Maryland and continued to emanate from this State.  The Federal Securities Act, 15 U. S. C. Sec. 77L and the New Jersey Uniform Securities Law, N. J. Rev. Stat. Cum. Supp. 49:3-19, both of which may well be applicable here (although we do not need to decide whether they are or not), contain substantially the same provisions of Sec. 34 of Art. 32A of the Code of Maryland.

   We think that under both the case law and the Maryland statute Shulton is entitled to rescission by reason of the false representations by Dr. Rubin, made binding on Chemed by the agreement of July 10, 1963, as to the price he paid for 2,400 shares of Chemed stock.

   It is apparent also that Chemed and Dr. Rubin made many material misrepresentations of fact to Shulton, to induce it to buy Chemed's stock, as to the production of hecogenin by Chemed.  There were representations that Chemed made from Mexican sisal all the kilograms of hecogenin it had shipped to Glaxo and that Glaxo had tested such hecogenin and found it superior to its own, when the fact was it had purchased all, or almost all that hecogenin from other manufacturers[***35] who made it from African sisal, and it was the purchased African hecogenin that Glaxo tested.  There were representations that Chemed had made Mexican hecogenin in commercial quantity when the fact was it had not.  There were representations that the raw material shipped from Mexico was dependable and uniformly would yield approximately five per cent by volume of pure hecogenin, when the fact was that the material varied greatly and yielded [**487] only from one-half of 1% to 2%.  Shulton was told that the [*688]hecogenin was extracted by an alcohol solvent when in fact the poor quality of the Mexican sisal sediment required an acetone solvent to produce proper purity in the resulting hecogenin. Shulton was also told that the price to be paid by Glaxo for alcohol hecogenin was about three cents a gram when Chemed and Rubin knew that Glaxo expected to drop to one cent after production in quantity began.

   Shulton was led to believe by material misstatements of fact and omissions to reveal facts, which truth and fairness required to have been disclosed, that in Chemed it was buying a proven producer of commercially disposable and profitable hecogenin when the fact was that[***36] Chemed had over the years produced only relatively minute quantities of Mexican hecogenin by tedious and expensive laboratory processes.

   The decree appealed from by Shulton will be reversed and the case remanded for the passage of a decree rescinding the transactions of July 10, 1963, between Shulton and Chemed and Rubin, and directing Chemed and Rubin jointly and severally to pay to Shulton $150,000 with interest at 6% from July 10, 1963, a counsel fee of $12,500 to counsel for Shulton, and costs, and directing Shulton to return to Chemed 10,000 shares of Class A stock of Chemed.

   The supplemental decree dismissing the cross and counter-claims of Rubin and Georgia Capital Corporation will be affirmed.  Shulton asked Chemed and Rubin to rescind within a few weeks of July 10, 1963, and if they had, as they should have, all the damages and injuries they now claim were inflicted by Shulton -- most if not all of which flowed directly from the weaknesses which led Chemed and Rubin to the misrepresentations that produced the right in Shulton to rescind -- could have been avoided, if they were avoidable at all.

   Decree of October 22, 1964, reversed, and case remanded for passage of a [***37] decree in accordance with the opinion herein; supplemental decree of November 2, 1964, affirmed, costs to be paid by appellees, and cross-appellants. 

VEDITZ v. ATHEY et al. 
No. 321, September Term, 1964
 
Court of Appeals of Maryland
 
239 Md. 435; 212 A.2d 115; 1965 Md. LEXIS 571

 July  13, 1965, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed and Denied July 28, 1965.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed; costs to be paid out of the estate.

CORE TERMS:  testatrix, codicil, niece, devise, testament, modified, testator, adoptive, bequest, bequeathed, one-half, revoked, revocation, testamentary, revoke, household effects, furniture, real estate, intermediate, survive, revoking, specifically described, adding, gift, proffered testimony, extrinsic evidence, personal effects, stood, substituted, sentence

COUNSEL: Charles G. Page and J. Calvin Carney (on both arguments) for the appellant.

   Daniel H. Honemann (on both arguments), with whom were Hinkley & Singley on the brief, for the appellees.

JUDGES: Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ., and reargued before the entire Court.  Oppenheimer, J., delivered the majority opinion of the Court.  Prescott, C. J., and Horney and Sybert, JJ., dissent.  Dissenting opinion by Horney, J., at page 450, infra.

OPINIONBY: OPPENHEIMER

OPINION: [*437] [**116] The testatrix, in Item Second of her Will, bequeathed household furniture and personal effects to one niece. In her Second Codicil, the testatrix provided in part as follows: "FIRST: * * * I therefore modify Item Second of my said Will by adding thereto the following sentence: * * *" The sentence devised a one-half interest in certain real estate in the Severna Park area [*438] to another niece, if she survived the testatrix. In her Third Codicil, the testatrix revoked Item Second of her Will and substituted in place thereof a bequest to the second niece[***5] of all her personal property, with certain exceptions, located in the real estate referred to in her Second Codicil. The second niece, Marie Veditz, the appellant herein, (Marie), instituted proceedings in the Circuit Court for Anne Arundel County for a construction of the Will and Codicils. The court below held that the devise to Marie contained in the Second Codicil had been revoked. Marie has appealed from that decree.

   The testatrix, Matilda Held, died, unmarried, on October 16, 1962, at the age of 94.  Her next of kin were the two nieces, Rosa Fenner (Rosa) and Marie.  Rosa was the daughter of a deceased sister of the testatrix, was married at the time of the testatrix's death, and had three sons.  Marie was the adopted daughter of another deceased sister of the testatrix and was unmarried.

   The testatrix left a will and three Codicils, which were duly probated in the Orphans' Court of Anne Arundel County, as follows:
 
(a) Will dated May 23, 1955.
(b) First codicil dated July 12, 1955.
(c) Second codicil dated May 8, 1958.
(d) Third codicil dated August 6, 1958.
 
Item Second of the Will reads as follows:

   "SECOND: I give and bequeath unto ROSA FENNER, daughter[***6] of my deceased sister, Emma Jochum, all of my furniture, silver, china, jewelry, linens and all other personal and household effects, with the exception of those articles hereinafter specifically described and bequeathed, to be hers absolutely, provided that she survives [**117] me.  If the said Rosa Fenner does not survive me, then I direct that her descendants living at the time of my death shall take in equal shares per stirpes the legacy which she would have received under this paragraph of my Will."
 
[*439] The Will then sets forth legacies and bequests to various persons, including a bequest of $500 to Marie if living.  By Item Thirteenth of the Will, all the rest, residue and remainder of the testatrix's property is left to the Maryland Trust Company (now the Maryland National Bank) in trust for the benefit of Rosa for life; upon her death, after a bequest of not over one-half of the corpus or $5,000, whichever is less, to the Rev. John McPherson and his family, the remainder of the corpus is bequeathed to Rosa's sons or their respective living descendants.  By Item Eighteenth the testatrix nominated the appellees, Charles E. Athey and the Maryland National[***7] Bank, her Executors.  These Executors duly qualified.

   The First Codicil contained a number of bequests of articles of furniture to various legatees, including Marie.  Item First of the Second Codicil reads as follows:

   "FIRST: Since executing my said Will and Codicil, I have acquired the property known as 411 Laurel Road, Severna Park, Maryland.  I therefore modify Item Second of my said Will by adding thereto the following sentence:

   'I give and devise unto my neice, MARIE VEDITZ, to be hers absolutely provided that she survives me, any interest which I may own at the time of my death in the property known as 411 Laurel Road, acquired by me on October 1, 1957, from Nelle E. Gardner.'"

   The real estate referred to in Item First of the Second Codicil was a house which the testatrix had purchased on October 1, 1957.  On October 15, 1957, fifteen days after she acquired this property, she executed a strawman deed resulting in the conveyance of a one-half interest in the property back to herself for life with the remainder to Marie in fee, subject to a power reserved in the testatrix to mortgage, convey and appoint.  Outright ownership of the other one-half interest remained[***8] in the testatrix. The testatrix during her lifetime did not exercise the powers vested in her as life tenant as to the undivided one-half interest and on her death this undivided interest vested in fee simple in Marie as remainderman.  The testatrix's Second [*440]Codicil was executed approximately seven months after the strawman deed, to which reference has been made.

   Item First of the testatrix's Third Codicil reads as follows:

   "FIRST: I revoke Item SECOND of my Last Will and Testament and substitute in place thereof the following:

   'SECOND: I give and bequeath unto my niece, MARIE VEDITZ, all of my furniture, silverware, china, jewelry, linens and other personal and household effects located in my home at 411 Laurel Road, Severna Park, Maryland, with the exception of those articles specifically described and bequeathed in my Last Will and Testament or Codicils thereto, to be hers absolutely.'"
 
The concluding paragraph of the Third Codicil reads as follows:

   "FINALLY: In all other respects I do hereby ratify and confirm the provisions of my said Last Will and Testament executed on May 23, 1955, as modified by the First Codicil thereto executed on July[***9] 12, 1955, the Second Codicil executed on May 8, 1958, and by this Codicil."

   The Will and the first two Codicils were prepared by Mr. Frederick J. Singley, Jr. and the third Codicil was prepared by Mr. [**118] John H. Somerville; both lawyers were partners in the firm of Hinkley and Singley.

   After Miss Held's death, when it became evident that a dispute existed as to the one-half interest in 411 Laurel Road, by agreement, the property was sold. One-half of the net proceeds in the amount of $11,250 was deposited in a savings account to be held by the Executors until the determination of this case.  Miss Held's gross estate, including the other one-half of the proceeds of the sale of 411 Laurel Road, was $116,445.22.  The testatrix's furniture and chattels were appraised at $786.30.  Apart from her claim to the other one-half of the proceeds of the sale of the real estate, Marie became entitled to assets, including the proceeds of her one-half interest in 411 Laurel Road, [*441] a legacy of $500, the specifically bequeathed furniture and chattels, and certain bank accounts which she received by survivorship, in the total amount of $26,770.69.  The evidence as to the[***10] value of the testatrix's estate and various items thereof was first excluded by the lower court, upon objection of the Executors, but the objection was later withdrawn.  The evidence as to the relationship of the two nieces, the acquisition of the real estate, and the strawman deed in connection therewith, was admissible as extrinsic evidence pertaining to the circumstances of the testatrix, the objects of her bounty and the nature of the property involved.  Shellady, Inc. v. Herlihy, Executor, 236 Md. 461, 465, 466, 204 A. 2d 504 (1964) and authorities therein cited.

   During the trial, the appellant, Marie, proffered testimony of a number of persons, including that of Mr. Athey the coexecutor under the Will, to the effect that they had heard the testatrix make comments indicating an intent that Marie should succeed to the entire property, 411 Laurel Road.  These alleged declarations by Miss Held were made from the time immediately prior to the purchase of the property to periods shortly before her death.  Testimony of another witness was also proffered to the effect that the testatrix had stated just before she purchased the property that she was buying it so that Marie would[***11] have something in her old age.  The court below excluded all this proffered testimony on the ground that, where the intention of testator clearly appears from the words used in the testamentary documents, extrinsic evidence that something different was meant than that which the language imports is inadmissible.  The court ruled further that no latent ambiguity exists in the testamentary documents in this case.  During the trial, Mr. Somerville had been called by Marie's counsel and testified as to what took place in his office between the testatrix and himself when the Third Codicil was prepared and executed.  Judge Sachse, in his opinion, excluded this testimony.

   In his opinion, Judge Sachse held that, under the law, Item Second of the Will became Item Second as modified by the Second Codicil thereto and that any reference thereafter to such Item of the Will referred to it as modified by the Second Codicil. He held that, in Item First of the Third Codicil, the testatrix [*442] by referring specifically to her Will and the First and Second Codicils, giving the dates thereof, definitely showed that she knew of and recognized the Second Codicil which changed Item Second of her[***12] Will. The judge concluded that by her Third Codicil the testatrix revoked Item Second of her Will as it was modified and changed by her Second Codicil and that, therefore, the one-half interest in the real estate, which is the subject of this litigation (now the one-half of the net proceeds of the sales thereof), is vested in the Maryland National Bank as Trustee under the residuary provisions of the Will.

   The appellant contends that the lower court erred in holding that the words in the Item First of the Third Codicil had a single, clear meaning.  It is her position that this Item of the Third Codicil was meant to refer only to the document dated May 23, 1955, titled the Last Will and Testament, and not to that document as [**119] modified by the Item First of the Second Codicil, and that, on its face, the Third Codicil did not revoke Item First of the Second Codicil. She contends that the failure of the Third Codicil to mention the devise in Item First of the Second Codicil is proof that neither the testatrix nor the draftsman had the devise in mind when the Third Codicil was executed. Finally, the appellant contends that the proffered evidence which was excluded was relevant[***13] to the issues and should have been considered because some of the excluded testimony was evidence of the circumstances surrounding the testatrix at the time the Will and the respective Codicils were executed and because the other proffered testimony was corroborative of the claimed belief of the testatrix that she was devising her retained interest in 411 Laurel Road to Marie, or because it would have assisted the court in determining what was the express intent of the testatrix.

    We disagree with each of the appellant's contentions, for the reasons which follow.

   The intent and effect of Item First of the testatrix's Second Codicil are clear.  She modified Item Second of her Will by adding a sentence thereto.  That Item of her Will, as originally written, bequeathed certain personal effects to Rosa, if living, and if not living, to her descendants.  The sentence added by the Codicil contained a devise to Marie of the testatrix's interest [*443] in 411 Laurel Road.  Thereafter, the provisions for the two nieces stood together, as Item Second of her Will.  Item First of the Second Codicil had performed its function.  The intention of the testatrix to add the devise to Marie to[***14] the legacy to Rosa and to have the two testamentary dispositions stand together as Item Second of her will was expressed in apt words, contravened no legal principle, and was legally effective.  See Shellady, Inc. v. Herlihy, Executor, supra at 236 Md. p. 471, and cases therein cited.

   By Item First of her Third Codicil, the testatrix expressly revoked the Item Second of her Will, and substituted in place thereof a bequest to Marie of all the testatrix's personal effects in her home at 411 Laurel Road, with the exception of those articles specifically described and bequeathed in her Will or Codicils. Express revocation of a clause of a will by a subsequent will or codicil is one of the methods of revocation recognized in Maryland.  Code (1957), Art. 93, § 351; Syfer v. Dolby, 182 Md. 139, 150, 32 A. 2d 529 (1943); Hunter v. Baker, 154 Md. 307, 316, 141 Atl. 368 (1928); Woodstock College v. Hankey, 129 Md. 675, 683, 99 Atl. 962 (1917). The first paragraph of the Third Codicil declares it to be a codicil to the Will and the First and Second Codicils. All three of these prior testamentary documents are referred to by name and by their respective dates.  The Second Codicil, [***15] so specifically referred to, had modified the Item Second of the Will by adding the devise to Marie to the bequest to Rosa.  The Third Codicil expressly revoked this Item in the manner authorized by statute and necessarily, by its terms, revoked the entire Item of the Will as it then stood. To hold that the devise to Marie, previously added to the Item of the Will by the Second Codicil, survived the revocation of that Item would be to disregard the plain meaning of the words of the testatrix. The directions of the testatrix, set forth in a manner authorized by law, must of necessity control.  Syfer v. Dolby, supra; Stein v. Safe Deposit & Trust Co., 127 Md. 206, 217, 96 Atl. 349 (1915); Miller, Construction of Wills, § 9.

   The appellant contends that the word "will" in the Third Codicil does not necessarily mean the composite of all testamentary documents in existence at the death of the testator, but rather is to be taken as referring only to the first testamentary [*444] document, entitled "Last Will and Testament," dated May 23, 1955.  She argues that, because in her Third Codicil, the testatrix did not in terms revoke Item First of the Second Codicil, she did not[***16] intend to do so.  As has been pointed out, the Third Codicil expressly states that it is a [**120] codicil to all three of the prior testamentary documents, including the Second Codicil. The terms and effect of the Second Codicil upon Item First of her Will are clear.  To argue that the Third Codicil was only meant to affect the original Will, without the modification effected by the Second Codicil, is to assume that the testatrix was unaware of the unequivocal meaning of the Second Codicil to which she specifically referred.  The appellant, in effect, would have us hold that a testamentary disposition added to a particular clause of a will by an intermediate codicil survives a subsequent codicil revoking the clause in the will, unless there is a specific revocation of the intermediate codicil. Such a holding would be contrary to the established principles of testamentary construction, under which testators are taken as meaning what they clearly say.  It would necessitate, for an effective revocation of a clause in a will, a specific reference to each change made in that clause by intermediate codicils, and an express direction as to whether or not such intermediate changes were[***17] to survive that revocation. That is not the law.  The law assumes that when a testator expressly revokes a clause in his will, particularly when in so doing he refers to the intermediate codicils which have modified that clause, he is doing what his words clearly imply -- revoking the clause in its entirety, as it stood, with all the intermediate changes, at the time of revocation. To hold otherwise would impose a new and unnecessary burden in the drafting of wills and codicils and might well cast doubt upon testamentary documents which death has made final.

   It is conceded in this case that the Third Codicil was prepared for the testatrix by an experienced and competent lawyer, a partner in a firm which specializes in trust and estate law.  In Judik v. Travers, 184 Md. 215, 225, 40 A. 2d 306 (1944), we said:

   "Where a will is drawn by one learned in the law and skilled in the use of its terminology, the words [*445] employed will be considered as having been deliberately chosen to express the testator's intention and will ordinarily be given their accustomed technical meaning.  Buchwald v. Buchwald, 175 Md. 103, 111, 199 A. 795; Wiesenfeld v. Rosenfeld, 170 Md. [***18] 63, 183 A. 250." 184 Md. at 225.

   It is true, as a general legal principle, that a word used in a testamentary document does not necessarily have a fixed and unalterable meaning; the testator is entitled to use words as he pleases to make his meaning clear.  Wigmore, Evidence, 3rd Ed. §§ 2461, 2462.  "Even where technical words are used, though the testator will be ordinarily presumed to have used them in their legal sense, a different meaning will be given to them when the context clearly indicates that such technical import would defeat his manifest intention." Albert v. Albert, 68 Md. 352, 366, 12 Atl. 11 (1888). This principle is only a corollary of the basic doctrine that the testator's intent, when clearly expressed in a testamentary document, must prevail.  In this case, for the reasons we have given, we hold that the intention of the testatrix was expressed in apt and certain terms.  To hold that doubt exists as to the meaning of the revocation in the Third Codicil because the testatrix did not specifically revoke the sentence added to the Will by the Second Codicil would be to extend the eighteenth century formalism which the appellant justly criticizes.

   The appellant's[***19] counsel, in their able brief and argument, admit they have found no authority precisely in point on this subject.  They contend, however, that authorities involving the effect upon an amendment of a repealer and re-enactment of a statute are relevant, citing Hensley v. Bethesda Metal Co. , 230 Md. 556, 561, 188 A. 2d 290 (1963) and an annotation in 77 A.L.R.2d 336, 355. We do not agree as to the relevance of these authorities.  Here, we are dealing with an express revocation, not with the question of whether or [**121]not there has been a repeal or ratification by implication.

   Thomas v. Levering, 73 Md. 451 (1891), cited by the appellant, involved the question of whether two codicils revoked a will by implication; at p. 455, we said: "We look in vain to [*446] find any language in them [the codicils] which bears any semblance to an express revocation * * *" In Johns Hopkins University v. Pinckney, 55 Md. 365 (1881), referred to in Thomas, the question again was whether a codicil operated as a revocation of a devise or bequest in a will by implication; we pointed out that the codicil contained no clause expressly revoking the gift in the will, and contrasted[***20] the clause in the codicil involved with other clauses which revoked other devises and bequests in express terms.

   The appellant cites Sloane v. Stevens, 107 N. Y. 122, 13 N. E. 618 (1887) in support of her contention that the word "Will" as used in the Third Codicil does not have a single clear meaning.  In that case, the testator, in his will, released all claims or demands which he might have at his death against any person named in the will.  In a subsequent codicil, he left certain papers to a named friend.  After the testator's death, his representatives sued the friend on a claim of $50,000.  The defense was that the friend was one of the persons named in the will and was therefore released from all claims.  The court held the defense to be without merit, on the ground that the word "will" does not embrace the codicil where it appears that it was not intended to do so, and that the testator, by putting the release at the end of the will, showed that the release was intended to apply only to those persons named in the particular document.  We do not regard the Sloane decision as in point in this case.  The question there was only one of implied intent in the codicil; [***21] the codicil did not expressly modify the clause of the will involved.  It did not, in terms, add the name of the friend to the list of persons named in the will. In this case, in contrast with Sloane, the testatrix, in terms, added the devise to Marie to the clause in the Will which she subsequently revoked.

   The appellant contends that the final clause of the Third Codicil constitutes a ratification of the Second Codicil, because that clause confirms the provision of the Will of the testatrix, giving its date, whereas Items First and Second of the Third Codicil refer to the Will without date.  The first or publishing paragraph of the Third Codicil refers to the Will and First and Second Codicils, giving the date of each; Item First revokes Item Second of the Will, substituting a bequest, and the Item [*447] Second of the Codicil modifies a subparagraph of Item Third of the Will.  For the testatrix to have repeated the date of her Will in these Items of the Codicil, after she had previously referred to its date in setting forth her prior testamentary documents and when she again referred to the dates of all three documents in the final clause of the Codicil, would have been[***22] mere redundancy.  Her familiarity with the effect of the prior Codicils is indicated not only by her specific references to them but by the language which, in Item First of her Codicil, she substituted for the revoked Item Second of the Will.  In that substituted language, bequeathing furniture and other personal effects to Marie, she expressly excluded "those articles specifically described and bequeathed in my Last Will and Testament or Codicils thereto * * *" Item First of the First Codicil contained eight specific bequests of carefully described furniture and other personal articles, which were in addition to other bequests of similar articles in the Will.  The final clause of the Third Codicil ratified and confirmed the provisions of the Will "as modified" by the First and Second Codicils, and by the Third.  Rather than an indication of an intent to ratify the devise contained in the Second Codicil, the Third Codicil, taken in its entirety, as well as the express words of revocation contained in Item First, convinces us that the testatrix used the words of revocation precisely, with full knowledge that [**122] the devise to Marie in the Second Codicil had become a part of[***23] the revoked Item of the Will.

   In Syfer v. Dolby, supra, we considered the nature of a codicil, and cited with approval the holding in Lee's Estate, 16 Pa. Super., 627 (1901), as follows:

   "Where a testator in a codicil revokes a provision of his will, and in a second codicil referring to the will by date says: 'I do confirm my said will in all respects, except so far as the same is changed by this codicil,' he does not by the second codicil reestablish the provision in the will which had been revoked by the first codicil. Lee's Estate, 16 Pa. Super. 627." 182 Md. at 149.

   In Green v. Tribe, L.R. 9 Ch. Div. 231, 238 (1878), referred to in Lee's Estate, supra, Fry, J. said:
 
[*448] "The character of a codicil is very peculiar.  Its nature is not substantive but adjective.  It is, as Mr. Justice Blackstone describes it (1), 'a supplement to a will, or an addition made by the testator, and annexed to and to be taken as part of a testament.' A reference to the will therefore in itself carries with it a reference to that which is merely a supplement to or annexed to the will itself; and the mere fact that the testator describes the will by a reference[***24] to its original date, does not seem to me sufficient to exclude the inference that the will referred to is the will as modified by the codicils." 9 Ch. Div. at 238.

   In this case, the inference that the Will referred to in the final clause of the Third Codicil is the Will as modified by the Second Codicil is strengthened by the additional internal evidence to which reference has been made.

   The appellant complains that the chancellor, in his opinion construing the Third Codicil, did not consider the Will and Codicils as a whole.  The general principle in the construction of wills is that all parts of a will are to be construed in relation to each other, so as, if possible, to form one consistent whole.  The cardinal policy is to carry out the intention of the testator as deduced from the four corners of the will.  Shellady, Inc. v. Herlihy, Executor, supra, 236 Md. at 471; McElroy v. Mer.-Safe Dep. Co., 229 Md. 276, 283, 182 A. 2d 775 (1962); Albert v. Albert, 68 Md. 352, 365-66, 12 Atl. 11 (1888) and cases therein cited.  However, we find nothing in the Will and Codicils of the testatrix, taken as a whole, which casts doubt upon the clear intent we have found to be[***25] expressed in the Third Codicil.

   The Will and the Codicils show the close relationship between the testatrix and Marie, her adopted niece. They also show, however, that Rosa, the natural niece, is the major beneficiary.  The greater part of the residuary estate is for the benefit of Rosa and her family.  The appellant points to the provision in the Second Codicil, in which the testatrix left her burial lot at Loudon Park Cemetery in trust to permit the interment therein only of the testatrix and Marie, as proof of the intimacy [*449] between them.  That the intimacy existed is indubitable, but Marie, like the testatrix, was unmarried, without immediate family; the arrangements as to the burial lot were natural under the circumstances, however great the affection of the testatrix for Rosa, who had her own family.

    The testatrix also stresses the financial disparity between the value of the devise to Marie of the one-half interest in 411 Laurel Road added to the Will in the Second Codicil and the bequest to Marie in the Third Codicil of the furniture in the house.  The one-half interest in the real estate realized $11,250; the furniture bequeathed to her was valued at approximately[***26] $500.  However, when the testatrix revoked Item Second of her Will which had been modified to include the devise, the interests in the real estate only reverted to what they had been a few months before, when the testatrix had [**123] given Marie only a one-half remainder interest, subject to a power in the testatrix which she did not exercise.  The effect of the Third Codicil, as far as the real estate was concerned, was to revert to that situation.  By not exercising her reserved power, the testatrix divided her real estate equally between Marie and her residuary estate, of which Rosa, her other niece, with her family, was a principal beneficiary.  Nothing in the Will indicates that this final disposition was not in accord with the testatrix's wishes.

   The appellant argues that the gift of the furniture in the house to Marie shows that the testatrix wished Marie to have the house itself.  This does not follow.  Marie testified that, although she often visited the testatrix, she never lived at 411 Laurel Road.  The testimony showed that Marie had some of her own furniture in the house, constituting about one-third of all the furniture therein.  The bequest eliminated any problems[***27] of separation.  A gift of the contents of a house does not necessarily indicate an intent to give the house itself.

   The chancellor properly excluded the proffered testimony as to the declarations of the intent of the testatrix, both before she bought 411 Laurel Road and at the times the Will and Codicils were executed.  The admissibility of such evidence is restricted to cases of uncertainty, where the intention of the testator is not clearly ascertainable on the face of the will.  Shellady, [*450]Inc. v. Herlihy, Executor, supra, 236 Md. at 474; Lee v. Estate of Davis, 226 Md. 416, 420-21, 174 A. 2d 79 (1961); Lederer v. Safe Dep. & Tr. Co., 182 Md. 422, 430, 35 A. 2d 166 (1943); Miller, op. cit. §§ 8-12; or where there is a latent ambiguity.  Darden v.Bright, 173 Md. 563, 568-570, 198 Atl. 431 (1938); Miller, op. cit. §§ 42-45.  Neither of those conditions is here present. Evidence of what transpired between the testatrix and her attorney when the Third Codicil was being prepared was properly excluded for the same reason.

   Decree affirmed; costs to be paid out of the estate.

DISSENTBY: HORNEY

DISSENT: Horney, J., filed the following dissenting opinion, [***28] in which Prescott, C. J., and Sybert, J., concurred.

   The majority, by applying a rule of construction rather than the process of interpretation in construing the last will and testament of Matilda Held, deceased, and the codicils thereto, have, in my opinion, unwittingly rewritten the testamentary disposition of a one-half interest in the home of the testatrix. To use as apt colloquialism, they have put the cart before the horse. 

   The interpretation of a will involves the process of ascertaining, from a reading of all the testamentary writings and, if necessary, a consideration of extrinsic evidence pertinent thereto, the meaning or intention of the testator as expressed in the will and codicils. And where, as here, an interpretation of the will as a whole fully discloses the clear intent of the testator, further inquiry is not necessary.  A rule of construction, on the other hand, since it seeks to assign an intent to the words used, necessarily involves an attempt to formulate a permissible intent for the testator by the use of presumptions. This process should not be resorted to, however, unless the intention of the testator as to a particular devise or bequest is doubtful or[***29] uncertain and therefore inconclusive.  Davis v. Mercantile-Safe Deposit Co., 235 Md. 266, 201 A. 2d 373 (1964); Judik v. Travers, 184 Md. 215, 40 A. 2d 306 (1944). See also Page on Wills (Bowe-Parker Rev.), § 30.3; 20 Wash. & Lee L. Rev. 104.

   The distinction between the two processes was set forth in Davis (at p. 269), in this way:

   [*451] "It is axiomatic that the ascertainment of the intention of the testator is the controlling factor in construing a will.  * * * If the intention can be satisfactorily ascertained from a reading of the will, further inquiry is not [**124] necessary.  * * * If it cannot, the rules of construction may be invoked to ascertain the meaning or intention of the testator as expressed in the will." (Emphasis added.)
 
In Judik, it was said (at p. 221), "it is only when the verbal expressions are of doubtful meaning that the rules or canons of construction may be invoked, and even these rules have no binding force, being mere guides to aid in the discovery of this all important element of intention." (Emphasis added.)

   It seems clear to me, from a reading of the will and codicils, that the testatrix never had[***30] any intention of revoking the first item of the second codicil by which she devised to her niece, Marie Veditz, "to be hers absolutely provided she survives me," whatever interest the testatrix had at the time of her death in the property known as 411 Laurel Road in Severna Park.  On the contrary, it is apparent that the execution of the second codicil was the expression of an unequivocal intention to vest the niece with a fee in the whole property upon the death of the testatrix n1 and that the execution of the third codicil, instead of expressing an intention to revoke the devise, was in fact the expression of an intention to substitute Marie Veditz (an adoptive niece) for Rosa Fenner (a natural niece) as the recipient of all the personal and household effects (not otherwise specifically bequeathed) located in the home of the testatrix.

n1 Shortly after acquiring the property the testatrix caused the execution of strawman deeds by which she retained a one-half interest in fee and vested the other one-half interest in herself for life with remainder to her niece in fee subject to certain powers which were never exercised.

[***31]

   Along with numerous gifts of cash, shares of stock, jewelry and personal effects made to relatives and friends in other items of the original will (dated May 23, 1955), including a cash bequest to the adoptive niece, the testatrix, by the second item thereof bequeathed to the natural niece, all of her personal and [*452] household effects except such articles as were therein specifically bequeathed to other relatives and friends.

   Subsequently (on July 12, 1955), the testatrix added other specific bequests of household furnishings to the third item of the original will, bequeathed the adoptive niece all cut glass and china in the dining room and other specified household effects, and in all other respects, except as to certain modifications with respect to the bequest of the shares of stock, ratified and confirmed the provisions of the will.

   Sometime thereafter (on May 8, 1958), having acquired the property which is the subject of this litigation in the meantime, the testatrix executed the second codicil. Therein she modified the second item of the will (bequeathing personal and household effects to the natural niece), by adding the sentence devising her interest in the[***32] subject property to the adoptive niece. And, after also adding a new subparagraph to the provisions of the third item of the will as modified by the first codicil (giving gifts and bequests to friends), the testatrix left her cemetery lot to the cemetery company in trust, and then ratified and confirmed the provisions of the will as modified by the first codicil.

   On August 6, 1958, the testatrix executed the third and last codicil, the relevant parts of which read as follows:

   "I, Matilda Held, * * * do hereby make, publish and declare this to be a Third Codicil to my Last Will and Testament executed on May 23, 1955, a First Codicil thereto executed on July 12, 1955, and a Second Codicil thereto executed on May 8, 1958.

   First: I revoke Item Second of my Last Will and Testament and substitute in place thereof the following:

   'I give and bequeath unto my niece, Marie Veditz, all of my furniture, [**125]silverware, china, jewelry, linens and other personal and household effects located in my home, * * * with the exception of those articles specifically described and bequeathed in my Last Will and Testament or Codicil thereto, to be hers absolutely.'

   Second: Item[***33] Third, sub-paragraph (a) of my Last [*453] Will and Testament is hereby modified to read as follows:

   '(a) Unto Henry Wright, * * * the sum of Five Hundred Dollars ($500.00) to be his absolutely, provided that he survives me, in appreciation of his kindness.'

   Finally: In all other respects, I do hereby ratify and confirm the provisions of my said Last Will and Testament executed on May 23, 1955, as modified by the First Codicil thereto executed on July 12, 1955, the Second Codicil executed on May 8, 1958, and by this Codicil.

   * * *
 
   Signed, Sealed, Published and Declared by the above-named Testatrix, Matilda Held, as and for a Third Codicil to her Last Will and Testament executed on May 23, 1955, in the presence of [John H. Somerville and James P. Walsh], who, at her request, in her presence, and in the presence of each other, have hereunto subscribed our names as witness thereto."

   John H. Somerville, Esq., prepared the codicil in the absence of the attorney who had prepared the original will and the first and second codicils. Until the day on which the third codicil was executed he knew nothing about the contents of the previous testamentary writings.  Although he was[***34] not certain, his recollection of the circumstances led him to believe that he must have had knowledge of the contents of the second codicil (devising the interest of the testatrix in the subject property to the adoptive niece) at that time.  He also recalled that the testatrix related to him the changes she wanted made in her last will and testament and that he dictated the third codicil to a secretary in the presence of the testatrix. It is not disputed that the testatrix knew exactly what she wanted to do and it is conceded that the draftsman was a capable and experienced attorney.

   While the testatrix, by the first item of the third codicil, revoked the second item of her last will and testament (bequeathing her personal and household effects to the natural niece) and [*454] substituted the adoptive niece as the donee of such personal and household effects, she did not in terms revoke the first item of the second codicil by which her interest in the subject property had been devised to the adoptive niece.

   That neither the testatrix nor the attorney had the devise in mind when the third codicil was drafted and executed is apparent from the words used to effectuate the substitution[***35] of one niece for the other as donee of the personal and household effects and the absence of words to bring about the revocation of the devise of the only real property the testatrix had.  That the testatrix had no intention of revoking the devise is clearly demonstrated by the significant fact that the testatrix, in revoking the bequest of certain personal and household effects to the natural niece and, in substituting the adoptive niece in place thereof as the donee of such personal and household effects, carefully excepted the articles specifically described and bequeathed to others in the last will and testament or the codicils thereto, but made no mention of the interest of the testatrix in the real property devised to the adoptive niece by the second codicil; and then, besides ratifying and confirming the provisions of the last will and testament as modified by the first and third codicils, also ratified and confirmed the second codicil without excepting the devise of her interest in the real property to the adoptive niece.

   It is also important to observe that the testatrix did not consistently use the words [**126] "last will and testament" as meaning both the original [***36]will and a codicil or codicils. On the one hand, the reference to the last will and testament in the publishing clause, the ratification clause and the attestation clause of the third codicil was to the testamentary writing executed May 23, 1955 only.  On the other hand, the testatrix referred to the same testamentary writing in the first item of the third codicil (substituting the adoptive niece for the natural niece as the donee of the personal and household effects) without any mention of the fact that the second item of the last will and testament had been enlarged by the first item of the second codicil (devising the interest of the testatrix in her home to the adoptive niece).  Likewise, in the second item of the third codicil, the testatrix modified subparagraph (a) of the third item of the last will and [*455] testament by increasing a bequest to a friend without referring to the fact that the last will and testament had been previously modified in both the first and second codicils, when in the second codicil, executed less than three months before, the testatrix, in modifying the last will and testatment, stated that the third item of the original will had been modified[***37] by the first codicil. Moreover, if the testatrix had actually changed her mind with respect to the disposition of her interest in the only real property she owned, it is not likely that her capable and experienced scrivener would have overlooked providing for the specific disposition of the one-half interest instead of using the words he did to express the intention of the testatrix, which at most permit only an inference that the words "last will and testament" were meant to include the devise made by the second codicil.

   In addition to these manifestations of intention gathered from the four corners of the will as a whole, the provisions thereof clearly indicate a progressive intention to prefer the adoptive niece in some respects over the relatives and friends rather than an intention to take away anything that had been previously given to her.  Not to the point of depriving the natural niece and the grandnephews of the bulk of the estate which she wanted them to have, in order to provide for the adoptive niece, but certainly to the extent of providing the latter a furnished home in which to live, if she wanted to, after the death of the testatrix. By the original will, the testatrix, [***38] other than providing that her executors were to consult the adoptive niece with respect to the funeral arrangements, bequeathed her only $500.  By the first codicil, the testatrix bequeathed the adoptive niece all cut glass and china and certain other specified household effects. By the second codicil, the testatrix not only devised the one-half interest in the home that she had retained when she granted the adoptive niece the other one-half interest in fee, but, in bequeathing the cemetery lot in trust, further provided that no interments, other than those of herself and the adoptive niece, should be permitted therein. And, by the third codicil, the testatrix bequeathed to the adoptive niece all of the personal and household effects she had previously bequeathed to her natural niece by the second item of the will.  Moreover, [*456] the record further shows that sometime before her death, apparently during her last illness, the testatrix had given her adoptive niece a power of attorney.

   In my opinion, the manifestations of intention expressed in the testamentary writings, coupled with the evident intention of the testatrix to prefer the adoptive niece in a manner somewhat[***39] different from other beneficiaries, was more than enough to so interpret the will and codicils as to preclude a finding that the testatrix intended to revoke the devise of her interest in the home to the adoptive niece. On this point, the will as a whole is as susceptible of an interpretation that the devise was not revoked as it was that there was a revocation of it.  Moreover, there was no reason why the second and third codicils should not have been reconciled, as would be done with a will and a codicil, where, as here, the two codicils are not inconsistent and the [**127]subsequently executed one does not expressly revoke the first.  See Wiesenfeld v. Rosenfeld, 170 Md. 63, 183 Atl. 250 (1936); Thomas v. Safe Deposit & Trust Co., 73 Md. 451, 21 Atl. 367 (1891). If the intent of the testatrix was free from doubt (as it seems to me it was), the devise should be given effect, and if there was doubt as to the intent, extrinsic evidence was admissible to clarify the intention.  Shellady, Inc. v. Herlihy, 236 Md. 461, 204 A. 2d 504 (1964); Lee v. Estate of Davis, 226 Md. 416, 174 A. 2d 79 (1961).

   The suggestion at the outset of this dissent that the majority had[***40] stated their theory of the effect of the words used by the testatrix to cancel a bequest of personal property rather than her motive or reason for limiting the language she used for that purpose, was based, of course, on my belief that what the majority did, in spite of their disclaimer that a doubt existed as to the meaning of the revocatory words, was to invoke a rule of construction instead of first interpreting the will (with or without resorting to extrinsic evidence) in contravention of the holdings of Davis (235 Md.) and Judik (184 Md.), both supra .  The majority by the expedient of declaring that the use of the words "last will and testament" in the first item of the third codicil expressly revoked the second item of the will as enlarged by the first item of the second codicil; that there was no doubt as to the meaning of the revocation; and that any other conclusion [*457] would be contrary to the established principles of testamentary construction, held that the "intention of the testatrix was expressed in apt and certain terms." No authority was cited for the propositions of law assumed by them and none has been found by me.  While it was said [***41]in Syfer v. Dolby, 182 Md. 139, 32 A. 2d 529 (1943), n2 that the word "will" in the statute comprehends a codicil and that a second codicil which is so inconsistent with the first one that the two could not stand together would be tantamount to an express revocation of the first, it was also said that a subsequent codicil does not revoke a prior codicil in the absence of an express revocation to that effect.

n2 See also Code (1964 Cum. Supp.), Art. 93, § 351.

   Furthermore, the general rule is that the revocation of a clear devise (as was the case here) requires an intention to revoke as clear as the devise. Miller, Construction of Wills, § 62.  And see Johns Hopkins Univ. v. Pinckney, 55 Md. 365 (1881). It is also important to observe that words having a particular legal sense (such as "revoke") should be given a meaning commensurate with the context in which they are used when, as here, the technical import of such words might defeat the manifest intention of the testatrix. Albert v. Albert[***42] , 68 Md. 352, 12 Atl. 11 (1888).

   If the meaning of the revocation is ambiguous or otherwise doubtful (as the majority necessarily had to presume in order to invoke the rule of construction they applied in reaching their decision), then the proffered extrinsic testimony should have been considered in order to determine whether or not the testatrix intended to revoke the devise. Had this been done, there would be little room for doubt as to the intention of the testatrix.

   The decree in my opinion should be reversed.  Prescott, C. J., and Sybert, J., concur. 

BAUMAN v. BAUMAN 
No. 315, September Term, 1964
 
Court of Appeals of Maryland
 
239 Md. 379; 211 A.2d 759; 1965 Md. LEXIS 561

 June  30, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Case remanded without affirmance or reversal for further proceedings consistent with this opinion; the appellee to pay the costs.

CORE TERMS:  chancellor, separate maintenance, personal property, commencement, financial ability, sound discretion, husband and wife, savings account, allowance, postponed, affirmance, ownership, reversal, weekly

COUNSEL: Submitted by C. Osborne Duvall for appellant.

   No brief and no appearance for appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Sybert and Oppenheimer, JJ. Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [***2]

   [*380] [**760] This appeal challenges the authority of the chancellor to postpone the commencement of weekly support payments he had allowed in a suit for separate maintenance.

   After having lived with his wife for about thirty years, the husband deserted her.  He left a note saying that he was taking the car and that she could have "all else." A day or so later, the wife withdrew the more than $4000 she and her husband had deposited in a joint savings account and redeposited the money in the name of herself and her sister.  A joint checking account containing approximately $125 was also closed and reopened in the name of the wife alone. However, the ownership of thirty-two United States Savings Bonds (having a maturity [*381] value of $1025) registered in both names was not altered. The wife, who has arthritis in her hands and is unable to work, continues to reside in the house owned by the parties as tenants by the entireties.  The husband received a total of $8372 from the United States Army in 1963, but his net weekly income was $130.

   A month after the separation, the wife, alleging desertion, filed suit for separate maintenance and counsel fees.  A cross-bill[***3] filed by the husband for an absolute divorce was subsequently dismissed.  The testimony at the hearing was virtually undisputed, but when the wife on cross-examination was asked about the joint bank accounts of the parties, an objection was interposed. The chancellor, ruling that such evidence was admissible, stated that he had to know what the wife had in order to fix the amount she should be allowed for her support.  At the conclusion of the hearing, the chancellor awarded the wife $50 per week for support and maintenance, but, by allowing the husband a credit equal to approximately one-half of the savings account ("40 weeks at $50 per week") because the wife had obtained sole possession and ownership thereof, the commencement of the support payments was postponed until April 5, 1965. [Neither the amount of the checking account nor the value of the savings bonds was considered by the chancellor in determining when the support payments were to commence.]

   The wife contends that the postponement had the effect of dividing the personal property of the husband and wife in violation of law.  We agree that the chancellor had no authority in this suit for separate maintenance to divide [***4]the personal property of the parties, but that does not necessarily mean that the commencement of support payments may not be postponed under some circumstances.  The authority of the court, under Code (1957), Art. 16, § 29, to make a division of the personal property of a husband and wife in divorce cases does not extend to proceedings in which separate maintenance alone is sought. Smith v. Smith, 227 Md. 355, 176 A. 2d 862 (1962); Bailey v. Bailey, 218 Md. 527, 147 A. 2d 747 (1959); Lopez v. Lopez, 206 Md. 509, 112 A. 2d 466 (1955); Brown v. Brown, 204 Md. 197, 103 A. 2d 856 (1954). Even more to the point, it was held in the Brown case, at p. 210, that the reduction of [*382] weekly payments of separate maintenance for a specified period of weeks in order to make restitution to the husband of a sum of money received by the wife from the sale of a bond, was tantamount to a division of personal property and therefore improper.

   As we see it, however, since an allowance for separate maintenance, like an award of alimony, is within the sound discretion of the chancellor, Pet v. Pet, 238 Md. 492, 209 A. 2d 572 (1965), there was no reason why the chancellor [***5]should not have considered the assets and income of the wife in balancing her needs with the financial ability of the husband to make support [**761]payments.  Zimmerman v. Zimmerman, 199 Md. 176, 85 A. 2d 802 (1952). Moreover, since the chancellor has power to increase or decrease the amount of support payments from time to time to conform to changed conditions, it would not be improper for the decree to be modified with respect to such payments as accrued prior to the expiration of the forty week period as well as those not yet due.  Cf. Winkel v. Winkel, 178 Md. 489, 15 A. 2d 914 (1940).

   We shall therefore, pursuant to Maryland Rule 871 a, remand this case without affirmance or reversal for such further proceedings as may be required for the purpose of determining the proper amount of the support payments.

   Case remanded without affirmance or reversal for further proceedings consistent with this opinion; the appellee to pay the costs. 

FAIR LANES, INC., et al. v. COMPTROLLER OF THE TREASURY,STATE OF MARYLAND AND BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY 
No. 201, September Term, 1964
 
Court of Appeals of Maryland
 
239 Md. 157; 210 A.2d 821; 1965 Md. LEXIS 536

 June  2, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order reversed and case remanded for the passage of an order in accordance with this opinion.  Costs to be paid by Anne Arundel County.

CORE TERMS:  gross receipts, bowling, amusement tax, power to tax, merchandise, refreshment, enabling act, taxing power, same manner, statewide, sporting, levied, taxing act, levy, recreation, purview, patron, recreational facilities, broad language, roof garden, collection, interpreting, completion, enclosure, collected, enacting, delegate, supplied, dancing, intend

COUNSEL: Hamilton O'Dunne (on both arguments), with whom was Abel J. Merrill on the brief, for appellants.

   Argued by Joseph W. Hoy, with whom were Henry J. Tarantino and Richard N. Hambleton on the brief, for Board of County Commissioners of Anne Arundel County, part of appellees; no brief and no appearance for Comptroller of Treasury, State of Maryland, other appellee.  Reargued by Robert J. Martineau, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief, and Bennett Crain, Jr., County Solicitor for Anne Arundel County, for appellees.

JUDGES: Prescott, C. J., and Hammond, Marbury, Sybert and Barnes, JJ.  Reargued before Prescott, C. J., Hammond, Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*159] [**822] The appellants, Fair Lanes, Inc., Ritchie Bowling Lanes, Inc., and Southwest Bowling Lanes, Inc., are operators of bowling centers in Anne Arundel County.  On March 24, 1964, they filed a bill of complaint for declaratory and injunctive relief in the Circuit Court for Anne Arundel County against the appellees, [***4] Comptroller of the Treasury, State of Maryland, and the Board of County Commissioners of Anne Arundel County, contesting the applicability to them of the Anne Arundel County admissions and amusement tax. The trial court, after taking testimony, entered an order dismissing the amended bill of complaint.  That court held that Code (1957), Article 81, Section 403 (a) grants to Anne Arundel County the authority to impose a tax on the gross receipts derived from the amounts charged by appellants for bowling in their centers.  Appellants appealed from the order of the lower court.

   The issue here is whether the gross receipts from charges made for bowling are within the purview of the State enabling act, Section 403, as provided in the statewide taxing act, Code (1964 Cum. Supp.), Article 81, Section 402.  The pertinent provisions are:

   "Admissions and Amusement Tax
"§ 402. Levy and amount.

   "There shall be levied, collected and paid a tax at the rate of one half of one percentum (1/2%) of the gross receipts of every person, firm or corporation derived from the amounts charged for (1) admission to any place, whether such admission be by single ticket, season ticket or subscription, [***5] (2) admission within an [*160] enclosure in addition to the initial charge for admission to such enclosure, (3) the use of sporting or recreation facilities or equipment, and (4) admission, cover charge for seats or tables, refreshment, service or merchandise at any roof garden, cabaret or other similar place where there is furnished a public performance when payment of such amounts entitles the patron thereof to be present during any portion of such performance.  The term 'roof garden or other similar place' shall include any room in any hotel, restaurant, hall or other public place where music or dancing privileges or other entertainment, except mechanical music, radio or television, alone, and where no dancing is permitted, are afforded the patrons in connection with the serving or selling of food, refreshment or merchandise. (Italics supplied.)
"§ 403. Additional tax by local governments.

   "(a) Authorized; rate.  Any county shall be authorized by resolution to levy a tax on the gross receipts of every person, firm or corporation obtained from sources within said county but not within any incorporated city or town thereof, derived from the amounts charged for admission [***6]  or refreshment, service and merchandise to the same extent and in the same manner as that levied by the State under the provisions of § 402; * * *.  (Italics supplied.)

   "(b) Collection. The tax authorized to be levied by the provisions of this section shall be collected by the Comptroller and paid in the same manner as the tax levied by the State."

   The Comptroller of the Treasury, pursuant to Section 402, collects from appellants a State admissions and amusement tax of one half of one percent upon their gross receipts derived from amounts charged by them for bowling. They do not challenge the collection of this tax.  However, on October 31, 1963, the Board of County Commissioners of Anne Arundel County adopted resolution 63-156 pursuant to the authority granted by Section 403.  This resolution imposed an Anne Arundel County [*161] admissions and amusement tax of three [**823] percent effective February 1, 1964.  Thereafter, the Comptroller demanded that appellants pay a combined State and Anne Arundel County admissions and amusement tax of three and one-half percent of their gross receipts and since that date they have made such payments to the Comptroller but under[***7] protest as to the Anne Arundel County levy on receipts from bowling.

   On this appeal, the appellants do not challenge the validity of either of the sections.  However, they claim that there is a substantial and critical difference in the wording of the two sections so that their gross receipts fall within the purview of Section 402, but that their gross receipts from bowling are beyond the scope of Section 403 (a).  On the other hand, appellees argue that pursuant to Section 403 (a), all activities subject to the State tax are subject to the Anne Arundel tax, and thus the County Commissioners had authority to levy a three percent tax on the appellants' total gross receipts.

   The Anne Arundel County resolution, 63-156, is written in language substantially identical to that in Section 403 (a).  However, a comparison of Section 402 with Section 403 (a) shows that the State exercises broader taxing powers than the legislature has authorized the counties to exercise.  The State, pursuant to the specific terms of Section 402, taxes "* * * gross receipts * * * from the amounts charged for * * * the use of sporting or recreation facilities or equipment, * * *." There is no question of, nor[***8] do the appellants object to, the State's power to tax receipts derived from bowling under this section.  An examination of the record discloses that appellants do not make any charge for admission into their bowling centers, but that their patrons can enter and leave their buildings without paying.  A bowling participant pays a charge only upon completion of the games played.  The language of Section 403 (a), "* * * admission or refreshment, service and merchandise, * * *" is not sufficiently inclusive to include bowling charges. The phraseology of the county's resolution and Section 403 is clear and unambiguous.  Therefore, the plain and natural meaning should be ascribed to the words used to determine the legislative intent.  Height v. State, 225 Md. 251, 170 A. 2d 212; Smith v. Higinbothom, 187 Md. 115, 48 A. 2d 754.

   [*162] In his written opinion the trial judge held: "* * * that the Legislature, by using the words * * * 'to the same extent and in the same manner,' intended to authorize the local governments to tax the gross receipts obtained from all sources mentioned in Section 402 within the local jurisdiction." We do not agree and conclude his interpretation of[***9] the statutes and the resolution was in error.  The State enabling act did not in its language grant the power to tax "the use of sporting or recreational facilities or equipment," but granted the power to tax receipts from "admission or refreshment, service and merchandise to the same extent and in the same manner as that levied by the State under the provisions of § 402." If the legislature had intended to grant in the enabling act the full taxing power exercised in the statewide taxing act, it could have done so.  It did not.  Both sections involved were passed at the same time and the failure of the legislature to delegate taxing power to the counties in the same broad language which it used in enacting the statewide act shows that the legislature did not intend to grant the same taxing power to the counties which it had enacted for the State in Section 402.  In interpreting tax statutes a court must not extend their provisions by implications beyond the clear import of the language employed and where there is doubt as to such a statute's scope, it should be construed most strongly in favor of the citizen and against the state.  Comptroller v. Rockhill, Inc., 205 Md. 226; 107[***10] A. 2d 93. See also Balto. Foundry v. Comptroller, 211 Md. 316, 127 A. 2d 368; Comp. of Treas. v. American Can Co., 208 Md. 203, [**824] 117 A. 2d 559; Magruder v. Hospelhorn, 173 Md. 62, 194 Atl. 839.

   Order reversed and case remanded for the passage of an order in accordance with this opinion.  Costs to be paid by Anne Arundel County. 

EWELL v. STATE 
No. 303, September Term, 1964
 
Court of Appeals of Maryland
 
238 Md. 628; 209 A.2d 776; 1965 Md. LEXIS 695

 May  6, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment and sentence affirmed.

COUNSEL: W. Harvey Beardmore for appellant.

   Miss Dickee M. Howard, Special Attorney, with whom were Thomas B. Finan, Attorney General, Robert F. Sweeney, Assistant Attorney General, and Marvin H. Anderson, State's Attorney for Anne Arundel County on the brief, for appellee.

JUDGES: Prescott, C. J., and Hammond, Horney, Sybert and Oppenheimer, JJ.

OPINIONBY: PER CURIAM

OPINION: [*629] [**776] Court-appointed counsel has made an earnest and sincere effort to be of assistance to the appellant; but the facts render the appeal hopeless from appellant's side thereof.

   He was convicted of breaking and entering and larceny.  The only question presented is whether he was convicted on the uncorroborated testimony of accomplices.  If we assume, without deciding, [***2] that the witness McGowan was an accomplice, there was ample corroborative testimony to support appellant's conviction.  The witness Finklestein definitely was not an accomplice, and his testimony, together with that of the other witnesses adduced by the State, was sufficient to support the conviction.

   Judgment and sentence affirmed. 

PALMER v. PALMER 
No. 240, September Term, 1964
 
Court of Appeals of Maryland
 
238 Md. 327; 207 A.2d 481; 1965 Md. LEXIS 660

 April  12, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Amended decree reversed and case remanded for the passage of a decree in accordance with this opinion.  Costs to be paid by the appellant.

CORE TERMS:  custody, proper person, adulterous, minor child, paramour, adultery, awarding, tavern, guardianship, recommended, progress, decree, marry, strong presumption, awarding custody, undesirable, adulteress, married, overriding consideration, welfare department, witness testified, way of living, welfare board, guilty party, usual rule, conclusively, indiscretions, frequenting, overlooked, chancellor

COUNSEL: Edwin A. Lechowicz, with whom were Biener & Connell on the brief, for the appellant.

   Ralph S. Greil and J. Louis Shavrick for the appellee.

JUDGES: Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*329] [**482] This is an appeal from an amended decree dated May 8, 1964, awarding guardianship and custody of a minor child to the mother incident to the granting of a divorce a vinculo matrimonii to the father on the ground of the wife's adultery.

   The pathetic facts of this case unfold a story which may be summarized as follows.  The parties were married in 1954, a son, Douglas Gordon Palmer, was born of the marriage and was seven years of age at the time of the taking of testimony in open court.  During the first years of their marriage, the parties lived together normally, making[***5] their home in Prince George's County. On January 5, 1958, the husband was seriously injured in an automobile accident, and as a result, he was hospitalized for nearly two and a half years, being discharged in 1960 as a paraplegic, paralyzed from the waist down and unable to walk.  For nearly two months, he returned to live with his wife and son until she left him alone in his helpless condition, taking with her the minor child. The husband then went to live with his sister and brother-in-law in Pelham, Georgia, where he remained until returning to Anne Arundel County, where his wife was then living, for the purpose of filing suit for divorce on the ground of her adultery, and for custody of his child.

   The record clearly disclosed that the wife had become an adulteress. By her answer to the bill of complaint filed by the husband, she admitted committing the crime of adultery. In addition, she had given birth to a child which was fathered by her paramour. A witness testified to being an eyewitness to events which would indicate that the wife had committed adultery in a wooded area near Gambrills, Maryland.  Another witness testified that he had sexual relations with her during[***6] the [**483] time when she was married to appellant, although she denied having had illicit relations with any one except her paramour. [*330] Furthermore, the record indicates that she was a frequent visitor to a tavern which was described by a representative of the Anne Arundel County Welfare Board in its report as having a "reputation in the neighborhood for violence and sexual side lines." The wife admitted that she has taken the minor son to this tavern on some of her visits there.

   In addition to the wife's adulterous conduct and her frequenting of an undesirable tavern, the record shows that she interfered with and discouraged contacts between the father and his son.  Also, the child lived in the poorest surroundings in a small, three room trailer in an isolated area, occupied by the mother, Douglas, the former paramour (they were married on February 8, 1964), and their four month old daughter.  Further, testimony indicated that she had left the child without adult supervision.  The Welfare Board reported that Douglas' progress in school was poor, with a low attendance record, and as a result he would have to repeat the first grade.  The mother did not keep informed[***7] nor was she aware of his school progress, and ignored requests by the teachers for cooperation in helping in his educational development.

   On the other hand, evidence showed that the father has attempted to continue contact with his son in spite of financial difficulties, his physical condition, and the actions of the wife.  He had sent gifts to Douglas since the time of the separation.  Although his income is derived from social security, it would be permanent and sufficient to provide for the child.  He plans to take his son to his sister's home in Georgia.  There, the Department of Family and Children Services of Mitchell County reported that an investigation was made of the home environment into which the father proposes to take the child, and recommended it as being suitable and adequate.  That Department further stated that this family would welcome the child into their home willingly and are able to assist the father in raising him.  It is also significant to point out that the Anne Arundel County Welfare Board, after a complete investigation, recommended to the court below that custody of the minor child be awarded to the father.

   Based upon the foregoing facts and circumstances[***8] the appellant contends the court erred in awarding the custody of the [*331] minor child to the adulterous mother where the evidence was uncontradicted that he was an entirely fit and proper person and worthy of the child's custody. We agree.

    The overriding consideration in determining to whom the custody of a child should be awarded is, we have consistently held, the best interests and welfare of the child.  Ferster v. Ferster, 237 Md. 548, 207 A. 2d 96; Wallis v. Wallis, 235 Md. 33, 200 A. 2d 164; Glick v. Glick, 232 Md. 244, 192 A. 2d 791; Hild v. Hild, 221 Md. 349, 157 A. 2d 442. A correlative rule is if the mother is a fit and proper person to have custody and other things are equal, she is usually awarded the custody of children of tender years.  Wallis v. Wallis, supra; Parker v. Parker, 222 Md. 69, 158 A. 2d 607. Where the mother is not a fit and proper person, custody is awarded to the father, provided he meets the test of being fit and proper, and, if not, to some other person.  If the mother is shown to be an adulteress, a strong presumption arises that she is not a fit and proper person to have custody. To overcome this presumption, a strong[***9] showing must be made of facts and circumstances which indicate that the mother is, in fact, nevertheless fit and proper.  Such rules are not to punish a wayward parent nor reward a virtuous one.  They are based upon the presumption that adultery is a highly persuasive indicium that the guilty party does not meet the test, when a choice must be made between parents, of which is the better suited to bear responsibilities of rearing the minor child. Wallis v. Wallis, supra.

   [**484] The rule is not absolute.  When the adulterous relationship has ceased and appears unlikely to be revived because the mother has changed her way of living, her past indiscretions may be overlooked and she may be given the custody of a minor child. See Wood v. Wood, 227 Md. 112, 175 A. 2d 573; Oliver v. Oliver, 217 Md. 222, 140 A. 2d 908. However, the past decisions of this Court require a strong showing to be made to overcome the usual rule against awarding custody to an adulterous mother.  The fact that she subsequently marries her paramour has not been regarded as meeting the requirements of such a showing. Hild v. Hild, supra; McCabe v. McCabe, 218 Md. 378, 146 A. 2d 768.

   In the[***10] case at bar, the adulterous conduct of the mother was [*332]conclusively shown.  Thus, the presumption against awarding custody to her is raised and had to be overcome if she was to have custody of her child. Here, appellee made no attempt at a "strong showing" to overcome the prevailing rule, but was content to point out that she was about to marry her paramour, which she in fact did, as indicated above.  Aside from her adulterous conduct the evidence in this case disclosed that she was unfit to have custody of this child.  Her frequenting of an undesirable tavern where she took the boy, her failure to supervise him, her indifference to his school progress, the poor living conditions in which she maintained him, and her interference with contacts between the child and its father, all point to her unfitness. Significantly, although not necessarily controlling, the representative of the Anne Arundel County Welfare Board, after making a complete and detailed investigation of the parties and circumstances involved in this case, recommended to the court that custody be awarded to the father.  It was shown that the father, although disabled, was a fit and proper person, and that [***11]he can provide a wholesome and adequate home for his son.  No criticism of his character or morals was made and no fault was found with the environment to which he would take his son, which had been approved by the welfare department in Georgia.  We hold, therefore, that the chancellor was in error in awarding guardianship and custody of the child to its mother, and the case must be remanded for the passage of a decree awarding guardianship and custody to the father, with reasonable rights of visitation to the mother.

    Amended decree reversed and case remanded for the passage of a decree in accordance with this opinion.  Costs to be paid by the appellant. 

MARYLAND CITY REALTY, INC. v. VOGTS et al. 
No. 210, September Term, 1964
 
Court of Appeals of Maryland
 
238 Md. 290; 208 A.2d 701; 1965 Md. LEXIS 655

 April  6, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

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

CORE TERMS:  option contract, settlement, specific performance, first option, chancellor, purchase price, option period, vendee, contract of sale, real property, grantee, settle, notice, decree, real estate commission, estoppel, vendor, signature, inserted, expressly stated, validly, mimeographed, typewritten, inequitable, printed, mailed, unilateral mistake, option to purchase, innocent mistake, time provision

COUNSEL: Ralph R. Sachs for the appellant.

   Gerald Kunes for the appellees.

JUDGES: Prescott, C. J., and Hammond, Marbury, Sybert and Barnes, JJ.  Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*293] [**703] This appeal involves the alleged sale of a lot of approximately one acre at the intersection of Old Annapolis Road and the New Fort Meade Road in the Fourth Election District of Anne Arundel [*294] County[***7] (the property).  It has been owned in fee simple since 1954 by Chewisco Franklin Vogts and his wife, Carrie Lee Vogts (the Vogts).

   The case arose in the Circuit Court for Anne Arundel County upon the amended bill of complaint of Maryland City Realty, Inc. (Realty Company), for specific performance of an alleged option contract dated December 8, 1962 between the Realty Company and the Vogts to purchase the property for $45,000.  In addition to the Vogts as defendants, Nicholas Andrew (Andrew) was joined as a party defendant.  Andrew was alleged to have a subsequent contract of sale to purchase the property for $50,000.  In addition to specific performance of the December 8 contract, the plaintiff prayed for injunctive relief, for compensatory damages of $100,000, for punitive damages of $100,000 and for other relief.  A cross bill of complaint was filed by the Vogts against the Realty Company seeking compensatory damages as well as of $25,000 as punitive damages and for other relief.

   After taking the testimony for two days of some fourteen witnesses produced by both the plaintiff and the defendants, the Chancellor, Judge Duckett, dismissed both the amended bill of complaint and[***8] cross bill of complaint and required the Realty Company to pay the costs.

   Judge Duckett did not file a memorandum opinion in the case.  He offered to do this if there was an appeal.  Counsel for the plaintiff indicated that a formal written request for the filing of a memorandum opinion would be filed (see Maryland Rule 18 c), but no such formal written request was ever filed. The Chancellor, however, indicated the general basis of certain rulings and of his final conclusion.  These will be referred to later in this opinion.

   The testimony and exhibits indicate the following:

   In 1959 or 1960, Nicholas Andrew, a neighbor and friend of the Vogts, offered to purchase the property from them for $25,000.  This offer was refused by Mr. Vogts, who indicated that he did not wish to sell the property at that time. The Realty Company has its office at 701 Washington Boulevard, Laurel, Maryland. The Vogts property is not far from Laurel, Maryland, but is in Anne Arundel County as indicated.

   [*295] During the afternoon of Saturday, December 8, 1962, Ernest C. Pierce, an agent of the Realty Company, interviewed the Vogts on behalf of his principal to purchase the property.  He obtained[***9] the signatures of the Vogts to a written option contract (first option contract) which for a recited consideration of $1.00 granted the Realty Company an exclusive option to purchase the property for a period of 60 days from the date of the contract, December 8, 1962, for $50,000.  This first option contract was on a typewritten form which was typed [**704] prior to its presentation to the Vogts.  The typing was apparently not done by a professional typist.  The blanks were filled in in ink by Mr. Pierce but no metes and bounds description was set forth in the space provided for the description of the property to be purchased.  In paragraph 5 there was a provision that the option might be extended for an additional period of 30 days upon written notice by the grantee prior to the end of the first option period, the grantee's check for the further sum of $1.00 to accompany any such notice. Paragraph 6 provided that in the event the option was not exercised by the grantee during "the time or times above stipulated, then it shall have no further right or option to purchase said property and the option consideration shall become the sole property of the grantor." In paragraph [***10]7 it was provided that the grantee should be given possession of the property upon delivery of the deed or 120 days after the date the grantee elected to purchase, whichever occured later.  In paragraph 10 it was provided that all notices required or which might be given under the option contract should be considered properly given if delivered in writing personally or sent by certified mail, postage prepaid with a return receipt requested, addressed to the grantor or grantee, as the case might be, at the address first recited in the option contract, and that notice given by mail "shall be deemed given on the date on which such notice is deposited in the United States mail." There is nothing in the first option contract in regard to the payment of any real estate commission to the Realty Company of $5,000 or in any other amount.  It is clear that the Vogts were not obligated to pay any real estate commissions.

   William D. Miller, President of the Realty Company, was not available on December 8, 1962 so that Mr. Pierce took the [*296] matter up with him the following Monday, December 10.  Either on or sometime after December 10, Mr. Pierce on behalf of the Realty Company obtained[***11] the signatures of the Vogts to another exclusive option contract for the property (second option contract).  This second option contract is upon a mimeographed form quite similar to the form of the first option contract except that it has a form number "B-55" and is on two longer sheets of paper instead of the three somewhat shorter pages of the typewritten form of the first option contract.  The mimeographed language is identical with that of the typewritten language except in paragraph 5 in which the notice for the additional option period in the typewritten form must be "written," whereas in the mimeographed form the word "written" is left out.  In the blanks in the second option contract, the additional terms were typed in by Mr. Pierce.  Instead of the 60 day option given in the first Realty Company option contract, the second option contract provided for 90 days; instead of a $50,000 purchase price a $45,000 purchase price was inserted; and, instead of a 120 day possession period in paragraph 7, a 90 day possession period was inserted. The date inserted by Mr. Pierce was December 8, 1962.  This appears in ink, as do the signatures of the Vogts and the signature of Mr. Pierce[***12] as the witness to their signatures. A metes and bounds description appears on the back of the first mimeographed page, there being a notation "Legal Property Description on back of page" appearing in the blank left on the first page for the purpose of inserting the description of the property.  As already indicated no such notation and no metes and bounds description appear in the first option contract.

   No copy of either option contract was left with the Vogts, who at no time prior to their execution had legal or other advice in regard to the contracts. The Vogts are elderly, unsophisticated persons with limited education.

   The only explanation Mr. Miller was able to give as to why the Vogts would reduce the $50,000 purchase price to $45,000 was "the people thought they would have to pay a commission and they were willing to sign a second agreement for $45,000 because [**705] they wouldn't have to pay a commission." Mr. Miller had already admitted that the Vogts were not obligated [*297] to pay any real estate commission "because I was the purchasing company in this case." When asked whether his Company's salesman, Mr. Pierce, explained to the Vogts that they did not[***13] have to pay a commission, Mr. Miller replied, "I believe he did.  Not on the first one but on the second one he did." Mr. Pierce, however, when asked "* * * did you explain to them why the price was fixed in the second paper at forty-five thousand dollars?", replied "There again I do not recall." He further stated that he did not remember any discussion with the Vogts on the occasion of his second visit to them.

   Mr. Vogts testified that he understood that he was to receive $50,000 and not $45,000.  He was willing to settle for $50,000, based on the original representation that this was the purchase price. He testified that he did not receive the $1.00 mentioned in either option contract. This is uncontradicted. There is evidence which would support a finding that the Vogts understood that the only change in the second option contract was in the time of the option and possession periods.
 
   Mr. Vogts also testified that at the time of the negotiation of the first option contract it had been represented to the Vogts that the contract would contain provisions that the Realty Company would move them to a trailer park or put them in an apartment free of charge, and when they got their[***14] house built, the Realty Company would pay for the moving van.  This evidence was also uncontradicted.  There is nothing in either the first or second option contract containing these agreements.

   The 90 day option period under the second option contract expired on Friday, March 8, 1963.  Mr. Miller testified that on March 7 his salesman, Mr. Pierce, prepared two letters addressed to the Vogts and signed by him as President of the Realty Company.  One stated:

   "Enclosed please find my check in the amount of one dollar as payment for the thirty day extension of our option agreement dated 8 December, 1962 as stipulated in the agreement."

   The other letter stated:

   "In reference to our option agreement dated December 8, 1962, and continuing for a period of ninety [*298] days.  In accordance with this agreement I desire to exercise my option and purchase your property for the stipulated price of Forty-Five Thousand ($45,000.00).

   "Respecting settlement and conveyance of this property I will be in contact with you in the near future to establish a date and time for said conveyance."

   Mr. Miller further testified that he placed a $1.00 check of Realty Company in the extension[***15] letter and mailed it to the Vogts, registered mail with a return receipt requested near the noon hour on March 7.  Shortly after posting this extension letter, he ordered a cup of coffee at a drugstore but before he drank it, decided to mail the second letter exercising the option.  He mailed it right after he mailed the first one by registered mail, with a return receipt requested.  The return receipts are numbered 5524 and 5525 respectively and both indicate delivery to Mr. Vogts on March 8, 1963.

   Mr. Pierce, who went to the hospital the afternoon of March 7, denied that he prepared the two letters.  He testified that he spelled "extension", "e-x-t-e-n-s-i-o-n." Mr. Miller, on the other hand, testified on cross examination that he spelled "extension" "e-x-t-e-n-t-i-o-n", the way it is misspelled in the extension letter.  It was pointed out that in the answers to interrogatories filed on behalf of the Realty Company in the case, counsel for the Realty Company had spelled "extension" "e-x-t-e-n-t-i-o-n." There was some confusion in Mr. Vogts' testimony as to what he received [**706] on March 8. Originally he stated that he received the extension letter in one envelope and the[***16] $1.00 check (dated March 4, 1963) in the other.  Later Mr. Vogts seemed to indicate that he had received two letters and a check.  In any event, Mr. Vogts mailed back all the papers he received on March 8 in a registered letter to the Realty Company on March 11.  Judge Duckett ruled that the option was not properly exercised because of the two conflicting letters sent the same day.  We are of the opinion that there was sufficient evidence to support his ruling.

    We are also of the opinion that the power to extend the option for an additional 30 days (if such an additional option period [*299] validly existed in view of Mr. Vogts' position that no such additional option period was intended or agreed to by the Vogts) was also not validly exercised by the conflicting letters.

   The Realty Company also contended, however, that the Vogts at a later date called for settlement and thereby waived the failure of the Realty Company to exercise its option.  The facts in regard to this contention are as follows:

   The Vogts, on March 7, 1963, not having heard from the Realty Company in regard to the option contract consulted with Lester Mallonee, an attorney in Laurel, who had been a friend[***17] of the Vogts for many years, with a view of preparing a contract of sale for the property to Mr. Andrew for $50,000.  Shortly after March 7, Mr. Mallonee prepared the contract of sale which was executed by the Vogts and Mr. Andrew on April 8, 1963.  $1000 of the purchase money was paid at that time.  The Andrew contract provided that $49,000 balance be paid at the time of settlement which was fixed for June 7, 1963.

   On June 6, Mr. Sachs, attorney for the Realty Company, wrote the Vogts advising them of his representation, referring to the option contract of December 8, 1962 and stating that the Realty Company "exercise [sic] the option to purchase in accordance with the terms of the said option grant." Settlement was stated to take place at Mr. Sachs' office on June 12, 1963 at 2:00 P.M. D.S.T.  It was further stated that the Realty Company "agrees to waive all of the conditions set forth in the said option grant and will require you to execute a general warranty deed conveying the subject property free and clear." This was sent by certified mail.

   After a telephone conference with Mr. Sachs, Mr. Mallonee indicated that settlement with Andrew would not go forward and he would[***18] obtain assurance from the Vogts to that effect.  Letters dated June 7 were obtained from the Vogts indicating that they would not settle for the property without Mr. Sachs' prior approval, but these were never delivered as the Vogts discharged Mr. Mallonee as their counsel.  Mr. Sachs was advised by Mr. Mallonee of the discharge on Saturday, June 8, by telephone, and this was confirmed by letter on June 10.

   In the meantime, Charles J. Atas, counsel for Mr. Andrew, [*300] gave the Vogts notice by letter dated June 7, 1963 that they should "not execute any settlement for your property under penalty of a law suit for breach of contract with Mr. Andrew." A copy of this letter was sent to Mr. Mallonee and to Mr. Sachs.

   Mr. Sachs had a personal conference with Mr. Vogts at the property.  Mr. Vogts advised Mr. Sachs that he had no attorney and that he would not settle on June 12, as requested by Mr. Sachs, because of the Andrew contract.  There were discussions about a possible settlement of the matter.  Later Mr. Sachs conferred with Mr. Atas about a possible settlement but these negotiations were not successful.

   On June 13, the Realty Company filed an action at law in the Circuit [***19]Court for Anne Arundel County against the Vogts for alleged breach of contract, claiming $75,000 damages.  All of these papers and proceedings made the Vogts extremely nervous.  [**707] Mrs. Vogts, who had a heart condition, had a heart attack as a result of the excitement.

   Also on June 13 Mr. Sachs conferred with Gerald Kunes, an attorney in Laurel, who had been engaged to represent the Vogts.  Mr. Andrew had agreed to pay Mr. Kunes any fee incurred in this representation as the Vogts were without funds to pay a fee.

   On June 17, Mr. Kunes wrote Mr. Sachs stating that on behalf of the Vogts, and "without waiver of their objections as to the invalidity of the contract of option submitted by Maryland City Realty, Inc., they are prepared to settle the property with your client." The settlement date was required to be prior to June 21, 1963 and if not effected "suit will be filed against your client." June 20 at 11:00 A.M. was set for the day of settlement. There was a conference between Mr. Kunes and Mr. Sachs and an exchange of correspondence.

   Mr. Andrew had filed a suit for specific performance against the Vogts on June 19.

   Mr. Kunes in his letter of June 19 to Mr. Sachs objected[***20] to Mr. Sachs' prior registered letters and statements in them.  He objected on behalf of Mr. Vogts to Mr. Sachs coming to the house "and harrassing him and Mrs. Vogts concerning this case." He also stated "Your statement that your client would take title unconditionally is, however, assuring."

   [*301] It is not necessary to review the meeting on June 20 for settlement. There were charges and counter-charges.  Mr. Kunes insisted that the arrangement was that the Realty Company would take title "unconditionally" and notwithstanding the Andrew suit.  Mr. Sachs contended to the contrary.  No settlement was accomplished.

   The following day, June 21, the elaborate original bill of complaint, with 10 exhibits (requiring 27 printed pages in the appellant's appendix) was filed by the Realty Company against the Vogts and Andrew.  After answers were filed, the Vogts, on October 14, filed a cross bill of complaint against the Realty Company for the attachment of the $5,000 injunction bond as compensatory damages, a decree for $25,000 punitive damages and for other relief.  It was not until October 22, 1963 when the Realty Company filed its answer to the motion of the Vogts to produce documents[***21] and the order of the court directing such production of documents, that counsel for the Vogts knew of the existence of the first option contract.  Pursuant to leave granted on December 6, the Realty Company filed an amended bill of complaint with the same exhibits as were attached to the original bill of complaint.  The amended bill of complaint was almost identical with the original bill of complaint except in paragraph 32 in regard to Andrew and in the prayers for relief.

   An order was passed by the lower court on January 2, 1964 consolidating the Andrew case (Equity No. 15667) with the pending case (Equity No. 15676).  Mr. Andrew filed an answer on January 14, 1964 indicating that on November 14, 1963 Andrew and the Realty Company had executed mutual releases whereby the Realty Company had released Andrew of any claims arising from any interference with contract relations as a result of any contracts between the Realty Company and the Vogts and Andrew and the Vogts.
 
   In the course of the testimony during the second day of trial, counsel for Mr. Andrew filed a petition to dismiss voluntarily the suit of Andrew v. Vogts, Equity No. 15667.  The Chancellor announced that the[***22] bill of complaint in that case was dismissed by the plaintiff's counsel in open court and that the plaintiff would pay the costs.

   [*302] At the conclusion of the testimony, the Chancellor indicated that he was of the opinion that the Vogts had been imposed upon and that he was going to dismiss the bill of complaint and the cross bill of complaint and allow no damages to anyone, the Realty Company to pay the costs.  The final decree of April 14, 1964, from which [**708] the appeal is taken, incorporates this ruling by the Chancellor.

   The law applicable to this suit is well established by the prior decisions of this Court.  Judge Hammond stated for the Court in Perlmutter v. Bacas, 219 Md. 406, 411-412; 149 A. 2d 23, 26:

   "A court of equity will decree specific performance almost as a matter of course if the terms of the contract are clear and unobjectionable, and although such relief is addressed to the sound discretion of the court, that discretion is not arbitrary.  Where the contract is clearly established, it is the duty of the court to enter the decree. Nevertheless, the discretion of the court will be exercised to deny the relief where to grant it would be to[***23] compel the defendant to perform a contract which he did not intend to make or which he would not have entered into had its true effect been understood.  3 Pomeroy, Equity Jurisprudence, 5th Ed., Sec. 860; 5 Williston, Contracts, Rev. Ed., Sec. 1427; Somerville v. Coppage, 101 Md. 519, 523-524; The Glendale Corp. v. Crawford, 207 Md. 148, 154; Clark v. Kirsner, 196 Md. 52, 56; Kappelman v. Bowie , 201 Md. 86, 89-90. * * *

   "Specific performance may be, and has been, refused where the innocent mistake is mutual or that of one side only.  Somerville v. Coppage, supra. Cases in which innocent misrepresentation as to a material fact was made by the vendor and specific performance was denied, include Ginther v. Townsend, 114 Md. 122; Housing Engineering Co. v. Andrew Co., supra; The Glendale Corp. v. Crawford, supra. Cases where the mistake was that of the vendee only and relief was denied include Diffenderffer v. Knoche, 118 Md. 189, 194-196; [*303] Henneke v. Cooke, 135 Md. 417; Kappelman v. Bowie, supra."

   The evidence supports the Chancellor's finding that the Vogts had been imposed upon by the Realty Company.  As we have indicated[***24] the Vogts are elderly, unsophisticated people, who are unfamiliar with business transactions of the character involved in this case.  They had no independent advice in regard to the two option contracts when they were executed by them. They understood that the purchase price for the property was $50,000, as set forth in the first option contract.  They erroneously believed that they would have to pay a real estate commission to the Realty Company, which everyone concedes they would not have to pay, as the Realty Company was itself, the prospective purchaser.  There was nothing in the first option contract in regard to their payment of any $5,000 commission.  Taking advantage of this erroneous belief on their part, the Realty Company apparently, without any prior authorization on the part of the Vogts, inserted $45,000 as the purchase price in the second option contract as well as extending the original option period from 60 to 90 days.  No copies of either contract were given to the Vogts and they were never told that they were not obligated for any real estate commission or that the change from $50,000 to $45,000 had been made.  Mr. Vogts was under the impression that the contract[***25] price was $50,000 and that only the original option period had been extended from 60 to 90 days by the second option contract. In addition to these facts, there were the other representations in regard to placing the Vogts in a trailer or apartment until they had completed the building of their new house and moving them to the new house without charge. None of these agreements is in either the first or second option contract. These facts, in our opinion, clearly justify the Chancellor's finding that the Vogts had been imposed upon and this, in itself, is sufficient to justify the refusal of specific performance.

   [**709] In any event, there was at least a unilateral mistake by the Vogts in regard to a material matter even making the difficult assumption for the argument only that there was no intentional misrepresentation or deception involved.  As indicated in Perlmutter [*304] v. Bacas, supra, this would justify the Chancellor's refusal of specific performance and is sufficient to dispose of this appeal.  See also Keppelman v. Bowie, 201 Md. 86, 93 A. 2d 266.

   We have already indicated that, in our opinion, there was sufficient evidence to support the Chancellor's[***26] determination that, in fact the option was never effectively exercised by the Realty Company on March 7, 1963.  This finding is further supported by the letter of June 6, 1963 from counsel for the Realty Company to the Vogts which purported, as of that time, to exercise the option on behalf of the Realty Company.

   Time is not generally of the essence in contracts for the sale of real estate unless expressly stated so to be, Chapman v. Thomas, 211 Md. 102, 108, 126 A. 2d 579. Time, however, is always of the essence in option contracts, because of the nature of the option contract itself, so far as the option provisions of the contract are concerned.  Clarke v. Lacy, 213 Md. 482, 491-492, 132 A. 2d 478.

   After the option has been exercised, then time is not of the essence of the contract of sale unless expressly stated so to be in the contract, or if the contract of sale is ambiguous on this point, time is found to be of the essence from the testimony.  Diamond v. Shriver, 114 Md. 643, 649, 80 Atl. 217.

   The Realty Company, in an effort to avoid the effect of the Chancellor's finding that it did not effectively exercise its option contends that the Vogts have waived[***27] or are estopped to assert their prior objections to the second option contract by calling for settlement under it.

   It is well settled when a vendor has indicated his intention not to insist on timely or exact performance and the purchaser has changed his position to his injury relying thereon, waiver or estoppel may preclude the vendor from insisting on the time provision. Lissau v. Smith, 215 Md. 538, 544, 138 A. 2d 381.

   Judge Burke stated for the Court in Dague v. Grand Lodge, 111 Md. 95, 103, 73 Atl. 735:

   "Waiver or acquiescence (which is a species of waiver by tacit assent) 'implies the abandonment of some right which can be exercised, or the renouncement [*305] of some benefit or advantage which but for such waiver the party relinquishing would have enjoyed.' The general rule is that 'there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts which will enable him to take effectual action for the enforcement of such rights.  * * *.'"

   See also Armour Fertilizer Works v. Brown, 185 Md. 273, 278-279, 44 A. 2d 753.

   In regard to equitable estoppel, Judge Prescott said for the Court in J. F. [***28] Johnson Lumber Company v. Magruder, 218 Md. 440, 447-448, 147 A. 2d 208, 212:

   "The whole doctrine of equitable estoppel is a creature of equity and governed by equitable principles.  It was educed to prevent the unconscientious and inequitable assertion of rights or enforcement of claims which might have existed or been enforceable, had not the conduct of a party, including his spoken and written words, his positive acts and his silence or negative omission to do anything, rendered it inequitable and unconscionable to allow the rights or claims to be asserted or enforced."

   [**710] In our opinion, the Vogts did not waive their objections to the second option contract and were not estopped to raise these objections for the following reasons: 1) There was no knowledge by counsel for the Vogts when he wrote his letter of June 17, 1963 indicating that the Vogts would settle for the property as called for by the Realty Company in its counsel's letter of June 6, 1963 to the Vogts if settlement were prior to June 21, 1963, that the first option contract existed.  This was not discovered until October 22, 1963 long after the specific performance suit had been filed by the Realty[***29] Company.  2) Counsel for the Vogts expressly stated in the letter of June 17 that the settlement was to be "without waiver of their objections as to the invalidity of the contract of option submitted by Maryland City Realty, Inc." 3) There was an understanding on the part of counsel for the Vogts that the Realty Company would [*306] accept title subject to the pending Andrew's suit.  4) The Realty Company was promptly notified on June 20, 1963 that there would be no settlement.

   These facts prevent the application of any doctrine of waiver or of estoppel in this case as there was no full knowledge of all the facts and the legal rights involved when the alleged waiver was made, and the Realty Company was not, under these circumstances, entitled to rely on any "waiver".  There was no inequitable or unconscionable conduct on the part of the Vogts which would estop them from raising their objections to the second option contract.

   Comment is required in this case upon the unnecessary printing in the appellant's appendix.  This appendix consisted of 297 printed pages.  It was necessary to print the testimony of the witnesses substantially in full and to print the relevant documents[***30] once, because the decision of the case substantially turned on the facts.  The appellant, however, has printed the second option contract (consisting of approximately 5 printed pages) as well as the letters of March 7, June 6, two of June 7, June 17, June 18, and three of June 19, 1963, three times -- once at the end of the original bill of complaint, again at the end of the amended bill of complaint and still again at the end of the testimony.  Then too, it was unnecessary to reprint the first 31 paragraphs of the amended bill of complaint which are substantially identical with corresponding paragraphs in the original bill of complaint.  Nor was it necessary to print in full the affidavits and certificates of mailing attached to various pleadings and other documents.  We estimate that there were at least 37 pages of unnecessary printing representing complete duplications of documents.  This is not only contrary to Maryland Rule 828, but it represents an unnecessary and unproductive expenditure of money by the party involved. Inasmuch as the Realty Company will be required to pay the costs in this case, there is no occasion for the allocation of costs which would have been [***31]necessary if the appellant had been successful in this Court and if the costs had been assessed against the appellees.

   Decree affirmed, the appellant to pay the costs. 

KASTEN CONSTRUCTION COMPANY, INC. v. STATE ROADS COMMISSION 
No. 192, September Term, 1964
 
Court of Appeals of Maryland
 
238 Md. 38; 207 A.2d 505; 1965 Md. LEXIS 624

 March  8, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed; appellant to pay the costs.

CORE TERMS:  condemnee, proffer, valuation, net value, condemnor, failed to preserve, proposed subdivision, per acre, condemned, arrived, appellate review, remaining property, excluding evidence, fair market value, unimproved land, best evidence, reminding, prejudiced, appraiser, sanitary, estimate

COUNSEL: Jerome F. Connell, with whom were Biener & Connell on the brief, for appellant.

   Herbert L. Cohen, Special Attorney, with whom were Thomas B. Finan, Attorney General, and James C. Morton, Jr., Special Attorney, on the brief, for appellee. 

JUDGES: Hammond, Horney, Marbury, Sybert and Oppenheimer, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*39] [**505] On the appeal in this condemnation proceeding, the only question requiring consideration is whether this Court may review the action of the lower court in excluding evidence bearing on the net value of building lots in a proposed subdivision of unimproved land. [***3]

   The State Roads Commission of Maryland (condemnor) condemned 5.14 acres (or 28 lots) of a 13.61 acre tract owned by the Kasten Construction Company (condemnee) that had been laid out in 58 lots which (because of the likelihood that a state highway would be constructed through the proposed subdivision) had not been rezoned from an agricultural use to a cottage residential use.

   At the hearing before a jury to determine the value of the land to be taken, one of the appraisers for the condemnor, using a before taking valuation of $ 4000 per acre and an after taking valuation of $2800 per acre, calculated the value of the land taken to be $26,800.  Another appraiser for the condemnor, [*40]also using "per acre" valuations, arrived at $28,170 as the value of the condemned land.  On the other hand, an officer of the corporate condemnee testified that the lots in the subdivision would be saleable at an average price of $3000 each upon completion of the development.  But when he sought to evaluate, as of that time, the fair market value of the land both before and after the taking, by showing the cost of bringing sewer and water [**506] lines (and possibly roadways and other[***4] improvements) to the lots in order to establish the net value of the lots to the condemnee, an objection by the condemnor (on the ground that the testimony of a representative of the sanitary commission would be the best evidence) was sustained.  The condemnee then made a proffer that the witness, besides testifying "as to the value of the condemned property and the value of the remaining property both before and after the taking," would also explain how he arrived at such valuations. The court reserved its ruling on the proffer, but no ruling was ever made thereon, nor was a ruling ever requested by either party.  Another witness for the condemnee, however, using "per lot" valuations, valued the tract at $127,600 before the taking and at $66,000 after the taking, or $2200 each for the remaining thirty lots, leaving $61,600 as his estimate of the severance or resulting damages to the remaining lots.  The jury found that $27,000 was proper compensation for the land taken.

   In essence, it is the contention of the condemnee that despite the failure of the trial court to rule on the admissibility of the proffered evidence, this Court should nevertheless review the alleged error of[***5] the lower court in excluding evidence that would have enabled the condemnee to give its estimate of the fair market value of the property taken.  The lower court, of course, should have ruled on the proffer either at the time it was made or later, but since it did not, we think the condemnee, by not reminding the court that it had not ruled thereon, thereby failed to preserve for appellate review the question it presents on appeal.  State Roads Commission v. Creswell, 235 Md. 220, 201 A. 2d 328 (1964); Fowler v. Benton, 229 Md. 571, 185 A. 2d 344 (1962); Maryland Rule 885.

   In any event, since the testimony of the witness that a completely developed lot could be sold for $3000 together with his [*41] untimely statement (which the jury was told to disregard) that it would cost $800 to develop a lot indicates that he was of the opinion (as was a subsequent witness for the condemnee) that each lot had a net value of $2200 at the time of the taking, it would seem that the condemnee was not prejudiced by the lower court having overlooked that it had not ruled on the proffer.

   For the reasons stated the judgment absolute entered on the verdict of the jury will be affirmed. [***6]

   Judgment affirmed; appellant to pay the costs. 

STIEFF v. COLLINS, et al. 
No. 172, September Term, 1964
 
Court of Appeals of Maryland
 
237 Md. 601; 207 A.2d 489; 1965 Md. LEXIS 765

 March  3, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, appellant to pay the costs.

CORE TERMS:  nonconforming use, abandonment, dairy, warehouse, ordinance, bakery, storage, cessation, plant, surplus, abandon, stored, slaughter, machinery, temporary, twenty-five, dismantled, variance, casual, one year, dismantling, temporarily, utilization, casually, lawful, establishment, permanently, reasonable inference, right to continue, zoning ordinance

COUNSEL: Submitted by Thomas J. Curley for appellant.

   Submitted by S. Alfred Mund for appellees.

JUDGES: Prescott, C. J., and Hammond, Horney and Sybert, JJ., and Carter, C. J. of the Second Judicial Circuit, specially assigned.  Carter, J., by special assignment, delivered the opinion of the Court.

OPINIONBY: CARTER

OPINION: [*602] [**490] This is an appeal from a decision of the Circuit Court for Anne Arundel County reversing a ruling of the Board of Zoning Appeals which granted a variance for the reconstruction of a nonconforming use and a twenty-five per cent expansion on property consisting of about one acre and buildings located at Linthicum, in the Fifth Election District of the County, in a use district zoned "agricultural."

   The evidence presented by the record of the proceedings before the Board and the additional testimony permitted by the Circuit Court at the hearing on appeal, under the authority of Section 7(1) of Article 66B, [***4] Code (1957), established the following facts: At the time of the adoption of a comprehensive zoning ordinance for Anne Arundel County, July 1, 1952, the [*603]subject property was owned and operated as a commercial dairy by Old Oak Dairy, Inc. which was privileged to continue its existing nonconforming use in an agricultural district pursuant to the provisions of the zoning ordinance, section 35-10.  In 1952, the H. E. Koontz Creamery, Inc. acquired the property and continued to pursue the nonconforming use which consisted of the operation of a bakery for the production of doughnuts and a dairy depot for the pasteurization and distribution of milk and milk products.  This operation ceased in the fall of 1958.  Thereafter, the dairy plant was partially dismantled and the equipment was either sold or used in other dairy operations of the company except for a small part thereof left in the buildings.  The bakery equipment was likewise dismantled and removed within a year subsequent to discontinuance of its operation.  After 1958 the company acquired five or six small dairies, from which it moved the equipment that could be used in its main plant at Baltimore, to such plant, and[***5] attempted to sell the remainder.  The equipment from these dairies which could not be immediately used or sold was stored in the buildings at this location.  Surplus equipment from the Baltimore plant was also stored there.  These buildings have been boarded up and locked since cessation of operations in 1958, without a watchman.  The only activity since that time consisted of trucks bringing materials to be stored and taking equipment out which occurred fifteen to twenty times a year.  No trucks were left at the site and no materials stored outside the buildings.

   The decisive questions presented to the Board and trial court for determination were: (1) was there an abandonment of the original nonconforming use at the time of cessation of the dairy and bakery operations in 1958, which continued for more than one year prior to the hearing on May 14, 1963, and (2) in the alternative, was there a lawful substitute nonconforming use established at the time of cessation of operations in 1958, which has continued since that date.  Nonconforming uses are usually permitted by the express terms of zoning ordinances and are so permitted in this case by the provisions of section 35-10, which[***6] provides in part:

   "A lawful nonconforming use existing on the effective date of the adoption of this chapter may continue; [*604] provided, however, * * * in the case of the abandonment of such nonconforming use for the period of one year, the right to continue such original nonconforming use shall cease.  A nonconforming use may change to a use permitted in the most restricted district in which such existing nonconforming use is permitted under this chapter or to a more restricted classification."
 
This section further provides that the Board may grant a variance of a nonconforming use for an expansion of not more than twenty-five per cent of the area occupied by the use.

   The appellant who had purchased the property from Koontz in 1962, applied to the Board in April, 1963, for recognition of a substitute nonconforming use, that is, a "warehouse use" which he claimed was [**491] then the existing use.  He also requested permission for a machine shop which was of the same classification as the warehouse use and a variance allowing an increase of not more than twenty-five per cent of the use area, which was to be housed by a single new structure that would function[***7] in the main as a warehouse and to a lesser degree as a shop for the repair of machine parts.  Under the ordinance the heavy commercial use district is the most restricted district in which the original nonconforming use of a dairy and bakery operation is permitted.  Section 35-92(b) of the ordinance provides that the permitted uses in such heavy commercial district shall include both a warehouse and a machine shop use.  It appears, therefore, that either or both of these uses, if established, would constitute a lawful substitute nonconforming use under the provisions of the ordinance (section 35-10).  The trial court reversed the Board by finding there was an abandonment of the original nonconforming use in 1958, and that no warehouse use had been established as a substitute nonconforming use. The appellant contends the trial court erred in both findings.

   Nonconforming uses are usually allowed to continue with the expectation that they will eventually disappear, the objective being to extinguish them as early as possible with due regard to the lawful interest of those entitled to such use.  See Dorman [*605] v. Mayor & C. C. of Balto., 187 Md. 678, 684; Grant v. City of [***8]  Baltimore, 212 Md. 301, 307; Phillips v. Zoning Commissioner, 225 Md. 102, 109. The criteria by which abandonment of a nonconforming use is determined are set forth in Landay v. Zoning Appeals Board, 173 Md. 460, 469, where the Court said:

   "Abandonment in law depends upon the concurrence of two, and only two, factors; one an intention to abandon or relinquish; and two, some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject-matter of the abandonment. 1 C.J.S. Abandonment, 8.  Time is 'not an essential element' of abandonment, although the lapse of time may be evidence of an intention to abandon * * * and where it is accompanied by acts manifesting such an intention it may be considered in determining whether there has been an abandonment."
 
The question of the establishment of a substitute nonconforming use depends on whether the party asserting such use establishes by a preponderance of evidence that the subject property has been used consistently and was intended to be used permanently for the purpose of such use, as contemplated by the ordinance, rather than casually or[***9] temporarily. For the rule in respect to the burden of proof in the assertion of a nonconforming use, see Lapidus v. Baltimore City, 222 Md. 260, 262. For authority that a casual or temporary use is not sufficient to establish a nonconforming use, see Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623, 634; Beyer v. City of Baltimore, 182 Md. 444, 452.

   In the Beyer case the situation was strikingly simliar to the instant case. There the owner's right to continue to use the property for a nonconforming use, as here, depended upon whether there has been an abandonment of the original nonconforming use or in the alternative a substitute nonconforming use, permitted under the ordinance, had been established.  In that case, the original slaughter house nonconforming use ceased operation in 1938 after which a large part of the machinery [*606] was dismantled and sold.  A for-sale sign was posted on the property and the smoke stack torn down.  From 1938 to the date of the application in 1943, the buildings were [**492] used as storage for the small portion of slaughter house machinery which was not dismantled and sold, as a garage on the first floor and for the storage[***10] of items of a furniture company on the second, third and fourth floors.  The president of the company that operated the slaughter house testified that the company did not intend to permanently abandon this use of the property when operations were discontinued in 1938.  Nevertheless, under these facts the Court held there had been an abandonment of the original nonconforming use, that is: (1) that there was an intent on the part of the owner to abandon the slaughter house operation at the subject location, and (2) that the overt acts on its part, consisting of the discontinuance of the operation, the dismantling and sale of the machinery and offering the property for sale, implied an intention of the owner to neither claim nor retain any interest in the further operation of a slaughter house business at that location (the subject matter of the abandonment), which constituted the two essential factors necessary to bring about the abandonment of a nonconforming use under the rule.  We further there held the evidence was insufficient to establish a substitute nonconforming use of a storage warehouse. In so holding we pointed out that while the storage of furniture in the warehouse was[***11] extensive, and the buildings had been used to store some equipment employed in the former operations, and that such uses lasted for a considerable time (five years); nevertheless, the utilization of the buildings did not appear to have been intended as a permanent use but rather as a casual and temporary one.  We, therefore, held the evidence was insufficient to prove the establishment of a new substitute nonconforming use within the meaning of the ordinance.

   In the instant case, cessation of operation of the plant as a dairy and bakery, the dismantling and sale of the machinery and equipment, the placing of it in other plants of the owner and the continued cessation of operations for about five years with utilization of the buildings principally for storage of the company's unusable and unsaleable equipment, establish by reasonable inference: (1) an intent of the owner to abandon the [*607] location for use as a dairy and bakery operation, and (2) a decision neither to claim nor to retain any further interest in its dairy or bakery operation at this location. These conclusions appear fully warranted by the established facts and circumstances of the case, heretofore related, [***12] and we therefore find no error in the trial court's ruling that there had been an abandonment of the existing nonconforming use for more than one year prior to 1963.  It seems equally clear, particularly in the light of the Beyer case, that there was no intention on the part of the Koontz Company to use the property other than casually and temporarily for its own purposes as a storage warehouse. Under the facts and circumstances heretofore related, concerning the use of the property after 1958, it is reasonable to interpret the intention of the owner to use the property for only temporary and occasional storage of its surplus equipment after that date.  The evidence shows the company was selling the surplus equipment stored in these buildings either for use elsewhere or as junk, and it is therefore probable that eventually it would have little or no surplus equipment to store there and therefore little, if any, use, for the buildings for this purpose.  It further appears that the "warehouse use" contemplated by the ordinance (section 35-92 (b)), was a regular and consistent use rather than a temporary and casual one.  See the Beyer and Shapiro cases, supra.  We, therefore, [***13] find no error in the trial court's ruling that the evidence was insufficient to establish a "warehouse use" as a substitute nonconforming use within the meaning of the ordinance.

   Judgment affirmed, appellant to pay the costs. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY, et al. v. COLE 
No. 120, September Term, 1964
 
Court of Appeals of Maryland
 
237 Md. 362; 206 A.2d 553; 1965 Md. LEXIS 730

 February  2, 1965, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  horseplay, duty, deviation, departure, matter of law, trier, scuffle, accidental injury, course of employment, automatically, enginemen, animosity, pocket, pistol, claimant, fire department, sufficient evidence to support, entitled to compensation, conflicting evidence, performance of duty, immediately prior, material evidence, physical contact, prima facie, insubstantial, conversation, completeness, abandonment, comparative, seriousness 

COUNSEL: John S. Hebb, III, with whom was Robert L. Karwacki on the brief, for appellants.

   Robert P. Conrad, with whom was John W. Pfeifer on the brief, for appellee.

JUDGES: Hammond, Horney, Marbury and Barnes, JJ., and Digges, C. J., of the Seventh Judicial Circuit, specially assigned.  Digges, J., by special assignment, delivered the opinion of the Court.

OPINIONBY: DIGGES

OPINION: [*363] [**554] The County Commissioners of Anne Arundel County, employer, and its workmen's compensation insurer, appeal from a judgment of the Circuit Court for Anne Arundel County affirming an award made [**555] by the Workmen's Compensation Commission [*364] (the Commission) in favor of the appellee, Donald Reese Cole.  The case was heard by the court, sitting without a jury, partly on the evidence presented before the Commission, and[***4] partly on testimony taken before the Court.  The question is whether or not there is legally sufficient evidence to show that the employee sustained an accidental injury arising out of and in the course of his employment.  Both the Commission and the lower court concluded that the injury sustained by the appellee arose out of and in the course of his employment.
 
   The facts may be summarized as follows: On March 13, 1963, the appellee was one of three full-time enginemen employed by the Herald Harbor Volunteer Fire Department, but paid by the County Commissioners of Anne Arundel County.  On that date, the appellee was not scheduled for regular duty because of a system whereby each of the three enginemen was on duty for 24 hours and off 48 hours. His duties, however, as a paid engineman required, in addition to the operation of the fire apparatus at fires, that he help maintain and care for the department's equipment and building.  In connection with his building maintenance duties, appellee had been assigned the task of painting the sleeping quarters used by the paid enginemen. Appellee had been working on this project for several weeks.  On March 13, normally his day off, at the[***5] request of the department chief, he arrived at the fire department building at about 1:40 p.m., intending to continue the painting of the quarters so that the project would be completed in time for the membership meeting that evening. Upon entering the building the appellee met Darr, the paid engineman on duty that day, and Emory Merle Elswick, the unpaid fire chief.  Elswick was regularly employed as a police officer with the Anne Arundel County Police Department.  As was his custom, on that date he had stopped at the fire building to obtain coffee, and pick up any mail addressed to him as chief of the fire company.  As soon as the appellee entered the building he became engaged in a conversation with Darr and Chief (Officer) Elswick with regard to a schedule redefining the lines of the territory for each of the Anne Arundel County fire departments. This letter or schedule had been mailed to Officer Elswick as chief of the Herald Harbor Department, and was received by him that day.

   [*365] The conversation among the three men concerned the new schedule and each man's disappointment with it.  Appellee, after reading the new schedule, attempted to place it in Chief Elswick's[***6] inside blouse pocket, while remarking that the chief ought to do something about it.  He next turned and started to walk away when Chief (Officer) Elswick's police pistol inadvertently fired, and appellee was struck in his hip by the bullet.

   Appellants contend that both the Commission and the trial court erred in holding that the injury was compensable.  They contend that a correct decision on that point would compel the conclusion that appellee did not meet the requirements of Code (1957, 1964 Repl. Vol.), Art. 101, Sec. 15, which provides that the claimant sustain an accidental injury arising out of and in the course of his employment, in order to receive compensation.  The meaning of the words "arising out of" and "in the course of" employment has been defined by this Court.  See Miller v. Coles, 232 Md. 522, 194 A. 2d 614, and cases therein cited; Scherr v. Miller, 229 Md. 538, 184 A. 2d 916, and cases therein cited.

   It is generally held that one who instigates or participates in horseplay is usually not entitled to compensation. Hill v. Liberty Motors, 185 Md. 596, 45 A. 2d 467. However, minor acts of horseplay do not automatically constitute "departure" from employment[***7] if the acts are found to be insubstantial. "So, whether initiation of [or participation in] horseplay is a deviation from course of employment would depend on (1) the extent and seriousness of the [**556]deviation, (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay." 1 Larson, Workmen's Compensation Law , sec. 23, p. 342.  Life for the working man would indeed be grim if all acts of "frivolity," "skylarking," "fooling," or "horseplay" are prohibited, or, if engaged in, preclude compensation, as a matter of law.

   Thus, all acts instigated or participated in by a claimant, [*366] which may be described by any of the above or similar phrases, do not automatically bar compensation being received.  If reasonable minds could not disagree about the conclusion resulting from a particular set of undisputed or conceded facts, the question becomes one of law to be decided by the court.  If reasonable [***8]persons could disagree as to what the facts are, or the inferences and conclusions to be drawn from undisputed facts, the question is one for the trier of the facts.

   The decision of the Commission is prima facie correct, Code (1957, 1964 Repl. Vol.), Art. 101, Sec. 56(c); Stewart & Co. v. Howell, 136 Md. 423, 110 A. 899; and if there is any competent, material evidence to support the findings below, the weight and value of such evidence must be left to the trier of facts, as it is not our function to determine the comparative weight of conflicting evidence. Bethlehem Steel Co. v. Jones, 222 Md. 54, 158 A. 2d 621; Stancliff v. H. B. Davis Co., 208 Md. 191, 197, 117 A. 2d 577.

   We believe that a careful review of the evidence, in the light of Art. 101, Sec. 56(c) and Maryland Rule 886 a, admits of the conclusions reached by both the Commission and the court.  All of the evidence is to the effect that there was no animosity between appellee and Chief Elswick.  The appellee testified that after the discussion about the contents of the letter affecting the fire department, while sticking the letter in the chief's pocket, he said, "Here, Chief, you'd better go up there and[***9] get that straightened out." He then turned to go to another part of the building when the gun was fired. Appellee does say that he may have brushed the letter across the chief's face in a playful manner.  It is true that the chief gives a slightly different version of the occurrence, but this creates an issue of credibility, and is one for decision by the trier of facts.  Bethlehem Steel Co. v. Jones, supra. In this case we believe that the act of playfully brushing a letter across the chief's face, and then, while placing it in his pocket, suggesting that the chief take some action in regard to the contents of the letter, constitutes facts on which reasonable persons may disagree as to whether the degree of departure is sufficient to justify a legal conclusion that he did not meet the requirements of Art. 101, Sec. 15, referred to above.  In other words, we do not feel that there has been a [*367] showing of a sufficient departure from appellee's employment which will permit our ruling as a matter of law that the accident did not arise out of or in the course of the employment.

   Appellants place great reliance in support of their contention on the case of Hill v. Liberty [***10]  Motors, supra. On the facts of that case this Court held that the lower court was not clearly wrong in denying compensation to the family of the decedent who died as the result of a rather violent scuffle which occurred during an argument over an article that appeared in a newspaper. Neither the newspaper article nor the resulting scuffle had anything to do with the employment of the participants in the scuffle; it "could very well have occurred at any place" (Hill, p. 607).  In the present case, not only was there no animosity between the parties, but the physical contact, as well as the episode [**557] itself prior to the pistol firing, was of a trivial nature. In addition, the discussion between the appellee and the fire chief immediately prior to and at the time of the injury concerned the business of the employer and the occupation of the employee.  Whether the rather extreme factual situation in Hill would have permitted a ruling as a matter of law (no such ruling was made) that the accident did not arise out of or in the course of employment, is unnecessary to consider; for the facts in the case now before us differ significantly, in the important respects enumerated[***11] above, from those that existed in Hill.

   We conclude that there was sufficient evidence to support the findings of both the Commission and the lower court under the standards spelled out above, that the accident arose out of and in the course of appellee's employment.

   Judgment affirmed, with costs. 

BARNES, Etc. v. STATE, Ex Rel. PINKNEY 
No. 163, September Term, 1964
 
Court of Appeals of Maryland
 
236 Md. 564; 204 A.2d 787; 1964 Md. LEXIS 914

 October  15, 1964, Decided  
 November  17, 1964, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Affirmed; appellant to pay costs.

CORE TERMS:  signature, referendum, public accommodations, signer, referendum petition, registered, suspended, voter, mandatory, invalid, printed, typed, Public Accommodations Law, Fourteenth Amendment, directory, restaurant, procuring, precinct, appended, ballot, police power, genuine, color, creed, suspension, requisite number, full text, discriminate, duty, verification

COUNSEL: C. Maurice Weidemeyer, with whom were Alfred Avins and Sam S. Crutchfield, Jr., on the brief, for the appellant.

   Mathias J. DeVito, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Stuart H. Rome, Assistant Attorney General, and Marvin H. Anderson, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Henderson, C. J., and Prescott, Marbury, Sybert and Oppenheimer, JJ. Oppenheimer, J., delivered the opinion of the Court.

OPINIONBY: OPPENHEIMER

OPINION: [*567] [**788] After argument, we affirmed by per curiam order the decree of the Circuit Court for Anne Arundel County which enjoined the appellant[***5] from refusing to any person the accommodations of the restaurant owned and operated by him in the City of Annapolis on account of race, color, creed or national origin.  The injunction was issued pursuant to the provisions of Code (1964 Supp.), Article 49B, Sections 11 and 12 -- the 1963 public accommodations law.  In affirming the decree, we held that law to be in effect and constitutional.  The reasons for our order follow.

   This action was brought upon a complaint lodged against the appellant by the Commission on Interracial Problems and Relations under the 1963 public accommodations law.  The complainant was a Negro whom the appellant had refused to serve in his restaurant because of the complainant's race.  The appellant elected to have the complaint submitted directly to the Circuit Court for Anne Arundel County rather than to have it heard by the Commission in the first instance.  He admits the discrimination, but contends that the law was suspended [**789] by petitions for a referendum, and that the Secretary of State acted illegally in refusing to give effect to the petitions.  The appellant argues that the statutory provisions pertaining to requirements with respect to [***6]signatures for a referendum are in conflict with the provisions of the Maryland Constitution; that the Secretary of State did not have the power or authority to decline to accept referendum petitions against the public accommodations law on the ground of the invalidity of some of the signatures and should have referred the petitions to the electorate; [*568] and that therefore the public accommodations law has never gone into effect.  He also contends that the provisions of that law are in violation of the Involuntary Servitude provision of the Thirteenth Amendment and of the Privileges and Immunities and Due Process clauses of the Fourteenth Amendment of the Constitution of the United States.

   The State contests the right of the appellant in these proceedings to challenge the legality of the Secretary's refusal to place the public accommodations law on the ballot. It urges that the only proper manner in which this question could have been raised was by a mandamus action, rather than by a collateral attack in enforcement proceedings.  The State also contends that any right the appellant might have to contest the Secretary's action is barred by laches.  We do not decide these[***7] questions, for, in our opinion, even assuming the appellant has the right to contest the Secretary of State's action, his contentions with respect to both the Maryland and Federal Constitutional provisions are without merit.

   I

   Article XVI of the Maryland Constitution reserves to the people the power of referendum, to approve or reject at the polls any Act of the General Assembly if approved by the Governor or if passed over the Governor's veto. n1 Section 1(b) reads as follows:

   "(b) The provisions of this Article shall be self-executing; provided that additional legislation in furtherance thereof and not in conflict therewith may be enacted."
 
Section 2 provides that if a referendum petition is filed with the Secretary of State, "the same shall be referred" by him to a vote of the people at the next ensuing election.  Section 3 deals with the number of signers necessary for a referendum petition, and for extending the time for filing the petition for thirty days if more than one-half the requisite number of signatures required are appended before the first day of June.  Section 4 reads as follows:

   [*569] "A petition may consist of several papers, but each paper [***8]shall contain the full text of the Act or part of Act petitioned upon; and there shall be attached to each such paper an affidavit of the person procuring the signatures thereon that of the said person's own personal knowledge every signature thereon is genuine and bona fide, and that the signers are registered voters of the State of Maryland, and of the City of Baltimore, or County, as the case may be, as set opposite their names, and no other verification shall be required."

n1 For the extent of the adoption of the referendum, see note, 43 Harv. L. Rev. 813 (1930).

   The statutory provisions in respect of signatures to referendum petitions are contained in Section 169 of Article 33 of the Code (1964 Supp.).  This Section was originally enacted in 1941 (Chapter 335, § 315A), and was re-enacted in 1957, with some changes not here material.  In 1962, the section was amended to read as follows:

   "In every petition (including an associated or related set of petitions) under the provisions of Article XVI of[***9] the State Constitution, there shall be appended to the signature of each [**790] signer his residence, the precinct or district wherein he is registered as a voter, and immediately below the signature of any such signer, there shall be either printed or typed, the name of such signer." Code (1964 Supp.).
 
The amendment added the phrase in parentheses; otherwise the provisions of the 1957 law were re-enacted without change.  The 1962 session of the General Assembly added Sections 169A to E, inclusive.  Sections 169A and B make it unlawful to obtain signatures by misrepresentation or knowingly to circulate false statements or representations concerning the contents or purpose of a petition to obtain any signature thereto.  Section 169B(e) makes it unlawful "[t]o give, pay, or receive any money or other valuable consideration or inducement for signing the petition or for securing signatures thereon"; and Section 169C provides for the filing of statements of contributions and expenditures with the petition.  Section 169D states that any question [*570]concerning the invalidity of the signature of any person affects that signature only.  Section 169E provides that offenses[***10] under the preceding sections shall be punishable as an offense under the election laws and, if the offense warrants, shall also be punishable under the laws concerning perjury.

   The public accommodations law was enacted by Chapters 227 and 228 of the 1963 session of the Legislature. n2 Prior to June 1, 1963, the date on which that law was to become effective, referendum petitions were filed to place both chapters of the law to a vote at the next general election.  The Secretary of State examined the petitions, and in doing so applied the standards and requirements of both Section 4 of Article XVI of the Maryland Constitution and Section 169 of Article 33 of the Code.  The Secretary rejected a number of signatures which left the first half of each referendum petition short of the required number, and refused to place the 1963 law on the ballot. If the Secretary had applied only the Constitutional limitations and not those contained in Section 169, each petition, upon its face, would have sufficed.

 n2 The 1963 Act applies only to Baltimore City and some of the counties.  In 1964, the public accommodations law was made State-wide.  The 1964 Act was approved in a referendum vote on November 3, 1964.

[***11]

   If the requirements of Section 169 of Article 33 relating to the form of signatures contained in referendum petitions are valid, the referendum petitions were insufficient to suspend the law and refer the bills.  If the provisions of Section 169 of Article 33 are inconsistent with the provisions of the Maryland Constitution and therefore invalid, the law should have been referred.

   The only provision of Section 4 of Article XVI of the Maryland Constitution as to the form of the petition is that it may consist of several papers, each of which shall contain the full text of the Act or part of the Act petitioned upon. The requirement of an affidavit from the person procuring the signatures does not go to the form of the petition to which the affidavit is to be attached.  In Sun Cab Co. v. Cloud, 162 Md. 419, 159 Atl. 922 (1932), nine years before the enactment of Section 169 [*571] of Article 33, Chief Judge Bond, in delivering the opinion of the Court, said:
 
"Each form of petition signed must contain the affidavit of the person procuring the signature, that of his own personal knowledge each signature is genuine and bona fide, and that the signers are registered[***12] voters of the State, and of the city or county, as the case may be, set opposite their respective names.  How it shall be ascertained whether these constitutional requirements have been met by petitions filed, the referendum article has not prescribed." 162 Md. at 422.

   The present section adds three requirements to the form of the petition.  The [**791] residence of each signer and the precinct or district wherein he is registered as a voter must be appended to his signature, and below his signature his name must be either printed or typed.

   These statutory requirements pertain only to the identification of the signer. They do not affect the Constitutional provision with respect to the affidavit of the person who procured the signatures, except insofar as they may provide means of checking the truth of the affidavit.  They do not require further affidavits.  Section 4 of the Constitutional provision "that no other verification shall be required" must be taken in conjunction with the provisions of Section 1(b).  Clearly, the provisions of the Article will be furthered if, by proper and reasonable means, a referendum petition is to be put upon the ballot only if it has the requisite[***13] number of genuine signatures of registered voters. We hold that the statutory provisions are not in conflict with Section 4 of Article XVI of the Constitution.  We hold, further, that these provisions are reasonable and constitute proper legislative enactments in furtherance of and not in conflict with the purposes of the Article.

   The requirements that the residence of each signer and the precinct or district in which he is a registered voter must be appended to his signature are only proper means to endeavor to assure that the provisions of the Constitution as to who may sign referendum petitions are met.  They safeguard the privilege which the Constitution grants.  They facilitate checking of [*572] the petitions by interested persons to ensure that only qualified persons have signed.  Similar provisions have been upheld as reasonable in other jurisdictions.  Shields v. Wells, 65 S. D. 552, 276 N. W. 246 (1937); State, ex rel. Jensen v. Wells, 66 S. D. 236, 281 N. W. 99 (1938); Headley v. Ostroot, 76 S. D. 246, 76 N. W. 2d 474 (1956); Dawson v. Meier, 78 N. W. 2d 420 (N. D. Sup. Ct. 1956); Mayock v. Kerr, 216 Cal. 171, 13 P. 2d 717 (1932).

   The requirement[***14] that the name of the signer is to be printed or typed below his signature falls within the same category.  We take judicial notice of the fact that many signatures are illegible.  The Legislature has enacted a similar provision with respect to the recording of deeds and other legal instruments.  Code (1957) Article 17, Section 52.

   In a comprehensive opinion in the Baltimore City Court, Judge Tucker upheld as reasonable and constitutional the statutory provisions here involved, as well as other provisions in the law then in effect which required the appending of the signer's occupation and place of business.  Reddick v. State, reported in 42 Ops. Att'y Gen. 495 (1958). As to the requirement that the signer's name be printed or typed on the petition, Judge Tucker said:

   "Then, there is the provision that the signer's name shall be printed or typed on the petition.  The purpose of that is, probably, because the handwriting of a lot of people who sign a petition is really illegible.  It is not going to help the Secretary of State to find out whether a particular person is a registered voter if he does not know his name.  I have glanced over some of these petitions, and some of[***15] the signers wrote their names very legibly.  There are others which are difficult, if not impossible, to decipher; and this requirement has a good purpose."

   In State, ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N. W. 179 (1920), relied upon by the appellant, the court held unreasonable and invalid a Nebraska statute which required a copy of the law sought to be referred to be attached to each sheet of signatures. In Maryland, the decision is not apposite; [*573] that requirement is contained in our Constitution.  The appellant cites language from the Amsberry case and other authorities to the effect that legislation to implement the referendum provisions of the Constitution must be reasonable and must not place any [**792] undue burden on the exercise of that constitutional right.  We agree.  The legislation before us complies with these conditions.

   The appellant also contends that Section 169B(e) of Article 33, making it unlawful to give or receive money or other consideration for signing a petition or securing signatures is an unlawful restriction of the people's right to a referendum; that Chapter 43 of the 1962 Laws containing this provision and the other[***16] provisions as to referendum petitions has no severability clause, and therefore this entire Chapter is inoperative; and that, for these reasons, the action of the Secretary of State in refusing to put the referendum on the ballot was illegal and the operation of the public accommodations law is still suspended. We disagree with his conclusion and with each of the postulates upon which it is based.
 
   Sections 169A to E, inclusive, are not requirements as to the sufficiency of referendum petitions but only collateral measures to prevent fraud, similar to the corrupt practices provisions in connection with the election laws to which they refer.  See Pettengill, Regulation of Campaign Finance -- The Maryland Experience, 19 Md. L. Rev. 91 (1959). The appellant has proffered no argument or authority to overcome the presumption of the constitutionality of Sections 169A through E, n3 except as to Section 169C.  The appellant cites State, ex rel. v. Snell, 168 Ore. 153, 121 P. 2d 930 (1942) as authority that the provisions of Section 169C, requiring the filing of a statement of contributions and expenditures with a referendum petition, are unreasonable and invalid. In that case, however, [***17] the [*574] court only held there had been an unnecessarily narrow construction of the statute and that the statute had been substantially complied with.  Even were Section 169A through E invalid, the remainder of the Chapter, Section 169, would not necessarily fall.  It is the legislative intent, not the absence of a severability clause, which is controlling; such a clause is not indispensible if the requisite intent, as here, may be otherwise found.  McKeldin v. Steedman, 203 Md. 89, 103-04, 98 A. 2d 561 (1953). However, if the appellant prevailed on all his other contentions on this point, he would be no better off in this case, for the effect of the invalidity of the 1962 law would only be to relegate him to the 1957 statute, the provisions of which, as to the requirements for a referendum petition, are virtually the same.

n3 On the constitutionality of corrupt practices acts in general, see Ann. 69 A.L.R. 377.

   We do not decide the constitutionality of a criminal statute in advance of its application to a particular person claimed to be injured and without reference to the precise facts to which it is to be applied.  Hammond v. Lancaster, 194 Md. 462, 471-73, 71 A. 2d 474 (1950).

[***18]

   The appellant argues that even if Section 169 of Article 33 is constitutional, its requirements in respect of the contents of referendum petitions are merely directory and not mandatory, so that the ruling of the Secretary of State that there were an insufficient number of valid signatures on the referendum petitions was nugatory.  Section 169 provides that each signature on a referendum petition "shall" (not "may") be supported by a statement of the signer's residence and voting precinct or district and by his name in print or type.  The use of the words "shall" or "may" is not controlling in determining whether a particular provision is mandatory or directory; the question of construction turns upon the intention of the Legislature as gathered from the nature of the subject matter and the purposes of the legislation.  Hitchins v. City of Cumberland, 215 Md. 315, 323, 138 A. 2d 359 (1958). However, the word "shall" of itself demonstrates a mandatory intent unless the context indicates otherwise.  2 Sutherland, Statutory Construction, § 2803, (3d ed. 1943); Crawford, Statutory Construction, § 262 (1940).  Here the context supports rather than negatives the mandatory[***19] intent of the statutory provision.  [**793] Section 169 is clearly designed to provide additional means by which fraudulent or otherwise improper signatures upon a referendum petition may be detected.  If the provisions of the section were only directory, laws enacted by the Legislature could be suspended, even if the Secretary of State had found that the referendum [*575] petition lacked the necessary number of valid signatures. Courts in other jurisdictions have held that similar statutory provisions are mandatory rather than directory. Associated Industries v. Oklahoma Tax Commission, 176 Okla. 120, 55 P. 2d 79 (1936); Ford v. Mitchell, 103 Mont. 99, 61 P. 2d 815 (1936); State, ex rel. Winter v. Swanson, 138 Neb. 597, 294 N. W. 200 (1940).

   The appellant further contends that, even if there were an insufficient number of valid signatures on the referendum petitions and the Secretary of State so found, the filing of the petition of itself suspended the law, unless and until it was judicially determined that the valid signatures on the petitions were insufficient.  To support his argument, he relies upon a phrase in the opinion in First Continental v. Director[***20] , 229 Md. 293, 301, 183 A. 2d 347 (1962), that "only a court can effectively hold that an attempted referral is fatally faulty." The phrase quoted, however, must be considered in the context of the issue there before us.  That case involved the validity of an appointment of a receiver for a savings and loan association.  Petitions for a referendum on one of the bills passed by the Legislature with reference to building and loan associations had been filed with signatures sufficient in number to effect suspension of the Act until the next election.  Shortly thereafter, a bill was passed and approved at a special session of the Legislature, identical in substance with the bill against which the referendum petitions had been filed, except with respect to the administration of the law. The Attorney General ruled that there had been an insufficient number of valid signatures on the referendum petitions presented to the Secretary of State and formally advised the Secretary to that effect.  The appellant argued that, because of this action of the Attorney General, the Act on which a referendum was sought had not been suspended but was in effect at the time and that therefore the Act passed[***21] at the special session of the General Assembly pursuant to which the receiver had been appointed, was not in effect by its own terms.  We disagreed with this conclusion and affirmed the order appointing the receiver.  We held that the views of the Attorney General as to compliance with the requirements of Article XVI of the Constitution are advisory only [*576] and cannot operate to terminate the suspension of a referred law any more than the Attorney General's opinion that a law is unconstitutional makes that law inoperative.  It was in connection with this holding that we used the phrase upon which the appellant here relies.  Our decision in the First Continental case did not go to the legal power of the Secretary of State to refuse to suspend the operation of a law because the number of valid signatures to the referendum petition is insufficient, but only to the lack of power of the Attorney General to terminate the suspension. It is the Secretary of State, not the Attorney General, with whom a referendum petition must be filed.  Our holding on this aspect of the case was only that, once the Secretary of State has accepted a referendum petition as valid and thereby suspended[***22] the operation of the act until the election, the Attorney General has no legal power to resuscitate the statute.  In the present case, it is the Secretary of State, the official designated in the Constitution to receive a referendum petition, who found the petitions to be fatally defective.  The First Continental case therefore is not here applicable.

    II

   The public accommodations law is a valid exercise of the police power of the State and does not violate any of the appellant's [**794] rights under the Privileges and Immunities and Due Process clauses of the Fourteenth Amendment. The law prohibits discrimination because of race, creed, color or national origin of any person by the owner or operator of a place of public accommodation.  A place of public accommodation is defined to mean any hotel, restaurant, inn, motel or an establishment regularly engaged in the business of providing sleeping accommodations or serving food or both for a consideration, and which is open to the general public, with certain exceptions as to places or portions of premises primarily devoted to the sale of alcoholic beverages.  The appellant concedes, as under the authorities he must, that at[***23] common law, inns and common carriers were under a duty not to discriminate. What the Legislature has done in the public accommodations law is to extend that duty to carefully limited places of public accommodations which, while not public utilities, like them, are open to the general [*577] public for the supplying of necessities.  Such an extension is within the legislative discretion, under the police power, to determine what measures are necessary or appropriate for the protection of the health, morals or welfare of the people. The courts will not interfere with the exercise of that power, if the regulation is not arbitrary, oppressive or unreasonable, even though its exercise may inconvenience individual citizens.  See Davis v. State, 183 Md. 385, 396-98, 37 A. 2d 880 (1944).

   Anti-discrimination laws similar to or even broader than the Maryland public accommodations law have been generally sustained as a proper exercise of the police power. Marshall v. Kansas City, 355 S. W. 2d 877 (Sup. Ct. Mo. 1962); Levitt & Sons, Inc. v. State Div. Against Discrim., etc., 31 N. J. 514, 158 A. 2d 177 (1960); Burks v. Poppy Construction Co., 57 Cal. 2d 463, 370 P. 2d [***24]313 (1962); Pickett v. Kuchan, 323 Ill. 138, 153 N. E. 667 (1926); District of Columbia v. Thompson Co., 346 U.S. 100 (1953); Ann. 49 A.L.R. 505, and cases therein cited.

   Maryland's right to pass the public accommodations law is not contravened by the Fourteenth Amendment. Marshall v. Kansas City, supra; Pickett v. Kuchan, supra; People v. King, 110 N. Y. 418, 18 N. E. 245 (1888). See Western Turf Association v. Greenberg, 204 U.S. 359 (1907). In Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945) the Supreme Court unanimously upheld the constitutionality of the New York Civil Rights Law forbidding any "labor organization" to deny any person membership by reason of his race, color or creed. The words of Justice Frankfurter, in his concurring opinion, apply to the claim made by the appellant that the public accommodations law violates his rights under the Fourteenth Amendment:
 
"Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance.  Of course a State may leave abstention from such discriminations to the conscience of individuals.  On the other hand, a State may choose to put its authority behind one of the cherished[***25] aims of American feeling by forbidding indulgence in racial or religious prejudice [*578]to another's hurt.  To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment.  Certainly the insistence by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts." 326 U.S. at 98.

   The appellant argues that the public accommodations law is unconstitutional because restaurants do not enjoy a monopoly.  This argument goes only to whether or not [**795] the Thirteenth and Fourteenth Amendments of themselves prohibit discrimination.  That question is not before us.  We hold only that the public accommodations law is a valid exercise of the State's police power and that the law is not in violation of the Federal Constitution.

   The appellant's argument that the law is invalid under the Thirteenth Amendment is equally unsubstantial.  The restriction placed upon the conduct of his business is not involuntary servitude under the[***26] meaning of that Amendment.  See United States v. Petrillo, 332 U.S. 1 (1947) and Marcus Brown Co. v. Feldman, 256 U.S. 170 (1921). The duty not to discriminate which the Legislature has imposed upon restaurants such as the one which the appellant owns is a condition of his carrying on that business, not a requirement that he stay in it.  Like the inn-keepers whom he admits could not discriminate at common law, if the appellant feels the condition too onerous, he is under no obligation to continue in an occupation lawfully regulated in the public interest. 

PRINCE GEORGE'S COUNTRY CLUB, INC. v. EDWARD R. CARR, INC.;EDWARD R. CARR, INC. v. ABBE et al. 
No. 347, September Term, 1963
 
Court of Appeals of Maryland
 
235 Md. 591; 202 A.2d 354; 1964 Md. LEXIS 802

 July  10, 1964, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing and for Stay of Mandate Filed August 5, 1964, Denied September 15, 1964.

PRIOR HISTORY:  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment of August 14, 1963, in favor of Edw. R. Carr, Inc., against Prince George's Country Club, Inc., for $55,000 with interest and costs of suit, reversed, with costs.  Order of February 19, 1963, sustaining demurrers to counts of declaration seeking recovery below against the cross-appellees, affirmed, costs to be paid by the cross-appellant.

CORE TERMS:  club, broker, stockholder, purchaser, settlement, deposit, seller, country club, condition precedent, two-thirds, purchase price, approve, vice-president, contract of sale, real estate broker, special agreement, golf course, consummation, acreage, chargeable, hereunder, procured, acre, site, new location, cancellation, contractual, purported, demurrer, invited

COUNSEL: Hervey G. Machen (on both arguments) for appellant and cross-appellees. 

   Seymour Friedman (on both arguments), with whom were H. Max Ammerman and Irving A. Levine on the brief, for appellee and cross-appellant.

JUDGES: Henderson, Prescott, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned; and reargued before Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.  Prescott, J., dissents.

OPINIONBY: HAMMOND

 OPINION: [*595] [**355] The president and vice-president of the Prince George's Country Club, Inc., a Maryland corporation, having been authorized by the Board to do so, executed on[***8] behalf of the Club a purported contract for the sale to Community Builders, Inc., another Maryland corporation, of substantially all of its assets, including one hundred [**356] fifty-three acres of land, for a price of $1,300,000.  The contract was signed also by the corporate real estate broker which procured the sale, Edw. R. Carr, Inc., the [*596] appellee.  Since the sale was of substantially all of the assets of a Maryland corporation the provisions of Code (1957), Art. 23, Secs. 65 and 66 (as to corporate "Consolidation, Merger and other Transfers of Property") were applicable and controlling.  Sec. 65 provides that a Maryland corporation having capital stock (as the Club does) "may, in accordance with this subtitle * * * (3) [s]ell, lease, exchange or transfer all, or substantially all, its property and assets * * *." Sec. 66 a provides that every such sale "shall be effected in accordance with the provisions of this section." Subsection (b) requires adoption of a resolution of the board of directors, (1) declaring that the sale is advisable "upon the terms and conditions set forth in a proposed form * * * of articles of sale," and (2) directing that the proposed[***9] articles be submitted for the action of the stockholders. Subsection (c) deals with notice of the meeting of stockholders, and subsection (d) states that "[t]he proposed articles shall be approved by the stockholders by the affirmative vote of two-thirds of all the votes entitled to be cast thereon." Subsection (i) provides that "a transfer of property and assets of a corporation of this State, shall be effective when the articles of * * * transfer have been accepted for record by the Commission." The statutory requirements must be met if there is to be an effective sale of all or substantially all the assets of a Maryland stock corporation.  Brune, Maryland Corporation Law and Practice (Rev. Ed.), Sec. 316.

   When the sale of the Club's assets was presented to the stockholders of the Club for approval, the proposal did not receive the affirmative vote of two-thirds of those entitled to vote thereon and, for this reason, the Club returned to the purchaser the $75,000 deposit that had been given to it direct. The broker which had procured the purchaser sued the Club, alleging that it had earned a commission when the contract was signed, and also sued the officers and directors[***10] and certain stockholders personally on the theory that they had tortiously interfered with or by misrepresentation induced the contract between the broker and the Club.

   The defendants below demurred to all counts.  The demurrer to the count against the Club for the commission was overruled, those to the other three counts seeking recovery against the [*597] individuals were sustained. After the trial, at which it was stipulated that the broker had procured a purchaser who was ready, willing and able to perform, Judge Sachse found, contrary to the broker's contention, that the sale was of substantially all the assets of the Club, that the stockholders had not approved the sale as required by Sec. 66 (d) of Art. 23 of the Code, but that the contract was not illegal or void but "at most, ultra vires," and held that, relying on Sec. 124 of Art. 23 of the Code, the broker was entitled to "compensation for the loss or damage" sustained, which he set at the contract figure of $55,000.

   The Club appealed from the judgment for the broker and the broker cross-appealed in an effort to reverse the sustaining of the Club's demurrers to the three counts seeking recovery against the officers[***11] and directors individually.

   It appears from the record that the Club has one hundred stockholders, each owning one share of stock; that it owned and operated a country club with a golf course, tennis courts, swimming pool, clubhouse and restaurant.  There were about six hundred members.

   Sometime prior to November 1960, there began consideration of a sale of the Club's real property and a move to a new location. At a stockholders meeting on November 7, 1961, a committee presented two alternatives: (1) the present stockholders could put up more "permanent paid-in capital" or (2) "that the real estate be sold and those [**357] who wanted to have a country club in the county start over again at a new location." The committee felt that the better course would be for the present stockholders to take their capital gains from the sale of the land "and those who wanted to retire from the scene could do so, and those who wanted to support a program of finding new real estate and starting over again would be free to proceed in this manner."

   At this point the president asked Mr. Lloyd Coates, vice-president of Edw. R. Carr, Inc., the broker (who was not a member or stockholder of the Club [***12]but who had been invited to appear), to give advice to the stockholders. Mr. Coates said the value of the Club's land had "enhanced tremendously" in the last five years, that if he were a shareholder he would do [*598] the following: (1) employ a land planner to work with the Park and Planning Commission and the County Commissioners "to find the highest and best use for the property" (an euphemism, obviously, for having it rezoned for the densest possible use) and what this would cost, (2) engage an appraiser, not a member of the Club, to value the property (a) at its current use and (b) at its highest and best use, and (3) employ "a bona fide tax consultant" and "an experienced builder." A stockholder then rose to express his views that the only thing to do was to sell the property so that those who did not wish to join in plans for a new club "could be paid off for their stock and leave."

   The fifty-six stockholders present authorized a Committee on Relocation and Reorganization, which had just been created, to formulate a plan for the reorganization and relocation of the Club and to find an appropriate site and report to the January meeting of stockholders.

   At the January[***13] meeting the Committee reported that the president had, in his name and with his personal funds, acquired an option on a site of four hundred fifty acres, of which three hundred twenty-two acres could be a site for a Club, at Route 301 and Central Avenue, and that the Board unanimously was in favor of the taking over of the option.  The chairman of another committee, that of Disposition of Current Property, then suggested that in view of the prospective new site, steps be taken to interest a number of prospective purchasers for the present site, who would then be invited to make bids.

   At this point, Mr. Coates was invited once more into the meeting.  He revealed that he had an unnamed prospective buyer who would pay over $1,000,000 for the Club's land and assets, other than the golf course equipment, with a down payment of $50,000 "to be placed in escrow upon ratification of agreement."

   The minutes of the meeting then say:
 
   "Since there were many differences of opinion as to the value of the present property, it was impossible to make definite decision on offer at this meeting; therefore, matter of negotiation was turned over to Mr. Green's committee to be handled by them. [***14]

   "For purposes of clarification, Dr. Brainin asked [*599] that it be pointed out that, in moving the Club to a new location, the present corporation would be completely liquidated, all obligations paid, and a new corporate structure formed for purpose of purchasing the new property."

   The president then suggested that those of the present stockholders who were "interested in investing in the acquisition of this 450 acres of land for the purpose of constructing a new country club on 322 acres and using the balance of the acreage for land speculation, pledge a cash amount for the next three years in order that it would be possible to proceed with the purchase."

   The president continued: "It was necessary that the President have this information inasmuch as he had a group of five people available who would take this property as a syndicate, in the event the club owners were not interested."

   [**358] Of the forty-five stockholders present, only twenty-six made pledges.

   The meeting then authorized the Green Committee to make decisions and take such action as they deemed advisable for the acquisition of new property and the disposition of current property.  (It is stipulated[***15] by the appellee that this did not constitute the requisite approval of the stockholders to the sale here in dispute under Code (1957), Art. 23, Secs. 65 and 66.)

   The Committee and the Board, after some negotiation approved a sale and the Club, on March 31, 1961, over the signature of its president and vice-president, purported to sell to Community Builders, Inc., the real property described in the contract (153 acres), "forming the Prince George's Country Club,"
 
"together with all of the improvements situated thereon, and the personal property, including, without limiting the generality thereof, the clubhouse, tennis courts, swimming pool and equipment thereof, and all other structures and improvements, and all of the furniture, furnishings, equipment and tangible personal property now situated on or in said premises, excluding, however, the following items: (a) inventories of [*600] food and beverages, (b) supplies, (c) liquor license, (d) golf course equipment consisting of benches, ball-washers, tee markers, cups, flags, hand tools, tractors, mowers, trucks and other golf course maintenance equipment, (e) the sod from all tees, and (f) all of the personal property[***16] listed in Exhibit 'B' attached hereto and made a part hereof."
 
(Schedule B restated and particularized the excepted items and added one or two more.  The testimony was and the trial court found that the total value of all excepted items was $20,000.)

   The contract next provided:

    "This sale is made upon the foregoing and following conditions, namely:" (Only those pertinent here are summarized below)
1. Total purchase price is $1,300,000.
2. Purchase price is to be paid as follows:
A. Upon signing purchaser is to deposit with seller $75,000 thereof.
B. On October 1, 1961, April 1, 1962, and October 1, 1962, purchaser is to deposit $75,000 with a named trust company in escrow.
C. On date of settlement $700,000 additional in cash is to be paid.
D. Balance of $300,000 is to be paid by a promissory note, payable in annual installments.
4. Seller agrees to file with proper authorities applications for rezoning to Light Industrial of sixty-six acres of the one hundred fifty-three being sold with an option to the purchaser to cancel the contract if the zoning is not obtained by December 31, 1961.  Upon cancellation the $75,000 deposit is to be retained by the Club[***17] and all other sums paid to the trust company are to be refunded to the purchaser.
8. On agreed date between October 1, 1962, and April 1, 1963, settlement is to be made after [*601] purchaser notifies seller. If purchaser fails to make settlement "the gross amount on deposit with Seller shall be forfeited as liquidated damages and the Purchaser shall be relieved of all further liability hereunder. In the event of forfeiture of the deposit, or in the event of cancellation of the contract by the Purchaser by reason of failure to obtain the Light Industrial zoning of the sixty-six (66) acre parcel hereinbefore mentioned, the Seller shall pay to Edw. R. Carr, Inc., its agent hereunder, Twenty-Five Thousand Dollars ($25,000.00) of said deposit for its services hereunder."
[**359] 13. Settlement is to be made at office of named title company.
17. "Seller agrees to pay Edw. R. Carr, Inc., its Agent, a commission of Fifty-Five Thousand Dollars ($55,000.00) at the time of settlement of this contract.  The title company through which settlement of the contract is made is hereby authorized and directed to deduct said commission from the sale proceeds and to make payment [***18]  thereof to the Agent." (Emphasis supplied.)

   The Club contends that: (1) the sale was of substantially all its assets; (2) this being so, the parties (meaning, for the purposes of the opinion, the Club and the broker) were on notice of the provisions of Code (1957), Art. 23, Sec. 66, and the effect of those provisions was to make the purported contract of sale no more, in effect, than an offer by the purchaser which the officers of the seller agreed to submit to its stockholders and which could not become a binding contract to pay commissions to the broker until it was so approved; and (3) if the document executed on March 31, 1961, was a contract of the Club, it was a void or illegal contract that would not confer the right to a commission on the broker.

   The broker contends that: (1) the sale was not of substantially all of the assets of the Club; (2) if the sale was of substantially all the assets, the agreement in the contract to pay [*602] the broker $55,000 in commission was binding and enforceable by the broker (even though the contract could not be specifically enforced between purchaser and seller) in the absence of notice to the broker that approval by the stockholders[***19] was required by the statute; and (3) the contract is not void or illegal and, if ultra vires, any defense on that score is taken from the Club by the provisions of Code (1957), Art. 23, Sec. 124.

    We do not reach the third contention of either appellant or appellee for, on the premise that the officers and directors of the Club had the right to engage a broker to procure an offer to submit to the stockholders (Cf. Baumohl v. Columbia Jewelry Co., 209 Md. 278), and the right to bind the Club to pay the broker for the services he rendered, it is our view that a contractual condition, agreed to by the broker, was that its commission was dependent on the approval of the contract of sale by the stockholders of the Club.

   We agree with Judge Sachse that the sale was of substantially all of the assets of the Club. The value of those sold was $1,300,000, the value of those retained but $20,000.  The sale was of approximately ninety-eight and one-half per cent of all the assets.  It was of all land, and so of the golf course, tennis courts and swimming pool and of the Club building, and so of its meeting places and restaurant and bar facilities.  The real charter purpose and actual operation[***20] of the selling corporation was for and as a country club. The sale would have completely destroyed the appellant as a country club and thus would have been beyond the power of the corporation to make without compliance with statutory requirements.  Warren v. Fitzgerald, 189 Md. 476.

   The broker claims that the option which the president of the Club had obtained on acreage that could be used for a new country club, and that the Club could have utilized, was an asset which kept the sale here involved from being a sale of substantially all the assets of the Club. The contention has more sound than substance.  The president was one of the group of stockholders who wanted to establish a new club at a new location. He was willing to turn over his option to the more adventurous fraction of the existing stockholders or join with four other entrepreneurs in developing the acreage for residential [*603]uses.  It is clear that every probability was that the Club as a corporation would be dissolved and, if the option were to be availed of for the creation of a new club, it would [**360] be by individual members of the old Club who had chosen to band together in a new venture. [***21] The option was not in any meaningful or pertinent sense an asset of the Club.

   The parties agree that the usual rule of law is that where a real estate agent has done all that he was engaged and undertook to do, he has earned his commissions and is not to be deprived of his right to them because the purchaser defaults or because the seller is unable, or unwarrantedly refuses, to consummate the sale.  The rule has been declared by the Legislature by Code (1957), Art. 2, Sec. 17, which provides:

   "Whenever, in the absence of a special agreement to the contrary, a real estate broker employed to sell * * * real or leasehold estates * * * procures in good faith a purchaser * * * and the person so procured is accepted as such by the employer, and enters into a valid, binding and enforceable written contract of sale * * * in terms acceptable to the employer, and such contract is accepted by the employer and signed by him, the broker shall be deemed to have earned the customary or agreed commission."

   The statute is not applicable here because (passing the questions of whether the contract here was "a valid, binding and enforceable written contract of sale" and whether such a contract[***22] was "accepted by the employer," the Club, since the stockholders did not approve it), the condition of "the absence of a special agreement to the contrary" which makes the statute operative, was not met.  If there is a special agreement the statute does not apply. Chasanow v. Willcox, 220 Md. 171. The Municipal Court of Appeals for the District of Columbia, interpreting Maryland law, held that where, as in the case before us, the broker signs the contract, his rights are fixed by special agreement and not by the statute.  Dal Maso v. Gregory, 112 A. 2d 923.

   The rule underlying the statute does not apply because the contract which the broker signed made the consummation of the sale a condition precedent to the earning of the broker's commissions.  [*604] Borowski v. Meyers, 195 Md. 226, 232-233, after reiterating the usual rule, held:

   "On the other hand, a broker is not entitled to commission if he has not completed the undertaking which he assumed.  The essence of a brokerage commission is that it is dependent upon success, and that it is not dependent in any way upon the amount of work done by the broker * * *.

   "So, where consummation of a sale is dependent[***23] upon a condition, the principal's agreement to pay a commission to the broker is dependent upon the stipulated contingency; and if the broker acquiesces in the arrangement, and reasonable and bona fide efforts are made by the principal to perform the condition, but the efforts are unsuccessful, the broker is not entitled to a commission."
 
(In Borowski the contract required, lest it be void, that the business being sold gross $1,000 a week for a stipulated period.)

   The contract before us gives many inherent indications that the broker's right to a commission was subject to the condition precedent that the sale be consummated.  It provided: "This sale is made upon * * * the following conditions, namely" (emphasis added), and among these conditions were:
 
1. Settlement was to be made at a time to be made certain, at a specified place. 
2. If the purchaser failed to settle, the $75,000 deposit (which the Club was paid direct) was forfeited "as liquidated [**361] damages" and the purchaser had no further liability; it was further agreed that "[i]n the event of forfeiture of the deposit, or in the event of cancellation of the contract by the Purchaser by reason[***24] of failure to obtain the Light Industrial zoning of the sixty-six (66) acre parcel hereinbefore mentioned, the Seller shall pay to Edw. R. Carr, Inc., its agent hereunder, Twenty-Five Thousand Dollars ($25,000.00) of said deposit for its services hereunder."
3. The $55,000 commission was to be paid "at the [*605] time of settlement of this contract * * * from the sale proceeds * * *."

   The parties agreed by these provisions that the broker's commission was to be paid at the time of settlement from that portion of the sales price -- $700,000 -- that was to be paid at the stipulated time and place of settlement. In some cases a provision that a commission was to be paid at time of settlement or when the sale was completed or at a time similarly designated, has been held not to have created a condition precedent that there must be a settlement if there is to be a commission, but only to have designated a time for payment, and in many other cases the court has decided that a condition precedent has been created. The holdings both ways are collected in an annotation Broker -- Right to Commission, 74 A. L. R. 2d 437, 465, et seq.

    In the present case we think a condition[***25] precedent was intended. The Club and the broker agreed in terms that the provision as to commissions was to constitute a condition.  The condition was not only that the commission was to be paid at the time of settlement but that it was to be paid from the $700,000 part of the purchase price, and the necessary inference, we find, is that if there was no such purchase price there was to be no commission.  In Chasanow v. Willcox, supra, the contract provided that the broker's commission should be deducted from the proceeds of sale and, if the purchaser defaulted, the seller could forfeit the deposit and, if he did, the broker should receive one-half thereof.  The purchaser did default and the seller elected not to forfeit the deposit. This Court held at pages 176-177 of 220 Md.:

   "The purchaser having defaulted, there were no proceeds of sale out of which the broker could recover a commission.  The only fund, therefore, out of which the broker could be allowed compensation for his services to the seller under the contract, was the deposit which the broker had retained under the terms of the contract to be split fifty-fifty in case of default and forfeiture.  But, when the broker[***26] allowed the Real Estate Commission to stampede him into returning the deposit to the purchaser without first having obtained the [*606]approval or consent of the seller, there was then no fund to which the broker could look for compensation if he was entitled to any at that time under the circumstances in this case."

   There are many other authorities which agree that a consummation of the sale may be intended to be a condition precedent to the right of a broker to a commission.  Professor Corbin, in his work on Contracts, in Vol. 3A, Ch. 31 (Express Conditions -- Types and Illustrations), Sec. 639 (Forms of Expression That Will Make a Duty Conditional) says: "A fact or event may be made a condition of a contract right and duty by any form of words capable of interpretation * * *.  A promise can be made conditional by using language fixing the time of performance," citing many broker's commission cases, including Amies v. Wesnofske (N. Y.), 174 N. E. 436 ("balance to be paid upon the closing of title"); Leschziner v. Bauman (N. J. L.), 85 A. 205 (promise to pay broker's commission is conditional when expressed to be performable "on the day of passing[***27] title"); Morse v. Conley (N. J.), 85 A. 196 ("at the time of the consummation"); Sams v. [**362] Olympia Holding Co. (Wash.), 279 P. 575, 577 ("when the sale is completed"); Tarbell v. Bomes (R. I.), 135 A. 604 ("upon delivery of the deed and payment of the consideration"); Simon v. Myers (Pa.), 130 A. 256 ("at settlement" of the total consideration).  See also Hamrick v. Cooper River Lumber Co. (S. C.), 74 S. E. 2d 575; Dal Maso v. Gregory (Mun. Ct. App. D. C.), 112 A. 2d 923, supra; Jones v. Palace Realty Co. (N. C.), 37 S. E. 2d 906; Beattie-Firth, Inc. v. Colebank (W. Va.), 105 S. E. 2d 5; E. A. Strout Realty Agency v. Gargan (Mass.), 105 N. E. 2d 208; Restatement, Agency 2d, Sec. 445, comment c; 12 Am. Jur. 2d Brokers Secs. 195, 196, 208; 32 Col. L. Rev. 1194, Special Conditions in Real Estate Brokerage Contracts.  See also 31 Col. L. Rev. 701-702.

   In most of the authorities cited, the reason for the nonconsummation of the sale was the default of the purchaser. In the contract between the broker and the Club this reason for there being no settlement was dealt with specifically, as was the contingency of the cancellation[***28] of the contract by the purchaser because the rezoning of part of the land could not be [*607] accomplished.  In each instance the Club was to retain the $75,000 deposit and the broker was to receive $25,000 from the Club for its services.  No mention is made in the contract of what is to happen if there is no settlement because the stockholders of the Club did not approve the sale of substantially all the assets of their corporation, but we think the condition of the contract that if there was no settlement and no purchase fund from which a commission was to be paid, no commission was payable, did not exclude the contingency that the stockholders of the Club would not approve the sale.

   This Court, in various decisions over a long span of years, has cited and applied "the general rule that subsisting laws enter into and form part of a contract as if expressly referred to or incorporated in its terms, and the rule embraces alike those provisions which affect its validity, construction, discharge, and enforcement." Holmes v. Sharretts, 228 Md. 358, 367, citing recent decisions.  See also Griffith v. Scheungrab, 219 Md. 27, citing earlier Maryland cases to the same effect. [***29] As was pointed out in Holmes and in Griffith, Professor Corbin (3 Corbin, Contracts, Sec. 551) disagrees with the statement that subsisting laws are incorporated into a contract but he recognizes the validity of the general principle recognized in those cases.  It is his view that "words and other symbols must be interpreted in the light of surrounding circumstances; and the existing statutes and rules of law are among those circumstances." (p. 198)

   The surrounding circumstances, including the limitation by reason of Code (1957), Art. 23, Secs. 65 and 66, that the Club could not make the sale that Mr. Coates, the vice-president of the broker, had arranged without the approval of two-thirds of its stockholders, make it appear to us that the condition of no commission without a settlement and payment of the purchase price was applicable if the stockholders did not approve the sale.

   Mr. Coates was a realtor of twenty-six years experience.  He had been president of the Prince George's County Board of Realtors, vice-president of the Maryland Association of Real Estate Boards, and a local Maryland Real Estate Commissioner.  The Club's opinion of his competence was such that[***30] he was invited to advise the stockholders in meeting assembled on how [*608] to proceed to most advantageously sell their assets, dissolve the corporation and take their profits, and, on a second occasion, to advise another meeting of stockholders of the Club as to a tentative offer of purchase he had arranged as part of that program.  We think he cannot have failed to know that the Club intended to sell substantially all of its assets, and that the stockholders were the persons who, as a group, had the [**363] final say when a chance to do so was presented, (he himself had told the second stockholders meeting he attended that one of the terms of the contract he proposed was the deposit was subject to "ratification of agreement") and that he was chargeable with knowledge that two-thirds of the stockholders must approve if such a sale were to go through.  Under these circumstances, when Edw. R. Carr, Inc., by Mr. Coates, signed the contract which embodied the condition that its commission was to be paid at settlement and from the purchase price then payable, it agreed that it would get no commission unless the stockholders of the Club approved the sale as effectively as if[***31] that proviso had been written in the contract in so many words.  Holmes v. Sharretts, supra. The judgment for the broker appealed from by the Club must be reversed.

   The cross-appeal of the broker seeking to reverse the action of the trial court in sustaining demurrers to the second, third and fourth counts of the declaration, which sought recovery against the officers, Board members and certain stockholders of the Club, must fail.  Count two relied on wrongful interference with the contractual obligations existing between the broker and the Club. No specifics as to what was wrongful or how the defendants interfered are given.  The second count did not therefore contain a statement of facts, as distinguished from conclusions, showing on their face that the plaintiff is entitled to recover.

   In count three the broker seeks to recover on the allegations that the officers and directors of the Club employed it on representations that they were authorized to do so when in reality they had no such authority.  Count four is based on the same theory of law as applied to the president and vice-president of the Club alone.

   Restatement, Agency 2d, Sec. 332, says:

   "An agent making[***32] a contract for a disclosed principal [*609] whose contracts are voidable because of lack of full capacity to contract, or for a principal who, although having capacity to contract generally, is incompetent to enter into the particular transaction, is not thereby liable to the other party.  He does not become liable by reason of the failure of the principal to perform, unless he contracts or represents that the principal has capacity or unless he has reason to know of the principal's lack of capacity and of the other party's ignorance thereof."

   The third and fourth counts do not specify in what way the officers and directors of the Club represented that they had authority, which they did not have, to enter into a contract of sale of substantially all of the assets of the Club, knowing the broker relied thereon.  If it be assumed, as seems most likely, that the individual defendants did not reveal to the broker the limiting provisions of Code (1957), Art. 23, Secs. 65 and 66, nevertheless, the broker was chargeable with knowledge of this limitation, equally with the officers and Board members, and the allegations of counts three and four do not state a cause of action.  One[***33] dealing with an agent must use reasonable diligence and prudence to ascertain whether the agent acts within the scope of his powers and this rule is applicable to those who deal with another as the officer or agent of a corporation.  13 Am. Jur. Corporations, Sec. 891.  See also Sec. 1056.

   Judgment of August 14, 1963, in favor of Edw. R. Carr, Inc., against Prince George's Country Club, Inc., for $55,000 with interest and costs of suit, reversed, with costs.

   Order of February 19, 1963, sustaining demurrers to counts of declaration seeking recovery below against the cross-appellees, affirmed, costs to be paid by the cross-appellant. 

LISOWSKY et ux. v. J. F. JOHNSON LUMBER COMPANY 
No. 379, September Term, 1963
 
Court of Appeals of Maryland
 
235 Md. 331; 201 A.2d 686; 1964 Md. LEXIS 759

 June  22, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree affirmed, with costs.

COUNSEL: Carl H. Lehmann, Jr., for the appellants.

   John A. Blondell, with whom were Grafton Lee Brown, Jr., and Brown & Blondell on the brief, for the appellee.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.

OPINIONBY: PER CURIAM

OPINION: [*331] [**687] In this mechanic's lien case the parties have agreed that the only issue is whether notice of intention to file the lien was given within ninety days, as required by Code (1957, 1963 Cum. Supp.), Article 63, Section 11.  The chancellor resolved the issue in the affirmative and [***2]decreed the enforcement of the lien.  He was presented with conflicting testimony concerning the date of service of notice upon the appellants, and of course it was his function as the trier of facts to decide which was the [*332] more credible and reliable.  Maryland Rule 886 a and cases annotated establish this, and also that this Court must find that the lower court was clearly in error before we will reverse the judgment below. Since our review of the evidence convinces us that it was sufficient to enable the chancellor to find that the notice was timely served the decree must be affirmed.

   Decree affirmed, with costs. 

WALKER, et ux. v. BOARD OF COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY 
No. 74, September Term, 1964 (Adv.)
 
Court of Appeals of Maryland
 
236 Md. 45; 202 A.2d 331; 1964 Md. LEXIS 848

 June  16, 1964, Decided  
 July  17, 1964, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Reversed; costs to be paid by the appellee.

CORE TERMS:  condemn, jail, formal contract, condemned, county jail, site, specific performance, negotiate, acquire, condemnation, enforceable contract, jail facilities, misrepresentation, innocently, realtor, refused to sign, seems clear, settlement, borrowing, conferred, spells, material misrepresentation, expression of opinion, entitled to rely, parking lot, voidable, unwilling, minutes, metes

COUNSEL: Nicholas J. Fotos for the appellants.

   Richard N. Hambleton, with whom were Henry J. Tarantino and Joseph W. Hoy on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*46] [**332] The appellee filed a bill for specific performance of an alleged [*47] contract by the appellants to sell their house and lot at 44 Calvert Street in Annapolis.  A decree pro confesso was entered, but subsequently set aside.  A demurrer was overruled.  Finally, after a hearing on the merits, the Chancellor granted the relief prayed.  An appeal was entered and the case was advanced for hearing.  In a per curiam order, we reversed.  We now state the reasons for that action.

   In May, 1963, T. Carroll Worthington, an experienced realtor, was authorized by the County Commissioners of Anne Arundel County to negotiate for the purchase of certain properties on Calvert Street including the Walkers' property.  He called on the Walkers and told them the County wanted their property for a proposed extension of the County[***4] Jail, located nearby.  Mrs. Walker operated a beauty shop in the building, owned by her and her husband, and was unwilling to sell.  On June 25, 1963, Worthington and his son called on the Walkers and told them that the County would condemn if they did not negotiate a sale, and urged them to name a figure.  Mr. Worthington, Senior, stated that the County might pay as much as $19,500.  He handed them a typewritten letter under his letterhead, reading as follows:

   "We hereby agree to sell our property known as No. 44 Calvert Street, Annapolis, Maryland, to the County Commissioners of Anne Arundel County, Maryland, at and for the price of . . ." Walker filled in the figure of $25,000, and the Walkers signed it.

   Mr. Worthington admitted telling the Walkers that two property owners in the past had received less than they asked when they refused to sell and their properties [**333] were condemned. Both the Worthingtons admitted they told the Walkers that if they didn't sell, the County "would condemn." The only difference between the Worthingtons' version of what transpired, and that of the Walkers, is that the former testified they told the Walkers the County would condemn for an[***5] office building or parking lot, the latter testified they were told it would be for a jail site.

   The appellants first contend that there was no enforceable contract of sale. It is admitted that the County Solicitor wrote the Walkers on July 10, 1963, stating that the Commissioners "accepted your offer," and expressing the opinion that the offer [*48] and acceptance "spells out a mutual and binding contract of sale which may be enforced in court." The letter also stated: "Mr. Worthington will now present you with a formal contract of sale for you to sign which spells out such details as settlement date, etc." The Walkers refused to sign the "formal contract" when presented, and refused to sign another contract presented by a Mr. Hynson, who had been retained for the purpose by Mr. Worthington.  The County Solicitor informed the Commissioners on September 26, 1963, when purchases of other properties were "finally ratified and approved," that the Walker property "is not under contract." The appellants contend that the letter they signed was no more than a tentative offer, and the County's "formal contract" was a counter-offer, since it fixed the time for settlement at 120 days, [***6] and made time of the essence.  The appellee contends that the formal contract was sufficiently definite and added nothing to what was implicit in the prior acceptance, and that it was understood that the formal contract was to be only "evidence" of a completed agreement.  See McGinn v. Amer. Bank Sta. Co., 233 Md. 130, 133, Eastover Stores Inc. v. Minnix, 219 Md. 658, 666, Post v. Gillespie, 219 Md. 378, 386, and Peoples Drug Stores v. Fenton , 191 Md. 489, 493. See also Binder v. Benson, 225 Md. 456, 462.

   If we assume without deciding that the appellee is correct and that the exchange of letters created an enforceable contract, we think the evidence sustains the appellants' second contention that there was a misrepresentation sufficiently material to make the contract voidable. The cases make it clear that a material misrepresentation, even though innocently made, may be a defense to specific performance. Glendale v. Crawford, 207 Md. 148, 157 et seq., and cases cited; Carozza v. Peacock Land Corp., 231 Md. 112, 121. Cf. Walsh v. Edwards, 233 Md. 552, 557, and Whitney v. Halibut, Inc., et al., 235 Md. 517. The appellee does not dispute the[***7] general proposition, but argues that the appellants were not misled.

   The appellants testified that they would not have put a price on their property if they had not believed the statements of the Worthingtons that the County would and could condemn. There is no testimony to the contrary, although the appellee argues that the appellants "knew for well over a year before appellee's [*49] agent negotiated with them that appellee planned to acquire theirs and adjoining properties to expand the County Jail." It is quite true that the County had such a plan, and had employed Mr. Worthington to implement it by purchase.  But there is no evidence that it had condemned any property, that it had taken any steps to do so, or even that it had any power to do so.

   It seems clear that the County possesses no power of condemnation under the Public General Law.  Code (1957), Art. 25, sec. 3, authorizes certain counties to acquire real property by purchase or condemnation, but Anne Arundel County is specifically excluded.  Cf. Barnett v. Charles Co., 206 Md. 478, 483. By Chapter 790, Acts of 1959, sec. 1A, the County was authorized to borrow and expend up to $1,000,000 for "the construction, [***8] reconstruction or [**334] improvement of public buildings or any structure to house any functions of the County government or administration, jails, police stations, or any combination of the foregoing * * *." (Italics supplied) It was further provided that before borrowing any money the County Commissioners "shall adopt a resolution describing the projects described in Section 1 hereof for which said borrowing or indebtedness is intended * * *." The appellee contends that this Act conferred authority to purchase, but does not contend that it conferred the power to condemn.

   By Chapter 792, Acts of 1963, effective June 1, 1963, the County was authorized to acquire all or part of a specified tract of land in Annapolis by purchase or condemnation. The area described in section 2, by metes and bounds apparently included the property of the Walkers.  As originally introduced the Act authorized the County to acquire title to such lands in order to improve and expand its "jail facilities." But these words were deleted from the title and from section 1, and by amendment the following words were substituted: "public county office buildings and parking facilities." Section 2 was also[***9] amended by striking out the word "all" before the description by metes and bounds, and substituting the words: "all of that land presently occupied by the county jail and in addition thereto, all" or any part of the lands described.

   We need not now decide whether the effect of these amendments was to wholly eliminate the proposed grant of power to [*50] condemn the tract described for any expansion of "jail facilities." It may well be that the deletion of the reference to jail facilities in the title would prevail over the equivocal reference to the existing jail in section 2.  In any event, we think the representations made by Mr. Worthington on behalf of the County, were misleading.  It seems clear from the record that the property in question was to be purchased for a "jail site." That expression is found in the minutes of the Commissioners dated July 2, 1963, July 23, 1963 and August 6, 1963.  At the meeting on July 23, one of the Commissioners explained his negative vote by stating that there was "rising opposition throughout the county to this location as a jail site." The first suggestion of a change in purpose is found in the minutes of September 26, when the County Solicitor[***10] "advised that because of the case pending in court to restrain the county from using the property on Calvert Street for a jail, he would prefer that the Board take the position that the properties would not be used for jail purposes only." One of the Commissioners remarked that he did not know what "other county uses" would be.  On October 1, 1963, the Solicitor said: "In the light of the pending case, it was recommended * * * to amend the word 'jail uses' to 'county uses'."

   The Worthingtons were aware of the possible difficulties due to the amendments of Chapter 792 of the Acts of 1963.  Mr. Worthington, Junior, testified that they "made it perfectly clear [to the Walkers] that though the property could be condemned, it could not be condemned for the actual jail site, but could be condemned for public use or for parking lot or whatever." But they did not tell the Walkers that the County's power to condemn for any improvement or enlargement of the jail at the existing site had been challenged in court, and that no actual steps had been taken by the County to condemn any property for any purpose whatever.  Under the circumstances, we think the representation that the County "would[***11] condemn" amounted to more than a mere expression of opinion as to what might happen in the future, and amounted to a representation, contrary to fact, upon which the Walkers were entitled to rely. See Restatement, Contracts, §§ 474, 497.  Cf. Sainsbury v. Pennsylvania Greyhound Lines, 183 F. 2d 548 (C.A.4th). 

MAYOR AND ALDERMEN OF CITY OF ANNAPOLIS v. KRAMER 
No. 356, September Term, 1963
 
Court of Appeals of Maryland
 
235 Md. 231; 201 A.2d 333; 1964 Md. LEXIS 742

 June  9, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order reversed, with costs.

CORE TERMS:  zoning, residential, rezoning, planning, feet, residential use, public hearing, zoned, classification, recommendation, shopping center, municipality, annexing, municipal, rezoned, annexation, unfeasible, neighbors, annexed, depth, heavy, spot, reasonable use, residential purposes, legislative body, public interest, acres of land, boundary line, public notice, real estate

COUNSEL: Malcolm B. Smith, with whom was Louis M. Strauss on the brief, for appellant.

   C. Edward Hartman, II, with whom were Fell & Hartman on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*232] [**334] The trial court reversed the action of the Mayor and Aldermen of the City of Annapolis in denying the application of the appellee for the rezoning of some six acres of land from residential to commercial, and the City of Annapolis appealed.

   The land in question is part of a tract of about seventeen acres which was partly within the corporate limits of Annapolis and partly subject to the jurisdiction of Anne Arundel County, when the appellee and her late husband acquired it in [*233] 1951 as tenants by the entireties.  The land runs [***4]for some three thousand feet along the south side of Edgewood Road east of Bay Ridge Road (into which Edgewood Road dead-ends), with an average depth of two hundred fifty feet.

    In 1952 the seventeen acres became subject to four zoning classifications. Under County zoning it was heavy commercial for one hundred fifty feet east of Bay Ridge Road, and for the next approximately one thousand fifty feet (with the exception of a small wedge of land in the City of Annapolis which was zoned for a community shopping center) was agricultural.  The remaining eighteen hundred feet were within the limits of Annapolis and were zoned residential C, a classification intended primarily for single or multiple housing not in excess of eight dwelling units per acre.

   The Mayor and Aldermen of Annapolis decided to straighten its boundary line by annexing the subject land by means of the amendment of its charter in the exercise of the power granted municipal corporations by Sec. 4 of Art. XI-E of the Constitution of Maryland and Code (1957), Art. 23A, Secs. 11 through 19.  On December 10, 1956, a resolution was adopted, pursuant to the direction and requirements of Sec. 13 of Art. 23A, to become finally[***5] effective January 30, 1957, which, according to the stipulation of the parties, "changed the boundary line between the City of Annapolis and Anne Arundel County to conform to the southern boundary of plaintiff's [appellee's] property thereby incorporating all of plaintiff's property into the city." The stipulation also recites that in Sec. 2 of the resolution there was language which states "that plaintiff's [appellee's] property to a depth of 150 feet from Bay Ridge Road shall be zoned as commercial and the balance as residential C."

   Sec. 19 (p) of Art. 23A (in effect in 1956), dealing with annexation of contiguous lands by a municipal corporation, provides that the powers given to municipal corporations "by Art. 11E of the Constitution, by this article, and by Article 66B (of the Code)," shall not be deemed to authorize any municipal corporation to exercise planning and zoning jurisdiction or power within any political subdivision in which any such jurisdiction or power is exercised by any state, regional or county [*234] [**335] agency or authority.  The section makes an exception, however, as follows: "Except that where any area is annexed to a municipality authorized[***6] to have and having then a planning and zoning authority, the said municipality shall have exclusive jurisdiction over planning and zoning within the area annexed * * *."

   Sec. 19 (d) of Art. 23A requires publication of a "public notice" of the annexing resolution for not less than four weeks in a newspaper of general circulation "briefly and accurately describing the proposed change and the conditions and circumstances applicable thereto." It then provides that the "public notice" shall specify "a time and place at which a public hearing will be held by the legislative body on the resolution." Subsection (e) which follows provides that following the public hearing the public body may enact the annexing resolution which shall not become effective until at least forty-five days after final enactment.

   Code (1957), Art. 66B, Secs. 4 and 6 (which relate to incorporated towns containing more than 10,000 inhabitants) and Secs. 21 (d) and 21 (f) (which relate generally to counties, towns, villages and other incorporated political subdivisions) provide, respectively, (1) for public hearings after fifteen days' notice as a prerequisite to the exercise of original zoning (Secs. 4 and 21 (d)), [***7] and (2) that the planning authority involved shall make recommendations for the boundaries of the original zoning districts after holding a public hearing, and that the legislative body shall not hold its final hearing or take action until it has received the final recommendation of the planning group (Secs. 6 and 21 (f)).  These provisions must be complied with. Walker v. Talbot County, 208 Md. 72. Cf. Mayor and Council v. Cotler, 230 Md. 335.

   It would appear that the provisions on the same subject matter of Articles 23A and 66B of the Code must be read together and be applied when a municipality zones for the first time in the course of annexing land.  In the case before us the record leaves it uncertain whether the City Planning and Zoning Commission of Annapolis held a public hearing in the course of deciding the proper zoning of the appellee's land or whether it [*235] made a recommendation to the Mayor and Aldermen as to the proper zoning. It is silent also on whether the Mayor and Aldermen held a public hearing on its resolution of annexation which included a zoning of the annexed lands.

   We shall assume that the City did its statutory duty and took all the steps [***8]made necessary for valid annexation and zoning by Art. XI-E of the Constitution and the provisions of Articles 23A and 66B of the Code, since the contrary does not appear, and the appellee makes no point or contention that the City did not effectively annex and zone her land.

   The appellee relied on original error and change in conditions in seeking a change from residential to commercial classification. She produced before the Mayor and Aldermen a real estate expert who felt there had been both and who pointed out that Bay Ridge Road is zoned (by the County) commercial on both sides for a depth of one hundred feet and that there are several unattractive commercial establishments along that road near Edgewood Road, that opposite the portion of the appellee's land which she now seeks to have rezoned the land is zoned for a shopping center and that Edgewood Road carries heavy traffic, particularly in summer when two beaches to which it leads are in busy operation, and that the road might soon be widened to eighty feet. His view was that the best use of the land would be for light commercial but that if it were not rezoned "the property would probably be used for residential use," although [***9]he felt it would be only the lowest type of residential use. He later said it would be financially unfeasible to develop the property for residential use although he gave no specifics.

   [**336] The City Planning and Zoning Commission of Annapolis unanimously recommended to the Mayor and Aldermen that the rezoning be denied because in its opinion there was no mistake in the original zoning, residential uses are not unfeasible and the change sought would be spot zoning, not in the public interest. The protesting neighbors, mostly from Annapolis Roads, a high grade residential development which is immediately to the south of appellee's land, pointed out that all the area to the south was residential, as was the area to the east of the shopping center north of Edgewood Road.  One of the [*236] neighbors, a "Programmer" for the State Planning Department, testified the change to commercial would be invalid spot zoning for the reason that the area of the rezoned tract would be too small to attract or support such uses and the land would, in all probability, soon work out for attractive residential use.

   The Planning Director of Annapolis testified in support of the Planning Commission's[***10] findings and recommendations.

   We think the applicant for rezoning did not show that she would be deprived of all reasonable use of her land if its classification was not changed from residential. It was not shown, for example, that the land could not be developed by screening off Edgewood Road and using streets running south from it or by running a road through the middle or by utilizing the southernmost boundary for a roadway.  There was evidence it could be used for residential purposes. Cf. Pem Co. v. Baltimore City, 233 Md. 372; Marino v. City of Baltimore, 215 Md. 206.

   The Planning Commission's views as to no original error or change since original zoning and the Mayor and Aldermen's action were supported by the fact that a road ran as a barrier between the limited commercial zoning to the north and the residential to the south, and the fact that most of the applicant's land was contiguous to or across the road from other residential land, most of it developed in that fashion.  We feel that the Mayor and Aldermen reasoningly and reasonably could have reached a decision either way and, this being so, the matter before them was fairly debatable, within the meaning of[***11] our prior cases, and the decision they chose is not to be disturbed by the courts. Furnace Branch Co. v. Board, 232 Md. 536; Elliott v. Joyce, 233 Md. 76; Montgomery County v. Ertter, 233 Md. 414.

   Order reversed, with costs. 

PROGRESSIVE FRIENDSHIP SAVINGS & LOAN ASSOCIATION, INC. v.ROSE 
No. 348, September Term, 1963
 
Court of Appeals of Maryland
 
235 Md. 169; 201 A.2d 8; 1964 Md. LEXIS 733

 June  4, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed, with costs, and judgment entered for appellant against appellee for $3,650, with interest from July 23, 1963.

CORE TERMS:  rent, tenant, lease, space, landlord, voted, minutes, rental, obligated to pay, amortize, monthly, leased, secretary, agreed to pay, bound to pay, tenancy, occupancy, ten-year, owed, possession of land, direct examination, vice president, rental rate, unpaid rent, cross-examination, amortization, thirty-three, unanimously, credibility, improbable

COUNSEL: Morton H. Perry for the appellant.

   William C. Mitchell, Jr., for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*171] [**9] In a suit by a landlord, the appellant, for unpaid rent, the trial court, sitting without a jury, found for the tenant, the appellee, on the ground that he had not agreed to pay as rent the amount on which the landlord based its claim.

   The appellee, C. Bowie Rose, is a lawyer who for some time has practiced from an office in Glen Burnie.  In 1956 he and a lay associate, John Lane, formed the Anne Arundel County Realty Company[***4] and, in its name, leased a building in Glen Burnie for ten years at a rental of $230.00 a month.  The lessee made improvements and additions to the building costing about $8,000, mostly on the credit, it would appear, of Rose.  At about the same time, Rose, to use his words, was "putting together" the Progressive Friendship Savings and Loan Association, Inc., the appellant, of which he became (and during the times herein pertinent was) a director and counsel.  Faced with the imminent prospect of paying for the improvements to the leased building, Rose conceived the idea of having the newly formed building association pay the bills, and become the assignee of the lease of the building in order (a) to have a place of business for itself and (b) to sublet to the existing tenants of the building (the Realty Company, Rose, and one Wagener, a director of the Association) at rentals, based on the amount of space respectively used, sufficient to reimburse it for cost of the improvements, [*172] plus six per cent discount interest and a bonus of two per cent.  The advantage to the Association was to be an office and, in the words of its president, the receipt of subrents in "a sufficient[***5] amount to make the proposition attractive to the Association," in a total of $10,506, which would be enough to yield a profit of $3,208.

   The advantage to Rose was to be that he would still have the office he wanted and be relieved of the obligation and necessity of paying the improvement bills (except to the extent that some of his share of the sub-rentals, based on the proportion of the total space in the building he used, contributed to the repayment of the money the Association used to pay them).  As one director of the Association put it from the stand, "[w]e took Mr. Rose off the hook."

   Having conceived the idea (of which Lane, his associate, who was a director and secretary of the Association, was in favor), Rose presented it to most of the other directors individually, or as he said, he "sold [it] to the other directors."

   This "sale" having been put across informally, the president of the Association [**10] appointed a committee of its directors, headed by Herbert Goldman, the certified public accountant for the Association, to ascertain the amount to be paid for the improvements and the amount to be paid as rent by each of the sub-tenants.  The committee measured[***6] each of the rooms of the building with a tape measure to ascertain the percentage of the total space used by each tenant (for the purposes of the calculation, and for reasons not here material, the small room used by the director Wagener was not counted as part of the total area), figured a basic rent, including electricity, heat and janitorial services, of $1.41 a square foot, added $1.00 a square foot to amortize the cost of the improvements over a three-year period, and estimated the respective monthly rentals as a flat $70.00 (only slightly in excess of the basic rent) for Wagener, $86.00 for three years, and $60.00 thereafter for the Realty Company (occupancy of 17% of the space), $105.00 for three years and $65.00 thereafter for the Building Association (occupancy of 21% of the space), and $310.00 for three years and $200.00 thereafter for Rose (occupancy of 62% of the space).

   [*173] A formal meeting was called by the directors of the Association for December 13, 1956, to act on the Rose proposal.  At the meeting, at which Rose was present, Goldman read a report of his committee, which was made part of the minutes of the meeting, setting out specifically and in[***7] detail the basic rent figure, the additional $1.00 a month a square foot to amortize the cost of improvements in three years, the monthly rentals set for each sub-tenant by the committee, the cost of the improvements, $7,298 (with a detailed analysis of how this total was arrived at), the total rent the Association would pay in ten years (at $230.00 a month), $43,230, the total rent it would collect in ten years under the proposed schedule, $53,736, the difference, $10,506, which after deduction of $7,298 left a profit to the Association of $ 3,208.  According to the minutes, there was "a general discussion on the pro-rata share of rents, costs, benefits to the Association and so forth," and thereafter it was moved, seconded and "unanimously carried by the Board that the present lease held by Anne Arundel County Realty Company, be assigned to the * * * Association and the present occupants, being C. Bowie Rose, Anne Arundel County Realty Company, and August Wagener, sub-lease from the Association at the figures stated in the report." The minutes continue: "The bills to be paid, as part of the assignment of the lease, in the attached report, were again read to the Board and upon[***8] motion made by Frank Bready, seconded by Irving Robinson, it was unanimously voted that these bills be paid."

   The bills were paid, the lease was assigned, and the subtenants paid their stipulated rent, except for Rose.  He apparently became disenchanted with the proportion of the total space attributed to his use and the amortization of the improvement costs over a three-year period instead of over ten years.  (It may be noted that at the rental rate of $310.00 a month for three years and $200.00 a month for seven years the total rent to have been paid would have been $27,960, and at the rental rate of $235.00 a month -- sufficient to amortize the improvement costs over a ten-year period which Rose suggested was his idea of what he should have paid -- his total rent would have been $28,200.)

   [*174] Rose had been a tenant for thirty-three months when another corporation took over the Association lease, and at the rate of $310.00 a month owed a total rental in the amount of $10,230.  He paid in various installments but $6,580.  The Association sued Rose for the balance of $3,650.  Judge Duckett found for the defendant, after saying that "[m]y mind has gone back and [***9]forward in this case * * * but * * * I cannot, in my own mind, reach a conclusion that this lease was definite, or whether there was a meeting of the minds between the Building Association and Mr. Rose."

   Md. Rule 886 a provides that in a case tried without a jury this Court will review [**11] on both the law and the evidence but will not set aside the judgment on the evidence unless clearly erroneous after regard has been accorded the opportunity of the trial court to judge the credibility of the witnesses. We think the judgment in this case must be reversed under the tests of the rule. 

   A lease is, in shorthand, a contract for the possession of land or space on the one side, and a recompense of rental income on the other.  Tiffany, Landlord and Tenant, Sec. 16, pp. 163-164; Allen v. Lambden, 2 Md. 279, 282. Since a lease is a form of contract its creation and construction are subject to the general rules governing the creation and construction of contracts in general. Saul v. McIntyre, 190 Md. 31, 36; Peoples Drug Stores v. Fenton, 191 Md. 489.

   When one in possession of property by grant of the owner pays rent to the owner, a tenancy is "implied by the law[***10] from the entry into possession of the premises and the payment and acceptance of the rent." Cook v. Boehl, 188 Md. 581, 591.

   Rose concedes that the relationship of landlord and tenant existed between the Association and him after the meeting of December 13, 1956, but contends he never agreed to pay the $310.00 a month rental claimed by his landlord to be what he was obligated to pay.

    Five of the directors of the Association, who were at the meeting of December 13, 1956, including the president (who presided), the vice president, the secretary (who took the notes of the meeting and the next day wrote the minutes), and the accountant testified that Rose was at the meeting, made the proposal, [*175] took great interest in its presentation by Goldman and voted for its adoption as recommended by the Goldman committee.  The president and another director recalled specifically that Rose had sat at the president's right all during the meeting.  Rose said on direct examination that he left the meeting from time to time to take telephone calls in his office nearby and was not in the room when Goldman's report was read or when it was discussed, or when it was voted on, although he[***11] admits he did at some point in the meeting request that the improvement bills be paid and the lease taken over by the Association and that he learned of the $310.00 rent expected of him either immediately after the meeting (which ended after six in the evening) or the next morning.  On cross-examination, Rose testified that after he presented the proposal to the meeting he left the room from, apparently, a sense of delicacy in that he said he did not want to be present when the matter was discussed. Later in the cross-examination he became less sure he had not been present at any critical stage of the proceeding.  First he said he was not sure he did not sit next to the president (which he had denied on direct examination) and later, when asked if he voted on his proposal, said: "I don't think so, I don't think I went back [into the meeting room] after that." When asked if it was not possible he had voted on the matter, as the minutes indicated, and whether he was certain he had not, Rose replied each time: "I don't think I did."

   If Rose did vote to accept the Goldman details of his proposal, as the testimony and exhibits heretofore referred to strongly indicates that he did, [***12]and then occupied the leased space and paid rent to the current owner, it is clear that he became a tenant at a monthly rental of $310.00. Judge Duckett found from his personal knowledge of Rose's temperament and habits -- he described him as "filled with nervous energy" and as "like a bee on a hot griddle" -- that the testimony of the five directors that he had not left the room during the meeting was incredible.  If we assume that the trial judge's opportunity "to judge the credibility of the witnesses," to which Md. Rule 886 a directs us to give "due regard," permitted [**12] Judge Duckett to make this finding without being clearly in error, as to which [*176] the record leaves us in very strong doubt, we are persuaded that other elements of the Association's proof require the conclusion that Rose was a tenant bound to pay $310.00 a month rent.

   The president of the Association, the vice president, its secretary, and another director testified that at the January 10, 1957 meeting of the directors of the Association, which was the next meeting after that of December 13, Rose was present, that the minutes of the December 13 meeting were read by the secretary, that the[***13] president asked if there were any corrections or changes, that none was suggested or asked for, and that all present voted to adopt the minutes of the December 13 meeting as read.  Rose did not challenge, refute or contradict this testimony in any way or to any extent.  When he voted at the January meeting he was already a tenant, he knew his rent had been set at $310.00 a month, he was unhappy about it and had been advised by Goldman that a rent figure based on a ten-year amortization would be $235.00 a month, yet he, a director of and the lawyer for the Association, voted to adopt as correct minutes of the Association which said that he had, on December 13, 1956, voted to become a tenant at $310.00 a month.
 
   After having done this, he continued in possession of the leased space and paid substantial sums of rent to the landlord. We think that he could not be heard to argue, at the conclusion of the case below, that he had not been a tenant for thirty-three months, who was obligated to pay $310.00 a month rent.

   Rose admits that never did he ask the directors of the Association at any meeting to change the terms of his tenancy, although he did complain to individual directors[***14] about the amount of his rent (the reply seems always to have been that they could do nothing about it).  The impression given by his testimony on the point and that of those to whom he complained is that Rose did not behave like one who was not bound to pay $310.00 a month but like one who desired a change in the terms that bound him to $310.00 a month.

   The Association offered in evidence its rent ledger cards, kept in the ordinary course of business, showing rent due by Rose to it on the first of each month from January 1, 1957, to September [*177] 1, 1959, of $310.00.  The first payment marked "on account" was received on April 26, 1957, in the amount of $1,000.  At that time $1,240 was due at $310.00 a month and $940.00 would have been due under Rose's theory of $235.00 a month.  The next payment was $2,000 on February 4, 1958.  A third payment was $2,875 on November 26, 1958, when the Association claimed $4,130 to be due, and on Rose's rent figure of $235.00 a month $2,405 would have been owed. We think it improbable that Rose would have paid more than he thought he was obligated to pay on April 26, 1957, and then on November 11, 1958, pay $470.00 more than[***15] he claims now was then due, particularly when two months later, on January 21, 1959, he paid $470.00 more, which he would not have been obligated to do under his rent schedule since he at that date would have been two months ahead as a result of his November 1958 payment.

   We find from the record as a whole the judgment below was clearly erroneous.

   Rose makes an alternative contention that because the Southfield Corporation, which he claims, without proof or elaboration, was his alter ego, took over the Association's lease in September 1959 at a rent of $320.00 a month -- or $90.00 more than the Association's rent which it could use to amortize the cost of the improvements -- this wiped out any obligation he had to the Association. We find nothing in the record to support this theory except Roses' claim that it should be so, and much that refutes it.  There is nothing in the minutes of the Association or other writings as to the transfer of the lease to suggest [**13]that the Association was in any way or to any extent releasing Rose from any amount he might owe it.  The Association has not wavered in its continuous assertion that it is owed rent by Rose, and it made the[***16] claim it now presses immediately before and immediately after the transfer of the lease and did not hint at a waiver or an accord and satisfaction in making the transfer.

   Judgment reversed, with costs, and judgment entered for appellant against appellee for $3,650, with interest from July 23, 1963. 

STATE v. JACOB 
No. 214, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 452; 199 A.2d 803; 1964 Md. LEXIS 644

 April  28, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order reversed; costs to be paid by the appellee.

CORE TERMS:  probation, sentence, peace, grant probation, writ of certiorari, right of appeal, subtitle, suspend, confer, pronounce judgment, common law, quasi-appellate, criminal jurisdiction, vested, question of jurisdiction, appellate jurisdiction, original jurisdiction, inferior tribunal, powers conferred, power to dispose, irregularity, transcended, eliminated, remanding, ascertain, conferred, invoked, traffic

COUNSEL: Franklin Goldstein, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General and Marvin H. Anderson, State's Attorney for Anne Arundel County, on the brief, for appellant.

   Julius G. Maurer, with whom was Edward J. Brannan on the brief, for appellee. 

JUDGES: Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*453] [**803] The State appeals from an order of the Circuit Court for Anne Arundel County dismissing its petition for a writ of certiorari by which it sought to have set aside the action of a trial magistrate of that County in placing the appellee on probation [**804] without verdict and to have the case remanded to the magistrate for further proceedings.

   The major premise upon which the State's case in the Circuit Court and in this Court rests, is that a trial magistrate in Anne Arundel County lacks power to grant probation without verdict.  An unreported case (State v. Schreyer, Circuit Court, Anne Arundel County, Law No. 6688) raising this question (involving alleged violation of the motor vehicle laws) had been before Judge [***4]Keating of the Second Circuit, then sitting in the Circuit Court for Anne Arundel County, on certiorari in 1962.  Judge Keating, in a well reasoned opinion, upheld the contention [*454] of the State.  In the instant case, Judge Duckett, though he considered the question a close one, decided to follow Judge Keating's opinion; but he announced that he was "further of the opinion that a retrial of this Defendant at this time will not serve the ends of justice, so the Court in its discretion has decided to dismiss the Petition."

   On this appeal, the State first renews its contention that a trial magistrate of Anne Arundel County lacks the power to place a person on probation without verdict; second, it contends that in passing on the State's petition for a writ of certiorari, the Circuit Court was acting in its common law capacity and not in the exercise of a special appellate jurisdiction; and third, it contends that the Circuit Court was required to remand the case to the trial magistrate with instructions as to how to proceed further.  The appellee does not challenge the State's first or third contentions, but relies on his motion to dismiss the appeal based upon the ground that[***5] the Circuit Court acted in the exercise of its "quasi-appellate" jurisdiction in reviewing the proceedings of the magistrate and in dismissing the writ, and hence that the State has no right of appeal from such action.

   Despite the lack of controversy over the State's first contention, we deem it appropriate to state our agreement with the view of Judge Keating, which was followed by Judge Duckett, that a trial magistrate of Anne Arundel County lacks power to place a person on probation without verdict, since our decision of this case is founded upon that view and the question has not previously been decided by this Court.

   We find no provision in the Trial Magistrates System subtitle of Art. 52 of the 1957 Code (which originated with ch. 720 of the Acts of 1939) or in any amendment thereof, which confers power upon trial magistrates to place persons upon probation without verdict.  In general, except as modified by this subtitle, their "authority, powers and civil and criminal jurisdiction" are the same as those "vested in any justice of the peace by law applicable to the counties for which they are respectively appointed," and "such as may hereafter be prescribed by law." See Art. [***6] 52, sec. 100.  That section does confer power upon trial magistrates to suspend sentence or costs, or both; [*455]but that is something quite different from the power to grant probation without verdict.  The power to suspend sentence can be exercised only when there has been a conviction and sentence thereon; probation without verdict, if granted, avoids any finding of guilt.  Indeed, one of its primary purposes, where its use is deemed appropriate, is to avoid placing the stigma of a conviction on the accused.  See Mutter, Probation in the Criminal Court of Baltimore, 17 Md. L. Rev. 309, 314. The difference is further manifested by the fact that these two powers are separately mentioned and dealt with by several statutes.  See Code (1963 Cum. Supp.), Art. 26, sec. 114(a)(1) and (2) -- powers of the Municipal Court of Baltimore City; Art. 27, sec. 641(1) and (2) -- powers of the Circuit Courts of the Counties and of the Criminal Court of Baltimore; and Art. 52, secs. 17 and 20, relating to suspension of sentence and costs by justices of the peace in certain counties, and sec. 19(1) authorizing justices of the peace in certain counties to suspend sentence or to place a person [***7]upon probation before conviction.

   [**805] Turning to the subtitle of Art. 52 headed "Criminal Jurisdiction," we find sec. 13(a) of the 1957 Code, n1 which, in general terms, conferred jurisdiction upon "the several trial magistrates of the State of Maryland (except in the City of Baltimore) to hear, try and determine" cases involving charges of a wide variety of offenses committed within their respective Counties, and provided that the trial magistrates "shall have power to issue all process and to do all acts * * * necessary for the exercise of their said jurisdiction, and may pronounce judgment and sentence in all such cases coming before them, in the same manner, and to the same extent as the circuit courts for said counties could, if such cases had been tried before said courts * * *." The quoted language as to power to pronounce judgment and sentence is derived from ch. 618 of the Acts of 1890, which long antedated probation without verdict.  Until the enactment [*456] of ch. 487 of the Acts of 1943, the authority conferred by sec. 13(a) was vested in justices of the peace and was not limited to trial magistrates.  That section always excepted justices of the peace or[***8] trial magistrates in Baltimore City. Upon establishment of the Municipal Court of Baltimore City pursuant to the Constitutional Amendment embodied in sec. 41 C of Art. IV and ch. 616 of the Acts of 1961 implementing that Amendment, there was no possible further need for this exception and it was eliminated by the Act last cited.  Otherwise, sec. 13(a) was not amended by ch. 616 of the Acts of 1961.  Changes were made by that Act to conform to the transfer of jurisdiction of criminal cases in Baltimore from justices of the peace to the Municipal Court in several other sections of Art. 52 and in a number of other provisions of the Code, including some contained in Articles 5 and 27; and twenty-three new sections relating to the new court were added to Art. 26.

n1 For clarity in discussing changes in this section we start with its language as in force when this case was before the trial magistrate.  Ch. 616 of the Acts of 1961, referred to later, which did not change it materially so far as this case is concerned, was declared effective on December 1, 1962, following a referendum vote in November, 1962.  (See Acts of 1963, pp. 2241-42; 2256-57.)

[***9]

   Sec. 13(a) of Art. 52, supra, makes no specific mention of any power to place an accused person on probation before verdict.  We need not decide whether such a disposition of a case may constitute "judgment and sentence" at all, for whether it might or might not do so as a general proposition, the power to pronounce judgment and sentence as the Circuit Courts might do, as given by sec. 13(a), does not, in our opinion, include the power to grant probation without verdict.  When first adopted in 1890, it clearly did not do so, since no such power then existed in the Circuit Courts.  Nor, do we think, has the power to place persons on probation without verdict been imported into the power of trial magistrates by the provisions of ch. 316 of the Acts of 1957 (now Code, Art. 27, sec. 641 (2)) which empowers the Circuit Courts of all of the Counties and the Criminal Court of Baltimore to grant probation without verdict. n2 We base this view, as did Judge Keating, largely upon the fact that when the Legislature has wished to confer upon justices of the peace or trial magistrates the power to grant [*457] probation without verdict, it has done so specifically.  This has been true[***10] since as well as before the enactment in 1957 of sec. 641 of Art. 27.

n2 Under sec. 451 of the Charter and Public Local Laws of Baltimore City (1938), enacted by ch. 132 of the Acts of 1931, the Criminal Court of Baltimore already possessed this power.  So did the Circuit Courts of the Counties in the Second Judicial Circuit under ch. 436 of the Acts of 1955.

   The first statute conferring such power was ch. 629 of the Acts of 1941, which added three new sections to Art. 52 of the Code of 1939.  One of these, then designated as sec. 14 B, which became sec. 19(1) in the 1957 Code, conferred the power to place persons on probation without verdict [**806] upon the justices of the peace in Baltimore City (except traffic court magistrates).  This section has been extended as to justices of the peace or trial magistrates (sometimes subject to a condition not here material) in seven counties as follows: Prince George's, by ch. 711 of the Acts of 1947; Charles, by ch. 77 of the Acts of the Spec. Sess. of 1948; St. [***11] Mary's, by ch. 555 of the Acts of 1959; Baltimore, by ch. 487 of the Acts of 1961; Calvert, by ch. 630 of the Acts of 1961; Montgomery, by ch. 119 of the Acts of 1963; and Queen Anne's, by ch. 278 of the Acts of 1963.  Ch. 616 of the Acts of 1961, supra, by sec. 23, eliminated the exception as to trial magistrates in Baltimore City (and as to traffic court magistrates), and, by sec. 1, enacted (among other sections) sec. 114(a)(2) of Art. 26 of the Code, which expressly confers upon the new Municipal Court the power to place persons on probation without verdict. n3

n3 This is our only statutory provision for probation without verdict which does not require the written consent of the accused to such disposition of his case.

   Whether the State has a right of appeal from the order dismissing its petition depends upon the nature of the proceedings before the Circuit Court. Clearly, they were not by appeal under sec. 13(b) of Art. 52 of the Code (1957). On the contrary, they were by way of certiorari to review[***12] only the power of the trial magistrate to grant probation without verdict.  See Md. Rule K 47.  Whether the Circuit Court would have reached the same conclusion on the merits as did the trial magistrate was not an issue to be determined.

   In these circumstances, we think that the trial court was called upon to act in its capacity as a common law court of original jurisdiction, and not in the exercise of a special, appellate [*458] jurisdiction or even of a quasi-appellate jurisdiction.  The case, therefore, appears to us to fall within the rule applied in State, ex rel. Wilson v. Stafford, 160 Md. 385, 153 A. 77, and recognized in Rayner v. State, 52 Md. 368, at 376-77 (see also Poe, Pleading and Practice (Tiffany's Ed.), Vol. 2, § 723 A), rather than within the rule of Riggs v. Green, 118 Md. 218, 84 A. 343, and Shipley v. State, 201 Md. 96, at 99, 93 A. 2d 67. The line of demarcation between the two types of cases is not always clear and distinct, and the question here is not wholly free of doubt. No question is presented with regard to the jurisdiction of the trial magistrate to try the case; his power to dispose of it by probation without verdict is in [***13]issue, and this, we think, presents a question which is essentially one of jurisdiction, rather than of mere irregularity in the proceedings. n4 The existence of a right of appeal does not bar the use of certiorari to test a question of jurisdiction. Rayner v. State, supra; and certiorari may be invoked to ascertain whether an inferior tribunal has transcended its limited powers. Swann v. M. & C. C. of Cumberland, 8 Gill 150, 155.

n4 If the converse were the situation, because of the public importance of the main question involved, we might well follow Moulden v. State, 217 Md. 351, 353, 142 A. 2d 595, and treat the appeal as a petition for a writ of certiorari under sec. 21 of Art. 5 of the Code (1957).  Cf. Shipley v. State, 201 Md. 96, 93 A. 2d 67, where the appellant prudently sought certiorari in addition to entering an appeal.

   Because we think that the magistrate did exceed his jurisdiction, that the appeal is properly before us, and that the Circuit Court erred in not remanding the case[***14] to the trial magistrate for disposition in accordance with the powers conferred upon trial magistrates of Anne Arundel County (Poe, op. cit. supra, § 730), we reverse the order of the Circuit Court and remand the case to that Court with directions to remand it to the trial magistrate for further proceedings not inconsistent with this opinion.

   Order reversed; costs to be paid by the appellee. 

UNSATISFIED CLAIM AND JUDGMENT FUND BOARD v. MOSLEY 
No. 281, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 386; 199 A.2d 366; 1964 Md. LEXIS 636

 April  13, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  notice, reasonable period, giving notice, claimant, physically incapable, organic, brain, patient, organic brain damage, disability, suffering, confused, sister, physical disability, question of fact, brain disease, disinterested, disturbance, unconcerned, aggravated, fractured, skull, bed, confinement, liberally construed, physical incapacity, Judgment Fund Law, circumstances surrounding, sufficient to sustain, uninsured motorist

COUNSEL: Gerard Wm. Wittstadt, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief, for the appellant.

   Joseph F. Lentz, Jr., with whom were Jerome B. Monfred and Frank B. Walsh, Jr., on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*388] [**367] This is an appeal by the Unsatisfied Claim and Judgment Fund Board (Board) from an order passed by Judge Duckett on July 30, 1963, holding that the Board was given timely notice on behalf of the[***4] appellee of damages resulting from the use of an automobile, as required by Code (1957), Article 66 1/2, Section 154, as amended by Ch. 49, Section 1, of the Acts of 1960.  (Later amended by Ch. 682, Section 1, of the Acts of 1961, but this amendment not applicable here.)

   The appellee raises several questions, but the case may be determined by answering the two aspects of the following one: Was the appellee physically incapable of giving notice to the Board, and if so, was notice given on his behalf within a reasonable period?
 
   On September 10, 1960, appellee was injured when the automobile in which he was riding collided with another.  At the time of the accident, he was nineteen years of age; the operator of the other automobile, who was responsible for the collision, was an uninsured motorist.

   As a result of the accident, the appellee sustained a comminuted fracture of the shaft of the right femur, and "avulsion compound" fracture of the right talus, a fracture of the left clavicle, a laceration of the right knee extending into the joints and a cerebral concussion.  He was hospitalized for approximately six weeks, and subsequent to this hospitalization, he was taken to the home[***5] of Ella Carr, a friend, where his sister was living.  He remained in a body cast for about two months.  After the cast was removed, he remained in bed for six weeks to two months, after which he was able to ambulate on crutches, which he used for more than one month.  On February 25, 1961, he appeared as a witness in the Circuit Court and testified.  After [*389] June 11, 1961, he received no further medical treatment for the injuries alleged in his notice of intention to make claim.

   On or about September 27, 1961, Evelyn Hall contacted an attorney, requesting that he represent the appellee.  The attorney filed a Notice of Claim with the Board, which was received by it on September 29, 1961.  A letter of denial was received from the Board dated October 6, 1961, and a reply was made by letter dated October 11, 1961 advising the Board of the claim of disability being made on behalf of the appellee.

   On September 10, 1962, appellee was transferred to Crownsville State Hospital by the Johns Hopkins Hospital, and was subsequently placed on convalescent leave on November 7, 1963.  Examinations were made and tests taken which found that the appellee was "mentally defective-moderate[***6] level" and was suffering from an organic brain damage.

   Suit was instituted on behalf of the appellee and a default judgment obtained against the uninsured motorist in the amount of $10,000.  At the hearing on the application for payment, the court found that the appellee's failure to comply with the ninety-day notice provision was due to a physical disability and that notice was given on his behalf within a reasonable time and it ordered the appellant to pay the appellee the sum of $9,900.

   There can be little doubt that the statute should be liberally construed so as to advance the remedy, due regard being had for the protection of the Fund and the realization of the essential legislative design.  Mundey v. Unsatisfied Fund, 233 Md. 169, 195 A. 2d 720; Giacobbe v. Gassert, 149 A. 2d 214 (N. J.). And we have stated that the question of whether one is "physically incapable [**368]of giving notice" seems to present a question of fact. Mundey v. Unsatisfied Fund, supra. Also, see Giacobbe v. Gassert, supra. And in Mundey, we quoted with approval 2 Merrill, Notice, § 832, wherein the learned author states: "'* * * confinement to bed or to home should[***7] not be considered as conclusively excusing a failure to notify * * *.  The test should be whether the notifier is incapacitated from attending to his affairs in general.'"

   From the above, it is seen that the first aspect of our question presents a question of fact, which the trial court found in favor of the appellee; and, after examining the evidence, we [*390] cannot say his finding was clearly erroneous.  Maryland Rule 886 a.  The record discloses that appellee's brother and an elderly woman were killed in the accident, and appellee received very serious and painful injuries that required hospitalization for two months, followed by confinement to bed for approximately another two months and the use of crutches for another month.  When taken to the hospital, he was in a coma, which lasted several days.  The injuries required medical treatment until June 11, 1961, some nine months after the collision.  His sister noticed a change in the appellee after his injuries -- he became very forgetful, rather confused and had difficulty in remembering things.  The report of the Crownsville State Hospital, a hospital for the treatment of mental patients to which appellee was taken, showed[***8] a diagnostic impression of chronic brain syndrome associated with trauma with psychotic reaction.  When admitted, he "was so confused, unconcerned, [and] disinterested that he did not answer the questions willingly." After he was encouraged by the examiner, "he gave a few disconnected, incoherent answers to questions." He apparently had "been suffering from an acute thinking disorder with confusion, affect disturbances, intellectual impoverishment, poor reasoning and judgment and poor insight," and "it is obvious * * * that the patient has been having ideas of delusions and has been hallucinating both in the auditory and visual fields." And "in addition to the symptoms of the schizophrenic process, this patient may have a permanent brain damage due to trauma in the automobile accident in which he sustained a fractured skull * * *."

   Dr. Terrell, a qualified psychologist at Crownsville State Hospital, scored a full scale I.Q. of 54 (the average is 90 to 110), a verbal I.Q. of 55 and a performance I.Q. of 59, all of which are within the "mental defective range." On the Bender-Gestalt figures, the patient reproduced them in such a way that they indicated organic brain damage. The patient[***9] was functioning within "the mental defective (moderate) level of general intelligence" and there was little indication that he had previously been, or will in the future be, able to function beyond this level to any significant degree.  The results of tests "strongly suggest the presence of an organic disorder which [*391] was probably congenital or occurred in early infancy." The doctor felt the patient's condition was one of long standing, and "the accident could have aggravated" it. The doctor was also of the opinion that appellee was incapable of making a will, and that he would need supervision in managing any type of business affairs, even "on how to buy clothes and what food to buy."

   The above evidence was, we think, sufficient to sustain the trial court's finding of physical incapacity. The first definition given by The American College Dictionary of "physical" is "pertaining to the body." It is axiomatic that one's brain is a part of the human body, and it is a well-recognized truth that an organic (structural alteration as opposed to a functional disturbance) disease of the brain can, and does, effectuate a number of physical disabilities, as for instance a paralytic[***10] stroke.  Indeed, when an organic disease of the brain creates disability, it is, in and of itself, a "physical disability." We hold, therefore, that the evidence taken as a whole (without repeating it), especially that of the organic brain damage and Dr. Terrell's statement that there [**369] was little indication that appellee had previously functioned above his "level" at the time of examination, warranted a finding that he was "physically incapable" of giving notice, within the purview of the statute.

   The appellant lays great stress, and relies almost entirely, upon our decision in Mundey v. Unsatisfied Fund, supra, with reference to the aspect of the question now under consideration.  It quotes from the decision, and then suggests, "in view of the above case, it is submitted that the mental status of the appellee is irrelevant insofar as his failure to file within the time prescribed by law." Appellant, obviously, has misconstrued the opinion; there is nothing therein that would justify the adoption of the suggestion.  The facts there were entirely different from those in the case at bar, and it will not be necessary to repeat them.  The portion of the opinion relied upon[***11] is where, after expressing our profound respect for the New Jersey Court, Judge Henderson, speaking for our Court, declined to follow a decision of that Court, Giacobbe v. Gassert, supra, insofar as it stated that one who had "not mentally and emotionally adjusted to the responsibility of giving notice" was [*392] excused from giving the notice required by the statute on the ground of "physical disability." There is not the slightest intimation in the opinion that an organic brain disease could not render one physically incapable of giving notice.

   This leaves for consideration the other aspect of the question.  Notice was given the Board on behalf of the appellee slightly more than one year after the accident.  We agree with the Superior Court, Appellate Division, of New Jersey that what constitutes a "reasonable period" under the statute depends upon the facts of each particular case, and in determining what is such a reasonable period within which notice may be given on behalf of one physically disabled, courts should look upon the facts with a liberal eye.  Russo v. Forrest, 145 A. 2d 339 (N. J.).  The facts herein may properly be characterized as unusual. Appellee[***12] was a young man, who suffered serious injuries to his body and a fractured skull. He was not of high intellectual capacity, but on the contrary was decidedly retarded -- the trial judge classified him as a moron. Apparently his only close relative was his sister, and the record does not show that she had had any business experience or a substantial education.  At the time of the accident, appellee was suffering from an organic brain disease (which may have been aggravated as a result thereof), or developed one as a result of the accident.  He displayed no "form" nor "insurance" consciousness as did the claimant in Mundey, supra, but on the contrary was "confused, unconcerned [and] disinterested" when he entered the mental hospital two years after the accident.  Without repeating more of the facts, we hold that the circumstances surrounding this case, taken as a whole, warranted the trial judge in finding that the notice had been given within a reasonable period after the accident.

   Order affirmed, with costs. 

ANDREWS AND JOHNSON v. SECRETARY OF STATE OF THE STATE OFMARYLAND 
No. 51 (Adv.), September Term, 1964
 
Court of Appeals of Maryland
 
235 Md. 106; 200 A.2d 650; 1964 Md. LEXIS 721

 April  13, 1964, Decided  
 May  28, 1964, Filed

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Duckett and Sachse, JJ.

DISPOSITION: Order affirmed with costs.

CORE TERMS:  election, candidacy, certificates, candidates, deadline, time prescribed, mandatory, failed to file, primary election, per curiam, preparations, expiration, directory, fixing

COUNSEL: John Norton Johnson, in proper person, and J. David Andrews, in proper person, for appellants.

   Robert F. Sweeney, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*107] [**651] We frequently, because of the time element involved in election cases, decide them by per curiam orders, and set forth later our reasons for the decisions.  This has occurred in these two appeals in one record.

   The narrow issue involved is whether the appellants were entitled to be certified as candidates for Congress in the Primary Elections to be held (they have since been held) on May 19, 1964, notwithstanding the fact that they failed to file their certificates of candidacy within the time prescribed by Code (1957), Article 33 § 56 (a). n1 There was no appeal taken from the action of the trial court in permitting certain other candidates, who had filed their candidacies, to withdraw their names; hence[***3] no question relating thereto is before us.

n1 Section 56 (a) provides: "Generally.  -- Certificates of candidacy shall be filed not later than midnight on the Monday which is ten weeks or seventy days before the day on which the primary election should be held under the primary election law."

   [*108] Appellants filed ex parte petitions on the equity side of the Circuit Court for Anne Arundel County, seeking an order of that court requiring the Secretary of State, the appellee, to certify their names as candidates in the Primary Elections. This attempt was resisted by the appellee, and, after a hearing, the court denied the appellants' petitions.  (No question is raised as to the propriety of seeking such relief in a court of equity, so we shall not deal with it, as the case must be decided against the appellants on the merits.) 

   Appellants' only contention seems to be that because of certain litigation pending in the Federal District Court at the time of the statutory deadline for filing and efforts[***4] on the part of the General Assembly to redefine the boundaries of the then existing Congressional districts, they were deprived of their rights to file before the expiration of the statutory deadline, as they had no way of knowing whether or not they would be filing in an election to be conducted in districts not then defined, or an election to be conducted in the State at large.  In their briefs, they cite no case, nor any other authority, to support their contention.  The General Assembly did not redraft the lines of the Congressional districts, and, although the Federal District Court declared the existing lines to be unconstitutional, it stayed the effect of that decision until after the General Elections of November, 1964.  (It may be safely assumed, we think, that had appellants filed their candidacies in accordance with the statute, any subsequent decision in the pending litigation or any statute providing for redistricting would have protected their rights to participate in the subsequent election.)

   That the previous decisions of this Court required our per curiam order is quite apparent.  It has been held that the fixing of a deadline for the filing of certificates of[***5] candidacy is not an unreasonable or unconstitutional restriction, in view of the necessity for making timely preparations for elections. Chamberlain v. Super. of Elections of Balto. County, 212 Md. 342. The opinion in that case stated: "The Maryland cases recognize that where the election statutes fix a date for filing petitions or certificates of candidacy, such documents must be filed before the expiration of the time fixed, and that the election officials may not exercise any discretion in the matter." [*109] As early as 1913, this Court held that the provisions of the Code (1912), Article 33, § 47 (cf. present § 67) which required that certificates of nomination be filed with the Secretary of State not less than 25 days before the day of election, were mandatory, even though it was conceded that an honest mistake [**652] had caused the failure to file on time.  Graham v. Wellington, 121 Md. 656. See also Iverson v. Jones, 171 Md. 649; 15 Op. Atty. Gen. 144; 15 Op. Atty. Gen. 143; Vaughan v. Boone, 191 Md. 515; Tull v. Fitzgerald, 167 Md. 429.

   Since the provisions of Article 33, § 56 (a) are mandatory and not directory, the court below had no alternative[***6] except to deny appellants' petitions. 

SENICK v. LUCAS 
No. 225, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 373; 199 A.2d 375; 1964 Md. LEXIS 634

 April  10, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed, and case remanded for further proceedings not inconsistent with this opinion.  Appellee to pay the costs.

CORE TERMS:  shed, rescission, feet, tool shed, dollars, root, specific performance, hardship, vendor, purchase price, compensated, purchaser, utilized, bungalow, rescind, rear, right to rescind, abatement, rearrangement, contracted, rescinding, improved, entitle, vendee, defeat, alley, condition precedent, express condition, entire contract, partial failure

COUNSEL: George B. Woelfel for appellant.

   J. Britain Winter, with whom were M. DeR. Jones and Winter & Bowen on the brief, for appellee.

JUDGES: Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*375] [**375] After a judge in the Circuit Court for Anne Arundel County sitting without a [**376] jury, rendered a judgment for eleven hundred dollars against the appellant, he appealed.

   He presents two questions[***4] for our consideration, but it will only be necessary to answer one: Was the appellee warranted in rescinding an entire contract for the purchase of improved realty, because a small shed located at the extreme rear of the property encroached upon a neighbor's land by 1.2 feet, and, as a result thereof, the appellant had about 20 inches of the shed sawed off and refinished?

   On April 22, 1961, the parties entered into a contract of sale to the appellee of two lots in Outing Park, Anne Arundel County, improved by a one story frame bungalow and two very small outbuildings for three thousand dollars in fee, of which two hundred dollars was paid at the time of the signing of the contract, eight hundred dollars was to be paid at time of settlement (within ninety days), and a mortgage for the balance was to be executed to the appellant, payable at the rate of $65.00 per month.

   The deposit of two hundred dollars and the sum of eight hundred dollars was paid by the appellee, and the appellee was given keys to the bungalow before the expiration of ninety days.  But before complete settlement had been reached, the appellee discovered that a shed at the rear of the lot being sold was located [***5]1.2 feet over the property line of the property to the west. n1

n1 Originally, appellee also complained of a small discrepancy of a few inches in certain of the boundary lines.  This complaint was abandoned at argument.

   He attempted to get in touch with the appellant but was unable to do so, as appellant apparently was out of the State.  On August 3, 1961, appellee's attorney wrote to the appellant's last known address stating that appellee was rescinding the [*376] contract because of alleged defects.  Then after negotiations attempting to reconcile the parties' differences, another letter, dated August 17, 1961, was sent by the appellee's attorney to the appellant, giving three alternatives of action in reference to the shed in order to settle these differences.  One of these proposals was that the appellant would move the shed back to the property line.

   The attorney for appellant replied to this letter on August 23, 1961, and stated that appellant would move the shed as set forth in the above proposition. [***6] At this point, the evidence becomes conflicting.  Appellant states, and appellee denies, that appellee authorized him to "cut that piece [the part that encroached upon the neighbor] off," and he had a competent carpenter saw it off and refinish it.  The trial judge found that appellee's version of this disputed fact was the correct one, and we cannot say his finding was clearly erroneous.

   The appellant had the carpenter saw off about 20 inches of the west side of the shed and refinish it.  The little shed is located in the extreme northwest corner (which is the rear) of the lot, more than 50 feet from the dwelling.  It was divided into two parts: the part to the west was 6.5 by 7 feet (at this point, we accept appellee's figures, which vary insignificantly from those of the surveyor), which was used as a tool shed; the eastern portion was 5.3 by 5.5 feet and was utilized as an old-fashioned privy, there being no toilet facilities in the bungalow. The portion used as a privy was not disturbed, but appellee contends that in the sawing off of the approximately 20 inches, the appellant made the tool shed too small for his use thereof as a tool shed, and, in addition, removed a small[***7] window located in the western side.

   The trial judge found, with evidence to support the finding, that the entire shed "was certainly very inexpensive and probably not worth over $75 -- to $100.00 * * *." (Appellant testified he could replace it "material and all for $100.00.") So, if we regard the tool shed in its present condition [**377]as being of no value whatsoever, we find that the parties have "fallen out" over a 6.5 by 7 foot section of a shed, whose total value does not exceed $100.00.

   [*377] It is well-settled law that an executory contract may be unilaterally rescinded by a party thereto, where there has been a substantial breach thereof by the party desiring to enforce it, Ady v. Jenkins, 133 Md. 36, 104 A. 178, Speed v. Bailey, 153 Md. 655, 139 A. 534, Balto. City v. Indus. Elec., 230 Md. 224, 186 A. 2d 469, (Compare Macon v. Zeiler, 233 Md. 160, 195 A. 2d 687, and Boring v. Jungers, 222 Md. 458, 160 A. 2d 780), or the equities are such that the party ought not to be permitted to enforce it.  McKeever v. Realty Corp., 183 Md. 216, 37 A. 2d 305, Straus v. Madden, 219 Md. 535, 150 A. 2d 230. But this does not mean that every insignificant[***8] or inconsequential failure of performance by one party authorizes a rescission by the other party: the failure of performance must be substantial.  Nes v. Union Trust Co., 104 Md. 15, 64 A. 310; Vincent v. Palmer, 179 Md. 365, 19 A. 2d 183; Ady v. Jenkins, supra; Speed v. Bailey, supra.

   In the Speed case, the Court quoted at some length from 6 R.C.L. 926-927, and explained the principle thus:

   "'It is not every partial failure to comply with the terms of a contract by one party which will entitle the other party to abandon the contract at once. In order to justify an abandonment of it and of the proper remedy growing out of it, the failure of the opposite party must be a total one -- the object of the contract must have been defeated or rendered unattainable by his misconduct or default.  For partial derelictions and non-performance in matters not necessarily of first importance to the accomplishment of the object of the contract, the party injured must seek his remedy upon the stipulations of the contract itself.  Before partial failure of performance of one party will give the other the right of rescission, the act failed to be performed must go to the root of[***9] the contract, or the failure to perform the contract must be in respect to matters which would render the performance of the rest a thing different in substance from that which was contracted for.  * * * When a covenant goes only to a part of the consideration of a contract, is incidental [*378]and subordinate to its main purpose, and its breach may be compensated in damages, such a breach does not warrant a rescission of the contract, but the injured party is still bound to perform his part of the agreement, and his only remedy for the breach consists of the damages he has suffered therefrom.'"

   "By this rule, compensation in damages for slight breaches is substituted for the remedy afforded by rescission of the whole contract.  The rule rests upon the principle that greater equity will be maintained between the parties by compelling the one, injured by slight variances or failure to comply literally with all of the terms of the contract, to accept the contract as performed and recover such damages occasioned by the breach as he may be able to show.  A departure from this rule would result in permitting any deviation, no matter how minute or unimportant, to be made the basis[***10] for the rescission of the contract, and allowing the one so rescinding to obtain an unfair and unconscionable advantage by electing to rescind or retain the bargain, as self-interest might dictate."
  
In Ady v. Jenkins, supra, Brantly, Contracts, p. 415, was quoted, in stating the rule, as follows:

   "It is not, however, every breach of contract, or failure exactly to perform, which justifies a rescission. If the promise which is broken is subsidiary -- that is, one [**378] which does not go to the root of the matter, defeating the object of the contract, and where the breach can well be compensated by damages -- the other party can not rescind for this reason."
 
Judge Hammond, for the Court, in Balto. City v. Indus. Elec., supra, stated the doctrine in a slightly different manner:

   "* * * before partial failure of performance of one contracting party will give the other a right to rescind, the failure must go to the root of the contract or be in respect to matters which would render the performance of the rest a thing different in substance from that which was contracted for."
 
[*379] See also 4 Pomeroy, Equity Jur. (5th ed.), § 1407; [***11] II Restatement, Contracts, § 375 (2); 2 Black, Rescission of Contracts, § 429.

   The trial judge stated that the question as to whether this "certainly very inexpensive building" was "a substantial point sufficient to avoid the contract" was a close one, but under all the circumstances decided that it was a "substantial" one, sufficient to warrant a rescission of the entire contract. Applying the principles of law which we have stated above, we are unable to agree.

   The purchaser contracted to purchase two lots aggregating 50 by 100 feet of land, improved by a small one-storied bungalow, 14.3 by 23.8 feet, and two small outbuildings, for $3,000.  The property presumably was to be utilized for residential purposes.  As stated above, the only difficulty arises over a tool shed, 6.5 by 7 feet, located at the extreme rear of the property.  If its present value be regarded as nothing, its replacement cost, according to the trial judge's finding, probably would not exceed sixty to seventy-five dollars, and the cost ought to be less if a rearrangement of the present shed be decided upon.  Whether a rearrangement be decided upon or a new shed built, there is ample land upon which[***12] it may be constructed without inconvenience to the buyer.  Under these circumstances, the failure of performance on the part of the seller did not, we think, go to the "root" of the contract or defeat the "object of the contract," as the property may be utilized for the very purposes for which it was bought.  And there can be little doubt that the "breach may well [and easily] be compensated by damages." For a collation of the Maryland cases holding that abatement of the purchase price is the proper remedy under certain circumstances, see 19 M.L.E., Sales of Realty, § 68.

   The instant case has some analogy to the early case of Connaughton v. Bernard, 84 Md. 577, 36 A. 265. There, an advertisement for the sale of property, one parcel of which was upon a three-foot alley, stated that the purchaser would have a right to build over the alley at the height of eight feet, provided the use thereof was not interfered with.  Upon exceptions to the sale, the Court held that, even conceding that the purchaser was not entitled to build over the alley, that would not [*380] justify the Court in setting aside the sale, but would at most only entitle the purchaser to a rebate of the[***13] purchase money.  Compare Sinclair v. Weber, 204 Md. 324, 104 A. 2d 561.

   For the infraction by the vendor mentioned above, the appellee seeks to invoke the equitable doctrine applied in hardship cases when a vendor is seeking specific performance of a contract.  As a general proposition, it is held that if a contract be fair, equal and equitable at its inception, no unfairness, inequality or hardship arising from subsequent events or change in circumstances can avail to prevent specific performance. But this general proposition is subject to the exception that if the subsequent events and changed circumstances which produce the unfairness or hardship in the contract, or in its enforcement, as [**379] against the defendant, are caused by the plaintiff's own wrongful or inequitable acts or omissions, a sufficient ground is thereby established for refusing to decree specific performance. The Glendale Corp. v. Crawford, 207 Md. 148, 114 A. 2d 33, and cases there cited; Pomeroy, Specific Performance of Contracts (3rd ed.), § 178.  The appellee argues that appellant's failure to move the shed back on the property sold brings this case within the exception noted above and[***14] entitles him to rescind the contract.

   As previously stated, the doctrine is usually applied in specific performance hardship cases, but if we assume, without deciding, that the doctrine is applicable in an action to recover payments made on the purchase price of real estate upon the theory that the purchaser is entitled to rescind the contract (compare, 1 Black, op. cit. § 12 n. 71, wherein it is intimated that the doctrine does not apply in cases of rescission) it cannot entitle the appellee to prevail here.  We held above that the failure of performance of the appellant did not go to the root, or defeat the object, of the contract.  We think appellant's failure can properly be termed "a partial non-performance in a matter not of first importance to the accomplishment of the object of the contract," which may be compensated by damages; hence, repeating a portion of the quote from Speed, supra, it "does not warrant a rescission of the contract, but the injured party is still bound to perform his part of the agreement, and his only remedy for the breach consists of the damages he has suffered [*381]therefrom." Of course, the parties to a contract may make performance [***15](full or partial) by one party a condition precedent (or an "express condition" 1 Restatement, Contracts, § 252) to the obligation of the other party to perform, either fully or partially, and they may agree that one or both parties have the right to rescind. Compare Geiger v. Western Md. R. R. Co., 41 Md. 4; Aged Men's Home v. Marley, 156 Md. 478, 144 A. 521; Black, op. cit. § 212.  There was nothing in the contract between the parties involved herein that specifically gave the vendee a right to rescind nor was there anything therein that made the promise of the vendor to move the small shed back on the land sold a condition precedent (or express condition) to performance by the vendee. Hence, the general principles of law as enunciated above must be applied.

   We therefore hold that the appellee was not entitled to rescind the contract, but that he is entitled to an abatement of the purchase price in the amount of the value of that portion of the shed used as a tool shed. We will, therefore, reverse the judgment and remand the case for further proceedings not inconsistent with this opinion.  Such proceedings might include a transfer of the case from the law side[***16] to the equity side of the court with leave to the appellant, defendant below to file a bill for specific performance subject to abatement of the purchase price. Maryland Rule 515.  Cf. Clayten v. Proutt, 227 Md. 198, 175 A. 2d 757. The case of Ahrens v. Ijams, 158 Md. 412, 148 A. 816, cited by appellee is readily distinguishable upon the facts.

   Judgment reversed, and case remanded for further proceedings not inconsistent with this opinion.  Appellee to pay the costs. 

McGOWANS v. HOWARD, Minor, et al., BLAKE, Minor et al. andPARKER 
No. 219, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 134; 197 A.2d 915; 1964 Md. LEXIS 597

 March  11, 1964, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed, with costs.

CORE TERMS:  circle, struck, brake, inference of negligence, clockwise, driving, rear, curb, hit, proximate cause, mere fact, foreseen, driveway, drove, et seq, distinguishable, traffic circle, attempting to enter, traffic flow, parking area, cause injury, collision, traffic, counterclockwise, deliberately, accelerating, momentarily, turn-around, regulations, anticipate

COUNSEL: Ridgely P. Melvin, Jr., with whom were James L. Wray and McWilliams & Melvin on the brief, for appellant.

   Richard C. Whiteford, with whom were Due, Whiteford, Taylor & Preston on the brief, for Daniel M. Parker, one of the appellees.

   No brief and no appearance for other appellees.

JUDGES: Henderson, Hammond, Prescott, Horney and Marbury, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*135] [**916] Two young girls were struck by an automobile driven by Daniel Parker while they were standing near the rear entrance [*136]to Bates High School. [***4] Through their mothers and next friends they each sued Parker and Claude McGowans, the driver of another car, and the cases were consolidated for trial.  At the close of the case the court instructed the jury that Parker was negligent as a matter of law, and denied McGowans' motion for a directed verdict.  Parker did not appeal.  The sole question presented in this appeal is whether there was legally sufficient evidence of McGowans' negligence.
 
   Bates High School is owned and operated by the Board of Education of Anne Arundel County as a part of the public school system.  The building fronts on Smithville Street, at the southeast corner of its intersection with South Villa Avenue.  Behind the building is an area for recreation and parking, paved with gravel or cinders with playing fields to the north.  There is a blacktop driveway along the rear of the building and a turn-around circle at the eastern end.  Paving material was piled in this circle at the time of the accident. There is a parking area on the east side of the building.  The driveway is not a part of any public road or street system, and there were no directional signs or markings.  There were no school rules or regulations[***5] with respect to traffic flow around the circle, but there was testimony that it was the practice to "go to the right and turn the circle." School buses did so in order to bring the right hand door next to the rear entrance for loading and unloading.  There was testimony that most vehicles, but not all, went to the right around the circle when turning to go out.

   The accident occurred at about 3:20 P.M. School had let out at 3:00 P.M. Parker drove into the school grounds and around the circle counterclockwise at a speed of about 15 miles per hour.  He was driving a car belonging to a boy named Hall which he had taken without permission.  Parker had no driver's license and had never driven a car "over a mile before." McGowans followed Parker into the school grounds, intending to park to the east of the building and watch a baseball game then in progress.  He was about to enter the circle in a clockwise direction when he saw Parker coming around the circle and stopped.  At [**917]that point there was an empty bus parked on his left and a car on his right.  McGowans was about to back [*137] up to allow Parker to pass and had shifted into reverse, when Parker suddenly accelerated[***6] and crashed into the left front of McGowans' car.  Parker's car caromed off, jumped a curb and knocked over a sandbox, struck the appellees and finally came to rest between two and three hundred feet from the point of impact.  Parker testified that he attempted to apply his brakes when he first saw McGowans but "hit the gas pedal instead." He would have been able to stop before colliding with McGowans' car if he had "hit the brake." All of the witnesses except Parker testified that McGowans' car was at a complete standstill before the collision, but Parker testified it was "moving" or "going slow."

   The appellees argue that negligence on the part of McGowans can be predicated on an inference that he deliberately used his automobile to blockade Parker in the traffic circle. All the testimony was to the contrary.  The mere fact that McGowans had been talking to Hall when Parker drove off in Hall's car is not enough to support the inference in the absence of any evidence that Hall asked McGowans for help in recovering his car.  The evidence hardly rises above speculation or conjecture.  The appellees' main contention is that McGowans was negligent in attempting to enter the circle in[***7] the wrong direction. But it is quite clear that the ordinary traffic rules do not apply.  Cf. Eastern Contractors v. Zinkand, 199 Md. 250, 255. Exercise of due care may require passing on the right on a private road, but McGowans had stopped before entering the circle and we think no inference of negligence can be drawn from the mere fact that he intended to enter in a clockwise direction in order to reach the parking area to the east.

   Even if we assume, without deciding, that some inference of negligence could be drawn from the fact that the appellant drove up and stopped where he did, and thus momentarily blocked the movement of the other car, we think it cannot reasonably be inferred that such action was the proximate cause of the appellees' injuries.  Both sides rely upon the case of Baltimore v. Terio, 147 Md. 330, 336, but it is distinguishable on the facts.  In that case the City appealed from a judgment recovered against it by a pedestrian who had been struck by a trash can placed so close to the curb that it was struck by the hub of a [*138] passing truck.  It was held that the question whether the result could reasonably have been foreseen was for the jury[***8] under the circumstances.  The court pointed out that the City knew of the danger and possible injury to persons on the sidewalk for it was shown that it had issued instructions to its employees to place the cans at such distance from the curb that they could not be struck by passing vehicles.

   In the instant case we think it could not reasonably have been foreseen that McGowans' action in driving up and stopping where he did would cause injury to the appellees.  The undisputed evidence is that Parker had ample room to stop, and could have stopped, without any collision, if he had applied his brakes instead of hitting the accelerator.  It can hardly be said that McGowans should have anticipated such an extraordinary result.  We think the cases of Jubb v. Ford, 221 Md. 507, and Holler v. Lowery, 175 Md. 149, are also distinguishable on the facts.  Cf. Parsons v. C. & P. Telephone Co., 181 Md. 502, 505, Liberto v. Holfeldt, 221 Md. 62, 67, and Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 387. See note on the Jubb case in 21 Md. L. Rev. 68.

   In Prosser, Torts (2d Ed.), p. 274, et seq., the learned author maintains that the whole doctrine of supervening[***9] or superceding cause is based on a false premise.  The talk of proximate causation, he thinks, [**918] obscures the real issue; the question is one of negligence and the extent of the duty owed.  "If the defendant can foresee neither any danger of direct injury, nor any risk from an intervening cause, he is simply not negligent.  * * * The more unusual, extraordinary forms of negligent conduct of adults, against which the defendant was under no obligation to take precautions, have been held to be superseding causes: the reckless or unusual driving of vehicles, * * *." See also 2 Restatement, Torts, § 447(c)(Comment g), and Note, 155 A.L.R. 157, 2 Harper & James, The Law of Torts, § 20.6, p. 1156, et seq. Under either test, we think McGowans was not obliged to anticipate the action of Parker in accelerating when he should and could have stopped before striking the appellant's car.

   Judgment reversed, with costs. 

ABW BROADCASTERS, INC., Etc. v. BILLINGS ADVERTISINGCOMPANY, INC. 
No. 237, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 170; 197 A.2d 908; 1964 Md. LEXIS 601

 March  11, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  advertising, predecessor, ownership, binding, cancelled, sufficient to support, admissible evidence, services rendered, air time, scarcely, partly, amply

COUNSEL: Nicholas J. Fotos for the appellant.

   Morris Turk for the appellee.

JUDGES: Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*171] [**908] Radio Station WABW in Annapolis was sold and transferred on May 12, [***3] 1960, by its then owner to the appellant, ABW Broadcasters, Inc.  The original owner previously had entered into four written contracts with Billings Advertising Company, Inc., whereby it engaged the advertising services of Billings (which is engaged in the business of designing, producing [*172] and placing on display advertising signs and cards in passenger vehicles throughout the United States) to promote the business and goodwill of WABW by displays on buses operating in Anne Arundel County.  Under the terms of the contracts payment for the advertising services was to be partly in cash at the rate of so much per month and partly by making radio advertising time available to Billings.

   The purchasing owner, ABW Broadcasters, gave notice to creditors under the [**909]Sales in Bulk Act (Code (1957), Art. 83, Secs. 97-101, since repealed by Acts of 1963, Ch. 538).  Its letter of April 30, 1960, advised Billings that it was due $343.00 through April 30, and requested verification.  Billings replied that the amount due was correctly stated, and added: "We also wish to advise that during the period of our agreement, air time has been accumulating for our use as spot announcements." [***4] After the transfer, Billings continued to advertise Station WABW as called for by the contracts.  When ABW fell behind in its payments and finally in writing cancelled the contracts, suit was filed by Billings, showing the cash amounts due under each contract (including the cash value as estimated by Billings of the air time due but not provided), the amounts paid on account, and the balance due.  Judge Duckett found an assumption of the contracts by ABW Broadcasters and liability under them (but less than claimed) to pay for the services rendered.

   In its appeal, ABW contends there was no evidence that it assumed the contracts, that if there was such sufficient evidence there was no consideration to support the assumption, and that the statute of frauds would have required a writing to support the assumption, which was lacking, because the undertakings on which it is said to be bound were not to be performed "within the space of one year from the making thereof" and because its alleged obligations were "to answer for the debt, default or miscarriage of another person."

   Assuming for the purposes of the consideration and decision of the case, without deciding, that the statute of frauds[***5] was applicable to any extent, it is plain that there was competent and admissible evidence before the trial court amply sufficient to support the findings and judgment appealed from. 

   [*173] The four written executed contracts were offered in evidence. There was testimony that their terms were discussed by an officer of Billings with officers of ABW, that the services called for by the contracts were performed by Billings, that ABW in various signed writings acknowledged the contracts to be in existence between it and Billings, that ABW made payments on account of the amounts due by it to Billings under the contracts and, finally, that ABW in writing cancelled the contracts, something it scarcely would have done if the contracts had not previously been recognized and accepted by it. The consideration that supported the original contracts between ABW's predecessor in ownership of Station WABW and Billings supported them after ABW assumed them.  Judge Duckett was fully justified in his decision that the contracts were binding on ABW and in the amount he determined was due by it to Billings.

   Judgment affirmed, with costs. 

YOUNG v. STATE 
No. 218, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 125; 198 A.2d 91; 1964 Md. LEXIS 596

 March  10, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment reversed and case remanded for a new trial.

CORE TERMS:  arrest, police officer, probable cause, larceny, parking lot, walking, packages, walked, parked, felony, suspicion, cautious, rapidly, flight, guilt, trunk, door, security officer, arrested, carrying, rows, reasonable grounds, station wagon, colored man, two colored, asportation, misdemeanor, slammed, handles, opened

COUNSEL: Submitted on brief by Bruce C. Williams for the appellant.

   Robert S. Bourbon, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson, State's Attorney for Anne Arundel County, and Julian B. Stevens, Jr., Deputy State's Attorney, on the brief, for the appellee.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Horney, J., delivered[***4] the opinion of the Court.  Sybert, J., dissents.

OPINIONBY: HORNEY

OPINION: [*127] [**92] We are confronted in this case with a question as to whether or not a police officer acted lawfully when he arrested the defendant without a warrant, and confiscated articles of property from an alleged accomplice, which were admitted as evidence against the defendant on his trial for larceny.

   There is no dispute as to the facts concerning the arrest and seizure.  In the evening of December 7, 1962, a security officer at a department store in Glen Burnie was notified by a store guard that "he had observed two suspects in the parking lot checking a number of cars [and] trying the door handles." The "suspects" were described simply as "two colored males."

    Remembering that he had earlier seen a county police officer (who was off duty at the time) shopping in the store, the security officer had him paged. When the police officer appeared, the security officer relayed to him the report he had received from the guard, and, together, they went out to the sidewalk in front of the store, where the police officer saw two colored men "walking through the [rows of] cars." The defendant, [*128] [***5] Robert Young, was walking thirty to fifty feet ahead of Joseph Anderson, who seemed to be following the defendant and had both arms full of "articles, packages [and] clothing." The defendant walked up to his car, a Buick, opened the trunk, and then, seeing the officers, "slammed the trunk lid back down and began walking off rapidly." Anderson just stood at the rear of the Buick holding the packages. 

   The security officer went to Anderson and the police officer went after the defendant, caught up with him, and, showing him his badge, told him he was under arrest (according to the police officer he arrested the defendant "for suspicion of larceny, investigation actually") and instructed him "to come back to the car where [the other man] was." From there both Anderson and the defendant (along with the parcels) were taken to an office in the store for questioning.

   [**93] Under questioning, the defendant "denied any knowledge of the packages," but Anderson stated that he and the defendant had broken into a car on the parking lot and taken the parcels from it, and offered to point out the vehicle to his interrogators.  He led them to a station wagon, the right wing-window of which[***6] had been broken and pried open.  Other packages were lying on the parking lot along side of the station wagon. The owner of the station wagon, having been located, identified the parcels as his, and a list of the articles and their values was made of those Anderson was carrying, and, presumably, also those found beside the station wagon. The total value, according to the list, was $179.10.  There is nothing in the record to indicate the value of such of the articles Anderson had in his possession when the defendant was arrested.

   Neither Anderson nor the defendant took the stand to testify in their own behalf, but the defendant objected to the admissibility of the list and value of the stolen articles as evidence against him.

   The defendant, tried by the court without a jury, was convicted of felonious larceny and sentenced to two years in prison.  On appeal, the questions presented are: (i) whether his arrest was lawful; (ii) whether the evidence used to convict him was legally obtained; and (iii) whether the evidence was sufficient to convict him of larceny.

   [*129] (i) and (ii)

   The contention of the defendant is that, if the arrest was unlawful, then the articles of property[***7] seized as a result of the arrest were illegally obtained and should not have been used as evidence against him.  We agree.  For, if in fact the arrest of the defendant was not lawful, it is clear that the articles seized by the police (or a list thereof and their values) were inadmissible as evidence over the objection of the defendant.  Belton v. State, 228 Md. 17, 178 A. 2d 409 (1962); Mapp v. Ohio, 367 U.S. 643 (1961).

   Was the arrest of the defendant unlawful?  We think it was.
 
   Since the police officer did not have a warrant when he arrested the defendant, the applicable rule is, as stated in Mulcahy v. State, 221 Md. 413, 421-422, 158 A. 2d 80 (1960), that the officer lacked authority to make the arrest unless he had reasonable grounds or probable cause to believe that a felony had been or was being committed and that the person arrested had committed or was committing the offense.  See also Edwardsen v. State, 231 Md. 332, 336, 190 A. 2d 84 (1963), and Bowler v. Warden, Maryland Penitentiary, 219 F. Supp. 25, 27 (D. Md. 1963). As was pointed out in Mulcahy and Edwardsen, reasonable grounds or probable cause exists when the facts and circumstances [***8]within the knowledge of the officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious man believing that a felony had been committed.

   The only information that the police officer had before going to the parking lot was that the suspects were "two colored males" and that they were "trying the door handles" of automobiles parked on the lot, which, at most, was a misdemeanor. There is no reason to doubt the reliability of the information the police officer had received, but it is apparent that the description of the men and their actions was too indefinite and uncertain for the police officer to have had probable cause to believe that the men he subsequently saw in the lot were the same persons that had been reported to him by the guard: the record shows that he did not.  When he was asked on crossexamination whether he knew that the two men he saw on the lot "were the same men the guard at the door was talking [*130] about," he frankly replied "no sir." Moreover, when the police officer went out to [**94] the parking lot to see for himself what was going on, the only additional knowledge he acquired was that a colored man [***9]-- walking through the rows of parked cars followed by another colored man carrying packages in both arms -- went to one of the automobiles, opened the trunk, slammed it shut and walked away rapidly. But this additional knowledge, even when coupled with the information he already had, was not enough in our opinion to lead a reasonably cautious man to believe that a larceny was being or had been committed, the essential elements of which, as stated in Putinski v. State, 223 Md. 1, 3, 161 A. 2d 117 (1960), are the "fraudulent taking and carrying away of a thing without a claim of right, with the intent of converting it to a use other than that of the owner, without his consent." Compare the circumstances in this case with those in such cases as Price v. State, 227 Md. 28, 175 A. 2d 11 (1961); Williams v. State, 226 Md. 614, 174 A. 2d 719 (1961), cert. den. 369 U.S. 855 (1962); and Edwards v. State, 196 Md. 233, 76 A. 2d 132 (1950), in all of which it was held that the police had reasonable grounds or probable cause to make the arrests. See also Shorey v. State, 227 Md. 385, 177 A. 2d 245 (1962). Here, however, the police officer did not know that a felony had[***10] been committed at the time of the arrest and what he saw did not amount to a misdemeanor.

   Although it was said in Price v. State, supra, at p. 33, that "flight, though not conclusive, is usually evidence of guilt" -- see also Tasco v. State, 223 Md. 503, 165 A. 2d 456 (1960) and Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957) -- there must exist other apparent circumstances upon which to base a reasonable assumption of guilt which was lacking here.  In addition to this, in the cases last cited, the defendants literally ran from the police or scene of the crime, while in the present case the defendant just walked away rapidly.

   At the trial, the police officer described the actions of the defendant "as being suspicious." The phrase seems to accurately sum up the activity the officer had observed, which, not improbably, and indeed, reasonably, could have been the actions of an innocent person.  In any event, there "must be more than mere suspicion" to support a reasonable belief of guilt. Price [*131] v. State, supra, p. 33; Braxton v. State, 234 Md. 1, 197 A. 2d 841 (1964). See also Brinegar v. United States, 338 U.S. 160 (1949); 5 Am. Jur. 2d, Arrest, [***11]§ 45; and 4 Wharton's Criminal Law and Procedure (Anderson ed. 1957), § 1612.

   We hold that the arrest of the defendant was unlawful and that the evidence used to convict him was inadmissible.

   (iii)

   Because of our holding on the first and second points, there is no reason to consider the third point.

   Judgment reversed and case remanded for a new trial.

DISSENTBY: SYBERT

DISSENT: Sybert, J., filed the following dissenting opinion.

   I believe that when the police officer arrested the appellant he had probable cause to believe that either a felony or a misdemeanor was being committed in his presence, namely, the larceny of goods of a value either above or below $100.00, and that the appellant was a participant in the crime.  It is elementary, of course, that the officer could arrest for a crime, regardless of its grade, if committed in his presence.

   The accumulated factors present prior to the actual arrest supplied the probable cause, in my opinion.  The police officer -- within minutes of the fact -- received reliable information that two colored men were in the parking lot "checking a number of cars [and] trying the door handles." Such activity, with respect to one automobile, [***12] [**95] would mean little or nothing -- the men might be in lawful possession of that car; but, directed at several vehicles, such activity could only induce a reasonably cautious person to believe that the tamperers intended to steal either an automobile or such valuables as they might find in one.

   When the police officer and the security officer emerged from the store they saw two colored men (who later proved to be the appellant and his co-defendant, Anderson) on the parking lot, about 75 feet from the building.  Anderson had "both arms loaded with all sorts of articles, packages, clothing." There were so many articles, the police officer testified, that Anderson could [*132] not possibly have loaded himself.  He appeared to be following the appellant, who was walking thirty to fifty feet ahead.  The men were threading their way across the rows of parked cars, not down an aisle between the rows. The aisles led away from the store, and the police officer testified, without objection, that if Anderson "had been in the store buying articles he would have been walking away from the store," instead of parallel to it, as he was.  This fact would support a reasonable inference[***13] that the articles had been obtained from one of the cars parked on the lot.

    It might be argued that up to this point the officers only had reason for suspicion that a crime was being committed in their presence.  But what happened next, added to the facts already recited, afforded reasonable ground, in my estimation, for their belief that they were witnessing the asportation of goods that had just been stolen with the complicity of the appellant.  The latter (who was carrying nothing whatsoever), followed by the burdened Anderson, walked up to his own car and opened the trunk. Then, looking up, he saw the officers, slammed the trunk closed, and walked off rapidly, literally leaving Anderson "holding the bag." Thus, the appellant tagged himself as an accomplice.  The arrest followed.

   I think that the grounds for making the arrest were at least as reasonable as were the grounds for the arrest in the case of Price v. State, 227 Md. 28, 175 A. 2d 11 (1961), which case is sought to be distinguished in the majority opinion herein.  In that case police officers, responding to a call about a prowler on a bitterly cold night, found the defendant in the vestibule of an apartment residence, [***14] with marks which were said to look like pry marks on the inner door, although no implement was observed or found on the defendant or in the vestibule.  Pointing up the weight that may be attributed to flight, Chief Judge Brune's opinion for the Court said (at p. 33 of 227 Md.):

   "When the police officers found the appellant in the vestibule, they were there in response to a call about a prowler * * *, they were aware of the very early hour of the morning, the marks on the door looking like pry marks were visible and they found the appellant [*133] at and more or less facing the inner door. These facts plainly gave the officers good cause to question the appellant as to why he was there and what he was doing.  Instead of explaining, he muttered something and bolted immediately.  Flight, though not conclusive, is usually evidence of guilt. * * * With flight added to the other facts already apparent to the officers, even if not before (and as to the prior situation we express no opinion), the officers, we think, had probable cause to believe that the appellant had just been engaged, in their presence, in committing or attempting to commit burglary."
 
Judge Brune also[***15] observed (at pp. 33-34 of 227 Md.) that Brinegar v. United States, 338 U.S. 160, shows that probable cause "means a reasonable ground for a belief of guilt, which is less than evidence which would justify condemnation or conviction, but must be more than mere suspicion. 'Probable cause exists where "the facts and circumstances within [**96] their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.' (338 U.S. 175-176)."

   In the case before us, I think the facts existing at the time of the arrest mounted up to more than a mere suspicion of guilt on the part of the appellant, and were sufficient to justify a reasonably cautious person in believing that an offense, participated in by the appellant, was being committed.  I don't think the speed of the appellant's flight is significant -- he tried to get away.

   Asportation is a necessary and integral part of larceny. Putinski v. State, 223 Md. 1, 3, 161 A. 2d 117 (1960); Hochheimer's, Criminal Law (1911), sec. 68; 2 Bishop, Criminal Law, (9th Ed.) sec. [***16] 794.1.  In fact, prosecution for larceny may be had in any jurisdiction in which the asportation occurs. Worthington v. State, 58 Md. 403 (1882); Hochheimer, supra, sec. 113. Asportation of goods just stolen is what happened in the presence of the officers in the instant case.  I think that the arrest of the appellant was lawful, that the articles [*134] taken from the automobile were properly admitted in evidence, and that all the evidence was sufficient to support the conviction of the appellant.  I would affirm. 

SULLIVAN v. SULLIVAN 
No. 229, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 67; 197 A.2d 910; 1964 Md. LEXIS 589

 March  9, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: That part of the decree granting the husband a divorce is reversed. That part of the decree which refused the wife a limited divorce is neither affirmed nor reversed, but is remanded for further proceedings not inconsistent with this decree.  The husband to pay the costs.

CORE TERMS:  divorce, desertion, voluntary separation, sexual relations, night, chancellor, clothes, decree, spouses, pack, marital relations, helped, voluntary agreement, condonation, cross-bill, condoned, marriage, clothing, truck, reconciliation, corroborated, absolute divorce, husband and wife, wife testified, supplemental, conversation, occurring, deserted, bathroom, suitcase

COUNSEL: Thomas J. Wohlgemuth, with whom were Smith & Wohlgemuth and Michael Demyan on the brief, for the appellant.

   Richard S. Clark, with whom was Howard L. Muhl, Jr., on the brief, for the appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*69] [**911] The Chancellor granted a husband an absolute divorce on the ground of a voluntary separation of the parties for eighteen months; he denied the wife's request for a divorce a mensa et thoro (based upon an alleged desertion); he awarded custody of the parties' six minor children to the wife; and he ordered the husband to pay the wife sixty dollars per week for the children's support.  The wife, alone, has appealed.

   The questions posed by the parties are: (1) was there sufficient evidence to justify a decree divorcing the parties on the ground of their having voluntarily lived separate and apart for the statutory period; and (2) was there sufficient evidence to require a decree in favor of the wife for a divorce a mensa et thoro?[***5]

   The record reaches us in a rather unsatisfactory condition.  The evidence is scanty and conflicting; and the Chancellor filed no opinion making any findings of fact.  It would seem to have been most desirable for counsel, who intended to appeal, to have invoked Maryland Rule 18 (c), so that the parties and this Court would have had the benefit "of the grounds for [the Chancellor's] decision." Compare Levy v. Levy, 229 Md. 103, 181 A. 2d 663. It is obvious, however, from his decree that the Chancellor found that the parties had "voluntarily lived separate and apart, without any cohabitation, for eighteen consecutive months prior to the filing of the bill of complaint, and such separation [was] beyond any reasonable expectation of a reconciliation," Code (1963 Cum. Supp.), Article 16, Section 24, and that his finding was not based upon the husband's testimony alone, but the same had been corroborated. Code (1957), Article 35, Section 4; Maryland Rule S75.  The above findings necessarily included a finding that the husband, who, as we shall soon see, actually left the parties' place of abode, did not desert the wife.  We proceed to an examination of the testimony to see if the[***6] findings were justified.

   The parties were married in March of 1946 in Connecticut, but had lived in Maryland for eleven years before the institution of these proceedings.  The husband is a traveling washing machine repairman.  Six children, ranging now in age from six [*70] to fourteen years, were born as a result of the marriage. During the summer of 1961, the children spent their vacation in Connecticut with the wife's family.  The wife testified that her husband told her that he intended to leave the home, and would leave, before the children returned to begin school in the fall, and the husband did not deny that he had made the statement.

   The children returned without his having left, but after supper on August 16, 1961, matters came to a head.  The husband testified that he did not want to leave the home, but: "the final thing I blew my stack on was I come in and I couldn't get in the bathroom because of dirty clothes and the floors and the bath tub full.  Just the house in a mess.  The dishes were in a pile stacked up in the sink." And this had been going on, over his protestations, for a long period of time.  He told his wife that he "had taken all [he] could take," [***7]and she said, "Well, then you leave, I think it is the best thing to do * * *.  I will pack your clothes." (This statement attributed to the wife was flatly denied by her.) He then went out and found a place to live, and when he returned with two friends and a truck, she had most of his clothing packed.  He and his friends placed his clothes and a few articles of personal property in the truck and he left.  He left "because [he] couldn't stand it anymore." Since leaving, he claims that he has never had sexual relations with his wife.  He admitted his wife had requested him to return, but [**912] couldn't "swear" whether it was around Christmas of 1961 or not.  He did not think he had ever "spent the night" at his former home after leaving, but the "night of Christmas [presumably of 1961] was questionable."

   Two days after he left, he came back and asked his wife to sign (at the insistence of his bank) a note with him, so that he could procure furniture for his new apartment, and this she did.

   The only witness offered by the husband was one of the friends who helped him move.  He stated that the husband told him he was going to leave and asked the witness to help him move. [***8] When he got to the house, the oldest girl, Jackie, was coming down from upstairs carrying a suitcase, and the wife was coming out of the bedroom with some clothes. When asked if the wife helped "to move the stuff out," he replied that she [*71] was "bringing it" out to the living room and he and the husband carried "it" to the truck. The wife did not "appear" to be mad, but she "did appear" to be cooperative.

   The wife testified that her husband had threatened to leave her for years, and he finally told her that "he was leaving and that there was nothing [she] could do." He had told her, as we stated above, he was going to leave before the children returned from Connecticut, but he did not do so.  She had to go alone to bring them back, and, after they were back a week or so, the husband brought in "two men one night unannounced," took what he wanted, and left in a truck. She knew that he was planning to leave, but not on the particular night that he did; consequently, the clothing that he was going to take was not packed and ready for him, as he had testified.  She emphatically denied that she wanted him to leave or ever told him to do so, but on the contrary, she "would[***9] have done anything to keep him home for the sake of the children."

   She stated that she helped her husband pack his clothes, and gave her reasons for doing so.  She realized she "couldn't take this husband of mine and hog-tie him down to a chair and physically force him to stay." The six children were "under a severe emotional shock," and were "crying and upset." Her husband was packing ("just throwing") clothes into bags, so she suggested that he use a suitcase. He said that he did not have one, so the oldest girl went upstairs and got the children's suitcases, and she and the daughter "to help we just helped him pack," but his leaving "was not on a voluntary basis * * * so far as [she] was concerned."

   After his departure, she had on many occasions requested him to return, and the children had done likewise.  On the night of Christmas, 1961, her husband spent the night at her home and slept with her.  On this occasion and innumerable others, she had had sexual relations with him, the last such occasion being in November of 1962.

   She further testified that she did not believe there was any hope of a reconciliation, because "an awful lot of water has gone over the dam," she has [***10]had "to make a new adjustment to [her] life," she has had to go to work, and has had "quite a lot of psychological problems with the children," one daughter [*72] has "turned epileptic," and her husband doesn't take any interest, so she "just know[s] that it is hopeless."

   Her version of why she signed the note so that her husband could procure furniture was that "he couldn't make up his mind whether I would end up with the [family] car." The bank would not make her husband a loan unless she also signed the note.  She told him she would sign his note, if he would assign the title to the car to her.  He agreed and she signed the note.  He finally assigned the title to her after demanding, and receiving, an additional one hundred dollars from her.

   Since the issues between the parties, as we set them out above, are clearly defined, it will be unnecessary to state her testimony [**913] relative to the children's clothing and alleged dirty dishes; nor will it be necessary to state what is reasonably to be expected with six young children and two parents living in what was apparently a comparatively small residence with one bathroom. 

   The wife originally instituted suit on[***11] October 2, 1961, for a limited divorce on the ground of desertion. The husband answered and filed a cross-bill alleging constructive desertion. Thereafter on April 26, 1963, the husband filed a supplemental bill praying an absolute divorce on the ground of voluntary separation, and the wife answered the same.  No question is raised concerning the pleadings or the legal effect, if any, of the allegations in the husband's original cross-bill; hence, we express no opinion relative thereto.

   As used in our statute, and as construed by many decisions of this Court, a voluntary separation as a ground for divorce connotes and requires a mutual agreement between the husband and wife to live separate and apart with a common intent not to resume marital relations. Matysek v. Matsyek, 212 Md. 44, 128 A. 2d 627, and the many cases therein cited at page 47.

   The appellee in the case at bar attempts to bring himself within the ambit of Matysek, because he testified that, after he told his wife he had taken all he could, she stated, "Well, then you leave, I think it is the best thing to do," and in Matysek the husband told the wife to "Get out," and she said, "All right," and did so. [***12] However, in that case the conversation constituting the agreement was specifically corroborated by a witness [*73] and not disputed by the husband.  In the case at bar, no witness confirmed the alleged conversation between the husband and wife, and the wife flatly denied the part thereof attributed to her.

   But, argues the appellee, his version of the conversation is corroborated and confirmed by his wife's helping him to pack his clothes and her signing of the note.  We think the wife's explanation of both of these incidents was reasonable, and her conduct was not such as to manifest a voluntary agreement upon her part to live separate and apart.  This Court held in Lloyd v. Lloyd, 204 Md. 352, 104 A. 2d 595, that a separation, which was not established to be voluntary at its inception, did not, under the circumstances of that case, become voluntary because the wife took some household furnishings to her parents' home where she had gone to live, agreed to the sale of the spouses' former home and accepted part of the proceeds of the sale, and her attorney indicated that she would agree to a divorce if the husband would give her $4,000, and the wife stated to the husband, [***13] "so far as I'm concerned we are through." It seems to us that the evidence in the case at bar, relative to the conduct of the wife, does no more than to bring it within the scope of what Judge Hammond, for the Court, said in Stumpf v. Stumpf, 228 Md. 350, 351, 179 A. 2d 893: "This Court * * * recently repeated what prior cases had said from time to time in regard to a separation of spouses -- 'acquiescence to or assent to what one cannot prevent does not amount to a voluntary agreement thereto.'" And a realization by both spouses that their separation is final does not, ipso facto, establish an agreement that they will live separate and apart. Beck v. Beck, 180 Md. 321, 24 A. 2d 295; Lloyd v. Lloyd, supra. We, therefore, hold that the Chancellor was in error in granting the appellee a divorce a vinculo matrimonii.

   II

    This brings us to a consideration of whether the wife should have been granted a limited divorce. We have held above that the evidence failed to establish a voluntary separation of the parties.  Yet, evidence which is uncontroverted shows that the husband left the marital residence on August 16, 1961, and has [*74] never returned to reestablish[***14] the full conjugal relationship.  He does not rely on any conduct of the wife to justify his leaving, other than the [**914] alleged voluntary separation. (We pointed out above that he complained of children's clothing in the bathroom and dirty dishes, but these factors were not relied upon to warrant his leaving. Compare Stecher v. Stecher, 226 Md. 155, 172 A. 2d 515.) And he admits there is no reasonable expectation of a reconciliation, although this is not an essential factor in a divorce a mensa.  Thurlow v. Thurlow, 212 Md. 222, 129 A. 2d 170. In addition, he conceded that the wife had requested him to return, and he raises no question as to the sincerity and good motives of the request.  The evidence, we think, clearly establishes the husband left the home and he intended not to resume the connubial relationship.  Ordinarily under these circumstances, a wife is entitled to a divorce on the ground of abandonment.

   However, the wife's original bill was filed on October 2, 1961, alleging she was deserted in August of 1961.  She testified that she continued to have sexual relations with her husband thereafter on any number of occasions down until November 1962, some[***15] thirteen or fourteen months after instituting these proceedings.  She stated that, "he would call me up at any hour of the night," and sometimes would ask if the children were in bed so he could come down and see her for the purpose of sexual relations. It will be noted that this is not the case of a wife alleging cruelty of treatment, claiming fear, coercion or duress, compare Sullivan v. Sullivan, 223 Md. 74, 162 A. 2d 453, but a wife, who asserts desertion in August of 1961 as her cause of action, and not only admits, but insists, that she freely and voluntarily copulated with her husband on many occasions until November of 1962.

   There can be little doubt that under the above circumstances the wife condoned and terminated any desertion by the husband existing before her last act of sexual relations with her husband in 1962.  Such relations are legally compatible only with marriage, not with separation.  As was stated by Judge Markell, for the Court, in Smith v. Smith, 198 Md. 630, 634, 84 A. 2d 890: "the marital relations in August * * * amounted in law to a termination of any existing desertion * * *.  * * *.  [*75] To constitute condonation, other conduct [than[***16] sexual relations] may require evidence of intent, but we think the sound view is that the law itself ascribes to marital relations the conclusive effect of condonation [explained in Sullivan v. Sullivan, supra] and specifically of terminating desertion. * * *.  The concept of 'constructive desertion', when the deserter and the deserted continue to live under the same roof, cannot make out of marriage a hybrid status of separation with occasional concubinage." The latter, stated in slightly different language, is that the law does not permit separated spouses to litigate by day and copulate by night. The cases and text writers are legion in support of the above.  To cite but a few, see McGovern v. McGovern, 160 A. 822 (N. J.); 27A C.J.S. Divorce, § 61 d.; Collins v. Collins, 193 So. 702 (La.); Trussell v. Trussell, 177 A. 215 (Pa. Super.); Rushmore v. Rushmore, 168 A. 614 (N. J.); Shirey v. Shirey, 112 S. W. 369 (Ark.); Davidson v. Davidson, 10 A. 2d 197 (Vt.); Wright v. Wright, 43 N. W. 2d 424 (Nebr.); Phinizy v. Phinizy, 114 S. E. 185 (Ga.); DeBerry v. DeBerry, 177 S. E. 440 (W. Va.); 1 Nelson, Divorce and Annulment (2nd ed.) §§[***17] 11.03, 11.10.  Compare Kline v. Kline, 179 Md. 10, 16 A. 2d 924. We hold that the wife condoned any existing desertion by the husband prior to November of 1962.

   This brings us to a situation where, at the trial below, a wife had filed a bill for divorce on the ground of desertion occurring in August of 1961 and she had condoned any such desertion prior to November, 1962, but, possibly, there was a desertion of her by the husband after that date but before the case was heard on May 1, 1963.  Clearly, the Chancellor could not have granted her a divorce for the cause alleged in her original bill, nor was [**915] he, under the pleadings, entitled to consider any new ground for a divorce occurring after the filing of her bill.  Kirkwood v. Kirkwood, 165 Md. 547, 170 A. 180; Besche v. Besche, 209 Md. 442, 121 A. 2d 708; Smith v. Smith, 216 Md. 141, 140 A. 2d 58; Jones v. Jones, 117 P. 414 (Ore.); Collins v. Collins, supra; Orens v. Orens, 102 A. 436 (N. J.); Lee v. Lee, 51 Ill. App. 565. Formerly in Maryland, where a new cause of action for divorce by a plaintiff arose after the institution of divorce proceedings, it was necessary to institute [*76] [***18]a new suit based upon the new ground, even though such ground arose before the trial of the first suit.  Smith v. Smith, supra.  However, since that case was decided, this Court has adopted Maryland Rule S72 c., which provides: "A supplemental bill alleging grounds for divorce subsequent to the filing of the original bill shall be permitted." Compare Maryland Rule 379.  We think that the wife should be afforded an opportunity, if she so desires, to file a supplemental bill and establish, if she can, a desertion of her by the husband after November, 1962.

   The case of Tarr v. Tarr, 164 Md. 206, 164 A. 543, is readily distinguishable from the one at bar.  In that case the husband filed suit for an absolute divorce on November 13, 1931, alleging three years' prior desertion. The wife filed a cross-bill, on February 6, 1932, for a limited divorce on the ground of desertion. She testified sexual relations ceased on November 29, 1931, more than two months before the filing of her cross-bill. The Court rejected the husband's claim and granted the wife a limited divorce, which, in Maryland, may be granted without regard to the duration of the abandonment.

   The decision of this Court[***19] will not, of course, affect the provisions of the decree relating to the custody of the children, the payments for their support or the payment of the solicitor's fee.

   That part of the decree granting the husband a divorce is reversed.  That part of the decree which refused the wife a limited divorce is neither affirmed nor reversed, but is remanded for further proceedings not inconsistent with this decree. The husband to pay the costs. 

STATE v. EWELL 
No. 236, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 56; 198 A.2d 275; 1964 Md. LEXIS 586

 March  6, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  time spent, sentence, jail, parole, original sentence, mental institution, arrested, confined, penal, removal, entitled to credit, prison authorities, sentenced, convicted, insane, statutory burglary, penal institution, convict, suspend, parole supervision, legal construction, attempted suicide, leave to appeal, awaiting trial, question posed, open to review, stand trial, recovered, credited, disallow

COUNSEL: Robert S. Bourbon, Assistant [***3]  Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson, State's Attorney for Anne Arundel County, and Julian B. Stevens, Jr., Deputy State's Attorney, on the brief, for the appellant.

   W. Harvey Beardmore for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*57] [**275] In this application by the State for leave to appeal from the granting of post conviction relief by Judge Duckett in the Circuit Court for Anne Arundel County, we granted leave to appeal and heard argument.  The question posed is whether the trial court properly allowed credit to the appellee, against the period of confinement [**276] under his original sentence of five years, for the time spent in Crownsville State Hospital.

   The facts disclosed by the record show that Ewell was convicted of statutory burglary on April 14, 1958, and given an indeterminate sentence not to exceed five years.  On January 25, 1960, he was paroled.  On March 10, 1960, he was again arrested and charged with statutory burglary. While awaiting trial in the Annapolis jail, [***4] he attempted suicide and was sent to Crownsville, a State hospital for the insane. He testified that he was sent there by Judge Michaelson, presumably under Code (1957), Art. 59, secs. 9 or 11.  Cf. Hazel v. State, 226 Md. 254, 262. But the record does not show it, and it is possible that [*58] he was committed upon the certificate of two physicians under Code (1957), Art. 59, sec. 1, or upon petition of the jailer under Code (1957), Art. 27, sec. 711.  In any event the staff of Crownsville evidently considered him to be mentally deranged, for he remained there for 377 days.

   On May 10, 1961, Ewell was discharged from Crownsville as recovered and able to stand trial. He was returned to the Annapolis jail. On May 12, 1961, he was tried and convicted by Judge Michaelson and sentenced to ten years in the House of Correction.  The order did not specify when this sentence should begin, and the prison authorities correctly calculated that it should begin at the end of the original five year term.  See Code (1957), Art. 41, sec. 125.  Cf. Burkett v. Warden, 214 Md. 603, and Justice v. Warden, 203 Md. 651. But in arriving at the discharge date, the prison authorities added[***5] the 473 days during which Ewell was absent from the House of Correction on parole, although it clearly appears that for 377 days of the period he was confined in Crownsville. The Board of Parole and Probation held a hearing on July 28, 1961, and revoked the parole previously granted, without credit for the time spent outside the prison.  When the matter was raised on petition for post conviction relief, Judge Duckett ruled as a matter of law that the petitioner was entitled to credit for the days spent in Crownsville and ordered and declared that the new sentence began on May 18, 1962, instead of on May 30, 1963.

   Maryland Rule 764 provides that "[t]he court may correct an illegal sentence at any time." Code (1963 Supp.), Art. 27, sec. 645A authorizes a proceeding "to set aside or correct the sentence" if "the sentence exceeds the maximum authorized by law, or * * * is otherwise subject to collateral attack * * *." We think the proper legal construction of the sentences is open to review on post conviction.  See Burkett v. Warden, supra (a habeas corpus case).  This is not a case of modification or reduction of a sentence, but the question posed is simply one of statutory construction, [***6] as applied to virtually undisputed facts.  The State argues that the trial court had no power to modify a revocation of parole because discretion is granted to the Board of Parole and Probation under Code (1957), Art. 41, sec. 115.  It is true that the Board has discretion under that [*59] section to allow or disallow credit for "the time spent in the community under parole supervision." Cf. Chase v. Warden, 216 Md. 627, and Mayo v. Warden, 231 Md. 635. But time spent in a mental institution can hardly fall into that category.  We must look to other statutory provisions for a solution.

   If the insanity or mental illness had developed while Ewell was confined in the House of Correction, and he had been removed to Crownsville from there, it is perfectly clear that his sentence would continue to run and not be suspended. Under Code (1957), Art. 27, sec. 700 (sec. 698 of the 1963 Supp.) "the prisoner shall be regarded during the time of such removal as remaining in custody of the penal institution to which he has been sentenced [**277] for the purpose of determining the time when he shall be released from such sentence." Code (1957), Art. 59, sec. 43, provides that removal[***7] of a convict to an asylum in the manner there prescribed does not suspend the running of the term.  If Ewell had been sent to Crownsville as a "convict confined in any jail * * * [who] shall become insane or lunatic," under the procedure set out in Code (1957), Art. 27, sec. 711, it also appears that his removal to a "sanatorium, hospital or other place where he may receive care and treatment," would not suspend the running of the sentence. In Eggleston v. State, 209 Md. 504, we held that the statute dealing with defective delinquents did not allow similar credit for time spent in examination at Patuxent Institution but the Legislature promptly amended the statute to allow it.  Caparella v. State, 214 Md. 355, 358.

   We are not here concerned with the question whether a trial judge is or is not required to allow credit against a sentence for time spent in a mental institution pending trial.  We have held that an accused is not entitled to credit as of right for time spent in jail, at least where the total does not exceed the statutory maximum, Hands v. Warden, 205 Md. 642, Ramberg v. Warden, 209 Md. 631, 633. Cf. Eggleston v. State, supra, and Calp v. Warden,[***8] 216 Md. 629, 631. The question here relates to the termination of the first sentence.

   We think Judge Duckett was correct in holding that time spent in Crownsville should be credited against the first sentence. If the appellee had been arrested for violation of parole [*60] and returned to the House of Correction instead of being held in the Annapolis jail, and had he displayed the same symptoms and been removed to Crownsville, it seems clear that he would have received credit.  It would seem illogical that a different result should follow from the mere circumstance that he was removed while being held in one penal institution or another.  As we have noted the Legislature has indicated that jails are to be treated in the same way as the other penal institutions, insofar as credit is concerned.  Cf. Baker v. State, 205 Md. 42, 45. But see Hopkins v. North, 151 Md. 553.

   Courts in other states have generally held that time spent under detention in a mental institution should be counted as a part of the sentence served.  See State ex rel. Siehl v. Jorgenson, 224 N. W. 156 (Minn.); In re Stearns' Petition, 175 N. E. 2d 470 (Mass.); cf. People ex rel. Molina v. Noble, [***9]216 N. Y. S. 2d 541; Note, 62 A.L.R. 246; 24B C.J.S. Criminal Law, § 1995 (4).  There is a clear distinction between time spent in a mental institution and time spent at liberty, on parole, or in out-of-state penal institutions.  Calp v. Warden, supra.

   Order affirmed, with costs. 

PERRY v. STATE 
No. 206, September Term, 1963
 
Court of Appeals of Maryland
 
234 Md. 48; 197 A.2d 833; 1964 Md. LEXIS 584

 March  5, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  shooting, photographs, murder case, requested instruction, deceased, shot, self-defense, arm, assailant, attacked, violent, beyond a reasonable doubt, ball park, posthumous, wording, properly refused, legal right, encounter, proviso, sufficient to support, second degree murder, abuse of discretion, closing argument, baseball game, inflame, believability, altercation, exhibited, discredit, advisory

COUNSEL: Bernard B. [***3]  Feikin and Jacob D. Hornstein for appellant.

   Richard M. Pollitt, Special Attorney, with whom were Thomas B. Finan, Attorney General, and Marvin H. Anderson, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Henderson, Hammond, Prescott, Horney and Marbury, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*49] [**834] From his conviction by a jury of murder in the second degree, the defendant (Jule Britt Perry) has appealed.  The questions on appeal concern: (i) the sufficiency of the evidence to take the case to the jury and to support the finding of a verdict [*50] of guilty; (ii) the correctness of the jury instructions; and (iii) the admissibility and exhibition of posthumous photographs of the deceased.

   [**835] On the afternoon of September 9, 1962, immediately following an amateur baseball game, two of the spectators, Avery Carter and Edison Alonza James, were shot by a third, the defendant, who, according to his own testimony, was wielding a .22 caliber revolver "about as long as a cigarette pack." Carter died as a result of the shooting.
 
   About three years before the day of the killing, the[***4] defendant had suffered and been treated for intravascular coagulating of his blood and, as a result of taking an anticoagulant prescribed for his condition, had become a hemophiliac.  He had been told by his physician to avoid situations in which he might be bruised or cut.  The defendant stressed this illness, implying that because of his condition, he would not ordinarily risk becoming involved in a brawl.

   The defendant's version of the events leading up to and occurring at the time of the shooting (which were largely corroborated by his wife, who, with a four-year old son, had accompanied him to the game) is almost altogether different from the account given in court by James, the victim who survived, and others who saw what happened and testified at the trial for the State.  In a statement to the police, the defendant said that as he was leaving the ball park "this fellow James * * * started saying what happened before." (The defendant and James had had an altercation about a month before at which time the defendant claims James threatened him with a shotgun but James denied that he had done so.) He also told the police that James' cousin (Avery Carter, the deceased victim) "walked[***5] up * * * pulled out a razor [and] thats when I shot him, and James, both of them." In a second statement made later, the defendant added that James "was holding [a] beer bottle by the head and I thought he was going to hit me with it." The defendant claimed that he had armed himself on the day of the shooting because he was afraid of James.  He stated that he shot Carter when he was two arm's lengths from him and fired at James when he was three arm's lengths away.  The [*51] defendant's wife testified that her husband "backed all the way up to a tree" before he fired the revolver. 

   On the other hand, the account of the incident given by James in court (which was substantiated by other witnesses to the occurrence) was to the effect that as he was on the way out of the ball park after the game, the defendant called him, and that after he and Carter had walked over to the defendant, he said: "James, you remember the argument we had down in front of your house?  * * * Well, it's gonna be settled here." James further testified that "that's when he shot me two times and he turned around and hugged Avery [Carter] and shot him."

   A police officer who arrived at the ball park shortly[***6] after the shooting said that he found Carter on the ground with his left hand in his pocket.  The ambulance driver, who removed Carter from the park, testified that Carter's left hand was in his pocket clutching a closed straight razor.

   (i)

   It is axiomatic that the weight to be given to evidence and the believability vel non of witnesses are matters for the jury to determine.  Duffin v. State, 229 Md. 434, 184 A. 2d 624 (1962); Wright v. State, 222 Md. 242, 159 A. 2d 636 (1960); Judy v. State, 218 Md. 168, 146 A. 2d 29 (1958). We think it is apparent that the evidence the State produced was enough to take the case to the jury and, if believed by it (as it must have been), was sufficient to support the finding that the defendant was guilty of second degree murder beyond a reasonable doubt.

   (ii)
 
   After all of the evidence was in, a total of thirteen requests for instructions (two were lettered A and B and the others were numbered 1 through 11) were presented by the defendant to the trial court.  The exceptions, taken at the conclusion of the [**836] charge to the jury on the ground that the charge failed to cover the substance of the requested instructions, were [***7]denied.  While the court did not give any of the instructions in the exact wording of the requests, it did include the substance of such of those as were appropriate in its advisory instructions to the [*52] jury, and such as were not proper were refused.  The requested instruction A, which was apparently intended as a motion for a judgment of acquittal, was properly denied, and the substance of B was included in the charge by the court advising the jury that malice "means done intentionally and without excuse." Likewise, the essence of requested instructions one, two and three, concerning the burden of the State to prove its case against the defendant beyond a reasonable doubt, was fully covered in the instructions.

   One of the principal contentions of the defendant is that the court failed to give the jury "explicit instructions with respect to the law of self-defense." On the contrary, we think the instructions on this point were more than was required by the evidence.  After explaining to the jury that the burden of proving that he acted in self-defense was on the defendant, the trial judge specified in detail what could and could not lawfully be done by the accused to defend[***8] himself from physical injury by an assailant, and then added that "when a person has reasonable grounds to believe, and does believe, that another intends to kill him or to do him serious bodily injury, that person has the right to arm himself with a weapon, such as a gun or knife, in order to defend himself in the event he is attacked or threatened with an attack by such others." The court, however, did not inform the jury, as it properly should have done, that the right to arm one's self was qualified by the proviso that such person should be "one who is not in any sense seeking an encounter." Gunther v. State, 228 Md. 404, 409, 179 A. 2d 880 (1962). See also Bennett v. State, 230 Md. 562, 567, 188 A. 2d 142 (1963); Crawford v. State, 231 Md. 354, 361, 190 A. 2d 538 (1963). The fourth through the eighth and the tenth and eleventh requested instructions (we shall consider the ninth separately), all of which concerned the plea of self-defense, were, with the exception of the seventh and eleventh, included in the jury charges.  We think these requests were properly refused because they were not supported by the evidence.  Duffin v. State, supra, at p. 436; Bruce v. [***9]  State, 218 Md. 87, 97, 145 A. 2d 428 (1958). The seventh requested instruction would have improperly advised the jury that it had a right "to consider the evidence of the violent and dangerous character of [*53] his assailants as known to the defendant in determining the reasonableness of the defendant's apprehension of danger" and in so doing "to also consider the medical testimony * * * as to his physical health and state of mind." There is nothing in the record to show that the defendant knew, or knew of, the deceased victim Carter prior to the shooting. As to the surviving victim James (whom the defendant is not charged with assaulting in this case), there was no evidence that he had a "violent and dangerous character" other than the self-serving statement that the defendant was afraid of him and the controverted evidence of a single altercation between James and the defendant on a prior occasion.  We think the evidence in this case was not enough to support a characterization that either Carter or James was a violent and dangerous assailant. Moreover, the fact that the defendant (who was apprehensive of bleeding to death should he be cut or bruised) did not run away when[***10] he was approached by the razor-and-bottle-wielding victims could indicate that he did not believe either of them were dangerous.  The eleventh requested instruction would also have improperly informed the jury that it should "find [the] defendant not guilty if, on the whole of the evidence, it had a reasonable doubt as to whether or not the defendant had acted in self-defense." The identical wording of this proposed instruction was examined and rejected by us as not being an accurate [**837] statement of the law in Gunther v. State, supra. We reaffirm what we said there, at pp. 410, 411. n1

n1 We may add that in reaffirming what we said in Gunther v. State, 228 Md. 404, on this point, we are aware of the casenote, Burden of Proof of Affirmative Defenses in Criminal Cases, by David S. Klein, in 24 Md. L. Rev. 78.

   Relying on what was said in the Gunther case (at p. 409) that "the right of the defendant to go wherever he legally had a right to go was not abridged by the fact that he might be[***11] attacked," the defendant further contends that the trial court committed prejudicial error when it rejected the ninth requested instruction which would also have improperly told the jury that the defendant had an "absolute legal right to attend the baseball game despite any belief that he may have had that [*54] he might be attacked." Quoting from 26 Am. Jur., Homicide, § 148, we did say in Gunther that "no generally recognized rule of law deprives one who expects an attack to be made upon him of going to places where he otherwise has a legal right to go," and we add now what might well have been added then, the first part of the next sentence, reading: "On the contrary he may proceed with his legitimate business." [Italics ours.] See also 40 C.J.S., Homicide, § 119, and Wharton's Criminal Law and Procedure, (Anderson ed.), § 229.  We also point out that the right to go where one legally may go is not stated as an unqualified privilege in the cases cited in the Gunther case.  In Lett v. State, 56 So. 5, 6 (Ala. 1911), it was said that it is "undoubtedly true that the defendant, when he went to the gate, had a right to go armed, provided he did[***12] so, not for the purpose of aggression." See also Barnes v. State, 93 So. 2d 863 (Fla. 1957), and Torrez v. State, 204 S. W. 228 (Tex.Cr. 1918). It seems clear to us that the requested instruction was properly refused since there was not included therein a proviso reading "provided he was not in any sense seeking an encounter and was not the aggressor," or language to that effect.

   (iii)

   It was not an abuse of discretion for the trial court to admit the posthumous photographs of the deceased victim as evidence and to allow them to be exhibited to the jury during the closing argument of the State.  See Cook v. State, 225 Md. 603, 608, 171 A. 2d 460 (1961), and cases therein cited.  See also Baldwin v. State, 226 Md. 409, 411, 174 A. 2d 57 (1961), and Hochheimer, Crimes and Criminal Procedure (2nd ed.) §§ 154, 155.  The photographs had significant value as evidence.  They were used by at least three witnesses to identify the victim and showed the location of his wounds which tended to discredit the defendant's version of the shooting. Certainly, as an examination of them shows, they were not such as would tend to inflame the jury.  Cf. Bagley v. State, 232 Md. [***13]86, 95, 192 A. 2d 53 (1963).

   Judgment affirmed. 

SMALL et al. v. JAMESON-RYAN REALTY, INC., et al. 
No. 195, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 507; 197 A.2d 261; 1964 Md. LEXIS 551

 February  10, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment is affirmed, with costs.

CORE TERMS:  license, broker, real estate, real estate broker, trading, partnership, copartnership, issuing, substantial compliance, duly qualified, certificate, disclose, licensed, inserted, approve, entitled to receive, parties agree, precise form, qualifications, unmistakable, phraseology, designated, immaterial, hereunder, designate, salesman, subtitle, wording, defeat

COUNSEL: James N. Phillips and Jerrold V. Powers, with whom were Sasscer, Clagett and Powers on the brief, for the appellants.

   Seymour Friedman, with whom was Irving A. Levine on the brief, for the appellees.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*509] [**262] The trial court refused appellants' (defendants below) motion for a directed verdict; the jury rendered a verdict against them; and they appealed the judgment entered on that verdict.

   The motion was based upon a claim that the plaintiff corporation, appellee here, did not hold a real estate broker's license and, therefore, it was not entitled to receive compensation as a real estate broker; and the parties agree that the case turns upon our determination as to whether said corporation did, or did not, have such a license at the time of the transactions here involved. See Code (1957), Article 56, Section 228, which prohibits recovery in cases of this nature "unless such person, copartnership, association or corporation was licensed hereunder * * *."

    The[***4] pertinent facts are simple and not in dispute.  They disclose that at the time of the transactions involved herein there were in existence two real estate broker's licenses, one having been issued by the Real Estate Commission of Maryland to "Wilson B. Jameson, Trading as Jameson-Ryan Realty, Inc.," and the other to "William E. Ryan, Trading as Jameson-Ryan Realty, Inc." Jameson and Ryan were both officers of the appellee-corporation, and neither held an individual broker's license in Maryland, unless the licenses just mentioned constituted individual, rather than corporate, ones.  The facts further show that no license was ever issued in the sole name of "Jameson-Ryan Realty, Inc.," as it has been the consistent practice of the Real Estate Commission to issue real estate licenses to corporate brokers only in the form in which the licenses were here issued; namely to one, or more, individuals "trading as" such corporate broker.

   The licensing of real estate brokers by the Real Estate Commission is controlled by Code (1957 & 1963 Cum. Supp.), Article 56, Sections 212 to 232, both inclusive.  Pertinent parts of Sections 218 and 221 are set forth below. n1 

n1 "§ 218 Partnerships, firms and corporations.

   (a) Designation of member as representative.  -- Every copartnership, association or corporation applying for a real estate broker's license shall designate one of its members or one of its officers who is authorized to represent the applicant as a real estate broker, and if such member or officer is duly qualified as herein provided his name shall be inserted in the license issued to such applicant, and he shall be authorized to perform all of the functions of a real estate broker only for and on behalf of said applicant.

   "(b) Licenses for all members acting as real estate brokers.  -- Each and every member or officer of a partnership, association, or corporation, who will perform or engage in any of the acts specified in § 212 (a) of this subtitle [acts of a broker], other than the designated member or officer by the partnership, association or corporation in the manner above provided, shall be required to make application for and take out a separate broker's license in his or her own name individually; provided, however, that the license issued to any such member or officer of a partnership, association, or corporation shall entitle such member or officer to act as real estate broker only as officer or agent of said partnership, association, or corportion, and not on his or her own behalf."

   * * *

   "§ 221. Issuance of license

   (a) Duty of Commission to issue license.  -- It shall be the duty of the Commission to issue licenses as real estate broker or real estate salesman to all applicants who shall be duly qualified under and who shall comply with the provisions of law and all the requirements of this subtitle and who give evidence of their intention to engage actively in business as a real estate broker or to become regularly engaged as a salesman by a licensed real estate broker.

   * * *

   "(c) Size and form of license.  -- The Commission shall issue to each licensee a license certificate * * * in such size and form as it may approve."

[***5]

   [*510] The appellants contend that the Real Estate Commission simply failed to comply [**263] literally with the provisions of Section 218, and, since the terms thereof are unambiguous, the Commission's administrative practice in issuing corporate broker's licenses in the form described above was not controlling; hence, its action in issuing the licenses to Jameson and Ryan "trading as Jameson-Ryan Realty, Inc." was ineffective to constitute a corporate broker's license to the appellee, but merely constituted individual licenses to Jameson and Ryan.  In support of this contention, they assert: "Similar statutes in New York and Pennsylvania have been held to require a real estate broker's [*511]license issued to the corporation itself, as distinguished from the individuals involved," citing Kernan & Co. v. Smith, 210 N. Y. S. 131 (1925); Comm. v. Samuel W. Black Co., 72 A. 261 (Pa. 1909); and Comm. v. Trust Company, 60 A. 551 (Pa. 1905). Our reading of the cases, discloses no such holding.

   In Kernan, the Court does not hold, nor even discuss, whether a corporate broker's license must be issued in the name of the corporation.  The case holds that[***6] when a corporate broker's license has been issued, an individual officer authorized by such license to act for the corporation, may not act, under the license, as a broker in his own behalf.  (Section 218 of our law explicitly so provides.) The Trust Company case held that a licensed corporate broker was not liable for a tax under a Pennsylvania statute as it was then framed; and the Black Co. case held that such a broker was subject to taxation under the statute, as amended.

   The record does not disclose which of the two licenses mentioned above was first issued, but, in the view that we take of the case, this fact is immaterial; consequently, we assume that the Jameson "Trading as Jameson-Ryan Realty, Inc." one was first in point of time.

   There is no provision in Maryland law which prescribes the precise form or wording of a broker's license, whether for an individual or a corporation.  On the contrary Section 221 (c), supra, provides that the license certificate shall be "in such * * * form as [the Commission] may approve."

   We think the facts, as we have stated them above, show, in regard to the first license, at least, a substantial compliance with Section 218 (a). [***7]The corporation's application for a license is not contained in the record.  It must have designated Jameson as the applicant's officer authorized to represent it as a real estate broker, otherwise his name would not have been "inserted [**264] in the license," as it actually was.  Jameson must also have had the qualifications required by Section 217 (b) and (c) for a real estate broker's license, or he would not have been an officer "duly qualified" under Section 218 (a).  The fact that the license was issued in the name of Jameson "trading as" the corporation, not in his individual capacity, and the practice of the Commission in issuing corporate broker's licenses in this [*512]form manifest a clear and unmistakable purpose and intention on the part of the Commission to issue a license to the corporation, Jameson-Ryan Realty, Inc., and the actual phraseology used in the license was not, we think, such as to defeat that purpose.  We, therefore, hold that the first license issued was a corporate broker's license to said corporation, and as the parties agree that this is determinative of the case, the

   Judgment is affirmed, with costs. 

CITIZENS COMMITTEE OF ANNE ARUNDEL COUNTY, INC., et al. v.COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY et al. 
No. 135, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 398; 197 A.2d 108; 1964 Md. LEXIS 532

 January  30, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed; the appellants to pay the costs.

CORE TERMS:  ordinance, licensing, pecuniary loss, special damage, residents, invalid, nuisance, citizens committee, special interest, general public, authorize, gambling, restrain, standing to maintain, validity of a statute, pecuniary, property rights, public wrong, distinguishable, obligated, urgency, enjoin, cost of administration, injunctive relief, principle of law, declared void, ultra vires, proportionately, discontinuance, administering

COUNSEL: Rufus King and Malcolm B. Smith, with whom were Rice & King and Smith & Wohlgemuth on the brief, for the appellants.

   Jerome F. Connell, Special Counsel, for the Board of County Commissioners, one of the appellees.

   Ward B. Coe, Jr., with whom were G. C. A. Anderson and Anderson, Coe & King on the brief, for The Southern Maryland Development Company, Inc., the other appellee.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*399] [**108] This action for injunctive relief, instituted by an incorporated citizens committee [**109] and a group of individual county residents, citizens and taxpayers against the County Commissioners of Anne Arundel County, challenges the constitutionality and validity of such of the local laws, and the ordinances and resolutions passed pursuant thereto, as purport to authorize the operation of gambling devices and activities in the County.  The Southern Maryland Development Company, Inc., to which the County [***4]Commissioners had issued licenses permitting the operation of slot machines, payoff pinball machines, console devices, commercial bingo, paddle wheels and wheels of fortune, was allowed to intervene as a party defendant. The laws attacked include, among others, Chapter 321 of the Laws of 1941, [*400]Chapter 321 of the Laws of 1943, Chapter 1013 of the Laws of 1945, Chapter 625 of the Laws of 1949 and Chapter 3 of the Laws of 1954.  All are now codified in the County Code.  The chancellor heard the case at length, ruled that the statutes in question were constitutional and valid and dismissed the bill of complaint.

   The questions presented on appeal by the appellants include contentions that the legislative acts did not, and were not intended to, authorize the licensing of gambling devices and activities; that the licensing of such devices and activities is unconstitutional in that it authorizes lottery grants in violation of Article III, § 36, of the Constitution of Maryland; that some of the acts are unconstitutional in that they violate Article III, § 29, of the Constitution prohibiting amendment of existing laws by reference to title and section number only; that all of[***5] the acts are invalid in that they were insufficiently and deceptively titled; that all constitute an unlawful delegation of authority; and that the acts, as well as the ordinances passed pursuant thereto, are invalid in that they are revenue raising measures in the guise of regulatory measures.  The appellees, in addition to claiming that the operation of the licensed devices and activities are lawful, contend that neither the corporation nor the individual plaintiffs, as residents, citizens and taxpayers, had standing to maintain this suit.

   We think that only one of the contentions -- that of the appellees to the effect that the appellants do not have standing to maintain this suit -- has to be considered on this appeal.  It is not disputed that the corporate plaintiff, the citizens committee, is without standing to sue.  And, under the circumstances of this case, we think that the individual plaintiffs, as residents, citizens and taxpayers, did not have the right to maintain this action.

   While the appellants claim that the carrying out of the provisions of the alleged unconstitutional and invalid laws, ordinances and resolutions, has resulted in loss and damage to them and all[***6] other taxpayers in the county, they have failed to prove or show any special damage or loss which is peculiar to themselves as taxpayers or otherwise.

   In Ruark v. Engineers' Union, 157 Md. 576, 146 Atl. 797 [*401] (1929), wherein taxpayers sought injunctive relief against an alleged violation of a Baltimore City statute, the Court extensively reviewed most of the previous Maryland cases pertaining to the right of an individual taxpayer to restrain a public wrong. Quoting from two earlier decisions, and citing numerous others, it was said at p. 588:

   "'The rule, or principle of law, applicable and controlling in this class of cases, is well settled, that private citizens cannot restrain public wrongs, unless they allege and prove damage to themselves different in character from that sustained by the public generally, nor can taxpayers restrain official acts upon the mere ground that they are ultra vires.  * * *'"

   "'* * * 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.  To give them a standing in a court of equity, [**110] they must allege and show that by the wrong committed[***7] they suffer some special damage or that they have a special interest in the subject matter distinct from that of the general public.'"

   It was further said at p. 589:

   "The special damage which the taxpayer of the political division sustains in a public wrong is the prospective pecuniary loss incident to the increase in the amount of taxes he will be constrained to pay by reason of the illegal or ultra vires act of the municipality or other political unit."

   The subsequent decisions of this Court have consistently followed the same rule and have allowed the taxpayer to have injunctive or mandatory relief against public wrongs only when he had alleged and proven some special damage, or shown that he has a special interest, which is distinct from those of the general public. See, for example, Sun Cab Co. v. Cloud, 162 Md. 419, 159 Atl. 922 (1932); Baltimore Retail Liquor Package Stores Association v. Board of License Commissioners, 171 Md. 426, 189 Atl. 209 (1937); Green v. Garrett, 192 Md. 52, [*402] 63 A. 2d 326 (1949); Masson v. Reindollar, 193 Md. 683, 69, A. 2d 482 (1949); Hammond v. Lancaster, 194 Md. 462, 71 A. 2d 474 (1950); Funk v. Mullan [***8]  Contracting Co., 197 Md. 192, 78 A. 2d 632 (1951); McKaig v. City of Cumberland, 208 Md. 95, 116 A. 2d 384 (1955); and Dutton v. Tawes, 225 Md. 484, 171 A. 2d 688 (1961).

   The cases on which the individual appellants rely to justify their contention that where the suit raises a serious issue of the constitutionality of a statute, which is of great public importance, equity should "consider the entire case without questioning the right of appellants to bring any phase of it," we think are clearly distinguishable from the case at bar.  We will consider such of them as might seem to support the appellants.  In Kelley, Piet & Co. v. Baltimore, 53 Md. 134 (1880), it was said at p. 139 that "[i]n exceptional cases, where great principles or large public interests are involved, citizens or corporations may sue in behalf of themselves, and their fellow-citizens to arrest some projected violation of constitutional law or abuse of corporate authority." This suit, however, was not instituted by a taxpayer as such but was brought by an unsuccessful bidder on a city contract to enjoin its award to a competitor on the ground of fraud.  Even if the statement is something more than [***9] the dictum it appears to be, it has no bearing on the case at bar. Moreover, it appears that in the Kelley case the Court had no intention of nullifying the rule it had enunciated in Baltimore v. Gill, 31 Md. 375 (1869), where it was said at p. 394 that "[i]t is certainly well settled that public wrongs cannot be redressed at the suit of individuals, who have no other interest in the matter than the rest of the public," a principle of law that was restated in Ruark v. Engineers' Union, supra, and has been consistently followed for nearly a century.  It is equally clear that the decision in Pressman v. State Tax Commission, 204 Md. 78, 102 A. 2d 821 (1954), in which separate declaratory judgment proceedings had been filed because an early decision was needed to determine the constitutionality of a tax statute, did not alter the rule with respect to the standing of litigants to sue.  There, the standing of the respective plaintiffs was not an issue because both the taxpayer and municipality had a statutory right to challenge the validity [*403] of the statute authorizing a reduction in the franchise tax on savings bank deposits. In Hammond v. Lancaster and[***10] Dutton v. Tawes, both supra, this Court considered the constitutionality of the respective statutes involved due to the public urgency, and then held that the tax paying complainants did not have standing.  But, in the case at bar, where the statutes now under consideration have been in existence since at least 1945, we are not confronted [**111] with a statute, the constitutionality of which has to be determined on the basis of the public urgency of the situation.

   The appellants also cite Green v. Garrett, supra, and Castle Farms Dairy Stores v. Lexington Market Authority, 193 Md. 472, 67 A. 2d 490 (1949), for their contention that a taxpayer does not always have to show pecuniary or special loss.  In the Green case, the taxpayers were allowed to attack an ordinance under which the city made profits, but they were held to have standing because the contract of renting made under the ordinance created a nuisance which detrimentally affected the rights and property of the taxpayers.  It is doubtful that the taxpayers would have had standing but for the nuisance. Certainly the case cannot be interpreted to mean that taxpayers do not have to show either a[***11] pecuniary or special loss, for in fact the taxpayers suffered a special loss as a result of the nuisance. At p. 59 (of 192 Md.), it was said that "there is no doubt that as adjacent residents and property owners, the appellants have an interest in restraining conditions arising out of the contract, which constitute a special nuisance to them." [Emphasis supplied.] In the Castle Farms case, where the taxpayers' suit questioned the validity of an ordinance providing for the establishment of a new Lexington Market, it was said at p. 482 that "[i]f the Act is unconstitutional, the project is unlawful, and even though the City would not be obligated for the project [under the ordinance the City was not obligated for any expenses], it presumably would incur some expense or loss in extricating itself and its property.  As taxpayers, therefore, plaintiffs, are entitled to sue to enjoin such an unlawful project. * * * As owners and claimants of rights in the market, they may also, in the same case, sue to protect their property rights." There, it had been argued that a loss to the city would [*404] constitute a pecuniary loss to the taxpayers.  It had also been argued that[***12] the plaintiffs were stall holders in the old market and would be deprived of their property -- a theory similar to the nuisance theory in the Green case.  But, in the case at bar, there is no allegation or proof that the property rights of the taxpayers are adversely affected by the county gambling statutes.  Therefore, both Green and Castle Farms are distinguishable in that neither a pecuniary nor special loss is shown to have accrued as the result of deprivation of property rights.

   The appellants advance two arguments in support of their contention that they have standing to sue because they suffered, or will prospectively sustain, pecuniary loss and damage.  First, they argue that part of the cost of administering the amusement licensing program comes from general funds.  There was uncontroverted proof of this fact, but it was also shown that this situation was not restricted to the complaining taxpayers and that the revenue from the licensing program exceeded the cost of administration by more than $500,000. It would seem obvious therefore that the plaintiffs suffered no pecuniary loss due to the fact that some of the administration expenses were paid out of general[***13] public funds.  Their second argument -- to the effect that should the statutes and ordinances be declared void in a fiscal year prior to the time that the bulk of the revenue is received from the licensing program, the taxpayers would be burdened to meet all expenditures and obligations incurred thereunder -- seems to be an effort to attain standing by raising themselves to that position by their own "bootstraps" in that they seek to show damage to themselves, not by what has occurred or is likely to occur, of which there is no proof, but by what might occur should they be successful in having the statutes and ordinances declared unconstitutional or invalid. Even if there were evidence that the county had expended general public funds in anticipation of revenues from the amusement licensing program, it is evident that the taxpayers would be damaged by a discontinuance of the program rather than a continuance of [**112] it.  In any event it is clear that the loss or damage the complaining taxpayers claim to have sustained has likewise been proportionately suffered by all other taxpayers in the county.

   [*405] Under Maryland law some special damage or a special interest must [***14]be alleged and shown before a taxpayer can be said to have standing to test the constitutionality or validity of a statute. While it is generally recognized that a taxpayer has a right to sue and make the contention, even though he may be wrong in his allegations, Funk v. Mullan Contracting Co., supra, McKaig v. City of Cumberland, supra, he must nevertheless prove or show that he in fact has sufficient interest to test the constitutionality or validity of a statute before he can prevail.  Such was not shown in the case at bar.

   Decree affirmed; the appellants to pay the costs. 

BELLAM v. STATE 
No. 175, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 368; 196 A.2d 891; 1964 Md. LEXIS 526

 January  27, 1964, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed in Proper Person February 7, 1964, Denied February 10, 1964.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgments affirmed.

CORE TERMS:  sentence, consecutive, run consecutively, mere fact, co-occupant, ambiguity, seizure, concurrent, sentencing, burglary, authorize, dwelling, language used, obtain a search warrant, breaking and entering, record to support, intent to commit, police officers, run consecutive, search warrant, legal effect, irreconcilable, occupant, bind, abandoned, coerced, naming, prompt, fled

COUNSEL: Thomas J. Curley for the appellant.

   Stuart H. Rome, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson and Julian B. Stevens, Jr., State's Attorney and Deputy State's Attorney, respectively, for Anne [***3]  Arundel County, on the brief, for the appellee.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*369] [**891] The appellant was convicted by the court without a jury under indictments in seven distinct cases of breaking and entering, with intent to commit a felony in six cases and of breaking and entering with intent to commit a misdemeanor in the seventh.  These appeals are from three of the convictions, in which the sentences were six years each to run consecutively, thus imposing a total sentence of eighteen years.
 
   The first question raised concerns the legality of the search of the appellant's home and the seizure therein of certain tools offered in evidence. The facts are virtually undisputed.  The seven crimes under investigation were committed between November 27 and December 27, 1960.  [**892] Shortly after the latter date Bellam, who had been under the probationary supervision of a probation officer, Mr. Siegert, fled the State leaving his wife and children behind.  Mr. Siegert went to see Mrs. Bellam and told her the police had information that the tools used in some [*370] [***4] of the burglaries were located in her house, and asked her permission to make a search.  She at once agreed.  She said she had no knowledge of any tools being in the house, but she had no objection to "the place being looked over relative to this." Armed with this prior consent but without a search warrant, Mr. Siegert, accompanied by the police officers, went to the home during daylight hours on February 8, 1961.  He introduced the officers to Mrs. Bellam, and she asked them in.  Much to her surprise the police located a cache of tools hidden beneath the third tread of the stairway leading to the second floor.

   The appellant objected to the admission of these tools in evidence.  There was not only testimony that these tools would have been suitable for burglary and safe-cracking, but also that dust found on them was characteristic of firebrick safe material found at the scene of several of the burglaries. On taking the stand, the appellant denied that he owned the tools, or that he had any knowledge of the existence of the compartment under the stairs in which they were found.

   We think the search was not unreasonable.  We find nothing in the record to support the contention that[***5] Mrs. Bellam's consent was coerced. Mr. Siegert's testimony, and that of the other officers, was not contradicted in any way.  The cases of Amos v. United States, 255 U.S. 313 and Johnson v. United States, 333 U.S. 10, are distinguishable on the facts.  The mere fact that it might have been possible to obtain a search warrant is not controlling.  United States v. Rabinowitz, 339 U.S. 56, 66. While Rabinowitz has been distinguished in later cases it has not been overruled.  See Chapman v. U. S., 365 U.S. 610 (particularly Justice Frankfurter's concurring opinion at 618-19), and Wong Sun v. U. S., 371 U.S. 471, 480. We have said that the mere fact that the request is made by officers is not enough to resolve the issue as to whether consent was freely given.  Gault v. State, 231 Md. 78, 81; Armwood v. State, 229 Md. 565, 569. As the joint occupant of the premises, even if the husband had not abandoned them (cf. Buettner v. State, 233 Md. 235), Mrs. Bellam was entitled to give consent and to bind her co-occupant in so doing.

   The point has not been extensively discussed in the Maryland cases.  In Franklin v. State, 208 Md. 628, 633, Judge [*371] [***6] Hammond, for the Court, held that an invitation to enter the hallway of an apartment dwelling, extended by a sixteen year old girl whose parents, the owners, were not at home, was enough to rebut the claim that the officers were trespassers. A case directly in point is Stein v. United States, 166 F. 2d 851 (C.A. 9th), cert. den., 334 U.S. 844. Cf. United States v. Sferas, 210 F. 2d 69, 75 (C.A. 7th), cert. den., 347 U.S. 935, Morris v. Commonwealth, 208 S. W. 2d 58 (Ky.) and United States v. Eldridge, 302 F. 2d 463 (C.A. 4th).  See also People v. Carter, 312 P. 2d 665, 670 (Cal.).  The cases are not wholly in accord as to the extent of a wife's authority to authorize a search of joint premises in the absence of her husband.  See State v. Evans, 372 P. 2d 365 (Hawaii), and Annotation, 31 A.L.R. 2nd 1078. The better reasoned cases point out that authority stems from the joint ownership, rather than from an implication of agency to act for the other.  Some cases permit a search of those portions of the dwelling used in common, but not a search of the bedroom or personal effects of a spouse.  On the facts of the instant case [**893] we think a right [***7]to give consent is supported by the weight of authority.

   The second point raised on appeal relates to the imposition of sentence. In case No. 5574 the sentence was for six years in the Maryland Penitentiary beginning as of February 13, 1963.  In No. 5575 the court likewise imposed a six year sentence and stated: "This sentence is to begin as of 13 February 1963 and is to run consecutive to the sentence in #5574 Criminals." In No. 6724 the court imposed a six year sentence and stated: "This sentence is to begin as of 13 February 1963 and is to run consecutive to the sentences in #5575 Criminals, #5574 Criminals." The remaining sentences were concurrent. The appellant contends that the legal effect of naming the date when the sentences were to begin was to make them all concurrent and not consecutive. On the following day the court of its own motion brought the appellant back "not to change the sentence, but to explain the sentence that was imposed to you."

   Rule 764 b empowers a trial court to "modify or reduce" a sentence within 90 days of its imposition.  The appellant contends that the rule does not authorize an increase in sentence, citing Czaplinski v. Warden, 196 Md. 654, [***8] 658, because of the [*372] rule against double jeopardy.  If we assume, without deciding, that this is true, the case is not altered.  The sentences must be construed as a whole to determine the court's intention.  We think the court's intention was made sufficiently clear in the initial stage.  See Commonwealth v. Myers, 154 A. 2d 297, 298 (Super. Ct. Pa.), Fredericks v. Snook, 8 F. 2d 966, 967 (C.A. 5th); Hayman v. United States, 241 F. 2d 188 (C.A. 9th). The reference to the beginning date, coupled with the reference to the other case or cases, was not so inconsistent with the use of the word "consecutive" as to be irreconcilable. The cases cited are almost directly in point.  Moreover, it has been held that mere ambiguity can be resolved by prompt action on the part of the sentencing court.  See Aga v. United States, 312 F. 2d 637 (C.A. 8th) and Scarponi v. United States, 313 F. 2d 950 (C.A. 10th).  Cf. Kennedy v. Reid, 249 F. 2d 492 (D.C. Cir.).

   We find no merit in the additional questions sought to be raised by the appellant.

   Judgments affirmed. 

BROWN v. STATE 
No. 30, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 288; 196 A.2d 614; 1964 Md. LEXIS 516

 January  13, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, costs to be paid by the appellant.

CORE TERMS:  immunity, grand jury, bribe, bribery, self-incrimination, compelled to testify, Fifth Amendment, conspiracy, statutory immunity, constitutional provision, compellable, compelled, indictment, compelled testimony, criminal case, testifying, displace, bribing, immunity statute, competent witness, self-executing, propounded, unrelated, remote, exempt, applicability, Constitutional Law, grand juries, grand jury investigation, immunity granted

COUNSEL: Jerome F. Connell, with whom was Edwin A. Lechowicz on the brief, for appellant.

   Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson and John A. Blondell, State's Attorney and Deputy State's Attorney, respectively, for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [***6]

   [*291] [**615] This is an appeal from a judgment of the Circuit Court for Anne Arundel County finding the appellant, James Dawson Brown, guilty of contempt by reason of his refusal to obey an order of that court to answer before the Grand Jury for Anne Arundel County certain questions which had been propounded to him before that body, and fining him $500.00 and sentencing him to jail until he should purge himself of contempt by answering the questions. He was released on bail pending this appeal.

    The questions which the appellant refused to answer were [*292] propounded to him in the course of a grand jury investigation into the alleged bribery of a Trial Magistrate for Anne Arundel County "for the purpose of squelching or dismissing" a traffic charge against the appellant.  Most of the questions pertained to a direct charge of bribery, but one pertained to conspiracy to bribe this official.  The appellant's fundamental basis for refusing to answer was and is the privilege against self-incrimination under Article 22 of the Maryland Declaration of Rights. n1 The State contends that the testimony of the appellant was compellable and that he was entitled to immunity [***7]in respect thereof under Section 23 of Article 27 of the Code (1957), enacted pursuant to Section 50 of Article 3 of the Maryland Constitution.  The appellant contends: first, that the statutory immunity afforded is not broad enough to "abridge" the privilege against self-incrimination contained in Article 22 of the Declaration of Rights; and second, that the statutory immunity is not applicable to a proceeding before the grand jury. The State accepts the issues as tendered by the appellant, except that it substitutes "displace" for "abridge" in the first of them.

n1 At the last of three hearings in the trial court, he spoke of his privilege under the Fifth Amendment -- meaning, doubtless, to the Constitution of the United States -- but, as we later point out, he does not now assert any claim of violation of rights under that Amendment.

   Article 22 of the Maryland Declaration of Rights reads as follows:
 
"That no man ought to be compelled to give evidence against himself in a criminal case."

   It is[***8] very similar in language to the corresponding clause of the Fifth Amendment to the Constitution of the United States providing that
 
"No person * * * shall be compelled in any criminal case to be a witness against himself."
 
The appellant relies on cases decided under the Fifth Amendment and urges that its interpretation should control the interpretation of Article 22 of the Declaration of Rights, but he [*293] does not assert that the Fifth Amendment is itself applicable here.

   Section 50 of Article 3 of the Constitution of Maryland of 1867 provides in part:
 
"It shall be the duty of the General Assembly * * * to provide by Law [**616]for the punishment * * * of any person, who shall bribe, or attempt to bribe, any Executive, or Judicial officer of the State of Maryland, or any member, or officer of the General Assembly of the State of Maryland * * *; and also to provide by law for the punishment, * * * of any of said officers, * * * who shall demand or receive any bribe, * * *; and, also, to provide by law for compelling any person, so bribing or attempting to bribe, or so demanding, or receiving a bribe, fee, reward, or testimonial, to testify against[***9] any person, or persons, who may have committed any of said offenses; provided, that any person, so compelled to testify, shall be exempted from trial or punishment for the offense, of which he may have been guilty."

   Section 23 of Article 27 of the Code (1957) enacted in compliance with the above requirements provides for the punishment of any person bribing or attempting to bribe public officers, including any judge, justice of the peace or other judicial officer of the State, and of any such officer demanding or accepting a bribe, fee, reward, or testimonial for the purpose of influencing his performance of his official duties or of neglecting or failing to perform the same.  It then continues:
 
"[A]ny person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about[***10] which he was so compelled to testify."

   [*294] Both sides, of course, cite Section 23 of Article 27, supra, but neither refers to Section 39 of that Article, which deals with compelling testimony of participants in conspiracies to violate Section 23 (and certain other offenses). n2 Since one question here asked pertained in part to such a suggested conspiracy, we set forth below the pertinent part of this statute:
 
"No person shall refuse to testify concerning the crime of conspiring to commit any of the offenses set forth in § 23 of this article, * * *, and any person shall be a competent witness and compellable to testify against any person or persons who may have conspired to commit any of the aforesaid offenses, provided that any person so compelled to testify in behalf of the State in any such case, shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may [**617] have been guilty or a participant or conspirator therein and about which he was so compelled to testify."

n2 There are a number of other statutes in this State dealing with the compellability of testimony with regard to offenses and the grant of immunity to persons compelled to testify. The language is not uniform.  Thus Code 1957, Article 27, § 540 (prevention of sabotage); Article 48 A, § 359 (infractions of the insurance laws); and Article 95A, § 12 (j) (unemployment insurance law), use the "transaction, matter or thing" language of the immunity statute upheld in Brown v. Walker, 161 U.S. 591. Code (1957), Article 101, § 8 (workmen's compensation law) refers even more broadly to "any act, transaction, matter or thing." On the other hand, Article 27, §§ 262 and 371 (gaming and lotteries), refer, in language similar to that of the statute in suit, to prosecutions for "any and all such" offenses.  Article 27, § 400 (sale of liquor to minors), refers to offenses "under this section." Article 27, § 24 (bribery in connection with athletic contests), limits immunity to prosecutions for "the crime", while Article 81, § 359 (retail sales tax act) does not bar subsequent prosecutions at all, but forbids only the "use" of compelled testimony in "any subsequent prosecutions." Article 75, § 74, and Rule 628 (supplementary proceedings) refer to prosecutions "based upon such fraud."

[***11]

   The State contends with considerable force that Section 50 of Article 3 of the Constitution and Section 23 of Article 27 of [*295] the Code (1957) have so completely occupied the field as to immunity from prosecution for offenses as to which testimony in bribery cases is compelled that Article 22 of the Declaration of Rights has no applicability in such cases.  It relies on Anderson v. Baker, 23 Md. 531, holding that the Registry Act of 1865, passed pursuant to certain provisions of the Constitution of 1864 imposing a test oath and requiring persons seeking registration as voters to answer under oath questions pertaining to their loyalty to the United States, did not fall within what was then Article 23 of the Bill of Rights, and further, that if the voting privilege were within the contemplation of Article 23, it was withdrawn or excepted from its operation by the express provisions of the Constitution relating to voting. (23 Md. at 591.) See also Mayor and City Council of Baltimore v. State, 15 Md. 376, at p. 459, holding that a specific constitutional provision prevails as a limitation upon a general principle set forth in the Declaration of Rights.

   Other states[***12] having constitutional immunity provisions similar to ours have held that they limit the constitutional privilege against self-incrimination. See State v. Rodrigues, 219 La. 217, 52 So. 2d 756; State v. Dominguez, 228 La. 284, 82 So. 2d 12; Commonwealth v. Bell, 145 Pa. 374, 389, 22 Atl. 641; Commonwealth v. Cameron, 229 Pa. 592, 79 A. 169; Commonwealth v. Haines, 171 Pa. Super. 362, 90 A. 2d 842; Maguire, Evidence of Guilt, 70 n. 13. It may be noted, however, that the Louisiana constitutional immunity provision involved in the Rodrigues and Dominguez cases is in terms self-executing and does more than establish a duty in the legislature to implement it.  In addition, the self-incrimination provision of the Louisiana constitution, unlike Section 22 of our Declaration of Rights, contains the phrase "except as otherwise provided in this constitution." The self-incrimination provision of the Pennsylvania constitution is likewise self-executing, and it does not contain a clause relating to exceptions.

   Such a view also finds some support in the debates on the constitutional provision here involved.  See Perlman, Debates of the Maryland Constitutional [***13] Convention of 1867, p. 286.  One objection made to Section 50 of Article 3 was "that it violated the principle of the Declaration of Rights, which declares that [*296] no man shall be compelled to give evidence against himself." A proposed amendment to strike the clause compelling persons offering bribes to testify against those receiving them was, however, defeated.

   We think that Section 23 of Article 27 of the Code (1957) undertakes to give in full the immunity contemplated by Section 50 of Article 3 of the Constitution, and in terms is somewhat broader, but is not beyond the constitutional authorization.  We might rest our opinion on the ground that this statutory provision founded upon the constitutional mandate (as in Anderson v. Baker, supra) limits the scope of Article 22 of the Declaration of Rights, if there were any conflict between them.

   We think, however, that there is no real conflict between Article 22 of the Declaration of Rights and the statutory immunity here granted.  The general rule (apart from a constitutional provision, whether self-executing or implemented by statute, which in terms or by implication limits the privilege against self-incrimination) [***14] is that in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces.

   Our Article 22 is in pari materia with the provisions of the Fifth Amendment to the Federal Constitution against self-incrimination, and it should, we think, receive a like construction.  Adams v. [**618] State, 202 Md. 455, 460, 97 A. 2d 281, reversed on another ground, 347 U.S. 179; Bass v. State, 182 Md. 496, 500, 35 A. 2d 155; Blum v. State, 94 Md. 375, 382, 51 Atl. 26. n3

n3 The Fifth Amendment has not heretofore been held binding upon the States through the Fourteenth Amendment.  Twining v. New Jersey, 211 U.S. 78; Adamson v. California, 332 U.S. 46. We note, however, that certiorari has been granted, 373 U.S. 948, to review Malloy v. Hogan, 150 Conn. 220, 187 A. 2d 744, which involves this matter.

   Historically, at least, Counselman v. Hitchcock, 142 U.S. 547, is the foundation of the general rule as to immunity statutes[***15] above stated, although in that case the particular Act involved was held not to grant a sufficiently broad immunity. In Brown v. Walker, 161 U.S. 591, the statute before the Supreme [*297] Court was apparently drafted on the basis of the Counselman opinion, and provided that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may testify." This was held by a divided Court sufficiently broad to displace the privilege accorded by the Fifth Amendment. The statute sustained in Brown has been taken as a model by many later state and federal statutes.  See Model State Witness Immunity Act, 9 C Uniform Laws Ann. 186 (with the qualification that the immunity is to be no broader than the privilege) and the commentary on it in the 1952 Handbook of The National Conference of Commissioners on Uniform State Laws, pp. 256-57; 8 Wigmore, Evidence (McNaughton Rev.), § 2284.  These statutes derive from a suggestion by the Supreme Court in the Counselman case that statutes thus drawn would be valid.  The Counselman case and its statutory progeny have been criticized[***16] by the commentators, notably Wigmore and McCormick.  See 8 Wigmore, Evidence (McNaughton Rev.), at pp. 522-25 and n. 4; McCormick, Evidence, pp. 285-86.  The commentators maintain that the court could easily have construed the Counselman statute as barring the indirect as well as the direct use of compelled testimony, and could have held that it barred the use of evidence obtained as a result of "leads" derived from compelled testimony.

   In our opinion an immunity statute, in order to be valid, need not be couched in precisely the same terms as that suggested in Counselman and upheld in Brown v. Walker, supra, if its effect is to grant protection as broad as that afforded by the privilege which it displaces. We think that such protection is afforded by the immunity granted by Section 23 of Article 27 of the Code (1957). The immunity thereby granted to the witness compelled to testify from "prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify" is a broad immunity. Since it bars "prosecution," it effectively bars the use of "leads" to[***17] convict the witness of the offense as to which he testifies, and it covers the offense of attempting to bribe as well as actual bribing. We further think that the broad language referring to "any [*298] such crime of which" he "may have been guilty" may fairly be construed and should be construed as including conspiracy to violate the bribery law; but even if it were not, this gap in statutory protection would be closed by Section 39 of Article 27, supra.

   Brown v. Walker, supra, relies on a number of early state court cases upholding the validity of immunity statutes worded more narrowly than the statute here in suit.  Reference was there made to cases upholding statutes limiting immunity from prosecution to "any offence committed at the time and place indicated", Kendrick v. Commonwealth, 78 Va. 490, or limiting immunity from prosecution to "the offense with reference to which testimony was [**619]given," Ex Parte Cohen, 104 Cal. 524, or to "that bribery" testified to by the witness.  People v. Sharp, 107 N. Y. 427. See Brown v. Walker, 161 U.S. at pp. 602-05.

   Nor do subsequent Supreme Court decisions establish a total amnesty rule. The reference[***18] to "full and complete immunity against prosecution" in United States v. Murdock, 284 U.S. 141, should, we think, be read in the context of the earlier cases cited.  The same may be said of the dictum in United States v. Bryan, 339 U.S. 323, 336. In Ullmann v. United States, 350 U.S. 422, 437, the court observed that the Counselman statute had been invalidated because "it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony. It was with this background that the 1893 statute, providing complete immunity from prosecution, was passed and that Brown v. Walker was argued and decided." (Emphasis added).  See also United States v. Monia, 317 U.S. 424, 428. We think the references to a requirement of absolute immunity in this and other cases refer to immunity from prosecution as opposed to immunity merely from the later use as evidence of recorded testimony, and that as to the range of offenses, they do not require a greater protection than that the statute must bar prosecution for all offenses with regard to which the testimony of[***19] a witness may be compelled. As to other offenses, we think, the privilege is neither impaired nor supplanted.

   Numerous state cases arising after Counselman and Brown [*299] v. Walker have upheld the validity of state statutes which confer a narrower immunity from prosecution than that conferred in the Brown case.  See Doyle v. Hofstadter, 257 N. Y. 244, 177 N. E. 489; Commonwealth v. Collier, 181 Ky. 319, 204 S. W. 74; Flanary v. Commonwealth, 113 Va. 775, 75 S. E. 289; Notes, 118 A.L.R. 602, 624; 53 A.L.R. 2d 1030, 1050. But compare State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla.); State v. Hennessey, 195 Ore. 355, 245 P. 2d 875. It has been said of these cases by a notewriter that "any conflict among them is more illusory than real; for in those instances in which the courts have held the witness to be adequately protected by such an immunity, it has not appeared that by answering the question the witness would have revealed any offense other than that or those included in the immunity; whereas in cases holding such an immunity to be inadequate, the courts have been of opinion that answers to the questions would have exposed the witness[***20] to prosecution for offenses different from those covered by the immunity." 118 A.L.R. at p. 624.

   We find no merit in the appellant's contention that his answers to questions would expose him to prosecution for "unrelated crimes." The appellant does not specify the character of these unrelated crimes and we think that our holding that the statute immunizes him from prosecution for conspiracy to bribe as well as bribery and attempted bribery supplies him with all the safeguards to which he is entitled.  "[T]he constitutional protection is confined to real danger and does not extend to remote possibilities out of the ordinary course of law. Brown v. Walker, 161 U.S. 591, 599, 600." Heike v. United States, 227 U.S. 131, 144 (Holmes, J.).  "When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness." Mason v. United States, 244 U.S. 362, 364, see also The Queen v. Boyes, 1 B. & S. 311, 329, 330.

   The appellant does not claim that the failure of the immunity statute to protect against prosecution for federal offenses renders it defective.  Such a claim would have no basis under present law. [***21] Knapp [**620] v. Schweitzer, 357 U.S. 371; Feldman v. United States, 322 U.S. 487. Moreover, even if failure [*300] to guarantee against federal incrimination would invalidate a state immunity statute and this claim were properly raised, we think that on the facts of this case the threat of federal prosecution for attempting to bribe a state trial magistrate to "fix" a traffic violation would be too remote to make the claim sustainable.  We note that in Doyle v. Hofstadter, 257 N. Y. 244, 267, 177 N. E. 489, Judge Cardozo "put aside as remote and insubstantial the supposed peril of exposure to prosecution for the making of false tax returns to state or federal officers." We think that we may do the same here.

   We also find the appellant's claim that he was not obliged to give testimony at grand jury proceedings not to be sustainable.  The statute provides that a person involved in the bribery "shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses, * * * provided, that any person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution. [***22]* * *." Code (1957), Article 27, Section 23.  The statute contains no limiting phrases, unless "in any such case" is to be read as such.  We think that it is not.

   McCormick, Evidence, § 123, states: "Despite the language of the Federal Fifth Amendment and many similar state provisions, purporting to limit the protection to criminal cases, it is clear that the privilege of a witness not to answer incriminating questions extends to all judicial or official hearings, investigations or inquiries where persons are called upon formally to give testimony.  A witness has this protection accordingly in a * * * civil or criminal case, or in * * * an investigation or hearing by a grand jury * * *." See Counselman v. Hitchcock, supra, and United States v. Monia, supra. In the latter case (317 U.S. at 427), Mr. Justice Roberts, writing the majority opinion and citing Counselman, stated flatly: "An investigation by a grand jury is a criminal case." The applicability of the privilege against self-incrimination to a witness testifying before a grand jury was recognized by our predecessors in Gamble v. State, 164 Md. 50, 163 A. 859. In that case, in speaking of the appearance[***23] of the appellants-defendants before the grand jury this Court said (164 Md. at 52): "If they had thought they were in any danger of indictment, [*301] they could have declined to testify on the ground that their evidence might incriminate them.  * * * They might have been compelled to obey the summons, but no power could compel them, against their will, to give evidence which might result in their indictment for the offense then being investigated." We regard it as inconceivable that the Legislature could have intended to limit the immunity so as to make it unavailable as to testimony given before a grand jury. A contrary view might frustrate the plain intention of the constitutional provision and of the statutes relating to bribery by cutting off prosecution virtually at its inception.  An indictment (or under provisions for the waiver of an indictment, an information) is a prerequisite to a trial.

   To avoid possible difficulty in the future, we think it advisable to comment upon a statement in Gamble (164 Md. at 53) to the effect that a grand jury investigation is not a "case" within the meaning of the Fifth Amendment to the Federal Constitution.  This statement was not, [***24] in our view, necessary to the actual decision of the Gamble case, n4 and it was not, in our judgment, a correct statement of the law with regard to grand jury proceedings in the light of the views of the Supreme Court expressed in Counselman [**621](1893) above referred to, which were, as we have also pointed out, subsequently reaffirmed in Monia (1943).  The precise significance of this statement is not clear to us; but if it means, as we think it does, that the privilege against self-incrimination "in a criminal case" does not apply in grand jury proceedings, it seems irreconcilable with the very positive statement in the same opinion which we have quoted above that the appellants could have availed themselves of the privilege before the grand jury.

n4 We also note that this statement was made in reply to a contention of the appellants based on the Fifth Amendment. The opinion does not contain any discussion of the applicability of the Fifth Amendment. See note 3, supra.

   The principal[***25] actual holding of Gamble was that the fact that the defendants had testified before the grand jury which subsequently indicted them, without asserting their privilege against self-incrimination, did not invalidate the indictment. This holding was in accord with Pick v. State, 143 Md. 192, [*302]121 A. 918. We think that the opinion in Pick, by a passage quoted (at p. 198 of 143 Md.) from People v. Lauder, 82 Mich. 119, also clearly supports the view that the privilege is available to a witness called to testify before a grand jury. Any possible implication to the contrary which may be suggested by the reference to Pick in Gamble would not, in our estimation, be supportable.

   The appellant also asserts that even if immunity might be held to extend to grand jury proceedings under most state statutes, the plenary inquisitorial powers of Maryland grand juries, as established in such cases as Blaney v. State, 74 Md. 153, 21 Atl. 547, dictate a different result here since, as he puts it, "The Grand Jury upon its own volition despite the promises of immunity by the State * * * [might] indict for the same matters for which the State claims to grant immunity." [***26] We may note that the possession of plenary powers by grand juries is not unique to Maryland; it is significant that the Supreme Court in holding an immunity statute applicable to grand jury proceedings in Hale v. Henkel, 201 U.S. 43, 66-67, made reference (at p. 63) to Blaney v. State, supra. See 201 U.S. at 63. Moreover, the short answer to appellant's fear of the grand jury was supplied in Brown v. Walker (161 U.S. at p. 608): "The same answer may be made to the suggestion that the witness is imperfectly protected by reason of the fact that he may still be prosecuted and put to the annoyance and expense of pleading his immunity by way of confession and avoidance.  This is a detriment which the law does not recognize.  There is a possibility that any citizen, however innocent, may be subjected to a civil or criminal prosecution, and put to the expense of defending himself, but unless such prosecution be malicious, he is remediless, except so far as a recovery of costs may partially indemnify him."

   Judgment affirmed, costs to be paid by the appellant. 

VOKROY, ADMINISTRATOR v. JOHNSON 
No. 162, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 269; 196 A.2d 451; 1964 Md. LEXIS 511

 January  8, 1964, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed.  Costs to be paid by appellant.

CORE TERMS:  matter of law, highway, guilty of contributory negligence, decedent, deceased, contributory negligence, windshield, gasoline, street, mile, A Matter Of Law, directed verdict, right front, contradicted, discredited, repairs, shoulder, stalled, facing, front, wheel, lane, feet, vehicular traffic, personal safety, leave a place, right of way, paved road, pedestrian, motorist

COUNSEL: Earl I. Rosenthal for the appellant.

   Patrick A. O'Doherty for the appellee.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*271] [**452] This appeal by Frank J. Vokroy, Sr., administrator of the estate of Frank J. Vokroy, [***4] Jr., deceased, is the result of the action of the trial court in granting a motion for a directed verdict in favor of the defendant, Donald Eugene Johnson, at the conclusion of the defendant's case.  Plaintiff's motions for a new trial and judgment n.o.v. were overruled by the court.

   Suit was instituted in the Circuit Court for Anne Arundel County by the plaintiff to recover damages for the injuries and death of Frank J. Vokroy, Jr. The deceased had been standing at or near his stalled automobile when he was struck by a car owned and operated by Johnson, the appellee herein, injuries from which collision were the proximate cause of young Vokroy's death some forty hours later.

   In this Court the appellant challenges two of the four grounds asserted by the appellee in his motion for a directed verdict. Stated affirmatively from the appellant's point of view, they are whether Johnson was guilty of primary negligence as a matter of law, and conversely, whether the deceased was guilty of contributory negligence as a matter of law.

   The accident occurred on Old Annapolis Boulevard approximately one hundred feet north of its intersection with Mountain Road in Anne Arundel County, on the [***5] evening of November 20, 1960.  The Boulevard runs generally north and south, accommodating one lane of traffic in either direction.  At the place where the accident occurred it is twenty-four feet wide with shoulders of six feet on either side of the paved highway. The deceased, prior to the accident, had been driving southbound and had as passengers Preston Adcock and Frank Williams.  The car ran out of gas, and Vokroy pulled off onto the west shoulder and stopped.  The left wheels of the car were just barely on the paved road. Obtaining a can of gasoline from a local service station, the deceased returned to the car and he, with Williams' help, began to pour the gas into the tank through a piece of pipe serving as a makeshift funnel.

   [*272] Moments before the actual impact the three men were engaged in the following activities.  Adcock was sitting behind the wheel in order to start the car.  He did not see Vokroy after he got into the car, and his first knowledge of the accident was when Williams told him that Vokroy had been hit.  Upon concluding the refueling operation, Williams went around the rear of the car from the left side to the right to get into the right front[***6] seat of the car.  He was almost in the car when he heard a thump and concluded that Vokroy had been hit.  The last time he saw Vokroy before the impact, the victim was standing against the left side of the car, facing away from it, getting ready to put the gas can into the trunk of the car.

   The plaintiff produced the police officer who investigated the accident and established through him that the initial point of impact with the defendant's automobile was just in front of the right front door at the place where the bottom of the windshield and the radio antenna joined the body of the car.

   Of the four witnesses called by the plaintiff who were in a position to testify concerning the accident and the surrounding circumstances, only one was an eyewitness at the actual moment of the impact.  That, of course, was the defendant Johnson, available as a witness for the plaintiff by virtue of Code (1957), Article 35, § 9.  Unless it was contradicted or discredited, the testimony of the adversary, Johnson, is binding upon the plaintiff, Vokroy, who called him as a witness.  Lehmann v. Johnson, 218 Md. 343, 146 A. 2d 886.

   Johnson testified that on the night of the accident he and his[***7] small son were proceeding southbound on Annapolis Boulevard.  When they were approximately three hundred feet away, the defendant saw the stalled automobile and brightened his headlights.  He saw that the car was parked and [**453] that there were men working on it.  As he approached he started to veer out into the left lane of the highway to give room "for emergency whatever would happen." When he approached he saw Vokroy standing with a gasoline can in his hand about a foot away from the disabled car facing eastward, looking across the highway. There is some conflict or confusion in the testimony as to the defendant's speed and whether he slowed down, but he was consistent in stating that he was going no faster than thirty to [*273] thirty-five miles per hour in a zone then marked fifty miles per hour.  According to Johnson's further testimony, the victim turned or pivoted and walked into the defendant's car as it passed.  In that split second the windshield cracked and Johnson gradually brought his car to a halt, thinking at first that the gasoline can had shattered the windshield, but only seconds later he realized that he had struck something or somebody.

   The rule by[***8] which a determination of whether the facts justify holding that the plaintiff's decedent was guilty of contributory negligence as a matter of law is generally stated that the act so relied on must be distinct, prominent and decisive, and one about which reasonable minds would not differ in declaring it to be negligent.  Miller v. Mullenix, 227 Md. 229, 176 A. 2d 203. We think that reasonable minds would unite in inferring from the evidence produced in the instant case that Vokroy was guilty of contributory negligence, and therefore the question was properly resolved by the court in the defendant's favor.

   The circumstances of the accident made it necessary for the plaintiff to call his adversary as a witness and rely heavily upon his testimony.  That evidence is uncontradicted in the portion concerning the victim's movement into the defendant's car.  Also we think that this was corroborated to some extent by the fact that the impact was not with the extreme front of Johnson's car, but on the hood and fender area near the windshield. Certainly this gives credence to the defendant's testimony that as he was passing, Vokroy left his place of safety and moved into the path of the[***9] defendant's passing automobile.  A motorist who has stopped his car on the highway and is making repairs on it is obligated to use due caution for his own personal safety. 2A Blashfield, Cyclopedia of Automobile Law and Practice, § 1198.  See also 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 381; 61 C.J.S., Motor Vehicles, § 476 b. Vokroy knew, or should have realized, he was at best in a dangerous position standing at his car, as he was, on the highway. His knowledge of the presence of an approaching car, with the lights shining, was as great or greater than Johnson's knowledge of the location and details concerning the stalled car and the attendant people cloaked in the darkness.

   This Court has often held it to be contributory negligence [*274] as a matter of law for a pedestrian to leave a place of safety for a position of peril between street crossings, thereby contesting the right of way of vehicular traffic then in the street. Leonard v. Hanson, 225 Md. 76, 169 A. 2d 459; Campbell v. Jenifer, 222 Md. 106, 111, 159 A. 2d 353, and cases there cited.

   Regardless of whether the defendant's actions were below the legal standard of care and thus[***10] constituted primary negligence, nevertheless the plaintiff can not prevail unless the deceased was himself not guilty of contributory negligence. (For our judicial definition of that standard of care see Sanders v. Williams, 209 Md. 149, 152, 120 A. 2d 397.) If Vokroy was contributorially negligent, the primary negligence of the defendant was immaterial.  Miller v. Mullenix, supra; Bearings Serv. Co. v. Balto. Transit Co., 197 Md. 1, 77 A. 2d 779. Having concluded that he was guilty of contributory negligence as a matter of law, we need not determine the question of whether appellee was guilty of primary negligence.

   Judgment affirmed.  Costs to be paid by appellant. 

RICHARDS FURNITURE CORPORATION v. BOARD OF COUNTYCOMMISSIONERS OF ANNE ARUNDEL COUNTY, et al. 
No. 136, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 249; 196 A.2d 621; 1963 Md. LEXIS 619

 December  18, 1963, Decided  
 January  8, 1964, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans and Duckett, JJ.

DISPOSITION: Decree affirmed.

CORE TERMS:  special session, right to petition, presentation, notice, session, grievance, merchants, proclamation, non-emergency, heading, Constitutional Law, First Amendment, authentication, redress, establishment, space, constitutional rights, merchandise, guaranteed, atmosphere, peaceable, signature, complied, convened, inquire, sealed, retail, aisles, stall, vague

COUNSEL: C. Edward Hartman, II, with whom[***9] was John W. Hessian, Jr., on the brief, for appellant.

   Loring E. Hawes, Assistant Attorney General, and Jerome F. Connell, Special Assistant Solicitor of Glen Burnie, with whom were Thomas B. Finan, Attorney General, and Henry J. Tarrantino, County Solicitor for Anne Arundel County, on the brief, for appellees.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*254] [**623] We, heretofore, decided this case by a per curiam order.  We now state our reasons for the decision.

   The appellant challenges the validity of an Act of the General Assembly, set forth below.  It has literally "thrown the book" at the Act.  It states nine separate questions to be answered, with the eighth subdivided into three questions and the ninth [**624] into six.  In the early case of Anderson v. Baker, 23 Md. 531, which dealt with constitutional questions, the opinion occupies ninety-eight pages of the reports.  The questions here posed present, we think, no serious difficulty; hence this opinion should be considerably shorter.

   The appellant, Richards Furniture Corporation (Richards), [***10] filed a bill in equity, praying declaratory and injunctive relief [*255] to declare unconstitutional the provisions of Code (1957), Article 27, § 521 (b), as amended by Chapter 13 of the Acts of the General Assembly of 1962 (Special Session), (hereafter referred to as "the Act" or "the Bill"), and to enjoin enforcement thereof by the appellees, law enforcement officials of Anne Arundel County.  In the alternative, it sought a declaration that the Act did not apply to its particular business.  From a decision holding that the Act was valid and that appellant's business came within its provisions, this appeal resulted.

   Richards, a Maryland Corporation, rents space and sells furniture in a large building built and owned by the Ritchie Highway Farmers Market, Inc. (Market), known as and called the Ritchie Highway Farmers Market.  The building is approximately 643 feet long while its width varies from 107 to 172 feet depending upon the shapes of its various departments.  Space is leased to some thirty-four merchants. The store building is set up with two separate, parallel, pedestrian aisles running from one side of the building to the other, dividing it into three areas.  Each[***11] tenant leases a designated area fronting on one or both aisles and his space is partitioned off by high walls on the sides.  Access to each shop is gained from an entrance off one of the aisles. In this respect, Richards' store is slightly different in that it is fully partitioned off from the aisles by a ceiling-high masonry wall with conventional doors, and it has an independent outside entrance for customers.

   The evidence indicates that the Market building, in its entirety, is open for business on Wednesdays and Thursdays from 4:00 to 10:00 p.m.; Fridays and Saturdays from 10:00 a.m. to 10:00 p.m.; and on Sundays from 12:00 noon to 6:00 p.m. The evidence further reveals that approximately 30,000 automobiles visit the Market each week, of which one-third of the total arrive every Sunday.  In short, about one-third of the weekly business is transacted on Sundays.  Not only does the Market, by its advertisements, hold itself out as the sole and responsible owner of the Market, containing a number of shops and selling a variety of goods, but it exercises a great deal of control over the merchants who occupy space within the Market building.  These controls over the individual merchants[***12] include, among other things, the selection and pricing of products [*256] to be sold, the methods of merchandising these products, the advertising which can be done, the hours of business that the individual merchants may be open, the hours that they must close, the selection and behavior of their personnel, and the reimbursement of monies to purchasers of products.  It is also significant that the occupants of the entire building are accommodated by one large parking lot, which is owned and operated by the Market.  It also hires special police to control the traffic, and the conduct of individuals on the parking lot area and throughout the entire market building. The testimony also showed that it is the generally accepted practice of the Market to have no more than one merchandiser of a particular class of products occupying space within its building; Richards is the only furniture department therein.  And although the building is called the Ritchie Highway Farmers Market, little, if any, actual farm produce is sold therein.

   The Act complained of reads as follows:

    "In Anne Arundel County, in addition to the articles of merchandise herein before mentioned, retailers may[***13] sell, barter, deal in, and deliver on Sunday the following articles of merchandise [many articles of merchandise, not [**625] relevant here]; provided, however, that nothing in this sub-title shall be construed to prevent the operation of any retail establishment on Sunday, the operation of which does not entail the employment of more than one person, not including the owner or proprietor.  Every market or department store in which stalls or departments are rented or concessions given to individual merchants or vendors shall be considered as one establishment and each stall or department thereof is not a separate establishment."
 
(The italicised portion above was added by the amendment of 1962).

   I, II, III, IV, V.

   We shall consider the first five of appellant's contentions under this heading. It asserts that the Maryland Constitution prohibits a special session of the General Assembly from enacting "a non-emergency local bill," citing Article II, Section [*257] 16, and Article III, Sections 14, 15 and 27, thereof.  It admits finding no Maryland decision to this effect and that the Constitution does not explicitly state any such prohibition, but argues the above[***14] sections implicitly do so.  We do not find it necessary to set forth the sections in detail.  The Maryland Constitution is not a grant of powers to the General Assembly, but a statement of limitations on its otherwise plenary powers.  Maryland Committee v. Tawes, 228 Md. 412, 439, 186 A. 2d 656.

   A careful reading of the Constitution reveals that the only constitutional limitations on extraordinary, or special, sessions are: (1) that the session be convened by a proclamation of the Governor (formerly this was not required); (2) the session shall last no longer than thirty days; and (3) no additional compensation, except mileage and other allowances provided by law, shall be allowed members for such sessions. Section 15 provides that the General Assembly, once properly convened, shall be the sole judge of how long "the public interest may require" (within certain limitations) it to continue in session. There can be little doubt that, at a special session, the public interest requires the Legislature to remain in session, within the thirty-day limit, as long as any necessary and proper legislation is under consideration and before it.  Cf. Article III, Section 56.

   We find no express[***15] nor implied provision in the Constitution preventing the passage of a "non-emergency local bill" at a special session. It is generally held that in the absence of constitutional limitation, the legislative power of a Legislature, when convened in extraordinary session, is as broad as its powers in its regular sessions. 50 Am. Jur., Statutes, § 46; State v. Majors, 16 Kan. 440; Woessner v. Bullock, 93 N. E. 1057 (Ind.); State v. Fair, 76 P. 731 (Wash.); Morford v. Unger, 8 Iowa 82. We, therefore, hold that the General Assembly was not prohibited from passing the Act because it was a non-emergency local bill.

   What we have said above also nearly answers the next four of appellant's contentions.  However, we shall add a few further comments concerning them.

   [*258] The appellant next attacks the Act on the ground that it was not within the Governor's proclamation. The Constitution of Maryland grants no authority to the Governor to limit, by his proclamation, the powers of the Legislature.  In the absence of such a restrictive provision, the authorities hold, as stated above, that the powers of the Legislature at a special session are as broad as at its general[***16] ones.  82 C.J.S., Statutes, § 10; 50 Am. Jur., Statutes, supra; 1 Cooley, Constitutional Limitations (7th ed.), 222; Morford v. Unger, supra; State v. Fair, supra. (These two cases deal specifically with the question under immediate consideration.) For cases where state constitutional provisions limited legislation to that in the Governors' proclamations, see those cited under C.J.S. and Am. Jur., ibid.

   [**626] Appellant also claims it "was denied its constitutional rights because of a lack of notice of the intended legislation." It does not state the constitutional provisions alleged to have been violated, nor does it cite any case in support of this contention.  It cites one or more cases which deal with the title requirements of Article III, Section 29, and seems to argue from certain language in the opinions of cases decided thereunder (which deal with titles) that "notice" of proposed legislation must be given to each citizen and corporation affected by it.  Unless the Constitution so provides, due process does not require that notice and hearing be provided in order to validate legislation.  1 Sutherland, Statutory Construction (3rd ed.) § 1012, [***17] p. 159; note, 28 Col. L. Rev. 619. There is no provision for such notice in the Maryland Constitution.  We may note, however, that "notice" is inherent in the legislative process in this State.  Under our democratic form of government, the Senators and Delegates are elected as representatives of the people.  Ample safeguards in the Constitution provide that these representatives shall have notice of proposed legislation: each bill must be read on three different days in each House (unless a two-thirds vote authorizes otherwise), Article III, Section 27; no bill shall be read a third time unless actually engrossed or printed, Ibid.; and a journal of the proceedings in both Houses must be made and published, Article III, Section 22.  We find no merit in this contention.

   In arguing that it "was denied its constitutional rights because [*259] of the lack of opportunity for a hearing or the right to petition the legislature," appellant again cites cases dealing with titles to bills under Section 29 of Article III.  Our constitution, as stated above, does not require that a hearing be held upon suggested legislation; Article 13 of the Declaration of Rights provides: "That every[***18] man hath a right to petition the Legislature for the redress of grievances in a peaceable and orderly manner."

   The right of petition first appeared in Magna Carta, Chapter 61, and was incorporated in the English Bill of Rights of 1689.  Corwin, Constitution, United States, 82 Congress, 2d Session Senate Document No. 170, p. 805. However, the meaning of the "right to petition the Legislature for redress of grievances" can best be understood in the context of the pre-Revolutionary period between the enactment of the Stamp Act in 1765 and the Declaration of Independence by the Colonies in 1776.  Morgan, The Stamp Act Crisis, pp. 53-70; Rossiter, Seedtime of the Republic, 319.  The celebrated trial in 1734 of John Peter Zenger, the newspaper editor and pamphleteer, for seditious libel had shown the colonists the fate to be expected by outspoken critics of British policy.  Drinker, The Four Freedoms of the First Amendment, p. 5.  The suppression by the British of written and spoken criticism by the Colonists of British colonial policies was one of the real fears of the period.  Cooley, op. cit. 498; 1 Blackstone; Commentaries (Lewis ed.), 142 (3).  And the rights [***19]of the Colonists, as Englishmen, to the freedom of speech, press, assembly and petition were among the most cherished rights of the citizens of that time.  It was in the light of this background that the framers of the Declarations of Rights of the original States and the Bill of Rights of the Federal Constitution drafted the provisions relating to the "right to petition" the legislative branch of the government.

   It is clear, we think, that the authors and the people who actually adopted our Declaration of Rights intended no more than to permit any person or peaceable assembly of persons, without fear of reprisal or prosecution, to communicate directly with the legislative body by way of a statement of grievances and a petition requesting a correction of wrongs previously committed.  The appellant is seeking herein not a right to petition [*260] for the redress of an alleged grievance after the passage of a law which it does not like, but the right of a hearing and a right to petition before the passage of the [**627] law.  The right guaranteed by Article 13 provides no assistance to the appellant in this regard.

   The right of petition guaranteed by the First Amendment[***20] to the Federal Constitution has now been extended so as to prevent its denial by the States.  NAACP v. Alabama, 357 U.S. 449; De Jonge v. Oregon, 299 U.S. 353; United States v. Harriss, 347 U.S. 612. However, we find nothing in the First Amendment nor in the Supreme Court decisions that aids the appellant in the contention now under consideration.

   Under its argument that "the action of the Legislature as a whole constitutes unfair and unequal treatment to plaintiff," appellant lists no less than seventeen alleged errors in what it terms "outline form." Many of them are repetitions of claimed errors under other headings. Although all of them have been considered, we think only two deserve brief consideration in this opinion: (1) "K. Non-descriptive title of the bill"; and (2) "L. Reading of the bill by title only." The title complied with Section 29 of Article III.  Baltimore v. Perrin, 178 Md. 101, n1 12 A. 2d 261; and a reading of a bill by a reading of its title only is a sufficient "reading" thereof to satisfy the constitutional provision relating to three readings.  Stiefel v. Maryland Institution, etc., 61 Md. 144; Worman v. Hagan, 78 Md. 152, 162, 27[***21] A. 616.

n1 The title reads as follows:

   "An act to repeal and re-enact, with amendments, Section 521 (b) of Article 27 of the Annotated Code of Maryland (1961 Supplement), title 'Crimes and Punishments,' sub-title 'Sabbath Breaking,' to further define the kinds of retail establishments that may sell certain goods and merchandise on Sunday in Anne Arundel County."

   VI and VII

   Under these headings, appellant contends that "the Governor vetoed [the Act] by reason of his failure to sign it within six days after presentation to him," and "a litigant * * * may inquire behind the forms of authentication [of a bill] and the General Assembly actions * * *." The special session ended [*261]on March 9, 1962.  On the same day, the Chief Clerk of the House of Delegates delivered the Bill to the Secretary of State, who, on March 12, 1962, handed it, together with other bills, to the Governor.  The Governor acknowledged their receipt by letter, and, in accordance with normal procedure, forwarded them to the[***22] Attorney General for review as to form and legal sufficiency.  The authenticated copy of the Bill states in a memorandum signed by the Chief Clerk of the House that it was sealed and presented to the Governor on March 23, 1962; and it was signed by him on the same day.

   Appellant argues that the authentication on the Bill is not conclusive, it has a right to go behind the same, and the Governor's letter and the testimony of the Chief Clerk "imply" that the Bill was "presented" on March 12, 1962.  It is true that in a proper case the courts may inquire beyond the forms of authentication on a bill to determine whether it has been constitutionally enacted.  Berry v. Baltimore Drum Point Railroad Co., 41 Md. 446; Legg v. Annapolis, 42 Md. 203; Redwood v. Lane, 194 Md. 91, 69 A. 2d 907. However, an act which has been duly authenticated and published as law, as the Bill in the instant case has, bears a strong presumption that all constitutional provisions have been complied with, and it has been validly enacted into law; and this presumption continues to exist until the contrary is clearly made to appear. Berry v. Baltimore Drum Point Railroad Co., supra; Baltimore Fid. [***23]  Warehouse Co. v. Canton Lumber Co., 118 Md. 135, 84 A. 188; Redwood v. Lane, supra. And a statute which has been duly authenticated is not to be impeached by parol evidence alone.  [**628] Berry v. Baltimore Drum Point Railroad Co., supra; Ridgely v. Baltimore City, 119 Md. 567, 87 A. 909.

   The appellant's effort to impeach the certification by the Chief Clerk that the Bill was presented to the Governor on March 23, 1962, falls far short of what is necessary to accomplish such an impeachment; and demonstrates, we think, a failure to comprehend the true meaning of the "presentation" of a bill to the Governor as provided for by Article 2, Section 17, of the Constitution and Code (1957), Article 41, Section 45.  Such a presentation to the Governor for his signature is a formal act and anticipates that the bill will be sealed with the great seal [*262] and actually and formally "presented" to the Governor for his signature by the Secretary of the Senate or Chief Clerk of the House, who in the presence of the Governor, shall make a memorandum thereon in writing of the day and hour of its presentation, and sign the same.  The mere informal receipt by the Governor's office[***24] of a bill for other purposes is not a requirement of law, and carries with it no legal significance such as to require action by the Governor in any specified time. n2 If this were not true, many practical difficulties would be encountered on such occasions as when several hundred bills passed by the General Assembly are delivered to the Governor before he has had time carefully to consider them and to have the Attorney General pass upon their validity.  We hold that the Bill was actually presented to the Governor on March 23, 1962, and that this was a reasonable and legal time after passage of the Bill for its presentation. Robey v. Broersma, 181 Md. 325, 26 A. 2d 820.

n2 It is not necessary, under the circumstances of this case, to determine whether the Governor had only six days after March 12 within which to sign the Bill in order to make it law, even if it had been formally presented to him on that date (as contended by appellant); hence this opinion is not to be construed as making any such determination.

[***25]

   The remainder of appellant's argument under these headings is answered by a short quotation from the opinion in the above case:

   "After it has been presented to the Governor, there are three ways in which such a bill may become law: (1) by being signed by the Governor; (2) by being passed over his veto; (3) by his failure to return the bill within six days after its receipt by him unless the General Assembly has adjourned and thereby prevented its return.  [citations] In the case before us, the Legislature [as in the case at bar] had adjourned before the bill was presented to the Governor, and, therefore, under the provisions of the Constitution, Art. II, Sec. 17, it could only become a law by the signature of the Governor."

   [*263] VIII

   Under this heading, appellant argues that the Act violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and Article 23 of the Declaration of Rights.  It contends that the Act fails to "meet the requirement regarding conformity among persons as such," and that it also fails "because it is so vague as not to give reasonable notice of the forbidden conduct."

   These contentions present no serious difficulty. [***26] In the recent case of McGowan v. Maryland, 366 U.S. 420, wherein the Supreme Court affirmed a decision of this Court (McGowan v. State, 220 Md. 117, 151 A. 2d 156) that Court pointed out that the stipulation in Section 521 that permits shops with only one employee to remain open on Sunday and the other provisions of Maryland law which permit various sports and entertainment on Sunday were clearly fashioned for "the purpose of providing a Sunday atmosphere [**629] of recreation, cheerfulness, repose and enjoyment," and then stated: "* * * the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.  State Legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.  A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." Compare Ness v. Baltimore, 162 Md. 529, 160 A. 8; State v. Karmel Merchandising Corp., 186 A. 2d 352 (Me.).  Thus it is seen that the basic portion of the Act has been found to be constitutional; consequently it is still [***27] so, unless the provision that "every market or department store in which stalls or departments are rented or concessions given to individual merchants or vendors shall be considered as one establishment" rendered it unconstitutional.

   We think, and therefore hold, the Act conforms with the Maryland scheme as delineated by the Supreme Court in the passage quoted above.  The operation of large commercial markets or department stores on Sunday would materially interfere with the recreational atmosphere of the day, while small retail operations will not.  And we think the classifications prescribed [*264] by the Act are reasonable and proper and are not of an invidious nature, McGowan v. Maryland, supra, being designed to prohibit on Sundays large commercial operations such as that here attempted by the Market.

   And we do not find the statute vague or indefinite in a constitutional sense. It is unnecessary to elaborate upon this point in great detail.  The Act is couched in plain and simple language, which may be easily understood by persons of ordinary intelligence.  This is all that is required of a statute in order to prevent it from being vague and indefinite in a constitutional[***28] sense. United States v. Alford, 274 U.S. 264; Connally v. General Const. Co., 269 U.S. 385; and the Note "The Void-For-Vagueness Doctrine in the Supreme Court," 109 Penn. L. Rev. 67.

   The appellant finally asks us to define the meaning of seven words in the amendment made by the Act, and to find that, even though it was constitutionally enacted, appellant's operation does not come within the conduct proscribed therein.  This Court does not render advisory opinions.  Tanner v. McKeldin, 202 Md. 569, 97 A. 2d 449. We, therefore, proceed to a consideration of whether appellant's conduct of its business on Sundays is prohibited by the Act.  We are impelled to agree with Judges Duckett and Evans in their finding that appellant's conduct of its business within the Market must be classified as a department within a large retail operation.  The record discloses that the amount of control of appellant's business exercised by the Market is such as clearly to show that there is a great deal more than a mere landlord-tenant relationship between them.  This vast control, alone, conclusively demonstrates that appellant's business is nothing more than a department being operated in the[***29] Market, and not a separate and distinct business.

   Since we were prepared to hold that the Act was constitutionally enacted and that appellant's business operations on Sundays were prohibited by it, we passed the per curiam order mentioned above. 

LANGVILLE, AN INFANT, Etc., et al. v. GLEN BURNIE COACHLINES, INC. 
No. 91, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 181; 195 A.2d 717; 1963 Md. LEXIS 611

 December  13, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  brake, bus, hydrovac, driver, proximate cause, independent cause, buses, sudden, school bus, collision, passenger, miles, ipsa, inference of negligence, reasonable inspection, permitted to recover, sufficient evidence, evidence to support, injuries suffered, injury complained, held responsible, own testimony, check valve, brake pedal, foot brake, slow down, contract-carrier, affirmatively, unforeseeable, dismantled

COUNSEL: John Brockenbrough Fox, with whom was Gerald A. Fox on the brief, for appellants.

   W. Harvey Beardmore, with whom were Rouse, Morton & Beardmore on the brief, for appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*182] [**718] Appellants are a minor, suing for injuries suffered while a passenger on a contract-carrier's school bus, and her father, suing to recover for her medical expenses.

   Appellants concede that the doctrine of res ipsa loquitur[***4] has no application here; hence the only question involved is whether there was sufficient evidence of primary negligence on the part of defendant or its driver to take the case to the jury.  [*183] We must, therefore, examine the evidence adduced in a light most favorable to appellants and give them the benefit of all reasonable and permissible inferences to be drawn therefrom.

    Appellants produced testimony to the following effect.  The minor, a female aged 16, was a student at a public school, and rode a school bus to and from school.  Appellee is a contract carrier, and was the owner of the bus in which the minor was riding when injured.  She boarded the bus at Glen Burnie, and it, preceded by two other buses, proceeded toward her home.  After proceeding quite a few miles, during which stops had been made by all three of the buses without incident, the first and second buses stopped, and appellee's bus ran into the rear of the second, injuring the minor.  The highway, at the point of collision, was a rather narrow, secondary one, but relatively straight.

   Lt. Bates and Officer Fertitta arrived at the scene shortly after the collision. They examined the brakes on appellee's[***5] bus, and Bates found the brake pedal to be "hard and firm." He stated that he found the foot brake to be in operating order, and, although he could not "say for sure," he thought it was in "reasonably good condition."

   Fertitta testified that the operator of the bus, at the scene, told him that his brakes failed to hold, and, even though he placed the bus in low gear to slow down, it struck the bus in front of him; that the bus left no skid marks; and that he knew nothing about the braking system of the kind on the bus, but "the brake pedal seemed to have free play." He stated further that when he tested the foot brake, the motor was off, and he knew "the motor had to be running for the vacuum to work, but not for the hydraulic system."

   The appellants then called the service manager for the Hoffman Truck Center, a man of twenty years' experience in the repairing and maintenance of heavy-duty trucks and buses. He explained in detail the hydrovac system of braking.  He examined appellee's vehicle; the "hard pedal" indicated to him that the hydrovac or the check valve in it was faulty.  He stated that the hydrovac magnifies "many, many times" the pressure of the brake fluid, and without[***6] it, there would not be sufficient pressure on the brake shoes to stop the bus. When the engine [*184] is not running, or the hydrovac is not operating correctly, there is a "hard pedal, just like pushing against a stone wall." On the other hand, when the engine is running and the hydrovac operating properly, there is a "soft pedal."

   The hydrovac sustained no damage to its exterior casing, and the witness found no leaks of brake fluid.  He tested the suspected hydrovac unit by removing it from the bus, and installing it in another bus of the same kind.  By this method, he "proved that it was defective." He found that the check valve was inoperative, which could mean that the valve was defective, or dirt or some foreign material had gotten into it.  The witness pointed out that the unit did not require regular inspection or maintenance, and there was no way of ascertaining a defect "prior to actual failure." He stated that after "years and years of use," the hydrovac should be dismantled, but he did not think a six-year-old one, such as involved herein, should be dismantled.

   [**719] The minor plaintiff, who had no driver's license and could not see the speedometer, took the[***7] stand and said the bus was going "about 45-50 miles an hour" (the maximum for school buses is 45 miles per hour; Code (1957) Article 66 1/2, § 261).  She stated the bus had made several stops on the trip without difficulty, and prior to the collision, "the bus driver tried to slow down but he just couldn't." She saw him "pushing the brake," and "put his foot on the brake but it didn't help at all." Several other young passengers testified.  They used some adjectival descriptions of the operation of the bus, such as it was going "fast," or at a "normal" speed, but they added little, if anything, to aid the appellants' cause.  As a matter of fact, one of them stated that "something happened to the bus mechanism."

   On this testimony, all offered by the plaintiffs below, Judge Sachse granted a motion for a directed verdict in favor of the defendant, and his ruling was, we think, correct.  The plaintiffs faced one of those situations where it is difficult to prove enough to take their case to the jury on the question of primary negligence, without proving too much to permit a jury to pass thereon.

   It is fundamental that in an action for damages for injuries [*185] alleged to have[***8] been caused by defendant's negligence, the burden is upon the plaintiff to prove affirmatively defendant's negligence, and that it was a proximate cause of the injuries.  For the purposes of this case, we shall assume, without deciding, that there was some evidence to support a possible inference of negligence on the part of appellee's driver had no brake failure been involved. n1 However, plaintiffs proceeded further and showed by their own testimony that a sudden and unexpected brake failure was involved; and the cause of that failure was such that a reasonable inspection or test of the brakes would not have revealed.  Compare Sothoron v. West, 180 Md. 539, 26 A. 2d 16; Kaplan v. Stein, 198 Md. 414, 84 A. 2d 81; Garfinkle, et al. v. Birnios, 232 Md. 402, 194 A. 2d 91; and Currie v. United States, 312 F. 2d 1 (C. A. 4), wherein Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A. 2d 241, is distinguished.

n1 A rather tenuous assumption, especially after the above mentioned concessum that res ipsa has no application here.

[***9]

   At this point, we are confronted by the well-established rule of evidence that the burden mentioned above is not met by proof adduced by the plaintiff to the effect that defendant's negligence may have caused the injuries, or even that it probably did cause them, if it also appears from plaintiff's evidence that the injuries may have resulted from some other cause for which the defendant is not responsible.  The rule was stated by Chief Judge McSherry for the Court in Strasburger v. Vogel, 103 Md. 85, 91, 63 A. 202, thus: "But when the plaintiff himself shows that the injury complained of must have resulted either from the negligence of the defendant or from an independent cause for the existence of which the defendant is in no way responsible, he cannot be permitted to recover until he excludes the independent cause as the efficient and proximate cause of the injury * * *." See also Moore v. American Stores Co., 169 Md. 541, 182 A. 436; Wasserman v. Hutzler Co., 219 Md. 310, 149 A. 2d 1; Joffre v. Canada Dry, Inc., 222 Md. 1, 158 A. 2d 631, and cases referred to in the opinions.  Compare Great Atlantic, etc., Co. v. Adams, 213 Md. 521, 132 A. 2d 484.[***10]

   We think the evidence produced by the plaintiffs in the [*186] instant case falls directly within the pattern of the above rule, and precludes their recovery against the defendant.  It is obvious that the defendant could not properly be held responsible for a sudden and unforeseeable brake failure such as that proved by the plaintiffs, and which they showed could have caused the injuries; therefore it was incumbent upon [**720] them to eliminate the brake failure as the efficient and proximate cause of the injuries complained of, before they could recover for the negligence of appellee's driver, which we have had to assume.  This, they failed to do; consequently, the action of the trial judge in taking the case from the jury was correct.

   Judgment affirmed, with costs. 

JACKSON v. BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY 
No. 121, September Term, 1963
 
Court of Appeals of Maryland
 
233 Md. 164; 195 A.2d 693; 1963 Md. LEXIS 608

 December  11, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Judgment reversed, with costs, and case remanded for further proceedings.

CORE TERMS:  notice, municipality, registered mail, claimant, substantial compliance, collision, insurance carrier, written notice, unliquidated damages, actually received, property damage, truck, mail, notice of claim, ninety, sufficient information, literal compliance, damages suffered, personal injury, municipal body, specified time, stated cause, great weight, dump truck, gratification, prerequisite, investigate, fulfillment, technically, ascertain

COUNSEL: Martin Moncarz, with whom was James G. Perry on the brief, for the appellant.

   James L. Wray, with whom were McWilliams & Melvin on the brief, for the appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*166] [**694] The appeal is from a summary judgment in favor of Anne Arundel County for failure of the plaintiff to comply with the statutory provisions for the giving of notice to a county or other municipality as a prerequisite to claiming or suing for "unliquidated damages for any injury or damage to person or property." Code (1957), Art. 57, Sec. 18, as read by Neuenschwander v. Wash. San. Com., 187 Md. 67, 76, provides that as a condition precedent to the maintenance of a successful claim or of suit against a municipality, the claimant or his representative must, within ninety days of the occurrence, present to "the county commissioners, or the corporate authorities" in person or by registered mail written notice "setting forth the time, place and cause of the alleged damage, loss, injury[***4] or death."

   The stipulated facts establish the following.  The appellant Phyllis Jackson was injured while a passenger in an automobile driven by her husband, William Jackson, by reason of a collision of the automobile and a dump truck owned by the County and driven by its servant.  The accident happened on January 18, 1962.  The County employee who was driving the County dump truck reported the collision to his superiors shortly thereafter, in the regular course of business.  The County's insurance carrier investigated the claim.  On March 19, 1962, claimant's attorney gave oral notice of the claim to an assistant county attorney.  On April 12, 1962, claimant's attorney sent a letter by ordinary mail to the County Commissioners of Anne Arundel County at the court house in Annapolis, which read as follows:

   "We represent Phyllis and William A. Jackson, Jr., and their collision insurance carrier, Interstate Insurance Company, in a claim for damages against Anne [*167] Arundel County Public Works arising out of a collision occurring on January 18, 1962, at Solley [**695] Road and Powhatan Beach Road with a County Roads truck operated by Joseph Frank Havranek.

   "Please contact[***5] us promptly or if you carry liability insurance, have your insurance carrier contact us concerning payment of our claim."

   The Commissioners received the letter within a day or two of mailing and before the expiration of ninety days from January 18, 1962.  It also appears that on April 26, 1962, the County's insurer replied to claimant's attorney on behalf of "our above insured" (the County Commissioners of Anne Arundel County) that "since our investigation clearly reveals negligence on the part of your client, William A. Jackson, Jr., we must respectfully deny your subrogation claim."

   In response to appellant's argument that there was sufficient compliance with the statute requiring notice, the County argues that there was noncompliance with two essential requirements -- there was no notice given of appellant's claim, only of a claim for property damage and, in any event, the notice was not delivered either in person or by registered mail. We find neither of the County's contentions to be sound.

   The purpose of the statute clearly would seem to be to have the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time, sufficient[***6] to ascertain the character and extent of the injury and its responsibility in connection with it.  The Legislature expressly provided that there be given the municipality written notice of "the time, place and cause" of the alleged injury.  The written notice which the County received in this case said there was a claim for damages against the County by Phyllis and William Jackson and their insurance carrier by reason of a collision with "a County Roads truck operated by Joseph Frank Havranek" on January 18, 1962, at Solley Road and Powhatan Beach Road.  This would seem to be literal compliance with the statute's requirement of advice as to "the time, place and cause of the alleged damage" and certainly, we think, there was substantial gratification of the purpose of [*168] the statute when the appellant, Phyllis Jackson, put the County on notice that she had a claim for damages suffered at a specified time and place and from a stated cause. Under the great weight of authority, substantial compliance is enough. See annotation in 63 A. L. R. 2d 863, 866, entitled "Sufficiency of notice of claim against municipality as regards description of personal injury or property damage," [***7] and annotation in 62 A. L. R. 2d 397, 401, titled "Sufficiency of notice of claim against municipality with respect to nature of defect and cause of accident."

   It is conceded that the appellant did not either deliver the notice in person or cause it to be delivered by registered mail, but it is also a stipulated fact that the notice, which we hold met the statutory standards, was actually received by the County in the ordinary mail within the time set by the Code provision.  Statutes of this type are part of the law of many States and the majority of the cases recognize that the purpose of their specifics as to delivery is to make sure that notice actually is received within a short enough time after the injury occurs to give the municipality an opportunity to investigate while the matter is fresh.  If the purpose of the statutes is fulfilled, the manner of the accomplishment of the fulfillment has not generally been tested too technically. Teresta v. City of New York (N. Y.), 108 N. E. 2d 397. In such cases substantial compliance generally is held to be enough.  18 McQuillin, Mun. Corp., 3rd Ed., Sec. 53.162 (Cum. Supp.); 1 Merrill on Notice, Sec. 545, p. 570; 64 C. [***8] J. S. Mun. Corp. 2199, a and f; 38 Am. Jur. Mun. Corp. Sec. 675; Rhyne, Municipal Law, Sec. 30-32.

   In Perl v. New York City Housing Authority, 231 N. Y. S. 2d 142, and Drake v. Comptroller of City of New York, 104 N. Y. S. 2d 774, the notice was not sent by registered mail [**696] but actual receipt was admitted or demonstrated.  It was held that the statutory prescription for sending the notice by registered mail was obviated.

   Judgment reversed, with costs, and case remanded for further proceedings. 

MULLINS et ux. v. RAY et al. 
No. 64, September Term, 1963
 
Court of Appeals of Maryland
 
232 Md. 596; 194 A.2d 806; 1963 Md. LEXIS 736

 November  11, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett and Sachse, JJ. 

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

CORE TERMS:  deed, roadway, grantor, way of necessity, easement, tract of land, demurrer, grantee, public highway, right-of-way, convenient, decree, sufficient to justify, temporary injunction, inconvenience, interfering, estoppel, enjoin, speaking, reasonable to suppose, allegations of fraud, remaining property, motion to dissolve, implied easement, legal operation, bill in equity, own witness, public road, highway, outlet

COUNSEL: Moses Davis and Julio E. Soltero for the appellants.

   No brief and no appearance for the appellees.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*597] [**807] The appellants, Bob B. Mullins and Carolyn J. Mullins, his wife, filed an amended bill in equity in the Circuit Court for Anne Arundel[***4] County seeking to enjoin the appellees, Bessie Ray and Russell Walden Ray, from interfering with their use of a certain roadway located on a tract of land owned by the latter, and adjacent to a tract purchased from them by appellants.  [*598] The bill also prayed for damages and for further relief.  A certified copy of the deed from the appellees to the appellants was attached to the bill as an exhibit.  The Mullinses sought and obtained an ex parte order granting a temporary injunction enjoining the defendants from interfering with the roadway. Appellees demurred to the amended bill assigning specifically as a ground the Statute of Frauds, and in addition filed a written motion to dissolve and rescind the order for injunction.  The appellants answered the motion, and there was a hearing on both the demurrer and the motion, after which the court rendered a final decree on February 1, 1963, granting the motion and sustaining the demurrer. The record before us does not contain any opinion, written or oral, disclosing the grounds upon which the chancellor based the decree. Appellants here contest the correctness of this decree.

   The facts set forth in the amended bill which, [***5] of course, must be taken as true for purposes of ruling on the demurrer, were these: On or about November 13, 1959, appellants purchased from appellees a certain tract of land improved by a dwelling house and situated on the south side of Dorsey Road, a state highway. A contemporaneous deed was executed and properly recorded. Frontage on Dorsey Road was about 150 feet and the lot had a depth of about 600 feet.  Running the length of the west side of the lot was the roadway in dispute.  The house was situated well back from and facing Dorsey Road, and between that road and the house was a lot of about one acre which had been under cultivation.  Appellants used the roadway to get from Dorsey Road to the house, thus actually coming in from the state road by the side of the lot and house. Some time in November 1961 the appellees or their agents stretched across the entire width of the roadway a wire fence and posts, thereby preventing appellants from using it and precipitating this action.

   The legal principles which govern here are well established in Maryland.  As long ago as 1869, Judge Miller, speaking for the Court, said in Bladen v. Wells, 30 Md. 577, 581:

   "No principle[***6] of law is more firmly settled than that which excludes parol evidence from being used either at law or in equity for the purpose of contradicting, [*599] adding to, subtracting from, or varying the terms of a deed, or controlling its legal operation and effect, except where it is impeached for fraud, or where it is sought to be reformed upon the allegations of fraud, accident or mistake."
 
This is generally referred to as the merger doctrine, and many decisions pertinent thereto are collected in 6 M.L.E., Conveyances, § 94.

   Another principle concerns easements raised by way of necessity. Where a grantor conveys a tract of land which has no outlet to a public highway except over his remaining land or over that of a stranger, a way of necessity over the grantor's [**808] remaining property will be implied.  Condry v. Laurie, 184 Md. 317, 321, 41 A. 2d 66. But we recognized in that same case that mere inconvenience is not sufficient to justify raising an implied easement. Only in cases of strictest necessity where it is not reasonable to suppose that the intent of the parties is to the contrary will this principle be invoked.  Id., 322.

   The appellants[***7] in their brief and oral argument claimed that the demurrer should have been overruled and the case permitted to be tried on its merits by allowing them to offer evidence at the trial to show that the case would fall within any one of the recognized exceptions to the requirements of Section 4 of the Statute of Frauds.  The short answer to this proposition is that our reading of the bill discloses no allegation of fraud or mistake, nor anything which would constitute a basis for estoppel. The bill merely states that they are entitled to this right-of-way as an appurtenance to the property conveyed under the "Together" clause of the deed to them.
 
   It is true that there was testimony taken at the hearing on the appellees' motion to dissolve and rescind the order granting the temporary injunction that would support appellants' claim that appellees intended them to have the use and enjoyment of the roadway. According to the appellants' testimony reliance was placed on certain remarks made by appellees and the attorney for the mortgagee immediately prior to the settlement which led them to believe that they had unlimited use of the road without any mention of it being required in the deed. [***8] [*600] Aside from the fact that none of this was alleged in the amended bill, their own witness made it clear that there was no mistake or accident in not including the easement in the deed. The attorney who handled the settlement of the transaction for the mortgage company testified that he told the appellants that the description in the deed did not call for the right-of-way and, in answer to a question propounded by appellants' counsel, stated that he told appellants that appellees were not going to allow the right-of-way to be included in the deed.

   In support of their case the appellants further claim that the road in question was and still is the only existing road for ingress and egress to their home.  While this may be true literally speaking, the road is not the only means of access to and from the public highway, Dorsey Road.  The appellants' property abuts Dorsey Road as we have seen, and the lot between it and the appellants' house is fairly flat.  It does not appear that a road could not feasibly be constructed over it.  After all, the road in dispute came into being by continued driving of vehicles over similar terrain.

   Mr. Mullins testified that he and his[***9] wife could not afford the cost of constructing a road over that lot.  This same protest was raised in Condry v. Laurie, supra, where construction of a bridge was involved.  We recognize that if the cost would require an unreasonable expense out of proportion to the value of the land there might be a reason for implying an easement. But, we said too that the Court will not recognize a way of necessity if another road to the highway can be made without unreasonable expense, even though the other road may be much less convenient. Mere inconvenience is not sufficient to justify the finding of a way by necessity.  Id., 322.

   Duvall v. Ridout, 124 Md. 193, 92 Atl. 209, is controlling.  There a portion of a tract of land was sold, partly bordering on a public road, to which there was also access by a road wholly within the parcel sold.  However, a more convenient route which traversed part of the land reserved by the grantor was used by the grantee for several years without any objection.  Then the grantor erected a wire fence across the roadway, and the grantee having removed it under a claim of right, the grantor brought a [*601] bill in equity to perpetually enjoin the[***10] grantee from using the road.

   [**809] As in the instant case, there was testimony as to an oral agreement that the grantee would be permitted to use the way in question, in other words, merely a license.  This was denied by the grantee who claimed the right to use the road absolutely.  He relied, as do appellants here, on the deed's "Together" clause which contained the exact language contained in the deed involved in this case.  We held that the deed did not contain language sufficient to confer such a right, and further, that since there was another means of access to the public road although by a less convenient route, there was no way of necessity over the disputed road.
 
   We hold that since appellants' amended bill of complaint does not allege facts sufficient to charge fraud, mistake, accident or grounds for estoppel, and since there is no occasion to imply an easement by necessity, the decree appealed from must be sustained.

   Decree affirmed, costs to be paid by appellants. 

JENKINS v. STATE 
No. 47, September Term, 1963
 
Court of Appeals of Maryland
 
232 Md. 529; 194 A.2d 618; 1963 Md. LEXIS 726

 November  5, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  arrest, watch, seizure, lawful, admissible, assault, illegal search and seizure, admissibility, illegal arrest, police officers, misdemeanor, arrested, cruiser, excessive force, grand larceny, peace officer, highway, waived, path, lane, Fourteenth Amendment, evidence obtained, resisting, concedes, flight, stolen, pushed, timely objection, breaking and entering, search and seizure

COUNSEL: Thomas J. Curley for appellant.

   Robert L. Karwacki, Assistant [***3]  Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson and John A. Blondell, State's Attorney and Assistant State's Attorney, respectively, for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*530] [**619] Early on the morning of July 3, 1962, Lieutenant Erbe and Officer Martel, of the Anne Arundel County Police, who were assigned to the Ferndale headquarters, were each operating a patrol car.  They met at Fishpaw's Service Station, located on the Ritchie Highway, just south of Manhattan Beach Road.  At approximately 6:20 a.m. two unidentified persons approached the officers and reported having seen a man in a 1950 green Chevrolet acting in a peculiar manner on Manhattan Beach Road.  In separate police cruisers the two officers proceeded to investigate.  Officer Martel stopped at the local American Legion Hall to check for a car of the given description, while Lt. Erbe continued for about a half mile, where he observed a car of that description approaching him.  Turning around, he began[***4] to follow the car while instructing Officer Martel by radio to flag it down.  This Martel attempted to do, but he was forced to jump out of the path of the oncoming vehicle which accelerated and passed him.

   [*531] Thus began a chase both north and south on Ritchie Highway, a dual lane highway with a grass median strip, culminating on Old Annapolis Road. However, before the car had reached the intersection of Manhattan Beach Road and Ritchie Highway, Lt. Erbe drove his police cruiser beside it, turned on the red stop signal and sounded the siren, but the car failed to stop.  Instead it continued and turned south on Ritchie Highway. Lt. Erbe then attempted to force the car to come to a halt by passing the vehicle and then slowing down. However, [**620] this maneuver was thwarted by the driver of the errant car, who allowed it to collide with the rear of the police cruiser.

   The chase continued.  The operator of the Chevrolet ignored warning shots fired by Erbe, and he further attempted to force Officer Martel's patrol car off the highway. When the intersection of Ritchie and Route 50 was reached, the car turned around and proceeded in the north bound lane of Ritchie Highway. [***5]Further along the route a State policeman attempted to intercept the car, but he was forced off the highway. Finally, the car turned left onto Old Annapolis Road where, near Joyce Lane, it overturned, flipped back on its wheels and stopped.  The operator, who was in need of medical attention, proved to be the appellant Jenkins.  He was arrested and taken to a hospital for treatment.

   In the Chevrolet were whiskey, cigarettes, cigars, knives, crab knives, confections and other miscellaneous property, a quantity of coins in denominations of quarters, nickels, and pennies, the total value of which was approximately $300.  The overturning of the car had scattered these items, and it appeared that some of them spilled out on the ground in plain view of the officers.  The officers took protective custody of the car and the items.  The car was removed to Fishpaw's Service Station.  The items were taken to the Ferndale Police Station, where they were assorted and photographed in Lt. Erbe's presence.

   Less than an hour after the events described above it was reported, by a member of the police, that Larry's Tavern, owned by Nelson Pearce and located on Manhattan Beach Road about one-quarter[***6] mile from where the Chevrolet was first encountered, had been broken into.  Subsequently Mr. Pearce identified [*532] some of the material found in the possession of the appellant as property taken from the tavern.

   Jenkins was charged under two counts of an indictment with, respectively, breaking and entering the tavern with intent to commit a felony therein (grand larceny), and grand larceny. On December 17, 1962, he was tried in the Circuit Court for Anne Arundel County, before Judge Matthew S. Evans and a jury, when he was represented by court-appointed counsel, not his counsel on appeal.  The jury returned verdicts of guilty on each count and the trial court imposed judgment and sentence of five years imprisonment in the Maryland House of Correction on each count, the sentences to run concurrently.  Whereupon this appeal was taken. 

   The sole question presented here is whether certain articles found in the possession of the appellant at the time of his arrest should have been admitted into evidence at his trial on charges of breaking and entering and grand larceny. He contends that they were obtained by an illegal search and seizure, and thus are inadmissible in evidence[***7] under the ruling of the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. The State, on the other hand, urges that since no objection to the admissibility of the evidence in question was made at the time it was offered, under Maryland Rule 885 there is really nothing before us to review.

   Our reading of the record confirms that not only was no timely objection made to the admissibility of this evidence at the trial, but appellant's trial counsel, in cross-examining Officer Martel, elicited from him an itemized list of the purloined goods found in the automobile.

   Appellant is correct in asserting that Mapp precludes the use in State criminal proceedings of evidence obtained in an illegal search and seizure. But that decision was handed down on June 19, 1961.  The trial in this case took place on December 17, 1962.  Thus appellant was charged with knowledge of the Mapp case, and the construction of the Fourteenth Amendment to the United States Constitution it imports.  As we very recently stated in Porter v. State, 230 Md. 535, 536-537, 187 A. 2d 870:

   [*533] "The now famous case of Mapp v. Ohio * * * which held that evidence[***8] [**621] obtained in an illegal search and seizure may no longer be used in a state prosecution, also recognized that state procedural requirements to raise or preserve the question may still be respected in the case of an alleged violation of the Fourteenth Amendment. Shorey v. State, 227 Md. 385, 389, 177 A. 2d 245. * * * [T]his Court has held that a party waives his right by not objecting to the evidence at the time it was offered.  Rule 522 d 2; Martin v. State, 203 Md. 66, 72, 98 A. 2d 8; Dick v. State, 107 Md. 11, 68 Atl. 286. See also Banks v. State, 228 Md. 130, 132, 179 A. 2d 126. Therefore, we hold that since there was no objection to the introduction of the items in evidence at the time they were proffered, but only at the conclusion of the State's case and at the conclusion of the whole case, appellant has knowingly waived his right to question their admissibility on this appeal."
 
We think the same rationale is applicable here and hold that appellant has waived his right to have this Court review the admissibility of this evidence in his trial below.

   Even if the question were properly reserved for review by this Court, we think the evidence[***9] was admissible.

   Unlike the usual cases dealing with searches and seizures which come to us, there was here no actual search.  As noted previously, the conglomerate material in the Chevrolet at the time it overturned and appellant was arrested was taken into protective custody by the officers.  At that time they were not aware of the breaking and entry which had occurred at Larry's Tavern and only after subsequently learning of this did they seize the material in a legal sense.

   Admittedly there was no search warrant issued.  But appellant concedes in his brief that if an arrest is lawful the fruits of search and seizure incidental thereto are admissible in evidence.  Appellant also concedes that where a misdemeanor is committed in the presence of a peace officer a lawful arrest may be made without a warrant and cites Davids v. State, 208 Md. 377, [*534] 118 A. 2d 636 (where we found an illegal arrest), but one of the line of cases recognizing this rule of law.  Appellant's wilful refusal to comply with the lawful orders of police officers in the operation of the car (§ 181), n1 his failure to stop after the collision between his car and the police cruiser (§ 200), [***10] and his reckless driving (§ 209), undeniably constituted misdemeanors committed in the presence of the police officers.

n1 This and all future references to sections are to Code (1957), Article 66 I/2, the motor vehicle law.

   Appellant seems to argue that the officers had insufficient information upon which to make an investigation; that even after they had located a car of the given description they still were not justified in subsequently pursuing it and stopping the driver.  The answer to his contention, we think, is found by analogy to the principle involved where one uses force in resisting an unlawful arrest. The common law rule adhered to in this State is that a person illegally arrested by a police officer may use any reasonable means to effect his escape to the extent of using such force as is reasonably necessary under the circumstances.  Sugarman v. State, 173 Md. 52, 57, 195 Atl. 324. See also Williams v. State, 204 Md. 55, 64, 102 A. 2d 714. On the other hand, the authorities generally hold[***11] that one threatened with an illegal arrest may not use excessive force in resisting such arrest and if he does he himself may be charged with an unlawful assault. 5 Am. Jur., 2d, Arrest, § 94.  Cf. Sharpe v. State, 231 Md. 401, 403, 190 A. 2d 628; and Kellum v. State, 223 Md. 80, 85, 162 A. 2d 473.

   In State v. Rousseau, 241 P. 2d 447 (Wash. 1952), the pertinent circumstances were that a peace officer, knowing appellant [**622] to be an ex-convict, saw him unsuccessfully attempt to pawn a Swiss watch. The officer arrested the appellant after he left the pawnshop, and on searching him found in addition to this watch, three others.  But the officer allowed appellant to retain the watches at this time.  He and the officer began to walk to the appellant's car but as they were proceeding appellant suddenly pushed the arresting officer into the path of an approaching car and took flight. Fortunately the officer sustained no injury and almost immediately pursued the appellant, finally [*535]catching up with him and again taking him into custody.  Appellant was searched at the jail and the watches were seized.  Later, as in the case at bar, it was learned that[***12] the Swiss watch had been stolen. Appellant contended on appeal that the watch was illegally seized.  The Supreme Court of Washington assumed that the first arrest and search were illegal.  Recognizing the right to resist an illegal arrest, the Court at page 449 said:

   "It is not the appellant's flight, but the fact that he pushed the officer into the path of an oncoming automobile * * * that raises the question of whether the appellant used unreasonable force in resisting arrest and thereby committed an unjustified assault upon the officer, which would make the second apprehension and arrest of the appellant lawful."
 
Holding that a jury could have found use of excessive force, the Court concluded that the appellant was lawfully arrested following the assault, and the Swiss watch found on him by the search incident to that arrest, was admissible in evidence against him on a charge of burglary.

   In Rousseau there was an illegal arrest and search, an assault committed upon the officer, and a subsequent legal arrest and seizure of the watch. In the case before us, even if we assume there was insufficient information to authorize the police to stop the car, there were subsequent[***13] traffic violations committed in the presence of the officers and a later arrest and seizure of the material found in the car and identified as having been stolen from Larry's Tavern.  We think that just as the assault in Rousseau provided ample grounds for the second arrest and search, so the traffic violations were ample grounds for the arrest of Jenkins, and made lawful the seizure of the evidence found in the car.

   Judgment affirmed. 

FURNACE BRANCH LAND CO. v. BOARD OF COUNTY COMMISSIONERS OFANNE ARUNDEL COUNTY 
No. 48, September Term, 1963
 
Court of Appeals of Maryland
 
232 Md. 536; 194 A.2d 640; 1963 Md. LEXIS 727

 November  5, 1963, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed November 26, 1963, Denied December 2, 1963.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  apartment, sewerage, sewage, rezoning, water supply, garden-type, zoning, tract, health problem, debatable, concentration, protestant, tracts of land, reclassification, neighborhood, capricious, traffic, substantial evidence, withhold approval, public interest, station, pumping, water, classification, overcrowding, crookedness, narrowness, construct, over-all, disposal

COUNSEL: Alan J. Malester, with whom were Robert L. Sullivan, Jr., and Sklar & Sullivan on the brief, for appellant.

   Jerome F. Connell, Special Attorney of Glen Burnie, Maryland, for appellee.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*537] [**640] Appellant sought a mandatory injunction to compel the Board of County Commissioners of Anne Arundel County to rescind, as unconstitutional and void, its resolution denying the application to rezone two tracts of land from Agricultural to Garden-Type Apartment classification and to compel the Board to grant the requested reclassification. [**641] Judge Duckett, sitting in the Circuit Court for Anne Arundel County, found that the question the Board had to answer was fairly debatable and that its refusal to rezone was not arbitrary, discriminatory or illegal.  We think he was right.

    The land in question is in the Fifth Election District of Anne Arundel County and consists of two tracts. The first, some sixty acres, is on the south side of Furnace Branch Road between[***4] [*538] the Old Annapolis Road on the west and Route 3 (which passes over the tract on two bridges) on the east.  The second parcel, some fourteen acres, is on the north side of Furnace Branch Road between Route 3 on the west and Cedar Avenue on the east.

   The applicant for rezoning, the appellant, wishes to construct some one thousand garden-type apartments. It produced recognized experts in land planning, traffic, sewerage and water supply and schools.  They presented before the Planning Commission and the Board of County Commissioners of Anne Arundel County, sitting together, at three lengthy hearings (at which there were persistent, loud and, at times, uncontrolled if not unruly, protests of neighbors), a well organized case which, at least on the face of things, showed that since 1952, the time of the adoption of the last zoning map, there had been numerous changes in the zoning classifications within a two and one-half mile radius, n1 that the existing roads would adequately serve the needs of existing traffic and traffic generated by the new apartment dwellers, that there could be provided adequate sewerage facilities and water supply and that there was a need in northern[***5] Anne Arundel County for garden-type apartments.

n1 The nearest changes were in 1960 from Agricultural to Light Commercial of a tract immediately to the west of the smaller parcel and a change to Heavy Commercial of a tract just west of the new Light Commercial tract.

   The expert testimony was that the sites were logical and excellent places (and uses of the land) for garden-type apartments and that their construction would rectify a present imbalance in the housing supply of the County because, in the vernacular of the experts, they would have centrality of location, strategic access and proximity to key employment concentrations.

   Furnace Branch Road is largely lined on both sides between Old Annapolis Road on the west and the Ritchie Highway on the east with cottage-type homes, some quite substantial.  The residents of these houses and other nearby neighbors objected intensely and vocally to garden-type apartments (which they conceived to be row house wolves in apartment sheep's clothing) in their midst, on [***6]the grounds that (a) school facilities [*539] are already overcrowded, (b) roads are narrow and curved, (c) the available sewerage facilities have been completely and dangerously inadequate for years and no relief is in sight, and (d) the water supply is frustratingly weak.

   The Board found there was a need in the County for "Garden-Type Apartments and other forms of high-density housing," that it had previously rezoned other sites for such apartments and "will, in the future, entertain other applications for this purpose at locations which, in the opinion of the Board, are suitable for said use," but held the desired use of the subject property presently was undesirable in fact.

    The Board concedes that there had been shown changes in the neighborhood, and a general need in the County for the use sought (although a protestant testified to a documented finding of a lack of need in the subject location because of vacant houses or already approved high density facilities near plants of large employers).  It relies on the claimed present overcrowding of the schools, the narrowness and crookedness of Furnace Branch Road, and the deficiencies in sewerage facilities and water supply. [***7]

   If it be assumed that the applicants for rezoning demonstrated sufficient change in conditions, over-all need, the adequacy of [**642] roads and of existing or soon to be existing schools and water supply (there is no claim that without rezoning no reasonable use can be made of the land), we think there was substantial evidence before the Board which permitted it reasoningly and reasonably to find that the lack of sewerage and water, particularly sewerage, made the concentration of thousands of people on the property in question not in the public interest, if not dangerous to the health of the community.

   Change in conditions may justify the amendment of the existing zoning ordinance to reclassify a particular property but it does not necessarily compel it.  Even as in original zoning, rezoning must be in the general public interest for the promotion of the health, safety and welfare of the community, as well as in the individual interest of the land owner.  Code (1957), Art. 66B, Sec. 21; Wakefield v. Kraft, 202 Md. 136; Huff v. Bd. of Zoning Appeals, 214 Md. 48.

   In support of their effort to show that there would be adequate [*540] sewerage facilities, the applicants[***8] for rezoning offered a letter from the Anne Arundel County Sanitary Commission, which stated that "sanitary sewers can be made available after construction of the Cabin Branch Pumping Station now planned.  The 21-inch interceptor in Furnace Branch Road was designed to receive the flow from this proposed pumping station." The testimony of the expert for the applicants and of the protestants showed that the Cabin Branch Pumping Station had been in the proposed and planning stage for ten years and, apparently, was no nearer reality than it had been when first proposed.  The expert's opinion was that the funds which the apartment buildings would generate for the County "might be the thing which will make it [the pumping station] possible." The protestants showed by advices they had received from the Sanitary Commission that the sewer line along Furnace Branch Road "was designed so that relief could be obtained for the septic tank condition at Woodlawn Heights and the East Shipley neighborhoods." These areas are in the vicinity of Furnace Branch Road.  A protestant also testified that some two hundred twenty-six property owners in this area had "lived five years or more in their homes [***9]waiting for relief from sewage."

   We reiterated in Crowther, Inc. v. Johnson, 225 Md. 379, as we have held in many cases before and since, that the court, in reviewing the action of zoning authorities, will not substitute its judgment for that of the authority unless the latter's action was arbitrary, capricious or illegal and that if the facts were sufficient to support the decision the question decided was fairly debatable and the decision must be upheld.  See also Snowden v. Mayor and C. C. of Balto., 224 Md. 443, and compare Board v. Oak Hill Farms, 232 Md. 274.

   The facts before the Board as to lack of facilities to dispose of sewage for the contemplated concentration of people made the question of whether to grant or withhold the application for rezoning fairly debatable, at the least.  Its decision to withhold approval at this time was not arbitrary, capricious or illegal.

   Appellant, despite its efforts to show on the facts that sewerage facilities would be adequate, seeks to support its right [*541] to prevail on this facet of the case by a statement in Montgomery County v. Merlands Club, 202 Md. 279, 291-292, that "the sewerage problem certainly could[***10] be left to the control of the Health Department of the County and the State, which it is to be presumed would not permit unhealthful or unsanitary conditions to exist."

   The zoning board in Merlands did no more than suggest that sewerage facilities "might" create a health problem. There was no showing, as here, either that inadequate facilities for the disposal of sewage had been a long continued, dangerous and increasing [**643] problem which the government of Anne Arundel County had not been able to solve or catch up with, or that the sought reclassification, if granted, would compound the difficulties and the dangers.  The situation before us is more analogous to that in Montgomery County v. Mossburg, 228 Md. 555, 559, where, in distinguishing the Crowther case, supra (which relied on Merlands on this aspect of the case), we pointed out that in Crowther the Court had held that the Board erred in suggesting the proposed trailer park might constitute a hazard to health because "any health problem 'could be easily alleviated and controlled by the Health Department authorities'" and said:

   "We see distinguishing features between Crowther and the case[***11] before us.  In Crowther, the health problem was potential, if not imaginary. Here the existence of a nuisance to the neighborhood was proven to the satisfaction of the Board as a condition and not a fear."

   Order affirmed, with costs. 

WALSH, Jr., ADMINISTRATOR v. CROUSE 
No. 9, September Term, 1963
 
Court of Appeals of Maryland
 
232 Md. 386; 194 A.2d 107; 1963 Md. LEXIS 704

 October  7, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order reversed, with costs.

CORE TERMS:  domicile, resident, acquire, abandon, domiciliary, stationed, soldier, automobile accident, military service, legal sense, mere fact, inferential, stepfather, temporary, passenger, presumed, assigned, devoid, abode 

COUNSEL: Harris James George, with whom was A. Owen Hennegan, Jr., on the brief, for appellant.

   Solomon L. Margolis, with whom was Stanley H. Kamerow on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*387] [**108] The appellee, Crouse, was injured in an automobile accident. Alleging that the negligence of the uninsured driver of the car in which he had been a passenger had brought about his injuries, he duly filed notice of intention to make claim against the Unsatisfied Claim and Judgment Fund of the State of Maryland, [***3] and filed suit.  Crouse was in the United States Army, stationed at Fort Meade.  The Fund knew he did not own an automobile registered in Maryland and was not a resident of a reciprocal State, and believed he was not a resident of Maryland and, therefore, concluded he was not a person qualified to make claim under the act which established the Fund (Code (1957), and (1962 Supp.), Art. 66 I/2, Secs. 150-179) and raised this defense by preliminary objection under Maryland Rule 323.  Judge Duckett held "that the word 'resident' as used in the Statute does not mean that a claimant must be a permanent resident but merely an actual resident in the sense of having no other home," and dismissed the Fund's preliminary objection.  The Fund appealed.

   Four days before Judge Duckett made his ruling, this Court filed its opinion in Maddy v. Jones, 230 Md. 172, holding that the definition of a qualified person in Sec. 150 (g) of the act as a "resident of this State" means "one who possesses or has acquired a domiciliary status, in the legal sense, in this State, as distinguished from one who merely has a temporary abode in Maryland."

   The agreed statement of facts on which the appeal was presented[***4] makes it clear, in our view, that Crouse was not a domiciliary of Maryland.  He enlisted in the Army while a resident [*388] of Florida where he lived with his mother and stepfather. After his initial training ended, he was sent to Germany where he served for seventeen months.  He was then transferred to Fort Meade where he was stationed at the time of the accident.  He was single and did not maintain a dwelling place off the post.  After his discharge from the service in 1962, Crouse immediately left Maryland to go to Pittsburgh where his mother and stepfather had moved.

   A domicile continues until a new domicile is acquired.  Hall v. Morris, 213 Md. 396, 404. A person does not acquire a domicile of choice by any act done under legal or physical compulsion and, therefore, a soldier who must go and live in a place assigned to him ordinarily does not acquire a domicile in such place.  Restatement, Conflict of Laws, Sec. 21; 17A Am. Jur. Domicile, Sec. 40.

   The mere fact of entry into military service is not enough to show an intention to abandon a domicile and acquire a new one, it being presumed, unless the contrary be shown, that the existing domicile is retained. [***5] Allder v. Hudson (Super. Ct. Del.), 106 A. 2d 769, 770, and cases cited; cf. Shenton v. Abbott, 178 Md. 526, 530. See also Teague v. District Court (Utah), 289 P. 2d 331. The record is devoid of any evidence, direct or inferential, that Crouse intended to abandon his Florida domicile by entering the armed forces, and to acquire a Maryland domicile.

   In Royer v. Bd. of Elec. Sups., 231 Md. 561, we reiterated that those living on the Perry Point federal reservation are not residents of the State for the purpose of exercising the right of franchise.  The case leaves no doubt that residents of federal enclaves within the boundaries of Maryland are not residents of the State unless the Legislature has said they shall be so considered for a specific purpose.  Crouse was not a person qualified to claim against the Fund.

   Order reversed, with costs. 

JOHNSON, Jr. v. STATE 
No. 357, September Term, 1962
 
Court of Appeals of Maryland
 
232 Md. 199; 192 A.2d 506; 1963 Md. LEXIS 678

 June  28, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans and Duckett, JJ.

DISPOSITION: Judgment affirmed.

CORE TERMS:  girl, sexual relations, cross-examination, prejudicial error, judgment of acquittal, general reputation, reputation, mistrial, rape case, racial bias, general discharge, companion case, oral statement, bodily harm, unchastity, detective, verbatim, susceptible, admissible, resist, windows, legs, ran, physical condition, woman, prior to trial, Maryland Rule, reasonably calculated, permitted to testify, acts of intercourse

COUNSEL: Robert C. Heeney and Victor L. Crawford, with whom were Fairbanks, Heeney & McAuliffe on the brief, for appellant.

   Robert S. Bourbon, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Marvin H. Anderson, State's Attorney for Anne Arundel County, Leonard T. Kardy and James J. Cromwell, State's Attorney and Deputy State's Attorney, respectively for Montgomery County, on the brief, for appellee.

JUDGES: Henderson, Hammond, Horney, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*202] [**508] The appellant, Joseph E. Johnson, Jr., was found guilty by a jury of raping a sixteen year old girl and was sentenced to death in the Circuit Court for Anne Arundel County, the case having been removed from Montgomery County.  From the judgment and sentence entered on the verdict he has appealed to this Court.  It is a companion case to Giles v. State, 229 Md. 370, [***6] 183 A. 2d 359, app. dism. 372 U.S. 767, 10 L. Ed. 2d 137, since the two cases arose out of the same incident.

   At about 11:30 p.m. on July 20, 1961, Joyce Roberts, a sixteen year old white female, Stewart Foster, her boy friend, and two other young men went to a secluded spot on Batson Road, in Montgomery County, near Rocky Gorge Dam on the Patuxent River, where, according to their testimony, they had gone to swim in the River.  When other friends they were expecting did not appear they started to leave and ran out of gas.  Two of the boys left to get gasoline, leaving Miss Roberts and Foster alone in the back seat.  Appellant, James and John Giles, in company with John Bowie, all young Negro men, had been fishing in the River, and as they departed, it was necessary for three of them to get out of the car in order to guide the driver, [*203] Bowie, around the stalled car in which Miss Roberts and Foster were sitting.  Bowie drove the car away but the Giles brothers and appellant walked back to the stalled automobile.  When Foster and Miss Roberts saw them approaching, they became alarmed and rolled up the windows and locked the doors.  The three first demanded cigarettes and[***7] money but were told by Foster that he had neither.  One of the intruders, using obscene and vulgar language, threatened to drag the man out of the automobile and carnally know the girl. When Foster refused to turn the girl over to them and warned them they would get into trouble, one or more of them threw rocks at the automobile, shattering the windows, and opened the doors.  Foster then jumped out to face the men, while Miss Roberts left by the opposite rear door. He was knocked to the ground unconscious as the girl attempted to flee into the woods.  She ran about thirty feet into the underbrush, tripped and fell.  She was followed and found lying on the ground by John Giles.  Later James Giles and appellant joined them, at which point, as testified to by Miss Roberts, all three had sexual relations with her.  She admitted that she made no attempt to resist, but declared that it was because of her fear of bodily harm if she resisted.  She also admitted that she removed her shorts and underpants, but only because she believed, if she did not, they would have forcefully removed them.

   While this was going on in the woods Foster, whose wallet had been taken by one of the three men, [***8] regained consciousness, and after shouting to Miss Roberts, ran to a nearby house and called the police.  When the three assailants heard a police cruiser arrive they fled the scene.  Two of the witnesses for the State, Foster and Sgt. Duvall, the investigating officer, testified that when they found the girl, she was lying on the ground, clad only in a blouse, sobbing, and in a semi-conscious condition.  Her legs were cut and bleeding.  The three assailants were apprehended the next morning.

   Six questions are presented on this appeal.  They will be dealt with in the order set out in appellant's brief.

   I

   The appellant contends that the court should have granted [*204] his motion for a judgment of acquittal. The claim is without merit.

   The defense in this case was based upon the claimed consent of the victim to the sexual relations. It is not disputed that appellant did have relations with Miss Roberts.  In support of his claim of consent appellant relies on the following: (1) no acts of violence were visited upon the girl; (2) [**509] she did not attempt to push appellant off her; (3) she did not use her arms or elbows to prevent the relations; (4) no threats were[***9] made toward her at the time of the relations; (5) though Johnson kissed her by placing his tongue in her mouth, she made no effort to hurt him when he did; (6) she did not manipulate her legs to prevent his entry into her; (7) she opened her legs when he told her to; (8) she herself took her shorts and underpants off; and (9) she made no outcry for help nor did she scream.  These facts were all testified to by the victim herself.  If these were all the facts before the lower court, the granting of appellant's motion for judgment of acquittal might have been justified.  In Giles v. State, supra, where the evidence on this aspect of the episode was the same as in this case and the conviction of rape by the other two participants was sustained, we stated, at page 381:

   "But there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force as was reasonably calculated to create in the mind of the prosecutrix an apprehension of imminent bodily harm that could have impaired or overcome her will to resist."
 
The acts alluded to took place at the parked car.  The jury had testimony before [***10] it that obscene remarks and threats were directed to her and Foster while they were locked in the car, and that rocks were thrown at the windows, breaking them.  Miss Roberts testified that one of the three men suggested shooting Foster.  The victim may have submitted to sexual relations but that does not necessarily imply consent.

   "There is, however, a wide difference between consent and a submission to the act.  Consent may involve [*205] submission, but submission does not necessarily imply consent.  Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent.

   "* * * Since resistance is necessarily relative, the presence or absence of it must depend on the facts and circumstances in each case."
 
Hazel v. State, 221 Md. 464, 469-470, 157 A. 2d 922. The testimony in this case was such that there was no question that it should have gone to the jury on the presence vel non of consent.  It was clearly a question of credibility, to be determined by the trier of facts.  Hazel v. State, supra, at page 470. Consequently, there was no error by the court below in overruling appellant's motion for a judgment of acquittal. [***11]

   II

   The appellant, an indigent accused, claims that the trial court should have provided him with a transcript of the separate trial of his codefendants, James V. and John G. Giles, on December 4, 1961, in preparation for his trial on September 25, 1962.  This claim is also without merit.

   There is no rule cited to us, nor have we discovered any, which provides that a transcript of the trial of a companion case, if material to the case at bar, must be furnished by the State.  Even assuming, without deciding, that the lower court erred in not furnishing the Giles transcript, it was not prejudicial error. Counsel for appellant admitted in oral argument before this Court that they had access to a copy of the transcript one week and some two or three days prior to the lower court trial.  Furthermore, there was no request for a postponement of the trial on the basis of further need to study the transcript.

   III
 
   The appellant also claims that the court denied him a fair trial when it unduly restricted the cross-examination of the State's witness, Stewart Foster. This contention is without substantial merit.

   [**510] During the trial below the court continually sustained[***12] objections by the prosecution to questions asked of Foster as to [*206] whether the place of the alleged attack was known as a lovers' lane, whether Foster and his male companions of that evening went to this spot to have sexual relations with Miss Roberts, and whether he had stated to another boy that the reason he, Foster, insisted on prosecuting the defendant, knowing the reputation of the girl, was that he hoped "they hang that nigger."

   It is clear that the first two questions were asked in order to attempt to show the reputation of the girl. As to the first, the characterization of the area as a lovers' lane was not of itself enough to raise an inference of unchastity, and the fact that there were several young men with her when she went to the area is also not sufficient to show her general reputation in that regard.  Cf. Humphreys v. State, 227 Md. 115, 123, 175 A. 2d 777. Assuming without deciding that such a question relating to her going there for sexual relations with Foster and the other boys could be asked, it would still be objectionable because evidence of other specific acts of intercourse are not admissible to show a general reputation for immorality.  [***13] Shartzer v. State, 63 Md. 149. See also Humphreys v. State, supra.

   As to the third question, if it was designed to show bias on the part of the witness, it could have been phrased in a proper manner.  In the form asked, it was a back-handed method of getting into evidence the reputation of the prosecutrix.  Counsel for appellant could have shown racial bias of Foster by another form of question, but did not do so.  There was no prejudicial error in sustaining the objection to these questions.  Cf. Humphreys v. State, supra.

   IV

   He also claims that the court improperly restricted cross-examination of the State's witness, Dr. Sidney Leaventhal.  This contention is likewise untenable.

   The questions involved here related to the pelvic examination given by the physician to Miss Roberts after the alleged attack.  He testified he made a usual two finger examination.  The court sustained objections to two following questions, as to whether this would normally be the examination of an [*207] older woman, and whether the result would be what would be expected in a married woman. Again it appears that this was an attempt to show the reputation of the girl. It is undisputed[***14] that where consent is asserted as a defense in a rape case, the general character or reputation of the prosecuting witness with respect to her chastity is admissible. Giles v. State, supra, page 379. Such questions as asked here, and in III above, do not go to the general reputation or character of the victim, but are related to prior sexual experience and, as to these particular questions, were susceptible to explanations having no relation to the physical condition of an unchaste woman. It was possible that her physical condition, if "marital", as it is sometimes expressed, could be the result of sexual relations with one man, which would not give rise to a presumption of unchastity as used in the context involved in the questions asked.  The inferences which might have arisen had the court permitted these questions to be answered would have been too speculative to be considered as proper evidence.

   V

   It was claimed that the trial court should have declared a mistrial when the witness, Detective Kenneth Collins, was permitted to testify to statements made by the accused to him that were not given to the defense prior to trial pursuant to a motion for discovery made[***15] under Maryland Rule 728.

   Pursuant to the motion and Rule, the State did furnish to defense counsel the [**511] substance of an oral statement made by appellant to Detective Collins the morning of his arrest.  On the stand, Collins testified that appellant told him: "I guess I messed up last night." Defense counsel objected to this and moved for a mistrial but the court over-ruled the objection and denied the motion.  The State, under Rule 728, need only make a report of the substance of the oral statement, not in verbatim form.  Even if it had been compelled to make an exact report of what the accused said to the detective, there was no prejudicial error involved here, since the statement in question had already come into evidence, without objection by appellant, through the testimony of a prior witness, Detective Sergeant Harding.  Furthermore, the above quoted statement [*208] was so equivocal in its nature and susceptible of so many interpretations of what the accused meant, that it had no probative value, and its utterance by the witness, under the circumstances here involved, did not justify declaring a mistrial.

   VI

   Finally, the appellant contends that the trial[***16] court committed reversible error in permitting the State's Attorney to inquire into the circumstances of his discharge from the United States Army.

   This contention springs from cross-examination of appellant wherein he was allowed to testify, over objection by his counsel, that he received a general discharge from the Army for going "AWOL" to his home.  Appellant insists that this was done in order to prejudice the jury.  This contention is clearly without merit since, on direct examination in answering a question of his own counsel, appellant stated he received a general discharge. The State was then privileged to delve into the matter more thoroughly.

   Since we find no merit in any of appellant's contentions, the judgment is affirmed.

   Judgment affirmed. 

PIEDMONT LAND AND DEVELOPMENT COMPANY v. CARNEY, et al. 
No. 259, September Term, 1962
 
Court of Appeals of Maryland
 
232 Md. 21; 192 A.2d 67; 1963 Md. LEXIS 654

 June  17, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  chattel, notice, recording, vendee, incumbrancer, purchaser, conditional sales contract, conditional, delivery, recorded, receiver, landlord, third persons, mortgagee, lienor, actual notice, pledgee, buyer, conditional sale, secret, modifies, void, general creditors, recording statute, mortgages, prevail, italics, recordation, appearances, levy

COUNSEL: Nicholas J. Fotos for appellant.

   Bill L. Yoho, with whom were Robert S. Hoyert, Roy W. Hooten and Hoyert & Yoho on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.  Henderson, J., dissents.

OPINIONBY: PRESCOTT

OPINION: [*24] [**67] This appeal is from an order directing the sheriff to turn over the proceeds of sale of a 1962 Thunderbird motor car to one of the appellees.  The facts are not in dispute.  Carney was indebted to Piedmont on a note dated February 5, 1962, and judgment by confession was entered thereon on March 20, 1962.  On March 26, 1962, Carney purchased the automobile in question subject to a conditional sales contract which was assigned to Universal C. I. T. Credit Corporation.  On April 2, 1962, the Department of Motor Vehicles issued a title certificate on the car, listing thereon[***5] a lien in favor of C. I. T.  On April 10, 1962, Piedmont obtained and had placed in the hands of the sheriff, a fi.fa. on its judgment, and the sheriff levied on April 12, 1962. The conditional sales contract was recorded on April 18, 1962.  C. I. T. intervened on June 27, 1962, and claimed the proceeds of the sheriff's sale. The trial judge sustained C. I. T.'s claim.

    C. I. T. contends that Piedmont had actual notice of the conditional sales contract prior to April 10, 1962, by information obtained through the Department of Motor Vehicles, and is therefore not entitled to any assistance from Article 21, Section 66, quoted below.  We find nothing in the record to support the contention.  The Department is not a record office hence it does not afford constructive notice. The petition filed by C. I. T. indicates, and [**68] the trial court stated in his opinion, that actual notice was not received by Piedmont until after the sheriff's levy. If C. I. T. relied upon actual notice it should have alleged and proved the same.

   The appellant contends that since it acquired a lien prior to the recordation of the conditional sales contract, although subsequent to the delivery of [***6]possession of the automobile to the buyer, it should prevail. C. I. T. contends that since Piedmont was an antecedent creditor it is not entitled to preference on a lien acquired subsequent to the transfer of possession subject to the conditional sales contract. The answer depends upon the proper construction of Code (1957), Art. 21, Sec. 66, which reads in part:

   [*25] "Every * * * contract for the sale of goods and chattels * * * wherein the title thereto * * * is reserved until the same be paid in whole or in part, or the transfer of title is made to depend upon any condition therein expressed and possession is to be delivered to the vendee, shall in respect to such reservation and condition, be void as to subsequent purchasers, mortgagees, incumbrancers, landlords with liens, pledges [pledgees], receivers, and creditors who acquired without notice a lien by judicial proceedings on such goods and chattels, * * * until such note, sale or contract be in writing, signed by the vendee and be recorded, as provided in this section * * *." (Italics added.)

   It seems clear that Piedmont falls into the category of a creditor "who acquired without notice a lien[***7] by judicial proceedings" on the automobile, and the only controversy is whether the word "subsequent" modifies the word "creditors."

   In determining this question, it will be helpful to outline the history of the statute, and to examine the prior decisions of this Court dealing with it and similarly worded statutes. n1 Section 66 was first enacted into law in 1916. It provided that conditional sales contracts, wherein possession was to be delivered to the vendee, would be void "as to third persons without notice" until in writing, signed by the vendee and recorded. During the period of time that the above quoted language remained in the statute (1916 to 1949), this Court and the Federal Courts had occasion to deal with and comment thereon. This Court defined the meaning of "third persons without notice." They were defined as purchasers, lienors and subsequent general creditors of the conditional vendee, i.e., creditors who became such after the delivery of the property and before the recording of the contract.  Roberts & Co. v. Robinson, 141 Md. 37, 118 A. 198; Meyer Motor Car Co. v. First Nat. Bank, [*26] 154 Md. 77, 140 A. 34; Gunby v. Motor Truck Corp.,[***8] 156 Md. 19, 142 A. 596; Enterprise Fuel Co. v. Jones, 99 F. 2d 928; In Re Shipley, 24 F. 2d 991.

n1 A comprehensive history of the statute is contained in the opinion of the Court in Tatelbaum v. Pantex Mfg. Corp. 204 Md. 360, 104 A. 2d 813.

   In Stieff v. Wilson, 151 Md. 597, 135 A. 407, this Court stated that the Act of 1916 "does not intend any departure from the well-known American theory and purpose of recording claim to title, that is, to protect persons who might subsequently deal with the property and part with value for it without notice of the earlier conveyance." (Emphasis added.) This statement was quoted with approval in 1954 (after the amendment of 1949, which will be mentioned shortly) in Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 104 A. 2d 813.

   In Gunby, supra, a case before the amendment of 1949, the precise question presented here was decided to the effect that the Act of 1916 did not apply in favor of creditors whose claims arose out of transactions prior to the date [***9]of the delivery of property covered by a conditional sales contract, even though judgment was obtained thereon afterwards.  In this case, the Court quoted from the earlier case of Davis [**69] v. Harlow, 130 Md. 165, 100 A. 102, as follows: "'These sections [of the Code relating to the recording of mortgages] have been passed upon in a long line of decisions in this state and we must give them the force and effect they have long been held to be entitled to, that is, that they are for the protection of creditors becoming such after the date of the mortgages, either unrecorded or defectively executed [italics added].'" The Court then added: "We see no reason why the sections relating to conditional sales contracts should be differently construed in principle."

   Thus, it is seen that prior to the amendment of 1949 the decisions of the Court of Appeals had made it plain that the purpose of the Act of 1916 was not to protect antecedent creditors of the conditional vendee, but to protect purchasers, subsequent lienors, and subsequent general creditors.

   In 1949 and 1951, the Legislature amended Section 66.  As pertinent here, the words "third persons without notice" [***10] were eliminated, and conditional sales contracts, under certain circumstances, [*27] were rendered void as to "subsequent purchasers, mortgagees, incumbrancers, landlords with liens, pledgees, receivers, and creditors who acquired without notice [the words "without notice" were inserted by the 1951 amendment] a lien by judicial proceedings on such goods and chattels." n2 It will be noted that we have the adjective "subsequent" followed by seven nouns.  Our inquiry, as pointed out above, is whether "subsequent" modifies the word "creditors." Under all rules of construction, "subsequent" modifies the word "purchasers," the noun immediately following it.  We have held that "subsequent" also modifies the words "mortgagees" and "incumbrancers" (the only others of the seven nouns so far passed upon), and, in so doing, we commented upon the objectives of the statute, after the 1949 amendment.

n2 Also in 1949, Section 41 of Article 21 (relating to chattel mortgages) was amended so as to read almost identically the same as Section 66.  For a case involving that Section after the amendment, see Plaza Corp. v. Alban, 219 Md. 570, 151 A. 2d 170.

[***11]

   In Mohr v. Sands, 213 Md. 206, 131 A. 2d 732, Chief Judge Brune, for the Court said:

   "If we approach the matter from the point of view of the purpose of the recording statutes involved, we find that they serve primarily to give protection against the consequences of false or misleading appearances of ownership based upon the possession of the chattels. * * *.  The requirements of Section 74 [now 66] of Article 21, that a conditional contract of sale * * * must be recorded at the place of residence of an individual vendee * * * emphasize the view that the statute is concerned primarily with appearances based upon the vendee's possession of the chattel * * *.  Likewise, under Section 49 [now 48] et seq. of Article 21, it is the danger of appearances from the possession of the vendor or mortgagor, which continues despite a change of ownership or the creation of a lien, with which the statute is concerned."

   [*28] Again, in Auto. Accep. Corp. v. Univer. Corp., 216 Md. 344, 139 A. 2d 683, we emphasized that the objective of the recording statute was to protect against secret liens upon personal property where persons had parted with value upon the misleading[***12] appearances created by possession in the condiditional vendee. Chief Judge Brune, writing the majority opinion, quoted from the opinion in Tatelbaum v. Nat'l Store Etc. Co., 196 Md. 599, 78 A. 2d 228, as follows: "'* * * the purpose of recording is to protect against secret liens created by retention of title after delivery of possession, * * *.'" Judge Brune continued: "The secret lien which the recording statute invalidates as against subsequent 'incumbrancers' is not validated against them merely by being assigned * * *.  * * *.  Per contra, and under the explicit language of [**70]the recording statute, the reservation of title under the first contract of conditional sale is void as against subsequent [italics added] incumbrancers until recorded. The critical time under the rule * * * is the time of the delivery of the automobile * * *.  * * *.  Since the statute [Section 66] operates as a bar only in favor of subsequent [italics again added] incumbrancers, * * *." n3 Although there was a split in the Court in the above case, it was not concerning the purpose of the recording statute, Section 66, in protecting against secret liens, or the fact[***13] that the persons protected were those dealing with the property after delivery thereof, but before the recording of the contract of sale.  The dissent quoted from Mohr as we did above.  It also stated:

   "[T]he statute's [Section 66's] design is to protect only those of the classes of third persons expressly therein designated who may subsequently deal with the chattel sold in reliance on the possession of the buyer, * * *.  In 1949 * * * the Maryland Legislature expressed the purpose mentioned in the Roberts case [supra] to protect only purchasers and lienors [it would seem that "receivers" should be here added] [*29] for it eliminated the words "third persons without notice" and in their place put [the words of the statute].  * * *.  It seems clear that at least since 1949 Maryland agrees * * * that the purpose of [Section 66] * * * is to protect against nonrecorded contracts only those designated in the statute who may subsequently deal with the buyer as to the chattel in his possession * * *." (Emphasis added.)

 n3 Compare the above language with the dictum in Tatelbaum v. Nat'l Store Etc. Co., supra.

[***14]

   In Rupp, Trustee v. Johnston Co., 226 Md. 181, 172 A. 2d 875, we held that a trustee under a deed of trust, who advanced money subsequent to the delivery of certain chattels, was a "subsequent" incumbrancer, if not a "subsequent" mortgagee, and as such was protected by Section 66 against an unrecorded (or improperly recorded) conditional sales contract. Had the appellants in that case been antecedent incumbrancers, instead of "subsequent" ones, they could not have prevailed.

   From the above, it is seen that this Court, both before and after 1949, has stated that the principal purpose of Section 66 is to protect against secret liens, which, at one time, were permitted.  This was stated in the preamble to be the primary objective of Section 41, the first Maryland statute requiring the recordation of chattel mortgages, in 1729.  Laws of 1729, Ch. 8, Sec. 5. Likewise, this Court has stated, both before and after 1949, that the persons protected by the Statute are those who deal with the property subsequent to its delivery and before the recording of conditional contract of sale.  These statements of the Court of Appeals were, and are, correct, we think.  We, therefore, reaffirm[***15] the statements, and hold that the word "subsequent" in the statute modifies the word "creditors." We agree with Judge Hammond's observation in the dissent in Auto. Accep. Corp., supra, to the effect that the result of the 1949 amendment was to substitute certain named subsequent lienors [and receivers] for subsequent general creditors. Compare Plaza Corp. v. Alban, 219 Md. 570, 151 A. 2d 170. This means, of course, that the trial court was correct in its ruling.

   Order affirmed, with costs.

DISSENTBY: HENDERSON

DISSENT: [*30] Henderson, J., filed the following dissenting opinion.

   I do not agree with the construction placed upon Code (1957), Art. 21, sec. 66 by a majority of the Court, and think the matter of sufficient importance to state my reasons.

   We held in Auto. Accep. Corp. v. Univer. Corp., 216 Md. 344, 353, that the holder of a contract of conditional sale was an "incumbrancer" within the meaning of the statute, (see note 19 Md. L. Rev. 157, [**71] on this point) and assumed (p. 359) that the statute operates as a bar only in favor of "subsequent" incumbrancers. The dissent in that case was based on two contentions, that the statute was designed to protect[***16] only those who dealt with the chattel sold in reliance on the possession of the buyer, and that a conditional vendor is an owner, not a lienor. Both opinions cited with approval, Tatelbaum v. Nat'l Store Etc. Co., 196 Md. 599. Chief Judge Brune, for the majority in the Auto. Accep. case (p. 356) quoted Judge Markell's statement in Tatelbaum as follows:

   "In most states recording laws effect a sort of race of diligence in which holders of instruments recorded late and purchasers and lien creditors rank in order of time of recording or acquiring a lien by judicial proceedings.  In Maryland the recording laws early proceeded on a different principle, viz., of protecting purchasers and creditors 'who may trust such party after the date of the said deed' * * * or 'creditors who have become so before the recording of such deed or conveyance, and without notice of the existence thereof' * * *.  By the Act of 1949 the conditional sale act of 1916 seems to have been so changed as to follow the plan of recording laws in other states and to depart from the peculiar principle of Maryland recording laws.  Until 1949 the conditional sale act of 1916 followed the Maryland principle; [***17] 'third parties' included creditors who 'trusted' the conditional vendee after delivery of the chattels and before recording of the contract * * *."

   Since Judge Markell was dealing with a case that arose under the law as it stood prior to 1949, although the decision was [*31] handed down in January, 1951, his comment for the Court has been characterized as dictum, (see note 21 Md. L. Rev. 160, 163) but it is a clear and elaborate one, not lightly to be disregarded or ignored.  Moreover, by Ch. 577 of the Acts of 1951, presumably with knowledge of this Court's decision and the interpretation placed upon the Act of 1949, the Legislature repealed and re-enacted sec. 66 without substantial change, except to insert the words "without notice" after the word "acquired." By established cannons of construction this was in effect an adoption of the gloss placed upon the statute by this Court.

   Judge Hammond in his dissent in the Auto. Accep. case, (p. 361) said this: "Maryland passed its first recording act as to conditional sales agreements in 1916.  Unless recorded, the seller's reservation of title was ineffective against 'third persons without notice.' Third persons were construed[***18] to mean all who trusted the conditional vendee after he had obtained possession, whose financial position would be worsened if the reservation of title was effective, including general creditors. * * * This statutory protection for all who actually or presumptively relied on the vendee's possession was far more liberal than the protection given by the Uniform Conditional Sales Act or the laws of most of the States.  The Uniform Act protects 'any purchaser from or creditor of the buyer, who, without notice' * * * purchases the goods, or acquires a lien on them by attachment or levy. Generally only purchasers from, or judicial lien creditors of, the conditional vendee take precedence over the reserved title of the vendor under an unrecorded contract.  In 1949 at the instance of the large credit companies who finance most of the conditional sales, the Maryland Legislature expressed the purpose * * * to protect only purchasers and lienors for it eliminated the words 'third persons without notice' and in their place put 'subsequent purchasers, mortgagees, incumbrancers, landlords with liens, pledgees, receivers, and creditors who acquired a lien by judicial proceedings on such goods and[***19] chattels * * *.' As Judge Markell said for the Court in the National Store Fixture Sales case * * *: '[**72] By the Act of 1949 the conditional sale act of [*32] 1916 seems to have been so changed as to follow the plan of recording laws in other states and to depart from the peculiar principle of Maryland recording laws.'"

    I take it that everyone was in agreement in the Auto. Accep. case that the Act of 1949 adopted the concept of a "race of diligence," although Judge Hammond went on to discuss the point of reliance on possession, there material.  There can be little doubt that creditors who obtain a lien by attachment or execution without notice, are preferred under sec. 5 of the Uniform Conditional Sales Act, whether the debt is antecedent or subsequent.  See 3 Jones, Chattel Mortgages and Conditional Sales, § 1434, and cases cited.  The same result has been reached in other states under Acts similar to ours.  See Commercial Credit Corp. v. Smith, 148 Atl. 756 (N. J.), Miller v. Raile & Morrison, 39 N. E. 2d 172 (Ohio) and Baker v. Hull, 166 N. E. 175 (N.Y.).  The "race of diligence" concept seems to be implicit also in the Uniform Commercial Code[***20] (1958 text), secs. 9-301 and 9-312.

   The Maryland cases since the Auto. Accep. case (supra) throw little light on the problem.  In Rupp, Trustee v. Johnston Co., 226 Md. 181, 187, we distinguished Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, where it was held that because a "trustee", as distinguished from a "receiver", was not covered by the act, the act was not thereby rendered unconstitutional.  In answer to a contention that the appellant was not a subsequent incumbrancer, we held in Rupp that he was, because it was shown that the advances had been made subsequent to the delivery of the chattels in question, and in reliance thereon.  It was assumed that such a showing was necessary to allow recovery.

   Aside from the apparent state of the authorities, however, I cannot agree with the Court's construction in the case at bar.  Assuming that the word "subsequent" modified not only "purchasers" but also "mortgagees", and "incumbrancers", we run into difficulties when we reach the classes next specified.  I take it that the phrase "landlords with liens" cannot fairly be limited to only those landlords who become landlords after the delivery of the chattel. Evidently[***21] what is meant is the completion [*33] of the lien by distraint.  Cf. Code (1957), Art. 53, sec. 18, which prefers the holder of a recorded conditional sales agreement to a distraining landlord. "Pledgees" obtain a lien only by delivery of the particular chattel, so to speak of a "subsequent" pledgee is meaningless.  A "receiver" represents all creditors, whether prior or subsequent to the delivery of the chattel in question.  I find nothing in the words quoted to import a severance between the classes served by the receiver. To my mind, the crucial time delineated in the phrase "creditors who acquired without notice a lien by judicial proceedings on such goods and chattels," is the date of actual levy, which in the case at bar, preceded the recordation of the conditional sales contract by six days.  For the reasons stated I would reverse the judgment. 

PARRY v. PARRY et al. 
No. 322, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 584; 191 A.2d 439; 1963 Md. LEXIS 489

 June  10, 1963, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed June 6, 1963, Denied June 7, 1963.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Sachse, J.

DISPOSITION: Decree reversed and case remanded for entry of a decree in accordance with this opinion.  Appellees to pay the costs.

CORE TERMS:  stock, certificate, remainder, deceased, life estate, gift, inter vivos, marital rights, dividend, marriage, widow, donee, donor, language employed, safe deposit box, preferred stock, life interest, valid gift, mere fact, decree, unmistakable, designating, terminology, retention, colorable, ownership, illusory, one-half, couched, vesting

COUNSEL: Thomas L. Hennessey for appellant.

   M. Richard Moss for appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*585] [**439] The chancellor decreed that 221 shares of preferred stock of the William Schluderberg-T. J. Kurdle Company (Company) were the property of the estate of Reginald B. Parry, [***3] deceased, and Reginald's brother, Kenneth, who maintains that he is the real owner of said stock, has appealed.

   [**440] The main question to be determined is whether there was a valid gift inter vivos of the stock in remainder from Reginald to Kenneth.  A subsidiary one is whether such transfer of the stock to Kenneth was a fraudulent contrivance to deny Reginald's wife her widow's rights.
 
   Kenneth has been employed by the Company for over thirty years.  Between July 1, 1947, and January 11, 1951 (both dates inclusive), Reginald purchased nine stock certificates, whereby he obtained an aggregate of 221 shares of the preferred stock of the Company.  Each certificate bore this language: "This is to certify that Reginald B. Parry, Owner, upon whose death to belong to Kenneth Parry is the owner of * * * fully paid and non-assessable shares of the Preferred 5% Capital Stock * * *." In June of 1952, Reginald married his present widow. Shortly after the receipt of the stock certificates by Reginald from time to time, they were given by Reginald to Kenneth.  Upon delivery of the first certificate Reginald stated, "This is an investment.  All I am interested [*586]in is the[***4] dividends." Kenneth placed the certificates in a safe deposit box, which, up until shortly after Reginald's marriage was held in both of their names.  Reginald never visited the box.  The certificates remained in the same safe deposit box, which was held in the names of Kenneth and his wife from sometime in 1952 until Reginald's death around the beginning of 1961. Reginald had the dividend checks, which were paid semiannually, mailed to him at Kenneth's address although he, Reginald, did not reside there.  In accordance with his understanding with his brother, Kenneth delivered these checks to Reginald, who spent them as he saw fit.  After Reginald's death, Kenneth presented the certificates to the Company for transfer upon its corporate books, but the Company deferred action pending the outcome of this suit.

   The appellee does not dispute the fact that it is possible to create a life estate in choses in action with remainder over, but contends the transfer of the stock was intended to be in the nature of a testamentary disposition and the language used on the certificates and quoted above is so phrased that "the appellant will gain or acquire the stock * * * at a future date," hence [***5]the attempted transfer cannot operate as a gift inter vivos.  We disagree.

   The terms selected by Reginald in designating the ownership of the stock manifest, we think, a clear and unmistakable intention on his part to make a gift of the remainder therein to Kenneth, subject to his, Reginald's, life estate. The language employed is not couched in strict and exact legal terminology, spelling out explicitly a life estate in Reginald with remainder to Kenneth, but, as indicated above, it is sufficient to show an intention to pass the right or beneficial interest in the stock (in remainder) to Kenneth.  And the mere fact that Reginald retained a life interest therein did not prevent the immediate vesting of the title to the remainder in Kenneth.  It seems clear that any transfer of the remainder upon the corporate books without Kenneth's consent would have been at the Company's risk.  In Allender v. Allender, 199 Md. 541, 87 A. 2d 608, this Court held a gift of corporate stock complete where the owner surrendered his old stock certificates and [*587] had new ones issued in the names of the donor and donee, that it was immaterial that the donee had not been informed concerning[***6] the transfer, and the facts that the donor drew dividends and voted the stock until his death did not render the gift incomplete.  Also compare Curley v. Wolf, 173 Md. 393, 196 A. 285. We, therefore, hold that Kenneth is the present owner of the stock involved.

   The short answer to the contention that the transfer was in fraud of the widow's rights is that the last certificate was purchased about a year and one-half before Reginald's marriage to the present Mrs. Parry (and insofar as the record discloses before he had any intention of marrying), and the retention by Reginald of [**441] no more control over the stock than a life estate would not render the transaction so colorable or illusory as to justify the setting aside of the transfers under the doctrine of fraud on marital rights. Cf. Allender v. Allender, supra.

   Decree reversed and case remanded for entry of a decree in accordance with this opinion.  Appellees to pay the costs. 

STEFFEN v. HERR 
No. 309, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 479; 190 A.2d 808; 1963 Md. LEXIS 471

 May  15, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  buyer, stock, seller, silent, rescission, entitled to rely, installment, chancellor, default, matter of right, down payment, installment payments, liquidated damages, written contract, required to hold, bargain and sale, actual damages, actual damage, per share, retention, unconditional, completion, delivery, election, rescind, forever, deposit, salary, mullen, decree

COUNSEL: Jan A. Obst for appellant.

   Marvin Braiterman for appellee.

JUDGES: Henderson, Hammond, Prescott, Horney and Marbury, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*480] [**808] This appeal is from a decree of an equity court dismissing a bill filed July 14, 1961, for rescission of a written contract and the recovery of $2,500.00 paid for the purchase of stock. The case turns on the proper construction of the contract.

   On November 1, 1957, Ray E. Herr, a[***3] resident of Florida and the owner of all the outstanding 787 shares of the common stock of Herr Electric Company entered into an agreement with [*481] Joseph E. Mullen of Glen Burnie and Heinie C. Steffen of Landsdowne, Maryland.  The agreement recited that Mullen and Steffen were employees who had rendered valuable services, that [**809] Herr was unable to devote as much time to the business of the corporation as he had in the past, and that Herr "desires that the said Joseph E. Mullen and Heinie C. Steffen take a more active interest in the business of the Corporation, not only as employees, but as officers and stockholders."
 
   The agreement then provided that Herr "agrees to sell" 24%, or 189 shares, to each of the named employees, at a total price of $9,250.00 or $48.94 per share and they each agreed to pay $25.00 per week on account of the purchase price, with 4% interest on the unpaid balances, with the right of prepayment to reduce interest charges.  Restrictions were imposed on the sale of stock, but the stock was to remain in the hands of the seller until fully paid.  There was a provision for purchase upon death, the stock certificates were indorsed as being subject[***4] to the terms of the agreement, and there was a mutual covenant clause as to the actions relating to the affairs of the corporation.  The agreement is completely silent, however, as to what could or should be done in the event of default in the payment of the weekly installments.

   It was shown in the testimony, that Steffen's salary was increased from $125.00 to $150.00 per week to enable him to make the payments called for in the agreement, that he paid $1,000 down and $25.00 was deducted from his salary each week.  He was discharged in October, 1958 but later re-employed as a salesman.  At that time he had paid $2500.00 to the company.  Steffen left the company in June, 1960.  Steffen demanded repayment of the payments he had made on account.  Herr refused, but agreed to turn over the shares if the balance of $6750 was paid.  On July 27, 1961, Herr sold all the 787 shares of the corporation to third parties, at a price of $28,200, or $35.83 per share. It was admitted that Herr proved a loss of about $2,500.00 on the transaction, and that he never received any interest.

   The appellant's theory of the case is not entirely clear.  He does not rely upon unjust enrichment, but[***5] seems to contend that there was no consideration for the agreement, and that [*482] the sale of the stock by Herr in 1961 constituted a breach.  We find no merit in either contention.  The payment of $1,000 down and $25.00 a week was obviously a good consideration for the sale of the stock, and although, as the Chancellor found, the seller was ready and willing to complete the bargain down to July 1961, he was still entitled to rely upon the buyer's breach in October, 1958, because there was no waiver.  The seller was not required to hold the stock forever, in the absence of any request for extension or offer by the buyer to complete the transaction, particularly after an election by the buyer to rescind. There was no evidence of a rescission accepted by the seller. See Great United Realty Co. v. Lewis, 203 Md. 442 and Quillen v. Kelley, 216 Md. 396. See also 5 Corbin, Contracts, § 1131.

   It is also clear that even though the contract was silent as to what disposition was to be made of the down payment and installments in the event of a default by the buyer, the buyer is not entitled to a return as a matter of right. See Alois v. Waldman, 219 Md. 369, 377[***6] and cases cited.  Cf. Newcomb v. Ray, 114 A. 2d 882 (N. H.).  In the Alois case it was held that the retention of the deposit could be justified on the theory that it was in the nature of liquidated damages, in lieu of actual damages there shown.  So, in the instant case, there was proof of actual damage in excess of the sum claimed, although there was no counterclaim.

   Perhaps the strongest argument that could be advanced for the appellant is that the agreement was wholly contingent upon the continued employment of the buyer. Some color for the contention may be drawn from the recitals, which indicate a desire to offer an incentive by a reward of minority ownership to the two most active employees.  The difficulty lies in reading into the contract a condition that is simply not [**810] there.  The language is clearly that of unconditional bargain and sale, delivery to be made only upon completion of the installment payments. We cannot find that the Chancellor erred in his construction of the contract, or in his findings of fact.

   Decree affirmed, with costs. 

SHPAK et al. v. MYTYCH et al. 
No. 277, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 414; 190 A.2d 777; 1963 Md. LEXIS 457

 May  10, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree reversed and bill of complaint dismissed.  Costs to be paid by appellees.

CORE TERMS:  zoning ordinance, salvage, parcel, yard, zoning, non-conforming, exhausted, demurrer, administrative remedies, certificate of occupancy, administrative remedy, junk, injunctive relief, adjoining, storage, garage, decree, hear, express statutory authority, case involving, Maryland Rule, administrative agency, failing to raise, relief provided, final decree, ultra vires, resort, agriculturally, agricultural, certificate

COUNSEL: Ridgely P. Melvin, Jr., and William J. Boehm, with whom were William [***3] J. McWilliams and McWilliams & Melvin on the brief, for the appellants.

   Malcolm B. Smith, with whom were Michael Demyan and Smith & Wohlgemuth on the brief, for the appellees.

JUDGES: Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*415] [**777] This appeal is from a decree of the Circuit Court for Anne Arundel County enjoining the appellants from using their property lying along Ridge Road in the 5th Election District of that county for the operation of a junk or salvage yard. The decree was based on a finding by the court that no non-conforming use existed on December 2, 1947, the effective date of the first zoning ordinance in the county.

   The questions presented on this appeal are: (1) did the lower court have jurisdiction [**778] to determine the existence of a legal non-conforming use, and (2) if it did have jurisdiction, did the court err in its decision.
 
   The facts basically are not in dispute.  In March 1947, Grover Foley purchased a twenty-two acre tract of land on Ridge Road (hereafter referred to as parcel No. 1).  In April of that year, he occupied this parcel, [***4] bringing with him several old cars, which were placed on the land with other old vehicles already [*416] there, apparently stored by others prior to his purchase.  During that year, he acquired other old cars.  He used parts from them in repairing automobiles on the property.  He also sold or traded some of these vehicles.  They were scattered over the entire parcel. He used an old building on the property for a garage and living quarters.

   In March 1948 he bought an adjoining one-half acre lot (hereafter referred to as parcel No. 2).  Some time between 1950 and 1952, Foley constructed a brick and masonry garage on parcel No. 2 and moved his business operation to that lot. Prior to this, in 1949, he had gotten a certificate of occupancy for his commercial use of parcel No. 1 from the county.  This certificate was issued to allow Foley the use of the land for occupancy as an automobile repair garage.

   The original zoning ordinance for Anne Arundel County, adopted on December 2, 1947, n1 classified this area as agricultural. A subsequent ordinance adopted in July 1952 maintained the same classification.

n1 The zoning ordinance adopted contained an unusual definition of junk or salvage yard -- "Any land or area used, in whole or in part, for storage of paper, rags, scrap metal or other junk or for the storage of automobiles not in running condition or for the dismantling of automobiles or other vehicles or machinery." (emphasis supplied)

[***5]

   Foley continued his business operations until July 1959, still using parcel No. 1 for the storage of old cars.  In July he transferred both parcels to the appellants.  The sale was conditioned upon the appellants getting the necessary permits authorizing the use of the property for a junk or salvage yard. A certificate of occupancy was issued authorizing the use of the property for an auto salvage yard on July 2, 1959.  This was an official recognition of a non-conforming use.

   In the meantime, several adjacent property owners, including the appellees herein, objected to the use of the property as an auto salvage yard. They were informed by the zoning inspector that their remedy was by way of appeal to the Board of Appeals.  Through their attorney they obtained the necessary forms on which to file such an appeal and notified the zoning inspector of their intention to do so, but did not file [*417] the appeal.  This was in October 1959.  In April 1961 the appellees filed a bill of complaint seeking to enjoin the alleged violation of the zoning ordinance created by the location of the auto salvage yard in the agriculturally zoned area and to abate the alleged nuisance resulting[***6] therefrom.  The appellants demurred to the bill of complaint on the basis that the Board of Zoning Appeals had not been made a party and that the appellees had not exhausted their administrative remedies. The court below over-ruled the demurrer and appellants filed an answer.  The question concerning a nuisance is not before us, the trial court having found there was no evidence to support this claim, and there was no cross-appeal.

   The zoning ordinance of Anne Arundel County in effect in 1959 provided that if a non-conforming use was desired in an agriculturally zoned area, a certificate of occupancy must be obtained from the duly authorized official responsible for the issuance of such certificate. Pursuant to Code (1957), Article 66B, § 22, a board of appeals had been established in Anne Arundel County to hear complaints with reference to zoning. Section 22 (g) of that article provides that the board had the power: "(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination [**779] made by an administrative official in the enforcement of this subtitle or of any ordinance adopted pursuant thereto." Section 22 (d) [***7]provides that appeals to the board of appeals may be taken by aggrieved persons affected "by any decisions of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board of appeals a notice of appeal specifying the grounds thereof * * *."

   In many cases this Court has held that when an administrative remedy is provided by statute, as it is in this case, with certain exceptions, relief provided under these statutory provisions must be exhausted before a litigant may resort to the courts.  Kahl v. Cons. Gas, El. Lt. & Pwr. Co., 191 Md. 249, 258, 60 A. 2d 754. See also Bogley v. Barber, 194 Md. 632, 640, 72 A. 2d 17. Anne Arundel County v. Snyder, 186 Md. 342, 348, 46 A. 2d 689. In addition, see Laque v. State, 207 Md. 242, 253, [*418] 113 A. 2d 893, and dictum in Walker v. Talbot County, 208 Md. 72, 87, 116 A. 2d 393.

   A recent reaffirmation of Kahl will be found in Richmark Realty v. Whittlif, 226 Md. 273 at 280, 173 A. 2d 196. That case was held to fall under an exception which permitted a suit in equity when the[***8] validity of an ordinance, waiving the prohibition of the construction of a service station within 300 feet of a public park, was attacked.  For a case involving exhaustion of administrative remedies in a non-zoning situation, see Tanner v. McKeldin, 202 Md. 569, 577, 97 A. 2d 449. For the view that a collateral attack on the validity of zoning ordinance is not permissible where a direct proceeding is available, see Cong. School v. Roads Commission, 218 Md. 236, 248, 146 A. 2d 558.

   These exceptions only apply where the act of the administrative agency is alleged to be unconstitutional, ultra vires or illegal and may injuriously affect the rights and property of the claimant, e.g. see Pressman v. Barnes, 209 Md. 544, 121 A. 2d 816. None of these elements is present here.  This is the usual type of complaint by adjoining property owners to the action of zoning officials to which they object.  The appellees had a statutory remedy which they might seek.  It is necessary under our decisions that they pursue it.  Nothing in the facts of this case indicate the need for the extraordinary action in by-passing the Board of Appeals.  We point out that the then attorney for the [***9]appellees (not counsel who argued this case on appeal), on October 22, 1959, nearly eighteen months before the filing of the bill of complaint, did apply for a hearing before the Board but failed to follow through on this course of action.

    The appellees cite Phillips v. Zoning Commissioner, 225 Md. 102, 169 A. 2d 410, as authority for the bringing of an original bill of complaint rather than pursuing their administrative remedy. In that case, however, it was not an aggrieved adjoining property holder asking for injunctive relief, but rather the zoning commissioner of Howard County exercising express statutory authority in seeking injunctive relief to prevent the use of certain land for a junk yard in violation of the zoning ordinance. See also Berwyn Heights v. Rogers, 228 Md. 271, 179 A. 2d 712, for another case involving express statutory authority [*419]for injunctive relief in addition to administrative remedies.

   Appellees state that the question of exhaustion of administrative remedy is not properly before this Court on appeal, citing Rule 885, in that they claim appellants have waived this point by failing to raise the question by proper preliminary motion, [***10] or in their answer to the bill of complaint. However, an appeal from the final decree brings up for review the correctness of the ruling on demurrer. Maryland Rule 809, Newark Trust Co. v. Talbot Bank, 217 Md. 141, 146, 141 A. 2d 516. See also Rule 373 c.

   [**780] Since we hold that appellants' demurrer should have been sustained without leave to amend and the bill of complaint dismissed because appellees had not exhausted their administrative remedies, we do not reach appellants' second contention.

   Decree reversed and bill of complaint dismissed.  Costs to be paid by appellees. 

DESSEL v. GOLDMAN, Jr. 
No. 274, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 428; 190 A.2d 633; 1963 Md. LEXIS 461

 April  4, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Orphans' Court for  Anne Arundel  County; Smith and Moreland, JJ.

DISPOSITION: Order allowing a fee of $1,100 reversed and case remanded for passage of an order allowing a fee of $600; costs of this appeal to be shared equally.

CORE TERMS:  estate tax return, legal services, abused, requisite, allowance, decedent, estimate, probate, nephew, skill, niece, pendente lite, income tax, administrators, executors, resident, caveat, extraordinary service, income tax return, reasonable fee, savings, uncomplicated, preparation, customary, routinely, fiduciary, fraction, judging, novelty, talent

COUNSEL: Delverne A. Dressel and Paul M. Higinbothom for appellant.

   Frank C. Serio, with whom were McWilliams & Melvin on the brief for appellee. 

JUDGES: Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*429] [**633] At issue here is whether the Orphans' Court of Anne Arundel County abused its discretion in allowing the appellee, a lawyer with[***3] an office in Baltimore, a counsel fee of $1,100 payable from the estate of a decedent.

   [**634] Gertrude Dessel Kratsch died at a nursing home in Baltimore on September 17, 1960.  She had long lived in Bar Harbor, Anne Arundel County, and on July 20, 1960, less than two months before she died, the appellee had prepared her will in which she recited that she was a resident of that County and by which she devised her home in Bar Harbor to a nephew. Under her will the nephew and a niece were named executors, and they, on appellee's advice, probated the will in the Orphans' Court of Baltimore City.  Soon thereafter, a brother of the decedent (the father of the executrix) petitioned the Orphans' Court of Baltimore City to revoke the probate on the ground that Mrs. Kratsch had been a resident of Anne Arundel County.  The appellee filed an answer, and the court held a hearing which lasted an hour or two.  On January 10, 1961, the court determined that Mrs. Kratsch had been a resident of Anne Arundel County and revoked the probate of her will.  No appeal was taken.  The brother filed notice of intention to caveat the will in the Orphans' Court of Anne Arundel County, which, on March[***4] 31, 1961, granted letters of administration pendente lite to the nephew and niece. The niece retained other counsel, and the appellee continued to represent the nephew.

   [*430] The caveat was dismissed with prejudice.  The appellee concedes that since the notice of intention to caveat was filed before probate of the will in the proper forum, he is not entitled to payment from the estate for his legal services in sustaining the will.

   The estate had a value of $130,000 -- two ground rents appraised at a total of $3,000, a house, which was returned in the Federal estate tax return at $7,150 "based on insured value of house and assessed value of land," Series E Savings bonds worth $38,506.40, and savings accounts aggregating some $80,000. 

   The appellee did not file the preliminary notice with the Internal Revenue Service within sixty days of death, as the law required, and did not file the estate tax return within fifteen months.  He took no action in regard to the Federal estate tax until February 15, 1962 (some seventeen months after the date of death) when, prodded by counsel for the niece-administratrix pendente lite, he deposited $8,500 with the Internal Revenue Service[***5] to stop the running of interest (appellee personally has assumed the payment of interest assessed by the government for the late filing).  The return was filed in June 1962.

   Appellee also prepared and caused to be filed a fiduciary United States income tax return and the decedent's last United States and Maryland income tax returns.  All were filed late.

   The Orphans' Court of Anne Arundel County allowed appellee a fee of $1,500 on his ex parte petition signed by only one of the administrators pendente lite. The brother filed a petition to rescind the ex parte order and excepted to the allowance of a fee.  The Orphans' Court took testimony, heard argument and, on October 11, 1962, allowed a counsel fee of $1,100 and ordered the costs of a transcript of the record to be paid from the estate.

   The appeal is from the order of October 11, 1962.  However, the question of the propriety of the allowance of costs was not presented as a question or argued in appellant's brief, and [*431] we do not consider it to be before us for review.  Maryland Rule 831 c 2, 4.  Mullan v. Mullan, 222 Md. 503, 506; Nutter v. Non-Profit Housing, 230 Md. 6, 17.

   The appellee defends the fee[***6] allowed by his estimate that he spent thirty hours on the question of the decedent's domicile, twenty to twenty-five hours on the income tax return and fifty-five hours on the estate tax return. He testified that "I think the filing of the tax returns in an estate of this size justifies the fee." There was testimony by a certified public accountant, who is also a practicing lawyer, that the going [**635] rate of compensation and a fair and reasonable fee would be $100 for the preparation of the estate tax return, $35 for the income tax returns, and $25 for the fiduciary return. His estimate of the time required to prepare all four returns was four hours and a quarter.  His testimony was supported by the opinion of the lawyer for the niece.

   The applicable principles and standards are plain and simple.  The Orphans' Court may allow a reasonable fee payable from the estate for legal services rendered in any matter connected with the administration or distribution of the estate.  In deciding the proper fee the court must exercise sound judgment and discretion, basing its determination upon the evidence offered for its instruction and guidance and a consideration of the tests[***7] held generally applicable in fixing the size of a fee; and from a breach of discretion on its part, an appeal will lie to this Court.  American Jewish Joint Distribution Committee v. Eisenberg, 194 Md. 193.

   The Eisenberg case adopted as standards for judging a proper fee those suggested in Canon 12 of the Canons of Professional Ethics of the American Bar Association which were adopted by the Maryland State Bar Association and the Bar Association of Baltimore City.  Of these several are particularly applicable and pertinent here: (1) the time and labor involved, the novelty and difficulty of the questions involved, and the skill requisite properly to conduct the cause; (2) the customary charges of the Bar for similar services; and (3) the amount involved in the controversy and the benefits resulting to the client from the services.

   [*432] The appellee testified to what seems obvious, that he had not performed any "extraordinary service or service involving the use of special, unusual talent, certainly," and that his legal services were those routinely rendered to executors and administrators. There would seem to have been no substantial reason or justification for probating[***8] the will in Baltimore and no benefit to the client in attempting to sustain the probate. If there was any, the legal services called for were only to present the facts. The hearing in court was short.

   The composition of the estate was such that preparation of the estate tax return and the income tax returns was simple and uncomplicated, and a lawyer having "the skill requisite properly to conduct the cause" could have prepared them in a small fraction of the time the appellee estimates he took.

   In our opinion, application of the standards this Court said in the Eisenberg case should govern, when applied to the facts, compel a conclusion that the Orphans' Court of Anne Arundel County abused its discretion in allowing the appellee a fee of $1,100, and that an allowance of $600 would have been entirely adequate.

   Order allowing a fee of $1,100 reversed and case remanded for passage of an order allowing a fee of $600; costs of this appeal to be shared equally. 

COMPTROLLER OF THE TREASURY, RETAIL SALES TAX DIVISION v.PITTSBURGH-DES MOINES STEEL COMPANY (Two Appeals in One Record) 
No. 219, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 132; 189 A.2d 107; 1963 Md. LEXIS 775

 March  19, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Order affirmed.  The Comptroller to pay 6/7 of the costs, and Pittsburgh 1/7 thereof. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Both parties appealed a Circuit Court for Anne Arundel County (Maryland) decision sustaining sales taxes assessed against appellee on rental equipment used in bridge construction, and abating appellant's sales tax assessment on appellee in relation to materials appellee incorporated into a bridge constructed under a contract with the federal government.

OVERVIEW:  Appellant assessed state sales taxes against appellee, on materials incorporated into a bridge appellee constructed as a federal contractor, and on rental of equipment appellee used in bridge construction. During the time of bridge construction, the state did not assess a sales tax under Md. Tax R. & Regs. 70 on materials used by state contractors. The trial court abated the tax assessment against the materials but sustained the rental assessments. Both parties appealed and the appellate court affirmed. The court held that Rule 70 unconstitutionally discriminated against the federal government and those such as appellee dealing with it, as there was no reasonable basis for treating state contractors as one class for state sales tax purposes and federal contractors as another. The court also held that sales taxes on equipment appellee rented were properly assessed under the plain meaning of Md. Ann. Code art. 81, § 320(d).

OUTCOME:  In affirming the trial court's decision, appellate court held that state sales tax law unconstitutionally discriminated against federal government contractors such as appellee by taxing state and federal contractors differently without a reasonable basis and that appellee was properly assessed state taxes on rental equipment under state statute plain language.

CORE TERMS:  contractor, exemption, rental, sales tax, tangible personal property, exempt, lessee, taxation, lease, discriminate, retailer, vendor, invidious discrimination, sales tax law, taxing power, tax burden, void, performing, lump-sum, selling, bridge, Fourteenth Amendment, amicus curiae, classification, three-judge, tax-exempt, leaseholds, discloses, exempted, invalid

CORE CONCEPTS -  

Tax Law: State & Local Tax: Sales Tax
See Md. Tax R. & Regs. 70.

Administrative Law: Agency Rulemaking: State Administrative Procedure
The Maryland Comptroller of the Treasury has no power or authority to create an exemption by Md. Tax R. & Regs.

Tax Law: State & Local Tax: Sales Tax
Administrative Law: Agency Rulemaking: State Administrative Procedure
Md. Tax R. & Regs. 70 derives whatever force it has from the fact that it is a correct interpretation of statutes promulgated by the legislature.

Tax Law: State & Local Tax: Sales Tax
See Md. Ann. Code art. 81, § 326(a).

Tax Law: State & Local Tax: Sales Tax
Governments: Legislation: Construction & Interpretation
The exemption of sales to the state of Maryland and its political subdivisions stems from Md. Ann. Code art. 81, § 326(a) and the exemption in Md. Tax R. & Regs. 70 to contractors who are performing jobs for Maryland or its political is a proper interpretation of the exemptions created by statute.

Tax Law: State & Local Tax: Sales Tax
A tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the government or those with whom it deals.

Tax Law: State & Local Tax: Property Tax: Real Property
Tax Law: State & Local Tax: Sales Tax
The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes. Where taxation of the private use of the government's property is concerned, the government's interests must be weighed in the balance. Accordingly, it does not seem too much to require that a state treat those who deal with the government as well as it treats those with whom it deals itself.

Tax Law: State & Local Tax: Sales Tax
There are not "significant differences" between contractors with the federal government and state contractors or its political subdivisions. A contractor who deals with the federal government falls within the same class as a contractor with the state or its subdivisions. Where the state creates an exemption under Md. Ann. Code art. 81, § 326(a) and Md. Tax R. & Regs. 70 from the general classification of sales to contractors who purchase tangible personal property for the construction of real estate on the legally supportable basis of contracting with the state of Maryland, it is because such contractor deals with a governmental entity.
 
Tax Law: State & Local Tax: Sales Tax
For a sales tax law to be legally justifiable that exempts contractors who deal with the state and its subdivisions, but fails to exempt contractors who deal with the federal government, and the legislature subdivides contractors with governmental entities into, at least, two divisions: those who contract with the state and its subdivisions and those who contract with the United States, for such an exemption to be legally justifiable, it must fall alike on all who are similarly situated and must include contractors with the federal government.

Tax Law: State & Local Tax: Sales Tax
It is difficult to perceive a reasonable distinction in a taxing statute which grants state contractors freedom from contributing to the cost of government and imposes the burden upon federal contractors. Further, the imposition of a tax upon federal contractors and not state contractors permits a state to deal with retailers at a lower cost and imposes an increased cost upon the federal government dealing with the same class of persons. Assuming that such a statutory exemption may have the laudable public purpose of reducing governmental costs, it is equally applicable to the federal government thus benefiting all citizens of the United States, including the state citizens.

Tax Law: State & Local Tax: Sales Tax
No matter for what purpose a state imposes its sales tax, it does not justify a state in discriminating, invidiously, against the federal government.

Constitutional Law: Relations Among Governments
Tax Law: State & Local Tax: Sales Tax
Md. Ann. Code art. 81, § 326(a), calling for nontaxation of state contractors, creates a valid and permissible taxation exemption. In addition to § 326(a), Md. Ann. Code art. 81, § 326(f) prohibits the taxing of sales which are not within the taxing power of Maryland under the Constitution of the United States. The legislature has incorporated into the statute itself a federal constitutional standard. That standard requires that there be no invidious discrimination between the treatment afforded federal and state contractors. Consequently, when the legislature carried out its intention to exempt state contractors under § 326(a), sales to federal contractors were no longer within the taxing power of Maryland under the Constitution of the United States.

Tax Law: State & Local Tax: Sales Tax
The portion of Md. Tax. R. & Regs. 70 is unconstitutional, null, and void insofar as it attempts to tax contractors under a lump-sum contract with the federal government.

Tax Law: State & Local Tax: Sales Tax
Commercial Law (UCC): Sales (Article 2): Form, Formation & Readjustment
See Md. Ann. Code art. 81, § 324(d).

Commercial Law (UCC): Sales (Article 2): Form, Formation & Readjustment
Governments: Legislation: Construction & Interpretation
The legislative intent of Md. Ann. Code art. 81, § 324(d) encompasses all kinds of rentals of tangible personal property not expressly excluded by Md. Ann. Code art. 81, § 326. The phrase "including rental, lease or license to use, or royalty," does not merely modify the single word "consideration," which precedes it but it goes back and is to be considered in conjunction with everything that has preceded it in the sentence. In other words, "sale" and "selling" mean any transaction whereby title or possession, or both, of tangible personal property is, or is to be, transferred by any means whatsoever for a consideration, and any such transaction shall include rental, lease or license to use, or royalty on tangible personal property, by an owner to a transferee.

COUNSEL: Edward F. Engelbert, Attorney, Retail Sales Tax Division, with whom were Thomas B. Finan, Attorney General, and Robert S. Bourbon, Assistant Attorney General, on the brief, for the appellant and cross-appellee.

   Francis D. Murnaghan, Jr., with whom were Venable, Baetjer & Howard on the brief, for the appellee and cross-appellant.

   Brief of amicus curiae filed on behalf of the United States by Louis F. Oberdorfer, Assistant Attorney General of the United States, Lee A. Jackson, [***6] I. Henry Kutz and Thomas A. Skornia, Attorneys, Department of Justice, Joseph D. Tydings, United States Attorney, and Robert W. Kernan, Assistant United States Attorney.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*135] [**108] In April, 1961, the Comptroller of the Treasury, the appellant and cross-appellee (often hereafter referred to as the appellant), made an assessment, for the period June 1, 1960, through January 30, 1961, for sales taxes against Pittsburgh-Des Moines Steel Company, the appellee and cross-appellant, (often hereafter referred to as the appellee) of $17,980.65, representing tax on materials incorporated into the Woodrow Wilson Memorial Bridge, constructed by Pittsburgh under a lumpsum contract with the Department of Commerce of the United States Government.  In addition, an assessment of $2,409.18 was imposed on rentals of floating equipment used by Pittsburgh in the construction of the bridge. Following a formal hearing before the Comptroller, the hearing officer sustained the entire assessment.  An appeal was taken by Pittsburgh to the Circuit Court[***7] for Anne Arundel County, where Judge Duckett abated the assessment against the materials, but sustained the assessment on rentals. Both parties appealed.

   The appeal presents four questions:
1. Does Rule 70 of the sales tax rules and regulations discriminate against the appellee by exempting certain sales to contractors with the State of Maryland and its political subdivisions while taxing sales to federal contractors?
[*136] 2. If Rule 70 discriminates against the appellee, is such discrimination unconstitutional?
3. If the Court finds there is unconstitutional discrimination against the appellee, what is the result?
4. Does the Maryland sales tax apply to rentals of tangible personal property?

   The facts are few and undisputed: assessments were made against Pittsburgh as above noted, and, during the time of the construction of the bridge involved, Maryland did not assess a sales or use tax on materials which were incorporated into "jobs" under contracts with the State of Maryland, or its political subdivisions.

   I

   The appellant argues that under the facts of this case, there has been no discrimination against Pittsburgh.  He asserts that the sales tax has been [***8]imposed by statute [**109] (Code, 1962, Cum. Supp., Art. 81, § 324, (f) (3), and § 325) on the sale to all contractors of tangible personal property to be used in constructing real estate; hence contractors with "the Federal Government are, of course, included and contractors for the State are also included except for the provisions of Rule 70." n1

n1 "Contractors who are performing jobs for the State of Maryland or any of its political subdivisions or a nonprofit religious, charitable, scientific, literary or educational institution or organization located within the State of Maryland on a lump-sum basis are not required to pay the tax on materials and supplies which will be incorporated into the job.  * * *.

   * * *

   "Contractors who are working on lump-sum, cost plus a fixed fee, or cost plus contracts containing an upset or guarantee clause with the Federal Government must pay the tax on all personal property which they purchase in fulfilling such contracts."

   The latter part of the above quotation cannot[***9] be sustained.  The Comptroller has no power or authority to create an exemption by Rule.  Rule 70 derives whatever force it has from the fact that it is a correct interpretation of the statutes promulgated by the Legislature.  Article 81, § 326 (a), exempts from the sales tax "sales to the State of Maryland or any of its political subdivisions." In John McShain, Inc. v. Comptroller, [*137] 202 Md. 68, 95 A. 2d 473, (wherein it was conceded that the Comptroller lacked the power to create an exemption beyond that granted by statute) this Court upheld a part of Rule 70 (as it now reads), and held that the exemption applied when the tangible personal property was acquired through an intermediary contractor, as well as when it was acquired directly from a supplier.  Cf.  Comptroller v. Joseph F. Hughes, 209 Md. 141, 120 A. 2d 343. Hence, we see that the exemption of sales to the State of Maryland and its political subdivisions stems from Article 81, § 326 (a), and the exemption in Rule 70 to contractors who are performing jobs for the State or its political subdivisions has been confirmed by this Court as a proper interpretation of the exemptions created by statute.

   It is[***10] impossible, under the adjudicated cases, to sustain the Comptroller's claim that the record discloses no discrimination against the appellee as a contractor with the Federal Government.  In Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, the State of Texas had imposed a tax upon lessees of tax-exempt real estate owned by the Federal Government.  This tax was measured by the full value of the property.  However, by Texas law a distinctly lesser burden was placed upon the lessees of tax-exempt property owned by the State, or its political subdivisions.  Under these circumstances, the Supreme Court stated: "The discrimination against the United States and its lessee seems apparent."

   In 1961, the Supreme Court again had occasion to consider the question of discrimination against the United States and its lessees. In Moses Lake Homes v. Grant County, 365 U.S. 744, Grant County, pursuant to the laws of the State of Washington, attempted to tax the full value of the buildings and improvements on privately owned Wherry Act leaseholds of housing developments on a federally owned Air Force base, although, under the laws of Washington, other leaseholds, including privately[***11] owned leaseholds of tax-exempt State lands, were taxed at a lower valuation.  The Court quoted from United States v. City of Detroit (355 U.S. at 473) as follows: "It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government [*138]or those with whom it deals." It then followed the Phillips Chemical Co. case, supra, and held [**110] the tax to be unconstitutional and void, because it discriminated against the United States and its lessees.

   These two cases dealt with "property" taxes, but it has been held that the principles there involved are equally applicable in the case of sales taxes. The State of Illinois imposed a retailer's occupation tax (a tax on the seller's privilege to sell tangible personal property at retail based on the amount of the sales price) upon the vendors of tangible personal property. An exemption was granted to vendors to the State and its political subdivisions, but no such exemption was afforded vendors to the Federal Government.

   In United States and Olin Mathieson Chemical Corp. v. Dep't of Revenue [***12] of State of Illinois, 191 F. Supp. 723 (1961) (D.C., N.D. Ill.), a three-judge Federal Court stated that in its view a retailer who deals with the Federal Government falls within the same class as a retailer who deals with the State of Illinois, and it was very difficult to perceive a reasonable distinction which grants the State freedom from contributing to the cost of government and imposes the burden on the Federal Government.  It then pointed out that the imposition of the tax on one and not the other permitted the State to deal with retailers at a lower cost and imposed an increased cost upon the Federal Government dealing with the same class of persons.  The tax was held to be unconstitutional and void as discriminating against the Federal Government, or those with whom it dealt.  The State of Illinois appealed to the Supreme Court.

   While this appeal was pending, the Supreme Court of Illinois found the exemption section of the occupation tax law to be unconstitutional.  Thereafter, the General Assembly of Illinois enacted an exemption section, which did not exempt the tax on sales to the State or its political subdivisions, but did exempt charitable institutions.  The Supreme[***13] Court vacated the judgment "in the light of developments which have occurred," and remanded the case for further consideration.  368 U.S. 30. On remand, the case was tried on the issue of whether the exemption of charitable institutions created an unconstitutional [*139] discrimination.  The Court determined that it did not, but issued an injunction restraining the collection of taxes on the proceeds of sales to the Government "for the period when the State of Illinois did not assess or collect any taxes with respect to proceeds of sales to the State of Illinois," or its political subdivisions.  This determination was affirmed by the Supreme Court.  United States v. Dep't of Revenue, 371 U.S. 21. The three-judge Federal Court was correct, we think, in determining that the same principles enunciated in Phillips Chemical Co. and Moses Lake Homes, Inc. were applicable to sales taxes, and we hold that the record discloses discrimination against the Federal Government and those with whom it dealt.  See also People v. Isaacs, 176 N. E. 2d 889 (Ill. 1961).

   II

   The appellant's next contention is that assuming the law does discriminate against the appellee, such discrimination[***14] is not unconstitutional, because there is "a reasonable basis for treating state contractors as one class and federal contractors as another."

   At the outset of the consideration of this contention, we note that there seems to be a considerable difference of opinion in the briefs as to the tests or standards to be applied in determining what, or how much, discrimination by a State against the Federal Government, or those with whom it deals, is necessary to render such discrimination unconstitutional.

   The brief of the United States, as amicus curiae, argues that the classifications and discriminations permissible under the Equal Protection Clause have nothing whatever [**111] to do with the problems herein involved, claiming that they should be solved solely by reference to the Supremacy Clause of the United States Constitution.  It points to the fact that the seminal case upon the subject, McCulloch v. Maryland, 4 Wheat. 316, was decided fifty years before the Fourteenth Amendment was adopted.  It quotes from Phillips Chemical Co., supra, wherein the Court said: "We have made it clear, in the equal protection cases, that our decisions in that field are not necessarily [***15] controlling where problems of intergovernmental tax immunity are involved.  * * * But where taxation of the private use of [*140] the Government's property is concerned, the Government's interests must be weighed in the balance," and from the opinion in United States v. Allegheny County, 322 U.S. 174, 191, to the following effect: "The questions in this case [taxation by a State of property owned by the Federal Government, in the custody of its bailee] do not arise under the Fourteenth Amendment. They depend on provisions adopted and principles settled long before the Fourteenth Amendment and which exist independently of it." It also cites Martin Co. v. State Tax Comm., 225 Md. 404, 421, 171 A. 2d 479, where Chief Judge Brune, for the Court, said: "In view of the conclusion which we have reached [on the facts of the case] we do not find it necessary to express an opinion on the question of possible discrimination against the Government on the basis of either statutory provisions or actual tax administration.  Of course, no such discrimination would be permissible." Consequently, the amicus curiae concludes that any State tax "levied in a discriminatory manner[***16] against those who deal with the Federal Government is prohibited and invalid."

   The Comptroller counters by claiming that the tests of discrimination used in the equal protection cases are applicable here; that the last clause of Article 15 of the Declaration of Rights ["yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community"] permits a higher degree of discrimination in imposing excise taxes than in imposing property taxes; that in the Phillips Chemical Co. and Moses Lake Homes, Inc. cases, supra, there is no discussion (with the possible exception of Phillips) "of what might constitute discrimination"; and in Phillips Chemical Co., the Court, after pointing out that discrimination against the United States and its lessees was apparent, stated, "the question, however, is whether it can be justified," which can only mean that even if there be admitted discrimination, the statute creating the discrimination is not unconstitutional if the discrimination can be justified.

   We find it unnecessary to answer these contentions in detail, or to lay down a rule relative to the tests[***17] and standards to be applied in all cases where it is claimed that a State tax discriminates [*141] against the Federal Government and those with whom it deals.  For the purposes of this case, we shall adopt the simple test set forth by the Supreme Court in Phillips Chemical Co., supra, when it said: "The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes. * * *.  * * * where taxation of the private use of the Government's property is concerned, the Government's interests must be weighed in the balance. Accordingly, it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself (italics ours)."

   The appellant argues this contention (No. II) elaborately, but an analysis of his brief discloses the following is the claimed "reasonable basis" for placing state and federal contractors in different classes: "In the case at bar, the distinctions are quite evident.  The exemption of State contractors does not increase the burden on anyone [**112] else. [***18] As a matter of fact, it lessens the burden on all since it is perfectly obvious that there are expenses attendant upon the handling of any tax funds * * *.  The direct benefit to the State and its political subdivisions is so amply revealed in the State's budget, that it is not necessary to discuss it here.  Rule 70 does not set up a classification based on sovereignty but is merely a common sense application of the fact that there can be no profit in paying the right hand with the left.  * * *.  The point we [the Comptroller] make is that the exemption for State contractors does not increase the tax burden of other contractors or taxpayers but decreases the tax burden on all."

   We do not find the argument persuasive.  The argument that the exemption lessens the burden on the State because "there are expenses" incurred in the collection and handling of tax funds and that there is a "direct benefit" to the State and its subdivisions applies with equal force when the Federal Government is considered, and it weakens, more than it strengthens, the appellant's position.  And practically all, if not all, of the above argument has been answered adversely to the Comptroller in the cases[***19] we have cited above.  We are unable to discover "significant differences" between contractors with the [*142] Federal Government and contractors with the State of Maryland, or its political subdivisions -- the classes erected by our sales tax law. A contractor who deals with the Federal Government falls, we think, within the same class as a contractor with the State of Maryland, or its subdivisions. Where the State creates an exemption n2 from the general classification of sales to contractors who purchase tangible personal property for the construction of real estate on the legally supportable basis of contracting with the State of Maryland, it is because such contractor deals with a governmental entity. When the sales tax law exempted contractors who deal with the State and its subdivisions, but failed to exempt contractors who deal with the Federal Government, the Legislature subdivided contractors with governmental entities into, at least, two divisions: those who contract with the State and its subdivisions and those who contract with the United States.  Such an exemption, to be legally justifiable, must fall alike on all who are similarly situated and must include contractors[***20] with the Federal Government.  United States v. Dep't of Revenue of State of Illinois, supra. Cf. Phillips Chemical Co. v. Dumas School Dist. and Moses Lake Homes, Inc. v. Grant County, both supra.  We agree with the three-judge Federal Court when (191 F. Supp. at p. 729) it said:

   "It is difficult for us to perceive a reasonable distinction which grants one freedom from contributing to the cost of government and imposes the burden upon the other.  Further, the imposition of the tax upon one and not the other permits the State to deal with retailers at a lower cost and imposes an increased cost upon the Federal Government dealing with the same [*143] class of persons.  Assuming that the statutory exemption may have the laudable public purpose of reducing governmental costs, it is equally applicable to the Federal Government thus benefiting all citizens of the United States, including the citizens of the State of Illinois."
 
See also United States v. City of Detroit, supra, 355 U.S. at p. 474.

n2 No attack is made in the instant case on the power of the State to create an exemption. But statutes which tax one class while exempting another class necessarily impose a greater burden upon the person taxed than would be the case if the exempted class were included.  However, such statutes do not create a constitutional inequality, if all who should be included in the same class are included and treated alike.  United States v. Dep't of Revenue of State of Illinois, supra; Hart Refineries v. Harmon, 278 U.S. 499, 502.

[***21]

   [**113] The above answers substantially all of the appellant's argument under this heading.  However, there is one further claim which we shall answer. The Comptroller states that, beginning in 1947 when the sales tax was first imposed in Maryland, the General Assembly adopted a plan whereby the State paid over to its political subdivisions certain taxes, collected by the State, to enable the subdivisions to meet "their deferred building requirements and other expenditures required by the Second World War * * *," and the sales and use tax laws were adopted "to fill the gap occasioned by the payment" of the aforementioned funds to the political subdivisions.  There is nothing in the record to show that the sales tax is earmarked or allocated for any specific purpose, and, presumably, it goes into the general funds of the State.  But be that as it may, we think the short, but complete, answer to this claim is, that no matter for what purpose the State of Maryland imposes its sales tax, it does not justify the State in discriminating, invidiously, against the Federal Government.

   We, therefore, hold that the record fails to show "significant differences" between contractors with[***22] the Federal Government and contractors with the State and its subdivisions; and when the Legislature enacted Article 81, § 326 (a), which exempted sales to the State and its political subdivisions but did not exempt sales to the Federal Government, it failed to "treat those who deal with the Government as well as it treats those with whom it deals itself." Hence, the tax assessed against Pittsburgh for the sales on tangible personal property incorporated into the bridge is invalid and void, and cannot lawfully be collected.

   III

   The appellant suggests under this heading that if this Court [*144] finds an unjustifiable discrimination, the proper way of removing such discrimination "is by striking down Rule 70, n3 the true source of any discrimination which may exist," and then state and federal contractors will be taxed alike.  As we pointed out above, the true source of the exemption to contractors who deal with the State and its subdivisions is Article 81, § 326 (a).  Hence, if Rule 70 were striken down, Article 81, § 326 (a) would remain in force and effect, and the discrimination would still exist.

n3 The Rules and Regulations adopted by the Comptroller are authorized by Article 81, § 365 (a).

[***23]

   We think that instead of striking down Article 81, § 326 (a) and Rule 70, the method suggested by both the appellee and the amicus curiae is sound, and the proper mode of dealing with the situation.  Article 81, § 326 (a), calling for nontaxation of state contractors, creates a valid and permissible exemption (Article 15, Declaration of Rights.  Cf.  Oursler v. Tawes, 178 Md. 471, 485, 13 A. 2d 763; John McShain v. Comptroller, supra; Comptroller v. Joseph F. Hughes, supra). In addition to Article 81, § 326 (a), Article 81, § 326 (f) prohibits the taxing of "sales which are not within the taxing power of this State under the Constitution of the United States." Thus the Legislature has incorporated into the statute itself a federal constitutional standard. n4 That standard requires, as we pointed out above, that there be no invidious discrimination between the treatment afforded federal and state contractors. Consequently, when the Legislature carried out its intention to exempt state contractors (§ 326 [a]), sales to federal contractors were no longer "within the taxing power of this State under the Constitution of the United States." It would seem that this construction[***24] [**114] will permit the whole of the legislative fiscal program (as it applies here) to stand as it was originally projected, and the result is amply warranted by the canons of construction commonly applied by this and other Courts.  See Dept. of Tide. Fisheries v. Sollers, 201 Md. 603, 613, 95 A. 2d 306, wherein the Court said, "it is presumed that the Legislature [*145] intends to impart to each of its enactments a meaning that will render it operative and effective." We hold that the second paragraph of Rule 70, as quoted in footnote (1), is unconstitutional, null, and void insofar as it attempts to tax contractors under a lump-sum contract with the Federal Government.  If Maryland desires to tax federal contractors, it may do so in the same manner as the Illinois Legislature did after its state exemption was declared invalid (see above), i.e., change the law so as to tax state contractors also.  Cf. Smith-Hurd Ann. Stats., Ch. 120, § 441, as amended by Act of July 31, 1961, Illinois Laws, 1961, p. 2312, § 1.

n4 Cf.  Martin v. State Tax Comm., supra; Tawes v. Aerial Products, 210 Md. 627, 124 A. 2d 805; Steiner Const. Co. v. Comptroller, 209 Md. 453, 121 A. 2d 838.

[***25]

   IV

   The cross-appellant, Pittsburgh, here disputes the validity of the assessment on rentals of floating equipment.  In 1955, the Legislature amended the then § 320 (d), now § 324 (d), of Article 81. n5 Pittsburgh argues that the definition of "sale" and "selling," by including "rental" within the "sub-definition of 'consideration,' was not intended to pervert the normal meaning of 'sale' or 'selling'." Further, and this is the nub of its contention here, it claims that the inclusion of the word "rental" [*146] in the statute was not intended to impose a tax on short-term rentals without options to purchase, but was done for the sole purpose of making clear that the sales tax applies to transactions which are in actual fact sales, although they are disguised, for various purposes, as rentals. n6

n5 The following is the language used as it appears in Ch. 332 of the Acts of 1955:

   "320 (d) [now 324 (d)] 'Sale' and 'Selling' mean any transaction whereby title or possession, or both, of tangible personal property is or is to be transferred by any means whatsoever for a consideration including rental, lease or license to use, or royalty, by a vendor to a purchaser, or any transaction whereby services subject to tax under Section 321 of this sub-title are rendered for consideration to any purchaser by any vendor. Such consideration may be either in the form of a price in money, rights or property or by exchange or barter, and may be payable immediately, in the future, or by installments. NOTHING IN THIS SUB-SECTION SHALL APPLY TO THE RENTING OF TEXTILES, THE ESSENTIAL PART OF WHICH INCLUDES THE RECURRING SERVICE OF LAUNDERING OR CLEANING THEREOF, NOR THE RENTING OF MACHINES AND EQUIPMENT USED EXCLUSIVELY FOR AGRICULTURAL PURPOSES."
Explanation: Italics indicate new matter added to existing law.  [Brackets] indicate matter stricken from existing law.  CAPITALS indicate amendments to bill.
[***26] 

n6 Cf.  Beckwith Machinery Co. v. Matthews, 190 Md. 182, 57 A. 2d 796; Alban Tractor Co. v. State Tax Comm., 219 Md. 593, 150 A. 2d 456.

   Such a construction would be a strained one, and necessitate ignoring the plain meaning of the language employed in the statute and the purpose thereof expressed in its title.  The title, inter alia, states that the Act is "to impose the [sales] tax on rentals and leases of CERTAIN tangible personal property; * * * [to impose] the tax on leases of motor vehicles; * * * and to repeal and re-enact, with amendments, [Section] * * * 368 (f) (2) * * * of Article 81 * * *, subtitle 'Maryland Use Tax' [which is complementary to the sales tax] * * * amending the definition of 'Purchase' to include lease and rentals." Cf.  Kimball-Tyler v. Baltimore City, 214 Md. 86, 96, 133 A. 2d 433.

   Although the phraseology of the first sentence of § 324 (d) can, perhaps, be properly termed clumsy, and probably few, if any, English teachers would commend it, it, together with the title and the remainder of the section, we think, makes it clear that the Legislature[***27] intended to include all kinds of rentals of tangible personal [**115] property (not expressly excluded) in the sales tax law. The phrase "including rental, lease or license to use, or royalty," does not merely modify the single word "consideration," which precedes it, as argued by Pittsburgh, but it goes back and is to be considered in conjunction with everything that has preceded it in the sentence.  In other words, "sale" and "selling" mean any transaction whereby title or possession, or both, of tangible personal property is, or is to be, transferred by any means whatsoever for a consideration, and any such transaction shall include rental, lease or license to use, or royalty (on tangible personal property), by an owner to a transferee.  This construction is additionally bolstered, we think, by the exclusionary provisions of the subsection, whereby "renting" of such textiles as diapers, towels, barbers' blouses, etc. (under certain conditions), and the "renting" [*147] of machines and equipment used exclusively for agricultural purposes are excluded from the Act.  We hold that the trial court was correct in sustaining the assessment for rentals of tangible personal property. [***28] 

   Order affirmed.  The Comptroller to pay 6/7 of the costs, and Pittsburgh 1/7 thereof. 

ALVEY v. MICHAELS et al. 
No. 177, September Term, 1962
 
Court of Appeals of Maryland
 
231 Md. 22; 188 A.2d 293; 1963 Md. LEXIS 395

 February  19, 1963, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed March 8, 1963, Denied April 3, 1963.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  marina, zoning, neighborhood, classification, agricultural, rezoning, boating, chancellor, boat, reclassification, agricultural use, debatable question, waterfront, tract, detrimental, zoned, adjoining, zoning ordinance, number of people, residential zone, reasonable use, proposed use, debatable, inappropriateness, discriminatory, accommodation, accommodate, convenience, erroneously, capricious

COUNSEL: James C. Morton, Jr., and Emanuel Klawans, with whom were Rouse, Morton & Beardmore on the brief, for the appellant.

   Malcolm B. Smith, with whom were Louis M. Strauss and Smith, Wohlgemuth & Westcott on the brief, for the appellees.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*24] [**294] Feeling aggrieved at a decree of the Circuit Court for Anne Arundel County which declared the rezoning by the County Commissioners of a tract of waterfront property[***4] from "Agricultural Use" to "Heavy Commercial Use" to be void, the appellant brings this appeal.

   The appellant is the owner of a thirty-nine acre tract of land located in the First Election District of Anne Arundel County, which, by the Comprehensive Zoning Ordinance of 1952, was given an agricultural classification. The appellant's deceased husband applied to the County Commissioners for the rezoning of 4.75 acres of this land along a body of water known as Ramsay Bay to a Heavy Commercial classification, for the avowed purpose of operating a marina on the property.  The Planning and Zoning Commission recommended approval of the application.  At the public hearing upon the application before the County Commissioners, the appellees, all property owners of land in close proximity to the tract in question, opposed the requested rezoning.

   The testimony at the hearing by appellant, her husband (now deceased) and their son, who was to aid them in the operation of the marina, is easily summarized.  Mr. Alvey in his testimony made the bald statement that there was an error in the original zoning of the land for agricultural use. He stated that although one section of his waterfront land[***5] was zoned heavy commercial, it was not suitable for the operation of the marina because of heavy water grass and shallow water.  [*25] The testimony of the appellant's other witnesses, as well as her own, indicated that a survey of marinas in the county and on the Eastern Shore shows a definite need for more boating facilities. Appellant stated that the land was not suited for agricultural purposes because of its small size and the expense of farming it.  Robert E. Lee, a marina owner who testified for appellant, stated that he had filled his marina with boats within a week after he published an advertisement in a Washington newspaper.

   On the other hand, appellees' testimony indicated that the area was already overcrowded with boats and boating facilities and that there was a question of public safety on the waters of Ramsay Bay if the marina were to be allowed. There was testimony to the effect that there was already a pollution problem which would be made worse by the presence of a marina. It was also pointed out that the entrance to the Bay is through a narrow bridge, which adds to the danger which would be caused by more boats in the area.

   In his memorandum opinion, the[***6] chancellor found that there was no mistake in the original zoning ordinance and that the only evidence presented to support the claim that the character of the neighborhood had changed was the testimony that boating in the area had increased.  He found that the need for marinas in the locality was not a local need, but one to accommodate non-resident boating enthusiasts.

   Although appellant raises five questions on appeal, we do not find it necessary to answer them separately, since we feel that appellant has not sustained the burden of showing the necessary requirements for a zoning change, namely, an error in the original zoning plan or a change in the character of the neighborhood to such an extent that a reclassification might properly be made. Baltimore v. N. A. A. C. P., 221 Md. 329, 335, 157 A. 2d 433; Nelson v. Montgomery County, 214 Md. 587, 593, 136 A. 2d 373, and cases cited therein. See also Reclassification, Variances, and Special Exceptions, 21 Md. L. Rev., 306, 308-314. The duty of the chancellor was to determine [**295] whether the County Commissioners' action was arbitrary, capricious, discriminatory, or illegal, and not to disturb a finding that[***7] is fairly debatable. Muhly v. County Council, 218 Md. 543, 546, [*26] 147 A. 2d 735. He found there was no evidence of original error in the zoning ordinance of 1952.  The only reference to an original error was made by Mr. Alvey.  He merely stated the property was erroneously zoned agricultural. In view of the many uses, including residential uses, permitted under the Anne Arundel County "agricultural" zoning classification, his testimony that before 1952 the property could no longer be profitably farmed, by no means establishes the inappropriateness of the original zoning. That was the only reason assigned for his statement.  No other evidence was presented on this point.  Under these circumstances we hold that the chancellor was correct in finding that no debatable question was raised on this particular point.

   The only other question, then, could be whether there had been a sufficient change in the characteristics of the neighborhood to justify a reclassification. There was testimony that the number of people engaged in boating activities had increased substantially in the area since the original zoning. However, this does not of itself prove a change in character[***8] to justify a rezoning. See Didlake v. Poteet, 228 Md. 588, 591, 180 A. 2d 828, where an increase in population in a neighborhood was held not to prove a change in the character of a neighborhood. See also County Commissioners of Anne Arundel County v. Fairwinds Beach Club, Inc., 230 Md. 569, 187 A. 2d 845. There was much testimony that the change of classification would be detrimental to other property owners in the neighborhood, where many residences were located.  Water pollution, which would have the effect of destroying the Bay for swimming, the danger of congestion of boat traffic at the bridge, noise and trash disposal were among the problems that adjoining or nearby owners would face.  There was testimony to the effect that such a business would be successful for appellant.  In reference to these facts see Wakefield v. Kraft, 202 Md. 136, 144, 96 A. 2d 27, where this Court said:
 
"He [adjoining property owner] is entitled to rely on the rule that a classification made by ordinance will not be changed unless the change is required for the public good and is not made merely to accommodate private interests which are detrimental to the [*27] welfare[***9] of the other property owners of the same neighborhood."

   That the proposed use of the property as a marina would be more profitable to the owner, than what is authorized under the existing zoning is not sufficient to require a change of classification, in the absence of a showing that the property cannot be put to any reasonable use under the existing classification. County Council v. Gendleman, 227 Md. 491, 499, 177 A. 2d 687 and cases cited therein.  See also Serio v. City of Baltimore, 208 Md. 545, 554, 119 A. 2d 387.

   As to the question that this would be spot zoning legally permissible under the circumstances, we have held that such is legal when there is a need for a service in the area for the accommodation and convenience of the residents of the residential zone, such as grocery stores, drug stores, barber shops, etc. Temmink v. Board of Zoning Appeals, 205 Md. 489, 495, 109 A. 2d 85. We do not find on the record that another marina within this area would come within this category.  Such a departure from the surrounding zoning is only allowed where there is an absence or insufficient service of such facilities in the area.  Cf. American Oil Co. v. Miller,[***10] 204 Md. 32, 102 A. 2d 727.

   We think the chancellor was correct in finding that there was not a debatable question before the County Commissioners as to whether there was a change in the character of the neighborhood.

   Decree affirmed, with costs. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY, et al. v.FAIRWINDS BEACH CLUB, INC., et al. 
No. 169, September Term, 1962
 
Court of Appeals of Maryland
 
230 Md. 569; 187 A.2d 845; 1963 Md. LEXIS 564

 February  6, 1963, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  rezoning, zoning, club, neighborhood, shopping, debatable question, property owner, shopping center, supportable, adjacent, comprehensive plan, residential, protestant, untenable, extending, exceeded, solidly, station, corner, rear, feet

COUNSEL: Jerome F. Connell for County Commissioners of Anne Arundel County, part of appellants.

   Douglas F. Lyons for Herbert J. Harmatz and Margaret Streett, other appellants.

   Charles C. Hartman, Jr., with whom were Fell & Hartman on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*571] [**845] In this zoning case from Anne Arundel County, the Chancellor reversed the action of the County Commissioners, in granting a rezoning from Agricultural to Heavy and Light Commercial to permit the construction[***3] of a small shopping center, on the ground that a debatable question was not presented.

   The appellants raised a preliminary question as to whether the Chancellor erred in overruling their demurrer on the ground that the Fairwinds Beach Club, Inc., was not a proper party, citing Windsor Hills Imp. Ass'n v. Baltimore, 195 Md. 383 and Glen Burnie Imp. Ass'n v. Appeal Bd., 213 Md. 407. [**846] See also Bar Ass'n v. District Title Co., 224 Md. 474, 476 and cases cited.  It is not alleged that the club is a taxpayer or property owner although located on Benfield Road, and the appellees appear to concede that it is in the same category as the Associations in the cases cited.  They merely contend that the Club should be permitted to remain as an additional party.  We think the claim is untenable, and that the court erred in refusing to strike the Club as a party.  This does not affect the merits of the case, however, as there were other individual parties whose standing is not challenged.

   The appellees contend that since the rezoning was approved by only a majority vote of 5 to 3 the application failed.  The argument is based on the fact that Code (1957), Art. 66B, sec. 21[***4] (e) requires a favorable vote of three-fourths of a zoning board where there is a protest from the owners of 20% or more "either of the area of the lots included in such proposed change or of those immediately adjacent in the rear thereof extending 175 feet therefrom, or of those directly opposite thereto extending 175 feet from the street frontage of such opposite lots * * *." The property in question is a corner lot, and there was testimony that it "fronts" on Jumpers Hole Road, and not on Benfield Road.  The property of the protestant, the Board of Education, is adjacent to the property in question on Jumpers Hole Road.  The appellants contend that it is neither adjacent in the rear nor directly opposite and hence the statute is inapplicable.  The Chancellor did not find it necessary to rule on the point, nor do we.

   [*572] We think the Chancellor was correct in holding that the rezoning was not supportable on the record.  The neighborhood is almost solidly residential. There is a tavern on one corner and a filling station on another, apparently both non-conforming uses.  The lot in question abuts a proposed elementary school of 24 rooms and is directly across the road from[***5] a country club. There was no evidence at all of mistake in the original zoning in the comprehensive plan adopted in July 1952.  The change sought to be established in order to justify rezoning to permit the shopping center, was that in recent years some property, formerly farm land, had been utilized for the building of residences, with a consequent increase in the population.  But as the Chancellor pointed out, a mere increase in population does not prove a change in the character of the neighborhood to justify another type of zoning. See Didlake v. Poteet, 228 Md. 588, 591. It was also argued that because of the increase in population a need for additional shopping facilities was demonstrated.  But there was precise testimony that shopping facilities in the neighborhood were more than adequate, and the testimony as to public need was based upon general conclusions from population figures that were not even put in evidence.  The protestants argued, with some force, that the increase in shopping facilities and service stations in the area defined exceeded the increase in population.  The Board made no finding of fact on this point but only a general finding that "conditions have[***6] changed".

   In West Ridge, Inc. v. McNamara, 222 Md. 448, relied on by the appellants, the nature of the intersection, the fact that it had been almost wholly commercialized, the absence of school children or traffic problems, and the recommendations of the Planning Commission after a comprehensive study, all tipped the scales in favor of the rezoning. We think the case is clearly distinguishable on the facts, and that the Chancellor was correct in finding that the record in the instant case did not present a debatable question.

    Decree affirmed, with costs. 

FOUR RIVERS FARMS, INC. et al. v. STATE ROADS COMMISSION OFMARYLAND et al. 
No. 98, September Term, 1962
 
Court of Appeals of Maryland
 
230 Md. 270; 186 A.2d 464; 1962 Md. LEXIS 385

 December  14, 1962, Decided

   SUBSEQUENT HISTORY: [***1]

   Motions for Rehearing Filed January 10 and 14, 1963, Denied January 16, 1963. 

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Motion to dismiss denied.  Decree affirmed, with costs.

CORE TERMS:  tract, memorandum, option agreement, acre, landlocked, right to purchase, parcel of land, disposal, parcel, deed, acre tract, exchanged, consideration received, tract of land, acre parcel, manifestation, interchange, conveyance, disposing, consented, disposed, dispose, motion to dismiss, arbitrary and capricious, acted arbitrarily, option contract, deed conveying, bid, capriciously, negotiated

COUNSEL: Nicholas J. Fotos, and submitted on the brief by Robert E. Funkhouser, in proper person, for Robert E. Funkhouser, for appellants.

   William D. Macmillan, Jr., with whom were Thomas B. Finan, Attorney General, and Joseph D. Buscher, Assistant Attorney General on the brief, for State Roads Commission of Maryland, part of appellees.

   Eugene M. Childs, with whom were[***7] Childs & Bald, on the brief for Henry Doepkens, other appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*273] [**465] This is an appeal from a decree of the Circuit Court for Anne Arundel County, which dismissed appellants' bill of complaint and dissolved a temporary restraining order, which had been issued against the State Roads Commission (Commission) and Henry Doepkens, restraining the Commission from delivering to the said Doepkens a deed from it to him for 29.78 acres of land.

   The questions presented will be considered under the following headings: (1) Should the appeal be dismissed?; (2) Do the appellants, or either of them, have legal standing to [*274] attack ultra vires or illegal acts of the Commission?; (3) Were the actions of the Commission in agreeing to convey title to the 29.78 acre tract of land to Doepkens ultra vires, or illegal?; (4) Did the Board of Public Works (Board) give its consent and approval to the Commission's decision to dispose of the tract in question, and conclude that the consideration received therefor by the Commission[***8] was adequate?; and (5) Did the Commission act in an arbitrary and capricious manner, so as to cause injury to "appellants' rights and property"?

   In acquiring rights-of-way for the John Hanson Highway, the Commission obtained, by purchase, the tract of land here involved (sometimes hereafter referred to as "the tract") in 1949.  It was over and above the then road construction requirements, but was purchased by the Commission due to the fact that it would become landlocked after the construction of the new highway.  The corporate appellant acquired property contiguous to the tract in 1956.  The appellant, Funkhouser, is the treasurer and principal stockholder of the corporation, and claims to be a property owner and taxpayer as an individual. The appellee, Doepkens, is also the owner of property contiguous to the tract.

   In January, 1959, the Commission announced that an interchange would be erected connecting the John Hanson Highway with Route 424, and instructed its right-of-way agents to begin obtaining the necessary land for its construction. The tract was not far distant from the proposed interchange, and both the appellee, Doepkens, and the Corporate appellant owned land that[***9] would be needed for the construction of the interchange. The appellant, Funkhouser, offered to exchange 1.59 acres of the corporate appellant's land for the tract. The Commission informed Funkhouser that this was not acceptable, as it did not consider this a fair exchange.  The Commission offered $500 for the 1.59 acres. In the meantime, another right-of-way agent of the Commission was negotiating with the appellee Doepkens for some 6.43 acres of his land, which fronted on Route 424 and also was needed for the construction of the interchange. The Commission's appraisal of [*275] this parcel ranged from $2,225, based upon an outside appraisal, to $4,006 as the Commission's own estimate.  After several meetings wherein the parties were [**466] unable to agree upon a cash price, Doepkens offered to exchange his 6.43 acre parcel for the 29.78 acre, landlocked tract owned by the Commission.  After considering this offer, the Commission decided to accept it, and thereafter approved an option agreement to this effect.  Included in the option was a provision that if the Commission acquired 11.93 acres from the "Wagner property," Doepkens was given the first right to purchase[***10] this 11.93 acres, which adjoined one of his farms. This acreage was over and above the Commission's requirements for road construction, and it, too, was landlocked. Doepkens was to pay cash for this parcel, the purchase price being the "after value price per acre." The deed conveying the 29.78 acre tract to Doepkens was prepared and executed by the Commission and the Board of Public Works.  Before it was delivered to the grantee, this suit was instituted, and a temporary restraining order was issued enjoining the Commission from delivering it to Doepkens.  After hearing below, the restraining order was dissolved and the appellants' bill of complaint was dismissed.  This appeal followed.

   I

   The appellees filed a motion to dismiss the appeal on the ground that the questions involved have become moot.  They argue that since no supersedeas bond was filed pursuant to Maryland Rule 817 a the Commission delivered the deed to appellee Doepkens, and the delivery rendered the questions raised in this appeal academic.  We do not agree.  In Durst v. Durst, 225 Md. 175, 169 A. 2d 755, Judge Sybert, for the Court, said: "In the case before us there are no intervening innocent parties to protect[***11] but a bona fide dispute and rights which remain to be decided.  * * * we will dismiss an appeal if it is beyond our power to make a decision in the case which will bind any of the parties to it or accomplish any of the purposes for which it was brought or defended.  Here, the parties are still in court, and amenable to court orders in the event of a reversal.  Therefore, the question involved in this [*276] case is not moot." We think that case and the cases therein cited are controlling here; consequently the motion to dismiss will be denied.

   II

   The appellees contend that the appellants failed to show any legal standing as taxpayers and property owners in this State to challenge the actions of the Commission.  The appellants reply by stating that they alleged in their bill of complaint that they were taxpayers and property owners, and the appellees admitted, at least insofar as the corporate appellant is concerned, this to be true in their answers.  For the purposes of the case, we shall assume, without deciding, that appellants had legal standing to institute the proceedings.

   III

   There are two aspects to appellants' claim under this heading.  First, the Code (1957), Article[***12] 89B, Section 6, states:

   "Whenever the State Roads Commission shall determine that any land * * * acquired * * * in connection with the State's system of roads * * * is not necessary or desirable in the maintenance of said system of roads and highways * * * the State Roads Commission with the consent and approval of the Board of Public Works, shall be vested with full power and authority to dispose of such land * * *."
 
By virtue of this statute, the appellants contend "that before the conveyance [to Doepkens] could legally be made, the State Roads Commission must first determine [italics ours] that the land is not necessary or desirable in the maintenance of the road system of the state." The Commission concedes that it was proceeding under the authority of Section 6 and it was necessary for the Commission to determine that the [**467] land conveyed was no longer necessary or desirable for the requirements of the road system, but asserts that it made such a determination.  It will be noted that the statute does not prescribe the mode by which the "determination" shall be made.  After conceding that it was acting pursuant to Section 6, we think it would have been[***13] difficult for the Commission to have [*277] made a clearer manifestation of a determination that the tract was no longer necessary or desirable for road-system purposes than it did when it signed the option agreement with Doepkens, and thereafter executed, subject to the approval of the Board of Public Works, a deed conveying the land to him.  This is a short but complete answer, we think, to this contention of the appellants.

   Second, the appellants lay great emphasis upon a "Policy Memorandum 21.2-1" dated November 4, 1959, and approved by the Chairman-Director of the Commission on November 10, 1959.  This memorandum dealt with the policy of the Commission in disposing of "real estate excess to the needs" of the Commission.  The appellants assert that the Commission, in disposing of the property herein involved, failed to comply with certain of the procedures outlined in the memorandum, and such failure rendered the Commission's attempted conveyance to Doepkens illegal.  If we assume that the failure on the part of the Commission to carry out, after its adoption, the procedures set forth in its policy would render its actions illegal (a matter that we are not required to determine [***14]at this time), it avails appellants nothing.  The option contract was signed by Doepkens on October 28, 1959; the memorandum was not approved until November 10, 1959.  The policy memorandum was clearly prospective in nature, and was not aimed at controlling disposals of land already made, or in the process of being made.  Hence, the transaction between Doepkens and the Commission was not within the purview of the memorandum; and the relatively unimportant matters subsequently negotiated between the Commission and Doepkens, such as a small change in the description of the property whereby the Commission retained sufficient land for a spur, did not require a reopening of the entire transaction and a following of the procedure set forth in the memorandum.

   IV

   Section 6, above quoted, permits the disposal of land by the Commission "with the consent and approval of the Board of Public Works." Appellants contend that the Board never gave its consent and approval to dispose of the tract herein involved, [*278] and, apparently predicates this contention upon an assumption that the "consent and approval" of the Board must have been sought and obtained before the option agreement was executed. [***15]

   Much of what we said under II above is also applicable here.  We are not, of course, determining the binding effect, vel non, of the option agreement (or of any other contract made by the Commission for the sale of land, without the consent and approval of the Board).  We are called upon to decide whether the Board gave its consent and approval to the Commission's disposition of the tract here involved.  The statute does not designate any specific time when the approval shall be given, or the manner in which it shall be evinced.  It does state that deeds for property disposed of thereunder shall be executed by "the Chairman of the State Roads Commission and the Board of Public Works." In the case at bar, the minutes of the Board clearly show that the Board consented to the disposal of the tract here in question, and, in addition, the Board has executed the deed to Doepkens, which is another clear manifestation of its consent and approval.  We hold that the action of the Board as disclosed by the record in this case was sufficient to establish that it had consented to, and approved of, the transfer involved herein.

   Code (1957), Article 78A, Section 15, provides that real property[***16] belonging to the [**468] State may be disposed of "for a consideration adequate in the opinion of the Board of Public Works." The deed conveying the 29.78 acre tract from the Commission to Doepkens was sent to the members of the Board, together with an explanatory letter relating to the exchange of this tract for the 6.83 acre parcel belonging to Doepkens, but no mention was made concerning the provision in the option relative to Doepkens' having first refusal of the purchase of the 11.93 acre parcel, if it were obtained from the Wagner property.  The appellants argue that this first right to purchase said property was part of the consideration for the entire option agreement; hence the Board failed to pass upon the adequacy of the consideration received for the 29.78 acre tract.

   [*279] A set of facts may be assumed wherein it would be conceivable that the consideration received for one of two parcels of land involved in an option would be so inadequate as to affect, substantially, the consideration received for the other parcel, but, under the circumstances of the instant case, the contention may be disposed of under the maxim of De minimis non curat lex.  At the time[***17] the deed was sent to the Board for its approval, the transaction between the owner of the Wagner property and the Commission had not been consummated.  Although it probably would have been better for the explanatory letter to the Board to have recited both transactions involved in the option, the Commission, apparently, treated the two parcels involved upon individual bases, but by so doing we are unable to say that the State lost anything thereby.  The 11.93 acre Wagner parcel was actually acquired and the after value price was set at $50 per acre, the same figure that the Commission paid for it.  There is nothing in the record to show that this parcel was worth more than the Commission received for it.  The appellants can not be very serious, we think, in urging that the State has lost anything of substantial value by granting a person the first right to purchase a small landlocked parcel of land at the appraised value set by the Commission.

   V

   This brings us to the final complaint of the appellants.  They urge that the Commission acted in an arbitrary and capricious manner by "not inviting the appellant corporation to bid for the 29.78 acre tract." As early as 1956, Funkhouser[***18] let the Commission know that the corporate appellant was interested in obtaining the tract. The Commission advised him that it was not available for purchase at that time, but it would place his name in the file and "at such time as this property is offered for sale, [he would] be notified." Much correspondence and numerous negotiations between Funkhouser and officials and employees of the Commission followed.  It would serve no useful purpose to set them forth in detail.  The appellants argue that it was arbitrary and capricious conduct on the part of the Commission when it exchanged the tract for Doepkens' [*280] 6.43 acres without inviting the appellant corporation "to bid" on it.  We know of no law or regulation that required this procedure, and, after a careful examination of the record, we are unable to discover where the Commission acted arbitrarily or capriciously. The Commission merely followed its customary procedure of exchanging property not needed for road construction purposes for land that was needed therefor.  The values of the properties exchanged show the bargain to have been a fair one for both parties.  The 6.43 acre parcel fronted on Route 424; the 29.78[***19] tract was landlocked. Prior to the exchange with Doepkens, the Commission had negotiated with Funkhouser, and the parties were unable to arrive at a mutually satisfactory bargain.  We have been unable to discover anything that discloses arbitrary or whimsical conduct on the part of the Commission.
 
   Motion to dismiss denied.  Decree affirmed, with costs. 

STONE, Sr. v. STONE, Jr. 
No. 54, September Term, 1962
 
Court of Appeals of Maryland
 
230 Md. 248; 186 A.2d 590; 1962 Md. LEXIS 381

 December  12, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree modified and as modified affirmed, with costs.

CORE TERMS:  stock, chancellor, decree, one-half, corpus, trust estate, sister, beneficiary, distribute, special account, dividends, estoppel, modified, successor-trustee, distributed, indenture, individual property, breach of trust, co-administrator, admissible, prejudiced, estopped, belonged, disturb, handwriting, shares of stock, full knowledge, plus interest, public policy, unwarranted

COUNSEL: James G. Woodward, for appellant.

   William J. McWilliams, for appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Marbury, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*250] [**592] This is an appeal from the decree of the chancellor, Judge Michaelson, of the Circuit Court for Anne Arundel County, in favor of appellee, plaintiff below, ordering the distribution of one-half of the remainder of the corpus and income of a trust of which appellant was settlor and successor-trustee, and appellee was one of two beneficiaries. Appellant is the father of the appellee.

   The trust in question was set up by an indenture dated May 16, 1932.  As provided in it, appellant was the settlor, his wife, Frances Wendell Stone, was trustee, and their two children, Frances Wendell Stone (now Warrick) and appellee, were beneficiaries. The indenture[***5] actually established two trusts, one for the benefit of each child.  An undivided one-half interest in the property donated by appellant in trust constituted the corpus of each trust. 
 
   Mrs. Stone administered the trust estate until her death in November, 1948, when she was succeeded by her husband, the appellant, according to the terms of the indenture.

   Since the indenture called for distribution of the corpus to each beneficiary when he or she reached age thirty, with periodic distributions of income to each, in 1952 when appellee became thirty, he demanded distribution.  Appellant did distribute to appellee and his sister all of the bonds held in trust, but none of the stocks. The stocks were not distributed because of a dispute as to whether certain shares actually belonged to the trust or were appellant's individual property. In 1958, the question still not being resolved, appellant delivered to a bank in [*251] New York all those shares of stock he considered to be part of the trust, the bank to distribute equally the shares to the two beneficiaries. He did not distribute some of the income of the two trusts since he anticipated litigation because of the dispute as to[***6] the distribution of the stocks.

   In August, 1958, appellee filed a bill of complaint in a Maine court against the appellant and the other beneficiary, praying for the same relief he seeks here.  Appellant did not answer or defend in the Maine case, because, he says, that he was neither a resident of or domiciled in that state, having left Maine earlier under the advice of his doctor because of the condition of his health. The Maine court entered a decree pro confesso in January, 1959, and, in March 1959, entered an interlocutory decree for accounting.

   Appellee filed a bill of complaint in this case in the Circuit Court for Anne Arundel County on May 21, 1959, asking that the appellant be required to distribute one-half of 600 shares of General Motors Corporation stock and one-half of 400 shares of Continental Oil Company stock, which appellant claimed were not part of the trust estate, but his own individual property. (Originally there were only 100 shares of each stock, but stock dividends and splits had increased them to their present number.) He also claimed one-half of the income still held by appellant, plus interest thereon.  In addition he contended that there was a special[***7] account standing in the name of appellant's deceased wife which belonged to the trust, and that he was entitled to one-half of this sum, plus interest thereon.

   On December 28, 1961, Judge Michaelson, after having heard lengthy testimony and considered many exhibits, passed a decree ordering appellant to distribute 300 shares of the General Motors Corporation stock and 200 shares of the Continental Oil Company stock to appellee.  He also ordered the accrued income and the special account to be distributed one-half to appellee, with interest at the rate of four and one-half per cent.  He denied appellant's claims, set forth in his answer to the bill, for commissions, counsel fees and other expenses. From this decree appellant has appealed.

   Appellant contends that the decree of the chancellor is null [*252] and void for the reason that it adjudicated the rights of a [**593] person (Mrs. Warrick) who was not a party to the case.

   In the first and sixth paragraphs of the bill of complaint, appellee's sister is referred to as "a defendant herein." In the decree Judge Michaelson stated that "plaintiff (and his sister) is co-owner" of the corpus of the trust in question.  Paragraph[***8] 9 of the bill explains that the first eight paragraphs are the same as that set out in the bill of complaint in the Maine case, in which appellee's sister was an actual defendant.  Although she was designated as a defendant in one or more places in the bill of complaint, she was not summoned nor did she participate in any manner in the trial.  Since she thus was not a party to this suit, the decree could not operate as an adjudication of rights as between the sister and the defendant.  We, therefore, think that the decree should be modified so as to state that the plaintiff is the owner of a one-half interest in the corpus of the trust estate, without referring to the sister or her rights, whatever they may be.

   Appellant next claims that certain exhibits were erroneously admitted into evidence.  These exhibits, for the sake of brevity, may be summarized in three groups.  The first of these groups consists of statements and documents made by appellant in his capacity as co-administrator in Maine of his wife's estate.  As to these, all of them were made subsequent to the death of Mrs. Stone and during his incumbency as successor-trustee under the provisions of the trust indenture. At[***9] that time he was occupying a threefold position -- co-administrator, trustee, distributee of his wife's estate.  Although the exhibits involved were primarily concerned with the administration of his wife's estate, it was reasonable for the chancellor to conclude that he was also acting within the scope of his position as successor-trustee, with knowledge of the effects of administration upon his personal rights and upon the trust.

   Two of these exhibits were letters written by appellant to Mr. Henry M. Fuller, a member of the Bar of the State of Maine, who handled the administration of his wife's estate in Maine.  In them appellant admitted that the General Motors and Continental Oil stocks were part of the trust estate and not part of his deceased wife's estate.  He also stated in both [*253] of them that there was a special account in a New York bank designated "F.W.S. Special Account" which was part of the trust estate. The chancellor relied heavily on these letters in his opinion below.

   Under the unique situation which prevailed we find that appellant was estopped from successfully contending that when he made and executed these statements and documents he was acting only[***10] as a co-administrator of his wife's estate and not as trustee of the trust which he had established. "The test [of estoppel by admissions] is not as to whether the admission is true, but as to whether it would be contrary to public policy and good morals to allow it to be disputed." Jones, Evidence, § 374.  "Generally speaking, a party will not be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts and another will be prejudiced by his action." 19 Am. Jur., Estoppel, § 50.  Under these circumstances appellant is estopped from denying that when he made or executed these instruments he did not have knowledge of the consequences to the trust nor of the injury to the beneficiaries if he later denied them or that he was acting in the capacity of trustee.

   The second group of exhibits consists of records and documents pertaining to the Maine administration of his wife's estate.  They include, inter alia, lists of or claims as to securities which tended to show negatively or affirmatively [***11]that the stocks here involved were part of the trust estate. Appellant contends that they are entirely independent of the trust and are too remote [**594] to be material to the issue in this case and were therefore not admissible. Some of the documents questioned do make reference to items that are alleged to have been in the trust, namely: the shares of General Motors and Continental Oil.  Others are not pertinent to the trust at all and shed no light on the true composition of the trust estate. What we have said with reference to the first group of exhibits applies with equal force to the second group insofar as they mention ownership of the shares of stock. As to those exhibits which do not mention [*254] the stocks, they were immaterial to the issue here involved and even if they were inadmissible on that ground their admission into evidence was certainly harmless error and in no way prejudiced the appellant's claim of ownership.

   The third group were records of income for certain years -- trust income for 1942, 1944-47, personal income of appellant for 1942-43, successor-trustee income for 1949-50 and 1957.  Three were in appellant's handwriting and six are conceded[***12] by him to be in the handwriting of his wife.  They were offered for the purpose of showing that appellant and his wife both considered the General Motors and Continental Oil stocks to be part of the corpus of the trust, not to show the payment of taxes as appellant contends.  They were offered to show a state of mind of appellant and his wife, which was that they intended to include the stocks in the corpus of the trust.  As such they were admissible. Stoner v. National Metropolitan Bank, 84 F. Supp. 726 (D.C.); Foster v. Winingham, 169 F. 2d 46 (C.C.A. 10th Cir.).

   Appellant contends that even if the exhibits in question were admissible, the evidence still did not support the findings and decree of the chancellor. We have held on numerous occasions that on appeal from a court of equity, we will not disturb the chancellor's findings of fact, based upon evidence taken in open court, unless such findings are clearly unwarranted by the evidence.  Blair, Exec. v. Haas, 215 Md. 105, 115, 137 A. 2d 145, and cases cited therein.

   The appellant also claimed that appellee was bound by appellant's testimony when appellee called him as a witness.  This claim is based upon his assertion [***13]of the inadmissibility of the documents which contradicted his statements on the stand and that for this reason appellant's testimony should be binding upon appellee.  Since we find the documents were properly admitted, his statements do not stand uncontradicted and it was for the chancellor to decide the truth of the statements.

   The last three grounds upon which appellant seeks reversal are considered together, since they involve details of the chancellor's decree as to how appellant is to distribute the corpus and the income of the trust, and whether appellant is entitled to certain fees with reference to his administration as trustee.

   [*255] One of these grounds was that appellant did not receive personally any of the income in the way of dividends in 1948-50 from the General Motors and Continental Oil stocks. The evidence shows that these corporations did pay dividends in those years, but there was no evidence to show that the dividends were paid into the trust estate. Judge Michaelson determined from the evidence that appellant was liable for them, and since he had the opportunity to see and hear the witnesses, we see no reason to disturb his findings.  Blair, Exec. [***14] v. Haas, supra.
 
   The other two grounds involve the chancellor's discretion in solving the problems involved in the case.  The chancellor, in his opinion below, emphasized the breach of duty by appellant as trustee toward the beneficiaries. The trustee was held to be answerable to the beneficiaries for any loss suffered through the breach.  2 Scott, Trusts, § 205.  The court is not confined to a limited list of remedies, but will rather mold the relief to protect the rights of the beneficiary according to the situation involved.  Hanley v. Stulman, 212 Md. 273, 277, [**595] 129 A. 2d 132; Bogert, Trusts and Trustees, § 861, p. 3. Where it is reasonable to make him do so, the court may compel the trustee to make specific reparation of the breach of trust. 2 Scott, Trusts, § 208 (4). Under these principles, we cannot say that the chancellor erred in directing the distribution and in valuing the stock as he did.  As to the claim that the chancellor erred in denying appellant credit for certain fees or expenses, it has been stated that if a trustee has been guilty of a serious breach of trust, it is within the discretion of the court to deny him all compensation[***15] or to reduce his commissions below the sum which would otherwise be granted. Bogert, supra, p. 15; Restatement, Trusts, 2d, § 243, 244 (e).

   Decree modified and as modified affirmed, with costs. 

STATE, Use of SHIPLEY et al. v. WALKER et al.  (Two Appealsin One Record) 
No. 73, September Term, 1962
 
Court of Appeals of Maryland
 
230 Md. 133; 186 A.2d 472; 1962 Md. LEXIS 366

 December  6, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgments affirmed, costs to be divided and paid equally by the parties.

CORE TERMS:  driver, remittitur, decedent, bend, stepfather, permission, distance, directed verdict, ownership, cross-appellant, travelled, departure, excessive, driving, regular, mission, license, feet, investigating officer, abuse of discretion, extraordinary circumstances, financial responsibility, uncontradicted evidence, legally sufficient, imputed negligence, own testimony, tried to pull, lesser amount, direct route, new trial

COUNSEL: James R. White and A. David Gomborov, with whom were Joseph L. Cymek, Bernard L. Silbert, J. Seymour Sureff and Silbert & Gomborov on the brief, for the appellants and cross-appellees.

   John Demyan, Jr., and Thomas J. Wohlgemuth, with whom were Smith, Wohlgemuth & Westcott on the brief, for the appellees and cross-appellant.

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

OPINIONBY: HENDERSON

OPINION: [*136] [**473] These cross-appeals are from judgments entered in actions filed by the parents and administrator of a deceased boy against the driver of an automobile and its owner.  The appellants contend that the trial court erred in granting a directed verdict in favor of the owner, Walker, and in granting a remittitur upon a finding that the verdict against the driver, Tyler, was excessive. The appellees and cross-appellant contend that the evidence was legally insufficient to support a verdict against either of them, that the court erred in several of its rulings on evidence, and in refusing certain requested instructions.
 
   The facts in the case are virtually undisputed.  On October 1, 1959, Tyler, aged 16, was operating a 1955 Plymouth sedan owned by his stepfather, Walker, with the latter's permission. Tyler had obtained his regular driver's license about a month before.  He drove from his home in Anne Arundel County to school, and from school to Baltimore, after the morning session, to exchange a pair of tennis shoes that his mother had purchased for him.  He was accompanied by his two brothers[***6] and the decedent, Rocky Shipley, aged 14, whom he had picked up near Glen Burnie on the Ritchie Highway.  Returning from Baltimore, he dropped Rocky at Rocky's home since Rocky had not had his lunch.  He told Rocky he was going home.  But instead of returning to his own home, Tyler turned into Primrose Lane to practice driving in sand.  Primrose Lane is an unpaved, deadend, private road leading from Old Stagg Road over property owned by a Mr. Dicus, about a block distant from Rocky's house.  Primrose Lane is about a block in length, and has a sharp bend, obscured by brush.  Tyler made several practice runs up and down Primrose Lane.  As he came around the bend on one of these runs he saw an object in the road which proved to be Rocky.  He tried to avoid striking Rocky, but failed to do so.

   We think it is clear that Tyler was not the agent or servant [*137] of Walker at the time of the accident.  The presumption of agency arising from ownership is rebuttable.  Hoerr v. Hanline, 219 Md. 413, 420, Miller v. Shegogue, 221 Md. 292, 294. The mere [**474] fact that the owner has given permission to the driver to use his car is not enough to make him liable. Pollock v. [***7]  Watts, 142 Md. 403. In practicing driving on a private road at some distance from the direct route to his home, we think Tyler was engaged on a mission of his own, serving no purpose of the owner, even if we assume that the mission of exchanging the shoes was in the parental interest of the stepfather. The authorities on the question of departure from the course of employment or agency, as distinguished from a mere deviation, are summed up in the cases of Trucking & Storage, Inc. v. Durkin, 183 Md. 584, and Fowser Fast Freight v. Simmont, 196 Md. 584. We think the uncontradicted evidence here establishes a departure. Nor do we find merit in the argument that the stepfather could be liable on the theory that Tyler was known to be an incompetent driver. Granting that he was somewhat inexperienced, there is nothing to indicate that he was not ordinarily a careful and qualified driver, and the evidence is uncontradicted that he had obtained a regular license. Cf. Rounds, Admr. v. Phillips, 166 Md. 151, and Whitelock v. Dennis, 139 Md. 557. The record also shows, as an admitted fact, that Tyler had filed a certificate of Financial Responsibility. Under Code (1957), [***8] Art. 66 1/2, sec. 93 (c), this relieves the parent or guardian signing his application from liability for imputed negligence.

   Little need be said as to the claim that the court erred in ordering a remittitur upon finding that the verdict in the administrator's suit was excessive. The granting or refusal of such an order is largely discretionary with the trial court.  Mezzanotte Constr. Co. v. Gibons, 219 Md. 178, 183, Leizear v. Butler, 226 Md. 171, 178 and cases cited.  See also State v. Gray, 227 Md. 318 and Snyder v. Cearfoss, 186 Md. 360. It is well settled that the granting or refusal of a new trial, conditional or otherwise, is not reviewable except under extraordinary circumstances. We find no abuse of discretion in the instant case.  Moreover, we have held, in accord with the great [*138] weight of authority, that the plaintiffs' acceptance of the lesser amount is a bar to review.  Turner v. Wash. Sanitary Comm., 221 Md. 494, 504 et seq.
 
   The cross-appellant strongly contends that there was no legally sufficient evidence of primary negligence.  It is true that from Tyler's deposition, read in evidence because he was in the military service at[***9] the time of trial, it would appear that he came around the bend in a dirt road at only 15 to 20 miles per hour, saw an object in the road and was unable to avoid striking it.  However, the police officer who investigated the accident testified that it was 45 feet from the place where the road "straightened" and "came out of the turn" to the point of impact, and that the car travelled 66 feet from the point of impact to the point where it came to rest with the body of the boy underneath.  We think the evidence permits an inference that the driver did not have his car under proper control in rounding a "blind" bend in the road, and did not see the object as soon as he should.  Moreover, it appears from his own testimony that he tried to pull his wheels out of the rut in order to avoid striking the object, instead of applying his brakes, and this probably accounts for the distance the car travelled with the body under it.  This is not a case where a child suddenly darts in front of an automobile, as in Flyer v. Del Borrell, 227 Md. 545, and Brantner v. Watkins, 227 Md. 626. It is a case where the jury might properly find that the driver should have seen the injured boy before[***10] he did, and could reasonably have done more than he did to have avoided the accident.  Dorough v. Lockman, 224 Md. 168, 172 and cases cited.

   The cross-appellant raises several points of evidence that are without merit. The copy of the hospital record, being a photostat, was admissible under Code [**475](1957), Art. 35, sec. 59, and was produced by Dr. Shipley, who was in charge at the time.  Copies of the statement given by Tyler to the police and the police report, were likewise properly put in evidence through the investigating officer.

   We find no error in the refusal of an emergency instruction by the court, which was, in effect, a request for a directed [*139] verdict based on "the uncontradicted facts".  The court did grant two prayers leaving to the jury the question of emergency and also of unavoidable accident.  This was as much, or more, than the defendants were entitled to under the facts of the case.  We also find no error in the instructions granted as to damages.  Cf. State v. Board of Comm'rs of Prince George's Co., 207 Md. 91, 107.

   Judgments affirmed, costs to be divided and paid equally by the parties. 

TAYLOR v. STATE 
No. 51, September Term, 1962
 
Court of Appeals of Maryland
 
230 Md. 1; 185 A.2d 197; 1962 Md. LEXIS 342

 November  6, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed and case remanded for a new trial.

COUNSEL: Julian B. Stevens, Jr., for the appellant.

   Russell R. Reno, Jr., Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Marbury and Sybert, JJ.

OPINIONBY: PER CURIAM

OPINION: [*1] [**198] On December 18, 1961, the appellant pleaded guilty, in the Circuit Court[***2] of Anne Arundel County, to an information charging him with having escaped from the Maryland House [*2] of Correction "while undergoing lawful imprisonment" therein.  Code (1957), Article 27, Section 139.

   He raised three questions in his brief, but we find it necessary to consider the third only.  He pleaded guilty, but the record fails to show, affirmatively, compliance by the trial court with Maryland Rule 723 b and c (now amended and designated as Rule 719 b 1 and d).  Rule 723 b and c provided that "if the defendant appears in court without counsel, the court shall advise him of his right to obtain counsel" and "the record shall affirmatively show compliance with this Rule." We have held that these requirements are mandatory and must be complied with, irrespective of the gravity of the crime charged, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused. Hill v. State, 218 Md. 120, 145 A. 2d 445; Bryant v. State, 218 Md. 151, 145 A. 2d 777; Williams v. State, 220 Md. 180, 151 A. 2d 721; Merritt v. State, 221 Md. 118, 156 A. 2d 228. The judgment must, therefore, be reversed and a new trial awarded.

    Judgment reversed [***3]  and case remanded for a new trial. 

WILLIAMS v. STATE 
No. 18, September Term, 1962
 
Court of Appeals of Maryland
 
229 Md. 606; 185 A.2d 195; 1962 Md. LEXIS 601

 November  6, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed and case remanded for a new trial.

CORE TERMS:  jail, cross-examination, line of questioning, night, prior criminal record, general character, insanity, reversible error, general reputation, specific question, character witness, timely objection, next question, interrogated, apprised, answered, objected, replied, marked, reply

COUNSEL: Fred E. Weisgal for the appellant.

   Robert S. Bourbon, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Robert V. Lazzaro and Abraham L. Adler, Assistant State's Attorneys for Baltimore City, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Marbury and Sybert, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*607] [**196] The appellant in this case was convicted of murder in the first degree, in a trial before a court and jury.  He was sentenced to death.  On this appeal counsel does not challenge the sufficiency of the evidence of a hold-up, and killing in the course of an armed robbery on March 16, 1961, to support the charge of murder, nor does he challenge the sufficiency of the evidence [*608] to disprove insanity relied on as the chief defense.  He presses only two contentions, (1) that the trial court erred in its probably inadvertent instruction to the jury as to the burden of proof that the confession of the accused was voluntary, and (2) that the court erred in overruling[***4] objections to the cross-examination of a witness as to the prior criminal record of the accused.  The State contends that the first contention is not properly before us, since there was no objection taken to any part of the court's charge.  We find it unnecessary to pass on that contention, since we think there was reversible error in the court's ruling on the second point.

   The accused did not take the stand, and, as we have noted, his chief defense was insanity. A number of medical witnesses testified, and it was brought out without objection that he had been committed to Boy's Village for juvenile delinquencies, and had also been in Crownsville for an extended period.  Mrs. Henrietta Urine testified that she had raised Walter, after his parents died, and testified as to his conduct resulting in commitments to Boy's Village and afterwards to Crownsville.  She testified that after he was released from Crownsville in 1958, she took him to the Maryland General Hospital every week until he ran way from home in 1960.

   In cross-examination the State's Attorney asked the witness whether Walter had been away from home on other occasions, to which she replied that she could not remember. [***5] She then admitted, in response to a question, to which there was no objection, that he had once been in jail over night. She was then asked whether he had not been in the House of Correction from October of 1956 to June 1958.  Over objection, she [**197] admitted that she could recall that. Counsel for the accused objected "to this line of questioning", to which the Court replied "overruled".  The witness then answered, in reply to a specific question, that he had been in the Baltimore City Jail from September 24, 1958 to December 23, 1958.

   The State does not deny that it would ordinarily be erroneous and prejudicial to interrogate a third party as to the prior criminal offenses of an accused. Cf. Dobbs v. State, 148 Md. 34, 46. The State contends that there was a waiver, by failure to object to the first question proposed or to renew objection after the [*609] court's ruling; the State also contends that there was a waiver by reason of the introduction of hospital records containing references to these same criminal offenses.

   We think there was a sufficient objection to the questions concerning both convictions.  The timely objection to the question concerning the[***6] House of Correction was not waived by a reference to his having been in jail over night. We think the objection to the "line of questioning" sufficiently apprised the trial judge of the nature of the objection to the next question propounded as to another conviction.  Cf. Shaneybrook v. Blizzard, 209 Md. 304, 308. It is true, as the appellee asserts, that in the voluminous hospital records there are two references to criminal convictions admitted by the accused to the examining physicians, although he maintained his innocence of those charges.  It is also true, however, that neither one of the physicians who made the reports (and both testified in the case) referred to these convictions on the stand.  Moreover, we do not understand from the record that the hospital records were admitted generally.  It would seem they were merely introduced and marked in evidence, in order that pertinent parts thereof might be referred to by the medical witnesses.  There is no showing that those portions of the records containing the reports in question were ever read to the jury or came in any way to the jury's attention.  Under the circumstances, we think the rule of waiver, as stated in Barber [***7]  v. State, 191 Md. 555, 564, relied on by the State, is not here applicable.  The case is not one where the general character of the accused, as distinguished from matters relevant to the question of insanity, was put in issue.  In Comi v. State, 202 Md. 472, 478, it was pointed out that even where character, in the sense of reputation, is put in issue, there are limits in the extent to which particular acts of misconduct may be inquired into.  Mrs. Urine was not called as a character witness, nor was she interrogated as to general reputation. We think there was a sufficient showing of prejudice in the questions propounded to constitute reversible error.

   Judgment reversed and case remanded for a new trial. 

CONTEE v. STATE 
No. 27, September Term, 1962
 
Court of Appeals of Maryland
 
229 Md. 486; 184 A.2d 823; 1962 Md. LEXIS 586

 October  17, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  juror, prosecuting witness, former trial, insanity, convicted, predicate, juvenile, insane, negro, general question, prior trial, voir dire, unavailability, woman, et seq, racial prejudice, rape case, abuse of discretion, mental institution, prejudicial effect, jury to disregard, continuance, procured, rape, adjudicated, incapable, propound, mistrial, raping, asking

COUNSEL: Robert C. Heeney and Victor L. Crawford, with whom were Fairbanks, Heeney & McAuliffe on the brief, for appellant.

   Robert C. Murphy, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Leonard T. Kardy and James Miller, State's Attorney [***5]and Assistant State's Attorney respectively, for Montgomery County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*489] [**824] The appellant was convicted of rape in a former trial and on appeal the judgment was reversed.  Contee v. State, 223 Md. 575. Upon remand the case was removed for trial to another county and the accused was again convicted and sentenced to life imprisonment.

   No question of the sufficiency of the evidence of rape is raised in this appeal, and it will suffice to say that there was evidence that it was performed, under threat with a knife, in the presence of an off-duty nurse occupying the same apartment as the prosecuting witness, who was then an out-patient at a mental institution.

    The first point raised on this appeal is the refusal of the trial court to ask the jurors upon their voir dire the following questions: "(3) If you considered all the evidence in this case and then had a reasonable doubt as to the guilt of the accused, would you nevertheless vote for conviction because you felt you would be subject[***6] to the scorn of your fellow man because you would be voting for the acquittal [**825] of a negro accused of raping a white woman?

   "(4) Would the fact that a white woman accuses a negro of a rape of her person so prejudice your mind that you would return a verdict of guilty on less or slighter evidence than if the accusing person was a negro and the defendant was a white man?"

   The trial court did, however, unlike the situation in the prior appeal which caused the reversal and in Brown v. State, 220 Md. 29, propound a general question on the subject of racial prejudice. That question was: "3. If chosen as a juror, will you in this case render a fair and impartial verdict based on the law and evidence without bias or prejudice, and without regard to the race, creed or nationality of the accused?"

   The matter of the examination of jurors on their voir dire, to probe for the possible existence of racial prejudice as a ground for disqualification, has been so recently and so completely [*490] discussed that it is unnecessary to deal with it here at length.  In Giles v. State, 229 Md. 370, 378, the most recent case on the subject, we held that a general question in[***7] a rape case, along the lines of that propounded in the instant case, would suffice, even though the court might well have propounded a more specific question in regard to prejudice where the prosecuting witness was white.  In Humphreys v. State, 227 Md. 115, 120, we left open the question answered in the Giles case, pointing out that failure to ask a question, in addition to the general question, as to "less or slighter evidence" in case of a Negro charged with raping a white woman, was not prejudicial because the jurors knew that the case involved such a charge.  In the instant case it clearly appears from the docket entries that the accused was arraigned in the presence of the jurors, who knew his race, but it is not as clear as in the Humphreys case as to the race of the alleged victim, although the form of the court's question would seem to suggest it.  In any event, we think the Giles case is controlling, and we find no prejudice in the failure to ask the more specific question, or to propound the other question as to "scorn of your fellow man," which was simply designed to accomplish the same end in more dramatic language.  See also Glaros v. State, 223 Md. [***8] 272, and Lee v. State, 164 Md. 550. The cases all agree that the matter rests in the sound discretion of the trial court, and we find no abuse of discretion.

   The appellant next contends that the transcript of the testimony of the prosecuting witness, taken at the prior trial and transcribed by the Court Stenographer should not have been read to the jury.  At the outset of the second trial the State offered the testimony of Dr. Jacob J. Miller, a qualified psychiatrist and the Clinical Director of Northville State Hospital in Michigan, that Nancy Somers, the prosecuting witness, had been permanently committed to said institution by order of the Probate Court of Wayne County, Michigan, and that she had been adjudicated to be insane by that tribunal.  He testified that he had examined her on numerous occasions, the last time being a few days before the trial, and expressed the opinion that she was suffering from mental illness and psychosis, and that she was "incapable at this time".  [*491] That she had exhibited suicidal tendencies was only one of the factors on which this opinion was based.  He further testified that under the McNaughten rule, with which he was familiar, [***9] she was unable to distinguish between right and wrong or to understand the nature and consequences of her acts, and that she "would be legally insane" under that test.

   It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, [**826] or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial.  This general rule was stated in Hendrix v. State, 200 Md. 380, 387, and in somewhat different form in Bryant v. State, 207 Md. 565, 587. See also Marshall v. Haney, 9 Gill. 251, 257; Rogers v. Raborg, 2 G. & J. 54, 60; Bowie v. O'Neale, 5 H. & J. 226, 234. For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240. The writers and authorities all agree that where there was an opportunity to cross-examine[***10] the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution.  Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in case of death.

   The appellant argues, however, that there was no sufficient predicate laid by way of proof of insanity or unavailability. It is true that the preliminary proof of insanity cannot rest upon mere hearsay that the witness is in a mental institution. Bielski v. Rising, 163 Md. 492, 495. But there was direct testimony in the case at bar by the Director of the Institution to which she had been committed as to the status of the witness.  We think the McNaughten test of criminal responsibility, concerning which Dr. Miller was interrogated, had no proper place [*492] in the present inquiry.  The true test would seem to be whether the witness has sufficient understanding to apprehend the obligation of an oath and to be capable of giving[***11] a correct account of the matters which she had seen or heard in reference to the question at issue.  Cf. Johnston v. Frederick, 140 Md. 272, 275. However, Dr. Miller's testimony that she had been adjudicated insane and committed to the Institution, according to official records in his possession, plus his testimony that she was "incapable" at the time of trial, supports the ruling of the trial court that a sufficient predicate had been laid on the score of insanity or mental incompetency.

   On the question of unavailability, the appellant points out that by Maryland Code (1957), Art. 27 sec. 617 et seq. and Michigan Statutes Annotated, sec. 28-1020 et seq., both states have adopted the essential provisions of the uniform act to secure the attendance of witnesses from without a State in criminal proceedings.  Hence, he argues that the witness was not beyond the jurisdiction of this State.  It may be doubted whether the uniform act extends so far as to authorize the release of any person lawfully in custody, in order to testify in another State.  Of course, the act does not extend the jurisdiction of any State, since it is based on comity.  In State v. Jordan, 320 P. 2d 446 (Ariz.), [***12] cert. denied 357 U.S. 922, rehearing denied 358 U.S. 859, it was held that the Act was simply permissive and did not require the prosecution to attempt to procure the witness from another State, as a prerequisite to the proffer of testimony taken at a prior trial. See also People v. Hunley, 21 N. W. 2d 923 (Mich.).  But since we hold that the predicate of insanity was sufficiently laid, we find it unnecessary to rule on the second ground.  Cf. Midgett v. State, 223 Md. 282, 300.

   The appellant's contention that the trial court abused its discretion in denying a continuance is without merit.  Counsel for appellant was sufficiently aware, we think, several months before the trial of the possibility that Nancy Somers might not be able to attend the second trial.  His [**827] belated motion, after the testimony of Dr. Miller had been completed, for "an opportunity to satisfy itself [the defense] that she is, in effect, mentally incompetent" came too late.  Cf. Hughes v. Averza, [*493] 223 Md. 12, 18, Peddersen v. State, 223 Md. 329, 337 and Jackson v. State, 214 Md. 454, 459.

   The appellant next contends that the state's attorney committed reversible error[***13] by inquiring into the juvenile court record of the appellant, when the appellant took the stand.  When asked if he had been convicted of crime, he replied in the affirmative, and when asked what, if any crimes, he stated "theft", in 1957.  When asked what other crimes, the witness stated that he had been convicted "as a juvenile".  The Court then remarked: "we are not interested in any juvenile records".  The state's attorney then asked if the appellant had been convicted of auto larceny in 1954.  He replied that he had been convicted as a juvenile. Counsel then moved for a mistrial, which the court refused, charging the jury to disregard the question and answer, and striking it out, as having nothing to do with the case.  We find no error.  Under the circumstances, we think the prompt action of the trial court was enough to remove any prejudicial effect from the minds of the jury.  Cf. Lusby v. State, 217 Md. 191, 195.

   Finally, the appellant contends that the state's attorney was guilty of prejudicial misconduct when he asked the accused, in addition to convictions in 1958, about a criminal conviction in April, 1959, which the state's attorney did not undertake to prove, after[***14] the accused denied it, except by an alleged admission made at the prior trial, which the trial court struck out and told the jury to disregard. The appellant's counsel then moved for a mistrial, which was denied.  We find no abuse of discretion. Cf. Lusby v. State, supra, and Cook v. State, 225 Md. 603, 610. We also think the court's instruction to the jury, given at the request of both sides, that there was no evidence of a conviction in 1959, and that the mere asking of the question did not constitute evidence, was sufficient to remove any prejudicial effect from the minds of the jury.

   Judgment affirmed. 

CRAVER v. CRAVER 
No. 15, September Term, 1962
 
Court of Appeals of Maryland
 
229 Md. 457; 184 A.2d 737; 1962 Md. LEXIS 578

 October  15, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  decree, divorce, overdue, arrearage, prior decree, original proceeding, original decree, new matter, lump sum, terminate, supplementary, installments, chancellor, accounting, monetary, maturing, accrued, convert, default

COUNSEL: Submitted on brief by Arthur A. Anderson, Jr., for the appellant.

   Submitted on brief by Theodore G. Bloom and Albert J. Goodman for the appellee.

JUDGES: The full Court.

OPINIONBY: PER CURIAM

OPINION: [*458] [**737] Pauline A. Craver sued her husband for divorce in 1956.  The chancellor denied the divorce but awarded her custody of the children and on April 23, 1957, ordered James F. Craver to pay $45.00 per week for their support.  However, the husband failed to keep up the payments.  On December 5, 1958, he filed a bill for divorce. The wife filed an answer and cross-bill.  On August 3, 1959, the chancellor dismissed the husband's bill, granted a divorce to the wife, and ordered the husband to pay $30.00 per week for the children's support, accounting from the date of the decree. On June 14, 1960, Mrs. Craver filed a petition in the original proceeding asking for a monetary decree in the amount of $2,545.00 representing the arrearage accrued between April[***3] 23, 1957, to August 3, 1959.  This appeal is from a decree, entered for that sum.

   The appellant does not dispute the amount of the arrearage but contends that the decree of August 3, 1959, adjudicated all of the rights of the parties arising out of the marital relation, and effectively terminated the liability for payments in default under the prior decree. We do not agree.  The proceeding to convert overdue installments into a lump sum is not a new bill or a supplementary bill based upon new matter. Leberstein v. Leberstein, 186 Md. 25, 26. The original decree had "the effect of an adjudication of liabilities thereafter maturing at stated periods".  Marshall v. Marshall, 164 Md. 107, 116. See also Bradford [**738] v. Futrell, 225 Md. 512, 524. It is generally held that an award of support is not superseded by a subsequent decree of divorce in another court, so as to terminate liability for amounts overdue. See Schimek v. Schimek, 157 A. 649 (N. J.); Bowers v. Bowers, 28 A. 2d 515 (N. J.); 2 Nelson, Divorce and Annulment, (2d ed. 1961 rev. vol.) § 16.31; Note 146 A.L.R. 1153, 1160. Rethorst v. Rethorst, 214 Md. 1, is distinguishable on the facts. [***4]There is no question of laches or acquiescence in the instant case.

   Decree affirmed, with costs. 

HUNDLEY et al., Etc. v. HUNDLEY (Four Appeals in One Record) 
No. 87, September Term, 1962 (Adv.)
 
Court of Appeals of Maryland
 
229 Md. 393; 182 A.2d 884; 1962 Md. LEXIS 569

 July  24, 1962, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed August 17, 1962, Denied September 13, 1962.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: First three appeals dismissed, costs to be paid by the appellants, individually.

CORE TERMS:  receiver, co-committees, manage, unsound mind, co-trustees, chancellor, appointed, motion to dismiss, incompetent, full hearing, discharging, appointing, permission

COUNSEL: Eugene M. Childs and Nicholas J. Chase, with whom were Chase & McChesney on the record, for the appellants.

   William J. McWilliams and Frank C. Serio, with whom were George H. Beuchert, Jr., and McWilliams & Melvin on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*394] [**884] On July 15, 1959, the appellants, the wife and a business associate of the appellee, were appointed co-committees and co-trustees of the property of the appellee, who was found to be of unsound mind, upon petition filed by them as next friends under Code (1957), Art. 16, sec. 135. See Matter of Easton, 214 Md. 176. On January 24, 1962, after[***3] a full hearing [*395] on petition of the appellee, the Chancellor found the appellee to be competent to manage his affairs, and passed an order discharging the appellants and requiring them to account.  Subsequently, the Chancellor passed an order denying the appellants permission to appeal under Maryland Rule V77 b, an order appointing receivers who have acted as solicitors for the appellee, and an order holding the appellants in contempt.  Separate appeals were filed from each order.  As to the last, there is a motion for severance. The appellees filed a motion to dismiss the first three appeals, on the ground that the appellants lack [**885] standing to appeal.  They disavow any interest in the last appeal, and make no motion in regard thereto.  Hence, we express no opinion and take no action in regard to it.

   We think the motion to dismiss the first three appeals must be granted.  It has been held that a guardian appointed to take charge of and manage the property of an incompetent is not a person aggrieved by an order of restoration. Ensign v. Faxon, 112 N. E. 948 (Mass.).  Cf. Wattrich v. Blakney, 118 A. 2d 332 (Me.).  There are cases to the contrary.  See[***4] In re Bayer's Estate, 185 P. 606 (Wash.), and Note 122 A.L.R. 541. The Maryland statute, Code (1957), Art. 5, sec. 6, provides that "Any party" may appeal from any final decree of a court of equity, but it is well settled that a conventional trustee or receiver is simply the officer or hand of the court and has no interest in regard to the disposition of the fund in his hands for distribution as between various claimants, or even in the discontinuance of his services, so long as he is compensated for what he has done.  See R.R. Co. v. R.R. Co., 55 Md. 153, 156; Stewart v. Codd, 58 Md. 86, and Beilman v. Poe, 120 Md. 444, 447. The status of a committee to manage the property of an incompetent is analogous to that of a trustee or receiver. Probably the closest case in point is In re Colvin, 3 Md. Ch. 278, where the rule was applied in the case of a committee discharged by reason of the death of his ward, who attempted to appeal an order directing him, as receiver, to turn over the funds to an administrator.  Cf. Plakatoris v. Bainder, 204 Md. 223, 228. Code (1957), Art. 5, sec. 8, recognizes [*396] a limited right of appeal, in the case of fiduciaries desiring[***5] to contest a preference or priority between creditors, but only with the consent and approval of the trial court.  That section is not applicable in the instant case.  Cf. MacNabb v. Sheridan, 181 Md. 245.

   The appellants seek to avoid the application of the rule stated by arguing that they have rights, as next friends and the original petitioners, to appeal from the orders in question.  The short answer to this contention is that the appeals are taken in their representative capacities only.  We leave open the question of their standing as next friends or in their individual capacities.

   Since we hold that the appellants have no standing to appeal in their capacity as co-committees and co-trustees, it is unnecessary to discuss the other questions argued by the appellees in support of their motion.

   First three appeals dismissed, costs to be paid by the appellants, individually. 

MARYLAND COMMITTEE FOR FAIR REPRESENTATION et al. v. TAWES,GOVERNOR et al. 
No. 140, Adv., September Term, 1962
 
Court of Appeals of Maryland
 
229 Md. 406; 184 A.2d 715; 1962 Md. LEXIS 571

 July  23, 1962, Decided  
 September  25, 1962, Filed

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing, Filed August 2, 1962, Denied September 11, 1962.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, per curiam, appellants to pay the costs.

CORE TERMS:  apportionment, senator, disparity, Fourteenth Amendment, voter, election, apportioned, analogy, equal protection clause, invidious discrimination, rational basis, reapportionment, voting, state constitution, cause of action, chancellor, political subdivision, geographical, elected, Fifth Amendment, malapportionment, senatorial, exact, constitutional amendment, invidious, sovereign, populous, logical, justiciable, inequality

COUNSEL: Alfred L. Scanlan, with whom were Shea & Gardner, John B. Wright and Johnson Bowie, on the brief, for appellants.

   Thomas B. Finan, Attorney General, and Joseph S. Kaufman, Deputy Attorney General, with whom were Morris Turk, Attorney for Board of Election Supervisors for Anne Arundel County, on the brief, for appellees.

   Brief Amicus Curiae filed by Montgomery County, Maryland.  Alfred H. Carter, County Attorney for Montgomery County, and Richard J. Sincoff, Assistant County Attorney, on the brief.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Macgill, Associate Judge of the Fifth Judicial Circuit, specially assigned, JJ. Henderson, J., delivered the opinion of the Court.  Brune, C. J., filed the dissenting opinion, in which Prescott and Marbury, JJ., concur.  Prescott and Marbury, JJ., dissent.

 OPINIONBY: HENDERSON

OPINION: [*409] [**716] On July 23, 1962, we filed a per curiam order affirming a declaratory decree of the Circuit Court for Anne Arundel County that Article III, sec. 2 of the Maryland[***5] Constitution is valid and constitutional.  We now state the reasons for our order.

   This is the third time this case has been before this Court.  On April 24, 1962, following the Supreme Court's ruling in Baker v. Carr, 369 U.S. 186, and its per curiam order in Scholle v. Hare, 369 U.S. 429, we reversed a decision of the Circuit Court for Anne Arundel County which had sustained the appellees' demurrers to the bill of complaint.  We held, by a divided court, that the bill, alleging that the apportionment prescribed by the Maryland Constitution violated the Fourteenth Amendment to the United States Constitution, stated a justiciable cause of action cognizable in the State courts, and remanded the case in order that the chancellor might determine "whether or not an invidious discrimination does exist with respect to representation in either or both houses." Md. Committee v. Tawes, 228 Md. 412, 436. We also said that "inquiry into the rational basis for such apportionment seems to be called for."

   On May 28, 1962, the chancellor, after argument but without hearing testimony, held on motion for summary judgment that the composition of the House of Delegates, prescribed by Article[***6] III, sec. 5 of the Maryland Constitution, violated the Fourteenth Amendment, in that the distribution of numerical voting strength in voting for members of the House of Delegates, accorded to voters in the four suburban and more populous counties, was arbitrary and unreasonable.  He reserved decision as to the Senate.

   The Governor promptly convened a special session of the General Assembly, which for the first time in the history of this State added nineteen Delegates to the House of Delegates, to be voted for in the 1962 elections, by "stop-gap" legislation rather than by proposing a constitutional amendment. A proposed constitutional amendment failed of passage.  The appellants entered an appeal from the chancellor's order reserving decision as to the Senate and we remanded the case with directions [*410] that the chancellor decide the point.  The present appeal is from that decision.  No question is presented as to the validity of the "stop-gap" legislation or the reapportionment of the House of Delegates.

   Article III, section 1 of the Maryland Constitution provides: "The Legislature shall consist of two distinct branches; a Senate, and a House of Delegates, and shall be[***7] styled the General Assembly of Maryland."

   Art. III, sec. 2 provides: "The City of Baltimore shall be divided into six legislative [**717] districts as near as may be of equal population and of contiguous territory, and each of said legislative districts of Baltimore City, as they may from time to time be laid out, in accordance with the provisions hereof, and each county in the State, shall be entitled to one Senator, who shall be elected by the qualified voters of the said legislative districts of Baltimore City and of the counties of the State, respectively, and shall serve for four years from the date of his election."

   Throughout the colonial period the upper house consisted of the Governor and Council, appointed by the proprietor, and modeled after the English House of Lords.  They also sat as a provincial court and court of appeals from the county courts.  See Bond, Court of Appeals of Maryland, p. 4 et seq.  See also 1 McMahon, Historical View of the Government of Maryland (1831), p. 148.  That they had a certain sectional distribution was fortuitous.  While the House of Delegates was selected on a county basis (four from each) the councilors were selected from among the[***8] most eminent landowners and office holders, serving at the will of the Governor. n1 In the Constitution of 1776, Art. XV provided for a Senate to be elected by the vote of Delegates elected two from each county and one each from the City of Annapolis and Baltimore Town.  At that time there were eight counties on the eastern shore and ten counties on [*411]the western shore.  These electors were directed to elect six senators from residents of the eastern shore and nine senators from residents of the western shore, "men of the most wisdom, experience and virtue, above twenty-five years of age, residents of the state above three whole years next preceding the election, and having therein real and personal property above the value of one thousand pounds current money." See Niles, Maryland Constitutional Law, p. 5. By the amendment proposed by Chapter 197, Acts of 1836, and ratified in 1837, the Senate was reconstituted to consist of one senator from each county (of which there were then twenty by reason of the establishment of Allegany and Carroll Counties) and one from Baltimore City.  The method of indirect election by an electoral college was abandoned.  This distribution was[***9] continued in the Constitution of 1851, and so far as the counties are concerned, was continued in the Constitutions of 1864 and 1867, and in subsequent amendments.  The last county to be formed, Garrett, was erected in 1872.  See 3 Scharf, History of Maryland, p. 778.  From that date the counties have numbered twenty-three.

n1 The last colonial legislature convened on March 23, 1774, and the twelve councilors present were: Benedict Calvert, John Ridout, John Beale Bordley, George Stewart, Daniel of St. Thomas Jenifer, Benjamin Ogle, Philip Thomas Lee, Richard Lee, William Hayward, Daniel Dulany (the Younger), William Fitzhugh and George Plater. Archives of Md. LXIV.

   However, Baltimore City, which had achieved the status of a political subdivision independent of Baltimore County in 1851, was allotted three senators, one from each legislative district, in 1864 and this provision was continued in 1867.  It received an additional legislative district and senator in 1900 and two more in 1922, subsequent to the annexation[***10] of portions of Baltimore County and Anne Arundel County by Chapter 82 of the Acts of 1918.

   The counties of Maryland have always been an integral part of the state government.  St. Mary's County was established in 1634 contemporaneous with the establishment of the proprietary government, probably on the model of the English shire, associated with the important office of sheriff.  1 Scharf, supra , p. 124 et seq. Indeed, Kent County had been established by Claiborne before the landing of the Marylanders and he established New Kent County in Virginia after he was ousted from Maryland vi et armis by the Calverts.  We have noted that there were eighteen counties at the time of the adoption of the Constitution [**718] of 1776.  They have always possessed and retained [*412]distinct individualities, possibly because of the diversity of terrain and occupation.  Baltimore County, the most populous in the State, still has no incorporated towns, and until the recent adoption of a charter form of government, was governed by three elected commissioners who exercised the executive functions, while most of the legislative functions were exercised by its representatives in the General[***11] Assembly.  Baltimore City, having acquired the unique status of an independent political subdivision, has maintained its own local government, subject to control by the General Assembly, since 1867.  Only two counties, Montgomery and Baltimore have adopted the charter form of government under Art. XI of the State Constitution. While it is true that the counties are not sovereign bodies, having only the status of municipal corporations, Howard County v. Matthews, 146 Md. 553, 561, they have traditionally exercised wide governmental powers in the fields of education, welfare, police, taxation, roads, sanitation, health and the administration of justice, with a minimum of supervision by the State.  In the diversity of their interests and their local autonomy, they are quite analogous to the states, in relation to the United States.

   It is an interesting historical fact that the mode of selecting the members of the United States Senate adopted in 1789 was modeled, to a considerable extent, upon the Maryland Senate of 1776.  In addressing the Constitutional Convention on August 14, 1787, Madison opposed a proposal that senators be paid by the states on the ground that it would tend[***12] to impair the stability and independence of the Senate, which, he remarked, "was formed on the model of that of Maryland." 4 The Writings of James Madison, edited by Gaillard Hunt, G. B. Putnam's Sons (1903) p. 202.  Again, in No. 63 of The Federalist Papers, Madison in answering a contention that a Senate appointed not immediately by the people, and for a term of six years, would acquire a dangerous preeminence in the government and finally transform it into a tyrannical aristocracy, stated that "the constitution of Maryland furnishes the most apposite example.  The senate of that State is elected, as the Federal Senate will be, indirectly by the people; and for a term less by one year only, * * *.  If the Federal Senate, therefore, [*413] really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of Maryland; but no such symptoms have appeared.  On the contrary * * * the Maryland constitution is daily deriving from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union".  The members of the Federal Senate[***13] continued to be elected by the state legislatures until the adoption of the Seventeenth Amendment in 1913.  It is also interesting to note that when Maryland abandoned the selection of state senators by an electoral college in 1837, it adopted a provision for one senator from each county and from Baltimore City, following the federal pattern of geographical representation in the upper house.

   The question before us is not whether such a provision is wise or unwise but simply whether, as alleged in the bill, membership in both houses of a bicameral legislature must "be based on, or reasonably related to, the present population" of the various political subdivisions of the State.  Since the provision of one senator from each county has been repeatedly approved and incorporated in the Maryland Constitution by the people of Maryland, it cannot conceivably offend the Maryland Constitution.  The sole claim is that it violates the equal protection clause of the Fourteenth Amendment.

   Equal protection has been judicially equated to a prohibition against invidious discrimination. Williamson v. Lee Optical Co., 348 U.S. 483, 489. Not every discrimination is invidious, nor will it be set[***14] aside "if any state of facts reasonably may be conceived [**719] to justify it." McGowan v. Maryland, 366 U.S. 420, 426 and cases cited.  We think a complete justification for the election of state senators on a county basis is to be found in the historical precedents cited above.  The idea of a bicameral legislature, with the upper branch selected on a territorial rather than a popular basis, was a familiar one in 1837 and it is familiar today.  The very purpose of having two houses was that each would be a check upon the other, and prevent the passage of hasty and ill-conceived legislation.  A different method of selection was essential to the bicameral plan.  No more natural or logical basis could be suggested than [*414] that the viable and long established political subdivisions be accorded representation, as they had been in election of electors under the Constitution of 1776.

   The bicameral concept is not one that has become obsolete with the passage of the years.  It has been repeatedly recognized by Congress and the President, subsequent to the adoption of the Fourteenth Amendment, in approving the constitutions of states seeking admission to the Union.  See [***15] Coyle v. Smith, 221 U.S. 559. In the most recent cases, Alaska and Hawaii, their Constitutions each contain provisions for senatorial districts of marked inequality in popular representation.  In Alaska one of the senators represents more than fifteen times as many voters as the other.  Moreover, the constitutions of a majority of the states that ratified the Fourteenth Amendment contained provisions for an upper house based on a geographical distribution of senators, without reference to population.  It can hardly be maintained that in voting for ratification they were, in effect, voting to invalidate their own state constitutions.

   The appellants argue that the Federal Constitution furnishes neither analogy nor precedent for the composition of the Maryland Senate, on the ground that the states which adopted the Federal Constitution were sovereign bodies.  The argument overlooks the fact that thirty-seven states were admitted to the Union after 1789, which were not and had never been sovereign bodies, with the possible exception of Texas.  It also overlooks the fact that it was never suggested that senators vote by states.  They were clearly members of a national congress, designed[***16] for the very purpose of achieving a greater stability and a stronger central government than under the Articles of Confederation.  In any event, the consequence and effect upon voting rights are the same, whether the voter be voting for United States senator or state senator. We think it is hardly conceivable that a different principle would apply in the one case than in the other.

   We are of course aware that the government of the United States, within its delegated powers, may possess rights not retained by the states.  But where civil rights are concerned there is still truth in the ancient adage that what is sauce for the [*415] goose is sauce for the gander.  When the Supreme Court held in Brown v. Board of Education, 347 U.S. 483, that the equal protection clause prohibited the states from maintaining racially segregated schools, it also held in Bolling v. Sharpe, 347 U.S. 497, decided the same day, that the Federal Government was likewise barred by the Fifth Amendment. The relation between the two amendments seems sufficiently close to negative a conclusion that a provision like that for the Federal Senate, U. S. Const., Art. I, sec. 3, would be offensive to either. [***17]

   The appellants argue, however, that the federal plan has not been followed in Maryland, since an exception has been made in the case of Baltimore City, which has been subdivided into six election districts and now has six senators. The argument proves too much.  The fact that the original plan has been modified in one instance does not require that it be totally abandoned.  There are reasons for a distinction.  [**720] In 1864, when Baltimore City acquired three senators, the State was in the control of the Union Army and many of the southern sympathizers in southern Maryland and the eastern shore had been disfranchised.  There were special reasons for the continuance of extra representation in 1867, in 1900, and again in 1920, when the population of Baltimore comprised fifty-one per cent of the population of the State. Baltimore, even prior to the Civil War, was a great seaport, an industrial center and the hub of commerce and communication.  Despite the distrust for city governments, dominated around the turn of the century by "rings" and "bossism", it mustered enough political power to enlarge its representation.  Until quite recently it has been underrepresented in the House[***18] of Delegates as well as in the Senate, although the picture has changed with the population explosion in the suburban counties, and it is not far out of line.  The instant case is a contest for political power between the larger and the smaller counties, and Baltimore City is not concerned.  It may also be noted that there is no constitutional requirement of territorial uniformity under the Fourteenth Amendment. Salsburg v. Maryland, 346 U.S. 545; Ocampo v. United States, 234 U.S. 91.

   We find nothing in the Supreme Court cases to support the appellants' claim of invalidity in the apportionment of the [*416] Maryland Senate.  Baker v. Carr, supra, merely decided that a justiciable question was presented.  The remand in Scholle v. Hare, supra, was for the express purpose of allowing the Michigan Court to give further consideration to the question presented in the light of Baker v. Carr.  We do not read into that remand any intimation as to how the case should be decided on the merits.  Nor do we attach any significance to the similar remand in the New York case of W. M. C. A., Inc. v. Simon, 370 U.S. 190. Upon remand, the Michigan Court, by a vote of four[***19] to three, held that in "[t]he absence of any semblance of design or plan in the present senatorial districts," the state constitutional provision approved by the voters in 1952, was invalid.  But Mr. Justice Stewart stayed the order for reapportionment, stating: "It is very clear the issues decided by the Michigan Supreme Court are new issues; ones that were not decided in Baker v. Carr." We think it is significant that Mr. Justice Stewart, concurring in the Baker case, said: "The Court does not say or imply that there is anything in the Federal Constitution 'to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.' * * *."

   "In MacDougall v. Green, 335 U.S. 281, the Court held that the Equal Protection Clause does not 'deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' * * *." We find no intimation in later Supreme[***20] Court cases that this is not still the law.

   We think there is little to be gained from a review of cases in other states and in the lower federal courts.  A typical statement is that of the Tennessee Court upon remand of Baker v. Carr.  31 L.W. 2003 (June 22, 1962): "[E]qual protection requires that * * * apportionment in at least one house shall be based, fully and in good faith, on numbers of qualified voters without regard to any other factor." See also Sims v. Frink, 30 L.W. 2512 (Ala.), Toombs v. Fortson, 30 L.W. 2605 (Ga.) (May 25, 1962) and Caesar v. Williams, 371 P. 2d 241 (Ida.) [*417] rehearing denied May 8, 1962.  In reading some of the decisions attention must be paid to whether the particular constitution requires representation based on population in both houses, as some do.  The action taken by state or lower federal courts, once the question of justiciability is [**721]conceded, may turn on the construction of the state constitution and not present a federal question at all.  Such cases are readily distinguishable. In any event, there is no unanimity of opinion to be drawn from the cases, and the final determination must await further light[***21] from the Supreme Court of the United States.

DISSENTBY: BRUNE; PRESCOTT; MARBURY

DISSENT: Brune, C. J., filed the following dissenting opinion, in which Prescott and Marbury, JJ., concurred. n1

n1 But for the recent (and fortunately temporary) illness of Judge Prescott, who wrote the majority opinion on the first appeal in this case, this opinion would have been written by him.

   The question on this appeal is fundamentally one of Federal constitutional law -- the meaning and application of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States with regard to the apportionment of representation in the legislature of a State.  That was also true on the first appeal, but the question as then presented was two-pronged and related to the apportionment of representation (a) in the House of Delegates and (b) in the Senate of the General Assembly of Maryland.  As a result of legislation enacted after the first appeal, the present controversy is limited to the apportionment of representation[***22] in the State Senate.  The trial court determined, following a second remand of the case, that if the House were properly apportioned (as he thought it had been by the Special Session of the General Assembly following the determination just prior to the Special Session that its then existing apportionment would not be sustainable as to the 1962 election), there was no need to reapportion representation in the Senate on any basis of population.  He based his conclusion upon an analogy to the Federal system under which the House of Representatives is apportioned on the basis of population, but each of the States, regardless of population, has two members of the Senate.  He accordingly dismissed the bill as to reapportionment of the Senate.  By a per [*418] curiam order joined in by four of the seven judges this Court affirmed the order of dismissal.  We dissented.
 
   In the majority opinion on the first appeal, Maryland Committee for Fair Representation v. Tawes, 228 Md. 412, 180 A. 2d 656, we stated some familiar propositions which are equally apposite here: that the Constitution of the United States and laws made in pursuance thereof are parts of the supreme law of the land and[***23] are paramount to any contrary provisions of the Constitution or laws of this State, that this is so both under the Supremacy Clause of the Constitution of the United States and under Article 2 of the Maryland Declaration of Rights, the latter in effect writing into our State Constitution this limitation upon everything else therein expressed; and that interpretations of the Constitution of the United States by the Supreme Court of the United States are binding upon us.  We believe that there is no dispute or difference between the members of this Court on those propositions.  The last of them was recognized by the majority opinion on the first appeal and 428 (228 Md., at 418) and also by the dissenting opinion (228 Md., at 448). Our difference with the present majority is based upon our understanding of the effect of recent decisions of the Supreme Court bearing upon the subject in hand.

   The first of those cases is, of course, Baker v. Carr, 369 U.S. 186. It makes clear, we think, that the Equal Protection Clause of the Fourteenth Amendment does afford protection against the debasement or dilution of voting rights through State legislative apportionment of representation.  The[***24] exact point at which such protection will be afforded in any specific case, it is true, is not determined in Baker v. Carr; nor, we think, could it well have been.  The basis of the claim of the plaintiffs-appellants was discrimination [**722]through the debasement or dilution of their voting rights through the apportionment of representation in the Tennessee Legislature (both houses) without regard to population.  The second proposition determined by the Supreme Court is thus stated (369 U.S., at 197-98, 82 S. Ct., at 699): "(b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief." And near the end of the opinion of the Court, Mr. Justice Brennan further said (369 U.S., at 237, 82 S. Ct. at 720): "We conclude [*419]that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.  The right asserted is within the reach of judicial protection under the Fourteenth Amendment."

   We think it also clear both from what we have just quoted and from footnote 15 to the opinion of the Court in Baker that the[***25] right for which the appellants were entitled to seek protection and which might be found, upon trial of the merits, to have been violated was a Federal constitutional right. Footnote 15 (369 U.S., at 195, 82 S. Ct., at 698) reads in part as follows: "The complaint, in addition to the claims under the Federal Constitution, also alleges rights, and the General Assembly's duties, under the Tennessee Constitution.  Since we hold that appellants have -- if it develops at trial that the facts support the allegations -- a cognizable federal constitutional cause of action resting in no degree on rights guaranteed or putatively guaranteed by the Tennessee Constitution, we do not consider, let alone enforce, rights under a State Constitution which go further than the protections of the Fourteenth Amendment."

   The majority opinion in the instant case appears to take a different view and to confuse the remedy with the right.  In the last paragraph of the majority opinion cases in other States and in the lower Federal courts are dismissed with the comment that "there is little to be gained from a review of [such] cases." The opinion cites several of them decided since Baker and then goes[***26] on to say:

   "In reading some of the decisions attention must be paid to whether the particular constitution requires representation based on population in both houses, as some do.  The action taken by state or lower federal courts, once the question of justiciability is conceded, may turn on the construction of the state constitution and not present a federal question at all."
 
Where compliance with State constitutional requirements will also vindicate the Federal right shown to have been infringed, a decree in accordance with State constitutional provisions is [*420] an obviously desirable form of remedy and the otherwise possibly very difficult problem of determining an appropriate remedy (a problem not solved by Baker) may become relatively simple.  However, it remains clear under Baker that a Federal right exists quite independent of State constitutional provisions and is in no way dependent upon them for its enforcement through some appropriate remedy.

   The second recent Supreme Court case which seems to us highly pertinent to the present controversy is Scholle v. Hare, 369 U.S. 429. That case involves an attack solely on the apportionment of the Michigan[***27] Senate.  The Michigan House is apportioned about as closely as may be on a basis of population.  This fact was certainly well known to the Supreme Court of the United States when it remanded the Scholle case to the Supreme Court of Michigan for further consideration in the light of Baker v. Carr, supra. It is difficult for us to imagine a clearer indication (short of an express statement) than is given by this remand that the mere fact that one house of a State legislature is apportioned strictly in accordance with population does not immunize the apportionment of the other from attack under the Fourteenth Amendment on [**723]the ground that gross malapportionment or representation as regards population constitutes invidious discrimination.

   In the majority opinion of this Court on the first appeal in this case we expressed the views (228 Md., at 433-34) that no precise and inflexible formula for representation is required or can be stated, that the State is allowed every reasonable latitude with regard thereto and that any discrimination which may exist therein will not be set aside if any state of facts reasonably may be conceived to justify it, and that "there is a[***28] strong implication in the Baker decision that there must be some reasonable relationship of population, or eligible voters, to representation in the General Assembly, if an apportionment is to escape the label of constitutionally-prohibited invidious discrimination." We adhere to those views and we think the remand of the Scholle case supports them.  The remand of that case appears to us to have been for the purpose of having the Michigan Court determine whether or not there was a rational ground upon which to support the allocation of representation [*421]in the Michigan Senate, which rather clearly involved marked disparities in voting power between different senatorial districts as regards population.  The maximum disparity in Michigan, we note, was approximately 15 to 1 as against a maximum disparity in Maryland of approximately 32 to 1.  We think that the remand of the case of W. M. C. A. v. Simon, 370 U.S. 190, 82 S. Ct. 1234, for the court below (the United States District Court for the Southern District of New York) to be "the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability and as to the merits[***29] of alleged arbitrary and invidious geographical discrimination" supports our interpretation of the purpose of the remand of the Scholle case.  As we read the opinions filed in the Michigan Supreme Court following remand, the Court divided sharply on whether there was or was not a rational basis for the Michigan senatorial apportionment fixed by a constitutional amendment adopted in that State in 1952.  In at least one respect, which may be of some significance, the Michigan case differs from the situation in Maryland.  There, at the same election at which the apportionment under attack in Scholle was adopted by a popular majority of approximately 300,000 votes, another proposed constitutional amendment which would have apportioned the Senate on the basis of population was defeated by a popular majority of approximately 500,000 votes. n2 No similar choice has ever been submitted to popular vote in Maryland.  Despite this popular vote and against historical-geographical arguments and the analogy to the Federal system, a majority of four out of the seven members of the Michigan Supreme Court participating held the 1952 apportionment invalid.  The case is now on appeal to the Supreme[***30] Court and the order of the Supreme Court of Michigan has been stayed by Mr. Justice Stewart.

n2 Cf. W. M. C. A. v. Simon on remand, 31 L.W. 2121, where a somewhat similar factor was one of several grounds upon which the existing New York apportionment was upheld.

   The majority of this Court in the present case seems to accept tacitly, if not expressly, the view that if one house of the Maryland General Assembly (the Senate) may be apportioned [*422] on a basis which ignores disparities of population, the other house (the House of Delegates) must be apportioned with due regard to population, and assumes that the House of Delegates now is so apportioned. It is true that the apportionment of the House is not under attack on this appeal and no question with regard thereto is now before us.  It is also true, however, that even as reapportioned by the May 1962 Special Session of the General Assembly, considerable disparities still exist in a number of instances, though previous disparities have been materially[***31] reduced.  Reference to Appendix A appended hereto will show the past and present situations with regard to the House and also the situation [**724] with regard to the Senate, which has not changed.  There is no such close relationship between population and representation as in the case of the Michigan House, or between registered voters and representation as is declared necessary by the Federal District Court in Tennessee after remand of the Baker case.  (31 L.W. 2003). Surely, the present Maryland apportionment is not so closely related to population as is that of the House of Representatives of the Congress of the United States.  In that respect the Federal analogy is far from perfect.

   Nor is it perfect in other respects.  We still believe that there is some difference between the relationship of the States and the National Government and that of the counties and the State Government.  We do not deny that State sovereignty is not what it once was and is far less significant today than it was in 1787 or 1789.  It is true, however, that the Constitution of the United States does offer the States with small populations (no matter when they may have become members of the Union) [***32] a guarantee against being deprived of equal representation in the Senate without their consent.  Counties, at least in Maryland, remain creatures of the State and they have no such constitutional guarantee.

   Also, we think that the appellants are right in contending that Maryland does not fully follow the Federal pattern in another respect.  The majority attempts to minimize the departure from the rule of one senator per political subdivision made in the case of Baltimore City.  With all due deference to our brothers' reading of local history, the fact seems to stand out [*423] that these concessions to Baltimore City were granted, albeit grudgingly, in recognition of Baltimore's relatively large population and economic importance.  There is no corresponding provision in the Federal Constitution.

   Strictly, as a matter of history, the pattern of one senator per county or comparable political subdivision was in force only from 1851 to 1864.  From 1837 to 1851 Baltimore City, which was a part of Baltimore County, had one senator. Since 1864 it has had first three, later four, and since 1922, six.  At the time of the last increase it had slightly over 50% of the population of the [***33]State, according to the 1920 census.  With 6 senators out of 29 it had about 21% of the representation in the Senate.  It seems hardly necessary to point out that none of the six legislative districts comprised in the City of Baltimore constitutes a political subdivision of the State comparable to a county.

   The majority attempts to bolster the Federal analogy by the argument that those who drafted the Fifth Amendment (many of whom had also participated in drafting the original Constitution) could not have thought that Due Process of Law guaranteed by the Fifth Amendment was infringed by the Equal Representation Clause applicable to the Senate, and then by first equating Due Process under the Fifth Amendment with Due Process under the Fourteenth (this equation being, we think, true) and by then further equating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This argument seems to us highly strained.  We know of no basis, historical or otherwise, for thinking that the provision for the equal representation of the States in the Senate -- a representation of which no State may be deprived without its consent -- was or was intended to be amended, limited, [***34] or construed by the Fifth Amendment. We may further note that, although in many instances the Due Process and Equal Protection Clauses may overlap, these two Clauses are separately expressed in the Fourteenth Amendment and that they constitute limitations upon the States, not upon the Federal Government.  A further, and we think in itself sufficient, answer to this contention is that Baker v. Carr, supra, rests squarely [*424] and expressly on the Equal Protection Clause and is the basis for the remand of Scholle.

   [**725] The imperfections of the analogy to the Federal system are a relatively minor factor in the case, though the analogy itself is one of the main grounds upon which the majority relies.  The other ground -- and perhaps it really includes the Federal analogy ground -- is that history furnishes a rational basis for geographical representation without regard to present glaring disparities in population between areas.

    Up to a point, which it may be difficult to locate precisely, there is doubtless some merit to an argument based solely on history, but there must be a limit to its efficacy.  A phrase with which all lawyers are familiar is the old saying[***35] that the reason for something is historical rather than logical. How far can we go in adopting history as the guide for determining whether there is a rational basis for a patent discrimination?  It is almost ironic that this malapportionment of representation to population in this case was (as well as is) worse in the Senate than in the House.  Surely, the historical-geographical argument cannot be pushed to the logical extreme of contending that an uninhabited geographical area is entitled to representation in a legislative body.  (We need not even stop to consider the problem of who would represent it.) Geography simply cannot be divorced from people as a basis for representation.  How large must the population of a geographical political subdivision be in relation to that of other such subdivisions in order to afford a reasonable base for representation?  We grant that no exact mathematical rule or guide should be attempted by this Court; but it seems to us that when the disparity in population reaches the point where it has no rational justification, the limit of permissible discrimination is passed.  A disparity of 32 to 1, we think, does exceed the permissible limit.  In votes[***36] for the election of Senators that disparity exists as between voters in Baltimore County and voters in Kent County.  If there were no other comparable disparities, it might be of little significance; but there are other comparable disparities, as reference to the figures in Appendix A will show.  Thus the disparity as between voters in Prince George's County and in Talbot County is approximately 16 1/2 to 1, as between voters in Montgomery [*425] County and in Garrett County it is approximately 17 1/2 to 1, and as between voters in Anne Arundel County and Queen Anne's County it is approximately 12 1/2 to 1.  The maximum disparity in Scholle was 15 to 1.  Without multiplying comparisons of one county with another, the following composite figures (taken from Appendix B), in which representation in the Senate is divided roughly into thirds, will reveal the general disparity between the most populous subdivisions of the State and the less populous subdivisions:

                                              Approximate
                           1960             % of State          Approximate
       Units            Population          Population          % of Senate
Four most populous
Counties
and Baltimore City
  (10 Senators)               2,336,409                  75 34 1/2
Ten least populous              214,930                   7 34 1/2
Counties
  (10 Senators)
Nine intermediate
Counties
  (9 Senators)                  549,350                  18 31

 [***37]

   To carry comparisons a step further, the fifteen least populous counties can elect 15 of the 29 Senators. These 15 counties have a combined population of 450,160, or a little over 14% of the State's total population of 3,100,869. That is, approximately [**726] one-seventh of the population can elect a majority of the State Senate.

    Further comment can scarcely add emphasis to the figures shown in the above table and in the paragraph immediately following it.

   The supposed Federal analogy was at least as well known to the Supreme Court as to us, but it did not prevent remand for consideration on the merits of apportionment in the State Senate in Baker, in Scholle, or in W. M. C. A. We cannot think of any logical reason for remanding a case to a lower court for the consideration of a patently untenable ground of constitutional attack.  Of the three cases just cited Scholle seems most pertinent on this matter.  The majority opinion in the instant case seeks to avoid what we think is a necessary implication from the remand of Scholle on this point by saying that the Supreme Court did not decide the question.  We [*426] think that what the Supreme Court has[***38] not decided is whether or not there is a rational basis for the Michigan senatorial apportionment.

   We think that the majority of this Court dismisses rather too lightly decisions of the courts of other States or of lower Federal courts from a review of which it finds little to be gained.  We think that on the whole these other recent cases seem to support our views rather than those of the majority.  In general, they regard both houses of a State legislature as subject to a requirement that there shall be some reasonable relationship between population and representation.  This may be shown by a rational explanation of a departure from an exact ratio, and such an explanation will be more readily accepted as to one house if the other is exactly proportioned to population.  Some, such as Baker v. Carr, supra, on remand (31 L.W. 2003) have deferred action as to one house if the other is almost exactly apportioned according to population.

   The opinion of the United States District Court for the Middle District of Alabama, filed July 21, 1962, in Sims v. Frink, 205 F. Supp. 245, is carefully reasoned, and, in our estimation, supports the view that even exact, or almost exact, apportionment[***39] of one house in a State legislature in accordance with population does not entirely dispense with the need for some reasonable regard for population in the apportionment of the other.  To like effect is another very recent Federal District Court decision (July 23, 1962) in the Southern District of Florida, in Sobel v. Adams, 208 F. Supp. 316. See, however, the more recent opinion of that court, 208 F. Supp. 319, also reported in the Miami Herald of September 6, 1962, upholding a proposed Florida constitutional amendment which affects both House and Senate, bringing apportionment of the former much more nearly in line with population, but permitting considerable disparities as to the Senate.  It was held that population need not be "a major factor" in reapportionment of the Senate.  The Supreme Court of Vermont (on July 19, 1962) in Mikell v. Rousseau, 183 A. 2d 817, held the apportionment of the Senate of that State to be unconstitutional under the State Constitution. A Kansas County District Court held unconstitutional the apportionment of the Kansas legislature [*427] on July 27, 1962.  A decision of the Court of Common Pleas of Dauphin County, Pennsylvania, cited by[***40] the appellees, expresses views in accord with what we regard as the general trend and simply defers action.  It does not involve a final determination on the merits.  Nor did Caesar v. Williams, 371 P. 2d 241 (Ida.), decided April 3, 1962, reach a final decision on the merits.  In Colorado the State Supreme Court in Stein v. General Assembly, 31 L.W. 2075, deferred requiring action but a Federal District Court in Lisco v. McNichols, 31 L.W. 2107, shortened the time of deferment.

    [**727] The United States District Court for the Middle District of Tennessee, on remand of Baker v. Carr, supra, appears to have taken a view similar to ours that there should be an "equitable" basis of reapportionment of the Tennessee Senate, even though it need not be "fully related to voting strength." See also Toombs v. Fortson, 205 F. Supp. 248 (N.D., Ga.), 30 L.W. 2605, in which the District Court held that at least one house would have to be apportioned strictly on a population basis and did not decide whether both houses would have to be so apportioned.

   A three-judge Federal District Court in Oklahoma has acted to bring about reapportionment of the legislature of that[***41] State.  Moss v. Burkhart, 207 F. Supp. 885, commented on in the "Judicial Highlights" section of the Federal Reporter Advance Sheets for July 9, 1962.  Further action in that case (for which we presently have no F. Supp. citation) is reported in Facts on File, August 2-8, 1962, to have been taken on August 3, 1962.

   In Sweeney v. Notte, 183 A. 2d 296 (R. I.), 31 L.W. 2060, the Supreme Court of Rhode Island, though holding that it could not take action to enforce its views in a reapportionment case said: "The Attorney General contends, and petitioners concede, that apportionment along geographical, county, municipal or urban versus rural lines does not necessarily constitute a denial of equal protection if the rationale of such methods can be justified.  We are in full accord with such contention, but it is equally true that historical recourse to such apportionment formulae cannot be justified if it results in invidious discrimination. The dilution of the vote of a majority of electors [*428] to one fourth of that enjoyed by others is, in our opinion, so unjust as to be invidiously discriminatory."

   See also Sanders v. Gray, 203 F. Supp. 158 (N.D., Ga.), involving[***42] the Georgia primary election unit vote rule.  Probable jurisdiction has been noted but an application to advance for argument was denied in that case, sub nom., Gray v. Sanders, 370 U.S. 921, by the Supreme Court.  That Court did not adopt the view of Mr. Justice Harlan that leave should be granted the appellants for a stay of the injunction issued by the District Court pending the determination of the appeal.

   We also refer to the remarks of two University of Virginia political scientists, Messrs. Paul T. David and Ralph Eisenberg, at the recent annual convention of the American Political Science Association in Washington.  They discussed the need for representation with reasonable regard to population in both houses of a state legislature and expressed views thereon, as reported in the Washington Post of September 6, 1962 (pp. 1 and A 8) in general accord with ours.

   In the present case we think that the gross disparities which exist in relative voting power (and which are not even disputed, for they cannot be) cast upon the proponents of the existing apportionment the burden of showing a rational basis for such departures from any regard for population as a basis for representation. [***43] This burden, in our estimation, has not been met. Such provisions as we have here seem much more than are required to assure a proper diffusion of political restraint, to paraphrase the diffusion of political initiative spoken of in MacDougall v. Green, 335 U.S. 281, at 284. Neither the long continuance of disparities nor the magic phrase "Federal analogy" seems to us to furnish the rational basis for such disparities which is necessary to save them from constituting "invidious discriminations" under the Fourteenth Amendment, as we think that Amendment has been authoritatively interpreted by the Supreme Court in the cases above referred to and recently decided by that Court.

   We, therefore, think that the decree of the Circuit Court should have been reversed.

   [*429] [**728] APPENDIX A

   Population and Representation in the General Assembly of Maryland

                            HOUSE OF DELEGATES
                             Prior to 5-31-62
                                                        No. Represented
       Unit         Population 1960 No. of Delegates    by Each Delgate
State as a
Whole                     3,100,689               123               25,210
Allegeny                     84,169                 6               14,028
Anne Arundel                206,634                 6               34,439
Baltimore                   492,428                 6               82,071
Calvert                      15,826                 2                7,913
Caroline                     19,462                 2                9,713
Carroll                      52,785                 4               13,196
Cecil                        48,408                 3               16,136
Charles                      32,572                 2               16,286
Dorchester                   29,666                 4                7,417
Frederick                    71,930                 6               11,988
Garrett                      20,420                 3                6,807
Harfort                      76,722                 4               19,181
Howard                       36,152                 2               18,076
Kent                         15,481                 2                7,741
Montgomery                  340,928                 6               56,821
Prince George's             357,395                 6               59,566
Queen Anne's                 16,569                 2                8,285
St. Mary's                   38,915                 2               19,458
Somerset                     19,623                 3                6,541
Talbot                       21,578                 3                7,193
Washington                   91,219                 6               15,203
Wicomico                     49,050                 4               12,263
Worcester                    23,733                 3                7,911
Baltimore City              939,024                36               26,001

 [***44] 

** Citywide average without regard to inequalities between Legislative Districts

[**729]

                     HOUSE OF DELEGATES
                                 After 5-31-62
                                          No. Represented
       Unit          No. of Delegates     by Each Delegate
State as a
Whole                               142               21,837
Allegeny                              6               14,028
Anne Arundel                          7               29,519
Baltimore                            13               37,879
Calvert                               2                7,913
Caroline                              2                9,731
Carroll                               4               13,196
Cecil                                 3               16,136
Charles                               2               16,286
Dorchester                            4                7,417
Frederick                             6               11,988
Garrett                               3                6,807
Harford                               4               19,181
Howard                                2               18,076
Kent                                  2                7,741
Montgomery                           10               34,093
Prince George's                      10               35,740
Queen Anne's                          2                8,285
St. Mary's                            2               19,458
Somerset                              3                6,541
Talbot                                3                7,193
Washington                            6               15,203
Wicomico                              4               12,263
Worcester                             3                7,911
Baltimore City                       39               24,001

 

** Citywide average without regard to inequalities between Legislative Districts

[**730] [***45]

                        SENATE          RELATIVE VALUES OF VOTES
                                        Per Cent(%) of Value of
                                      Vote to Statewide average *
                                             For             For
                                          Delegates        Senator
                                        Prior to     After
        Unit         No. of Senators    5-31-62     5-31-62
State as a
Whole                            29         100       100        100
Allegeny                          1         175       156        129
Anne Arundel                      1          73        74         52

Baltimore                         1          31        56         22
Calvert                           1         319       276        675
Caroline                          1         259       224        550
Carroll                           1         191       165        203
Cecil                             1         156       135        221
Charles                           1         155       134        328
Dorchester                        1         340       294        360
Frederick                         1         210       183        149
Garrett                           1         370       321        534
Harford                           1         131       114        139
Howard                            1         139       121        296
Kent                              1         325       282        691
Montgomery                        1          44        64         32
Prince George's                   1          42        61         30
Queen Anne's                      1         304       264        644
St. Mary's                        1         129       112        249
Somerset                          1         385       334        545
Talbot                            1         350       308        495
Washington                        1         166       144        117
Wicomico                          1         206       178        218
Worcester                         1         319       276        450
Baltimore City                      6

 

* Average number, statewide, of persons represented by each of 29 Senators, 106,920

** Citywide average without regard to inequalities between Legislative Districts

[***46]

   [*430] APPENDIX B

   Comparison of Representation in the Senate of Maryland of the City of Baltimore and the Four Most Populous Counties and of Other Counties

Group 1                                       Approximate
Baltimore City and Four         1960     % of Population   No. of   Approximate
Most Populous Counties:      Population      of State     Senators  % of Senate
Baltimore City                   939,024            30.22         6        20.70
Baltimore County                 492,428            15.88         1         3.45
Prince George's County           357,395            11.53         1         3.45
Montgomery County                340,928            10.99         1         3.45
Anne Arundel County              206,634             6.67         1         3.45
                               2,336,409            75.29        10        34.50
Group 2
Ten Least Populous Counties:

Kent County                       15,481              .50         1         3.45
Calvert County                    15,826              .51         1         3.45
Queen Anne's County               16,569              .53         1         3.45
Caroline County                   19,462              .63         1         3.45
Somerset County                   19,623              .63         1         3.45
Garrett County                    20,420              .66         1         3.45
Talbot County                     21,578              .70         1         3.45
Worcester County                  23,733              .77         1         3.45
Dorchester County                 29,666              .96         1         3.45
Charles County                    32,572             1.05         1         3.45
                                 214,930             6.94        10        34.50
Group 3
9 Intermediate Population
Counties:
Howard County                     36,152             1.17         1         3.45
St. Mary's County                 38,915             1.26         1         3.45
Cecil County                      48,408             1.56         1         3.45
Wicomico County                   49,050             1.58         1         3.45
Carroll County                    52,785             1.70         1         3.45
Frederick County                  71,930             2.32         1         3.45
Harford County                    76,722             2.48         1         3.45
Allegany County                   84,169             2.71         1         3.45
Washington County                 91,219             2.94         1         3.45
                                 549,350            17.72         9        31.05

 [***47]

   [*431] Prescott and Marbury, JJ., filed the following separate dissenting opinion.

   As indicated therein, we fully concur in the able dissenting opinion of Chief Judge Brune.  In addition, we deem it appropriate to call attention to the contrast between the conclusion reached by the present majority and what was said in the majority opinion on the first appeal in which two of the majority on the present appeal concurred.

   [**731] Plaintiffs' bill of complaint alleges malapportionment in both the State Senate and the House of Delegates.  The case first reached us after the trial court sustained demurrers to the bill.  We reversed, stating that the Supreme Court had made "a strong implication in the Baker decision that there must be some reasonable relationship of population, or eligible voters, to representation in the General Assembly, if an apportionment is to escape the label of constitutionally-prohibited invidious discrimination." We then remanded the case with directions to the chancellor to determine whether representation in either or both Houses of the General Assembly was apportioned on a basis involving such discrimination.  The chancellor found that the representation [***48]in the House was unconstitutionally malapportioned, but made no finding as to the Senate.  We again remanded for a decision as to the Senate. It is elementary that if the well-pleaded allegations of the bill failed to state a cause of action with reference to representation in the Senate, neither remand insofar as it concerned that branch of the Assembly was proper.  Upon the remand no testimony whatever was taken.  The defendants filed an answer in which they admitted substantially all of the allegations of the bill relating to malapportionment, but, even though the majority opinion stated what we quoted above, the defendants stated in their answer that "representation in the Maryland Senate need not be based on nor reasonably related to the present population of the Counties and Baltimore City [and the present majority opinion sustains this contention]." Essentially, the case reaches us now in the same posture as the first appeal, the only difference being that in the first appeal the demurrers admitted the well-pleaded allegations of the bill, and in the present appeal the [*432] answer admits them with minor and insignificant exceptions.  On those facts which were held[***49] sufficient on the first appeal to state a cause of action as to the Senate as well as the House, the present majority now finds "nothing in the Supreme Court cases [no case on malapportionment has been decided by the Supreme Court since our first opinion] to support the appellants' claim of invalidity in the apportionment of the Maryland Senate." 

AMBERLEY COMMUNITY ASSOCIATION, INC. et al. v. BOARD OFAPPEALS OF ANNE ARUNDEL COUNTY et al. 
No. 346, September Term, 1961
 
Court of Appeals of Maryland
 
229 Md. 261; 182 A.2d 811; 1962 Md. LEXIS 553

 July  6, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  special exception, motel, tavern, zoned, tract, specifications, protestants, marina, acres, physically, zoning, creek, rezoning, public hearing, exact location, fireproof, definitely, departure, drawings, nearby, plats, abuts, admission of evidence, sewage disposal, building contract, blanket, zone, fire-resistant, neighborhood, determinable

COUNSEL: Eleanor A. Crawford for the appellants.

   Jerome F. Connell for the Board of Appeals of Anne Arundel County, one of the appellees.

   Wilbur R. Dulin, with whom were Hyman Ginsberg and Ginsberg & Ginsberg on the brief, for Oakhill Farms, Inc., the other appellee.

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

OPINIONBY: BRUNE

OPINION: [*263] [**812] In this zoning case the Circuit Court for Anne Arundel County affirmed the action of the Board of Appeals of that County in granting a special exception permitting the use of land then owned by Nancy A. Parr for tavern and motel purposes.  Owners of property in the neighborhood and a neighborhood association (the right of which to maintain this suit has not been challenged) appealed from the order of the Circuit Court.  The appellees are the Board of Appeals and the successor in interest of Nancy A. Parr, who died while this appeal was pending.

   [*264] The land in question is a part of a tract known as the Parr tract, which abuts upon a service road on the south side of the Revell Highway, Maryland Routes 50 and 301, about a mile west of the western end of the Chesapeake Bay Bridge.  This tract also abuts in part upon Whitehall Creek, and the protestants-appellants' properties are across that creek in a community known as Amberley.  In 1956, on the application of J. Donaldson Parr, the husband of Nancy A. Parr, the Board of Appeals[***6] granted a similar special exception to All States Corp. in which Mr. Parr was interested and for which he was acting.  Litigation ensued to upset the grant, but this either was not pressed to a conclusion or resulted in favor of the validity of the special exception. Construction contemplated under it was not, however, commenced in time, the exception lapsed and Mr. Parr died.  Subsequently, in October, 1960, Mrs. Parr filed the application which gives rise to the present suit.

   The Board of Appeals conducted a public hearing on the application on the evening of November 9, 1960, at which a fairly large number of protestants and their then counsel (not their counsel on this appeal) were present.  Proceedings opened with statements by or on behalf of the applicant to the effect that this application was the same as that which had been presented and approved in 1956. Both applications (apparently) described the property for which the special exception was sought as containing 5.56 acres and as being zoned Heavy Commercial.  The balance of the Parr tract was zoned as Agricultural.  It developed in the present proceedings that only 5.1 acres were zoned Heavy Commercial.  The Board of[***7] Appeals did not have power to grant a special exception for tavern and motel use for land in an Agricultural zone.

   There was some confusion as to just where the 5.1 acres were located, but it seems that this either has been or can be determined definitely from the plats filed in these proceedings and from the Official Zoning Map of the area.  The resolution of the Board granting the special exception, which was adopted on November 30, 1960, describes the property as being [*265] "located in a Heavy Commercial Zone." The Board of Appeals disclaims any intention to grant this special exception with respect to land outside that zone, and the other appellees agree that it is so limited.  It would, of course, be invalid under the Ordinance with respect to land zoned as Agricultural.  We think the appellees are bound by this concession both in this proceeding and in [**813]any use which those to whom the special exception has been granted or their successors in interest may wish to make of any parts of the Parr tract which, though shown on plats or included within the description of the area for which the exception was sought, were not zoned as Heavy Commercial when the resolution[***8] granting the application was adopted.  With the extent of the special exception thus limited, and on the basis that the exact location of the 5.1 acres is definitely determined or determinable, the objections of the appellants to the resolution on the basis of uncertainty lose their force and do not call for a reversal of the order of the Circuit Court or of the action of the Board of Appeals.  We may note that there is some doubt as to whether this question was actually presented to and passed upon by the Circuit Court and hence whether it is properly before us.  We have, however, considered it as if this doubt were not present.

   The appellants also contend that the plans and specifications of the proposed motel and tavern submitted to the Board of Appeals were not sufficient to comply with the minimum requirements set forth in Ch. 35 of the Anne Arundel County Code (1957), § 35-115 (a) (2) relating to taverns, and § 35-115 (f) (2) relating to motels. Involved with this contention is a further contention based upon the fact that no plans or specifications were physically before the Board at the time of the public hearing.

   We shall deal first with the contention last stated. [***9] Plans and drawings apparently prepared before the expiration of the 1956 special exception had been submitted in accordance with usual practice to the Board of Appeals in support of the 1960 application and had been transmitted to the County Department of Health for its consideration and report, -- and were still in the office of that Department at the time of the hearing.  [*266] The Health Officer wrote and delivered to counsel for the protestants, late in the afternoon preceding the hearing, a letter stating that the Department was not then able, pending soil tests, to give its approval to the project and that it could then find no record of having approved the 1956 application covering the same property.  It appears from the record that counsel for the protestants had examined the plans at the office of the Health Department.

   When this matter came up before the Board of Appeals, the Chairman offered to continue the hearing until a date when the plans could be physically presented, but counsel for the protestants explicitly declined this offer and elected to go ahead with the hearing.  We think that the protestants therefore have waived any objection on this score.  The plans[***10] had actually been submitted to the Board of Appeals and they were returned to it before the resolution was adopted.

   The appellants also contend that the Board improperly admitted all evidence on the 1956 application, though it was not produced at the hearing.  The Board, however, on the advice of its counsel, did not make any blanket admission of evidence from the 1956 proceedings, but did consider the fact that a special exception had been previously granted.  There is nothing to show a departure from that ruling.  Its consideration of the reoffered plans, above discussed, could hardly be regarded as such a departure.

   It does appear that the plans as included in the record are rather scanty in some respects, particularly as to the fireproof or fire-resistant qualities of the materials to be used in the construction of the motel. We do not think, however, that detailed plans and specifications, such as would be contained in a building contract are called for under either of the pertinent sections of the Zoning Ordinance.  The resolution of the Board of Appeals states that the Board was of the opinion, from the testimony, exhibits and other evidence presented before it, that the[***11] request for a special exception fully complied with the provisions of §§ 35-115 (a) and 35-115 (f) of [**814] the Zoning Ordinance, and on the record before us we cannot say that the Board did not have before it "adequate drawings, specifications and other material * * * giving evidence" of [*267] meeting the requirements of sub-paragraphs (a)-(g) of § 35-115 (f) (2), which include that relating to fireproof and fireresistant materials.

   A major ground of attack is the alleged inadequacy of sewage disposal facilities and the danger of pollution of the nearby creek. As to this, the Board of Appeals did not act until after it had received the preliminary approval of the applicant's plans by the Department of Health.  We can find nothing arbitrary in the Board's reliance upon the opinion of the Health Department with regard to that question, which is a matter peculiarly within the competence of that Department.  The Board was not obliged to accept the contrary views of one or more neighbors who were laymen in that field.

   The appellants also vigorously attack the need for another tavern and motel in the area.  Any requirement that the Board of Appeals find a need for the special[***12] exception is found in § 35-115 (a) (4) dealing with taverns, rather than in § 35-115 (f) dealing with motels. The evidence that there is no need for another tavern or motel in this vicinity comes almost entirely from competitors.  The evidence of any such need may not be impressive to us, but we cannot say that the action of the Board of Appeals on this phase of the matter is devoid of support and therefore arbitrary.  The highway upon which the property abuts is heavily traveled, and there is in the record an appraiser's report which gives support to the contention of need for more facilities of the sort here in prospect in this area.

   We shall not prolong this opinion by discussing at length well established rules of law relating to special exceptions.  They are fully covered by Montgomery Co. v. Merlands Club, Inc., 202 Md. 279, 96 A. 2d 261, and a number of other cases.

   The plans submitted by the applicant and the appraiser's report indicate that not only a tavern and motel are contemplated, but also a marina on the nearby creek. The controversy over the exact location of the area zoned as Heavy Commercial has clearly developed the fact that this area does not touch upon [***13]the creek and that the area of the proposed marina is cut off from the motel and tavern area by a part of the Parr tract zoned as Agricultural.  It is conceded by the appellees [*268] that the special exception does not extend to the area of the proposed marina and that a marina cannot be established at the desired location without a rezoning of land now zoned as Agricultural.  This case is concerned only with the special exception for motel and tavern purposes for a part of the Parr tract which has been zoned as Heavy Commercial, and it has nothing to do with the rezoning or possible rezoning of any other part of the Parr tract for use as a marina. n1 In the light of this fact and of the above concession, nothing said in this opinion can be considered as in any way expressing or implying approval of the establishment of the proposed marina or of any rezoning to make it possible.

n1 With regard to problems relating to the zoning of water areas in Anne Arundel County, see Rose v. Paape, 221 Md. 369, 157 A. 2d 618. We are not advised of any statutory change or change in the Zoning Ordinance relating thereto since that case was decided.

[***14]

   Since we think that the trial judge was correct in finding that there was no arbitrary or otherwise illegal action on the part of the Board of Appeals, the order appealed from must be affirmed in accordance with the settled rule that the courts may not overturn the action of such a Board when the propriety of its action is at least fairly debatable.  Loyola Federal Svgs. & Loan Assn. v. Buschman, 227 Md. 243, 176 A. 2d 355 (a variance case).

    Order affirmed, with costs. 

JOHNSON et ux. v. STATE ROADS COMMISSION OF MARYLAND 
No. 329, September Term, 1961
 
Court of Appeals of Maryland
 
229 Md. 151; 182 A.2d 346; 1962 Md. LEXIS 537

 June  18, 1962, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed July 18, 1962, Denied July 23, 1962.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  adverse possession, strip, res judicata, fee simple, vested, former case, former proceeding, subject matter, claimed title, quiet title, trespass, unsound

COUNSEL: Linwood L. Clark and C. Maurice Weidemeyer, for appellants.

   William J. [***2]  McWilliams, Special Attorney, with whom were Thomas B. Finan, Attorney General, and Joseph D. Buscher, Special Assistant Attorney General, on the brief, for appellee.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.

OPINIONBY: PER CURIAM

OPINION: [*152] [**346] This case is the finale to State Roads Comm. v. Johnson, 222 Md. 493 (1960), in which this Court held, in a suit in equity to quiet title, that the State Roads Commission was vested with fee simple title to the strip of land the ownership of which was therein contested.  The losing parties in that case, the Johnsons, then sought to establish, in a suit at law for trespass q. c. f., that they have obtained title to the strip by adverse possession. The trial court granted a directed verdict for the State Roads Commission on the ground of res judicata.  We think the trial court was right.

   Our decision in State Roads Comm. v. Johnson established that on June 8, 1960, the Commission was the owner of the strip. The mandate remanded the case "for the passage of a decree declaring that the appellant is vested with fee simple title to the strip in question." The lower court passed such a[***3] decree on December 30, 1960, and no appeal therefrom was taken.

   It is well established that a judgment between the same parties as to the same subject matter is res judicata not only as to the points actually raised in the former proceeding but also as to those which could have been raised.  Alvey v. Alvey, 225 Md. 386, 390-391 (1961), and White v. Athey, 229 Md. 28, and cases therein cited.  The claim of the Johnsons of adverse possession in the present case is the same claim that they made in the former case, with the same starting point in time.  The bill of complaint in the first case included an averment that the Johnsons and their predecessors in title "have been in continuous and peaceable possession of said land and improvements for the statutory period" (beginning in 1937), and the interrogatories and answers filed in the case referred to this claim and the State's position in regard to it.  As it happened, the Johnsons eventually decided in the former case not to rely on adverse possession but to seek relief on other [**347] grounds, which the opinion of this Court in that case decided were unsound. It is clear to us that the Johnsons lost the right to claim[***4] title by adverse possession when the prior case was decided against them.

   Judgment affirmed, with costs. 

SCHEYDT et al. v. PRATT PROPERTIES, INC. 
No. 296, September Term, 1961
 
Court of Appeals of Maryland
 
229 Md. 31; 181 A.2d 464; 1962 Md. LEXIS 514

 June  5, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

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

CORE TERMS:  zoning, debatable, reclassification, neighborhood, rezoning, traffic, nearby, tract, substantial change, industrial, devaluate, enjoin, subject property, first instance, own judgment, agricultural, manufacturing, suitable, by-pass, realm

COUNSEL: George M. Taylor, with whom was Ralph C. Boyd on the brief, for the appellants.

   William D. Macmillan, Jr., for the appellee.

JUDGES: Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ.

OPINIONBY: PER CURIAM

OPINION: [*32] [**465] On the ground that there had been substantial change in the character of the neighborhood since the adoption of comprehensive zoning in 1952, the Board of County Commissioners of Anne Arundel County granted rezoning from agricultural to light industrial of a 41 acre tract fronting on Quarterfield Road and on Old Stage Road, near Glen Burnie, on application of the appellee, the contract purchaser of the tract. Certain nearby residents, who had opposed the application, filed suit in the Circuit Court for Anne Arundel County to enjoin the rezoning. The case was submitted to the court[***3] on the record sent up by the County Commissioners.

   The protestants had produced testimony by neighboring landowners and officers of interested civic associations to the effect that the change would devaluate properties in the neighborhood, increase traffic hazards, and constitute "spot" zoning, and that the subject property could in fact be developed for residential use.  On the other hand, testimony was given on behalf of the appellee by an industrial realtor, a builder, and three individuals owning nearby properties. In regard to change in the character of the neighborhood, their testimony established a developing complex of major highways, with elaborate interchanges, in the immediate vicinity, and a general increase in traffic. The recently constructed Glen Burnie dual-lane by-pass adjoins one side of the subject property. [*33] It was shown that the State Roads Commission has adopted plans to relieve the chronic traffic bottle-neck at Ritchie Highway and Mountain Road by extending the latter to the by-pass, near the property in question.  It was also shown that the proximity of the tract to Friendship Airport has created serious problems of noise and obnoxious odors, [***4] especially since the advent of jet plane traffic in recent years.  This factor was said to have rendered it impossible to obtain VA or FHA financing for residential development of the property, and to have prevented several attempted sales for that purpose. 

   In addition to finding substantial change in the neighborhood, the County Commissioners determined that the tract was suitable for light manufacturing uses and that the rezoning would not devaluate nearby property.  The trial court found that these matters were at least fairly debatable and refused to enjoin the reclassification. We see no error here.

   The determination of whether sufficient change has occurred to justify reclassification must be made in the first instance by the appropriate zoning authority.  If the evidence was sufficient to bring the question within the realm of the fairly debatable, the court cannot substitute its own judgment for that of the zoning authority.  Didlake v. Poteet, 228 Md. 588, 180 A. 2d 828 (1962); County Council v. Gendleman, 227 Md. 491, 177 A. 2d 687 (1962). In the case before us, the evidence of change was sufficient to render the question fairly debatable.

   Decree affirmed; costs [***5]  to be paid by appellants. 

DIDLAKE et ux. v. POTEET et al. 
No. 291, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 588; 180 A.2d 828; 1962 Md. LEXIS 491

 May  11, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  zoning, rezoning, zoned, neighborhood, heavy, comprehensive zoning, adjoining, debatable, decree, void, buses, feet, resolution approving, substantial change, zoning classification, contiguous property, debatable question, evidence presented, zoning commission, commercial zone, own judgment, bus service, residential, cottage, reclassification, classification, protestants, rezoned, parking, bus

COUNSEL: John L. Moring, [***3]  Jr., with whom was Robert J. Callanan on the brief, for the appellants.

   Malcolm B. Smith, with whom were Louis M. Strauss and Smith, Wohlgemuth & Westcott on the brief, for the appellees.

JUDGES: Henderson, Hammond, Prescott, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*590] [**828] This appeal is taken by Clyde B. Didlake and Irene E. Didlake, his wife, from a decree of the Circuit Court for Anne Arundel County, dated November 3, 1961, which declared unconstitutional, illegal and void a resolution which had been passed by the Board of County Commissioners of Anne Arundel County, on March 30, 1961, approving an extension of zoning from Cottage-type Residential to Heavy Commercial of 0.38 acres more or less, owned in fee simple by the appellants, fronting 117 feet on the easterly side of Langley Road, 300 feet southwest of the intersection of Furnace Branch Road and Langley Road, in the 5th Election District of the County, and known as parts of Lots Nos. 3 and 4, on a plat of Acreslee.  The appellants, in addition to owning all of Lots Nos. 3 and 4, also own Lot No. 2, adjoining Lot No. 3, and a corner lot[***4] adjoining Lot No. 2 which extends to the southeast corner of Langley Road and Furnace Branch Road.

   Pursuant to Code (1957), Article 66B, the Board of County Commissioners of Anne Arundel County, on July 1, 1952, established a comprehensive zoning plan for Anne Arundel County that defined a [**829] heavy commercial zoning classification extending along both sides of Furnace Branch Road in a southeasterly direction from Ritchie Highway to Margate Road, to a depth of 300 feet on each side of the road, and which line of demarcation runs diagonally across Lots Nos. 3 and 4 of the appellants, placing all of their contiguous property in a heavy commercial zone with the exception of portions of Lots Nos. 3 and 4 which were still zoned Cottage Residential. The surrounding properties were zoned Agricultural or Residential.

   The appellants have conducted a public bus service business, [*591] which is primarily for the purpose of supplying school buses to the Board of Education for the county, on that portion of the property located in the heavy commercial zone. Alleging changes in the neighborhood, increased population, and requests from the Board of Education to supply additional[***5] school buses, appellants filed a petition to extend the zoning of their property to cover the remaining portions of Lots Nos. 3 and 4 under a heavy commercial type zoning, so that the additional space, necessitated by such increases, could be used in connection with the bus business for the parking of the additional buses needed to comply with the increased demand.

   The Planning and Zoning Commission of Anne Arundel County, on July 7, 1960, recommended to the Board of County Commissioners that the Didlakes' petition for rezoning be disapproved.  A public hearing was held by the Board of County Commissioners on August 11, 1960, at which the appellants and protestants presented testimony.  There was no attempt to show any mistake as to the zoning of the property involved at the time of the adoption of the comprehensive zoning plan in 1952.  The only evidence produced by the Didlakes in support of their claim of changes in the neighborhood was to the effect that the population in the general area of this portion of the county had greatly increased.  When asked at the hearing why he needed this additional rezoning, Mr. Didlake answered:

   "Additional bus parking, population increasing, [***6] and it is necessary to the general public.

   * * *

   Q. Then you want this property zoned because your business got too big for the land you own?

   A. Yes.  The people got too many children."
 
On behalf of the protestants Mr. Von Schwerdtner, Planning Administrator of the Planning and Zoning Commission of Anne Arundel County, stated that the Commission felt:
 
"that conditions had not changed sufficiently in the area since the adoption of the comprehensive zoning [*592] ordinance on July 1, 1952, to warrant the change in zoning at this time; that the proposed zoning would result in an undesirable encroachment into the adjoining residential neighborhood and tend to devalue adjoining properties"
 
and that this was the reason given to the Board of County Commissioners for disapproving the Didlake petition for rezoning. It was also shown that there had been little development of the property zoned Heavy Commercial along Furnace Branch Road since the adoption of the comprehensive zoning plan and that most of this area was still available for commercial development.

   The Board of County Commissioners passed a resolution dated March 30, 1961, allowing the request for[***7] the extension of zoning and, thereafter, suit was instituted by the appellees against the appellants challenging the resolution as being unconstitutional, illegal and void. The circuit court, after reviewing the record before the Board of County Commissioners, on November 3, 1961, so decreed; and it is from that decree that this appeal was taken.  The sole question for our consideration [**830] is whether the trial court erred in finding that the resolution of the Board of County Commissioners of Anne Arundel County, dated March 30, 1961, rezoning the property of the appellants was illegal and void because it was arbitrary, capricious, and not fairly debatable.

   Before property should be rezoned from one classification to another there must be presented to the zoning authorities proof either that there was some mistake in the original zoning or that the character of the neighborhood has changed to such an extent that reclassification ought properly to be made.  Of course the reviewing court can not substitute its own judgment for the judgment of the zoning authority, but must simply review the evidence presented to the zoning authority and determine whether that evidence was sufficient[***8] to create a debatable question as to whether a mistake or change has been shown. Nelson v. Montgomery County, 214 Md. 587, 593, 136 A. 2d 373; American Oil Co. v. Miller, 204 Md. 32, 44, 102 A. 2d 727.

   [*593] We think the decision in this case is governed by the language of this court in Baltimore v. N. A. A. C. P., 221 Md. 329, 335, 157 A. 2d 433, where we said:
 
"There is, of course, a presumption that the rezoning was reasonable, but in piecemeal rezoning cases there is also a counter-presumption that the original zoning was well planned and designed to be reasonably permanent which may be overcome only by showing that either there was error in the original zoning or there has been change in the character of the neighborhood, and unless one or the other, or both, is shown the presumption of reasonableness is destroyed." (Emphasis supplied.)

   Here, as in Zang & Sons, Builders, Inc. v. Taylor, 203 Md. 628, 102 A. 2d 723 -- since there was no proof of a basic mistake or of a substantial change in the character of the neighborhood after the area in dispute was zoned Cottage Residential -- the question of the validity of the resolution of the Board [***9]of County Commissioners is not even debatable. We hold that the rezoning of the property in question was properly set aside by the lower court.

   Decree affirmed, with costs. 

HALLER et al. v. WHITE 
No. 181, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 505; 180 A.2d 689; 1962 Md. LEXIS 476

 May  7, 1962, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, costs to be paid, $135.00 by the appellee, the balance by the appellants.

CORE TERMS:  withdrawal, trust account, gift, deposited, niece, savings account, chancellor, opened, inter vivos, joint tenancy, legal effect, accumulated, survivor, decedent, defeat, sister, decree, belong, donor, withdrew, lifetime, awarding, funeral, revoke, constructive trust, rebuttable presumption, remainder interest, right to withdraw, significant fact, completed gift

COUNSEL: William E. Kirk for appellants.

   George B. Woelfel for appellee.

JUDGES: The cause was argued[***3] on February 14, 1962, before Henderson, Prescott, Horney, Marbury and Sybert, JJ.  The cause was reargued on April 30, 1962, before Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.  Brune, C. J., concurs in the result.  Prescott and Horney, JJ., dissent.

OPINIONBY: HENDERSON

OPINION: [*507] [**690] This appeal is from a decree awarding the appellee the sum of $7,500, representing one-half of the balance in a certain savings account. A cross appeal challenges the failure to divide the accumulated interest.

   Helen Stallings, a semi-invalid now over eighty years of age, has resided in Annapolis since 1928 with her daughter, Helena S. Haller.  In 1954, her sister, Sadie Poole, moved to Annapolis, where she rented an apartment.  She was a childless widow who at the time of her death in 1960 was seventy-nine years of age.  Between June 29, 1954, and January 6, 1955, she deposited various sums in a savings account in the County Trust Company in her own name, her balance on the latter date being $26,782.81.  On October 10, 1956, she executed another signature card in the name of "Sadie P. Poole, in trust[***4] for self and Helen P. Stallings, joint owners, subject [**691] to the order of either; the balance at death of either to belong to the survivor".  At that time her balance was about $23,000.00.

   On March 5, 1957, she withdrew $15,000.00 from that account, leaving about $7,800.00.  She received the money in cash, and Mrs. Haller testified that she accompanied her aunt to the First Federal Savings and Loan Association of Annapolis, where it was deposited in a savings account. The signature card bore the names of Helena S. Haller and Marguerite P. White, another niece of Mrs. Poole, the daughter of a deceased brother.  Mrs. White testified that she was present when this account was opened and that Mrs. Poole was not present.  On this card the language as to a trust was striken out, and the parties were described as Helena S. Haller and Marguerite P. White "joint owners * * * both to sign for withdrawal".  Mrs. White testified that they "both received instructions as to how the money was to be deposited." On March 8, 1957, Mrs. Haller and Mrs. White, by joint signatures, transferred the account into the name of "Marguerite P. White in trust for [*508] herself and Helena S. [***5]Haller, as joint owners, subject to the order of either, the balance at death of either to belong to the survivor".  Mrs. Haller took possession of the bank book.  Mrs. Haller and Mrs. White both testified that this was done so that either might draw funds in an emergency.

   On October 30, 1957, Sadie P. Poole and Helen Stallings executed a bond to save harmless the County Trust Company from any claim resulting from the loss or destruction of the bank book, evidencing their joint trust account, which at that time stood at $6,148.88.  There was testimony that this was because Mrs. Poole had lost the bank book.

   Helena S. Haller made various withdrawals from the interest accruing in the First Federal account, and collected Mrs. Poole's Social Security and insurance checks.  She made numerous payments to, or on behalf of Mrs. Poole, to pay her bills and take care of her financial needs.  Both Mrs. Haller and Mrs. White performed various personal services for Mrs. Poole, as her health had failed. After her death on April 26, 1960, Mrs. Haller paid her debts and funeral expenses and, without consulting Mrs. White, withdrew the entire balance of some $15,000.00, and deposited it in a new[***6] joint trust account in her name and that of her mother, Helen Stallings.  The balance in the County Trust Company account was likewise withdrawn and added to the new joint account.

   Learning of the withdrawal, the appellee filed a bill alleging fraudulent conversion.  The appellant answered denying any fraud, and contending that it was always the intention of Mrs. Poole that her money should go to her sister; that the First Federal account was opened to prevent Mrs. Poole from making improvident withdrawals, and to obtain a better interest rate; that Mrs. Haller and Mrs. White were to act as trustees only.

   Neither of the parties to this suit was permitted to testify as to conversations with the decedent, Mrs. Poole, and no question is raised as to the correctness of these rulings, although no administration was taken out on Mrs. Poole's estate.  She died intestate, and there were a number of other nieces and nephews who survived Mrs. Poole as next of kin.  Mrs. White [*509] testified without objection that Mrs. Haller told her at the time the First Federal account was opened that the money "was to be divided between us, if my aunt did not need it".  Mrs. Haller denied that she[***7] made the statement or ever discussed the matter with Mrs. White.  Mr. Atwell, an officer of the County Trust Company and a director of the First Federal, testified that Mrs. Haller consulted him in 1957.  She told him that Mrs. Poole had been drawing funds from principal and spending it for purposes she could not explain, and that "they were afraid she would dissipate them and wind up * * * indigent".  He advised her [**692] that it would be prudent for the nieces to open a new account so that a substantial part of the money should be beyond the control of Mrs. Poole.  He also testified that the First Federal paid 3 1/2% interest at that time, while the County Trust paid only 2%.  Mr. Atwell identified Mrs. Poole's signature upon the $15,000 withdrawal slip, but he did not intimate that he had any personal contact with Mrs. Poole in the transaction.

   It is conceded that so far as the balance in the County Trust Company is concerned, this money passed to Mrs. Stallings as survivor under the joint trust account upon the death of Mrs. Poole.  As to the $15,000 withdrawn by Mrs. Poole and deposited in the First Federal account it is likewise clear that the legal effect of the withdrawal[***8] was to revoke pro tanto the trust in favor of Mrs. Poole and her sister. It is undisputed that Mrs. Poole received this money in cash, and that the new account was opened with her knowledge and consent, whether she was present or not.  The legal effect of the entry in the names of Mrs. Haller and Mrs. White as "joint owners * * * both to sign for withdrawal," was to create a joint tenancy with right of survival.  Cf. Mitchell v. Register of Wills, 227 Md. 305, 309, and cases cited.  We are not here concerned with a reservation of a locus penitentiae, as in Whalen v. Milholland, 89 Md. 199, since the pass book was delivered to Mrs. Haller.  Moreover, Mrs. Poole was not named as a trustee or beneficiary and on the face of the transaction retained no dominion over the fund or any right of withdrawal or revocation.  Cf. Allender v. Allender, 199 Md. 541, 546 and Pomerantz v. Pomerantz, 179 Md. 436, 439. In form and legal effect [*510] the entry satisfied the requirements of a completed gift inter vivos, subject, of course, to proof of a contrary intention on the part of Mrs. Poole.

   The appellant contends that Mrs. Poole delivered the money to Mrs. Haller [***9]and agreed to the opening of the account in the names of the two nieces as joint owners, merely as a convenience and in order that they might withdraw funds for her benefit.  The appellee agrees that the money was to be used for the "needs" of Mrs. Poole during her lifetime. There is a sharp conflict in the testimony as to what was her intention in regard to the disposition of the balance remaining in the account at her death.  Mrs. Haller contends that it was Mrs. Poole's intention that the balance be paid to Mrs. Stallings; Mrs. White contends that it was her intention that it be divided between the two nieces. There is a third possibility that the balance might be payable to Mrs. Poole's estate.

   The mere fact that the fund was to be used primarily for the needs of Mrs. Poole during her lifetime would not necessarily defeat or invalidate a gift inter vivos of the balance remaining at death.  Farmer v. Associated Professors of Loyola College, 166 Md. 455, 463; Howard v. Hobbs, 125 Md. 636, 641. See also Kelley v. Kelley, 178 Md. 389, 398 and Curley v. Wolf, 173 Md. 393, 397. Cf. Hancock v. Savings Bank of Balto., 199 Md. 163, 173, Bierau v. Bohemian Bldg., [***10] etc., Ass'n, 205 Md. 456, 462 and Jones, Adm. v. Hamilton, Adm., 211 Md. 371, 379. The question is as to the disposition of the remainder interest.

   On this question we think the most significant fact is the form of the account which on its face creates a joint tenancy. It is true that this raises only a rebuttable presumption, but the burden is upon the party seeking to rebut it.  Cf. Blair, Exec. v. Haas, 215 Md. 105, 115, and cases cited.  There is no suggestion that Mrs. Poole was not fully competent or was unaware of the legal consequences of her action.  We find no breach of a confidential relationship, if there was one.  The fact that she left about one-third of the money in the original account in the County Trust Company, even after the loss of the passbook, [**693] might support an inference that she intended to [*511] leave her money remaining at her death to the three persons closest to her.  If we accept Mrs. White's testimony that Mrs. Haller told her that they were to divide the money at Mrs. Poole's death, and that the account was opened in their names as joint owners at the express direction of Mrs. Poole, the case would seem to present an issue[***11] of fact that was properly resolved by the decision of the chancellor awarding $7,500.00 to Mrs. White.  It would seem natural that Mrs. Poole would have preferred to have the $15,000.00 divided between the two nieces who performed services for her, rather than to have it pass to other relatives upon her death intestate, or to her sister.

   Of course, so far as the First Federal was concerned, Mrs. Haller had a right to withdraw the balance as she did.  But the chancellor could properly impose a constructive trust to effectuate the gift in remainder, in accordance with the true intention of the donor. Cf. Carter v. Abramo, 201 Md. 339, 343. We think Kornmann v. Safe Dep. & Tr. Co., 180 Md. 270, relied on by the appellant, is distinguishable on the facts.  In that case it was held that a withdrawal from a joint trust account by a husband, of funds accumulated by the joint efforts of a husband and wife, operated to revoke the trust and was not open to attack on grounds of fraud.  In the instant case we think the authority to withdraw granted by Mrs. White to Mrs. Haller did not operate to defeat a gift of the balance remaining at the death of the donor. Nor do we find insuperable [***12]objection in the suggestion that $7,500.00 is being forced upon Mrs. Haller, who claims that the whole balance belongs to her mother.  After all, Mrs. Haller has transferred the whole sum into a joint trust account in the names of her mother and herself, subject to the order of either, balance at the death of either to belong to the survivor. The effect of the decree is to require that they both (the mother being a party) disburse $7,500.00 to Mrs. White.

   We find no merit in the cross appeal.  The record shows that the accumulated interest in the account was expended by Mrs. Haller for debts and funeral expenses of Mrs. Poole.  We think, however, that the appellee required the printing of [*512] repetitious matter in the record extract, and take account of this in the award of costs.

   Decree affirmed, costs to be paid, $135.00 by the appellee, the balance by the appellants. 

DRESBACH v. STATE 
No. 265, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 451; 180 A.2d 299; 1962 Md. LEXIS 468

 April  26, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  prejudicial error, fair and impartial trial, following colloquy, burden of proof, confession, discloses, deprive, favored, killed, sword, shot, beat

COUNSEL: Marshall A. Levin, with whom was Harry O. Levin on the brief, for appellant.

   Thomas W. Jamison, III, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, C. Osborne Duvall and John A. Blondell, State's Attorney and Assistant State's Attorney, respectively, for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ.

OPINIONBY: PER CURIAM

OPINION: [*452] [**299] Ralph Wayne Dresbach, the appellant, was sentenced to life imprisonment in the Maryland Penitentiary upon a judgment entered after a verdict by a jury in the Circuit Court[***3] for Anne Arundel County, Maryland, for the slaying of his father.

   On this appeal from the judgment and sentence he presents the sole question, did the trial judge commit reversible error in his remarks during the trial when ruling upon objection made by the State's Attorney.  [**300] The claim of prejudicial error resulted from the following colloquy:
 
"Mr. Goodman (Defense trial counsel): Q. What else did you think about?  How did your father treat your mother?  A. He beat her all the time.
Mr. Duvall (State's Attorney): I'll object to leading.  Mr. Goodman first asked him what else he thought about and then suggested an area for him to testify.
 Mr. Goodman: This is a little child, 15 years of age.  I want the jury to get the background of his experiences at home, I think that's important.
Mr. Duvall: I realize that, I've been very liberal."
 
It was at this point that Judge Michaelson said:

   "I don't like to say this, you have a two way sword, he killed his mother he didn't protect his mother.  All the testimony about the mother and father [*453]did I don't think is relevant at all.  If he favored one in preference to the other it might have some bearing[***4] on it."

   No exception or objection was taken at the time of the court's remark so that the question is not properly before us for review.  Rule 885, Daniels v. State, 213 Md. 90, 105, 131 A. 2d 267; Bryant v. State, 207 Md. 565, 585, 115 A. 2d 502; Brown v. State, 203 Md. 126, 100 A. 2d 7. If the accused desired to complain of an alleged impropriety of a remark made by the court at his trial he should have either moved to strike it out, or moved to withdraw a juror and declare a mistrial.  Daniels v. State, Bryant v. State, and Brown v. State, all supra.

   Even if the matter was properly before us a different result would not follow.  It is undoubtedly true that a trial judge because of his authoritative position should be exceedingly careful in any remarks made by him during the progress of the trial in ruling on evidence or prayers, to refrain either directly or indirectly from expressing an opinion on facts which should properly be left to the province of the jury.  Marino v. State, 171 Md. 104, 110, 187 Atl. 858. However, the admissibility of evidence offered frequently depends upon the evidence already introduced; and it is not unusual for the court[***5] to allude to such evidence to make his meaning clear in order to eliminate possible confusion in the minds of the jury.  Here, the record discloses that the comments of the trial judge were made after the appellant's confession had been admitted in evidence and after the appellant had testified that he shot his parents.  Moreover, the jury was instructed that they were the judges of the law and the facts, and were given the usual instruction as to the burden of proof. A review of the record satisfies us that the actions and statements of the learned trial judge did not prejudice the jury against the appellant so as to deprive him of a fair and impartial trial. Bryant v. State, supra.

   Judgment affirmed. 

MARYLAND COMMITTEE FOR FAIR REPRESENTATION, et al. v. TAWES,GOVERNOR AND BOARD OF STATE CANVASSERS, et al. 
No. 52, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 412; 180 A.2d 656; 1962 Md. LEXIS 466

 April  25, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree dismissing appellants' bill of complaint reversed, and cause remanded for further proceedings in conformity with this opinion; appellants to pay the costs; the mandate of this court to issue forthwith.

CORE TERMS:  election, apportionment, declaration, reapportionment, delegate, declare, duty, voters, Fourteenth Amendment, chancellor, senator, membership, prayer, injunctive relief, suburban, elected, eligible, constitutional convention, political question, demurrer, census, invalid, constitutional amendment, constitutional rights, declaratory relief, enjoin, declaratory, equal protection, general election, elect

COUNSEL: Alfred L. Scanlan, with whom were Johnson Bowie, Michael Paul Smith, Francis X. Gallagher, David MacDonald and John B. Wright on the brief, for appellants.

   James P. Garland, Assistant Attorney General, and Joseph S. Kaufman, Deputy Attorney General, with whom was Thomas B. Finan, Attorney General on the brief, for appellees.

   Brief Amicus Curiae filed by League of Women Voters of Maryland.  John I. Heise, Jr., and Charles A. Horsky on the brief.

JUDGES: The cause was argued on October[***9] 17, 1961, before Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.  The cause was reargued on December 12, 1961, before Brune, C. J., Henderson, Hammond, Prescott, Horney and Marbury, JJ., and Macgill, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.  Prescott, J., delivered the opinion of the Court. Henderson, J., filed the dissenting opinion, in which Horney, J., concurs.

OPINIONBY: PRESCOTT

 OPINION: [*417] [**658] In its entire history, this Court has seldom, if ever, been called upon to decide a case of greater, or more far-reaching, importance than the case at bar.  It involves the composition and proper organization of the State Government itself, and the correlative duties and responsibilities of the coordinate branches thereof.  The problem calls for the best efforts of all three branches of the State Government in order to furnish to the people of Maryland, without the uncertainties of an interregnum and its attendant risk of chaos, an orderly and continuous system of self-government that will not violate any of the provisions of the Maryland or Federal Constitutions.  It needs no citation of authority to state that if any portion of the[***10] system of Maryland's government infringes upon the Federal Constitution, which is the supreme law of our land, it must yield to the provisions of the Federal Constitution.  And if it does infringe upon the Federal Constitution, it is also invalid under our own constitution, which provides:

   "The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, * * * are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to [*418]the contrary notwithstanding." Maryland Declaration of Rights, Article 2.

   We deem it appropriate, at the outset, to say that the questions involved in this case do not bring on a clash between any two branches of our State Government.  We, as members of the Judiciary, are not required to declare any previous action of the Governor or of the Legislature invalid or unlawful.  The foundation question posed is whether Section 2 or Section 5 of Article III of the Maryland Constitution, or both (the sections that apportion the members of the General Assembly), in view of the present[***11] distribution of population in Maryland, constitute an unreasonable, discriminatory dilution of appellants' n1 rights of suffrage (insofar as the 1962 election is concerned), in violation of the Equal Protection clause of the Fourteenth Amendment of the Federal Constitution, which is, of course, the Supreme Law of the entire United States, and specifically made the Supreme [**659] Law of this State by Maryland's Constitution, as pointed out above.

n1 This, of course, refers to the individual appellants.  We shall use the word "appellants" hereafter quite often as referring only to those who are persons.

   The decision of the Supreme Court of the United States in the recent case of Baker v. Carr, 369 U.S. 186, presents problems that must be considered by all three branches of our State Government.  There can be no doubt that the decisions of the Supreme Court construing the Federal Constitution and Acts of Congress pursuant thereto are conclusive and binding, not only upon the state courts, n2 but also upon[***12] all other branches and departments of the Federal and State Governments.  In the Baker case, as in the case at bar, citizens, who were eligible voters, sought declaratory and injunctive relief. They challenged the validity of the Tennessee apportionment statute upon the ground that they were being denied "equal protection of the laws" under the Fourteenth Amendment by virtue of a dilution or debasement of their votes.  The District Court dismissed the action on the grounds that the Court [*419] lacked jurisdiction and the complaint failed to state a claim upon which relief could be granted (there was also an additional ground not here pertinent).  The Supreme Court reversed, holding that the subject matter was within the federal judicial powers as defined in Article III, § 2 of the Federal Constitution, and Congress had assigned original jurisdiction thereof to the District Courts by Section 1343 (3) of 28 U. S. C.  It further held that a justiciable cause of action had been stated upon which the appellants would be entitled to appropriate relief, and the appellants had standing to challenge the apportionment statute.  The Court also noted that it had "no cause at this stage [***13] to doubt the District Court will be able to fashion relief if violations of constitutional rights are found." Indeed, Mr. Justice Clark, who preferred that the case be decided upon its merits, suggested, in a concurring opinion, that the District Court do the apportioning.  369 U.S. at page 251. It is our belief that if any action needs to be taken in order to bring the State's system of legislative apportionment into conformity with the requirements of the Fourteenth Amendment and Article 2 of the Maryland Declaration of Rights, it is preferable from the point of view of responsible self-government that the State's own duly constituted officials and the people themselves undertake the task, rather than leave to the Federal judiciary the delicate and perhaps unwelcome task of doing so.  We take it under Baker v. Carr, supra, that it is clearly a task which the Federal courts would be duty bound to undertake, upon a proper showing of the need therefor. n3 Assuming that the allegations of appellants' bill of complaint are true, this can only be accomplished by action upon the part of the Governor of this State, the Legislature and this Court.  We proceed to consider whether this[***14] can be lawfully done under our present constitution and laws.

n2 This was recognized in this State as early as the decision of the case of Howell v. State, 3 Gill 14.

n3 More will be said of the Baker case later.

   The case reaches this Court upon appeal from a decree of the Circuit Court for Anne Arundel County, as a Court of Equity, which sustained demurrers to appellants' bill of complaint requesting declaratory and injunctive relief, n4 and dismissed the same.

n4 We have pointed out in at least three recent cases that demurrers should rarely be sustained in suits for declaratory relief. Shapiro v. County Comm., 219 Md. 298, 302, 149 A. 2d 396; John B. Robeson v. Gardens, 226 Md. 215, 219, 172 A. 2d 529; Reed v. Pres. of North East, 226 Md. 229, 253, 172 A. 2d 536. The rule concerning the same is stated in Shapiro, supra. The instant case illustrates, as will be seen later, some of the reasons therefor.  Although there seems to be little dispute as to the facts, the most that we can do, under the present posture of the appeal, is to assume the truth of well-pleaded facts for the purposes of the demurrers alone.  Had the actual facts been established, by stipulation or otherwise, much time and expense possibly would have been saved.

[***15]

   [*420] [**660] The bill alleges that the plaintiffs (appellants), with one exception, are residents, taxpayers and eligible voters of the counties of Anne Arundel, Baltimore, Prince George's and Montgomery (hereinafter sometimes referred to as the "four suburban counties"), and the City of Baltimore.  The other appellant, the Maryland Committee for Fair Representation, is an unincorporated private association composed of taxpayers and eligible voters residing in the aforementioned counties and elsewhere in Maryland. n5 The defendants (appellees) are: the Governor of this State, whose duty it is to issue commissions to candidates elected to office in state elections, in conformity with the statements and determinations made by the Board of State Canvassers and delivered to him by the Secretary of State (Code [1957], Article 33, section 143 n6 [b]); the Board of State Canvassers (State Canvassers), whose duty it is to determine and declare, upon the basis of the certified copies of election returns made to them by the city and county canvassers, what persons have been elected to office at any state election, including election to the General Assembly (Section 142 [b]); [***16] the Secretary of State, who is required to record the certified statement and determinations of election delivered to him by the State Canvassers and to transmit a copy of the determinations to the Governor (Section 143 [a]); and [*421] the Board of Election Supervisors of Anne Arundel County.

n5 One of the demurrers challenged the standing of this party, but the chancellor did not decide the question, nor was any argument made thereon in appellees' brief.  We, shall, therefore, assume, without deciding, that the Committee is a proper party.

n6 All future references will be made to the Code (1957), Article 33, unless otherwise noted.

   The bill further alleges (with the allegations supported by Exhibits) that the 1960 population figures, based on the Federal census taken in 1960, show the present total population of Maryland is 3,072,999.  The total combined population of the Counties of Anne Arundel, Baltimore, Montgomery and Prince George's and the City of Baltimore is 2,312,485, which is approximately [***17]76% (percentages hereinafter mentioned are usually approximate ones) of the total 1960 population of the State.  The population of the remaining 19 counties is 760,514, or 24% of the total population.  Yet, under the representation now provided by Sections 2 and 5 of Article III of the Maryland Constitution, the four suburban counties and the six legislative districts of Baltimore City each have one member in the State Senate for a total of 10 out of 29 who comprise that body, or 34% of the total representation in the State Senate; and the said suburban counties and legislative districts of Baltimore have a total of 60 delegates out of a total of 123, who comprise the House of Delegates, or 49% of the total representation in that House.

   Further allegations of the bill assert that the four suburban counties and Baltimore City are the only political subdivisions of the State subjected to under-representation in the General Assembly, and these allegations are supported by plaintiffs' Exhibit D.  This Exhibit shows that when the entire population of the State elects 29 senators, each, population-wise, represents some 106,310 persons of that population.  None of the counties of Maryland [***18]has a population of over 106,310, except the four suburban counties. And, if the composition of the State Senate were based upon the present population alone, the four suburban counties and Baltimore City would be entitled to 22 instead of 10 Senators. The Exhibit shows that in Baltimore County the mean figure of 106,310 persons represents but 22% of its population, and varies upward in the other counties to a peak in Kent County, where the same mean figure represents 692% of its total population.

   The Exhibit discloses a like situation with reference to representation in the House of Delegates (based upon 25,065 of population for each Delegate): all of the [**661] suburban counties [*422] and Baltimore City are subjected to under-representation, varying from minus 3% in Baltimore City to minus 225% in Baltimore County, and all of the other counties enjoy over-representation ranging from 23% over-representation in Harford County to 74% in Somerset County.  For examples, it shows that each of the four Delegates from Dorchester County represents a figure of 7,399 of population, while each of the six Delegates from Baltimore County represents 81,700 of population; and each [***19]of the three Delegates from Talbot County represents 7,173 of population, while each of the six from Prince George's County represents 59,343. 

   The bill also contains allegations that the four suburban counties and Baltimore City contributed for the fiscal year ending in 1959, 84% of the income tax revenue, 73% of the sales and use tax revenue, 83% of the corporation franchise tax and 70% of the revenue obtained from business licenses; and, although the four suburban counties contain 46% of the total motor vehicle registrations in the State, they received back only 12% of the total allocation to the various political subdivisions of the motor vehicle fuel tax.

   The bill further asserts that no legislative relief is available to the appellants, and it points out and specifically names at least eleven bills that were introduced in the General Assembly, during the last ten years, for achieving some reapportionment of or change in the representation now provided in the aforementioned Sections 2 and/or 5 of Article III, and that legislation proposing the call of a constitutional convention was introduced at the 1954, 1955, 1957 and 1960 sessions of the General Assembly.  The bill then states [***20]that all of these reapportionment proposals and the legislation introduced for the purpose of convening a constitutional convention failed of passage because of the opposition of the members of the General Assembly representing the less populous counties.

   The bill also states that under the provisions of Section 2 of Article XIV and Section 9 of Article XVII of the Maryland Constitution a referendum with respect to the question of whether a constitutional convention should be convened was held in the 1950 general election, and the proposal to assemble a convention was approved by a vote of some 200,000 to [*423] 70,000, but bills to make the proposal operative introduced at the next session of the General Assembly were tabled.

   The complaint further asserts that the appellants are suffering irreparable injury as a consequence of the "illegal discrimination in the exercise and effect of their voting rights and the taxation without adequate representation to which they and all eligible voters" of the four suburban counties and Baltimore City are subjected by virtue of the above mentioned Sections 2 and 5, which sections violate their rights of suffrage guaranteed under the Equal [***21]Protection clause.

   The prayers, condensed, are:

   (1) That the court grant a declaratory judgment holding that Sections 2 and/or 5 of Article III of the Maryland Constitution violate the Fourteenth Amendment of the United States Constitution;

   (2) That the court declare that the representation in the General Assembly as now established by said Sections 2 and 5 violates the Civil Rights statutes, i.e., Title 28 U. S. C. 1343 (3) and (4), and Title 42 U. S. C. 1983;

   (3) That the court declare that the General Assembly's failure to reapportion its membership in accordance with a formula which reasonably reflects the present population of the different counties and Baltimore City violates the Equal Protection clause and the said Civil Rights statutes, as well as Article 7 of the Maryland Declaration of Rights;

   (4) That the court declare the General Assembly's failure to convene a constitutional [**662] convention, "as approved in the General Election of 1950," violates Section 2 of Article XIV of the Maryland Constitution as it read in 1950, as well as Articles 1, 7 and 45 of the Declaration of Rights;

   (5) That the Court permanently enjoin the Board of State Canvassers and the [***22]members thereof, as identified herein, from determining, certifying, or in any other way indicating the Board's approval of the election of any candidate to the General Assembly of Maryland in any State election to be held in November 1962 or thereafter (unless such future State election be held on an at large basis), until such time as the General Assembly of Maryland shall have enacted and submitted for a referendum vote by the eligible voters of this [*424]State, an amendment or amendments to Sections 2 and 5, Article III of the Maryland Constitution, which would reapportion, on the basis of present population and in conformity with Section 1 of the Fourteenth Amendment of the United States Constitution, the representation which is allotted to the various counties and the City of Baltimore in the General Assembly of Maryland; (6) That the Court enjoin defendant Tawes from issuing commissions of elections to any candidates for the General Assembly of Maryland in any State election to be held in November 1962, or thereafter (unless such future election be held on an at large basis), until such time as the General Assembly of Maryland shall have taken the action requested in[***23] paragraph (5) of these prayers for relief; (7) That the Court enjoin the Board of Election Supervisors of Anne Arundel County from issuing commissions to any candidates to the General Assembly of Maryland from Anne Arundel County in any state election to be held in November, 1962, or thereafter, unless held on an at large basis, or the General Assembly shall have taken the action requested in prayer (5) above; (8) That the Court retain jurisdiction of the case, require the defendants to pay the costs, and grant such other and further relief as may seem just and proper.

   We shall first determine what we consider the subsidiary questions raised by the appellants.  In regard to prayer (2), Section 1983 of Title 42 U. S. C. provides, in part, that "every person" who subjects, under color of law, custom, etc., any other person to the deprivation of his constitutional rights, privileges, etc., shall be liable to the party injured.  Section 1343 (3) and (4) of Title 28 U. S. C. gives original jurisdiction to the Federal District Courts to redress such deprivations, including equitable relief under any Act of Congress providing for the protection of civil rights.  Clearly, Section 1343 (3) [***24] and (4) has no application at all, since there is no question pertaining to the jurisdiction of a Federal District Court.  Section 1983 of Title 42, U. S. C., though it creates a new liability and affords means for its enforcement and for the enforcement of constitutional and other rights for the protection of which the new cause of action and remedies are given, [*425] does not create the constitutional or other rights for the violation of which it affords a cause of action and remedies.  On the allegations of the bill, we are unable to see any "violation" of Section 1983.  We conclude that there is no basis for a declaration that either of the sections just referred to is violated by the present Maryland legislative apportionment, even if that apportionment should be found to be invalid under the Fourteenth Amendment.

   In view of what we hold below in regard to the other prayers, we deem it unnecessary to consider specifically prayers (3) and (7).  The underlying purpose of these prayers and of the whole bill appears to be to obtain relief for the future.  Insofar as prayer (3) may seek a declaration as to the past, our comments below on prayer (4) are applicable to it also. [***25]

   Prayer (4) asks for a mere declaration that the General Assembly's failure to convene a constitutional convention, as the [**663] result of an election that occurred more than ten years ago, violates certain of the provisions of our Constitution.  It is no more, we think, than a request to answer an abstract question, which, if answered, would serve no useful purpose.  Such action is not included among the purposes of declaratory relief, under our statutes.  1 Anderson, Declaratory Judgments, §§ 3, 222.  The declarations requested in prayers (2) and (4) seem to have been framed with the Federal Declaratory Judgments statute, Title 28 U. S. C. A. § 2201, in mind which, as we read it, seems broader in scope than the Maryland statutes relating to declaratory judgments.

   This brings us to the pivotal questions to be determined.  It will be noted the Court is requested to declare that Sections 2 and/or 5 of Article III (hereafter referred to as Sections 2 and 5) are unconstitutional, and to enjoin certain of the State's officials from certifying the election of candidates, at the election to be held in November 1962, in the absence of some relief from the infringement upon[***26] the appellants' asserted constitutional rights. As we view the appellants' contentions here, their entire thrust is directed to the election of 1962, and the future, and we shall so consider it.

   If Sections 2 and/or 5 are unconstitutional, whose function, duty and obligation is it to declare them to be so?  Section 1 [*426] of Article IV of the Maryland Constitution vests the judicial power of the State in the Judiciary, and this encompasses all the judicial power of the State.  Magruder v. Swann, 25 Md. 173. That the Judiciary is the ultimate authority to determine whether constitutional limitations have been transcended is a proposition that has been so long established and frequently applied it can no longer be seriously challenged.  Chancellor Kent states that in Marbury v. Madison, 1 Cranch 137, "The power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any state legislature, were declared [by Chief Justice Marshall], in an argument approaching to the precision and certainty of a mathematical demonstration." 1 Kent's Commentaries (14th ed.) p. 609.  For two of the cases in which this Court decided whether provisions of the [***27] Maryland Constitution violated the Federal Constitution, see Anderson v. Baker, 23 Md. 531, and Torcaso v. Watkins, 223 Md. 49, 162 A. 2d 438, reversed 367 U.S. 488.

   But it is suggested that although it is the general rule that courts determine questions of constitutional transgressions, this is not so when "political questions," i.e., questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government, are involved; and that the question now being considered is a political one.  We are referred to such cases as Kidd v. McCanless, 292 S. W. 2d 40 (Tenn. 1956), and the cases therein cited.  It is unquestionably true that the courts will not determine purely political questions, but this concessum does not determine whether the question now being considered is a political one.  The question would give us considerable concern, and we would discuss it more thoroughly, were it not for the Supreme Court's decision in Baker v. Carr, supra. In that case, where the facts and issues involved were quite similar[***28] to those in the case at bar, the Court considered, exhaustively, what are, and what are not, "political questions." It specifically considered Kidd v. McCanless, affirmed 352 U.S. 920, which was the forerunner of and involved the same statute in, the Baker case.  No useful purpose would therefore be served if we discuss Kidd elaborately.  The Court, in Baker, [*427] flatly, held that the determination of whether or not a question is political is one for the Court, as the ultimate interpreter of the Constitution.  And it stated: "We understand the District Court to have read the cited cases [those cited by the District Court in 179 F. Supp., at 826, [**664]which included Kidd v. McCanless, 352 U.S. 920] as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a 'political question' and was therefore nonjusticiable.  We hold that this challenge to an apportionment presents no nonjusticiable 'political question'.  The cited cases [which as we noted above included Kidd v. McCanless, supra, 352 U.S. 920] do not hold to the contrary." (Emphasis ours.)

    We may[***29] add that the Supreme Court of Tennessee in Kidd v. McCanless, supra, did not in terms invoke the political question doctrine, but based its refusal of relief on the ground that the declaration sought by the plaintiffs would, under the Tennessee doctrine of de facto officers, leave the State without a legislature.

   Unfortunately, the term "political question" is more a label indicating a result than a guide as to whether or not a particular question is purely political and so non-justiciable.  In Baker v. Carr, supra, the Supreme Court's stated holdings (as we noted above) were (a) that the court [the District Court] possessed jurisdiction of the subject matter; (b) that a justiciable cause of action was stated upon which appellants would be entitled to appropriate relief; and (c) that the appellants had standing to challenge the Tennessee apportionment statutes.  To arrive at holdings (a) and (b) it was necessary for the Supreme Court to determine only questions of Federal jurisdiction and of justiciability under Federal law.  Much of its discussion of prior cases in which the Court had taken the view that the questions therein presented were political, is directed to[***30] a showing that many of these cases involved questions the determination of which was committed to one of the other coordinate branches of the Federal Government.  A number of these involved the provision of the Federal Constitution guaranteeing a republican form of government to each of the [*428] States.  Some few cases involving political questions were described as cases in which problems of relief were controlling, such as Radford v. Gary, 352 U.S. 991 (a per curiam affirmance of the dismissal of a suit by a District Court based upon Colegrove v. Green, 328 U.S. 549, and Kidd v. McCanless, above cited).

   There was no need in Baker v. Carr, supra, for the Supreme Court to pass upon the power of a State court to deal with questions of State legislative apportionment. Since we are bound by our State Constitution as well as by the Constitution of the United States to give effect to the supremacy of the latter, and since we recognize the decisions of the Supreme Court of the United States as binding interpretations of the Constitution of the United States, it seems to follow that the holding of the Supreme Court in Baker v. Carr, supra, that a question such[***31] as the one here presented does present a justiciable question under the Federal Constitution, is controlling here.  Though under the separation of powers rationale for many of the political question cases cited in the Baker case, the courts of this State might be powerless if no Federal constitutional right were involved, the very foundation of the appellants' case is the alleged violation of their rights under the Equal Protection clause of the Fourteenth Amendment to the Federal Constitution (and under Article 2 of our Declaration of Rights).

   That such a case as this is appropriate for consideration by a State court is, we think, implicit in the vacation of the judgment and remand by the Supreme Court of the United States to the Supreme Court of Michigan of the case of Scholle v. Hare, 369 U.S. 429. This is an apportionment case involving the provision of the Michigan Constitution, as amended in 1952, which froze representation in the State Senate on a geographical basis therein fixed by the amendment.  The Michigan Court relied [**665] heavily upon Colegrove v. Green, supra, in reaching its conclusion (360 Mich. 1, 104 N. W. 2d 63). The jurisdiction and the obligation[***32] of State courts to enforce and protect rights created by the Federal Constitution or by Federal statutes is well established, in the absence of any limitation upon State action by Federal statute or by the nature of the [*429] right, provided the subject matter is within the general jurisdiction of the State court in which the right is sought to be enforced.  Claflin v. Houseman, 93 U.S. 130; Robb v. Connolly, 111 U.S. 624, 637; Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1; Mooney v. Holohan, 294 U.S. 103; United States v. Bank of New York & Trust Co., 296 U.S. 463, 479; Testa v. Katt, 330 U.S. 386, 392; Irvin v. Dowd, 359 U.S. 394. The question here would seem to come down to whether there is anything in the Constitution or laws of Maryland to prevent this Court from acting in this case. 

   In a number of cases in other States there have been provisions in the constitutions of those States calling for reapportionment by legislative action. Authority to initiate legislation to conform to such a constitutional requirement is not vested in the courts of those States, yet in a number of instances, courts have acted in such cases and have not considered[***33] themselves barred from doing so by the political question doctrine.  Here, it is alleged that apportionment provisions of our State Constitution impinge upon rights under the Federal Constitution, which are expressly made superior to any conflicting provisions of the State Constitution.  If these allegations are well founded, the invalidity of our apportionment provisions is no less than if we had a constitutional requirement for periodic reapportionment by the Legislature on a basis of population and the Legislature had failed to carry out the mandate.  The duty of our courts to determine the validity of provisions of the State Constitution in the light of the Federal Constitution is, as we have already noted, well established.  As Mr. Justice Brennan pointed out in the Baker case, citing Nixon v. Herndon, 273 U.S. 536, "the mere fact that the suit seeks protection of a political right does not mean it presents a political question." 369 U.S. 209.

   The Supreme Court of our nearby, sister State of New Jersey had a very similar situation to the one at bar presented to it in 1960.  Citizens, who were taxpayers, brought an action seeking a declaration that the 1941 New Jersey [***34]apportionment law then in effect had been rendered unconstitutional by [*430] the 1950 census. The Court held that the Judiciary of that State had the solemn duty to interpret laws in the last resort, and, however, delicate that duty may be, the courts can not surrender, ignore, or waive it, adding that the authority and duty to act when the Court's jurisdiction is invoked in such cases, in the words of Chief Justice Beasley in State v. Rogers, 28 A. 726, 757 (N. J.), is "'so entirely established as not to be debatable.'" There as in the instant case, the argument was made that if the apportionment act were declared unconstitutional, it would create chaos and break down the framework of the State Government.  The Court answered that argument in this manner:

   "There is no doubt, as we have stated, that it is within the competence of the Judiciary to adjudge a reapportionment act violative of the Constitution. Some of the defendants suggest that to do so would be to create chaos or anarchy, because no matter how long the filing of our mandate was withheld to permit the enactment of a curative law, the state government would be completely disrupted if the Legislature did[***35] not act within that time.  Although we agree that if the 1941 act has become unconstitutional, resort could not be had to an apportionment act of an [**666] earlier vintage because any such measure would also be invalid by the same test, we do not believe that the allegedly feared result would ever come about.  A judiciary, conscious of the sacrosanct quality of its oath of office to uphold the Constitution, cannot accept an in terrorem argument based upon the notion that members of a coequal part of the government will not be just as respectful and regardful of the obligations imposed by their similar oath.  Any less faith on our part would be an unbecoming and unwarranted reflection on the Legislature.

   "Concrete examples of justification for such faith are available.  The two State v. Cunningham cases, supra, [State ex rel. Lamb v. Cunningham, 83 Wisc. 90, 53 N. W. 35; State v. Cunningham, 81 Wisc. 440, [*431] 51 N. W. 724.] reveal that on March 22, 1892, the Supreme Court of Wisconsin declared the existing apportionment act invalid. On July 2, 1892 a special legislative session passed a new act.  It, too, was invalidated by the same court on October 7, 1892, but[***36] ten days later, at a second special session, another reapportionment was adopted, and that act validated the notices of election previously issued by the Secretary of State for the November 8, 1892, election."
 
The Court decided it would make no declaration at that time, but it would retain jurisdiction in order to afford the New Jersey Legislature time to consider the adoption of a constitutional reapportionment statute.  Asbury Park Press, Inc. v. Woolley, 161 A. 2d 705, 712, 716. The New Jersey Legislature met, and, in accordance with its duty, enacted a reapportionment bill.

   Also, in Magraw v. Donovan, 163 F. Supp. 184, a three-judge District Court considered, in 1958, the constitutionality of Minnesota's apportionment statute. The Court assumed jurisdiction, stated that, "[i]t is not to be presumed that the Legislature will refuse * * * to comply with its duty under the State Constitution," and that "* * * if there [were] to be a judicial disruption of the [then] present legislative apportionment * * *, it should not take place unless and until it [could] be shown that the Legislature * * * [at its next meeting] advisedly and deliberately failed and[***37] refused to perform its constitutional duty to redistrict the State." The Court then deferred decision in order to afford the Legislature full opportunity to "'heed the constitutional mandate to redistrict,'" but retained jurisdiction with leave to any of the parties, within 60 days after the adjournment of the next session of Minnesota's Legislature, to petition the Court for such action as they deem appropriate. Thereafter, the Minnesota Legislature, in accordance with its duty, enacted a reapportionment bill, and the action was dismissed.

   In Jones v. Freeman, 146 P. 2d 564, 570, the Supreme Court of Oklahoma stated: "It might be well to point out that in 1938, the courts of twenty-two states had exercised the power, [*432] or had stated that they had the power, to review legislative apportionment acts upon constitutional grounds * * *." See also the Annotation in 2 A.L.R. 1337, and Lewis, Legislative Apportionment, 71 Harv. L. Rev. 1057, 1066-1070.

   Section 2 provides, inter alia, that one State Senator shall be elected from each county and each of the six legislative districts of Baltimore City, by the qualified voters of their respective counties and legislative[***38] districts, and they shall serve for four years from the date of their election.

   Section 5 states that the membership of the House of Delegates shall consist of 123 members, and apportions them among the counties and the legislative districts of Baltimore City.

    There is no provision of the Maryland Constitution that expressly provides for reapportioning of the representation in the [**667] General Assembly. n6a Article XIV, Section I provides for amendments to the Constitution generally.  It states, in substance, that the General Assembly may propose amendments, and if passed by three-fifths of all the members elected to each of the Houses, they shall be submitted to the qualified voters of the State for adoption or rejection; and, if it shall appear to the Governor that a majority of the votes cast at said election were cast in favor of the amendments, the Governor shall proclaim said amendments to have been adopted by the people. Section 2 of said Article XIV provides, again in substance, that the General Assembly shall provide by law for taking, at the general election in 1970, and every twenty years thereafter, the sense of the people in regard to the calling of a constitutional[***39] convention and if a convention be assembled each county and legislative district shall be entitled to a number of Delegates thereto equal to its total representation in both Houses at the time of the convention.  Thus, it is seen that if the allegations of the bill of complaint are true, and we must assume them to be true for the purposes of the demurrer, the chances of the appellants' obtaining relief from [*433] the infringement upon their alleged constitutional rights, other than from the courts, is so remote as to be practically nil.

n6a Section 4 of Article III provides for altering the boundaries of the legislative districts in Baltimore City to provide approximately equal population in said districts.

   From what we have said above, we hold that the question now under consideration is not a political one, but one that it is our duty to determine.

   We now arrive at a point where it is proper for us to decide whether the well-pleaded allegations of the bill of complaint, which, as stated above, are admitted[***40] for the purposes of the demurrer, are sufficient to show that appellants' constitutional rights of suffrage are being impaired by what they term "the deliberate, discriminatory and gross dilution of [their] rights of suffrage which has prevailed in Maryland since 1867, and grows worse with each passing year." We could write page after page on the cherished rights of citizens to enjoy free and reasonably equal suffrage, disfranchisement through gross malapportionment and its adverse consequences, n7 and the vigorous criticisms of malapportionment by legal commentators, n8 representatives of the press, n9 and public officials, but, if we did so, it would only be a repetition of what has been said time and time again, and practically all, if not all, of which was considered by the Supreme Court, the ultimate interpreter of the Federal Constitution, in the case of Baker v. Carr, supra. We think the answer to our present question, in the main part, is contained in the decision in that case.

 n7 See for example: Commission on Intergovernmental Relations, A Report to the President, 38-40 (1955); Douglas, Unequal Voting: A Challenge to Democracy, 1 Labor's Economic Review, 88, 89; Baker, Rural v. Urban Political Power, 27, 28; Walter, Reapportionment and Urban Representation, 195 Annals 11, 12.

[***41] 

n8 Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057; Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md. L. Rev. 277; 17 Law & Contemp. Prob. 253-469.

n9 Strout, the Next Election is Already Rigged, Harper's Magazine, November, 1959; The Wall Street Journal, October 17, 1960, p. 1.

   We do not think it possible (or advisable if it were possible) to state a precise, inflexible and intractable formula for constitutional representation in the General Assembly.  The determination in each case must depend upon the facts existent [*434] at the time it is decided.  In Maryland, there is no requirement, constitutional or otherwise, that such representation be based upon a mathematical ratio of population, or of eligible voters, and we do not intimate such a ratio is necessary to meet constitutional requirements. However, even though [**668] the Tennessee Constitution specifically provided that representation in the General Assembly should be apportioned among the counties or districts "according to the number of qualified voters in each," [***42] there is a strong implication in the Baker decision that there must be some reasonable relationship of population, or eligible voters, to representation in the General Assembly, if an apportionment is to escape the label of constitutionally-prohibited invidious discrimination.  The State is, of course, to be allowed every reasonable latitude in such relationship, and any discrimination therein "will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426 (1961). Cf. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489. The representation in the State Senate of Maryland has traditionally been based more upon area and geographical location (one from each county and each legislative district of Baltimore City) than upon the relationship of population, or eligible voters; hence, a greater latitude may be permissible in the relationship of population, or eligible voters, in the State Senate than in the House of Delegates, or possibly some different basis of apportionment of seats might be permissible. n10 Such a question may be presented in the Scholle case.

n10 The apparent analogy between the political subdivisions of the State and the States of the Union, insofar as legislative representation is concerned is not close, though it is not to be overlooked entirely.  It is, perhaps, more relevant since the adoption of the Seventeenth Amendment, which provides for the popular election of Senators, than it was before; but the difference between a mere political subdivision of a State and a State retaining attributes of sovereignty remains very substantial.

[***43]

   History, n11 also, has been recognized as a pertinent consideration [*435]in the making of [**669] a constitutional determination (Frank v. Maryland, 359 U.S. 360); and geography has also been recognized as worthy of some consideration through the protection which it may afford to some segments of the population in matters of electoral concern.  MacDougall v. Green, 335 U.S. 281. [*436] What effect such considerations may have in the light of the remand of the Scholle case and of whatever may be its ultimate disposition, is something which we cannot now determine; nor would the present posture of the case make it appropriate for us to express any definitive opinion with regard to these matters.

n11 Historically, a distinction has been made between the two houses in this State ever since the Constitution of 1776.  Under it, each county was entitled to four delegates, and the City of Annapolis (a part of Anne Arundel County) was entitled to elect two and Baltimore Town (then a part of Baltimore County) was also entitled to elect two (unless its population should decline).  The Senate was selected by electors chosen two per county and one each from Annapolis and Baltimore who then elected six senators from the Eastern Shore and nine from the Western Shore.  Under the Constitution of 1851, each county and the City of Baltimore was entitled to elect one senator, but representation in the House of Delegates was to be generally in proportion to population after the census of 1860, with an initial apportionment varying from two to six members for the several counties.  No county was to have less than two delegates and Baltimore City was always to have four more delegates than the most populous county. Reapportionment was to be made after each national decennial census, and the number of members of the House was to be not less than 65 nor more than 80. Under the Constitution of 1864, each county and each of the three legislative districts in the City of Baltimore was to elect one senator. Representation in the House of Delegates was to be apportioned on the basis of the white population.  Each county was to be entitled to one delegate for each 5,000 persons or fractional portion over one-half thereof up to five delegates, to one additional delegate for the next 20,000 persons or fractional portion over one-half thereof, and above that number to one delegate for every 80,000 persons, or fractional portion thereof above one-half.  Reapportionments were to be made after each national census. An initial apportionment was made of from 2 to 6 members per county or legislative district.  The Constitution of 1867 continued the provision for one senator from each county and from each of the three legislative districts into which the City of Baltimore was divided.  The House was to consist initially of from two to six members from the several counties and of six from each legislative district of Baltimore.  This was to continue until the next national or state census, after which representation was to be as follows: 2 delegates for any county of less than 18,000 population; 3 for each county between 18,000 and 28,000; 4 for each county from 28,000 to 40,000; 5 for each county from 40,000 to 55,000; and 6 but no more, for each county with more than 55,000 population.  Each Baltimore legislative district was to have as many delegates as the most populous county.  Reapportionment was to be made by proclamation of the Governor after each national or any state census. This system continued in force with changes in 1900 to four legislative districts in Baltimore, and in 1922 to six, until 1950, when to check the increasing power of small counties whose representation might still increase long after more populous units had attained their maximums of six each, the membership of the House was frozen at its then total and at the fixed apportionment of members among the State's political subdivisions as it then was -- that is, on the basis of the 1940 census. These provisions were continued without substantial change in the 1956 revision of the Constitution, which did not undertake to make substantial changes.  (No attempt has been made to include all of the Amendments to the Constitution relating to past apportionments of membership.)

[***44]

   The well-pleaded allegations of the bill of complaint, as we have noted above, state that 24% of Maryland's population elect 66% of the State Senators and 51% of the members of her House of Delegates, and, in the present posture of the case, inquiry into the rational basis for such apportionment seems to be called for.  We, therefore, hold that the demurrers should have been overruled, and the chancellor should now receive evidence to determine whether or not an invidious discrimination does exist with respect to representation in either or both houses.

   We turn now to the proper relief to be granted, if Sections 2 and/or 5 are determined to be unconstitutional.  It is suggested that they should not be declared unconstitutional as to the November election of 1962, because this action would be adjudicating future rights.  The courts, ordinarily, will not decide future rights in a declaratory action, but "where the declaration of future rights is bound up with a present necessity of a declaration of the same, and these present rights depend upon such a declaration, then the reason for refusal to grant declaratory relief disappears." 1 Anderson, op. cit., § 231. In the same section, [***45] the learned author states the same principle thus:

   [*437] "After all, however, it should not be overlooked that the true purpose or mission of the Declaratory Judgment Act is to guide parties in their future conduct to avoid useless litigation.  If an actual controversy exists and that controversy is of a justiciable character necessary to meet the demands of the act, the remedy may, and should be invoked, and where it appears clearly that the effect of the determination of the issues raised by a decision in a declaratory action will be to avoid much useless expense and burdensome litigation, and it is clear, likewise, that an actual controversy exists, then the remedy is proper, even though it is granted for future use."
 
See also Heald v. Heald, 56 Md. 300; Devecmon v. Shaw, 70 Md. 219, 16 A. 645; Fleishman v. Bregel, 174 Md. 87, 92, 197 A. 593; Borchard, Declaratory Judgments (1st ed.), §§ 339, 340, 542, 543; and compare Pennington v. Pennington, 70 Md. 418, 17 A. 329. The facts of the instant case bring it within the principles laid down in the above authorities, and the desirability of making a declaration now relative to Sections 2 and 5 as[***46] to the [**670] November 1962, election is, we think, obvious.

    If the chancellor should find and accordingly declare that Sections 2 and/or 5 of Article III of the Constitution of Maryland and all of the previous provisions of the original Constitution of 1867, and amendments thereto, n12 relating to the [*438] apportionment of membership (and only to such apportionment) in the General Assembly, insofar as they apply to the General Election of November, 1962, violate the Equal Protection clause of the Fourteenth Amendment of the Constitution of the United States (and are, therefore, also inconsistent with Article 2 of the Declaration of Rights), it would declare that Sections 2 and/or 5 are null, void and of no effect in regard to said election. n13 The court's declaration should make it clear that the tenure and terms of the present members of the General Assembly are, in no way, affected by such declaration. They have been elected and have qualified as members of the General Assembly, and they are entitled to serve their full terms.  Article III, Section 19, and Article XVII, Sections 1 and 3, Constitution of Maryland.

n12 A reading of the provisions of the original Constitution of 1867 relating to the apportionment of membership in the General Assembly, and all amendments thereto, culminating in the present Sections 2 and 5, show that they are in little, if any, better positions to meet the required tests than the sections as they are now constituted.  Consequently, if we assume without deciding, that if, and when, the present Sections 2 and/or 5 are declared unconstitutional, the former sections would, ordinarily, become operative, they will not do so, because they, too, would be unconstitutional.  Cf.  Scholle v. Hare, 104 N. W. 2d 63, 125 (concurring opinion).

[***47] 

n13 It should be noted that the court is not requested to declare these Sections invalid as of any particular time, but only prospectively as they affect the November, 1962, election. The theory being that, due to the increase and redistribution of population in the State, somewhere along the line they became unconstitutional, and certainly so in reference to the above mentioned election.

   The possibility that an adjudication of the invalidity of Section 2 or Section 5, or both, of Article III might create a total or partial legislative hiatus after the election of 1962, leads us to express some views with regard to procedures which might render action of an equity court going beyond mere declaratory relief unnecessary or inappropriate.

   There is no provision in the Constitution or election laws of this State that permits an "at large" election of the members of the General Assembly, as suggested by the appellants.  Article III, Section 6, of the Constitution provides that Delegates to the House shall be elected by the qualified voters of the counties, or legislative districts, which said Delegates[***48] represent.

    If the Court should declare that Sections 2 and/or 5 are invalid as to the November, 1962, election, it should also declare that the Legislature has the power, if called into Special Session by the Governor and such action be deemed appropriate by it, to enact a bill reapportioning its membership for [*439] purposes of the November, 1962, election. With Sections 2 and/or 5 no longer a part of the Constitution with reference to said election, this necessarily follows, because the powers of the General Assembly of Maryland are plenary, except as limited by constitutional provisions.  McMullen v. Shepherd, 133 Md. 157, 104 A. 424; Brawner v. Supervisors, 141 Md. 586, 119 A. 250; Hennegan v. Geartner, 186 Md. 551, 47 A. 2d 393. For other Maryland cases to the same effect, see 5 M. L. E., Constitutional Law, § 81.  Such a bill might include any provisions relating to the primary elections or to nominations for the general election which might be necessary to effectuate the provisions of the bill.  See Hennegan, just cited.

   A reapportionment Act might take the form of an actual increase or decrease in [**671] the number of seats in either or both[***49] houses of the General Assembly apportioned to the several political subdivisions of the State, or might adjust the number of votes or the fractional votes to be cast by the members so as to achieve the same relative voting strength as if an actual reapportionment of membership (with each member having one vote) were made.  If a reapportionment bill be passed as an Emergency Act, the latter course (leaving the membership in both Houses, numerically, as it now is), probably, would avoid a conflict with Article XVI, Section 2, which prohibits an Emergency Measure from creating or abolishing any office.

   In the circumstances above assumed, namely, that Sections 2 and/or 5 are declared invalid, the decree might also declare that the General Assembly would be empowered to propose a constitutional amendment providing for reapportionment. This presumably would accomplish the same result proportionately between the different subdivisions of the State as that provided for in any reapportionment Act adopted for the 1962 election, and it might include provisions for future reapportionment designed to avoid a recurrence of the present problem.  Since it has been traditional in this State to have [***50]the matter of representation in the General Assembly expressly regulated by the State Constitution, it might be thought desirable to draft any Act dealing with the 1962 election as a stop-gap measure, and to provide in any Constitutional [*440] Amendment that might be proposed a provision confirming and continuing in force the provisions of such an Act after the adoption of the proposed Constitutional Amendment and until the election to be held in 1966.

   Of course, the courts cannot direct the Governor to call the General Assembly into extraordinary session; that is a power the exercise of which lies entirely within his discretion.  Nor can they compel the General Assembly to enact a reapportionment bill.  These are powers that the courts neither possess, nor profess.  But, the courts do have the power and authority to restrain the potency of actions of the coordinate branches of the government (except in regard to purely "political questions") when they transcend constitutional limits.  Watkins v. Watkins, 2 Md. 341; Planning Commission v. Randall, 209 Md. 18, 26, 120 A. 2d 195. And the courts may require, by mandamus, the performance by executive officers of ministerial[***51] duties, and also enjoin them in the performance of such duties. Magruder v. Swann, 25 Md. 173; Brooke v. Widdicombe, 39 Md. 386; Soper v. Jones, 171 Md. 643, 187 A. 833. The issuance of commissions by the Governor to those elected to office has been held by this Court to be ministerial in nature.  Magruder v. Swann; Brooke v. Widdicombe, both supra.

   If the Governor sees fit to call a Special Session of the General Assembly and the General Assembly deems it proper to enact a bill that apportions its membership so as to meet constitutional requirements, the chancellor would be unwarranted in granting injunctive relief. He should, therefore, not enjoin anyone at this time, but he should retain jurisdiction, so that proper injunctive relief can be granted before the November, 1962, election, should the situation at that time call for the same.

   With this disposition of the case, it becomes unnecessary to discuss appellants' arguments concerning alleged violations of the Due Process clause.

   The appellees, who were defendants below, have taken no action that would make it proper to award costs against them in this suit.

   [*441] Because of the urgency of the case, [***52] we think that our mandate should issue forthwith, and it will be so ordered.

   Decree dismissing appellants' bill of complaint reversed, and cause remanded for further proceedings in conformity with this [**672] opinion; appellants to pay the costs; the mandate of this court to issue forthwith.

DISSENTBY: HENDERSON

DISSENT: Henderson, J., filed the following dissenting opinion, in which Horney, J., concurred.

   In Baker v. Carr, 369 U.S. 186, the factual situation was different from that in the instant case.  The Tennessee constitution fixed the maximum number of State Senators and Representatives, and called for a census of qualified voters every ten years and a reapportionment among the several counties and districts in accordance with such enumerations.  In adopting the latest reapportionment Act in 1901, the Tennessee General Assembly chose to rely upon the Federal Census, and departed widely from the constitutional standard of apportionment. Since that date all legislative proposals for reapportionment failed of passage. Meanwhile there was a substantial growth and redistribution of population, causing a considerable disparity in the ratio of representation to population [***53]as between the various counties and districts, and a consequent dilution of the voting strength of the complainants.

   In Maryland, the Constitution itself fixes the exact number of State Senators and Delegates and the counties and districts from which they are each elected. There is no provision in the Maryland Constitution or law that calls for reapportionment. Representation in the Senate has always been based on geographical considerations, and never on population.  In 1776 the Senate was composed of fifteen Senators, nine from the Western Shore and six from the Eastern Shore.  In 1851, each county and the City of Baltimore became entitled to one Senator. The Convention probably followed the pattern of the United States Senate, composed of two [*442] senators from each state.  In 1864, Baltimore City was divided into three districts, and by constitutional amendment in 1922, it became entitled to six.  That is the present arrangement; one Senator from each county and one each from the six districts of Baltimore City. See Md. Const., Art. III, sec. 2.

   In the House of Delegates, population did not become a factor until 1851.  In 1864 and again in 1867, a sliding scale was[***54] adopted fixing the representation by numbers ranging from two to six.  See Md. Const., Art. III, sec. 5.  In 1922, Baltimore City became entitled to 36 Delegates, six from each district.  Due to recent shifts in population Baltimore City's representation is now almost at par.  The four metropolitan counties have suffered.  In 1950, a constitutional amendment, last ratified in 1956, froze the representation on a basis calcalculated to some extent upon the figures of the Federal Census of 1940.  This prevented the small counties from gaining increased representation as their population grew, at the expense of the larger counties and the legislative districts of Baltimore City, whose representation had long since reached the maximum and been frozen at six delegates. The complaint in the instant case is not that the Legislature has failed to obey any constitutional or statutory mandate, but that since 1956 it has repeatedly failed to enact proposals for constitutional amendments to set up a legislative body giving more weight to population than to geography as prescribed in the present Constitution.  The crucial question in this case is whether Maryland courts can or should attempt to[***55] redress the alleged wrong.

   Baker v. Carr, supra, was a civil action brought in the Federal District Court under 42 U. S. C. §§ 1983 and 1988, to redress an alleged deprivation of Federal rights.  It sought a declaration that the 1901 Act of Tennessee was unconstitutional, and an injunction restraining the State Board of Election Supervisors from certifying any further elections under it. n1 It further prayed [**673] that unless and until the General Assembly should enact a valid reapportionment, the District Court [*443] should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae, or direct the appellees to conduct legislative elections, primary and general, at large.  In reversing the three-judge Federal court and remanding the case to the District Court, a plurality of the Supreme Court held that the right asserted was within the reach of judicial protection in the Federal courts under the Fourteenth Amendment. n2 But there was no suggestion as to how the District Court should proceed.  It would appear that the selection of a remedy was left to the ingenuity of the District Court, if and when it should find that the allegations[***56] of the bill were supported by proof of an invidious, and an otherwise irremediable, discrimination.

n1 One point left open in Baker was whether the local Boards of Election were indispensable parties.

n2 It is a somewhat ironic thought that if the Supreme Court had not declined to examine the evidence, on the ground that it was a political question, it would probably have been compelled to hold that the Fourteenth Amendment itself was never validly adopted.  See Coleman v. Miller, 307 U.S. 433, 450.

   If we assume that no valid justification for the present allocation of representation in Maryland can be made, and that no remedial constitutional amendment can pass the Legislature, n3 and relief by the calling of a Constitutional Convention is likewise unavailing, n4 the instant case would seem to fall within the ambit of Baker v. Carr, supra. But there are points of distinction.  If the Tennessee Act of 1901 were stricken down, and the Legislature were recalcitrant, it is conceivable that the District[***57] Court might there order an election to be held and the votes tallied in accordance with the mathematical formulae set out in the Tennessee Constitution. At least, the Court would not have to invent formulae for the purpose.  On the other hand, if the provisions of the Maryland Constitution were stricken down there would remain no guide, standard or constitutional means whereby a legislative body could be [*444] constituted.  Even if the Legislature should then meet and adopt a Constitutional amendment, grave doubts would arise as to their authority to act, even if all of their prior acts were not put in question.  The gravity of this situation has impressed other courts, see Kidd v. McCanless, 292 S. W. 2d 40 (Tenn.) (appeal dismissed 352 U.S. 920), State v. Zimmerman, 23 N. W. 2d 610 (Wis.) and Butcher v. Rice, 153 A. 2d 869 (Pa.), and led them to decline to intervene.  There would also be a serious time lag before the people could vote upon the proposal and new elections could be held under an amendment so adopted. n5

n3 A bill designed to that end failed of passage by only two votes in the recent Legislative session.

[***58] 

n4 The Attorney General argues that the failure to call a Constitutional Convention after the election of 1950 was not due to the recalcitrance of the Legislature or any other State official, but because there was not the requisite number of votes to meet the requirements of the Maryland Constitution, Art. XIV, sec. 2.

n5 It should be noted that the members of the Legislature are elected for four years in Maryland, Art. III, sec. 6.

   I believe it is a basic tenet of the common law, to which the inhabitants of Maryland are entitled under Art. 5 of the Declaration of Rights, that judges do not make law but discover it.  Thus, if a novel point is decided, or an erroneous decision is overruled in those rare instances that are permissible under the rule of stare decisis to which this Court adheres, the decision relates back to the beginning.  Likewise, a decision construing a constitutional provision or statute relates back to the date of its adoption or enactment. It is for this reason that courts seek to find the popular or legislative intention contemporaneous to the adoption or enactment. [***59] It would seem to follow that a present declaration and construction of the Fourteenth Amendment would necessarily relate back to the time of its adoption, and [**674]not merely speak from the date of the declaration. In any event, it would seem that once a declaration is made, no court can suspend the operation and effect of the decision to a later date.  Quite apart from the doctrine of relation back, an adjudication that the present Legislature is unconstitutionally constituted would destroy its power to enact even a proposed amendment to the Maryland Constitution.

   In Griffin v. Illinois, 351 U.S. 12, Mr. Justice Frankfurter, in a concurring opinion, suggested that the decision in that case might be applied prospectively, like a legislative enactment, but apparently the suggestion was not approved by any other member of the Supreme Court.  In the New Jersey case, [*445] cited by the majority in the instant case, apparently the Supreme Court of that State made no declaration but merely retained jurisdiction with the clear intimation that, unless the Legislature should act before a dead line, which it fixed, a declaration would be made.  I know of no Maryland precedent [***60]for such action.

   The statement in the majority opinion in the instant case, that if the provisions of the Maryland Constitution, Art. III, secs. 2 and 5, were stricken down, in whole or in part, the Legislature would possess the power to remedy the situation, I think is gratuitous and unsupportable.  The point is not properly before us under Maryland Rule 885, since it was not raised below, and was never mentioned in the arguments in this Court.  See also Comptroller v. Aerial Products, 210 Md. 627, and Rose v. Paape, 221 Md. 369. In any event, the matter of how the Legislature shall be selected has always been regulated in Maryland by the Constitution itself.  To my mind, no doctrine of plenary or inherent powers can take away a right to deal with a subject matter expressly reserved to the people of this State, and vest it in a legislative body.  Cf. Bennett v. Jackson, 116 N. E. 921 (Ind.).

   The opinion of a majority of the Court in the instant case goes even further. It directs the chancellor, upon proof of the allegations of the bill, to make a declaration striking down the provisions of one or more sections of the Constitution, but at the same time to defer the effectiveness[***61] of the declaration until after the expiration of the terms of office of the present members.  I cannot understand how that can be done.  But if it can, I cannot see how those members could enact legislation reapportioning and reconstituting the General Assembly in the teeth of constitutional provisions that are still in force and effect.  Yet this is required, in addition to the passage of a constitutional amendment, as a condition precedent to the validity of the 1962 elections. The opinion further directs that a clause ratifying the proposed legislative reapportionment be included in the proposed constitutional amendment. It seems to me that this is an advisory opinion to a coordinate branch of the Government which is not a party to the suit, and a declaration in terrorem.

   [*446] I find nothing in the Maryland law to support the proposition that reapportionment is a subject fit for judicial determination or action.  In Art. III, sec. 19, of the Maryland Constitution it is provided that "each House shall be the judge of the qualifications and elections of its members, as prescribed by the Constitution and Laws of the State * * *." This is in line with Art. 8 of the Declaration[***62] of Rights concerning the separation of powers.  This Court cannot require the legislature to take action within the scope of its prerogative, by mandamus or otherwise.  Planning Commission v. Randall, 209 Md. 18, 24; Connor v. Board of Supervisors, 212 Md. 379, 385; Watkins v. Watkins, 2 Md. 341. Cf. Fergus v. Marks, 152 N. E. 557 (Ill.).  Of course, courts cannot compel the people to adopt a new Constitution.  Under Art. I of the Declaration of Rights the people have "at all times the inalienable [**675] right to alter, reform or abolish the form of Government in such manner as they may deem expedient." On the other hand the Legislature itself cannot impose non-judicial duties upon the courts of this State.  Cromwell v. Jackson, 188 Md. 8, 28, and cases cited.  The rule of judicial abstention is wider than the doctrine of separation of powers.  The English and colonial precedents cited by Mr. Justice Frankfurter in his dissenting opinion in Baker v. Carr denied judicial relief, even before the doctrine of separation of powers was enunciated.  The rule of judicial abstention is sometimes based on a lack of jurisdiction, sometimes on judicial policy.

   A declaratory[***63] judgment itself is not mandatory, but is limited to occasions where a declaration will serve a useful purpose or terminate controversy.  Givner v. Cohen, 208 Md. 23, 37. Constitutional questions are not to be dealt with abstractly.  Liberto v. State's Attorney, 223 Md. 356, 360. We have repeatedly held that this Court cannot render advisory opinions.  Hammond v. Lancaster, 194 Md. 462, 471. Whether this court is prevented from deciding moot cases by a lack of jurisdiction or a rule of decision is beside the point. n6 There is little dispute as to the end result.

n6 See Lloyd v. Supervisors of Elections, 206 Md. 36, 43.

   The prayer in the bill wherein it is implied that, as an alternative, [*447]elections at large should be decreed by the court and enforced through the agency of the Board of State Canvassers, set up by Code (1957), Art. 33, sec. 142, seems to me to be untenable.  It has been held that the Board acts in a ministerial capacity only.  Bowling v. Weakley, 181 Md. 496. Clearly, [***64]the Board has no statutory authority to reapportion.  Moreover, Art. III, sec. 9 of the Maryland Constitution specifically requires that Senator and Delegate reside in the county or legislative district which he may be chosen to represent.  It has been held that courts may order an election at large for members of the Federal House of Representatives.  See Brown v. Saunders, 166 S. E. 105 (Va.), and Smiley v. Holm, 285 U.S. 355. But those cases turn on the fact that the Federal Constitution, Art. I, sec. 4, expressly confers upon Congress a power to legislate on the subject and that Congress has enacted legislation providing, in effect, that if the States fail to reapportion so as to equalize votes in Congressional elections according to the constitutional standard, elections shall be at large. n7 There is no equivalent provision as to the members of State legislatures.  Cf. Shriver v. Gray, 276 F. 2d 568 (C. A. 5th). Congress has no constitutional power to legislate on the subject, except interstitially, as in the Federal statutes upon which Baker v. Carr, supra, was based.

n7 See 2 U. S. C. § 4.

[***65]

   The appellants argue that even if we lack the power to enforce a declaration, it would serve a useful purpose.  I venture to disagree.  I think it is not within the realm of judicial propriety to issue a declaration in terrorem.  In the words of Mr. Justice Clark this would amount to "blackjacking the Assembly." Mr. Justice Frankfurter, in his dissenting opinion (p. 62, Footnote 151) said: "Appellants' suggestion that, although no relief may need be given, jurisdiction ought to be retained as a 'spur' to legislative action does not merit discussion." The suggestion was not discussed by any other of the members of the Court, in Baker v. Carr, supra. I assume, therefore, that the decision was predicated upon a finding that the Federal District Court possessed the authority to make a declaration effective, although the means was left to future determination.

   [*448] The argument that convinces a majority of this Court seems to be that because we are obliged to follow the interpretation of the Federal Constitution by the Supreme Court as the Supreme law of the land, we must take some action.  It is true that this [**676] Court is as firmly bound by the decisions of the[***66] Supreme Court as are the Federal courts.  But I venture to doubt that the Supreme Court can confer jurisdiction upon the State courts, even to enforce the Federal Constitution, if they possess no such power under the Constitution and laws of this State.  Cf. Niemotko v. State, 194 Md. 247. In any event, I think the Supreme Court, in Baker, did not purport to deal with the authority of State courts at all.  Nor do I think the remand of the case of Scholle v. Hare, 369 U.S. 429, forecloses the matter.  The remand was for the purpose of allowing the Michigan court to give further consideration to the question presented in the light of Baker v. Carr.  As I understand it, this was not an adjudication that the State court was not free to adopt its own view of the availability of a State remedy.

   In Baker, the Supreme Court held that in an extreme case of disproportion in voting strength the Federal courts can and should "fashion" a judicial remedy. It did not hold that there must be a State remedy.  On the contrary, in the opinion of the court, delivered by Mr. Justice Brennan, he said (pp. 235-237 of 369 U.S.): "* * * in Kidd v. McCanless, 200 Tenn. 273, 292 S. [***67] W. 2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i. e., the state view of de facto officers, and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties.  Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U.S. 920, we cited Anderson, supra, [343 U.S. 912] as well as Colegrove [328 U.S. 549]. Nor does the Tennessee court's decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F. Supp. 184, 177 F. Supp. 803, a state court's inability to grant relief does not bar a federal court's assuming jurisdiction to inquire [*449] into alleged deprivation of Federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U.S. 991, affirming the District Court's refusal to mandamus the Governor to call a session of the legislature, to mandamus the legislature then to apportion, and if they did not comply, [***68]to mandamus the State Supreme Court to do so.  And Matthews v. Handley, 361 U.S. 127, affirmed a refusal to strike down the State's gross income tax statute -- urged on the ground that the legislature was malapportioned -- that had rested on the adequacy of available State legal remedies for suits involving that tax, including challenges to its constitutionality.  Lastly, Colegrove v. Barrett, 330 U.S. 804, in which Mr. Justice Rutledge concurred in this Court's refusal to note the appeal from a dismissal for want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: 'The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction * * * in one case is not precedent in another case where the facts differ.' 329 U.S., at 678, n. 8." Mr. Justice Clark in his concurring opinion also cited the Kidd and Anderson cases as resting upon adequate state grounds to support the State judgments.  It would seem that no member of the Supreme Court, with the possible exception of Mr. Justice Douglas, thought that the Kidd case was overruled, or that the ruling in Baker precluded the State courts from adopting their own[***69] views as to the availability of State remedies.

   Since I find nothing in the prior decisions of this Court that would support the exercise of an equitable remedy under the allegations of the bill, I think the chancellor's dismissal of the bill should be affirmed.  Judge Horney authorizes me to say that he concurs in the views here expressed. 

MASON v. MASON 
No. 239, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 387; 179 A.2d 897; 1962 Md. LEXIS 461

 April  18, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

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

CORE TERMS:  awarding custody, custody, paramour, daughter, awarded custody, adulterous, divorced, adultery, married, fitness, decree, primary consideration, welfare department, minor children, best interest, usual rule, investigator, inflexible, favorably, neighbor, divorce, worthy

COUNSEL: John W. Goff, with whom were John L. Moring, Jr., and Robert J. Callanan on the brief, for appellant.

   Thomas J. Wohlgemuth, with whom were Wohlgemuth & Westcott on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ.

OPINIONBY: PER CURIAM

OPINION: [*388] [**897] A divorced mother, since remarried, appeals from a decree awarding custody of the two minor children of the parties -- a daughter born in 1954 and a son in 1958 -- to their father.  When the couple separated in September, 1960, because of the wife's relations with her music teacher, a married man, the wife went to live with her paramour, taking the children with her.  The husband was later granted a divorce a vinculo on ground of adultery, admitted by the wife.  Temporary custody of the children was awarded the wife, pending a welfare department[***3] investigation.  Thereafter, the wife married the paramour, then also divorced.

   At the divorce trial and at the subsequent custody hearing considerable testimony as to the wife's fitness as a mother was received.  Her mother and a neighbor stated she had been a good mother and the children were happy and well adjusted.  On the other hand, there was testimony that the paramour had often visited the wife before the separation, and that she had [**898] embraced him in an automobile on the street in the daughter's presence; that in the six months after the separation, the daughter had been absent from school fourteen times, often without an excuse, and that the mother failed several times to attend a conference about it; that the mother intended to continue to work part time while her mother cared for the children.  The welfare investigator, while favorably impressed by the mother and the condition of the children when she called, noted a school report as to the unkemptness of the daughter on occasion and her tiredness from watching television late at night (corrected after a conference with the mother), and the report of an aunt of the appellant and a neighbor that the children had[***4] been seen in a filthy condition and left unattended on occasion.  The investigator spoke favorably of the husband's [*389] mother, who planned to live with her son -- a lawyer -- and care for the children.

   As so often pointed out, our primary consideration in cases of this nature is the best interest and welfare of the child.  Bray v. Bray, 225 Md. 476 (1961). The fact that the mother has committed adultery does not constitute an inflexible bar to her being awarded custody, Wood v. Wood, 227 Md. 112 (1961), but she must make a "strong showing" to overcome the usual rule against awarding custody to an adulterous mother.  The fact that she subsequently married her paramour may be considered in determining her fitness but of itself this factor will not be regarded as meeting the requirement of such a showing.  Hild v. Hild , 221 Md. 349 (1960).

   On the record before us, we fail to perceive the "strong showing" necessary to overcome the presumption against awarding custody to an adulterous wife, and it does not appear that the Chancellor's finding that the father is "a person worthy of bringing up these children" is clearly erroneous or that the best interests of the children[***5] would not be served by the award of their custody to him.

   Decree affirmed; costs to be paid by appellee. 

WALDSCHMIDT v. VITO et al. 
No. 237, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 328; 179 A.2d 884; 1962 Md. LEXIS 452

 April  16, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree reversed, with costs, and case remanded for a modification of the decree in accordance with the views here expressed.

CORE TERMS:  fence, chancellor, ingress, egress, gate, decree, beach, issue presented, right of way, waterfront, unlimited, decreed, printed, adjoining landowners, land lying, supplied, relevance, suitable, reserved, erected, slight, shore, print, rear

COUNSEL: Michael Demyan and Thomas J. Wohlgemuth, with whom were Smith, Wohlgemuth & Westcott on the brief, for the appellant.

   Eugene M. Childs, with whom were Childs & Bald and Burton, Heffelfinger, McCarthy & Kendrick on the brief, for the appellees.

JUDGES: Henderson, Hammond, Prescott, Horney and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*329] [**885] In a controversy between adjoining landowners in regard to the use of a right of way over the land between their lots and the waterfront, the chancellor, after hearing, decreed that the complainant, Charles Waldschmidt, "has a right to the use of the land lying between his property and the shore of West River, in common with other[***3] lot owners in the development of Avalon Shores, Inc." He further decreed that the respondents, James Vito and Avalon Shores, Inc., "are hereby ordered to install a suitable gate in the fence running parallel to the rear lot line of the Complainant's property so as to permit a suitable means of egress and ingress to and from the Complainant's lots to the land lying between the Complainant's lots and the shore of West River." The complainant appealed only from the second paragraph of the decree, and there was no cross appeal.  Hence the only question before us is the right of the chancellor to limit access to the use of a gate.
 
   The appellees moved to dismiss the appeal on the ground that the appellant failed to print sufficient testimony to enable this Court to decide the issue presented, in violation of Maryland Rule 831 c 2.  We reserved ruling on the motion, and now rule that the motion be denied.  The testimony printed by the appellee has only slight relevance to the issue presented. The appellant printed enough of the testimony and exhibits to show that Waldschmidt acquired title through mesne conveyances from Avalon Shores, Inc.; that Vito subsequently acquired all the interest[***4] and estate of Avalon Shores, Inc. in [*330]the roads, easements and rights of way, beaches and riparian rights "subject to the rights of ingress and egress by the owners of waterfront lots across the land reserved between their property line and the water"; that Vito erected a wire fence four feet high along the rear line of the appellant's lots, cutting off his access to the beach. The appellant also reproduced a recorded plat, showing the location of the properties, the beach, and certain designated paths between certain of the lots in the development, affording access to the beach. Since the first paragraph of the decree is uncontested on either side, we think the issue can fairly be decided upon the material supplied. The only question is whether, under the terms of the rights reserved by Avalon Shores, Inc., access can properly be limited to a gate.

   We find no justification for the limitation imposed by the chancellor. On its face, the language of the basic grant of [**886] ingress and egress is unlimited, and there is no claim of a prescriptive right of a limited character and extent, as in Bishields v. Campbell, 200 Md. 622, 625, and the cases there cited. [***5] The instant case is quite similar on its facts to Simon Distr. Corp. v. Bay Ridge Civic Ass'n, 207 Md. 472, 480, and we think that case is controlling.  We find it unnecessary to repeat or elaborate upon the careful review of the authorities by Chief Judge Brune in that case.  Indeed, in the Simon case the removable chain was designed to exclude "undesirables", and thus was of some benefit to the community at large.  There is no evidence that the fence in the instant case would serve such a purpose.  We think the chancellor should have decreed that the fence be removed, as prayed in the bill.

   Decree reversed, with costs, and case remanded for a modification of the decree in accordance with the views here expressed. 

CUFFLEY et ux. v. HAMMOND et ux. 
No. 214, September Term, 1961
 
Court of Appeals of Maryland
 
228 Md. 162; 178 A.2d 901; 1962 Md. LEXIS 428

 March  20, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  ejectment suit, plat, rear, equitable, recorded, mortgagee, fronting, front, feet, suit to quiet title, line of demarcation, subject matter, boundary line, dividing line, ejectment, nullity, decree, trees, quiet title, equitable jurisdiction, peaceable possession, color of title, straight line, record title, unfortunately, relitigated, unfounded, frivolous, correctly, mortgaged

COUNSEL: John W. Goff and Joseph J. Blimline, Jr., with whom were I. Winston Mezger, Callanan & Pitcher and Mezger & Mezger on the brief, for the appellants. 

   Morris Turk, with whom was Noah A. Hillman on the brief, for the appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*164] [**901] This is the fourth in a series of suits between the appellants, the Cuffleys, and the appellees, the Hammonds, involving the boundaries of lots in a subdivision known as Magothy Beach in Anne Arundel County.  The first three suits (none of which was[***3] appealed to this Court) were suits in ejectment by the Cuffleys against the Hammonds.  The present suit is a suit to quiet title [**902] brought by the Hammonds against the Cuffleys and others to establish the Hammonds' title to land lying to the east of a line of demarcation between the Cuffley and Hammond tracts established in the first ejectment suit above referred to.  From a decree in favor of the Hammonds the Cuffleys appeal.

   It appears that at the bottom of this series of disputes is what Judge Michaelson spoke of in the first ejectment suit as the "failure [of the developer] to have appropriate surveys made of the lots he sold in this area." The Cuffleys and the Hammonds (and their predecessors) acquired their respective properties by deeds referring simply to numbered lots as shown on a recorded plat of Magothy Beach.  The Cuffleys' nine and the Hammonds' four lots as shown on this plat are at or near the easterly end of a block bounded on the north by First Street, on the west by Creek Boulevard, on the south by Center Street and on the east by Riverside Drive.  The Hammond lots lie to the east of the Cuffley lots.  The Hammonds acquired title to Nos. 1071-1074.  Nos. [***4] 1071 and 1072 front on Center Street; Nos. 1073 and 1074 are to the rear (north) and front on First Street.  Hammond lot 1071 adjoins Cuffley lot 1069, fronting on Center Street, and Hammond lot 1074 adjoins Cuffley lot 1075, fronting on First Street.  Hammond lot 1073 lies to the rear of Hammond lot 1072; Hammond lot 1074 lies to the rear of Cuffley lot 1069.  Each of the Center Street lots has a frontage of twenty feet, as do lots 1075 and 1074 fronting on First Street. Because of the curve of Riverside Drive to the west the northern end of Hammond lot 1073 has a frontage of only ten feet on First Street.  All of the above description of lots is according to the recorded plat of Magothy Beach.

   [*165] Unfortunately, the recorded plat bore little relation to fact, at least insofar as the Hammond lots were concerned, for when the first ejectment suit was decided in 1954 it was found that for the most part these lots lay in the bed of Riverside Drive (then a county road).  Also unfortunately, the Hammonds built improvements on lots belonging to the Cuffleys, as shown by the recorded plat. Apparently for several years no difficulties arose, and a line of trees was accepted by[***5] both the Cuffleys and Hammonds as the dividing line between their properties.  However, when the Hammonds put up a fence in 1953, a dispute did arise, principally, it seems, with regard to the rear (or north) part of the tract.  The Cuffleys then brought their first ejectment suit (in 1953), claiming under their record title, as shown by their deeds and the recorded plat of Magothy Beach.  The Hammonds filed the general issue plea and also a plea upon equitable grounds, based upon estoppel.

   The case was tried before the court without a jury.  During the proceedings testimony was taken and the trial judge, accompanied by counsel for the parties, inspected the premises.  He found, among other things, that there were "several trees on the line which, prior to this dispute, have been regarded as the dividing line between the plaintiffs' front lots and the defendants' front lots, irrespective of the numbers given to the lot concerned".  He determined that the plaintiffs had done nothing wrong, that they had shown good record title to the lots involved, that the defendants had encroached on the plaintiffs' lands and that "in this ejectment suit the plaintiffs have the right to prevail". [***6]After noting that the court might therefore order the removal of the defendants' buildings and the return of the land to the plaintiffs, the judge stated:

   "This result would cause a severe monetary loss to the defendants, and it would also very likely put in jeopardy the titles to all the other lots and improvements situated in this block of lots.  It would throw all these properties out of line if the respective owners should assert their rights to the possession of [*166] their respective lots, as numbered on the Plat of Magothy Beach.  The Court is not willing to go so far in this case.

   Consequently, the Court is of the opinion that the most equitable solution, [**903] based on the acts of the parties and their conduct before this dispute arose, is to determine that the line of trees now on the boundary line between what normally would be Lots Nos. 1070 and 1071, should be the boundary line between the property of the plaintiffs and the property of the defendants fronting on Center Street.  This line, which is 120 feet in length, should then be prolonged in a straight line to the rear, running straight back to First Street.

   This will take away from the defendants[***7] the 20 feet in the rear of what normally is Lot No. 1070 (on the plat), and there will be a straight line running from Center Street to First Street as the dividing line between the properties of the parties."

   The court stated that the removal of a small encroaching building of the defendants would be required unless negotiations for the purchase by the defendants of a small strip could be completed.  (This did not occur.)

   The opinion and order concluded with this disposition of the case: "that a verdict be entered for the plaintiffs for the land claimed in the declaration, subject to the modification set forth in this opinion, with one cent damages and costs." No appeal was taken from this order.  On the contrary, the plaintiffs brought the other two ejectment suits above referred to, basing their claims upon the boundary line as established in the first ejectment suit. They were successful in each suit.

   In 1957 the Cuffleys sold their rear lot or lots to the west of the line of demarcation fixed in the first ejectment suit to third parties, James McClain and wife, and the latter mortgaged the property to a savings and loan association.  The Cuffleys also in 1957 mortgaged[***8] their property to another savings and loan association.  In this suit to quiet title, the Cuffleys and their mortgagee, the McClains and their mortgagee, and [*167] the Board of County Commissioners of Anne Arundel County, as owner of the road (Riverside Drive) as now used and maintained, were joined as parties defendant.  The McClains and their mortgagee filed no answers and took no part in the proceedings, and a decree pro confesso was entered against them.  By subsequent stipulations the Cuffleys' mortgagee and the County Commissioners, in effect, disclaimed interest in the proceedings.  The case thereafter proceeded as between the Hammonds and the Cuffleys, and the only appellants are the Cuffleys. 

   This suit is brought pursuant to Code (1957), Art. 16, § 128, to quiet title in the Hammonds to land lying east of the line of demarcation fixed in 1954 in the first ejectment suit and bounded on its other three sides by Center Street, Riverside Drive and First Street, as actually located and used.  The title which the Hammonds assert is based upon rights determined by the 1954 order of the Circuit Court.  We think that the suit by parties in actual peaceable possession under[***9] color of title claimed by virtue of the 1954 order is properly brought under § 128 of Art. 16.  See Barnes v. Webster, 220 Md. 473, 154 A. 2d 918; Shapiro v. Board of County Comm'rs for Prince George's County, 219 Md. 298, 149 A. 2d 396; Thomas v. Hardisty, 217 Md. 523, 143 A. 2d 618. See also Cherry v. Siegert, 215 Md. 81, 136 A. 2d 754 (a suit instituted prior to the enactment of § 128).

   The Circuit Court for Anne Arundel County had jurisdiction over the subject matter and over the parties to the first ejectment suit. In that case, unlike Dundalk Holding Co. v. Easter, 195 Md. 488 (see p. 494), 73 A. 2d 877, a plea upon equitable grounds was filed, and equitable considerations were therefore not irrelevant -- at least in the absence of a showing that such a plea was wholly unfounded or frivolous. Whether the Circuit Court did or did not decide the ejectment suit correctly and whether or not it exercised its equitable jurisdiction therein properly (see Easter v. Dundalk Holding Co., 199 Md. 303, 86 A. 2d [**904] 404; Dundalk Holding Co. v. Easter, 215 Md. 549, 137 A. 2d 667), are questions which cannot now be relitigated. No appeal was taken in [***10]the first ejectment case, and [*168] it cannot be reviewed on this appeal.  If it were a nullity, it might now be open to collateral attack; but in view of the court's jurisdiction over the parties and the subject matter, we think that its order was not a nullity. The appellants are accordingly bound by the order in the original ejectment suit, whether it was erroneous or not. Christopher v. Sisk, 133 Md. 48, 104 A. 355; Ugast v. La Fontaine, 189 Md. 227, 55 A. 2d 705; Riggs v. Loweree, 189 Md. 437, 56 A. 2d 152.

   Decree affirmed, with costs. 

SILVER AND COOPER, TRUSTEE v. BENSON et al. 
No. 224, September Term, 1961
 
Court of Appeals of Maryland
 
227 Md. 553; 177 A.2d 898; 1962 Md. LEXIS 665

 February  19, 1962, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed March 19, 1962, Denied March 23, 1962.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  mortgage, decree, usury, chancellor, mortgagee, foreclosure proceeding, injunction, moot, deed, Maryland Rule, decree appealed, instituted, mortgagor, mortgaged property, tract of land, defrauded, allowance, bona fide purchaser, invalid, complete jurisdiction, difference of opinion, bona fide transaction, right to compensation, reasonably necessary, questions presented, restraining order, usurious contract, supersedeas bond, failed to comply, appellants filed

COUNSEL: Samuel Cooper and Daniel N. Silver for appellants.

   George W. Della and Hyman Ginsberg, with whom were Ginsberg & Ginsberg on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*555] [**899] Robert C. Benson, eighty-three years of age, his wife and daughter, Kathryn Benson, were the owners of a tract of land laid out in building lots, which they agreed to sell to Twin [*556] Development Company, Inc., for a total price of $28,300.  They received down payments totalling $2,500, and at the settlement on May 13, 1959, received two checks from Thomas P. Burgee, President of the purchasing corporation, drawn on his personal account, one in the sum of $18,300, and the other in a sum to cover an adjustment of rent and taxes.  They executed and delivered a deed to the property, which was subsequently recorded, as was a purchase money mortgage for $[***6] 7,500, representing the balance of the purchase price.  Both checks were returned with the notation "no such account", but the vendors took no immediate action because of Burgee's promises to make good, which he never performed.

   The appellant, Silver, advanced $19,000 to Burgee in exchange for a mortgage of $22,000 which was recorded on August 5, 1959.  Foreclosure proceedings were instituted on October 23, 1959.  Burgee had also purported to convey some of the lots to other parties.  On November 23, 1959, the Bensons filed a bill in equity praying the court to assume jurisdiction over the property, to determine the rights of the various parties, and to determine whether the mortgage to Silver was a bona fide transaction, and "what consideration, if any, passed for said mortgage".  The bill also prayed an injunction to prevent the respondents from selling or encumbering the property, and to prevent Cooper, trustee under the Silver mortgage, from making the foreclosure sale "now scheduled for December 1, 1959." The chancellor signed an order to show cause.  Both Silver and Cooper answered, claiming that the mortgage was bona fide, and for a good consideration.  None of the[***7] other respondents answered, and as to them the bill was taken pro confesso.  The record does not disclose that any injunction was issued, but the scheduled sale was not held, [**900] and apparently the pending foreclosure proceeding was dismissed.

   The record shows that there was an extended hearing on the merits of the case.  On January 13, 1961, the chancellor filed an opinion in which he found as a fact that the checks given by Burgee were known by him to be drawn on non-existing accounts, and that Burgee took improper advantage of his relationship with Miss Benson, in a fraudulent scheme to obtain the property. Hence he declared that the deed should [*557] be set aside, and the title revested in the Bensons.  He found, however, that Silver had advanced money upon the faith of the conveyance and without knowledge of the fraud, that the undisputed evidence showed that there was consideration for the mortgage, $19,000, paid to Burgee and $3,000, "retained as a service and legal fee", and that the mortgage "was a bona fide transaction for a valid consideration." He stated that he would sign a decree setting aside the deed, subject, however, to the legal operation[***8] and effect of the mortgage.

   Apparently, counsel on each side submitted decrees. The form of decree submitted on behalf of Silver and Cooper stated that the mortgage was valid to the extent of $22,000.  The form of decree submitted on behalf of the Bensons declared the mortgage valid only to the extent of $19,000.  This latter form of decree was signed on February 28, 1961, but amended by interlineation dated March 17, 1961, to declare the mortgage valid to the extent of $20,000.

   The appellants then filed a petition, claiming that the decree was contrary to the court's opinion, and alleging that after the date of the filing of the opinion they had instituted a foreclosure proceeding before another judge of the same court.  They prayed a dissolution of the restraining order incorporated in the decree. The court declined to modify its decree, and an appeal to this Court was duly entered.  Thereafter, a decree was passed submitting the matter to an auditor, and his report of the sum due Silver under the prior decree was filed and accepted by the parties.  On the basis of a mortgage indebtedness of $20,000, with interest and allowances for expenditures and rents collected, the amount[***9] due was fixed at $22,087.58.  A decree was signed providing that if said sum was not paid into court before September 5, 1961, the trustees named in the prior decree should proceed with public sale of the mortgaged property. This sum was duly paid into court.  Thereupon, an order was passed discharging the trustees.

   The appellees moved to dismiss the appeal on the ground that the appellants failed to comply with Maryland Rule 828 b.  The appellants deny that they are raising any factual issue, and that it was necessary to print those portions of the record to which the appellees refer.  We think there is at least room [*558]for a difference of opinion as to whether the portions omitted are reasonably necessary for a determination of the legal questions presented. Accordingly, we deny the motion.

   The appellees contend that the case had become moot, because the appellants filed no supersedeas bond, and the money has been paid into court.  The appellants contend that the chancellor had no authority to stay the foreclosure proceeding they instituted after the filing of the opinion, and before the injunction granted in the decree appealed from was issued.  They rely strongly [***10]upon Maryland Rule 1391 g 2 (now Rule W76 b), formerly Code (1957), Art. 66, sec. 16.  This Rule provides that "[a]n injunction to stay any sale, or any proceedings after a sale, of mortgaged property pursuant to this Rule shall not be granted unless the party praying such injunction is also a party to the instrument creating the mortgage lien, or shall claim under such party a right to or interest in the mortgaged property, derived and accruing after the recording of the mortgage." The Rule then sets forth certain conditions precedent:

   "(1) The petition alleges under oath whether petitioner admits any amount [**901]to be due and payable under the mortgage as of the date the petition is filed, and if so the petitioner has paid such amount into court with the filing of the petition, and

   "(2) The petition alleges under oath facts, which shall be set forth in detail, showing that --

   (i) the mortgage debt and all interest due thereon have been fully paid, or

   (ii) there is no default in the mortgage, or

   (iii) some fraud was used by the mortgagee, or with his knowledge, in obtaining the mortgage."

   We think the Rule is inapplicable under the facts in the instant case.  It [***11]seems to be predicated primarily upon a situation where a party seeks to intervene in a pending foreclosure proceeding to enjoin a sale, or proceedings after a sale.  In the instant case there was a pending proceeding to set aside a deed and a mortgage on the ground of fraud, to which the mortgagee was a party.  At the time the mortgagee filed his [*559] foreclosure proceeding the matter had not been finally adjudicated.  True, the chancellor had indicated that the mortgage was not invalid, but he had also indicated that the mortgagor acquired no title to the property, and the deed to it was invalid on grounds of fraud.  It is a familiar doctrine that equity will afford complete relief.  1 Pomeroy, Equity Jurisprudence (5th ed.), § 241; McKeever v. Realty Corp., 183 Md. 216, 224. Particularly in cases of fraud, the equity court may mould its decree to fit the circumstances.  American Sugar-Refining Co. v. Fancher, 40 N. E. 206, 208 (N. Y.).  The appellants were not at liberty to initiate another proceeding before another judge under the circumstances, and their action could not oust the court of complete jurisdiction over the parties before it.  The Rule quoted is[***12] based upon the principle that "he who seeks equity must do equity", Talbott v. Laurel Bldg. Ass'n, 140 Md. 565, 569. Here the shoe is on the other foot.

   We think there is no force in the appellees' contention that the case is moot. The operation of the decree was not stayed by the filing of a bond, but that would not in itself cut off the right of appeal.  The cases where appeals were dismissed as moot are generally cases where the relief has become impossible, as where the property in question has been sold to a bona fide purchaser on the faith of the decree, and not where the parties are still in court and amenable to court orders.  Maddox v. District Supply, Inc., 222 Md. 31, 36 and cases cited.  Moreover, the second point urged by the appellants, that the decree appealed from incorrectly fixed the amount due under the mortgage, is still open.

   The theory upon which the chancellor allowed the mortgage claim to stand only as to the amount actually advanced, plus an allowance of $1,000, for fees or costs incurred, was that the mortgage claim was usurious as to the excess.  The appellant contends that the defense of usury is not available because (1) a corporation cannot[***13] plead usury and (2) there was no proper plea of usury. We find no merit in either contention.  Code (1957), Art. 23, sec. 125 provides: "No corporation shall interpose the defense of usury in any action." It may well be, as the appellants argue, that this same [*560] bar would apply to any persons claiming through or under a corporate mortgagor, or even necessitous incorporators.  See Rabinowich v. Eliasberg, 159 Md. 655, and cases in the note, 63 A.L.R. 2d 924. But that is not the situation in the instant case.  The appellees do not claim through or under the mortgagor, but as the defrauded owners of the property subject to the mortgage. The mortgagee can claim no title to the property, as such, for the title of his grantor has been declared to be a nullity.  Hence, his right to compensation depends solely upon equitable considerations.  [**902] It is not a question of corporate right, or of pleading.

   It is well settled that in circumstances where a deed is set aside for fraud, a mortgagee not a party to the fraud is entitled to the protection afforded a bona fide purchaser by a court of equity, to the extent of his interest.  But as was said in Houston v. Wilcox[***14] , 121 Md. 91, 99, paraphrasing earlier cases, "a Court of Equity will deal with the conveyance sought to be vacated on special terms, and will allow the instrument to stand as security for the money actually paid by the grantee." We find no intimation in the cases that a court of equity would enforce a usurious contract as against an individual setting up a defense in his own right.  Of course, the mortgage is valid as to the amount actually advanced, and that has been duly paid into court.  See Powell v. Hopkins, 38 Md. 1.

   Decree affirmed, with costs. 

HAYMAN, SR., et al. v. ST. MARTIN'S EVANGELICAL LUTHERANCHURCH 
No. 80, September Term, 1961
 
Court of Appeals of Maryland
 
227 Md. 338; 176 A.2d 772; 1962 Md. LEXIS 634

 January  12, 1962, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Motion to dismiss appeal denied; decree affirmed, costs to be paid by appellants.

CORE TERMS:  congregation, church, by-law, charter, withdrawal, synod, withdraw, congregational, mootness, decree, invalid, motion to dismiss, right to control, church property, consolidation, presbyterian, contractual, successor, organic, polity, revert, sacred, voted, articles of incorporation, charter provision, new constitution, local control, future action, ill founded, new charter

COUNSEL: Eugene M. Childs, with whom were Childs & Bald on the brief for appellants.

   Theodore G. Bloom, with whom was Albert J. Goodman on the brief for appellee. 

JUDGES: Brune, C. J., and Henderson, Hammond, [***4] Prescott and Sybert, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*340] [**773] This is a suit for a declaratory judgment, brought by the minority faction of a church congregation split by a schism, to determine which group has the right to church property and to direct the affairs of the church corporation.  The only issues before us on the merits of the controversy are: (1) whether the majority had the right, after a vote in accordance with its by-laws and the provisions of Code (1957), Art. 23, §§ 264 and 265, to withdraw from the "parent" organization, the Evangelical and Reformed Church, and (2) whether the minority or the majority has the right to control the church corporation and its assets after such withdrawal. The Circuit Court resolved these questions in favor of the majority.

    The church involved, now St. Martin's Evangelical Lutheran Church of Annapolis (hereinafter "St. Martin's"), was established in April, 1874, as the German Evangelical Lutheran Church. On June 20, 1874, it filed articles of incorporation, valid for 40 years, in the Circuit Court for Anne Arundel County; and when this charter expired in 1914 the congregation[***5] continued as an unincorporated religious [**774] society affiliated with the German Evangelical Synod of North America.  In 1934 this German Evangelical Synod of North America consolidated [*341] with the Reformed Church and the resulting body became the Evangelical and Reformed Church. St. Martin's continued to be affiliated with this group.  In 1949 St. Martin's was incorporated pursuant to Art. 23, §§ 275-286 Code (1939) and 1947 Supp., now Code (1957), Art. 23, §§ 256-270, and its charter then adopted and by-laws adopted thereunder were in force when the transactions here involved took place.  In 1957 the Evangelical and Reformed Church and the General Council of the Congregational Christian Churches decided to form the United Church of Christ.  An interim governing document, the "Basis of Union", was adopted until a constitution and by-laws were approved (as the appellee states) on July 4, 1961, during the pendency of this appeal.  Both the Basis of Union and the constitution and by-laws later adopted provided that the basic unit was the local church, producing a congregational polity under which each local church had the right to adopt its own charter and by-laws and[***6] control its own property.

   Initially, the congregation of St. Martin's favored the consolidation under the "Basis of Union", and instructed its delegation to vote in favor of it at the Synodical Meeting.  The council of St. Martin's also voted to change the name of the corporation to "St. Martin's United Church of Christ", but this change of name was never filed with the State Tax Commission (or its successor) pursuant to Art. 23, §§ 264(4) and 269, Code (1957).  Upon receipt of a copy of the proposed constitution for the United Church of Christ, the congregation decided to reappraise this decision in light of the doctrines of belief set forth therein.  In March, 1960, a special meeting of the church corporation was convened in accordance with its charter and by-laws and pursuant to Art. 23, §§ 264, 265 Code (1957) to vote on the question whether St. Martin's would become a member of the United Church of Christ.  By a vote of 173 to 34 the congregation decided to sever its relationship with the Evangelical and Reformed Church and thereby to remove itself from the consolidation of that body and the General Council of Congregational Christian Churches into the United Church of Christ, [***7]and to apply for affiliation with the United Lutheran Church. The plaintiff-appellants here represent the thirty-four minority voters who favored [*342] the consolidation. The decree of the Circuit Court ordered the refund of their contributions to a building fund, and there is no cross-appeal by the appellee on that score.

   When St. Martin's was incorporated in 1949 Part I, Art. IV of its by-laws provided:

   "This congregation is, and shall be, a member of the Evangelical and Reformed Church or its successors. Withdrawal from the Church can take place only if two-thirds of the voting numbers of the congregation present at a meeting called for this purpose shall favor such withdrawal."
 
This is the provision under which the March, 1960 meeting was called and the vote to withdraw from the Evangelical and Reformed Church was taken.  It is conceded that all requirements as to notice of and eligibility to vote at that meeting were complied with.  However, appellants contend that Part I, Art. IV of St. Martin's by-laws adopted in 1949 is invalid. Neither these by-laws nor the charter of 1949 were submitted to the Evangelical and Reformed Church for approval and appellants[***8] contend, therefore, that the withdrawal provision was invalid under Part II, Art. 10 of the by-laws of The Evangelical and Reformed Church.

   Art. 10 provides:

   "Whenever a congregation desires to become an incorporated body, a [**775]draft of the proposed Articles of Incorporation and the constitution of the congregation shall be submitted to the Synod, or to the Synodical Council, for approval before the charter is presented to the civil authorities. A charter shall not be approved that does not bind the congregation to be an organic member of the Evangelical and Reformed Church, and to be governed by its constitution and by-laws. In the charter the Consistory or Church Council shall be constituted the trustees of the congregation."

   In addition, appellants claim that the provisions of Part II, Art. 13, of the by-laws of the Evangelical and Reformed [*343] Church which state that the "property of the congregation * * * shall be under the care of the trustees * * * who shall hold the property as a sacred trust for the congregation * * *," and the general law governing parent and local church bodies, gives them the right to the church property because the Synod has[***9] recognized the minority to be the actual church congregation of St. Martin's.

   At the outset we are presented with a motion to dismiss the appeal by the appellee on the ground of mootness. Appellee argues that whatever the validity of the 1949 charter provision for withdrawal under the charter and by-laws provisions of the Evangelical and Reformed Church, the new constitution of the United Churches of Christ provides specifically for local autonomy and local control of property.  Appellee says that even should this court reverse the decree below, all that would occur would be a new vote for withdrawal with the same result as the previous one, which would clearly be allowed by the new charter of the United Church of Christ.  We think the motion is ill founded. Even conceding that appellee's projection of events would turn out to be true, the doctrine of mootness applies to a situation in which past facts and occurrences have produced a situation in which, without any future action, any judgment or decree the court might enter would be without effect.  That, we think, is not the case here; and without laboring the point, we deny the motion to dismiss.

   The appellants have urged before[***10] us, and the appellee has countered, a number of arguments based upon the "implied trust doctrine" (see Zollman, American Church Law, Ch. 7 (1933 ed.)), estoppel, and doctrines relating to the distinction between the presbyterian and congregational forms of church government.  We think, however, that the provisions of the by-laws of the Evangelical and Reformed Church and of St. Martin's and the provisions of Art. 23, §§ 256-270 Code (1957) are sufficient to dispose of this case without reaching some of these broader questions.

   Appellants' first argument is that (1) the polity of the Evangelical and Reformed Church is presbyterian in character [*344] rather than congregational; therefore, the parent body's rules control, and (2) the relationship between congregation and such a parent church is contractual; therefore the provisions of the local church's by-laws fall when inconsistent with those of the parent body.  We think the answer to this argument is contained in the by-laws of the Evangelical and Reformed Church themselves, adopted in 1934.  Part II, Art. 16 thereof provides:
 
"If a congregation or a Synod withdraws from the jurisdiction of the Evangelical and Reformed[***11] Church, the property of said congregation or Synod shall revert to the charge and control of the judicatory immediately above, in the case of a congregation to the Synod, and of a Synod to the General Synod. This paragraph shall not apply, however, to congregations which were not on June 26, 1934, subject to or governed by laws regularly enacted and then in force, providing for such reversion of congregational property, nor shall this paragraph apply [**776] to congregations associated with the Church only through their pastors, if such congregations become members of the Church within ten years after the adoption of the constitution." (Italics ours.)
 
Counsel have stipulated that:

   "The constitution and by-laws of the Evangelical Synod of North America, introduced in evidence as Defendant's Exhibit I, contained no provision either permitting or prohibiting withdrawal of a local church from the synod, or referred in any way to disposition of local church property in the event of such withdrawal."

   In 1934, St. Martin's was a member of the Evangelical Synod of North America, which consolidated with the Reformed Church. This being the case, the exception in[***12] Art. 16 takes St. Martin's out of the provision therein that its property would "revert" to the parent church.

   [*345] We think also that the argument made by the appellants that the by-law provision for withdrawal by St. Martin's adopted in 1949 was invalid because not approved by the Evangelical and Reformed Church is without merit. It is true that Part II, Art. 10 of the by-laws of the Evangelical and Reformed Church, supra, provides that when a congregation decides to incorporate, the proposed charter and by-laws must be approved and that a charter "shall not be approved that does not bind the congregation to be an organic member of the Evangelical and Reformed Church * * *." Whatever the meaning of being an "organic member" is, we think that it must be read together with Part II, Art. 16 of those by-laws, supra.  That article provides that St. Martin's is excepted from its specific provisions that when a congregation withdraws its property reverts to the parent church organization.  The language of Art. 16 clearly contemplates that all congregations may withdraw. It follows that by the very terms of the by-laws, the parent church would have had no basis upon[***13] which to refuse approval of the charter and by-law provisions that St. Martin's adopted under the laws of this state in 1949 because of the possibility of withdrawal without forfeiture of property.  Read otherwise, the "approval" requirement of Art. 10 would render nugatory the express proviso of Art. 16. The mere fact that St. Martin's did not submit its charter for "approval" is, therefore, of no moment at least insofar as the withdrawal provisions are concerned.  Indeed, even if there were no valid 1949 charter, it is difficult to see how the property of St. Martin's would be taken out of the operation of the proviso in Art. 16.

    Our conclusions, we think, are also supported by the provisions of Art. 14, Part II of the By-Laws of the Evangelical and Reformed Church. That article requires approval by the Synod of any proposed union of two or more congregations into a single pastoral charge and any subsequent withdrawal therefrom.  Art. 16, at issue here, requires no such approval for withdrawal of a congregation from the Evangelical and Reformed Church, as the majority in this case did.  The negative inference is quite strong that no approval is needed for action taken under[***14] Art. 16; and, indeed, as we have said [*346] above, a requirement for such approval would be inconsistent with the very terms of Art. 16.

   In short, we find no conflict between the charter and by-laws of the Evangelical and Reformed Church and those of St. Martin's which provide for the withdrawal of the latter body from the former.

   Appellants' second main argument is equally without merit and is, in fact, sufficiently met by what we have already said.  It is quite a leap from the by-law provision, that the property of a local congregation is to be held "in a sacred trust for the congregation" to the view that the minority, therefore, has the right to the property.  It seems clear that the "congregation" means all the persons entitled [**777] to vote at the meetings of the Church. And, as has been stipulated here, there was no infirmity in the notices given for the meeting of March, 1960 and the right to vote thereat.  The congregation duly elected trustees pursuant to Art. 23, § 256, Code (1957); and under § 257 the corporation owns all the property and the corporation is managed by the trustees elected by the congregation. The very terms of the by-laws of the Evangelical [***15]and Reformed Church to the effect that the property is to be held in a sacred trust for the congregation, rather than for worship in accordance with some particular set of doctrines, or in accordance with the Evangelical and Reformed Church's, or its successors', doctrines, seems conclusive of the issue. The fact is, that, as is demonstrated by the discussion of Art. 16 of Part II of the by-laws of the Evangelical and Reformed Church, St. Martin's was in a congregational, rather than a presbyterial, relationship with that body.  When the congregation met in accordance with its validly adopted by-law and the majority voted to withdraw, it instructed the trustees that they were no longer a part of the Evangelical and Reformed Church. The trustees control the church corporation which controls the property.  Code (1957), Art. 23, § 257.  In the absence of evidence to show that any restriction in the deeds to St. Martin's properties prevents such action on the part of the trustees, there can be no valid attack upon the action taken by the congregation. And, as has been seen, even assuming arguendo a "contractual" relation between the parent church [*347]and the local church[***16] in which the parent church is supreme, the by-laws of the Evangelical and Reformed Church do not prohibit the action taken here.

   The appellee has also argued, and Judge Duckett held below, that since St. Martin's is validly incorporated under Art. 23, §§ 256-270, Code (1957), the provisions of its charter and by-laws were superior to those of the Evangelical and Reformed Church. District Grand Lodge No. 5 v. Jedidjah Lodge No. 7, 65 Md. 236, 3 A. 104; Goodman v. Jedidjah Lodge No. 7, 67 Md. 117, 9 A. 13, 13 A. 627. In view of what has already been said, it is unnecessary to discuss this phase of the case.

   Motion to dismiss appeal denied; decree affirmed, costs to be paid by appellants. 

STATE, Use of MIEDZINSKI v. GRAY 
No. 113, September Term, 1961
 
Court of Appeals of Maryland
 
227 Md. 318; 176 A.2d 867; 1962 Md. LEXIS 631

 January  11, 1962, Decided

   SUBSEQUENT HISTORY: [***1]

   Concurring Opinion of Judge Hammond Reported at 98 A.2d 276.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  stenographer, new trial, cured, trooper, deceased, tobacco, recalled, exclusion of evidence, substantial injustice, abuse of discretion, sound discretion, admissibility, incorrectness, correctness, jurors, farm, acre, jury verdict, supplied, nod, grounds of objection, distinctly stated, right to decide, Maryland Rules, expert opinion, wrongful death action, assignments of error, prejudice resulted, compromise verdict, particular witness

COUNSEL: Oliver R. Guyther, with whom was Charles A. Norris on the brief, for appellants.

   James F. Couch, Jr., with whom were Couch, Blackwell & Miller on the brief, for appellee.

JUDGES: Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Sybert, J., delivered the opinion of the Court.

OPINIONBY: SYBERT

OPINION: [*320] [**868] Philip H. Miedzinski, the 16 year old son of the equitable plaintiffs below (appellants here), was struck down and killed by an automobile driven by Matthew Allen Gray (defendant-appellee) while bicycling on a public road in St. Mary's County.  Two actions resulted from the accident. One was a suit by John Edward Miedzinski, as administrator of his son's estate, to recover for pain and suffering endured by the son before his death, and for funeral expenses.  The other was a wrongful death action to the use of both parents for loss of services of the son, who had assisted his parents in the operation of their 180 acre farm until the accident.

   The two actions were tried together before a jury, [***5] which found the appellee liable in both cases.  Complaining that the $500.00 verdict in the second case, for loss of services, was inadequate, the equitable plaintiffs appeal from the judgment in that case, making five contentions which will be stated as the points are considered.

   (1)

   Appellants argue that evidence showing the deceased son had received an acre of tobacco for his work on his parents' farm was erroneously admitted, since no necessary relationship exists between what is actually paid to a minor child by his parents for his services and the value of those services to the parents. They contend that the admission of this evidence prejudiced the minds of the jurors and caused them to return a lower verdict than would otherwise have been the case.

   [*321] Courts are reluctant to disturb verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice. Hance v. State Roads Comm., 221 Md. 164, 156 A. 2d 644 (1959). It would appear that no substantial injustice to appellants resulted from what transpired with respect to the testimony in question.  The record reveals that after the trial court had concluded its instructions, counsel[***6] for appellants called attention to the admission of this evidence over appellants' objection.  The trial court then recalled the jury for the first time, and, in a further instruction, specifically directed the jury to disregard the testimony concerning the payment to the son by the parents for his services, stating that the tobacco was a gift and that parents are entitled to a child's services until he becomes 21 years of age.  Thus, even if it had been erroneous to admit the testimony in question, the error was cured by the reinstruction and no prejudice resulted. Cf. Jimmy's Cab v. Isennock, 225 Md. 1, 169 A. 2d 425 (1961); Gwynn Oak Park v. Becker, 177 Md. 528, 537, 10 A. 2d 625 (1940).

   (2)

   Appellants maintain that the trial court erred in admitting, over objection, the testimony of a State police trooper as to the point of impact between appellee's automobile and the bicycle of the deceased, arguing that such opinion evidence on an ultimate issue in the case was an invasion of the province of the jury.  Its admission, they contend, planted a "terrible doubt" as to liability in the minds of the jury, leading to a compromise verdict.

   The jury's finding for the appellants[***7] on the matter of liability greatly weakens this argument.  Whether the trooper's testimony in fact created any doubt as to liability is a speculation to which no weight can be accorded. Admission of such testimony was in the sound discretion of the trial court, Williams v. Dawidowicz, 209 Md. 77, 120 A. 2d 399 (1956), and we fail to find any abuse of that discretion in this case.  The trooper, as investigating officer, qualified as an expert, Acme Poultry Corp. v. Melville, 188 Md. 365, 53 A. 2d 1 (1947), and, as was said [**869] in Harper v. Higgs, 225 Md. 24, 38, 169 [*322] A. 2d 661 (1961), "* * * an approved test as to the admissibility of expert opinion is whether the jury can receive appreciable help from the particular witness on the subject, not whether the jury can decide the particular issue without expert help.  * * *".  The interpretation of skid and swerve marks and gouges in the road at the site of the accident and their significance in regard to where the impact took place was a proper subject for expert testimony and the trial court's ruling in this respect was not erroneous. Cf. Miller v. Graff, 196 Md. 609, 78 A. 2d 220 (1951).

   (3)

   It[***8] is contended by appellants that a supplemental instruction by the trial court, after the jurors were recalled a second time, was contradictory to prior instructions and erroneous in law.  The contention is based upon a portion of the instruction which allegedly would have permitted the jury to award nominal damages to the appellants for loss of services of their son. Whether the charge constituted error is not properly before us for review since it appears that no meaningful objection was made at the time the instruction was given.

   What actually occurred on the second recall of the jury was later stipulated by both parties, since the court stenographer was not present at the time to take down the proceedings for the record.  Appellants' counsel conceded at oral argument that his objection to the instruction, as it was set out in the stipulation, consisted of his standing up at the conclusion of the instruction, making a motion with his finger to the trial judge, and receiving as acknowledgment a nod from the court, at which point he again sat down, without having made any statement.  Such an "objection" in our view does not meet the requirements of Maryland Rule 554 d and e, which[***9] restricts a party on appeal, in assigning error to the trial court's instructions, to a review only of the particular portions of the instructions, or omissions therefrom, which were objected to and to "the specific grounds of objection distinctly stated at the time; and no other errors or assignments of error in the instructions shall be considered by the Court of Appeals." n1 [*323] (Emphasis supplied.) The "objection" as described failed to comply with the rules and the contention here made may not be reviewed Cf. Belts Wharf v. Internat. Corp., 213 Md. 585, 132A. 2d 588 (1957).  We might add that, as a practical matter, it is entirely possible the trial judge may have believed, when counsel arose, that he desired to object, or to request further instructions, or the like, but that he changed his mind and abandoned any such intention after the judge's nod to proceed with his statement.

n1 Amended Rule 554 e, effective Jan. 1, 1962, omits the word "specific" from the portion quoted.

   (4)

   Appellants[***10] complain that the failure of the court stenographer to be present to record the proceedings when the jurors were recalled a second time and reinstructed deprived appellants of their right to perfect this appeal and have the issues of the case fairly reviewed.  This argument has no force in light of the stipulation setting forth what did transpire, which was agreed to and filed by both parties as part of the record before this Court.  Any possible prejudice to appellants' cause resulting from the stenographer's absence was cured by the stipulation.  Had the stenographer been present it is apparent that the only addition to the record might have been a notation regarding the gesture made by appellants' counsel at the conclusion of the supplemental instruction which, as we have found, had no significance as an objection.

   [**870] (5)

   Appellants' final contention is based upon the trial court's refusal to grant their motion for a new trial on the ground that the verdict was contrary to the evidence, was a compromise verdict, and resulted because the jury was confused by numerous, vague and contradictory instructions.  This Court's views in regard to a claim of excessiveness or inadequacy[***11] of a jury verdict, and the action of the trial court in allowing or refusing a new trial on such a claim, are set out in Leizear v. Butler, 226 Md. 171, 178-180, 172 A. 2d 518 (1961), where the authorities are extensively reviewed.  In that case we recognized the right of the jury to form its own judgment on [*324] the facts which the trial court determines to be legally sufficient, and the right of the trial court, if in its discretion it feels justice requires it, to set aside the jury verdict and grant a new trial, and cited the language of the Court in Balto. & Ohio Railroad Co. v. Brydon, etc., 65 Md. 198, 222, 3 Atl. 306 (1886): "* * * But the functions of this Court are much more limited.  We have no right to decide on the correctness or incorrectness of the verdict of a jury.  We are restricted entirely to the questions of law decided by the Court below.  * * *" (Emphasis supplied.)

   We have found no reversible error, either in the admission of the evidence discussed in the earlier contentions, or in the instructions to the jury which were unexcepted to.  It was within the sound discretion of the trial court to grant or refuse a new trial on the claim that[***12] the verdict was inadequate.  Appellants point to uncontradicted testimony before the jury of the value of the crops which appellants say were lost as a result of their son's death, and also testimony regarding the value of his services to them, as supporting their contention that the refusal of the trial judge to grant their motion was an abuse of discretion. However, there was also testimony of the possibility of the son attending college and the fact that he was then in school which curtailed the amount of work that could be expected of him on the farm. When the record is viewed as a whole we find no abuse of discretion in the trial court's ruling.

   Judgment affirmed, with costs. 

BRADSHAW v. PORTER 
No. 111, September Term, 1961
 
Court of Appeals of Maryland
 
227 Md. 262; 176 A.2d 337; 1961 Md. LEXIS 595

 December  20, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  prayers, orally, boulevard, stop sign, favored, reversible error, greater detail, Maryland Rule, right of way, existing law, preferable, unfavored, instruct, highway, driver, facing, duty, hit

COUNSEL: Ralph C. Boyd for the appellant.

   James L. Wray, with whom were McWilliams & Melvin on the brief, for the appellee.

JUDGES: Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*263] [**337] This appeal is by Robert Bradshaw, plaintiff below, from a judgment entered on a verdict of a jury for the defendant, Mabel Porter, in an automobile case.  The essential issue was whether Mrs. Porter's car came through a stop sign and hit Bradshaw's car on the boulevard or whether Bradshaw turned his car from the boulevard into the unfavored road and hit the Porter car as it stood at the stop sign.

   The ground for appeal is that the trial judge erred in refusing to read to the jury two of Bradshaw's instructions which he had granted.  The court instructed orally that Bradshaw was on the favored highway and that because of the stop sign [*264] facing her Mrs. Porter[***3] had a duty to stop and permit the Bradshaw vehicle to pass, and that if the jury found that she did not yield the right of way and this caused the accident, the verdict should be for Bradshaw.  He advised Bradshaw's counsel that he could read to the jury the prayers the court had granted which set out the rules of the boulevard law in greater detail.
 
   Bradshaw says the court's refusal to read the granted prayers was prejudicial error because the reading of them to the jury by counsel would not carry the weight and impressiveness that a reading by the court would.  We do not agree that there was error.

   In the first place we think the court's oral charge was adequate to present the law controlling the case.  In the second place Maryland Rule 554 permits the procedure the trial judge adopted.  Paragraph a provides that any party may file written prayers with the court.  Paragraph b reads:

   "In its instructions to the jury, which may be given either orally or in writing or both, the court, in its discretion:

   1. Several Methods.

   May instruct the jury upon the law, either by granting requested instructions or by giving instructions of its own on particular issues or on the action as [***4]a whole, or by several or all of these methods, but need not grant any requested instruction if the matter is fairly covered by instructions actually given * * *."

   The quoted part of the rule is identical with its counterpart in predecessor Rule 6 [**338] of the General Rules of Practice and Procedure.  Code (1947 Cum. Supp.), p. 2051.  The Reporter's notes state, at p. 2081:

   "Subsections (a) and (b) (1) are based on existing law and practice but clarify the right to give instructions orally. Written instructions requested by the parties or prepared by the court may still be used, but the court, in its discretion, may give its instructions orally on any issue or on the whole case. While [*265] this right to instruct orally now exists, expressions in some of the cases tend to discourage its use.  In this respect the Rule merely removes any special requirements or restrictions on such oral instructions."
 
Under the "existing law and practice" counsel often read to the jury instructions granted by the court.

   Rule 554 expressly permits the use of written instructions and, although it would seem preferable for the judge either to read the granted prayers as part [***5]of the charge or to incorporate their substance in the charge, we find no reversible error in what was done in the present case.

   Judgment affirmed, with costs. 

BRADY v. STATE 
No. 135, September Term, 1961
 
Court of Appeals of Maryland
 
226 Md. 422; 174 A.2d 167; 1961 Md. LEXIS 408

 October  11, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment reversed and case remanded for the entry of an order not inconsistent with this opinion for a new trial on the question of punishment only.

CORE TERMS:  confession, general rule, accomplice, withholding, killing, third party, admissible, unsigned, collusion, strangling, capital punishment, trustworthiness, murder, robbery, sentence, guile, withheld, actual killing, written confession, material evidence, prejudicial, strangled, modified, first degree murder, unavailability, undisclosed, elected, untrue, Criminal Law, constitutional right

COUNSEL: E. Clinton Bamberger, Jr., with whom was George B. Woelfel on the brief, for the appellant.

   Thomas W. Jamison, III, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*425] [**168] On this appeal from a denial of post conviction relief, the appellant, Brady, contends that he was deprived of a fair trial by reason of the fact that the State did not disclose at or before the trial that it then had in its possession a statement of his accomplice Boblit admitting that he, Boblit, had actually strangled the victim.

   Boblit and Brady were each convicted of first degree murder in separate trials.  Brady elected a jury trial and was tried first; Boblit elected a court trial.  Each[***6] appealed from his conviction and the cases were argued together in this Court, and each of the convictions was affirmed on appeal, sub nom. Boblit v. State, 220 Md. 454, 154 A. 2d 434. It was conceded that Boblit conspired with Brady to rob the victim, Brooks, but each claimed that the other had actually strangled Brooks and that the killing was separate and distinct from the robbery. We held otherwise, pointing out that the robbery was not complete at the time Brooks was killed, although Boblit contended on appeal that he did not actively assist Brady in strangling the victim.  The sole contention raised on behalf of Brady related to the voluntariness of his confession, in which he admitted participation but denied killing Brooks, although, as pointed out in the opinion, he took the stand and admitted virtually everything set forth in his confession. On this appeal, Brady concedes that "[a]t his trial the appellant [Brady] admitted participation [**169] in the robbery in the course of which the homicide occurred." As we held on the original appeals of Boblit and Brady, the killing was clearly in perpetration [*426] of the robbery and hence covered by the statute, [***7] Code (1957), Art. 27, Sec. 410, which defines such a killing as murder in the first degree.

   Brady subsequently filed a motion to set aside the judgment and sentence on the ground that an unsigned statement given to the police by Boblit, of which he claims he had no knowledge until after the affirmance on his appeal, although it was produced at the trial of Boblit, would have corroborated his testimony that Boblit did the actual killing. We dismissed his appeal from the denial of that motion on the ground that his only relief was under the Post Conviction Act, Code (1960 Supp.), Art. 27, Sec. 645A, et seq.  Brady v. State, 222 Md. 442, 160 A. 2d 912.

   Brady then applied for post conviction relief, and his application was denied after a full hearing, his application being on substantially the same grounds. The trial court filed an elaborate opinion holding that there had been no denial of a constitutional right. We granted leave to appeal.

   At the trial of Boblit the State offered the unsigned statement of Boblit in which he admitted strangling the victim.  The court excluded it because it was unsigned. n1 In several prior statements Boblit had stated that Brady did the killing[***8] and so testified on the stand.  These statements were made available to Brady's counsel before trial, but the one in which Boblit said that he had done the actual killing was not so made available.  At the trial of Brady the unsigned statement of Boblit was not produced by the State nor offered in evidence.  This trial, as noted, took place before the trial of Boblit.  The State knew in advance of Brady's trial that Brady's chief reliance was upon the hope that the jury might find him guilty of first degree murder without capital punishment if it believed his testimony that Boblit did the killing. The importance of this consideration was stressed in the case of Day v. State, 196 Md. 384, 391, 76 A. 2d 729. See also United States ex rel. Almeida v. Baldi, 195 F. 2d 815 (3d Cir.), cert. den., 345 U.S. 904; rehearing den., 345 U.S. [*427]946; United States ex rel. Thompson v. Dye, 221 F. 2d 763 (3d. Cir.), cert. den. 350 U.S. 875.

n1 See Hall v. State, 223 Md. 158, 162 A. 2d 751, decided after the trial of Boblit's case and reaching an opposite result.

[***9]

   We think that there was a duty on the State to produce the confession of Boblit that he did the actual strangling or at least to inform counsel for the accused of its existence.  The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process.  See People v. Fisher, 192 N. Y. S. 2d 741, 746 (Ct. Gen. Sess. N. Y. Co.); United States ex rel. Almeida v. Baldi, supra; United States ex rel. Thompson v. Dye, supra; Griffin v. United States, 87 U. S. App. D. C. 172, 183 F. 2d 990. For cases involving the related problem of the prosecution's failing to correct testimony known to be untrue, and holding such failure and the use of such testimony to amount to a denial of due process, see Alcorta v. Texas, 355 U.S. 28; Napue v. Illinois, 360 U.S. 264; People v. Savvides, 1 N. Y. 2d 554, 136 N. E. 2d 853 (non-disclosure and failure to correct untrue testimony as denying a fair trial).  It is nonetheless a denial of due process if the withholding of material evidence is without guile (Griffin v. United States; People v. Savvides; both just cited) but it seems fair to add, that the appellant here does not contend that[***10] failure to produce Boblit's statement in issue was the result of guile.

   [**170] The State contends that Boblit's confession of the actual strangling would not have been admissible at Brady's trial and hence that its being withheld could not have prejudiced Brady's case.  It is true that as a general rule an extrajudicial confession or admission by a third party that he committed the offense for which the defendant is on trial is not admissible. Munshower v. State, 55 Md. 11; Baehr v. State, 136 Md. 128, 110 A. 103; and this has been recognized in Brennan v. State, 151 Md. 265, 134 A. 148, and in Thomas v. State, 186 Md. 446, 47 A. 2d 43. This general rule, which is the majority rule in this country as well as the rule in England, has been severely criticized, notably in Mr. Justice Holmes' brief and pointed dissent in Donnelly v. United States, 228 U.S. 243, at 277-278, and in 5 Wigmore, Evidence (3rd ed.) §§ 1476, 1477, and McCormick, Evidence, § 255.  The A. L. I. Model Code of Evidence, § 509, rejects it.

   [*428] Both the Brennan and the Thomas cases recognized that the rule is not without exception and have limited its operation. [***11] It has also been at least limited, so as not to be an absolute rule, in some other jurisdictions.  Hines v. Commonwealth, 136 Va. 728, 117 S. E. 843; Newberry v. Commonwealth, 191 Va. 445, 460-462, 61 S. E. 2d 318, 325-326 (co-defendant's confession exculpating defendant); Sutter v. Easterly, 354 Mo. 282, 189 S. W. 2d 284; Osborne v. Purdome, 250 S. W. 2d 159 (Mo.), (following the Sutter case after an intervening case in which Sutter had not been applied, State v. Gordon, 356 Mo. 1010, 204 S. W. 2d 713); People v. Lettrich, 413 Ill. 172, 108 N. E. 2d 488; Cameron v. State, 153 Tex. Cr. Rep. 29, 217 S. W. 2d 23. Some cases emphasize the unavailability of the declarant as a witness, and in Newberry v. Commonwealth, supra, his refusal to testify was held to amount to unavailability.

   In Thomas v. State, supra, 186 Md. at 452, Judge Delaplaine, speaking for the Court said: "[W]e hold that where a witness has made a written confession that he committed the crime with which the defendant is charged, the defendant should be allowed to introduce the confession in evidence and question him in regard to the confession and the circumstances under[***12] which he made it.  We further hold that where in a criminal case an officer has secured contradictory confessions from two different persons, the defense should be permitted to question him about both confessions and we further hold that such a confession by a third party is admissible unless it appears that there was some collusion in obtaining it."

   The reasons for the adoption of the general rule and also for the development of exceptions to it or limitations upon it all rest in large measure upon concern for the trustworthiness of the declaration against interest proposed to be offered; and certainly this weighs heavily in the criticisms of the general rule. See the passages in Wigmore and McCormick above referred to, Mr. Justice Holmes' dissent in Donnelly v. United States, supra; People v. Lettrich, supra, 108 N. E. 2d at 491-492; and the Brennan and Thomas cases in this Court. Certainly since the decisions of those cases, the rule [*429] of the Munshower case cannot be said to be of universal application.  We think that Boblit's undisclosed confession might have been usable under any of the three rules stated in Thomas, which we have quoted above, [***13] and hence could not be regarded as inadmissible and unusable in any manner in Brady's defense.

   Brady might have called Boblit as a witness.  If he had testified, the first holding of Thomas would have permitted his cross-examination about that confession. The only difference then would have been that this confession of Boblit's was unsigned and hence not strictly a written confession; but under Hall v. State, 223 Md. 158, 162 A. 2d 751, that difference would not seem controlling.  If, as might well have been the case, Boblit had stood on his privilege and refused to testify, Brady might then have interrogated the police officers who had [**171] taken Boblit's statement; and it seems that there was no collusion as between Boblit and Brady with regard to this confession. Their interests were opposed to the extent that the question of which one did the actual strangling was material, their interrogations were separate and it appears that they had been kept apart.  No reason or inducement for Boblit to take this blame for Brady is apparent.  To what extent a confession or admission of a third party is free of collusion and bears the indicia of trustworthiness is a question[***14] which we think should be entrusted in the first instance to the sound discretion of the trial judge.  Certainly, the "confession" of a crackpot, anonymous or otherwise (and such "confessions" are not uncommon in cases of wide notoriety), would not bear any hallmark of trustworthiness, and would not call for the application of the second or third rules of the Thomas case.

   There is considerable doubt as to how much good Boblit's undisclosed confession would have done Brady if it had been before the jury.  It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting.  We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was [*430] Brady's hands or Boblit's hands that twisted the shirt about the victim's neck.  To apply the words of the Supreme Court of the United States in Griffin v. United States, 336 U.S. 704 at 708-709, quoted by the Court of Appeals of the District of Columbia Circuit in its opinion on remand of the case, above cited (183 F. 2d at 992), it[***15] seems to us (as it did to the Court of Appeals of the District in Griffin) that it would be "too dogmatic" for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.
 
   Not without some doubt, we conclude that the withholding of this particular confession of Boblit's was prejudicial to the defendant Brady.  Having arrived at the conclusions that it was prejudicial and that he was deprived of a constitutional right, we turn to the question of appropriate relief under the Uniform Post Conviction Procedure Act (Code (1960 Cum. Supp.), Art. 27, Secs. 645A-645J).  The section dealing with the kind of relief to be granted is Sec. 645G, which reads in part as follows: "If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings, and any supplementary orders as to * * * retrial, * * * correction of sentence, or other matters that may be necessary and proper." Our own Rule 870 (of the Maryland Rules) provides that this Court will (with exceptions not here pertinent) affirm or reverse the judgment appealed from, or direct[***16] the manner in which it shall be modified, changed or amended.

   The appellant's sole claim of prejudice goes to the punishment imposed.  If Boblit's withheld confession had been before the jury, nothing in it could have reduced the appellant Brady's offense below murder in the first degree.  We, therefore, see no occasion to retry that issue.  Brady is entitled to have a jury empaneled to determine whether the finding already made of guilty of murder in the first degree should or should not be modified by the addition of the words "without capital punishment"; and to that end any admissible evidence bearing on that question should be submitted to the jury which either the State or the defendant may deem it appropriate to present.  This may require to a large extent a duplication [*431] of the evidence submitted at the first trial, and it will permit the defendant to make such use of the withheld Boblit confession as he may desire and as may be appropriate under our decision in this case.  We do not now undertake to pass upon any question of privilege, should [**172]Boblit be called as a witness and should he assert any claim of privilege against testifying.  Should the jury[***17] decline to add the words "without capital punishment", sentence will be for the determination of the court on the basis of the evidence produced on the rehearing.  If the jury should add those words, life imprisonment is mandatory under Code (1957), Art. 27, Sec. 413.

   In accordance with the above views the judgment appealed from is reversed and the case is remanded with instructions to enter an order, not inconsistent with this opinion, for a new trial on the question of punishment only.

   Judgment reversed and case remanded for the entry of an order not inconsistent with this opinion for a new trial on the question of punishment only. 

BRINAND (BRENAN) v. DENZIK 
No. 302, September Term, 1960.
 
Court of Appeals of Maryland
 
226 Md. 287; 173 A.2d 203; 1961 Md. LEXIS 392
 
 August  9, 1961, Decided

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County (DUCKETT, J.).

DISPOSITION: Judgment affirmed, costs to be paid by appellant.

CORE TERMS:  new trial, disability, life expectancy, abuse of discretion, permanent injury, tabulation, clerk, requested instruction, substantial right, preserved, permanent, foreman, jurors, jury to disregard, prejudicial, conscience, mistrial, disputed, declare, habits, closing argument, piece of paper, jury foreman, jury retired, jury list, disclose, notations, arriving, refrain

COUNSEL: James L. Wray, with whom were William J. McWilliams and McWilliams & Melvin on the brief, for appellant.

   George B. Woelfel, for appellee.

JUDGES: The cause was argued before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

OPINIONBY: SYBERT

OPINION: [*288] [**204] SYBERT, J., delivered the opinion of the Court.

   Mary Ellen Denzik, plaintiff-appellee, suffered injury to her back when the automobile she was driving was involved in a collision with an automobile driven by the defendant-appellant, Nannie Brinand.  At the trial of Mrs. Denzik's suit against Miss Brinand the matter of negligence was not in issue, it being conceded by the latter.  The sole question submitted to the jury was the amount of damages due Mrs. Danzik.  The [*289] Denzik.  The jury returned a verdict in the amount[***2] of $7,479.00.  After judgment nisi was entered against her, Miss Brinand filed a timely motion for a new trial which the court denied, directing the entry of final judgment.  Miss Brinand appealed from the judgment. 

    At the trial, Mrs. Denzik testified that prior to the accident she had worked as a clerk-cashier in a grocery store and earned $25.00 a week.  She said she had not been able to work since the accident, though she had tried once.  She was 24 years of age at the time of the accident.  Dr. Landmesser, a specialist in orthopedics, testified that Mrs. Denzik had a permanent injury to her low back, but did not estimate a percentage of disability. He stated that she would not be able to work at any employment which would require repeated bending over and straightening up, or lifting articles, as was true in her prior job, but could engage in other work not involving such activities.  No evidence was offered to prove Mrs. Denzik's life expectancy.

   The only contention of Miss Brinand in this Court is that the trial court erred in denying her motion for a new trial in that it failed to consider a certain piece of paper on which the jury foreman had tabulated the damages.

   The[***3] background of the controversial piece of paper was created by counsel for Mrs. Denzik in his closing argument, after the court's instructions had been given to the jury.  The attorney summed up for the jury the medical findings described by Dr. Landmesser and the actual damages suffered by Mrs. Denzik.  Then, in attempting to suggest a figure for permanent disability, he continued substantially as follows, as described in appellant's brief: n1

n1 Argument of counsel does not appear in the record.  Counsel for appellee did not dispute appellant's version of what he said.

   "Dr. Landmesser has told you that this lady has suffered a permanent injury. He did not state a percentage of disability, but suppose that it was ten percent of her low back, which is not a very large disability. If it was ten percent, and she was making $25.00 a week at the time of the accident, that's [*290] $2.50 a week, or $130 a year.  This girl has a life expectancy of 40 years, so that totals $5,200."

   Counsel for Miss Brinand objected[***4] immediately and the trial judge sustained the objection and instructed counsel for Mrs. Denzik to refrain from such references.  No further argument along these lines was made.  Miss Brinand's counsel made no further issue of the allegedly objectionable remarks.

   After argument of counsel was concluded, the jury retired to consider its verdict, [**205] which it returned in favor of Mrs. Denzik in the amount of $7,479.00.  Thereupon the jurors left the box and the foreman gave the clerk the narr and a copy of the jury list on the back of which appeared the tabulation of damages which gave rise to this appeal.  The figures were not seen by the clerk until after the jurors had gone, the judge had retired and counsel were leaving the courtroom.  Counsel were called back by the clerk to note how the jury had made up their verdict.

   The notations on the back of the jury list read as follows: 

"Auto           600.00

                 67.00
Drs.            150.00
                 85.00
X-ray            57.00
Brace            50.00
Treatments       20.00
             1029.00 Actual Exp.
             1250.00 Salary Loss
               2279.00
             5200.00 - 10% dis. for 40 yrs.
             7479.00 - total

 
 
Favor of Plaintiff
4/22/60
 
/s/ J. IRVING WATERS,
Foreman."[***5] [*291]

   In moving for a new trial Miss Brinand pointed to this paper to support her argument that the verdict as to the amount of damages was against the evidence, and that the only foundation for the jury's specification of "5,200.00 -- 10% dis. for 40 yrs.", which she translates as "$5,200.00 for ten percent permanent partial disability for 40 years", was the allegedly improper closing argument of Mrs. Denzik's counsel.  She attacks as erroneous the refusal of the trial court to grant her motion, grounding her appeal on the court's alleged failure to consider the notations on the paper in ruling on the motion, in light of the fact that there was no evidence of the extent of Mrs. Denzik's disability or of her life expectancy.

   The record itself does not disclose what consideration, if any, the trial judge gave to the paper handed in by the jury foreman. No transcript of the proceedings on hearing of the motion for a new trial was supplied.  However, we think it is fair to assume, since the motion for a new trial was prompted by the existence of the paper, that it was discussed at the hearing of the motion and considered by the court, but found not to have controlling weight. [***6]

   Appellee contends there was no impropriety in the remarks of her counsel. She points out that Dr. Landmesser definitely stated that her injuries had permanent consequences and described how her activities would be limited thereby.  In support of the proposition that where there is evidence of permanent injury and of the age, health and habits of the plaintiff, as here, the jury may take notice of longevity in absence of proof of life expectancy, she cites the following authorities: 25 C.J.S., Damages, § 81, p. 594; 20 Am. Jur., Evidence, § 1215, p. 1066; 17 C.J., Damages, § 331, p. 1036; McCaffrey v. Schwartz, 132 Atl. 810 (Pa. 1926). She urges that her counsel was within the limits of propriety in suggesting a low percentage of disability for a life expectancy claimed to be conservative for a woman of the age, health and habits of the appellee.  However, in view of our disposition of the case, we do not find it necessary to decide the question.

   Even if we assume, without deciding, that the disputed remarks of appellee's counsel were improper, and that the jury were influenced by them, we find a compelling reason why [*292] the appellant is not entitled to[***7] the relief sought.  The record discloses that the appellant did not ask the trial court to declare a mistrial when the remarks were made, and did not then or at any time before the jury retired request the court to instruct the jury to disregard them.  This being so, she has waived her right to object to the verdict.  She has preserved no ground for appeal, and therefore this appeal raises no question of law.  Clearly, if the appellant desired to protect herself against the possibility that the questionable remarks might influence the minds of the jurors, she had only to request the court to give a further instruction [**206]to the jury, fully and clearly advising them that the argument was not based on the evidence, and that therefore they could not base the verdict, or any part of it, on that argument.  If such instruction had been requested and denied, the matter would have been preserved for review on appeal.  Maryland Rules 554 d and e.  As this Court stated in Fox v. Balto. Transit Co., 194 Md. 403, 409, 71 A.2d 470 (1950), "* * * a simple way to preserve a real point of law on appeal is to state it precisely in a prayer or requested instruction. The court need not[***8] in terms grant the requested instruction, but 'if the matter is not fairly covered by instructions actually given' the point can be preserved by objection to failure to give the requested instruction." See also Smith v. Barnhart, 225 Md. 391, 394-395, 170 A.2d 766 (1961); Rephann v. Armstrong, 217 Md. 90, 93, 141 A.2d 525 (1958).

   The appellant's real complaint, of course, is the trial court's failure to grant a new trial. Appellant recognizes the general rule that a motion for a new trial is within the sound discretion of the trial court and its ruling is ordinarily not reviewable on appeal, Cong. School v. Roads Commission, 218 Md. 236, 146 A.2d 558 (1958). She argues, however, that the trial court abused its discretion in denying the motion on the ground that the court's alleged failure to give due weight to the jury's tabulation of damages in reality amounted to a failure to exercise discretion at all, as in Wash., B. & A. R. Co. v. Kimmey, 141 Md. 243, 118 Atl. 648 (1922), where the trial court refused to consider evidence offered in support of a motion for a new trial, and thus, in effect, refused even to entertain the motion. [*293]

   However, we find no[***9] abuse of discretion by the trial court in this regard.  As noted, appellant had the opportunity to protect herself from any possible prejudicial effects of the allegedly improper remarks of counsel for appellee, but failed to do so.  In the absence of any further action by appellant, there was no duty upon the trial court to make further reference to the matter.  We were informed by appellee that in ruling on the motion the trial court did consider the jury's tabulation, but felt that the size of the verdict was not out of line.  The court may have taken into account the fact that, according to the tabulation, no allowance was made for pain and suffering, as to which there was considerable testimony in the record.  As was said in Safeway Trails, Inc. v. Smith, 222 Md. 206, 223, 159 A.2d 823 (1960), it was for the trial judge to determine whether the verdict shocked his conscience, and here (as there) he determined that it did not.

   In State v. Balto. Transit Co., 177 Md. 451, 454, 9 A.2d 753 (1939), it was stated that a ruling on a motion for a new trial is not appealable except where some substantial right is denied, and that "The benefits contemplated by the remedy would[***10] be largely frustrated if the procedure became dependent upon a compliance with artificial and technical pleadings and practice and evidence, which would become questions on appeal; and, so, the aggrieved party is generally entitled to no more than an opportunity to a court and a hearing."

   We are unable to find that denial of the motion for a new trial deprived appellant of any substantial right, or that there was any abuse of discretion on the part of the trial court.  Therefore the judgment will be affirmed.

   Judgment affirmed, costs to be paid by appellant.

DISSENTBY: HORNEY

DISSENT: HORNEY, J., filed the following dissenting opinion:

   I am unable to agree with the majority that the denial of the motion for a new trial did not deprive the appellant of a substantial right. On the contrary I am convinced that denial of the motion under the singular circumstances in this case was [**207] not only prejudicial to the appellant but constituted in law an abuse of discretion on the part of the trial court. [*294]

   It seems clear that the jury -- by its unprecedented itemization of the amount of its verdict -- in effect declared that it had found a verdict either against the evidence, [***11] or against the instructions of the court, or both.  Either reason constituted sufficient ground to support the granting of the motion for a new trial. See 2 Poe, Pleading and Practice (Tiffany ed.), §§ 335-337.

   It is not disputed that counsel for appellee -- though there was no evidence whatsoever as to the percentage of disability his client had suffered or as to her life expectancy other than that she was twenty-four years of age -- in the course of his argument before the jury not only stated what he deemed was the minimum per centum (estimated at 10%) of her disability but also surmised that she would continue to live at least forty more years, and, by resorting to a simple arithmetical computation, categorically informed the jury that his client had had permanent injuries to her back aggregating $5,200.

   While it is true that the trial court promptly sustained the objection of the appellant to the argument and instructed counsel for appellee to refrain from referring to evidence dehors the record, the jury, nevertheless, in arriving at its verdict -- despite the implicit admonition that the remarks of counsel should not be treated as evidence -- allowed the appellee the[***12] exact amount ("10% [disability] for 40 [years"]) that counsel had computed would compensate his client for her permanent injury.

   The fact that the appellee failed to demand that the court declare a mistrial when the remarks were made or to request that the court further instruct the jury to disregard the improper reference to evidence not in the record are beside the point in view of the improper action of the jury.  Nor are we concerned here with the fact that the amount of the verdict did not shock the conscience of the trial court.

   As I see it, since the jury was not at liberty to take the remarks of counsel into account in arriving at the amount of its verdict, the refusal to grant the motion was an abuse of discretion in that it was improper for the lower court to ignore the undisputed fact that the jury of its own volition, over the signature of the foreman, informed the clerk of the court [*295] that it had considered as evidence facts that were not before it.

   I would therefore reverse the judgment and remand the case for a new trial. 

STECHER v. STECHER 
No. 336, September Term, 1960
 
Court of Appeals of Maryland
 
226 Md. 155; 172 A.2d 515; 1961 Md. LEXIS 380

 July  7, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree affirmed, costs to be paid by the appellant.

CORE TERMS:  divorce, marital relation, marital, duty, decree, marriage, irrational, chancellor, Maryland Rule, marital relations, terminated, deserted, severing, alimony, awarding, doctors, woman, sick, mentally incompetent, legally responsible, insanity, violent, permanent alimony, statutory ground, forcible removal, medical advice, unpleasant, forbear, custody, certification

COUNSEL: Julian S. Brewer, Jr., and Norman F. Summers for the appellant.

   John A. Blondell for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*157] [**515] A husband appeals from a decree awarding permanent alimony, without[***4] divorce, to his wife.  Custody of two minor children was awarded temporarily to him, as prayed in his answer, subject to further order of court.  The husband does not challenge the amount of the alimony award but contends that he had just cause for leaving the marital home and severing the marital relation because of the wife's misconduct.

   The parties were married in 1948, and the first years seem to have been happy ones.  The children were born in 1949 and 1951, respectively.  The husband is an electrical [**516] engineer with an adequate salary.  The wife graduated from Teachers' College at Columbia and taught school before the marriage. He was employed at Troy, New York, and in New Jersey prior to his employment in Maryland in 1956 where they purchased a home in Anne Arundel County.  The husband testified that while they were living in New Jersey, the wife became increasingly moody and sought to avoid all social contacts.  This improved after they moved to Maryland, but she soon began to manifest the same propensity.  Early in 1959, she began to exhibit an antagonistic attitude towards him, accompanied by hallucinations concerning steel doors and bars, irrational talk, and[***5] neglect of the house and children.  He testified that he finally realized that his wife was "a sick woman." He testified that in May, 1959, she refused to have further marital relations with him, although she testified they had relations as late as June 11, 1959.  Upon advice of their minister he consulted a psychiatrist and was advised to have her examined by two medical doctors. She refused to see any doctors, but by a ruse he succeeded in his purpose.  Under their certification she was committed to The Sheppard & Enoch Pratt Hospital and forcibly removed thereto in an ambulance on June 12, 1959.  The doctors who examined and treated her there diagnosed her case as paranoid schizophrenia.  His sister took care of the children.  He visited her in the hospital from time to time but was advised that the chances for her complete recovery were slight.

   Some time in October or November, he told the hospital authorities that he had decided to divorce her.  He told them he [*158] was constantly under pressure from her family to have her released and that they blamed him for her condition and for having her committed.  He stated that he could not face the prospect of living with her[***6] again.  He also discussed the matter of divorce with his wife.  On December 12, 1959, "against medical advice", he "signed her out of the hospital".  The hospital records, admitted in evidence by stipulation, show that her condition was noted as "improved", but prognosis "poor".  Members of her family took her to her home, but the husband was not there.  He admitted that he hoped her family would take her to New Jersey and relieve him of her care.  He left a note saying that she should get in touch with his lawyer.  He left a check for "your first week's support." The note concluded with the words "[g]oodbye, good luck." He never returned.  The children continued to live with his sister.

   The record shows clearly that the husband intended to sever the marital relation permanently.  Cf. Provenza v. Provenza, 226 Md. 63. The question is whether he was legally justified in leaving.  The test laid down in the cases is whether her conduct was such as to put him in fear of his life or to render it impossible for him to continue the marital cohabitation with health, safety and self-respect.  Smith v. Smith, 225 Md. 282, 287.

   The appellant relies strongly upon the case of Kruse [***7]  v. Kruse, 179 Md. 657, for the proposition that she was legally responsible for her conduct even though it may have been caused by mental derangement or disease, short of insanity. Although in that case there was evidence of irrational actions difficult to reconcile with sane control, the chancellor found that she was not mentally incompetent but had full mental responsibility.  Chief Judge Bond, for this Court, said (p. 664): "There was unquestionably a lack of control, but the law does not undertake to distinguish among the various degrees of lack of control [short] of insanity, and select those which prevent a divorce and those which do not." See also 1 Nelson, Divorce and Annulment (2d ed.) § 4.21 and 9.06; Note, 19 A.L.R. 2d 144, 173; Dochelli v. Dochelli, 6 A. 2d 324 (Conn.).  But see Fawcett v. Fawcett, 48 A. 2d 23 (Pa. Super.), Stewart v. Stewart, 90 A. 2d 402 (Pa. Super.), and [*159] Bolson v. Bolson, 11 P. 2d 23 [**517] (Dist. Ct. Cal.).  Judge Bond relied upon the earlier case of Lynch v. Lynch, 33 Md. 328, for the proposition that violent, outrageous conduct, rendering impossible the proper discharge of the duties of married life, [***8]amounted to cruelty of treatment and furnished ground for a divorce a mensa to a husband who deserted the home.  But there was no proof of mental disease in that case.

   On the other hand, in Ritz v. Ritz, 188 Md. 336, 343, the Kruse case was distinguished on the facts, and it was held that the husband was not justified in leaving the wife because her reprehensible conduct, caused by a mental disturbance for which she had once been committed to The Sheppard & Enoch Pratt Hospital, did not sufficiently endanger his life and health as to justify his leaving her.  See also Sause v. Sause, 192 Md. 88, 93. Marriage imposes a duty to bear and forbear and to cherish in sickness and in health.  It is not to be terminated for light causes or merely because of a desire to escape from an unpleasant and unhappy environment.

   In the instant case it appears to be conceded that the appellee was not, and is not, mentally incompetent in a strict legal sense.  She was able to testify in open court.  We assume, without deciding, therefore, that she is legally responsible for her actions.  Although there is no opinion in the record -- and apparently no memorandum of the grounds for the[***9] court's decision was requested under Maryland Rule 18 c -- the decree awarding alimony without divorce, which is in effect a separate maintenance, imports a finding that the husband deserted without just cause, as alleged in the bill.  Alimony cannot be awarded except upon proof of a statutory ground. Provenza v. Provenza, supra, and cases cited.  If the husband was justified in leaving because of her conduct, he could not be charged with her support in the absence of agreement. The finding of the chancellor, who saw and heard the witnesses, must stand unless clearly wrong.  Maryland Rule 886 a.

   In Kruse v. Kruse, supra, the wife's conduct was described as violent and outrageous.  She made a number of serious assaults upon her husband, broadcast to the neighbors her suspicions and complaints, and even invaded his place of employment [*160] and complained to his superiors about his immoral relations with women at work there.  Yet there was testimony that she could not be considered a seriously sick woman from a psychiatric point of view.  In the instant case the wife withdrew into herself and avoided social contacts.  There is little evidence of violence and none at[***10] all as to interference with his business.  The only evidence of jealousy is his statement that she charged him privately with being enamored of screen actresses.  His testimony as to a refusal of marital relations is uncorroborated and denied.

   The most serious charge that can be brought against her is that she neglected her household duties and the children, whom she kept out of school just prior to the final episode.  This fact, plus the evidence of irrational and typically paranoidal statements, fully justified the husband in taking steps to have her committed.  He recognized that she was "a sick woman".  Obviously, the situation had reached a crisis.  However, as suggested in the report of the Director of Welfare to the court in the matter of custody, the husband did not explain to the children that their mother was ill and perhaps was at fault in permitting them to witness her forcible removal from the home.  No doubt the husband and children had a painful experience.  He testified that worry caused him to lose forty pounds.  However, much of his subsequent discomfort seems to have been due to the pressure from, and extravagant accusations of, her family, who seemed to believe[***11] that she was not ill and that if she was, he was the cause of it all.  The wife cannot be chargeable with their conduct, nor can the husband rely upon her absence from the home after commitment.  The case turns upon her prior conduct, and under [**518] all the circumstances we are not satisfied that the chancellor was clearly in error in his finding of fact and therefore affirm the decree.

   Decree affirmed, costs to be paid by the appellant. 

McKENNA et ux. v. SACHSE, Executor, et al.  (Two Appeals InOne Record) 
No. 306, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 595; 171 A.2d 732; 1961 Md. LEXIS 695

 June  14, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree reversed and decree for $9,695.02 entered in favor of John J. and Mary R. McKenna against Mary P. Barattini and George Sachse, executor of Louis M. Barattini as of the date of the decree appealed from; appellants shall pay one-fourth of the costs, and appellees three-fourths of the costs.

CORE TERMS:  mortgage, decree, mortgagee, mortgagor, executor, foreclosure sale, foreclosure, personam, purchaser, deficiency decree, confirmation, purchase price, resale, auditor, bought, final determination, fair price, inadequacy of price, covenants, lessened, broker, ratification, chancellor, resold, deed, real estate broker, foreclosure proceedings, mortgaged property, absence of fraud, second mortgage

COUNSEL: R. Cresap Davis, with whom was Louis M. Strauss on the brief, for appellants and cross-appellees.

   C. Maurice Weidemeyer for Mary P. Barattini, one of the appellees and cross-appellants.

   Marvin I. Anderson for George Sachse, Executor of the Estate of Louis M. Barattini, the other appellee and cross-appellant.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*597] [**733] Mortgagees sought a decree in personam for $11,195.02, the deficiency shown in the auditor's account after foreclosure. They had bought in the property and resold it several months later at a $9,000 profit.  The chancellor charged them with half of this profit and with $1,500, the sum the mortgagors had paid on a deficiency after foreclosure of another mortgage they had made and the mortgagees had assumed, and entered a decree in personam for $5,195.00 (the two cents seem to have been overlooked).  The mortgagees appealed.

   In 1955 Louis and[***5] Mary Barattini bought from John and Mary McKenna a house at Bay Ridge in Anne Arundel [*598] County at a price of $50,000. The purchase price was paid with $22,500 lent by a building association on a first mortgage, plus a $15,000 second mortgage from the Barattinis to the McKennas and the conveyance to the McKennas by the Barattinis of two properties, in which the Barattinis had an agreed upon equity of $12,500.

   Mr. Barattini died in late 1955, a few months after the purchase of the Bay Ridge house.  In May 1957 the McKennas foreclosed their $15,000 second mortgage and bought in the property at the sale on June 10, 1957, for $4,642.28, subject to the first mortgage balance of $19,357.72.  An order nisi was passed on June 19, a certificate of publication was filed on July 17 and a final order of ratification was signed on July 23.  The same procedure was followed as to the report and account of the court auditor, the final order of ratification being signed on October 16, 1957.  No exceptions were filed to ratification of either the sale or the auditor's account.

   On October 24, 1957, the McKennas filed a petition seeking a decree in personam against Mrs. Barattini and[***6] the executor of Mr. Barattini for the $11,195.02 deficiency shown in the auditor's account.  An answer was filed by Mrs. Barattini and Mr. Barattini's executor, which alleged (a) that the McKennas had bought in the property for $24,500 and resold it for $33,000 and had not suffered a loss as they had alleged; (b) that John McKenna, acting as a real estate broker pretended to be diligently trying to sell the property for Mrs. Barattini while, actually, he was hindering a sale; (c) that the Barattinis, as part of the purchase price of the Bay Ridge property, had conveyed to the McKennas certain lots on which they had previously given a mortgage of $19,000 to one Mary Porter, which the McKennas had assumed, on which foreclosure was threatened and a deficiency liability loomed so that it would be inequitable to grant the decree in personam under the circumstances.

   No action transpired on the petition, and on February 25, 1960, Mrs. Barattini and her husband's executor filed a supplemental answer and cross claim, alleging (1) that the court was without jurisdiction to enter a decree against the executor [*599] because (a) an action at law would not lie; (b) the executor was not[***7] a party to the foreclosure proceedings; (c) the McKennas are estopped to claim a deficiency; and (2) that since the original answer the Porter mortgage had been foreclosed with a resulting deficiency of $2,662.03, which had been demanded of them and had been compromised by the payment of $1,500 which the answerers prayed the McKennas should be required to pay to them.  A demurrer and answer were filed by the McKennas which said that the cross claim was not permissible and the matter was res judicata.  The basis [**734] for reliance on res judicata is not specified in the demurrer and answer but the record shows that Mrs. Barattini and the executor had impleaded the McKennas in the Porter foreclosure in an effort to require them to pay the deficiency to Mrs. Porter or to the Barattinis, and that no action was ever taken by the court after it had ordered the McKennas made parties, presumably because of the compromise settlement by the Barattinis with Mrs. Porter.

   We think the chancellor had no right to reduce the deficiency by half the amount of the profit the McKennas made on the resale of the Bay Ridge house. Whatever may be the rule in other states, by statute or judicial[***8] decision, ameliorating the obligations of a mortgagor to pay a deficiency when the mortgagee buys in the property at foreclosure sale, the Maryland rule is clear and fixed.  In the absence of fraud or breach of actual trust, "it is also well established that since the confirmation of a foreclosure sale is the final determination by the court that the mortgaged property was sold at a fair price, the defense of inadequacy of price can not be raised in subsequent proceedings, and for the purpose of a deficiency decree the price obtained at the sale is conclusive on the question of the market value of the property." Walton v. Washington County Hospital Ass'n, 178 Md. 446, 451. It is also well established that the rights of a mortgagee to a deficiency decree are not lessened because he was the purchaser of the property at the foreclosure sale. Pennsylvania Avenue Federal Savings & Loan Ass'n v. Fedder, 175 Md. 127, 134; Bletzer v. Cooksey, 154 Md. 568, 570; Kirsner v. Cohen, 171 Md. 687, 691; [*600] Windsor Construction Corp. v. Kolker, 180 Md. 113, 119 (in the Kirsner and Windsor cases, although the opinion does not, the record shows that the mortgagees[***9] were the purchasers).  See also Cronin v. Gager-Crawford Co. (Conn.), 25 A. 2d 652. It follows that the mortgagee-purchaser is not required to account to the mortgagor for a profit made upon a resale of the property.  Pennsylvania Avenue Federal Savings & Loan Ass'n v. Fedder, and Walton v. Washington County Hospital Ass'n, both supra; annotation in 117 A. L. R. 863; McKnight v. United States, 259 F. 2d 540, 544.

   Mrs. Barattini testified that she knew of the sale and asked her lawyer to attend.  It can hardly be doubted that her husband's executor, in addition to the constructive notice afforded by publication, actually knew of the foreclosure. He does not allege or claim that he did not.  If they were available at this stage as supports to the case of the Barattinis, neither inadequacy of price nor unfairness or impropriety at the foreclosure sale are alleged or shown.  The real reliance is on Mr. McKenna's alleged hindering of the sale of the property while acting as broker for Mrs. Barattini.  No effort was made to sustain the defenses in the answers that the executor could not have been sued at law on the covenants in the mortgage, that he could not be proceeded[***10] against because he was not a party to the foreclosure proceedings, and that the McKennas were estopped to claim a deficiency, and there is no substance to them.  We find no support in the record for a finding that McKenna did or failed to do anything that tended to discourage a sale, much less to prevent one.  He attempted to keep the property in condition that would attract buyers and apparently made reasonable efforts to procure a purchaser. He became angry on one occasion when an employee of another broker brought a prospect to the house without having had his superior clear the visit with him but his remonstrances were made out of the hearing of the prospects.  This and the fact he did not effect a sale seem to have been the only specific complaints Mrs. Barattini had, aside from his insisting on keeping his "for sale" sign on the [*601] property after she had told him not to (although, admittedly, she kept urging him to effect a sale and never gave [**735] the house exclusively to another broker).  We find no basis for the chancellor's action in charging the McKennas with half the profit on the resale. Curiously, the ultimate purchaser was present at the foreclosure[***11] sale but apparently did not bid.

   The reduction of the deficiency by $1,500, the amount the Barattinis paid on the Porter deficiency, was, we think, justified.  In the sale of the Bay Ridge property $12,500 of the purchase price was the equity of the Barattinis in two properties, $5,000 being in the Porter property.  The contract of sale provided that the McKennas took the Barattini properties "subject to existing mortgages." The quoted language would not, of itself, show that the McKennas had assumed the mortgages. Chilton v. Brooks, 72 Md. 554. But, as stated in Rosenthal v. Heft, 155 Md. 410, 419, "if the purchaser assumes the payment of the mortgage as a part of the purchase price of the property, then it does become his duty to pay it, and to protect the vendor against any demands that may be made against him for the debt which it secures * * *.  Whether he did or did not assume it, is a matter of agreement, which may be express or implied * * *, which may be written or rest in parol, * * * and which may be separate from the deed * * *."

   At the top of the deed from the Barattinis to the McKennas, as presented for record (presumably by the McKennas) and as recorded, [***12] is the writing "Full consideration $24,000 -- Mortgage Assumed $19,000 -- Cash $5,000.00." The McKennas made various payments on the Porter mortgage and secured extensions of time for payments.  It is extremely unlikely that the Barattinis would have used their $5,000 equity as part payment of the $50,000 purchase price if they were also to continue to pay the mortgage on the property in which they had the equity.  We find the evidence to support the inference that, without regard to their liability to Mrs. Porter, the McKennas, as between themselves and the Barattinis, bound themselves to be responsible for the payment of the Porter mortgage.

   [*602] The mortgagor, when pressed for a deficiency decree, may raise "any defense that could be made in an action at law on the covenants in the mortgage," McDonald v. Building Ass'n, 60 Md. 589, 592, that is, any defense such as payment or release, or any other defense to the claim which has arisen since confirmation of the sale.  (Ibid 591.) 3 Jones on Mortgages, 8th Ed., Sec. 2206, p. 715; Miller, Equity Procedure, Sec. 449; Slingluff, Mortgagee's Rights in the Event of a Deficiency, 1 Md. L. R. 128, 139.

   Here[***13] the liability for, and the compromise of the deficiency, in the Porter foreclosure arose after the confirmation of the Bay Ridge sale in foreclosure. The McKennas, as between themselves and the Barattinis, were bound to pay the Porter mortgage and, so, the deficiency.  The Barattinis could recoup the $1,500 the McKennas owed them against the $11,195.02 they owed the McKennas.  Res judicata, if it were otherwise applicable, has no application because there was no final judgment or decree -- in fact, no judgment or decree whatsoever -- in the Porter foreclosure case as to the deficiency or as to the rights and obligations of the McKennas in regard to a deficiency.

   The McKennas are entitled to a decree in personam against Mrs. Barattini and the executor of Mr. Barattini of $9,695.02.

   Decree reversed and decree for $9,695.02 entered in favor of John J. and Mary R. McKenna against Mary P. Barattini and George Sachse, executor of Louis M. Barattini as of the date of the decree appealed from; appellants shall pay one-fourth of the costs, and appellees three-fourths of the costs. 

BINDER et al. v. BENSON et al. 
No. 260, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 456; 171 A.2d 248; 1961 Md. LEXIS 680

 June  9, 1961, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing, or, in the Alternative, for Modification of Opinion, Filed June 14, 1961, Denied June 22, 1961, and Order of Court Filed.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  initialed, signature, manifestation, forty-five, assent, redraft, deposit, delivery, clean, intend, typed, real estate agent, purchase price, last offer, negotiations, realized, disputed, counter, mutual assent, capacity to understand, written instrument, reasonable person, written document, mutual mistake, little doubt, usual rule, qualification, formation, requisite, convey

COUNSEL: Walter C. Mylander, Jr., and Charles C. W. Atwater for the appellants.

   Wilbur R. Dulin and George W. Della, with whom were Hyman Ginsberg and Ginsberg & Ginsberg on the brief, for the appellees.

JUDGES: Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*458] [**248] In a suit claiming damages for breach of contract by appellees in refusing to convey [**249] land which appellants say was [*459] sold to them, the trial judge, sitting without a jury, found that appellees had not agreed to a material[***5] change in the proposed contract offered by appellants, and entered judgment for appellees.

   Mr. and Mrs. Robert Benson, and their daughter Kathryn, owned forty-one unimproved lots and four houses, all shown on an approved subdivision plat, and some eighteen adjacent acres, in Anne Arundel County which they had listed for sale.  Early in January, 1959, appellants, after inspecting the property, prepared a contract which they signed and delivered to the real estate agent, Martin, for submission to the owners.  The proposed contract was undated, called for a purchase price of $21,500, with a down payment of $500.00 and an additional deposit of $2,000 within thirty days of acceptance by the owners. The balance of the purchase price was to be paid within one hundred twenty days of the date of acceptance.

   The owners refused this offer and made a counter offer by drawing a line through the proposed purchase price of $21,500 and interlining and initialing a new price of $34,000.  They also signed the contract and gave it to Martin to offer to the appellants.  Their counter offer was rejected by appellants, who blocked out the $34,000 price on the typewriter and typed in the price of [***6]$26,500.  Both appellants initialed this change.  A paragraph was added on the back of the contract, which provided that $5,000 (the difference between appellants' first offer of $21,500 and their second offer of $26,500) would be secured by a mortgage on the eighteen-acre tract to be executed at settlement for a term of six months with interest at 6%.  This change was also initialed by appellants.  When this new offer of the appellants was presented to the owners, they again refused it and suggested a counter offer of $29,000.

   The real estate agent says that while at the home of the owners, he wrote in with his pen the figures $29,000 on the same, by now somewhat tired contract forms, and that this change was then initialed by the owners.  One of the appellants testified that the physical change in price was made by the agent in appellant's office when the contract was brought back.  There is no dispute that in the office of one of the appellants the date of January 20, 1959, was inserted in the [*460] proposed contract and the paragraph on the back was stricken through, and a new paragraph was typed there which called for the securing of the balance of $7,500 by a purchase[***7] money mortgage to be executed at settlement on the eighteen-acre tract for nine months with interest at 6%.  This new paragraph was initialed by the appellants.  Also, one more change was made.  The provision that the payment of the additional $2,000 deposit was to be made within thirty days of the acceptance of the contract was changed by striking out the word and figure "thirty (30)" and the writing in, almost illegibly, of the word and figure "forty-five (45)." Appellants initialed this change.

   When the agent presented the last offer of the appellants to the owners, they initialed the new paragraph on the back (and, if they had not already done so, the $29,000 price) but not the change from thirty to forty-five days.  The agent says he forgot to have them initial that change, that it was an oversight. When he returned their copy of the contract to the appellants, he told them he had overlooked having that change initialed.

   Appellants, because the change from thirty to forty-five days had not been initialed by the owners and because "the contract wasn't as tidy as it could be," typed four copies of a redraft, a so-called "clean copy," and sent it by the agent to the owners for[***8] their signature. When he delivered it he explained about the change from thirty to forty-five days and left the copies with them for signature. The redraft was never signed by the owners.  When one of appellants called Miss Benson to find out why, she told him that the contract had been altered without the Bensons' consent.  He [**250] "tried to explain to her that it must be an oversight, that they either hadn't noticed the forty-five days, or worse that Mr. Martin had neglected to point out the change to them, but we knew that they had gone down there to them with forty-five days in it."

   Miss Benson testified that the owners did not know of, and were not told of, the change from thirty to forty-five days until after the clean copies had been left with them and compared with the much changed and initialed draft, and that [*461] they would not have signed a contract with the forty-five day provision.  Her mother testified that the owners never agreed to alter the proposed contract from thirty to forty-five days.

   The appellants contend the owners manifested assent to their last offer, which included the forty-five day provision, by a final delivery of the writing evidencing[***9] and integrating the agreement, and that the owners are bound by all of the provisions of the writing whether they were aware of them, or consciously agreed to them, or not.

   It is true that the usual rule is that if there is no fraud, duress or mutual mistake, one who has the capacity to understand a written document who reads and signs it, or, without reading it or having it read to him, signs it, is bound by his signature as to all of its terms.  Ray v. Eurice, 201 Md. 115, 125. Restatement, Contracts, Sec. 70.  The same rule applies to a manifestation of assent to a written instrument other than by signature, as by delivery. Restatement, Contracts, Sec. 21.

   A qualification of the rule is that an apparent manifestation of assent will not operate to make a contract if the other party knows, or as a reasonable person should know, that the apparent acceptor does not intend what his words or other acts ostensibly indicate.  Restatement, Contracts, Sec. 71(c); 3 Corbin, Contracts, Sec. 610; 17 C.J.S. Contracts, Sec. 143, p. 497; Frederich v. Union Electric Light & Power Co. (Mo.), 82 S. W. 2d 79, 86; General Electric Supply Corp. v. Republic Construction [***10]  Corp. (Ore.), 272 P. 2d 201; Beatty v. Donahue (Ky.), 249 S. W. 2d 33; Lange v. United States (C. C. A. 4th), 120 F. 2d 886, 889.

   The record leaves little doubt that appellants realized that the owners had not assented to the change in the time for making the additional deposit. They had no reasonable right to believe that the delivery to them of three of the contract forms, which in ordinary circumstances would have been a manifestation that a contract already signed had been accepted as offered, was actually such a manifestation. They knew that a critical change had not been initialed as all acceptable changes had been on both sides during the negotiations, that the agent had not called the Bensons' attention to it.  Their realization [*462] of the significance of the failure to initial the time of deposit change is indicated by their preparation of the redraft, the clean copy, which they sent to the owners for signature. If appellants had had a binding manifestation of assent from the Bensons, they would have felt no need for the signing of a new contract form containing the forty-five day provision.  If housekeeping was the reason for the clean copy redraft, [***11] that could have been done when the appellants made their final changes and forwarded them to the owners.

   It is established that if negotiating parties intend and understand that a manifestation of assent shall be evidenced only by signature to a writing, their prior oral agreements do not constitute a contract because they were not intended to.  Peoples Drug Stores v. Fenton, 191 Md. 489, 494; Eastover Stores, Inc. v. Minnix, 219 Md. 658, 665. The parties in the case before us negotiated at length by a series of offers and counter-offers, scratched out or interlined on a document already signed.  We think [**251] their conduct indicates that both buyers and sellers understood and intended that a change in terms proposed since the party to whom it was offered had last seen the contract forms was not to be deemed accepted unless it was initialed, and that there was to be no contract until all changes had been initialed by both sides.

   In our view the testimony gave the trial judge full latitude to determine that there had not been those manifestations of mutual assent to all terms and conditions of a proposal requisite for the formation of a contract.

   Judgment affirmed, [***12]  with costs. 

HOUSTON v. STATE 
No. 225, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 403; 171 A.2d 233; 1961 Md. LEXIS 676

 June  5, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  shot, sufficient time, deadly weapon, vital part, murder, deliberation, shooting, inferred, dissuade, loaded, malice, rifle, gun

COUNSEL: Carl W. Bacharach, for appellant.

   Clayton A. Dietrich, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.

OPINIONBY: PER CURIAM

OPINION: [*403] [**233]  [***2] This appeal challenges the sufficiency of the evidence to convict the appellant of murder in the first degree in a trial by the court without a jury.  The accused, a negro boy eighteen years of age, was sentenced to life imprisonment.  It was shown that as he was returning home about 10:30 P. M., he joined a group of boys, two of whom were fighting, and got into an [*404] argument with his older brother.  The appellant ran home, obtained his father's rifle, which he had previously loaded with stolen ammunition, and returned with the intention, as he admitted to the police, to shoot his brother.  Another boy attempted to dissuade the appellant and disarm him.  The appellant threatened to shoot him, and the boy said if he wanted to play that way, he would get his brother's gun. The appellant shot him in the back as he was running away.  There was testimony that he had raised the gun to his shoulder when the shot was fired.

   We think the evidence was sufficient to support the court's finding.  There was sufficient time for deliberation and premeditation.  Cf. Brown v. State, 220 Md. 29, 39, Webb v. State, 201 Md. 158, 163, and Jones v. State, 188 Md. 263, 273. The threat[***3] to the brother could properly be considered on these points.  The trial court could properly find that the act of the accused was wilful, and malice may be inferred from the use of a deadly weapon directed at a vital part of the body.  Wimbush v. State, 224 Md. 488, 489. The trial court was not required to believe that the shooting was an accident.  Hines v. State, 223 Md. 251, 253.

   Judgment affirmed. 

ALVEY v. ALVEY et ux. 
No. 232, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 386; 171 A.2d 92; 1961 Md. LEXIS 673

 May  18, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  deed, specific performance, demurrer, judicata, abatement, litigated, entireties, tenants, sustaining, res judicata, purchase price, lot of ground, prior suit, conclusive, reconveyed, omission, decree, cause of action, subject matter, own negligence, original suit, dower right, good reason, straw man, preservation, adjudicated, fraudulent, waterfront, conveyances, functioned

COUNSEL: George B. Woelfel, for appellant.

   Eugene M. Childs, with whom were Childs & Bald on the brief, for appellees.

JUDGES: Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*387] [**92] The appellant appeals from a decree of the Circuit Court for Anne Arundel County sustaining a demurrer on behalf of the appellees to his bill of complaint to set aside deeds vesting title as tenants [***4]by the entireties in the appellees as to the lot agreed to be conveyed by the appellee R. Bradley Alvey to the appellant, and for specific performance by R. Bradley Alvey alone, without abatement in purchase price.

   The bill in substance alleged that the appellant and R. Bradley Alvey are brothers; that on April 29, 1955, R. Bradley Alvey agreed in writing with the appellant to convey from [*388] his waterfront farm a lot of ground running from appellant's land to the waterfront, sketched on a memorandum, filed as an exhibit with the bill, for the sum of $2,750.00, and in accordance with the agreement the appellant paid R. Bradley Alvey $2,250.00, which left a balance of $500.00.  That although the appellant frequently offered to pay the $500.00 balance and procure his deed, he was advised by R. Bradley Alvey to wait a little while longer [**93] until the property line dispute existing between him and one Raymond W. Michaels was concluded.  That some time during the year 1958 R. Bradley Alvey told the appellant that he would not go through with the deal and advised the appellant to get the property the best way he knew how, stating that his wife, Pauline Alvey, would not[***5] sign and execute the deed, whereupon the appellant filed suit for specific performance against both appellees on the theory that Pauline Alvey was present throughout the time the appellant and R. Bradley Alvey were making the deal, that she collected the deposit, was pleased with the sale, and that she should be estopped to deny that her husband functioned as her agent.  However, the trial court ruled that her actions were not sufficient for estoppel, that the Statute of Frauds prevailed, and her demurrer was sustained by that court and affirmed by the mandate from this Court on December 17, 1959 in Alvey v. Alvey, 220 Md. 571, 155 A. 2d 491. That the appellant thereupon dismissed the suit against R. Bradley Alvey, who had filed an answer in the original proceedings, because the appellant had ascertained that on the 7th of November, 1957, the appellees had executed a deed to Emanuel Klawans conveying all his realty, including the lot of ground before mentioned, and that the said Klawans immediately reconveyed the property to the appellees as tenants by the entireties. That the deeds were without consideration and the transfer was fraudulent and made with the intent to hinder, [***6] delay, and deprive the appellant of his right to specific performance against R. Bradley Alvey, without any abatement, as Pauline Alvey, never having signed the contract, would still have her dower right in the property agreed to be sold.

   The bill prayed: (1) that the deeds between the Alveys [*389] and Klawans be set aside so far as the lot of ground involved is concerned; (2) that specific performance be declared against R. Bradley Alvey without abatement of the purchase price; and (3) for further relief.

   The appellees demurred to the bill and the chancellor in sustaining the demurrer stated no reason for so doing.  The appellant did not request a written opinion as was his right under Maryland Rule 18 c, consequently we have no way of knowing upon what ground or grounds he based his decision.  The demurrer, however, raises four specific questions which were: (a) does the Statute of Limitations bar this action, (b) is the plaintiff guilty of laches, (c) is this cause res judicata, and (d) does the doctrine of election bar this action?

   On this appeal the conclusive and only question which we deem it necessary to consider is the question of res judicata, and we will[***7] assume that that ground was at least one of the reasons for the sustaining of the demurrer. Referring to the bill of complaint in the instant suit, it will be seen that the appellant alleges fraud in the transaction of November 7, 1957, where the appellee husband conveyed his interest in the property in controversy to a "straw man" who subsequently reconveyed the property to the appellees, husband and wife, as tenants by the entireties. This bill is based upon the exact same facts and subject matter adjudicated by this Court in the first case of Alvey v. Alvey, supra. In that case the question involved the doctrine of estoppel so as to preclude the wife from invoking the Statute of Frauds.  In arriving at its decision this Court made it abundantly clear that the wife was not guilty of any misrepresentation or concealment of material facts in her dealings with the appellant.  Here the appellant seeks to litigate an issue which he could have litigated in the first case.  It is true that the appellant, after having filed his appeal to this Court in the first case, attempted to have it remanded so as to amend his original bill to ask for the relief he seeks presently, that is, partial[***8] specific performance without abatement, and that his request was denied.  However, enlightened hindsight must give way to a higher principle based on the protection and security of rights, and the preservation of the repose [**94] of society.  The appellant had [*390] ample knowledge of the straw conveyances before trial in the first case.  The deeds were duly recorded and were parts of the public record.  Moreover, he could have requested the wife to release her inchoate dower interest when she was present at the time the sale was in its embryo stage.  There was no evidence of his having sought to do so, nor is there any good reason assigned for his omission. As was said in Wagoner v. Wagoner, 76 Md. 311, 25 Atl. 338: "It will not do to say that the facts relied upon in the second bill were not alleged in the first bill, and could not, therefore, have been proved in the first case, for the answer is, it was the appellant's duty to have either alleged them in the first case or to have shown in this case some good reason or excuse why she did not so allege them."

   We conclude that all questions of fact arising in connection with the present transaction between the appellant[***9] and the appellees have been litigated and determined in the first suit, not only as to the matters and claims which were presented in that suit, but also as to all matters that could have been presented but were not.

   The appellant uses the same facts as in the first case but only seeks different conclusions.  He claims that since the first bill did not allege fraud, res judicata does not apply.  If this were so, it would strike at the essence of res judicata and the stability of legal decisions.

   The doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit, where the court had jurisdiction, proceedings were regular, and his omission was due to his own negligence. Ashman v. Ashman, 201 Md. 445, 94 A. 2d 257; Moodhe v. Schenker, 176 Md. 259, 269, 4 A. 2d 453; Shirk v. Sneeringer, 163 Md. 265, 267, 162 Atl. 520; Stouffer v. Wolfkill, 114 Md. 603, 609, 80 Atl. 300; Royston v. Horner, 86[***10] Md. 249, 253, 37 Atl. 718.

   In the case of Ashman v. Ashman, supra, at page 451 this [*391] Court quoted with approval the following language from Henderson v. Henderson, 3 Hare 115, as follows:

   "In trying this question, I believe I state the rule of the Court correctly that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to bring forward their whole case, and will not, except under special circumstances permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence, or even accident, omitted a part of their case. The plea of res judicata applies, except in special cases, not only to the points upon which the Court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time."

   We conclude that the trial[***11] court was correct in sustaining the demurrer on the ground of res judicata and for this reason the decree must be affirmed.

   Decree affirmed, with costs. 

CARDER v. STEINER et al. 
No. 237, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 271; 170 A.2d 220; 1961 Md. LEXIS 656

 May  5, 1961, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed and Denied May 12, 1961.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  guard, duty, door, prisoner, malice, declaration, cell, demurrer, public officer, maliciously, negligently, wilfully, evil, exercise of discretion, cause of action, sustaining, doubtful, free and clear, actual malice, pleader, immune, participated, derelict, prison, Maryland Rule, quasi-judicial, policeman, sufficient to charge, deliberate intent, damages resulting

COUNSEL: Weldon Leroy Maddox, for appellant.

   Joseph S. Kaufman, Deputy Attorney General, and Robert L. Karwacki, with whom was Thomas B. Finan, Attorney General, on the brief, for appellees.

JUDGES: Henderson, Hammond, Prescott, Horney and Marbury, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*273] [**221] Appellant sued the Warden of the Maryland House of Correction and a guard of that institution to recover damages he alleges he suffered while a prisoner, when the guard closed his cell door upon him in such a manner as to strike and injure him.  A demurrer to the declaration was sustained.

   The declaration alleged that the Warden had[***4] the duty to appoint a guard only after a rigid investigation as to his fitness and qualifications for the post, that it was the duty of the guard not to close any door in the cell block until assured that all inmates were free and clear of the doors and that despite these duties, the Warden "maliciously, wilfully, negligently and without due care employed and retained" the guard, "knowing him to be an unfit and improper person to perform the duties of a guard," and that the Warden in the same derelict manner supervised the guard. The declaration continues by alleging that the guard "maliciously, wilfully, negligently and without due care closed the cell door" on the [*274] prisoner "knowing full well that the plaintiff at the time was not free and clear of the said cell door and that said cell door would strike upon and against the plaintiff."

   This Court held recently in Clark v. Ferling, 220 Md. 109, 114, 115, that the Superintendent of the Maryland State Reformatory for Males was "a public officer; that his duties in safely confining the deceased were public in character and quasi-judicial in nature, in that they involved the exercise of discretion; and that he is not[***5] liable for injuries inflicted by one of his prisoners upon another, at least, in the absence of an allegation of malice or evil purpose on his part, that he knew of some unusual danger to the party injured, or that he participated in inflicting the injury." The holding was grounded on the rule of law that when the complaint is for failure by a state agent to perform at all, or properly, duties that call for the exercise of judgment and discretion "the text writers and the cases * * * seem to be in universal accord in holding that the public officer is immune from liability, at least, in the absence of a showing of malice."

   It is agreed that the duties and obligations of the Warden in the present case are identical with those of the Superintendent in the Ferling case and therefore, as that case held, they are continuing in nature, and call for the exercise of some portion of the sovereignty of the State, and the exercise of discretion.

   It follows that the Warden is not to be held liable to a prisoner unless there is a showing of evil purpose or malice on his part.  The allegations that the Warden was derelict in the appointment of the guard are made meaningless by the provisions[***6] of the Merit System law of the State which control, and of which the Court takes judicial notice.  Under Code (1957), Art. 64A, Sec. 2, guards at the Maryland House of Correction are specifically included in the classified service and their employment is made subject to all the provisions of Art. 64A.  Section 17 of that article charges the State Commissioner of Personnel with the [**222] duty of determining the fitness [*275] of applicants for positions as prison guards and of recommending a list of qualified persons to the Warden when a vacancy exists.  The Warden must choose from a list submitted to him.

   The allegations that the Warden "maliciously, wilfully, negligently and without due care" employed, retained and supervised the guard knowing him to be unfit, are conclusions of the pleader without allegations of fact to support them.  There are no allegations of facts which show evil purpose, ill will or malice. Significantly lacking is the allegation the Warden participated in any way in the acts which injured appellant.  The allegations made fail to state a cause of action against the Warden.  Clark v. Ferling, supra; Martin v. Moore, 99 Md. 41, 48; Cocking v. [***7]  Wade, 87 Md. 529.

   The appellant contends that the guard's duties are ministerial only and he is liable for negligence in their performance, without a showing of malice. The guard counters by saying that he, like the Warden, is a public agent exercising discretion, and therefore is immune from suit unless evil purpose or malice on his part is shown, to the same extent as the Sheriff in Cocking v. Wade and the Superintendent in Clark v. Ferling, both supra.  On this premise he contends further that the allegations that he "maliciously, wilfully, negligently and without due care" closed the cell door on the prisoner are inconsistent (in that an act cannot be both malicious and wilful and merely negligent at the same time) and must be construed against the pleader and, so, amount to no more than an allegation of simple negligence, which is not enough to charge him with actionable wrong.

   We agree that the guard is a public officer within the meaning of the rule of the Ferling and Cocking cases.  Immunity from liability rests not on the dignity of the office but rather upon the nature of the function exercised.  A policeman has been held to be a public officer. [***8] Harris v. Mayor & C. C. of Baltimore, 151 Md. 11; Dempsey v. N. Y. Central & H. R. R. Co. (N. Y.), 40 N. E. 867; 2 Cooley, Law of Torts (4th [*276] Ed.), Sec. 300, p. 389; cf. Wynkoop v. Mayor & Coun. of Hagerstown, 159 Md. 194, 200; State v. Baltimore County, 218 Md. 271. A prison guard, like a policeman, acts as an arm of the State, in keeping incarcerated those committed to imprisonment and in maintaining order in the prison, and is not to be held liable civilly for damages resulting from mere negligence in the performance of his duties. The allegations that the guard wilfully and maliciously closed the door on the prisoner, knowing that the latter at the time was not free and clear, and that the cell door would strike him, could perhaps be read to charge a deliberate and malicious intent to hurt the prisoner, if it were not for the juxtaposition of the words "negligently and without due care." The inclusion of these words in the allegation makes it inconsistent and its meaning doubtful.

   There are lacking allegations of plain fact sufficient to charge actual malice or deliberate intent, and we find that there was no error in sustaining the guard's demurrer[***9] to the declaration. The words of a pleading, like those of any written instrument, should be given a reasonable construction. Nevertheless, whenever a pleading is so doubtful and ambiguous as to be fairly capable of two interpretations, it will be construed most strongly against the party filing it.  1 Poe, Pleading and Practice, Tiff. Ed., Sec. 557.  Maenner v. Carroll, 46 Md. 193, 215; Steinwedel v. Hilbert, 149 Md. 121, 126.

   Appellant did not ask below for an opportunity to amend.  Rather, after the demurrer had been sustained without reference by the court to amendment, appellant moved under Maryland Rule 18c to obtain a memorandum of the grounds of the decision.  Judge Evans filed an opinion holding [**223] that the declaration did not state a cause of action against Hayward, the guard, because "the allegation that Hayward maliciously, wilfully, negligently and without due care caused injury to the plaintiff must be construed as merely an allegation of negligence.  There are no facts alleged to show any malice or willful act on the part of Hayward (or Steiner) towards the plaintiff in closing the cell door. Under the Ferling case, Hayward, [*277] [***10] at the time of the acts complained of, was performing a public office.  He was a public officer charged with quasi-judicial duties and, as such, cannot be held civilly liable for the negligent performance of his duties." Appellant, in the face of the warning in the trial court that allegations of fact of actual malice were necessary to state a cause of action against the guard, failed to request permission to amend the declaration to make such allegations of fact.  Maryland Rule 320 d 1 (e) provides that when a demurrer to a pleading is sustained "the court, in its discretion, may allow an amendment of such pleading in its order sustaining the demurrer * * *." An order denying or allowing amendment will not be reviewed in the absence of a clear showing of an abuse of discretion.  Brack v. Barton, 185 Md. 366, 371; Frisch v. Baltimore, 156 Md. 310, 313.

   At the argument, in response to questions from the Court, counsel for appellant suggested that there might exist facts which could fairly justify accurate and detailed allegations of fact in an amended declaration, showing that the guard deliberately injured the prisoner with malicious design.  Counsel could not say that there[***11] were, in truth, such facts, merely that there might be.

   We think that the appellant, not having asked for an amendment below, and not being able to state at the argument on appeal in what respect the declaration could be amended in accordance with actual facts, so as to overcome the objections which had justified the sustaining of the demurrer, is not entitled we find to have the case remanded to permit amendment.  This was the position taken by this Court in Frisch v. Baltimore, supra, at p. 313 of 156 Md.  See also Levin v. Union National Bank, 224 Md. 603; Noellert v. Noellert, 169 Md. 559, 562; and Brack v. Barton, supra.

   Judgment affirmed, with costs. 

JACOBS et al. v. KLAWANS et al., Executors 
No. 236, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 147; 169 A.2d 677; 1961 Md. LEXIS 638

 April  11, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  lease, lessor, subletting, recordation, lessee, amendatory, arbitrarily, documentary, misleading, stamps, covenant, alienation, recorded, general nature, proviso, germane, inform, constitutional objection, amendatory act, summary judgment, right to refuse, unreasonably, conveyancing, sublessee, re-enact, outweigh, tenancy, sublet, assign, evils

COUNSEL: W. Harvey Beardmore, with whom were Rouse & Morton on the brief, for the appellants.

   Emanuel Klawans for the appellees.

JUDGES: Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ.  Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*149] [**678] As[***5] a result of a hearing on motion for a summary judgment, [*150] the appellees obtained a judgment against the appellants for rent allegedly due under a lease and the cost of documentary stamps used in recording the lease.

   On January 2, 1953, the parties hereto entered into a written lease for a term of ten years.  This agreement, in pertinent part, provided that "The lessees shall have no power to assign or sublet the whole or any part of the lease or premises or store fixtures without first obtaining the written consent of the lessors, their heirs and assigns * * *" and that the "lessees agree to pay all state and federal documentary stamps upon this lease or transfer."

   On March 21, 1959, the appellants desired to sublet the premises subject to the lease, and submitted to the appellees the name of a proposed sublessee, who was ready, willing and able to become such sublessee. The appellees refused to permit the subletting. Thereafter, several other names were submitted as prospective sublessees. The appellees declined all of them.  For the purposes of this case, we shall assume that the appellees refused to agree to the subletting for personal reasons, only.

   Irked by what[***6] they thought was unreasonableness on the part of the appellees, the appellants consulted legal counsel regarding their rights.  They were advised that the lease had not been recorded among the land records, and, therefore, the instrument created only a tenancy from year to year.  Accepting this advice as being correct (but see Code [1957], Article 21, Section 1), the appellants, on September 28, 1959, served written notice of termination of the tenancy, effective as of December 31, 1959.

   On October 5, 1959, the appellees recorded the lease among the land records and presented the appellants with a bill for the cost of state documentary stamps, which the appellants refused to pay.

   Thereafter, the appellees instituted this suit for April and May, 1960, rental payments and for the cost of the state documentary stamps, and filed a motion for a summary judgment. The appellants filed general issue pleas and an answer to the motion for a summary judgment. Subsequently, the [*151] appellants filed a "counter claim for declaratory judgment," in which they raised the same questions they present on this appeal.  The trial judge rendered judgment in favor of the appellees for the rent[***7] due for April and May of 1960, plus the cost of the state documentary stamps, and the appellants appealed.

   Two questions are raised.  The appellants claim: (1) that notwithstanding the provision in the lease that the lessees shall not have the power to assign or sublet without first obtaining the written consent of the lessors, the lessors cannot, arbitrarily, withhold such consent; and (2) that the lease is null and void.

   I

   This precise question does not seem to have reached this Court on any [**679]former occasion; n1 and, although it, apparently, has not been passed upon in a great number of jurisdictions, the decisions of the courts that have determined the question are in very substantial accord.  Basing the decisions, for the main part, on the grounds that restraints on the alienation of property interests are justified if the objectives behind the imposition outweigh the social evils which flow from the enforcement of the restraint, or that the interference with the power of alienation is so insignificant that no appreciable harm results from the enforcement of the restraint, the lessor's right to refuse consent, even though his refusal be arbitrary and unreasonable, [***8] has generally been upheld, where the covenant prohibiting assignment or subletting has been without qualification; but such covenants, being restraints on alienation, are not favored at law and have been strictly construed.  Coulos v. Desimone, 208 P. 2d 105, 109 (Wash. 1949); Gruman v. Investors Diversified Services, 78 N. W. 2d 377, 379 (Minn. 1956); Abrahamson v. Brett, 21 P. 2d 229, 232 (Ore.); Richard v. Degen & Brody, Inc., 5 Cal. Rptr. 263, 269 (Cal. App. 1960); Friedman v. Thomas J. Fisher & Co., 88 A. 2d 321 (Mun. Ct. App., Dist. Col.); [*152] Muller v. Beck, 110 A. 831 (NJL); Durand v. Lipman, 1 N.Y.S. 2d 468.

n1 But compare, Reid v. John F. Weissner Brewing Co., 88 Md. 234, 40 A. 877.

   The encyclopedias and text writers, likewise, recognize the rule as it has been stated above.  In 51 C.J.S., Landlord and Tenant, § 36, it is stated: "However, where a subletting or assignment of the leased premises without the consent of the lessor is prohibited, he may withhold[***9] his assent arbitrarily * * *, unless * * * the lease provides that consent shall not be arbitrarily or unreasonably withheld, * * *." See also 32 Am. Jur., Landlord and Tenant, § 397; Restatement, Property, § 410; 1 American Law of Property, § 3.58, p. 305.  And Professor Powell, even though he predicts that the time may soon come when the allowance of lease clauses forbidding assignments and subleases will be curtailed by statute, states that the law at present permits a lessor to "insert in his lease as stringent a clause restricting alienations of the term as he can persuade the lessee to accept." 2 Powell, Real Property, pp. 308, 309. 

   We agree with the rule as it has been stated above, thinking that the right of the lessor to select a lessee of his own choosing to occupy and use his property offsets, if it does not outweigh, any evils flowing from the enforcement of the restriction on alienation, and that such restriction is in many cases, especially when the duration of the lease is short, of minor importance; and we hold that the appellees in the instant case had a right to refuse giving their consent to the subletting, even if we assume that such consent[***10] was withheld arbitrarily and unreasonably.

   II

   The appellants raise their second question in this manner.  They state that prior to 1951 a lease for a term of more than seven years was required to be recorded by the Code (1939), Article 21, Section 1, in order to be effective, even as between the parties.  They claim further that the title of Chapter 565 of the Acts of 1951, which purported to change the law so as to make unrecorded leases of more than seven years valid as between the parties, was misleading, and that rendered [*153] the statute (hereafter referred to as the Act) unconstitutional and void.

   Therefore, say the appellants, that as the Act was unconstitutional, the lease herein created only a tenancy from year to year, n2 which had been seasonably terminated, and, [**680] consequently, the appellees were not entitled to the judgment rendered below.  In the view that we take of this contention, a determination of the constitutional question posed will dispose of it.

 n2 Citing Darling Shops Delaware Corp. v. Baltimore Center Corp., 191 Md. 289, 60 A. 2d 669 and Kikas v. Baltimore County, 200 Md. 360, 89 A. 2d 625.

[***11]

   Section 29 of Article III of the Constitution of Maryland provides, among other things, 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 invoked in many cases brought to this Court, and we have repeatedly stated, and restated, the purpose and objective of the requirement that the subject "shall be described in its title." Succinctly, they are to inform the legislators and the public of the general nature of the subject-matter of pending legislation, so that, if interested, they will examine the body of the statute for its specific provisions.  Among the many cases so holding, see Neuenschwander v. Wash. Sub. San. Comm., 187 Md. 67, 48 A. 2d 593; Bell v. Board of County Com'rs of Prince George's County, 195 Md. 21, 72 A. 2d 746; Leonardo v. Board of County Com'rs of St. Mary's County, 214 Md. 287, 298, 299, 134 A. 2d 284.

   The cases that have arisen under the provision last quoted may generally be divided into two categories: those wherein it was contended that the title was not sufficiently descriptive; and those wherein it was claimed to be misleading. Bell v. Prince [***12]  George's County, supra. The appellants do not challenge the title as not having been sufficiently descriptive, but earnestly contend that it was misleading.

   The following is the title to the Act:

   "AN ACT to repeal and re-enact, with amendments, Section 1 of Article 21 of the Annotated Code [*154] of Maryland (1939 Edition), title 'Conveyancing', sub-title 'Conveyances in General', as amended by Chapter 507 of the Acts of 1949, providing for recordation of certain leases."

   The contention of the appellants, now stated a little more specifically, is that the Act of 1951 was an amendatory statute, and, although they concede that if the title to the Act had merely referred to the Article and Section numbers of the Code, it would not have been misleading, it did more and stated the purpose of the amendment was to provide "for the recordation of certain leases," yet an examination of the body of the Act (they say) discloses that its amendatory provisions provide "for the effect of failing to record leases." In other words, they admit that the title to an amendatory statute need not set out the nature of the changes to be made (provided, of course, that it names the article[***13] or section of the Code to be amended), but argue that if it does, the body of the act may not contain any other matter, however germane it may be to the subject of the original act as a whole.  There are very respectable and numerous decisions that support this proposition of law.  See the cases collected in 1 Sutherland, Statutory Construction (3rd ed.), § 1908, n. 16.

   But if we accept, without deciding, this to be a correct exposition of the law, we do not think its application to the situation we have in the instant case renders the statute invalid.  In this State, as a result of the explicit commands of Article III, Section 29, no laws are revived or amended by reference to their titles or sections only, and when any article or section in the Code is amended, the statute is enacted as the new article or section will read after amendment.  Without setting it forth in toto, the body of the Act here involved first re-enacts the provision of the previous statute to the effect that no estate of inheritance or freehold, or any declaration or limitation of use, or any estate above seven years, shall pass or take effect unless the deed conveying the same shall be executed and[***14] recorded as therein provided.  This portion of the Act made no amendatory provisions.  The Act then excepts from its operation leases for not more than seven [*155] years which contain (under certain circumstances) options [**681] to renew for terms of not more than seven years.  This provision clarifies and defines what is a lease of above seven years, within the meaning of the prior provision; and it definitely changes the pre-existing law in relation thereto.  Here, the Act definitely deals with, and pertains to, the recordation of certain leases. The Act then adds the proviso which the appellants contend renders the title misleading. It provides that if a lease of above seven years be executed but not recorded, it shall be valid and binding as between the original parties to the lease. This proviso, of course, was not in the previous statute.

   This Court has stated on numerous occasions that Section 29, of Article III, does not require the title of an act to contain an abstract of the body of the statute, nor to mention or indicate each provision in it.  The title to this amendatory act states that the statute deals with conveyancing in general and provides for the[***15] recordation of certain leases, and it does so.  The effect of the failure to record a lease as required by the last proviso of the Act relates to the subject of the recordation of leases, is pertinent and germane thereto, and is, we think, a natural and appropriate provision in connection with that subject.  We hold that when the title to an amendatory act states the article and section of the Code which the statute is amending and gives a brief description of the general subject matter of the amendatory portion of the statute, as was done in the title here involved, it informs and apprises the legislators and public of the general nature of the subject-matter of the statute so that, if interested, they will examine the body of the act for its detailed provisions, and renders it free from constitutional objection. Cf. Allied American Mutual Fire Ins. Co. v. Com'r of Motor Vehicles, 219 Md. 607, 150 A. 2d 421; Board of County Com'rs of Prince George's County v. Donohoe, 220 Md. 362, 152 A. 2d 555.

   Since Chapter 565 of the Acts of 1951 (this Act has since been amended by Chapter 404, § 1, of the Acts of 1953) is constitutional, the lease was valid and binding as between [*156] [***16] the parties.  The trial court was, therefore, correct in rendering judgment for the rental payments; and, as the lessees explicitly agreed, in the lease, to pay the cost of the documentary stamps, the court was also correct in including such cost in the amount of the judgment.

   Judgment affirmed, with costs. 

CANTER v. STATE 
No. 182, September Term, 1960
 
Court of Appeals of Maryland
 
224 Md. 483; 168 A.2d 384; 1961 Md. LEXIS 519

 March  16, 1961, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  sodomy, penetration, buggery, Criminal Law, indictment, necessary to support, police officers, order of nature, slight evidence, common law, feloniously, common-law, non-jury, venereal, suffice, writers

COUNSEL: Submitted on brief by Thomas J. Curley for the appellant.

   Submitted on brief by C. Ferdinand Sybert, Attorney General, James O'C. Gentry, Assistant Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ.

OPINIONBY: PER CURIAM

OPINION: [*484] [**384] The appellant was indicted and charged with having "feloniously and against the order of nature had a venereal affair with and carnally knew * * * Frank Howard" and "feloniously and against the order of nature with the said Frank Howard did commit the crime of buggery * * *." He was tried by the court without a jury, convicted, and sentenced to three years.  On appeal he contends that the crime of buggery, or sodomy, requires proof of penetration, and that such proof is lacking.

   The indictment was probably based upon Code (1957), Art. 27, sec. 554, which proscribes in broad terms the whole [*485] field of unnatural and perverted sexual practices and makes it unnecessary to state a charge in detail.  See Blake v. State, 210[***3] Md. 459, 462. However, the indictment did not follow the language of the statute but followed the common-law precedent set out in Hochheimer, Criminal Law (2d ed.) § 437, to charge an offense with another person, or what is usually referred to as sodomy as distinguished from bestiality although the terms are often used interchangeably.  The text writers and authorities generally hold that at common law some proof of penetration is necessary to support a charge of sodomy although slight evidence may suffice. See 2 Wharton, Criminal Law and Procedure (Anderson ed.) § 752, 3 Underhill, Criminal Evidence (5th ed.) § 692, note 19 a, and 81 C.J.S., Sodomy, p. 371.  If we assume, without deciding, that such proof was necessary in the instant case, we find it sufficient.

   The appellant and Howard were caught in the act by two police officers who carried flashlights.  Without reciting their testimony [**385] it is enough to say that we think the trial judge could properly draw the inference that penetration occurred and that Canter admitted as much to the officers.

   Judgment affirmed. 

EASTERN CONTRACTORS, INC. et al. v. STATE, Use of SEIFERT etal.  (Two Appeals in One Record) 
No. 6, September Term, 1960
 
Court of Appeals of Maryland
 
225 Md. 112; 169 A.2d 430; 1961 Md. LEXIS 635

 March  8, 1961, Decided

   SUBSEQUENT HISTORY: [***1]

   Dissenting Opinion Filed March 29, 1961.  Motion for Rehearing, for Modification of Judgment and of Opinion Filed by the Equitable Plaintiffs March 16, 1961, Rehearing Denied and Opinion Modified April 7, 1961.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Duckett, JJ.

DISPOSITION: Judgments against Eastern and Jeffers reversed; judgment in favor of Buckley in the death case affirmed; judgment in favor of Buckley in the property damage case reversed; costs to be paid by the appellees; case remanded for a new trial.

CORE TERMS:  intersection, driver, highway, traffic, right of way, boulevard, signal, payscraper, green light, red light, green, traffic light, truck, crossing, favored, approaching, collision, red, listen, street, railroad, proximate cause, facing, unfavored, truck driver, amber, pedestrian, intersecting, traffic officer, started

COUNSEL: William J. McWilliams on both arguments for the appellants.

   Hyman A. Pressman on both arguments, with whom was Noah A. Hillman on the brief, for the equitable plaintiffs, part of the appellees.

   John H. Mudd on both arguments, with whom were W. Harvey Beardmore, Semmes, Bowen & Semmes and Rouse & Morton on the brief, for Buckley & Company, Inc., the other appellee.

JUDGES: The cause was argued on September 14, 1960, before Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ., and reargued[***8] on January 17, 1961, before Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.  Henderson, J., delivered the opinion of the Court.  Brune, C. J., filed the dissenting opinion, in which Hammond and Horney, JJ., concur.

OPINIONBY: HENDERSON

OPINION: [*116] [**431] August R. Seifert, employed as a special police officer by Buckley & Co., Inc., a dirt moving contractor working on the approaches to the Baltimore Harbor Tunnel, was killed while directing traffic on the morning of June 1, 1956, at the intersection of Belle Grove Road, a paved State highway running east and west, and a temporary dirt road intersecting it at right angles.  His widow and children brought a death case action against Eastern Contractors, Inc., and its employee Jeffers and against Buckley and its employee Rhodes.  Eastern brought an action against Buckley for damages to its truck. The cases were consolidated for trial.  It was shown that Aetna Casualty and Insurance Company, appearing as plaintiff-subrogee in the death case, had paid $10,000 to the widow and children of Seifert under a Workmen's Compensation policy it had written for Buckley.  At the conclusion of the trial the [***9] [*117] jury answered issues submitted, determining that Jeffers was guilty of negligence directly contributing to the happening of the accident, that Rhodes was likewise guilty, and that Seifert was not guilty.  The court entered judgments for the Seiferts in the amounts found by the jury, less a remittitur of $10,000 which was accepted, against Eastern, Jeffers and Rhodes; granted a motion for judgment N.O.V. in favor of Buckley, the conforming employer; and entered a judgment for costs in favor of Buckley against Eastern in the property damage case.  Eastern and Jeffers appealed.

   The appellants make three contentions: (1) that the trial court erred in its instructions to the jury as to the negligence of Jeffers and Rhodes, (2) that the court erred in refusing to grant a motion for mistrial at the conclusion of the closing argument of counsel for the Seiferts, and (3) that the court unduly restricted the cross-examination of Rhodes by counsel for the appellants.  To resolve the first contention it is necessary to review the testimony in some detail.

   Belle Grove Road is a heavily travelled highway twenty-five feet wide with nine-foot dirt shoulders.  The temporary dirt road[***10] was forty-eight feet wide.  Traffic at the intersection was controlled by an overhead signal light, installed by Buckley under a permit issued by the State Roads Commission, and by traffic officers, of whom Seifert was one.  It was shown that the traffic light had an automatic cycle 50 sec. green for Belle Grove Road, then 5 sec. amber, then 25 sec. red. For the intersecting road the interval was 25 sec. green, 5 sec. amber, 50 sec. red. When the light turned red for either road, it turned green for the other road.  Buckley was engaged in moving dirt across the State highway and had been so engaged for two or three months before the accident.  The traffic light had been installed for a month to six weeks. During the same period Eastern had been engaged in hauling sand along the Belle Grove Road.  On the morning of the accident Jeffers was driving east on Belle Grove Road up grade in a ten-wheel Mack truck loaded with sand, and Rhodes was driving north on the dirt road down grade in a payscraper thirty feet long loaded with about eighteen cubic yards of dirt and [*118] weighing about thirty-five tons.  It was powered by a diesel engine and had air brakes on all wheels.  The[***11] vehicles collided in the intersection, and it would appear from photographs and other evidence that the left front of the payscraper struck the [**432] truck on its right side behind the front wheel, blowing the front tire and rupturing the air line to the brakes.  The impact caused the truck to move sideways and diagonally across the road where it came to rest on its side in the ditch on the north side of Belle Grove Road.  The damage to the truck was over $6,000.  In its progress it struck and killed Mr. Seifert, who had started to run but ran in the wrong direction toward the east.  The payscraper came to rest about eight feet from the south side of the paved portion of Belle Grove Road at an angle toward the south.

   Jeffers testified that he was thoroughly familiar with the road and crossing in the course of making some 20 round trips daily.  He knew that the payscrapers, of which there were eight on the job, were using the crossing. He testified that he stopped because the light was red. Traffic moving west on Belle Grove Road also stopped for the light.  When the light changed to green he started across in low split second gear at a speed of from two to three miles per[***12] hour.  The officer also waved him to come on.  Jeffers testified he had frequently seen the payscrapers go across the road when he was stopped for a red light. It was shown that he had testified at a magistrate's hearing in 1956 that he had seen them "go across the road when I saw the light changing." He explained that he meant "they might go across sometimes" when "right at the road," not against a red light. He didn't see the payscraper until just before the impact.  He looked to his right when he saw the officer start to run.  He heard the noise of the payscraper coming over the hill but didn't look at it. He couldn't judge its speed without knowing what gear it was in.  The motors make more noise in the lower gears.

   Clinton Smith, seventy-two years of age, testified he was driving his car west on Belle Grove Road and stopped for the red light at the edge of the intersection. He saw the Eastern truck loaded with sand stop on the opposite side.  [*119] There were several cars behind the truck and a tank truck and several cars behind his own car.  He saw the officer directing traffic standing about in the center of the dirt road and on the north side of Belle Grove Road [***13]on the shoulder.  When the light changed to green, the officer blew his whistle and made an arm signal, and he started up.  The tank truck was blowing for him to go ahead.  His wife yelled "look at that thing coming down hill, that's going to hit something." He stopped about eight feet into the forty-eight foot crossing zone.  He saw the payscraper strike the truck, which was crossing at a slow rate of speed, on its right side.  Mr. Seifert ran towards his car, but the truck hit him.  Mrs. Smith testified to the same effect.  She saw the light turn green, and heard the officer blow his whistle. Her husband started but stopped when she noticed the big payscraper coming down and cried out.

   Rhodes testified that he was driving the loaded payscraper at about ten to twelve miles per hour in second gear as he approached the crossing. The vehicle was equipped with air brakes and could also be stopped "instantly" by tripping a lever and dropping the pan.  He testified that the light was green for him when he was thirty feet from the intersection, and Mr. Seifert gave him a signal to come on.  He saw the sand truck, but it did not stop at the intersection but came straight through.  At the[***14] last moment he realized that the truck "wasn't observing the light at all." He turned to his right, but the truck struck his hub cap and "drug up the side".  He was "jack-knifed" and at a "dead stop" when the truck hit him.  After the accident Rhodes told an investigating officer he didn't remember anything at all that had happened.

   The case presents a sharp conflict of evidence as to which vehicle had the right of way. If the testimony of Jeffers and the Smiths is to be believed by the triers of fact, Jeffers had the green light and was directed to proceed by the officer in charge.  He moved more than twenty-four feet to the point of impact at a speed of three miles per hour.  It may be inferred that during [**433]that interval the payscraper, moving at [*120] twelve miles per hour, would cover four times the distance, or ninety-six feet, with the red light against him all the way.  Allowing for reaction time and time to start the truck from a standstill, the payscraper may have been much farther away.  On the other hand, if Rhodes is believed, he had the green light in his favor, and Jeffers came through without stopping against the red and struck the payscaper while[***15] it was at a standstill.  But instead of instructing the jury that the case turned on who had the right of way, the trial court gave the following instruction:

   "The Court further instructs you, at the request of Buckley & Company, that an operator of a vehicle, even though given the green or go signal at an intersection, is required to use due care and caution to see that traffic in the intersection is such that he can proceed with safety and he must regard and heed traffic conditions, even though he has the green light. Therefore, even if you find it a fact that the Eastern Contractors' vehicle had the green light, and you also find that the operator thereof, Preston Jeffers, failed to observe the conditions of the traffic about him, and did not pay proper attention to approaching or crossing vehicles, or in any other respect failed to use due care, then your verdict must be against Eastern Contractors and Preston Jeffers, because you would have determined that he was negligent in the operation of his truck."

   It is perfectly clear, as the first sentence of the instruction states, that a driver having a green light in his favor cannot ignore traffic in the intersection when[***16] the light changes.  The amber interval affords vehicles facing it an opportunity to stop and requires that they stop, "but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection." Code (1957), Art. 66 1/2, sec. 193 (b) (1).  It also allows time for vehicles entering on a green or amber light to complete the crossing, but does not authorize entry against a red light. If the amber interval is insufficient in the [*121] case of wide streets or long or ponderous vehicles, the mere fact that the light may have turned green in favor of traffic moving along the intersecting street does not alter the right to complete the passage.  Code (1957), Art. 66 1/2, sec. 193 (a) states the rule clearly: "Green alone or 'go.' (1) Vehicles facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn.  All vehicles shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited." Subsection (c) "Red alone or 'stop'" provides: "(1) Vehicles facing the signal shall stop before entering the nearest cross-walk at an intersection[***17] or at such other point as may be indicated by a clearly visible line and shall remain standing until green or 'go' is shown alone." The subsection first quoted was applied in Valench v. Belle Isle Cab Co., 196 Md. 118, and Eisenhower v. Balto. Transit Co., 190 Md. 528, 534. Cf. Caryl v. Baltimore Transit Co., 190 Md. 162, and United States Fid. & Guar. Co. v. Continental Baking Co., 172 Md. 24.

   But the second part of the instruction does not follow from the first.  The jury was instructed that if the favored driver failed to observe the conditions of the traffic about him and did not pay proper attention to approaching vehicles, or in any other respect failed to use due care, the verdict must be against him.  We may note that the instruction is incomplete in that it leaves out any reference to proximate cause. In effect, the court was directing a verdict against the favored driver, for Jeffers admitted that he did not see the payscraper "approaching" the intersection, although it may be inferred that it was at a substantial distance at the time he started across. This goes far beyond the statutory duty to yield the right of way [**434] to vehicles "lawfully" [***18] in the intersection and imports that he was not entitled to rely upon his right of way even as to vehicles unlawfully entering the intersection against a red light. We think that is not a correct statement of the law.  We think the applicable rule of law is well settled under the Maryland cases.

   In Sun Cab Co., Inc. v. Cialkowski, 217 Md. 253, 257, [*122] a case in which, in one view of the evidence, a pedestrian had a green light and was struck by a cab coming through against the red, Chief Judge Brune, for the Court, said that "the jury could properly have found that the plaintiff had the right of way and that he was not bound to anticipate that the driver of the taxicab would not respect it", citing the Caryl case, supra, and Wintrobe v. Hart, 178 Md. 289. In the Wintrobe case, it was said at p. 298, citing a number of earlier cases, that "a plaintiff was not guilty of contributory negligence in failing to look up and down the street after she had rightfully undertaken to cross, since she had the right to assume that her right of way would be respected." It was held that a prayer (p. 295) to the effect that the verdict must be for the defendant if the[***19] plaintiff "could have seen the defendant's automobile approaching * * * in time to have stopped * * * and that she failed to do so, thereby contributing to the happening of the accident", imposed too strict a duty upon appellant and should not have been granted.

   In a long line of cases it has been held that there is no duty to anticipate that a driver facing a stop sign or red light will not obey the statutory obligation to stop and yield the right of way. See, for example, Carlin v. Worthington, 172 Md. 505, 509, where the rule was analogized to the "stop, look, and listen" rule applicable to railroads, Belle Isle Cab Co. v. Pruitt, 187 Md. 174, Sonnenburg v. Monumental Motor Tours, 198 Md. 227, and Shriner v. Mullhausen, 210 Md. 104. In Katzel v. Clark, 215 Md. 54, 62, the so-called "boulevard" rule was stated, quoting from Schwartz v. Price, 215 Md. 43, 48, and citing a number of cases.  See also White v. Yellow Cab Company, 216 Md. 286, 289. In State v. Marvil Package Co., 202 Md. 592, it was held that the proximate cause of the accident was the failure of the unfavored driver to stop in obedience to a flashing red signal under sec. 196 (1), and[***20] not the failure of the favored driver to see the unfavored vehicle until just prior to the impact.  In the leading case of Sun Cab Co. v. Faulkner, 163 Md. 477, 479, it was held that the proximate cause of the collision was the failure of a cab to respect a red light, and not the excessive [*123] speed of the other vehicle.  See also Gudelsky v. Boone, 180 Md. 265, a traffic light case.

   Cases dealing with the right of way at intersections not controlled by traffic lights or stop signs are clearly distinguishable, and have been distinguished.  Houlihan v. McCall, 197 Md. 130, 137; Legum v. Hough, 192 Md. 1; Wlodkowski v. Yerkaitis, 190 Md. 128; Nardone v. Underwood, 219 Md. 326. In the Legum case, supra, we said (p. 4) that the statutory right of way rule (Code (1957), Art. 66 1/2, sec. 231) was applicable only "where traffic is not controlled by traffic lights or stop signs".  On p. 6 it was said: "The limited effect thus given to the right of way rule has not escaped criticism.  * * * Nevertheless, although a more stringent rule, comparable to the 'stop, look and listen' rule, has been applied in cases where traffic is controlled by lights ( [***21]Sun Cab v. Faulkner, 163 Md. 477, 163 A. 194; Gudelsky v. Boone, 180 Md. 265, 23 A. 2d 694) or by stop signs (Carlin v. Worthington, 172 Md. 505, 192 A. 356; Shedlock v. Marshall, 186 Md. 218, [**435] 46 A. 2d 349; Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A. 2d 537), the rule announced in the Ottenritter case [151 Md. 525] is still the law of Maryland, in the case of uncontrolled crossings." In the instant case the crossing was not uncontrolled, but was controlled by both stop lights and a traffic officer.

   We think the boulevard cases are in point because they deal with signs or signals imposing a peremptory duty to stop similar to that imposed by the subsection involved in the instant case, "Red alone or 'stop.'" The red light is simply another form of stop signal, as was clearly stated in the Legum case. The point is further illustrated by Hickory Transfer Co. v. Nezbed, 202 Md. 253. There a traffic light on a boulevard was out of order, although the light facing the intersecting street was functioning.  The driver on the boulevard assumed that the traffic light had been switched off and that the boulevard stop signs controlled.  The driver[***22] on the intersecting street came through on a green light, believing that the red light was against the other vehicle.  It was held that each driver was entitled to rely on his right [*124] of way and that neither was negligent.  There was no suggestion that the vehicle facing the green light had a higher duty of care.

   Moreover, the same rule has been applied in cases, above cited, involving pedestrians, who are included with vehicles in the very subsection in question. There may be circumstances apart from nice calculations of time and distance, under which a favored driver proceeding on a green light may be put upon notice that an unfavored driver will enter unlawfully.  But we think the evidence in the instant case does not present such a case, assuming that the testimony of Jeffers is believed.  Failure to see the unfavored vehicle was not the proximate cause of the accident because if he had seen it, he could properly have assumed that it would stop.  Schwartz v. Price, supra, and cases there cited.  If the vehicle was more than ninety-six feet away and moving at only twelve miles per hour, with the unusual capacity of stopping not only by the use of air brakes, but[***23] by dropping the "pan", there was no reason to suppose that it would not stop in obedience to the signal. The fact that it was making considerable noise in second gear would not give notice that it would ignore the red light. Jeffers's pretrial statement that he had seen other payscrapers crossing when the lights were changing would not alter the case.  He did not say that he ever saw a vehicle enter the intersection against a red light; in fact he testified just to the contrary.  Since we think his pretrial statement was not inconsistent with his testimony when called as an adverse party, we do not reach the question whether the prior statement could be used as affirmative evidence, and not merely to affect his credibility.  See Sun Cab Co., Inc. v. Cusick, 209 Md. 354, 361. It was upon the latter theory that the trial court admitted it.

   The appellees rely strongly upon the cases of Sklar v. Southcomb, 194 Md. 626, and Baltimore Transit Co. v. Young, 189 Md. 428. In the Sklar case, the favored driver did not see a car which was being driven through a red light at the end of a funeral procession.  At that time the statute (Code (1957), Art. 66 1/2, sec. 193 (f), states[***24] the present law on [*125] the subject) did not give the right of way to a funeral procession, but there was proof of a long established custom, whereby vehicles, following the first vehicle in a funeral procession that entered on a green light, continued to cross despite a change of lights, and that Southcomb had knowledge of it.  Other waiting cars in two lanes were allowing Sklar to pass when Southcomb attempted to pass them on the wrong side of the street. It was held that a jury question was presented as to whether Sklar's negligence in passing on the wrong side contributed to the accident.  The case is readily distinguishable.  The Young case, dealing with an emergency vehicle accorded a statutory right of way, is not in point.

   [**436] It is not without significance in the instant case that according to Jeffers and the Smiths the traffic officer, Mr. Seifert, did not anticipate that the payscraper would run the red light, for he gave the signal for east and west traffic to proceed after the light turned green. It is difficult to see why Jeffers should be charged with negligence if he depended upon the judgment of the traffic officer or, conversely, how Jeffers[***25] could have been guilty of negligence and the officer not equally guilty.  Under sec. 181 of the Motor Vehicle Law it was Jeffers's duty to obey the direction of the traffic officer. Neither the officer, Jeffers, nor the Smiths anticipated that the payscraper would run the light until it was actually at or in the intersection. Obviously, it was then too late for Jeffers to stop.  We find no evidence of negligence on the part of Jeffers except upon the theory that he entered upon a red light as Rhodes maintained.  On the other hand, if Rhodes's testimony is believed, the sole and proximate cause of the accident was that Jeffers failed to stop at a red light. We think that issue, and that alone, should have been put to the jury as regards the negligence vel non of Jeffers and Rhodes.

   Since the case must be retried, we shall briefly discuss the other points raised.  Counsel for the Seiferts in his closing argument to the jury said: "If your answer to issue No. 1 is 'no', then the plaintiff will walk out of this court without a cent." There was a motion for mistrial, which the court denied. Nor did the court give any curative instruction.  We [*126] think the argument was[***26] improper, although it is argued that counsel for the appellants opened the subject by telling the jury that if their answer was "no", Eastern would recover for damages to its truck. The contention is made that counsel for the appellants is estopped to raise the point since he invited the retaliation or reply.  However that may be, we think the statement carried an implication that Rhodes was impecunious or not covered by insurance, which may or may not have been the case.  The cases generally recognize that references to wealth or poverty in a civil case are improper.  See Note, 32 A.L.R. 2d 9. Rhodes has not appealed, and the question suggested by the appellees that he may not have been liable as a fellow servant of Seifert is not before us.  The statement was particularly harmful in view of the erroneous instruction as to liability.  We may assume that it will not be repeated upon the new trial.

   The final question is whether counsel for the appellants was unduly restricted in his cross-examination of Rhodes.  Jeffers and Rhodes were each called by the plaintiffs as adverse parties.  The only questions put to Rhodes were to elicit his claim that he had the green light as he entered[***27] the intersection. The trial court sought to limit cross-examination by counsel for the appellants to the issue developed in direct examination, but suggested that counsel might call Rhodes as an adverse party.  This counsel did, apparently acquiescing in the court's ruling.  In any event, we think the record does not show an abuse of the court's discretion, or that the appellants were prejudiced thereby.

   The appellants do not challenge the correctness of the court's ruling as to the judgment N.O.V. in the death case.  It was shown, of course, that Buckley was a conforming employer.  See Baltimore Transit Co. v. State, 183 Md. 674; Congressional Country Club v. Baltimore & O. R. Co., 194 Md. 533.

   Upon remand, there is no occasion to resubmit to a jury the issue as to damages.  Maryland Rule 872 a; Keitz v. National Paving Co., 214 Md. 479, 504. Nor do we see any occasion to resubmit the issue as to the contributory negligence [*127] of Seifert, which was not mentioned in the appellants' brief.  There was no appeal from the judgment against Rhodes.  Thus, the only issue to be resubmitted is as to the negligence vel non of Jeffers and Eastern.

   Judgments against [***28]  Eastern and Jeffers reversed; judgment in favor of Buckley in [**437] the death case affirmed; judgment in favor of Buckley in the property damage case reversed; costs to be paid by the appellees; case remanded for a new trial.

DISSENTBY: BRUNE

DISSENT: Brune, C. J., filed the following dissenting opinion, in which Hammond and Horney, JJ., concurred.

   The Legislature has recognized at least these three different types of highway intersections, with different statutory provisions applicable to each: (1) uncontrolled intersections; (2) intersections controlled by traffic lights; and (3) intersections controlled by fixed stop signs erected by the State Roads Commission or other authorized public authority. n1 The majority opinion consolidates the last two by making the so called boulevard rule applicable to changing light intersections.

n1 Not all intersections fall within one of these three classifications, and in some situations other special rules are applicable.  Such rules will be referred to herein where it seems appropriate.

[***29]

   At an uncontrolled intersection, the driver approaching to the right of the other driver has the right of way over the latter.  Code (1957), Art. 66 1/2, § 231. n2 This section is a cautionary guide, rather than a peremptory command. Wlodkowski v. Yerkaitis, 190 Md. 128, 57 A. 2d 792; Legum v. Hough, [*128] 192 Md. 1, 63 A. 2d 316; Rabinovitz v. Kilner, 206 Md. 455, 112 A. 2d 483. The bright hope that this statute, which was first adopted in 1916, would solve the prior confusion in intersection collision cases simply and definitely (see Buckey v. White, 137 Md. 124, 111 A. 777) was not realized.  See, for example, in addition to the cases above cited, Chiswell v. Nichols, 137 Md. 291, 112 A. 363; Taxicab Co. v. Ottenritter, 151 Md. 525, 135 A. 587; Askin v. Long, 176 Md. 545, 6 A. 2d 246.

n2 For simplicity and consistency all references in this opinion to statutory provisions will, unless otherwise stated, be to Art. 66 1/2 of the 1957 Edition of the Code, and will be only to section numbers.  The accident here involved was in 1956, but there were no intervening changes in the laws pertinent to this case.

[***30]

   Intersections controlled by traffic signals are generally governed by § 193. n3 Section 193 reads in part as follows:

   "Whenever traffic is controlled by traffic-control signals exhibiting the words 'go,' 'caution,' or 'stop,' or exhibiting different colored lights successively one at a time the following colors only shall be used and said terms and lights shall indicate as follows:

   "(a) Green alone or 'go.'

   (1) Vehicles facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn.  All vehicles shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited.

   * * *

   "(b) Amber alone or 'caution' when shown following the green or 'go' signal.

   (1) Vehicles facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection.  [Italics in this sentence supplied.]

   * * *

   "(c) Red alone or 'stop.'

   (1) Vehicles facing the signal shall stop before [*129] entering the nearest crosswalk at an intersection[***31] or at such other point as may be indicated by a clearly visible line and shall remain standing until green or 'go' is shown alone.

   * * *"

n3 There are other provisions as to the right of way of pedestrians generally in § 236, as to the right of way of blind pedestrians in § 194.

   Sections 189-191 provide for the installation by the State Roads Commission or by local authorities of traffic control devices, of which "stop" signs are a very common form.  Section 192 prohibits disobedience to traffic control devices "unless at [**438] the time otherwise directed by a peace officer." Section 2 (60) defines a "Through Highway" as "Every highway or portion thereof at the entrances to which vehicular traffic from intersecting highways is required to stop and yield right of way before entering or crossing the same and when stop signs are erected as provided in this article." Section 242 authorizes the State Roads Commission with reference to State and County highways, and local authorities with reference to[***32] other highways, to designate through highways and to erect stop signs at entrances thereto.  Section 242 (c) requires drivers to come to a full stop at such signs (or stop lines) before entering the intersection and to "yield the right of way to vehicles approaching on the intersecting highway except when directed to proceed by a peace officer or traffic-control signal." (Italics supplied.) There may be some overlapping between § 242 and §§ 189-192 and also between § 242 and § 233, but there seems to be no inconsistency.

   Section 233 (a) reads as follows:

   "(a) In general.  -- The driver of a vehicle shall come to a full stop as required by this article at the entrance to a through highway and shall yield the right of way to other vehicles approaching on said through highway."

   Section 233 (b) contains a similar provision where a stop sign is erected at an entrance to an intersecting highway which is not a part of a through highway. 

   The "boulevard rule" has evolved from cases where collisions occurred between motor vehicles on through highways [*130] and those entering from other roads.  It would be a tedious and rather useless undertaking to review them all, [***33] but it does seem important to state the foundation of the rule which runs through many of the cases.  This is the purpose to accelerate the flow of traffic over through highways. It was first stated by Judge Offutt in Blinder v. Monaghan, 171 Md. 77, 83-84, 188 A. 31, when he said: "The manifest purpose of the statute is to facilitate and expedite the movement of traffic within and between congested centers of population by setting aside selected highways as through roads, over which traffic may move without interruption or delay.  To accomplish that, it dispenses with the right of way rules applicable to highways generally, and gives the right of way to all traffic on such highways, and, as a necessary police measure for the protection of the traveling public, it provides that no one shall enter such a highway without first stopping, and that, having stopped, the operator of any vehicle approaching such a highway shall yield the right of way to 'all vehicles approaching' thereon." Other cases so stating the purpose of the statute include Greenfeld v. Hook, 177 Md. 116, 8 A. 2d 888; Madge v. Fabrizio, 179 Md. 517, 20 A. 2d 172; Brooks v. Childress, 198 Md. 1, 81 A. [***34] 2d 47; Baltimore Transit Co. v. O'Donovan, 197 Md. 274, 78 A. 2d 647; Sonnenburg v. Monumental Motor Tours, Inc., 198 Md. 227, 81 A. 2d 617; Sun Cab Co. v. Cusick, 209 Md. 354, 121 A. 2d 188.
 
   The language of § 233 (b) relating to stopping and yielding the right of way before entering a street or road protected by a stop sign is substantially identical with that of § 233 (a), and § 242 applies to both.  Because of these facts the boulevard rule was held applicable to a vehicle entering a favored highway protected by a stop sign, even though the favored highway was not a "through highway" in Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A. 2d 537, a 4-2 decision in which Judge Henderson wrote the majority opinion and Judge Markell wrote a vigorous dissent based upon the facts that the favored highway was not a through road and that the favored driver ignored a caution sign. Judge Delaplaine joined in the dissent.  The language of § 234 with regard to [*131]vehicles entering a "paved public highway" from an unpaved public highway or from a private road is also almost identical with that of § 233 (a) as to stopping and yielding the right of way. Because of[***35] that fact, and even in the [**439] absence of a stop sign, this Court held the same rule applicable as in "boulevard stop" cases, this time over the vigorous dissent of Judge Hammond, in Shriner v. Mullhausen, 210 Md. 104, 122 A. 2d 570 and 821.

   It has been stated in several cases that the boulevard rule is a statutory application of the old "stop, look and listen" rule with respect to railway crossings. This seems to have been first said in Carlin v. Worthington, 172 Md. 505, at 509, 192 A. 356. Statements to like effect may also be found in: Greenfeld v. Hook, supra, in which (177 Md. at 130) Judge Offutt referred to that rule as "the severest rule known to the common law of America;" Pegelow v. Johnson, 177 Md. 345, 9 A. 2d 645; Legum v. Hough, supra; and in the majority opinion in the instant case.

   The foundation of the "stop, look and listen" rule is, I think, contributory negligence.  This seems clear from Philadelphia, W. & B. R. Co. v. Hogeland, 66 Md. 149, 7 A. 105, which was the one case cited in Carlin v. Worthington, supra, for an exposition of the rule which was stated at 66 Md. 161, 7 A. 107 (though the rule was there found inapplicable[***36] because the negligence of the driver was held not imputable to the plaintiff, who had been a passenger in the vehicle that was struck).  Among other cases also showing that the rule is one of contributory negligence, see Pennsylvania R. R. Co. v. Yingling, 148 Md. 169, 179, 129 A. 36; Baltimore & O. R. R. Co. v. Bruchy, 161 Md. 175, 155 A. 346; Baltimore & O. R. R. Co. v. State, Use of Andrews, 190 Md. 227, 58 A. 2d 243; and Sears v. Baltimore & O. R. R. Co., 219 Md. 118, 148 A. 2d 366.

   More or less correlative to this fundamental aspect of the "stop, look and listen" rule is the rule dealing with the question of the primary negligence of the railroad, under which it may be assumed that the person who should stop, look and listen, or yield the right of way, or both, will do so.  In many [*132]instances this seems to be an application of the rule that one who is in a place of safety will not normally be expected to leave it to enter a place of known danger unless he has satisfied himself that he can do so safely.  This correlative rule applies, or can apply, in many different situations, including all kinds of intersection cases, whether railroad grade crossings[***37] or highway intersections controlled by stop signs or traffic lights, or wholly uncontrolled by traffic devices, and cases involving safety islands on which pedestrians may await a favorable opportunity to cross busy streets.

   At this point it seems appropriate to observe that, in general, railroad crossing cases in which the railroad has been held not to be guilty of primary negligence have been cases in which the railroad has given adequate warning by whistle, bell, lights, or other means, of the approach of a train; and it has been held in such cases to be entitled to rely on the assumption that the injured party would heed the warning.  See, for example, Western Maryland R. Co. v. Myers, 163 Md. 534, 163 A. 700; Pennsylvania R. R. Co. v. State, Use of Brewer, 188 Md. 646, 53 A. 2d 562; Baltimore & O. R. R. Co. v. Leasure, 193 Md. 523, 69 A. 2d 248. See also, State, Use of Emerson v. Baltimore & O. R. R. Co., 171 Md. 584, 190 A. 231, where the fact that the railroad had given warning was pointed out, even though there was no statutory obligation to do so.  Even though it gives warning, a railroad still has an obligation to avoid injuring others, if it learns of their[***38] danger in time to do so.

   There is no general statutory requirement for the driver of a vehicle on a favored highway to give notice of his approach to an intersection; yet in the boulevard cases the presumption that the unfavored driver will stop and yield the right of way is applied most rigorously and is given the broadest scope.  As Judge Markell pointed out in Sonnenburg v. Monumental Motor Tours, Inc., supra (198 Md. at 235), the "relative rights of travelers" have become the measure [**440]of the relative rights of favored drivers and unfavored drivers and victims of unfavored drivers, including passengers of the favored drivers and strangers not guilty of contributory negligence [*133] or chargeable with the unfavored driver's negligence.  Judge Markell seems to have accepted the sweeping application of the boulevard cases somewhat wistfully; but he accepted the boulevard rule as a firmly established construction by this Court of the statutory provisions relating to through highways or other streets protected by similar signs (as in Belle Isle Cab Co. v. Pruitt, supra); and I also, of course, accept it as settled law.

   But when we come to the heart of this[***39] traffic light case, I find no adequate reason for extending the boulevard rule to cover it.

   First. There is no through traffic to be expedited, for from the nature of the alternating colors of the traffic control light, there can be no such thing. Thus the primary basis for the boulevard rule simply does not exist.  Without it any analogy to the railroad crossing cases based upon the expedition of uninterrupted through traffic necessarily falls.

   Second. Any analogy to what I have called a rule correlative to the "stop, look and listen" rule -- the presumption that one who should stop, look and listen will do so -- is, in my opinion, so seriously impaired (even if not completely destroyed) as to be inapplicable because of the obvious and inherent difference between a changing traffic light which sometimes says "stop" and sometimes says "go" and a fixed unchanging stop sign which always says "stop and yield the right of way." This point is closely related to the matter of proximate causation which is discussed below.

   Third. The statutes involved recognize the difference between fixed and changing signs, and § 193 clearly makes allowance for it.  Two great purposes of [***40] traffic regulation are to promote safety and to expedite the movement of traffic. It seems to me evident that safety is promoted by the exercise of caution by travelers on both highways at intersections where at one moment the north-south highway is the favored highway and a few seconds later the east-west highway supplants it as such.  It is also, I think, evident that so long as one highway or the other has the green light, traffic on that highway is intended to have the benefit of such expedition [*134] as a traffic light may reasonably afford.  The pinch comes at the time of transition -- when the green light becomes red and vice versa.  Here the Legislature has provided for the amber signal, which is essentially cautionary.  (§ 193 (b).) At just what moment the obligation to stop which it imposes becomes operative is left somewhat flexible.  A driver approaching a light as amber follows green is given the option if he cannot stop safely before entering the intersection, to continue through it "cautiously." He must make his decision almost instantaneously, and it is not always an easy decision to make.  He must also determine, if he thinks he cannot stop safely before entering[***41] the intersection, what is a cautious way to proceed through it, and this, too, may not be an easy decision.  One driver might reach one conclusion as to whether to stop or to go ahead (and if to go ahead, how to do so), and another the opposite conclusion in the brief moment when he has to make up his mind.  Uncertainties of these kinds seem unavoidable when a traffic light changes.  The Legislature has made allowance for these uncertainties at the time of transition from one signal to another.

   Legislative intention to deal with the two situations differently and legislative understanding that they are different also seem to me to be demonstrated by the provisions of § 242 (c) and the similar provisions of § 192, both mentioned above, to the effect that a driver about to enter a through highway shall come to a full stop and yield the right of way except when directed to proceed by a traffic control signal. Where there is such a signal this Court has held that the boulevard law does not apply.  [**441] Gudelsky v. Boone, 180 Md. 265, 268, 23 A. 2d 694. Curiously enough, through reliance on a dictum referring to Gudelsky, the majority seeks to derive support from [***42]Gudelsky for its holding in this case.

   The majority opinion seems to me to brush aside the distinctions which the statutes recognize between boulevard and traffic light intersections. That, I think, is not correct as a matter of statutory construction.

   Fourth. The main question here is one of negligence or contributory negligence on the part of Eastern and its truck [*135] driver. For present purposes, it may be assumed that the Buckley payscraper was not lawfully in the intersection when Eastern's driver got the green light, and a hand signal from Seifert, the crossing watchman who was killed.  If it had been, it would, of course, have had the right of way to complete the passage.  § 193 (a) (1); Valench v. Belle Isle Cab Co., 196 Md. 118, 75 A. 2d 97. n4

n4 See also United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768; Wintrobe v. Hart, 178 Md. 289, 13 A. 2d 365; Caryl v. Baltimore Transit Co., 190 Md. 162, 58 A. 2d 239; Sun Cab Co. v. Cialkowski, 217 Md. 253, 142 A. 2d 587; three dealing with the rights of pedestrians who started across with a green light.

[***43]

    The majority opinion confines Valench strictly to its facts and deals with the question almost exclusively as one of right of way to be solved by determining who had the green light at a particular instant of time.  Yet the majority seems to accept the view that what is foreseeable is an important element in determining proximate causation.  Sun Cab Co. v. Faulkner, 163 Md. 477, 163 A. 194, cited by the majority as a principal authority, so recognized when the Court said (163 Md. at 480): "It is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

   The negligence question here is simply, what would a reasonable, prudent man do under the circumstances confronting Jeffers, the driver of the Eastern truck? The majority opinion, (for all practical purposes accepting Jeffers' testimony as true, though theoretically not doing so, and making "nice calculations" based thereon which the boulevard rule[***44] purports to spurn and to make unnecessary) holds that he need neither see nor hear the Buckley vehicle, that he may ignore its existence and that he may drive straight ahead as soon as he gets the green light. It is beyond my comprehension [*136] how a reasonable, prudent man could fail to see or hear a huge, roaring piece of earth moving equipment approaching the intersection that he is about to enter, or how, if he did see or hear it, "he could" sensibly (the majority says "properly") "have assumed that it would stop." Driving into the path of an onrushing heavy vehicle would seem to me to present a collision as a foreseeable consequence, and the likelihood of injury to a third person, such as Mr. Seifert, standing in the intersection, would seem too obvious for comment.

   The boulevard cases in this Court in which injury or damage has been regarded as foreseeable are, indeed, few and far between.  See Greenfeld v. Hook, supra (1939), and Sun Cab Co. v. Hall, 199 Md. 461, 86 A. 2d 914 (1952). Yet even the boulevard cases habitually recognize that there may be such cases.  So does the majority opinion in the instant case; but I should regard it as a most difficult undertaking[***45] to state what case would meet the test, if this one does not.  Sklar v. Southcomb, 194 Md. 626, 72 A. 2d 11, which is a traffic light case, held that it was a jury question whether the driver of a car getting the green light was guilty of negligence where he knew of but ignored a local custom (not then sanctioned by law) by which cars in a [**442] funeral procession followed across an intersection, notwithstanding a change of light from green to red, and the driver who had just gotten the green light ran into the last car in the funeral procession in the intersection. I should doubt that the known custom involved in the Sklar case presented a more foreseeable danger of collision than did the approach of the Buckley payscraper here.

   Even cases applying the boulevard rule do not purport to make the presumption that the unfavored driver will stop and yield the right of way a conclusive presumption.  Belle Isle Cab Co. v. Pruitt, supra, 187 Md. at 179-180.

   Fifth. In my estimation, the majority view does not have any substantial support in the prior decisions of this Court.  Valench is rigorously confined by the majority to the narrow limits of the intersection; [***46] and as to anything outside those limits the driver of a car just getting the green light is told that he may wear blinders and ear muffs and go right ahead.  [*137] Sklar v. Southcomb, supra, is dismissed with little, if any attempt, to show why the custom there involved would be any more in the mind of a reasonable, prudent driver getting the green light than would be the loud noise and obvious visibility of the approaching payscraper in this case.

   Having disposed of Valench and Sklar, the opinion of the Court finds authority for its conclusion in Legum v. Hough, supra. The heart of that case as authority for the decision in this, is found in a passage quoted by the majority in this case, where the Court, speaking through Judge Henderson, after referring to the rather limited effect given to the car-on-the-right rule as to the right of way (§ 231) said (192 Md. at p. 6): "The limited effect thus given to the right of way rule has not escaped criticism.  * * * Nevertheless, although a more stringent rule, comparable to the 'stop, look and listen' rule, has been applied in cases where traffic is controlled by lights (Sun Cab Co. v. Faulkner, 163 Md. 477, 163[***47] A. 194; Gudelsky v. Boone, 180 Md. 265, 23 A. 2d 694) or by stop signs (Carlin v. Worthington, 172 Md. 505, 192 A. 356; Shedlock v. Marshall, 186 Md. 218, 46 A. 2d 349; Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A. 2d 537), the rule announced in the Ottenritter case [151 Md. 525] is still the law of Maryland * * *."

   Legum v. Hough from which the above quotation is taken was itself an uncontrolled intersection collision case.  I fully agree with the majority that such cases "are clearly distinguishable and have been distinguished." It seems clear to me that the discussion of traffic light and stop signs cases in the above passage was not in any way necessary to the decision of Legum, and is to be regarded as obiter dictum.  Insofar as the traffic light cases -- Sun Cab v. Faulkner and Gudelsky v. Boone -- are concerned, it lacks the merit of complete accuracy.  One may say, if he chooses, that the results in those cases were similar to those in railroad crossing cases where the "stop, look and listen" rule was applied; but such was not the ground of decision in either of those cases.  On the contrary, one will search those cases in vain[***48] for any reference to that rule.  Sun Cab v. Faulkner was decided before [*138] Carlin v. Worthington, supra, had even suggested the analogy; Gudelsky was decided on the explicit holding (among others) that the boulevard law did not apply, since the intersection where the collision occurred was controlled by a traffic light, and there was no reference whatsoever, through the boulevard cases or otherwise, to the "stop, look and listen" rule.  The majority's chief authority for its holding thus seems to me to be only a dictum embodying something less than a complete and accurate analysis of the two traffic light cases therein referred to.

   Sun Cab v. Faulkner relied upon in Blinder v. Monaghan, supra, and in other boulevard cases in support of a finding that [**443] the driver on the favored highway was not guilty of any negligence constituting the (or a) proximate cause of the accident, was a traffic light case.  Questions of proximate causation are to be found in both traffic light controlled intersections and boulevard intersection cases, (Katzel v. Clark, 215 Md. 54, 137 A. 2d 125), as well as in other kinds of tort cases involving negligence. [***49]I think it a fair generalization to say that where Sun Cab v. Faulkner and like cases have been cited in boulevard cases, they have been relied upon on an a fortiori basis -- that if this is the rule in traffic light cases, it must even more be the rule in boulevard cases.  Thus in Blinder v. Monaghan, supra (171 Md. at 84), the Court said: "Where, as in this case, the operator of a vehicle enters such a highway [a through highway] in disregard of these explicit and mandatory rules, and collides with another vehicle approaching thereon, the collision can only be attributed to his negligence, for in such a case the principle announced in Sun Cab Co. v. Faulkner, 163 Md. 477, 163 A. 194, applies with peculiar force." Because of the difference between the two kinds of intersection control, that seems to me a sound approach, but it does not support opposite reasoning.  I know of no case prior to this in which the boulevard cases have been held controlling as to traffic light intersection cases.

   Not only is the opinion of the Court on this principal question unsupported by any prior direct authority in this State, [*139] but it is, so far as I am informed, contrary[***50] to the holdings of courts of other States on substantially the same question.  Because of the already great length of this dissent and because the case must be determined as a matter of Maryland law, I shall not undertake to review the authorities elsewhere.  I shall only refer to a well known text book as to the rule at such intersections as we are dealing with here.  Blashfield, Cyclopedia of Insurance Law, Sec. 1028, states the general rule that "[m]otorists driving along streets protected at intersections by traffic lights or stop and go signals are justified in assuming that a driver approaching such an intersection understands the signals and will not undertake to cross against them, and need not anticipate that a driver will enter the intersection in violation of a stop signal," but goes on to say: "Though it is not negligence for the favored driver to act on assumptions of this nature until he has or reasonably should have knowledge to the contrary, he is bound, after acquiring such knowledge, to exercise the care of an ordinarily prudent person."

   Also because of the length of this opinion, I shall say no more of the extent to which, in my estimation, the majority has[***51] gone in evaluating the evidence, despite this being a jury case.

   In summary, it is my view that the holding of the majority is an extension of the boulevard rule to a situation in which neither the basic reason for the boulevard rule nor any analogy to the "stop, look and listen" rule supports the extension of the boulevard rule and where its extension simply overrides statutory differences between traffic light and stop intersections which the Legislature has established.  In addition, it subjects innocent bystanders to risks of personal injury or death and of property damage, without redress from one of the parties whose actions contribute to their loss, where ordinary attention by a driver to his surroundings would enable him to avoid a collision and consequent injury, death or loss.  Admiral Farragut's famous order at the Battle of Mobile Bay seems to me out of place at a traffic light, even at a green one. 

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